Exhibit 10.5


AGREEMENT OF LEASE


BETWEEN


GREEN BUS HOLDING CORP., Landlord


AND


THE CITY OF NEW YORK, Tenant


PREMISES


165-25 147th Avenue

Jamaica, New York


Section 56, Block 13296, Lots 7, 14 and 101

and

Section 56, Block 13298, Lot 11

and

Section 56, Block 13302, Lot 171
















 


TABLE OF CONTENTS


	
  ARTICLE 1

  	
   

  
	
  DEMISED PREMISES

  	
  1

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  TERM

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  RENT

  	
  3

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  USE OF DEMISED
  PREMISES

  	
  7

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  IMPOSITIONS

  	
  8

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  [INTENTIONALLY
  OMITTED]

  	
  10

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  REPAIRS AND
  MAINTENANCE OF THE DEMISED PREMISES

  	
  10

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  TENANT’S
  ALTERATIONS

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
  UTILITIES

  	
  16

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  PRE EXISTING
  ENVIRONMENTAL CONDITIONS;

  	
   

  
	
  ENVIRONMENTAL
  COMPLIANCE DURING PERIOD OF TENANCY;

  	
   

  
	
  REQUIREMENTS OF
  LAW

  	
  16

  
	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  INSURANCE

  	
  21

  
	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
  DAMAGE OR
  DESTRUCTION

  	
  25

  
	
   

  	
   

  
	
  ARTICLE 13

  	
   

  
	
  ASSIGNMENT AND
  SUBLETTING

  	
  29

  
	
   

  	
   

  










 



 


	
  ARTICLE 14

  	
   

  
	
  INDEMNIFICATION

  	
  36

  
	
   

  	
   

  
	
  ARTICLE 15

  	
   

  
	
  CONDEMNATION

  	
  37

  
	
   

  	
   

  
	
  ARTICLE 16

  	
   

  
	
  RIGHT TO INSPECT

  	
  40

  
	
   

  	
   

  
	
  ARTICLE 17

  	
   

  
	
  [INTENTIONALLY
  OMITTED]

  	
  41

  
	
   

  	
   

  
	
  ARTICLE 18

  	
   

  
	
  DEFAULT
  PROVISIONS

  	
  41

  
	
   

  	
   

  
	
  ARTICLE 19

  	
   

  
	
  ATTORNEYS’ FEES

  	
  45

  
	
   

  	
   

  
	
  ARTICLE 20

  	
   

  
	
  WAIVER OF
  REDEMPTION; COUNTERCLAIM; TRIAL BY JURY

  	
  45

  
	
   

  	
   

  
	
  ARTICLE 21

  	
   

  
	
  NO WAIVER

  	
  45

  
	
   

  	
   

  
	
  ARTICLE 22

  	
   

  
	
  END OF TERM

  	
  46

  
	
   

  	
   

  
	
  ARTICLE 23

  	
   

  
	
  BROKER

  	
  48

  
	
   

  	
   

  
	
  ARTICLE 24

  	
   

  
	
  QUIET ENJOYMENT

  	
  48

  
	
   

  	
   

  
	
  ARTICLE 25

  	
   

  
	
  NON-LIABILITY OF
  LANDLORD

  	
  48

  
	
   

  	
   

  
	
  ARTICLE 26

  	
   

  
	
  APPLICABLE LAW
  AND CONSTRUCTION

  	
  49

  
	
   

  	
   

  
	
  ARTICLE 27

  	
   

  
	
  BINDING EFFECT
  OF LEASE

  	
  50

  
	
   

  	
   

  
	
  ARTICLE 28

  	
   

  
	
  NOTICES

  	
  50

  



 



 ii
 






 



 


	
  ARTICLE 29

  	
   

  
	
  FEE MORTGAGES

  	
  51

  
	
   

  	
   

  
	
  ARTICLE 30

  	
   

  
	
  ESTOPPEL
  CERTIFICATES

  	
  52

  
	
   

  	
   

  
	
  ARTICLE 31

  	
   

  
	
  REPRESENTATIONS

  	
  52

  
	
   

  	
   

  
	
  ARTICLE 32

  	
   

  
	
  MISCELLANEOUS

  	
  54

  
	
   

  	
   

  
	
  ARTICLE 33

  	
   

  
	
  ROOF RIGHTS; AIR
  RIGHTS

  	
  55

  
	
   

  	
   

  
	
  ARTICLE 34

  	
   

  
	
  INVESTIGATIONS

  	
  57

  
	
   

  	
   

  
	
  ARTICLE 35

  	
   

  
	
  SIGNIFICANT
  RELATED PARTY TRANSACTIONS

  	
  59

  



 


List of Schedules


Schedule A - Description of the Real Property



 iii














 


 


AGREEMENT OF LEASE


AGREEMENT
OF LEASE (the “Lease”) made as of the         
day of                ,
2005 between GREEN BUS HOLDING CORP., a corporation organized and existing
under the laws of the State of New York, with offices located at 444 Merrick
Road, Suite 370, Lynbrook, New York 11563, Attention:  Jerome Cooper (the “Landlord”), and
THE CITY OF NEW YORK, a municipal corporation of the State of New York, acting
through the Department of Citywide Administrative Services, with offices
located at One Centre Street, New York, New York 10007 (the “Tenant”).


ARTICLE 1

DEMISED PREMISES


Section
1.01 – Description of Demised Premises. In consideration of
and subject to the terms, covenants, agreements, provisions, conditions and
limitations set forth in this Lease, Landlord has agreed to demise and lease
unto Tenant and Tenant has agreed to hire and take from Landlord that certain
parcel of real property known as 165-25 147th Avenue, Jamaica,
County of Queens and State of New York, as more particularly described on Schedule
A annexed hereto and made a part hereof (the “Land”), together with
all buildings and improvements erected or to be erected thereon (the “Improvements”),
and together with all of Landlord’s right, title and interest in all easements,
rights and other matters appurtenant to the Land or the Improvements and in and
to any land lying in the bed of any roads adjacent to the Land, except that
rights to use the roof, air rights and transferable development rights are
specifically excluded and shall not be demised or leased to Tenant under this
Lease subject to the provisions of Article 33 hereof (such Land, Improvements,
easements and rights being hereinafter collectively referred to as the “Demised
Premises”).


Section
1.02 – Condition of Demised Premises. Tenant acknowledges and
agrees that it shall hire and take the Demised Premises from Landlord in its
present state of title, subject to all existing liens, charges, encumbrances
and any other matters affecting title. Except as specifically set forth in this
Lease, Tenant agrees to accept the Demised Premises “as is,” in the existing
condition and state of repair as of the date hereof and without recourse to
Landlord. Tenant further agrees that no representations, statements or
warranties, express or implied, have been made by or on behalf of Landlord and
Tenant has not relied on any representations, statements or warranties, express
or implied, in respect of the Demised Premises or in respect of the condition
thereof or the present or future use or occupation that may be made thereof,
the zoning or other Requirements (as hereinafter defined), transferable
development rights, encumbrances thereon, appurtenances, or title thereto
(except as may be expressly set forth in this Lease). Without limiting the generality
of the foregoing, Tenant has not relied on any representations or warranties
other than as expressly set forth herein as to (1) the current or future real
estate tax liability, assessment or valuation of the Demised Premises, (2) the
potential qualification of the Demised Premises for any and all



 4
 






 



 


benefits conferred
by federal, state or municipal laws, whether for subsidies, special real estate
tax treatment, insurance, mortgages, or any other benefits, whether similar or
dissimilar to those enumerated, (3) the compliance of the Demised Premises, in
its current or any future state, with applicable zoning ordinances and the
ability to obtain a change in the zoning or a variance with respect to the
Demised Premises’ non-compliance, if any, with said zoning ordinances, (4) the
availability of any financing for the purchase, alteration or operation of the
Demised Premises from any source, (5) the current or future use of the Demised
Premises, including, but not limited to, the Demised Premises’ use for
residential or commercial purposes, (6) the present or future structural and
physical condition of any building, (7) the presence or absence of any
Requirements and any violations thereof, and (8) the presence or absence of any
Hazardous Materials (as hereinafter defined), and the compliance or
non-compliance with any Environmental Laws (as hereinafter defined). Landlord
shall in no event whatsoever be liable for any latent or patent defects in the
Demised Premises. Requirements shall mean any and all present and future laws,
rules, orders, ordinances, regulations, statutes and requirements of any
Governmental Authority (as hereinafter defined) relating in any way to the
Demised Premises.


ARTICLE 2

TERM


Section
2.01 –Term. This Lease shall be for a term (the “Term”)
of twenty-one (21) years, which shall commence on the date (the “Commencement
Date”) of the closing under that certain Asset Purchase Agreement between
Landlord or its parent and Tenant of even date and shall end at midnight on the
day which is the twenty-first (21st)
anniversary of the Commencement Date (the “Expiration Date”), unless
such Term shall sooner cease or expire as hereinafter provided. This Lease
shall be of no force and effect if the closing under that certain Asset
Purchase Agreement between Landlord or its parent and Tenant of even date does
not occur.


Section
2.02 – Renewal Option. Tenant shall have the right and option
(“Renewal Option”) to renew the Term of this Lease for two (2)
successive periods of fourteen (14) years each (each, a “Renewal Term”).
Tenant shall give notice to Landlord of Tenant’s exercising of such option
(each a “Renewal Notice”) not later than twelve (12) months prior to the
then effective Expiration Date, TIME BEING
OF THE ESSENCE with respect to giving of the Renewal Notice by
Tenant to Landlord; provided, however, that the Renewal Notice shall be validly
and effectively given only if, on the date that Tenant shall exercise its
Renewal Option (the “Exercise Date”) this Lease shall not have been
previously terminated or cancelled and there shall be no uncured Event of
Default. If Tenant shall validly exercise its Renewal Option in accordance with
the provisions of this Section 2.02, this Lease shall be deemed to be extended
pursuant to the Renewal Notice, subject to the provisions of this Lease.
Notwithstanding anything to the contrary contained in this Section 2.02, if on
the commencement of a Renewal Term there shall be an uncured Event of Default,
then Landlord, in Landlord’s sole and absolute discretion, may elect, by
written notice to



 5
 






 



 


Tenant, to void
Tenant’s exercise of the Renewal Option, in which case Tenant’s exercise of the
Renewal Option shall be of no force or effect, and the Term shall end on the
Expiration Date of this Lease, unless sooner cancelled or terminated pursuant
to the provisions of this Lease or by law. The applicable Renewal Term shall
commence on the day following the then effective Expiration Date and shall end
at midnight on the date that is fourteen (14) Lease Years thereafter. All of
the terms, covenants and conditions of this Lease shall continue in full force
and effect during the applicable Renewal Term, except that during the first
Renewal Term, Tenant shall have an option to extend the Term of this Lease for
one (1) Renewal Term pursuant to this Article, and during the last Renewal
Term, Tenant shall have no further right to extend the Term of this Lease.


ARTICLE 3

RENT


Section
3.01 – Fixed Rent.


(a)   Tenant
covenants and agrees, as conditions to this Lease, to keep and abide by all of
the terms, covenants and conditions of this Lease on the part of Tenant to be
performed and to pay to Landlord a fixed annual rent (“Fixed Rent”)
during the Term as follows:




	
  Lease Year

  	
   

  	
  Fixed Rent

  	
   

  	
  Monthly Installments

  	
   

  
	
  1-5

  	
   

  	
  $

  	
  2,795,000.00

  	
   

  	
  $

  	
  232,916.67

  	
   

  
	
  6-10

  	
   

  	
  3,074,500.00

  	
   

  	
  256,208.33

  	
   

  
	
  11-15

  	
   

  	
  3,381,950.00

  	
   

  	
  281,829.17

  	
   

  
	
  16-20

  	
   

  	
  3,720,145.00

  	
   

  	
  310,012.08

  	
   

  
	
  21

  	
   

  	
  4,092,160.00

  	
   

  	
  341,013.33

  	
   

  
								






 


(b)   Tenant
covenants and agrees, as conditions to this Lease, to keep and abide by all of
the terms, covenants and conditions of this Lease on the part of Tenant to be
performed and to pay to Landlord a fixed annual rent (“Fixed Rent”)
during the first Renewal Term, if exercised, as follows:




	
  Lease Year

  	
   

  	
  Fixed Rent

  	
   

  	
  Monthly Installments

  	
   

  
	
  1-4

  	
   

  	
  $

  	
  4,092,160.00

  	
   

  	
  $

  	
  341,013.33

  	
   

  
	
  5-9

  	
   

  	
  4,501,375.00

  	
   

  	
  375,114.58

  	
   

  
	
  10-14

  	
   

  	
  4,951,513.00

  	
   

  	
  412,626.08

  	
   

  
								






 


(c)   Tenant
covenants and agrees, as conditions to this Lease, to keep and abide by all of
the terms, covenants and conditions of this Lease on the part of Tenant to be
performed and to pay to Landlord a fixed annual rent (“Fixed Rent”)
during the



 6
 






 



second Renewal
Term, if exercised, as follows:




	
  Lease Year

  	
   

  	
  Fixed Rent

  	
   

  	
  Monthly Installments

  	
   

  
	
  1-5

  	
   

  	
  $

  	
  5,446,664.00

  	
   

  	
  $

  	
  453,888.67

  	
   

  
	
  6-10

  	
   

  	
  5,991,331.00

  	
   

  	
  499,277.58

  	
   

  
	
  11-14

  	
   

  	
  6,590,464.00

  	
   

  	
  549,205.33

  	
   

  
								






 


(d)   Tenant
shall pay Fixed Rent upon the Commencement Date for the remainder of the month
in which the Commencement Date occurs and the subsequent month.


(e)   For
purposes of this Lease, the term “Lease Year” shall mean for (i) the
first (1st)
Lease Year, the one (1) year period commencing on the Commencement Date plus,
if the Commencement Date is not the first day of a calendar month, the number
of days between the Commencement Date and the end of the month in which the
Commencement Date occurs, and (ii) for each Lease Year thereafter, the one (1)
year period commencing on the expiration of the preceding Lease Year.


Section
3.02 – Manner of Payment. Tenant covenants and agrees to pay
Landlord the Fixed Rent at the principal office of Landlord, or at such place
as Landlord shall from time to time direct in writing without any abatement,
reduction, setoff, counterclaim or deduction for any reason whatsoever. The
Fixed Rent shall be paid in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
private and public debts. If requested by Landlord, Tenant shall pay Fixed Rent
by wire transfer in accordance with wire instructions to be provided by
Landlord. For Tenant’s convenience, Fixed Rent shall be payable by Tenant in
equal monthly installments in arrears on the last day of each calendar month
included in the Term. Landlord shall submit monthly invoices to Tenant no later
than the 15th day of the month for the Fixed Rent; provided,
however, that Landlord’s failure to provide such invoice shall not be deemed a
waiver and Fixed Rent shall nevertheless be due and owing on the dates set
forth herein.


Section
3.03 – Proration of Fixed Rent. For any portion of a calendar
month included at the beginning or end of the Term, Tenant shall pay 1/30th of
the then applicable monthly installment of Fixed Rent for each day of such
portion, payable in advance at the end of such portion.


Section
3.04 – Late Payment. In any case in which any payment of
Fixed Rent due Landlord by Tenant under this Lease is not paid within five (5)
days of the day when same is due, such payment shall bear interest at the per
annum rate of seven (7%) percent over the then prevailing prime rate of
interest (which, for the purposes hereof, includes any equivalent or successor
interest rate to the prime rate, however the same may be denominated) of
JPMorgan Chase Bank, or Citibank N.A. if JPMorgan Chase Bank shall not then
have an established prime rate, or the prime rate of any major banking
institution doing business in New York City as selected by Landlord (the “Prime



 7
 






 



 


Rate”), if neither
of the aforementioned banks shall be in existence or have an established prime
rate (the “Default Rate”) from the date such payment was due and
payable. In any case in which any payment of Additional Rent (as hereinafter
defined) or any other sum due Landlord by Tenant under this Lease is not paid
within ten (10) days that such sum is due, such payment shall bear interest at
the Default Rate from the date such payment was due and payable. If Tenant
shall reduce, abate, setoff, counterclaim or deduct any sum from Fixed Rent or
Additional Rent payable to Landlord, the amount of such reduction, abatement,
setoff, counterclaim or deduction shall bear interest at the Default Rate from
the date such amount was reduced, abated, setoff, counterclaimed or deducted by
Tenant. Tenant agrees that the Default Rate imposed herein is fair and
reasonable, complies with all laws, regulations and statutes, and constitutes
an agreement between Landlord and Tenant as to the estimated compensation for
costs and administrative expenses incurred by Landlord due to the late payment
to Landlord by Tenant. The Default Rate shall be in addition to any other right
or remedy hereunder and shall be due and payable as Additional Rent. Tenant
further agrees that the Default Rate does not constitute a lender or
borrower/creditor relationship between Landlord and Tenant. In addition, Tenant
shall pay upon demand by Landlord any reasonable and actual attorneys’ fees,
costs and disbursements incurred by Landlord in connection with the imposition,
collection or payment of said interest, said amounts to be deemed Additional
Rent.


Section
3.05 – Additional Rent. Unless another time shall be herein
expressly provided, any additional rent, charges or sums payable by Tenant
under this Lease (collectively, “Additional Rent”) shall be due and
payable within thirty (30) days after written demand by Landlord with
supporting documentation, and Landlord shall have the same remedies for failure
to pay the Additional Rent as for a non-payment of Fixed Rent. Unless otherwise
specifically instructed by Landlord, all Additional Rent shall be paid in the
same currency and, at the same place as is the Fixed Rent required to be paid
hereunder, or by wire transfer if requested by Landlord, and shall be paid
without any abatement, reduction, setoff, counterclaim or deduction for any reason
whatsoever. Tenant shall timely pay all items of Additional Rent. In the event
Tenant has any reasonable objections or inquiries as to the supporting
documentation, Tenant may withhold payment as to the disputed amount. In the
event Landlord elects not to pay the disputed amount, and it is determined that
Tenant’s objection was unfounded, Tenant will be liable for all interest and
penalties arising from such non-payment by Tenant, however, Tenant will not be
responsible for late payment amounts under Section 3.04. In the event Landlord
elects to pay such disputed amount, and it is determined that Tenant’s
objection was unfounded, Tenant will promptly reimburse Landlord for the amount
paid by Landlord, plus late charges under Section 3.04 as to such amounts
commencing from the date of Landlord’s payment. Notwithstanding the foregoing,
any potential civil or criminal liability to Landlord shall not, in and of
itself, require Tenant to pay any disputed amounts under this Section 3.05.


Section
3.06 – Landlord Cure Rights. If Tenant shall default in
making any payment required to be made by Tenant or in performing any
obligation of Tenant under 



 8
 






 



 


this Lease which
shall require the expenditure of money, including, but not limited to
Impositions (as hereinafter defined), and such default shall continue for a
period of ten (10) days after written notice thereof from Landlord to Tenant,
or in the case of such a default or a contingency which cannot with due
diligence and in good faith be cured within ten (10) days, and Tenant fails to
proceed promptly and with due diligence and in good faith to cure the same and
thereafter to prosecute the curing of such default with due diligence and in
good faith (it being intended that in connection with a default that is not susceptible
of being cured with due diligence and in good faith within ten (10) days, that
the time of the Tenant within which to cure the same shall be extended for such
a period as may be necessary for the curing thereof promptly with due diligence
and in good faith), Landlord may, but shall not be obligated to, make such
payment on behalf of Tenant or expend such sum as may be necessary to perform
or fulfill such obligation. Any sums so paid by Landlord shall be deemed
Additional Rent.


Section
3.07 – Net Lease. The Fixed Rent hereinabove provided for
shall be in addition to all other payments to be made by Tenant as herein
provided. It is the purpose and intent of the parties hereto that the Fixed
Rent shall be absolutely net to Landlord, so that this Lease shall yield, net
to the Landlord, the Fixed Rent and that all costs, expenses and obligations of
every kind and nature whatsoever relating to the Demised Premises which may
arise or become due during the Term of this Lease shall be paid by Tenant and
that Landlord shall be indemnified and saved harmless by Tenant from and
against the same.


Section
3.08 – Rent Regulations. If all or any part of the Fixed Rent
or Additional Rent shall at any time become uncollectible, reduced or required
to be refunded by virtue of any Requirements (including rent control or
stabilization laws, however denominated), then for the period prescribed by
said Requirements, Tenant shall pay to Landlord the maximum amounts permitted
pursuant to said Requirements (but in no event to exceed the amounts which
would otherwise be due and payable under this Lease as if such Requirements
were not in effect), and Tenant shall execute and deliver such agreement(s) and
take such other steps as Landlord may reasonably request to permit Landlord to
collect the maximum fixed rent and additional rent which, from time-to-time
during the continuance of such legal rent restriction, may be legally
permissible (and not in excess of the amounts then reserved therefor under this
Lease). Upon the expiration or other legal termination of the applicable period
of time during which such amounts shall be uncollectible, reduced or
refunded:  (a) the Fixed Rent and
Additional Rent shall become and shall thereafter be payable in accordance with
the amounts reserved herein for the periods following such expiration or
termination, and (b) Tenant shall pay to Landlord as Additional Rent, within
ten (10) days after demand or such longer period as is legally permissible if
ten (10) days shall not be lawful, all uncollected, reduced or refunded amounts
that would have been payable for the above-said period absent such
Requirements.


Section
3.09 – Survival. The provisions of this Article 3 shall
survive the expiration or earlier termination of this Lease. Landlord’s failure
to bill Tenant for Fixed



 9
 






 



 


Rent or Additional
Rent or any sum due under this Lease shall in no way excuse Tenant from its
obligation to pay Fixed Rent or Additional Rent or any sum due under this
Lease, or constitute a waiver of Landlord’s right to thereafter bill and
collect such Fixed Rent or Additional Rent or any sum due under this Lease from
Tenant in accordance with the terms of this Lease.


ARTICLE 4

USE OF DEMISED PREMISES


Section
4.01 – Use.


(a)   Subject to
the provisions of Section 4.01(b), Tenant (through any of its agencies) shall
use the Demised Premises, for the maintenance, repair and storage of passenger
buses, administrative offices and for all other legal purposes (the uses
identified in this subsection are hereinafter, the “Permitted Use”). Tenant
may not use the Demised Premises for any other purposes. If Tenant or an
assignee or subtenant of Tenant shall use the Demised Premises for other than a
Permitted Use, a default shall be deemed to have occurred under Section
18.01(b).


(b)   In no event
shall the Demised Premises be used for any of the following: (i) gambling
activities; (ii) conduct of obscene, pornographic or disreputable activities;
(iii) offices of an agency, department or bureau of the United States
Government or any foreign government, or any political subdivision of any of
them; (iv) offices of any charitable, religious, union or other not-for-profit
organization; (v) offices of any tax exempt entity within the meaning of
Section 168(h)(2) of the Internal Revenue Code of 1986, as amended, or any
successor or substitute statute, or rule or regulation applicable thereto; (vi)
any manufacturing use; (vii) residential facility, single room occupancy
facility, hotel, motel, apartment hotel, rooming house, dormitory, however
denominated; (viii) restaurant, bar and lounge, tavern, grill, catering
facility, dance or social club, theatre, night club, cabaret, disco, amusement
center, movie theatre, game room, video or amusement arcade or any other
establishment whose primary business is providing food or beverage or
on-premises consumption or providing entertainment; (ix) swimming pool, skating
rink, dance hall, spa, health club, gym, exercise facility or salon; (x) any
retail use, catalog sales or fulfillment center use; or (xi) for any purpose which would constitute a
public or private nuisance (each, a “Prohibited Use”).


Section
4.02 – Compliance with Requirements. Tenant shall at all
times conduct its activities on the Demised Premises in full compliance with
all Requirements of any or all of the federal, state, city, county and borough
governments and rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental, public or quasi-public authorities having jurisdiction over
the Demised Premises, and the direction of any public officer pursuant to law,
whether nor or hereafter in force (“Governmental Authority”).



 10
 






 



 


ARTICLE 5

IMPOSITIONS


Section
5.01 – Impositions. The term “Impositions” shall mean
all real estate taxes, assessments, payments in lieu of taxes, water meter and
water charges, sewer rentals, excises, levies, license and permit fees, charges
for public utilities or other taxes, charges for any prospective easement or
agreement maintained for the benefit of the Demised Premises which has been
consented to by Tenant, charges or burdens assessed, imposed or becoming a lien
upon or with respect to the use or ownership of the Demised Premises or any
other taxable interest therein, or upon the Improvements and other improvements
erected thereupon; whether any such Impositions are general or special,
ordinary or extraordinary, foreseen or unforeseen and whether same are imposed
by a Governmental Authority or any other taxing authority having jurisdiction
over the Demised Premises of every character, kind and nature whatsoever, but
shall not include income, intangible, franchise, capital stock, excise, rent,
sales, excess profits or gross profits, estate or inheritance taxes of Landlord
(unless the same shall be in lieu of “Impositions” as herein defined by
whatever name the tax may be designated).


Section
5.02 – Payment of Impositions. Tenant shall, during the Term
of this Lease, pay and discharge, as Additional Rent, all Impositions prior to
the day any fine, penalty, interest or cost may be added thereto as imposed by
law for the non-payment thereof, if such day is used to determine the due date
of the respective item; provided, however, that if, by law, any Imposition may
at the option of the taxpayer be paid in installments (whether or not interest
shall accrue on the unpaid balance of such Imposition), Tenant may exercise the
option to pay the same in such installments, provided such installment payments
are not prohibited by the terms of any Mortgage (as hereinafter defined). From
and after the Commencement Date, Tenant shall be designated to receive Tax
bills and, if at any time after taxes are issued for any Tax Year, Tenant shall
receive a Real Estate Tax bill, Tenant shall furnish Landlord with a copy of
such bill. Upon the Expiration Date, Tenant will cooperate in designating
Landlord or its designee to receive Tax bills. Tenant shall pay all Real Estate
Taxes, as and when due and payable, directly to the applicable taxing
authority. Simultaneously with the payment of any of such Impositions directly
to the imposing authority, Tenant shall send to Landlord written evidence of
such timely payment by Tenant. Landlord shall provide Tenant with timely
written notice of any Impositions to be paid by Tenant. A copy of the
Imposition invoice or demand from the applicable imposing authority shall be
sufficient evidence of the amount of the subject Impositions. Tenant shall also
pay or cause to be paid, in the same manner as Impositions are paid, any occupancy
taxes arising under or in connection with this Lease. Tenant shall be
responsible for and shall pay as Additional Rent all penalties, fees, fines,
interest, late charges and other similar amounts for the late payment of any
Impositions. Tenant shall pay for all utilities directly to the applicable
entity.


If at
any time during the Term Tenant shall default in the payment of any
Impositions, or if required by the holder of any Mortgage, Landlord shall have
the right



 11
 






 



 


to require Tenant
(for all or any portion of the remainder of the Term) to pay to Landlord, or to
the holder of any Mortgage, in advance, in equal monthly installments, the
Impositions estimated by Landlord to be due for the subsequent tax year, such
amounts to be held in escrow by Landlord or to the holder of any Mortgage, to
ensure the full and timely payment of all Impositions thereafter. Any
certificate, invoice, advice or bill of the applicable imposing authority of
nonpayment of an Imposition shall be prima
facie evidence that such Imposition is due and unpaid at the time or
date stated therein.


Section
5.03 – Landlord’s Demand. The provisions of this Article 5
shall survive the expiration or other termination of this Lease. Landlord’s
failure during the term of this Lease to prepare and deliver any Imposition
bill, invoice or demand or Landlord’s failure to make a demand for Additional
Rent due hereunder shall not in any way waive or cause Landlord to forfeit or
surrender its rights to collect any of the foregoing items of Additional Rent which
may have become due during the Term of this Lease.


Section
5.04 – Proration of Impositions. Any Imposition, other than
an Imposition which has been converted into installment payments as referred to
in Section 5.02 hereof, relating to a fiscal period of the taxing authority, a
part of which period is included within the Term of this Lease and a part of
which is included in a period of time before the Term and/or after the
expiration or other termination of the Term of this Lease, shall (whether or not
such Imposition shall be assessed, levied, confirmed, imposed upon or in
respect of or become a lien upon the Demised Premises, or shall become payable
during the Term of this Lease) be apportioned between Landlord and Tenant as of
the Commencement Date and/or as of the expiration or other termination of the
Term of this Lease, so that Tenant shall pay that portion of such Imposition
which that part of such fiscal period included in the period of time on and
after the Commencement Date and/or prior to the expiration or other termination
of the Term of this Lease bears to such fiscal period, and Landlord shall pay
the remainder thereof, provided, however, that Tenant shall not be entitled to
receive any apportionment if there be an Event of Default hereunder.


Section
5.05 – Right to Contest. Only Landlord shall be eligible to
institute proceedings to reduce the assessed valuation of the Demised Premises.
In the event the Landlord shall obtain a tax refund or reduction as a result of
any such tax certiorari proceedings
or as a result of any other litigation or agreement involving the relevant
taxing authorities (collectively, a “Proceeding”), then, provided Tenant
is not then in default under the terms of this Lease and after all applicable
grace periods have expired and after the final conclusion of all appeals or
other remedies, Tenant shall be entitled to the net refund applicable to any
period as to which Tenant has paid Impositions pursuant to this Article 5.
Tenant’s net refund may be applied by Landlord to any amounts payable to
Landlord under this Lease. As used herein the term “net refund” means
the refund plus interest, if any, thereon, paid by the governmental authority
less appraisal, engineering, expert testimony, consultant, architect, printing,
administrative and filing fees and all other Landlord costs and expenses of a
Proceeding, except for attorneys fees. If Landlord prevails in a Proceeding,
Tenant shall pay to Landlord all



 12
 






 



 


appraisal,
engineering, expert testimony, printing and filing fees and all other
reasonable costs and expenses incurred by Landlord in connection with any such
Proceeding (up to the amount of the tax savings resulting from the Proceeding.


ARTICLE
6

[INTENTIONALLY OMITTED]


ARTICLE 7

REPAIRS AND MAINTENANCE OF THE DEMISED PREMISES


Section
7.01 – Maintenance of Demised Premises. Tenant shall, at its
sole cost and expense, take good care of the Demised Premises, including
without limitation, the roof, structure, exterior and interior walls and
finishes, foundations, mechanical, plumbing, electrical and sanitary systems,
water and sewage facilities and drains, drywells, cesspools, pipes, fencing,
landscaping, paving, curbing, all alleyways, passageways, vaults, ramps,
sidewalks adjoining the Demised Premises (“Appurtenances”) and shall
keep same in good order and condition and make all repairs thereto, ordinary
and extraordinary, foreseen and unforeseen as and when needed to keep them in
good order and condition. Except as otherwise provided herein, Landlord shall
have no responsibility and shall not be required to furnish any services, make
any repairs or to perform any other maintenance work in or about the Demised
Premises, and Tenant hereby assumes the full and sole responsibility, at its
sole cost and expense for same, and for the condition of the Demised Premises,
including, but not limited to keeping the Demised Premises and Appurtenances,
at its own sole cost and expense, in a clean and orderly condition, free of
snow, ice, rubbish and obstructions. Tenant covenants to keep Landlord’s
interest in the Demised Premises free of liens and other foreclosable
impositions arising through Tenant and shall have no obligation with respect to
liens arising through Landlord. Tenant’s obligations to maintain the Demised
Premises shall not extend to conditions caused by the negligence or intentional
misconduct of Landlord or Landlord’s employees, agents and contractors, or to
repairs necessitated by Pre-Existing Environmental Conditions as set forth in
Article 10.


Section
7.02 – Landlord Cure Rights. In the event (a) Tenant fails to
maintain the Demised Premises in accordance with Section 7.01 above to Landlord’s
reasonable satisfaction or (b) repairs to the Demised Premises or Appurtenances
are made necessary by reason of the acts, omissions or negligence of Tenant,
its agents, directors, shareholders, officers, employees, subtenants,
assignees, customers, licensees or invitees, then in any of such event(s),
Landlord may give Tenant thirty (30) days written notice within which to make
such repairs, or if such repairs cannot be made within such thirty (30) day
period, to commence such repairs within thirty (30) days and diligently pursue
them to completion thereafter. In the event Tenant fails timely to make such
repairs as aforesaid, Landlord shall be entitled, but shall not be obligated,
to make such repairs at Tenant’s expense without incurring any liability to
Tenant by reason



 13
 






 



 


thereof upon
reasonable notice to Tenant. Notwithstanding anything herein to the contrary,
if, in Landlord’s sole, reasonable discretion, emergency repairs are necessary,
Landlord may, if Landlord so elects, to make such repairs at any time without
notice to Tenant, at Tenant’s expense for all actual and reasonable costs, and
shall provide written notice with supporting documentation to Tenant that such
repairs are being or have been made on the first business day after commencing
such repairs. All reasonable and actual sums expended by Landlord under this
Section 7.02 shall be deemed Additional Rent and payable on demand by Landlord.
Tenant shall pay all amounts required under this Section 7.02. In the event
Tenant has any reasonable objections or inquiries as to the supporting
documentation, Tenant may withhold payment as to the disputed amount, and it is
determined that Tenant’s objection was unfounded, Tenant will be liable for all
interest and penalties arising from such non-payment by Tenant, however, Tenant
will not be responsible for late payment amounts under Section 3.04. In the
event Landlord elects to pay such disputed amount, and it is determined that
Tenant’s objection was unfounded, Tenant will promptly reimburse Landlord for
the amount paid by Landlord, plus late charges under Section 3.04 as to such
amounts commencing from the date of Landlord’s payment. Notwithstanding the
foregoing, any potential civil or criminal liability to Landlord shall not, in
and of itself, require Tenant to pay any disputed amounts under this Section
3.05.


Section
7.03 - Shoring. Tenant shall do, or cause others to do, all
necessary shoring of foundations, supporting walls and the walls of the
Improvements and shall comply with all Requirements with respect thereto and
shall do every other act or thing for the safety and preservation of the
Demised Premises (including the Improvements and any and all other improvements
erected thereon) which may be necessary by reason of any excavation, subsurface
construction, remodeling or other building operation upon any adjoining
property or street, avenue, alley or passageway.


ARTICLE
8

TENANT’S ALTERATIONS


Section
8.01 - Alterations. During the Term, Tenant shall have the
right, without Landlord’s prior written consent but on thirty (30) days’ notice
to Landlord, to make any alterations or modifications to the Demised Premises
(collectively, “Alterations”), provided, however, that within fifteen
(15) days after Landlord’s receipt of any such notice, Landlord shall notify
Tenant of those Alterations that shall be removed by Tenant at the expiration
or other termination of the Lease in accordance with Article 22 of this Lease.
Tenant shall obtain all necessary certificates and authorizations required by
any Governmental Authority in connection with the Alterations.


Section
8.02 – Plans and Specifications. Prior to performing any
Alterations which affect the roof, structure, exterior walls, foundations,
mechanical, plumbing, electrical and sanitary systems, water and sewer
facilities and drains, drywells and cesspools (collectively, “Structural
Alterations”), Tenant covenants and agrees that



 14
 






 



 


Tenant will
provide Landlord with detailed plans and specifications (“Plans and
Specifications”) satisfying the requirements of Section 8.10(a), in
accordance with the succeeding Sections of this Article, for the construction
of Tenant’s Structural Alterations and Tenant will promptly thereafter proceed
diligently and expeditiously to complete the Structural Alterations using
licensed, and reputable contractors, architects and engineers, prior to the
expiration of all time frames set forth in any building permit issued in
connection with the Structural Alterations. Tenant shall provide Landlord with
prior notice of the identities of the contractors, architects and engineers.


Section
8.03 – Compliance with Law; Labor Harmony. All Alterations
shall be performed and completed in compliance with all applicable Requirements
and comply with all zoning laws and ordinances. All Alterations, including
without limitation, Structural Alterations, shall be done in a manner, which
does not create any labor disharmony or dispute at the Demised Premises.


Section
8.04 – Commencement of Construction of Structural Alterations.
Tenant shall not commence any Structural Alterations unless and until Tenant
shall have delivered to Landlord:


(a)   Copies of
all necessary permits, certificates and authorizations required by any
Governmental Authority in connection with the Structural Alterations, together
with evidence that such permits, certificates and authorizations have been paid
for in full. Landlord shall not unreasonably refuse to join in the application
for such permits, certificates or authorizations and shall reasonably cooperate
with Tenant, without charge except to the extent Landlord’s participation
required is more than de minimus
in which case Tenant agrees to pay to Landlord, upon demand as Additional Rent
hereunder, a reasonable fee and Landlord’s costs paid or incurred in connection
therewith. Landlord shall not be subject to any liability for the payment of
any costs or expenses in connection with any such applications, and Tenant
hereby indemnifies and agrees to defend and hold Landlord harmless from and
against any and all such costs and expenses;


(b)   Plans and
Specifications for the proposed Structural Alterations satisfying the
requirements of Section 8.10(a) hereof. Tenant may not materially change the
Plans and Specifications without prior written notice to Landlord;


(c)   A contract
for the construction of the Structural Alterations in accordance with the Plans
and Specifications and satisfying the requirements of Section 8.10(b); and


(d)   Tenant
shall use its best efforts to obtain an agreement from Tenant’s architect and
general contractor to continue to perform for the benefit of Landlord, if
Landlord so requests, their respective obligations under their contracts with Tenant
in the event of termination of this Lease or upon Landlord’s re-entry upon the
Demised Premises following a default by Tenant prior to completion of the
Structural Alterations, provided such architect and/or general contractor are
paid for their respective services



 15
 






 



 


in accordance with
such contracts.


Section
8.05 – Insurance. At all times during and until the
completion of the Structural Alterations, Tenant shall, at Tenant’s sole cost
and expense, maintain, or cause to be maintained, in addition to the insurance
required under Article 11 hereof, one hundred percent (100%) completed value
builders’ risk insurance; workmen’s compensation insurance covering all persons
employed in connection with the Structural Alterations and with respect to whom
death or bodily injury claims could be asserted against Landlord or Tenant; and
general comprehensive commercial liability insurance for the mutual benefit of
Tenant and Landlord expressly covering the additional hazards due to the
construction, with combined single coverage limits of not less than Five
Million and 00/100 Dollars ($5,000,000.00) in the event of death or bodily
injury or property damage. The policy of general comprehensive commercial
liability insurance, in so far as it relates to property damage, shall not
contain any restrictive clauses relating to excavating, sheet piling, moving,
shoring, underpinning, removal and rebuilding of structural supports or
subsurface work or any similar restrictive clauses. The general comprehensive
commercial liability insurance provided for in this Section may be affected by
an appropriate endorsement, if obtainable, upon the insurance required to be
maintained by Tenant pursuant to Section 11.01(d) hereof. All insurance of the
character in this Subsection described, shall be effected under valid and
enforceable policies issued by insurers of recognized responsibility and which
have been approved in writing by Landlord as to qualification of insurers and
the amounts of insurance to be written by each, which approval Landlord agrees
shall not be unreasonably withheld. The general comprehensive commercial
liability insurance policy and the builder’s risk insurance policies above
mentioned shall name Landlord and Tenant as the insured as their respective
interests may appear and may also include as the insureds, if required by
Landlord, any Mortgagee. The loss, if any, under any of the builder’s risk
policies above mentioned shall be adjusted by and shall be payable to Tenant
and such proceeds paid to Tenant shall be held in trust and disbursed only for
the purposes of completing the construction. All such policies or certificates
therefor issued by the respective insurers shall be delivered to Landlord.
Within ten (10) days after the premium of each such policy shall become due and
payable and the amount thereof shall be determined, Tenant agrees to pay said
premium or cause the same to be paid, and Landlord shall be furnished with
evidence satisfactory to it of such payment. Tenant may satisfy any of the
obligations under this Section through self-insurance, the extent and
sufficiency of which is subject to the sole and absolute discretion of Landlord
and, in any event, Landlord’s benefits and protection under this Section 8.05
shall in no manner be reduced or impaired by reason of Tenant’s self-insurance.


Section 8.06 –
[Intentionally Omitted].


Section
8.07 – Final Completion of Structural Alterations. Tenant
covenants and agrees that:


(a)   the
construction of the Structural Alterations shall be performed in a



 16
 






 



 


good and workmanlike
manner in accordance with (i) the Plans and Specifications as approved by
Landlord; (ii) all applicable permits, certificates and authorizations and
building and zoning laws and ordinances and with all other Requirements; and
(iii) the terms, covenants and conditions of this Lease; and


(b)   throughout
the course of such construction and at and after Final Completion of the
Structural Alterations (as hereinafter defined), and in connection with any
alterations, Landlord’s fee estate in the Demised Premises will be free and
clear of all liens and encumbrances arising out of or connection with such
construction. Upon completion of the Structural Alterations, Tenant shall
furnish to Landlord (i) a certificate from Tenant’s architect certifying that
the Structural Alterations have been completed in accordance with the Plans and
Specifications; (ii) copies of either the temporary certificates of occupancy
or the permanent certificate of occupancy for the Structural Alterations; (iii)
a complete set of “as built” plans within six (6) months after Final Completion
of the Structural Alterations; (iv) a survey of the Land showing the Structural
Alterations as built thereon certified to Landlord by a surveyor reasonably
acceptable to Landlord, provided that the Structural Alterations include
additional improvements outside the present footprint of the existing
improvements; and (v) evidence reasonably satisfactory to Landlord of proof of
payment in full for the Structural Alterations, including, without limitation,
lien waivers in recordable form received from all architects, engineers,
contractors, subcontractors, materialmen and laborers providing supplies and/or
performing work in connection with the Structural Alterations. “Final
Completion of the Structural Alterations” shall be deemed to have occurred
on the date when all of the above have been fully satisfied and delivered to
Landlord in accordance with the terms hereof.


Section
8.08 – [Intentionally Omitted].


Section
8.09 – Landlord’s Approval of Plans. Landlord’s
retention of the Plans and Specifications or any other action taken with
respect thereto by Landlord or any Mortgagee shall not constitute an opinion or
representation by Landlord or the Mortgagee as to the sufficiency of said Plans
and Specifications or impose any responsibility for the sufficiency thereof
upon Landlord or the Mortgagee.


Section
8.10 – Plans and Specifications; Construction Contract.


(a)   Plans and
Specifications shall be prepared by a licensed architect and which Plans and
Specifications shall meet with the approval thereof by any Governmental
Authority then exercising jurisdiction with regard to such work and such Plans
and Specifications shall be and become the sole and absolute property of
Landlord in the event that, for any reason, this Lease shall be terminated.


(b)   The
Structural Alterations contract shall be made with a licensed contractor,
providing for the completion of all work, labor and materials necessary for
completion of the Structural Alterations in accordance with the Plans and
Specifications.



 17














 


 


ARTICLE 9

UTILITIES


Section
9.01 – Utilities. Tenant shall provide, at its own cost and
expense, fuel, heat, water, sewer, electricity, telephone and all other
utilities or services required in connection with its use of the Demised
Premises. Tenant shall be responsible for all deposits required by the
respective utilities for service. Tenant shall comply with all requirements of
the utilities supplying said service.


ARTICLE 10

PRE-EXISTING ENVIRONMENTAL CONDITIONS;

ENVIRONMENTAL COMPLIANCE DURING PERIOD OF TENANCY;

REQUIREMENTS OF LAW


Section
10.01 – Pre-existing Environmental Conditions.


(a)   With
respect to any and all Pre-existing Environmental Conditions (as hereinafter
defined), Landlord, at its sole expense, shall conduct and complete all
investigations, studies, samplings, and testing, and all remedial, removal, and
other response actions necessary to clean up, remove and/or abate all Hazardous
Materials (as hereinafter defined), on, from, or affecting the Demised Premises
(i) in accordance with all then applicable federal, state and local laws,
ordinances, rules, regulations, and policies, and (ii) in accordance with the
orders and directives of all federal, state, and local governmental authorities.
Alternatively, Landlord may elect to request Tenant, at Landlord’s sole
expense, to directly oversee the response contractor’s work. “Pre-existing
Environmental Conditions” means the presence of any Hazardous Materials
existing as of the Commencement Date in the air, soil, surface water or
groundwater, and in, on and under any structure on the Demised Premises.


(b)   The term “Hazardous
Materials” includes, but shall not be limited to, (i) asbestos in any form,
except to the extent such asbestos in its present condition may remain in place
pursuant to and in compliance with all Environmental Laws; (ii) urea
formaldehyde foam insulation; (iii) transformers or other equipment which
contain dialectic fluid containing levels of polychlorinated byphenyls (PCBs)
in excess of 50 parts per million; (iv) lead paint; (v) any substance deemed
hazardous or toxic, or required to be investigated, disclosed, reported,
treated, removed, disposed of or cleaned up by an applicable Environmental Law;
(vi) any substance or mixture which is or shall be listed, defined, or otherwise
determined by any agency or court to be hazardous, toxic, dangerous or
otherwise regulated, affected, controlled or giving rise to liability under any
Environmental Law; (vii) polychlorinated biphenyls (PCBs); (viii) radon gas;
(ix) laboratory wastes; (x) experimental products, including genetically
engineered microbes and other recombinant DNA products; (xi) petroleum, crude
oil, natural gas, natural gas liquid, liquefied natural gas, other petroleum
products, or synthetic gas useable as fuel; and (xii) “source,” “special
nuclear” and “by-products” material, as 



 18
 






 



 


defined in the Atomic Energy Act of 1954, 42 U.S.C. §
3011 et seq.


(c)   The term “Environmental
Law” shall mean any federal, state or local environmental or health or
safety law, regulation or rules, as the same may be amended from time to time,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq.; the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976,
as amended by the Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. §
6901 et seq.; the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act
of 1976, 15 U.S.C. § 2601 et seq.; the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Clean Air Act of
1966, as amended, 42 U.S.C. § 741 et seq.; the National Environmental Policy
Act of 1975, 42 U.S.C. § 4321; the Rivers and Harbors Act of 1899, 33 U.S.C. §
401 et seq.; the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531
et seq.; the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.
§ 651 et seq.; the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. §
300(f) et seq.; the Hazardous Materials Transportation Act, 42 U.S.C. §§ 1471,
1472, 1655m 1801 et seq.; the Federal Insecticide, Fungicide & Rodenticide
Act, 7 U.S.C. § 136 et seq.; the Atomic Energy Act, 42 U.S.C. § 3011 et seq.,
and any other rule, guidance or common law which relates to (i) the existence
and/or remedy of contamination on property, (ii) the protection of persons,
property, animals, or the environment from any exposure to or contamination by
Hazardous Materials radiation or other emanations; (iii) the use generation,
storage, removal, recovery, treatment, transport, disposal, and control of
Hazardous Materials, including hazardous wastes and building materials; (iv)
the prevention of, control of, or response to the exposure of tenants,
employees or other persons to any Hazardous Material or radiation; or (v) the
prevention of, control of, or response to the emission or discharge of Hazardous
Materials in the workplace or environment.


(d)   Tenant
shall not cause, consent to, suffer or permit the installation or maintenance
of any underground storage tanks upon, under or within the Demised Premises.


(e)   Tenant
agrees to take occupancy of the Demised Premises on the Commencement Date and
to cooperate with Landlord and its response contractors in addressing the
Pre-existing Environmental Conditions. Landlord shall use commercially
reasonable efforts to minimize interruption with Tenant’s business in
performing its obligations hereunder.


(f)    Landlord
covenants and agrees to defend, indemnify and hold harmless Tenant, from and
against, and pay or reimburse Tenant for, any and all claims, liabilities,
obligations, losses, fines, costs, royalties, proceedings, deficiencies or
damages (whether absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims, but excluding consequential, special or
indirect 



 19
 






 



 


damages and lost profits), including out-of-pocket
expenses and reasonable attorneys,’ consultants’ and accountants’ fees incurred
in the investigation or defense of any of the same or in asserting any of their
respective rights hereunder resulting from or arising out of Pre-existing
Environmental Conditions or the actions, operations, activities, or
non-compliance of Landlord, Landlord’s contractor’s or agents, or Landlord’s
invitees, with Environmental Laws at the Demised Premises. During the Term of
this Lease, Landlord agrees to require Landlord’s contractors or agents which
perform work on the Demised Premises in connection with environmental
remediation to maintain insurance in a form and amount as are commonly
maintained for such work in cases of properties that are similarly situated,
and that Tenant, Metropolitan Transit Authority (“MTA”) and MTA Bus Company (“MTA
Bus”) will be named as additional insureds, as their interests may appear, on
insurance policies maintained by Landlord’s contractors or agents which perform
work on the Demised Premises in connection with environmental remediation. The
foregoing indemnity shall survive the expiration or other termination of this
Lease.


Section
10.02 –Environmental Compliance During Period of Tenancy; Requirements of Law.


(a)   In the
operation and occupancy of its business on the Demised Premises, Tenant shall
promptly execute and comply with all statutes, ordinances, rules, orders,
regulations and requirements (including those which require structural
alterations) of and permits issued by the federal, state, county and local
government and of any and all their departments and bureaus applicable to the
Demised Premises, including, without limitation, those for the correction,
prevention or abatement of nuisances or other grievances in, upon, or connected
with the Demised Premises during the Term; and shall also promptly comply with
and execute all rules, orders and regulations of the New York Board of Fire
Underwriters for the prevention of fires at the Tenant’s own cost and expense. The
Tenant’s obligations pursuant to this provision pertain solely to conditions
that, in whole or in part, arise or develop during the term of its tenancy. Nothing
in this paragraph in any way alters the Landlord’s obligations and
responsibilities under Section 10.01 for all Pre-existing Environmental
Conditions.


(b)   Tenant
shall operate and occupy the Demised Premises in compliance with all
Environmental Laws. Without limiting the foregoing, Tenant shall not cause or
permit the Demised Premises to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce or process Hazardous
Materials, except in compliance with all applicable federal, state and local
laws or regulations nor shall Tenant cause or permit, as a result of any
intentional or unintentional act or omission on the part of Tenant or Tenant’s
directors, officers, members, managers, employees, agents and contractors, a
release of Hazardous Materials onto the Demised Premises or onto any other
property. Tenant shall obtain and comply with any and all approvals,
registrations or permits required under applicable Environmental Laws,
including, without limitation, air quality and fuel storage 



 20
 






 



 


permits.


(c)   In the
event a Hazardous Material in the air, soil, surface water or groundwater, or
in, on and/or under any structure on the Demised Premises is identified at the
Demised Premises that is not a Pre-existing Environmental Condition and which
occurred, was created or aggravated during the Lease Term (a “Tenant
Environmental Condition”), Tenant shall (i) conduct and complete all
investigations, studies, samplings, and testing, and all remedial, removal, and
other actions necessary to clean up, remove and/or abate all Tenant
Environmental Conditions in accordance with all applicable federal, state and local
laws, ordinances, rules, regulations, and policies, and (ii) in accordance with
the orders and directives of all federal, state, and local governmental
authorities.


(d)   In the
event a Tenant Environmental Condition has been identified, at the expiration
of this Lease or in the event this Lease is terminated, or Tenant is
dispossessed, Tenant shall be responsible with respect to any and all such
Tenant Environmental Conditions to (i) deliver the Demised Premises to Landlord
in a condition that conforms with all applicable federal, state and local laws,
ordinances, rules or regulations affecting the Demised Premises including,
without limitation, Environmental Laws, and (ii) deliver to Landlord a phase
one and, if reasonably necessary, a phase two environmental report and tank
testing reports showing no leaks, prepared by an environmental consultant
reasonably satisfactory to Landlord, or if commercially reasonable, a no-action
letter or closure letter, certifying to Landlord that the Tenant Environmental Condition
or Conditions has been appropriately remediated or abated. Nothing in this
paragraph, however, alters or relieves Landlord from its obligations under
Section 10.01 to be responsible for any and all Pre-existing Environmental
Conditions.


(e)   In the
event a Tenant Environmental Condition has been identified, Tenant covenants
and agrees to defend, indemnify and hold harmless Landlord, from and against,
and pay or reimburse Landlord for, any and all claims, liabilities,
obligations, losses, fines, costs, royalties, proceedings, deficiencies or
damages (whether absolute, accrued, conditional or otherwise and whether or not
resulting from third party claims, but excluding consequential, special and
indirect damages and lost profits), including out-of-pocket expenses and
reasonable attorneys,’ consultants’ and accountants’ fees incurred in the
investigation or defense of any of the same or in asserting any of their
respective rights hereunder resulting from or arising out of Tenant
Environmental Conditions at the Demised Premises, including the presence of
Hazardous Materials, or the discharge or release of Hazardous Materials, and
liabilities under Environmental Laws that arise from actions, conditions, or
the disposal or release of Hazardous Materials or the actions, operations,
activities, or non-compliance of Tenant, Tenant’s agents, or Tenant’s invitees,
with Environmental Laws at the Demised Premises. The foregoing indemnity shall
survive the expiration or other termination of this Lease.


(f)    If Tenant
receives any notice of (i) the happening of any event 



 21
 






 



 


involving the presence, spill, release, leak, seepage,
discharge or cleanup of any Hazardous Material on, to or from the Demised
Premises, or (ii) any complaint, order, citation or notice with regard to air
emissions, water discharge or any other environmental, health or safety matter
affecting Tenant or the Demised Premises, then Tenant shall promptly notify
Landlord in writing of said notice and shall contemporaneously send to the
Landlord a copy of any notice sent to any governmental agency.


(g)   During the
Term, Landlord or its designee, provided Landlord has a reasonable basis to
believe that the Demised Premises has been affected by Hazardous Materials,
may, at Landlord’s sole cost and expense, and upon prior notice to Tenant,
conduct such investigations and tests as Landlord reasonably deems necessary to
determine whether the Demised Premises and the operation thereof are in
compliance with all Environmental Laws, provided that any such investigations
and tests do not materially interfere with Tenant’s Permitted Use of the
Demised Premises or the operation of its business thereon.


Section
10.03 – [Intentionally Omitted].


Section
10.04 – Environmental Insurance.


(a)   Except as
specifically provided in this Lease, neither the maintenance of any insurance
policy required under this Lease nor the minimum insurance limits specified
herein shall be deemed to limit or restrict in any way the Tenant’s liability
for environmental matters under this Article 10.


(b)   With
respect to third-party claims arising from or related to, directly or
indirectly, in whole or in part: (i) the threatened or actual release of any
Hazardous Materials in, on, under or from the Demised Premises; and (ii) any
environmental liability or remedial action associated with the Demised Premises
for any activities conducted on the Demised Premises; both parties shall be
covered and such losses, costs, expenses, claims, demands, obligations and
liabilities will be satisfied to the extent environmental insurance provides
coverage. This provision shall survive the Lease Term.


ARTICLE 11

INSURANCE


Section
11.01 – Insurance. Tenant may satisfy, in whole or in part,
any or all of the obligations under this Article 11 through self-insurance,
provided (i) Landlord’s benefits and interests under this Article 11 are not
decreased or impaired thereby, (ii) Tenant’s indemnity obligations under this
Lease are not decreased or expanded thereby, and (iii) the self-insurance
obligation shall not extend responsibility to Tenant for the negligent or
willful misconduct of Landlord, or Landlord’s officers, employees, agents, or
contractors, or for Landlord’s obligations under Article 10 for any
Pre-Existing Environmental Condition, or as to the installation repair,
relocation or removal of any 



 22
 






 



 


antennae pursuant to Section 33.01. The Tenant’s
obligations as self-insurer shall be governed by the requirements set forth
below. Tenant shall, at its sole cost and expense, during the Term of this
Lease:


(a)   Keep all
Improvements, building fixtures and equipment (other than Tenant’s trade
fixtures and business equipment) and other property on, in or appurtenant to
the Demised Premises, or used in connection with the operation and maintenance
of the Demised Premises, and all replacements, alterations and additions of or
to the foregoing, insured for the benefit of Tenant (except as otherwise
specifically noted), Landlord and for the benefit of the Mortgagee (under a
standard New York Mortgage Endorsement) and for the benefit of any other party
designated by Landlord who has an insurable interest in the Demised Premises,
as their respective interests may appear, against all risk of loss or damage,
including loss or damage by fire and other perils included in a so-called “extended
coverage endorsement” or “multi-peril endorsement”, vandalism and malicious
mischief, collapse, lightning, windstorm, hail, explosion, riot, riot attending
a strike, civil commotion, aircraft, vehicles, smoke, and water damage and
against such other risks as are normally or customarily insured against by
owners or operators of similar properties as Landlord may from time-to-time
reasonably request, and containing Replacement Cost endorsements. Such coverage
shall be in amounts at all times sufficient to prevent Landlord, Tenant or any
additional insured from becoming a co-insurer under the terms of the applicable
policies, but in any event in amounts not less than the full replacement value
of the Improvements. Tenant shall cause full replacement value to be determined
from time-to-time at the request of Landlord, but not more frequently than once
every calendar year, by an insurance appraisal or other valuation method
reasonably acceptable to Landlord. Such policies shall name Landlord, and/or
the Mortgagee, and/or any other party having an insurable interest as Landlord
may designate, as loss payee(s).


(b)   If a
sprinkler system is located in the Demised Premises or any Improvement located
thereon, provide sprinkler leakage insurance in amounts reasonably satisfactory
to Landlord, and provide and keep in force a sprinkler supervisory, maintenance
and alarm service contract.


(c)   Provide
boiler and machinery broad form insurance covering fire, damage and explosion
in respect of steam and pressure boilers and similar apparatus, if any, located
in or upon the Demised Premises in the amount of Five Million ($5,000,000.00)
Dollars.


(d)   Provide
comprehensive general liability and broad form property damage insurance,
written on an occurrence basis, including elevator, escalator, machinery and
contractual liability insurance, protecting and indemnifying Landlord, Tenant
and others having an insurable interest against any and all claims (including
all costs and expenses of defending against same) for personal injury, disease
or death and for damage or injury to or destruction of property (including loss
of use) occurring on, in or about the Demised Premises, sidewalks, gutters,
curbs, vaults or vault spaces appurtenant to the Demised Premises, which
insurance shall have a combined single 



 23
 






 



 


limit of not less than Fifty Million and 00/100
($50,000,000.00) Dollars. The insurance carried pursuant to this Section
11.01(d) shall include coverage for contractual liability, independent
contractors’ liability and completed operations liability with a personal
injury endorsement covering claims arising out of arrest, false imprisonment,
libel, slander, wrongful eviction and invasion of privacy.


(e)   Provide
automobile liability insurance covering all vehicles operated or owned by
Tenant in connection with the Demised Premises.


(f)    Provide
for the benefit of Landlord and any Mortgagee only, business interruption and
rent loss insurance in an amount equal to at least the sum of twelve (12)
months’ Fixed Rent and Additional Rent (including Impositions), plus twelve
(12) months’ insurance premiums and the estimated amount of annual maintenance
costs for the Demised Premises.


(g)   Provide
workers’ compensation insurance to the extent required by applicable law.


(h)   At any time
prior to undertaking and during the duration of any Alteration or any
construction or Alteration of any Improvements on the Demised Premises, provide
Builder’s Risk All Risk Non-Reporting property insurance for the full
replacement value of such Alterations, work and construction of Improvements,
with Replacement Cost and Agreed Amount endorsements.


(i)    Provide
and keep in force such other insurance covering such risks and in such amounts
as may from time-to-time be reasonably required by Landlord or any Mortgagee
against any other insurable hazards as are commonly insured against in cases of
properties similarly situated.


(j)    Provide
garagekeeper’s liability coverage in amounts reasonably satisfactory to
Landlord, if Tenant provides, directly or indirectly, valet parking or in any
other way exercises care, custody or control over vehicles in the parking areas
of the Demised Premises.


(k)   Maintain
environmental insurance in form and amounts reasonably satisfactory to Landlord
throughout the Lease Term. Tenant shall name Landlord as an additional insured
under Tenant’s environmental insurance policy maintained for the Demised
Premises.


Tenant
agrees that the limits of insurance required by this Article may be increased
at the request of Landlord or any Mortgagee consistent with limits of coverage
for properties similarly situated provided, however, that in no event shall the
limits of insurance be reduced below the amounts of coverage required at the
commencement of the Term of this Lease.


Section
11.02 – Evidence of Insurance. Contemporaneous with the
execution of this Lease, Tenant shall deliver to Landlord and to any Mortgagee
and to any other



 24
 






 



 


party designated by Landlord, duly executed
certificates of insurance or endorsements and duplicate original insurance policies
reflecting Tenant’s maintenance of the insurance required under Section 11.01
of this Lease, together with proof of payment of the premiums and shall
thereafter furnish to Landlord, at least ten (10) days prior to the expiration
of any policies and any renewal thereof, evidence of renewal or continued
coverage together with evidence of the payment of premiums thereon. The
insurance required under Section 11.01 shall not have any deductible or
retention in excess of Fifty Thousand and 00/100 ($50,000.00) Dollars and shall
provide that the same may not be otherwise materially changed or cancelled on
less than thirty (30) days’ prior written notice to Landlord and any Mortgagee.
Landlord shall have the right, to be exercised upon prior reasonable notice to
Tenant, to review and copy Tenant’s insurance policies to confirm compliance
with Section 11.01.


Section
11.03 – Additional Requirements. Landlord, Landlord’s
managing agent and any Mortgagee shall be named as additional insureds as their
interests may appear in the policies of liability insurance described in
Section 11.01, but shall nevertheless be protected against all liability
occasioned by an occurrence insured against to the same extent and limits as
Tenant is protected and insured under said policies, which policies shall
provide primary coverage for Landlord, Landlord’s managing agent and any
Mortgagee. All policies of insurance shall be: (i) written as “occurrence”
policies, (ii) written as primary coverage and not contributing with or in
excess of any coverage which Landlord or any management agent, or Mortgagee may
carry, (iii) issued in form acceptable to Landlord by insurance companies
reasonably acceptable to Landlord carrying a General Policyholder’s Service
Rating of not less than “A/X” as rated in the most current Best’s Insurance
Reports (or any successor rating guide acceptable to Landlord), and licensed to
do business in New York State and authorized to issue such policy or policies;
and (iv) contain an endorsement that Landlord, Landlord’s managing agent and
all Mortgagees, although named as additional insureds as their interests may
appear, nevertheless shall be entitled to recover under said policies for any
loss or damage occasioned to their respective servants, agents, employees and
contractors by reason of the negligence of Tenant, its servants, agents,
employees and contractors. In addition, the policies referred to in Sections
11.01(a), 11.01(b), 11.01(c), 11.01(f) and 11.01(h) shall name Landlord and any
Mortgagees designated by Landlord as Loss Payee(s) for all losses, claims and
insurance proceeds pertaining to, arising out of, or in connection with the
Demised Premises.


Section
11.04 – Payment of Premiums.


(a)   Tenant
shall pay all premiums and charges for all of said policies of insurance and,
if Tenant shall fail to make any payment when due or carry any such policy,
Landlord may but shall not be obligated to, following an uncured Insurance Notice (hereinafter
defined), make such payment or procure such insurance coverage (which may be
maintained under a blanket policy of insurance maintained by Landlord or any
affiliate of Landlord), and the amount paid by Landlord or its affiliate, with
interest thereon at the Default Rate, shall be repaid to Landlord by Tenant on
demand, and all such amounts so repayable, together with such interest, shall
be 



 25
 






 



 


deemed to constitute Additional Rent hereunder. Payment
by Landlord of any such premium, or the carrying by Landlord or its affiliates
of any such policy, shall not be deemed to waive or release the default of
Tenant with respect thereto.


(b)   As used
herein, the term “Insurance Notice”
shall mean a notice with respect to the Tenant’s failure to pay any insurance
charges or premiums following the giving of which Tenant shall have ten (10)
days to cure such default, provided, however, if the insurance policy or
coverage shall lapse by reason of such non-payment, within said ten (10) day
period, Tenant’s time to cure shall expire ten (10) business days prior to the
lapse of such insurance policy or coverage.


Section
11.05 – Waiver of Subrogation. Tenant shall cause each insurance
policy carried by Tenant and insuring the Demised Premises and Tenant’s
leasehold improvements, equipment, furnishings, fixtures and contents against
loss, damage, or destruction by fire or other casualty, including business
interruption, and other special coverages, to be written in a manner so as to
provide that the insurer waives all rights of recovery against Landlord in
connection with any loss or damage covered by any such policy, including all
rights of subrogation. Landlord shall not be liable to Tenant and Tenant hereby
releases Landlord from any such liability for the amount of such loss or damage.
If Landlord procures any casualty insurance concurrent with or supplemental to
any casualty insurance procured by Tenant pursuant to this Lease, such policy
or policies shall provide that the insurer waives all rights of recovery
against Tenant in connection with any loss or damage covered by such policy,
including all rights of subrogation.


Section
11.06 – Binding on Subtenants.
In the event of any sublease or occupancy by a person other than Tenant of all
or a portion of the Demised Premises, irrespective of whether permitted by this
Lease or made in violation thereof, all of the covenants and obligations on the
part of Tenant set forth in this Article 11 shall bind and be fully applicable
to the subtenant or occupant (as if such subtenant or occupant were Tenant
hereunder) for the benefit of Tenant and Landlord, but nothing contained herein
shall be deemed a consent to such subletting if in contradiction of the terms
of this Lease.


Section
11.07 – Tenant’s Supplemental Insurance.
The limits of insurance specified in Section 11.01 hereof are the minimum
limits of insurance required of Tenant pursuant to this Lease. Nothing
contained herein shall prevent Tenant from maintaining separate property
insurance in respect of Tenant’s personalty, inventory, trade fixtures and
business interruption expenses. Except with respect to the insurance required
by Sections 11.01(d) and 11.01(j) hereof, Tenant shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required by Sections 11.01(a), 11.01(b), 11.01(c), 11.01(f) and 11.01(h) to be
furnished by Tenant unless Landlord is included therein as the insured, with
loss payable as in this Lease, provided Tenant shall promptly notify the
Landlord of the placing of any such separate insurance.



 26














 


 


ARTICLE 12

DAMAGE OR DESTRUCTION


Section
12.01 – Damage or Destruction to Improvements.


(a)   If any
Improvements shall be destroyed or damaged by any cause whatsoever, Tenant
shall promptly notify Landlord and shall, at Tenant’s sole cost and expense,
restore, repair, replace or rebuild the same as nearly as possible to their
condition and character immediately prior to the damage or destruction,
reasonable wear and tear excepted (“Casualty Restoration”).


(b)   Casualty Restoration shall be
commenced promptly and prosecuted to completion with reasonable diligence.
Landlord shall join with Tenant in the adjustment and settlement of any
insurance claim. The net insurance proceeds, if any, payable by reason of such
damage or destruction (other than insurance proceeds for the loss of Tenant’s
personalty and other than insurance proceeds for loss of Rents, Impositions
and/or maintenance, irrespective of whether paid to Tenant or Landlord) shall
be paid to Landlord and made available by Landlord for the payment of the cost
of the Casualty Restoration and shall be disbursed in the manner provided in
Section 12.03.


(c)   Notwithstanding
the provisions of Sections 12.01(a) and 12.01(b) to the contrary, if all or
substantially all of the Improvements are damaged or destroyed at a time when
there is fewer than two (2) years remaining in the Term, then at Tenant’s
option, to be exercised by notice given within fifteen (15) days following the
date of such substantial damage or destruction, this Lease shall be terminated
effective as of the date such notice is given, whereupon Tenant shall be
released from its obligation to repair or restore the Demised Premises (except
as otherwise specifically set forth in this Section 12.01(c)), any insurance
proceeds paid or payable to Tenant shall be paid to Landlord free of any claim
by Tenant, Landlord shall have the exclusive right to adjust and settle any
insurance claim on account of or relating to any such damage or destruction and
Tenant shall pay Landlord the amount of any deductible or retention limit under
the applicable policy or policies, and pay to Landlord, contemporaneously with
such election, the amount of Fixed Rent and Additional Rent payable through the
Expiration Date. If Tenant elects to terminate this Lease as aforesaid, Tenant
shall, at its sole cost and expense, promptly remove all remaining portions of
the Improvements, including all debris, and fill in and level the area to
proper grade. Notwithstanding, anything stated herein to the contrary if Tenant
self-insures, upon a Casualty in last two (2) years of the Term, or Renewal
Term as the case may be, if Tenant elects not to restore, this Lease shall be
deemed terminated only upon payment of all Fixed Rent and Additional Rent
through the end of the Lease, and payment to Landlord of the cost of
restoration of the Demised Premises to the condition existing immediately prior
to the Casualty.


Section 12.02 –
No Abatement of Rent. Except as otherwise set forth in
Section 12.01(c), no destruction of or damage to the Demised Premises, or to
any Improvement, furniture, furnishings, fixtures, equipment or other property,
shall permit Tenant to surrender this Lease or shall relieve Tenant from its
liability to pay the full Fixed Rent or 



 27
 






 



 


Additional Rent payable under this Lease or
from any of its other obligations under this Lease. This Section shall be
deemed to be an agreement expressly providing otherwise within the meaning of
Section 227 of the Real Property Law of the State of New York and any successor
law of like impact.


Section
12.03 – Disbursement of Insurance Proceeds.


(a)   If and for
so long as Tenant is not in default of any of its obligations for the payment
of Fixed Rent or Additional Rent, and no uncured Event of Default has occurred
which is continuing, and Tenant is conducting the Casualty Restoration in
accordance with this Lease, the Casualty Proceeds shall be paid out from
time-to-time, but not more frequently than once per month, to pay for all work,
labor and material installed and completed at the Demised Premises as the
Casualty Restoration progresses (subject to Landlord’s approval which shall not
be unreasonably withheld), upon the written request of Tenant, which request
shall be accompanied by the following:


(i)    A certificate signed by the architect or
engineer in charge of the Casualty Restoration, reasonably satisfactory to
Landlord and Mortgagee, dated not more than fifteen (15) days prior to such
request, setting forth:


(A)  that the sum
then requested either has been paid by Tenant or is justly due to contractors,
sub-contractors, materialmen, engineers, architects or other persons who have
rendered services or furnished materials for the work specified, and stating
that no part of such expenditures has been or is being made on the basis of any
previous or then pending request for the disbursement of the Casualty Proceeds;


(B)   a copy of
the requisition(s) submitted by Tenant and/or its contractor(s) setting forth a
brief description of the services and materials supplied to and completed for
the Casualty Restoration, subtotaled by trade;


(C)   that,
except for the amount described in Section 12.03(a)(i)(A), there is no
outstanding indebtedness known to the persons signing such certificate, after
due inquiry, which is then due for labor, materials, or services in connection
with the Casualty Restoration; and


(D)  that the
cost, as estimated by the persons signing such certificate, of the work
required to complete the Casualty Restoration does not exceed the amount of the
remaining Casualty Proceeds, plus any amount deposited by Tenant to defray the
expenses of Casualty Restoration;


(ii)   Lien waivers (following completion of any
portion of the work), title insurance endorsements or such other evidence,
reasonably satisfactory to Landlord, to the effect that all work, labor and
materials installed and completed at the Demised Premises have been paid for,
or shall be paid for out of the amount then 



 28
 






 



 


requested, and that there has not been filed with
respect to the Demised Premises, any vendor’s, mechanic’s, laborer’s,
materialmen’s or other lien which has not been discharged or record, except
such as will be discharged by payment of the amount then requested and a waiver
of the right to file any lien in connection with any work or material covered
by the requisition and all prior requisitions (all of the documents referred to
in this clause (ii) are individually and collectively referred to as “Lien Waivers”);


(iii)  dual obligee payment and performance bonds or
such other security for the benefit of the Landlord and the Mortgagee in form
and substance reasonably satisfactory to the Landlord and Mortgagee;


(iv)  the written undertaking of each architect,
engineer, construction manager, general contractor and major subcontractor to
continue performance on Landlord’s behalf under their respective agreements in
the event of a default by the Tenant under this Lease;


(v)   complete copies of the construction
management agreement, general construction contract, major subcontracts, all
change orders, amendments and modifications to each of the foregoing, all plan
revisions and supplements and all payment requisitions, Lien Waivers, architect’s
certifications and proof of payment for all work, labor and materials and
material notices relating to or incorporated in the Casualty Restoration prior
to the date of such requisition, provided, however, that any of the foregoing
which have been delivered with a prior requisition do not have to be
re-delivered with each subsequent requisition, unless the same have been
modified or amended; and


(vi)  such other documentation regarding the
Casualty Restoration (including concrete, soil, steel, welding and other
testing certifications, surveys, engineers certificates, building or other
permits, paid invoices, data sheets and the like) as applicable governmental or
public agencies, the Mortgagee or a construction consultant or engineer engaged
by Landlord or the Mortgagee shall reasonably require.


(b)   Tenant shall, prior to the commencement of
the Casualty Restoration, furnish to Landlord and the Mortgagee an estimate of
the total cost of the Casualty Restoration certified by the architect or
engineer in charge of the Casualty Restoration. If such cost estimate or any
subsequent estimate shall show that the cost of completing the Casualty
Restoration is in excess of the amount of the Casualty Proceeds then available
(a “Shortfall”), Tenant
shall promptly deposit with the Landlord an amount equal to such Shortfall. The
amount, if any, so deposited shall be included in the Casualty Proceeds for all
purposes of this Article.


(c)   Upon compliance by Tenant with the foregoing
provisions of this Article, Landlord shall pay to Tenant or the persons named
in the certificate referred to in Section 12.03(a)(i), from the Casualty
Proceeds, an amount equal to ninety (90%)



 29
 






 



 


percent of the cost of the Casualty Restoration which
is evidenced by the request. Upon compliance by Tenant with the foregoing
provisions of this Article, at the completion of the Casualty Restoration, the
balance of the Casualty Proceeds, to the extent of and as required to complete
the payment of the costs of Casualty Restoration, shall be paid to the persons
named in the certificates referred to in Section 12.03(a)(i) for the balance of
any sums justly due, and upon payment in full for the Cost of the Casualty
Restoration, any sums remaining shall be paid to Tenant upon Tenant’s delivery
to Landlord of final Lien Waivers and evidence reasonably satisfactory to the
Landlord that the Casualty Restoration has been paid in full.


(d)   If the amount of any Casualty Proceeds shall
exceed the entire cost of the Casualty Restoration, such excess, upon
completion of the Casualty Restoration, and upon compliance by Tenant with the
foregoing provisions of this Article, shall be paid to and retained by Tenant.


(e)   If prior to the completion of any Casualty
Restoration, this Lease shall terminate or expire for any reason, including a
termination by reason of an Event of
Default (hereinafter defined), then Landlord shall have the right to
receive and retain any Casualty Proceeds to the extent that they shall not have
been applied to the payment of the costs and expenses of the Casualty
Restoration, and if such termination or expiration shall be by reason other
than an Event of Default, Tenant shall thereupon be discharged from any and all
obligations to complete such Casualty Restoration provided said Casualty
Proceeds are sufficient to complete such Casualty Restoration. If, in such
case, the Casualty Proceeds are insufficient to pay the full cost of the Casualty
Restoration, Tenant shall pay the amount of any shortfall to Landlord. The
provisions of this Section 12.03(e) shall survive the expiration or earlier
termination of this Lease.


Section 12.04 – Lease
Supersedes. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Demised Premises or any
part thereof by fire or other casualty, and Section 227 of the Real Property
Law of the State of New York and any other law of like import now or hereafter
in force, are hereby waived by Tenant and shall have no application in such
case.


ARTICLE 13

ASSIGNMENT AND SUBLETTING


Section 13.01 – Landlord
Consent. Tenant shall not assign, mortgage or encumber this
Lease, its interest hereunder or the estate granted hereby, nor sublet or
suffer or permit the Demised Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance.


Section 13.02 –
Collection of Rent. If Tenant should assign its interest in
this Lease, or if all or any part of the Demised Premises be underlet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, under-tenant or occupant, as the case may be,
and apply the net amount to the Fixed



 30
 






 



 


Rent and Additional Rent
herein reserved, but no such assignment, underletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
under-tenant or occupant as Tenant, or a release of Tenant from the further
performance by Tenant of the covenants on the part of Tenant contained herein.
The consent by Landlord to any assignment or underletting shall not in any way
be construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or underletting.



 31
 






 



 


Section 13.03 - Recapture.


(a)   If Tenant shall desire to assign this Lease,
or to sublet the Demised Premises, it shall, no later than thirty (30) days
prior to the proposed effective date of the assignment or sublet, submit to
Landlord a written request for Landlord’s consent to such assignment or
subletting (“Tenants Offer Notice”),
which shall contain the following information: 
(i) the name and address of the proposed assignee or subtenant; (ii) the
terms and conditions of the proposed assignment or subletting; (iii) the nature
and character of the business of the proposed assignee or subtenant and its
proposed use of the Demised Premises; and (iv) current financial information
and any other information Landlord may reasonably request.


(b)   Tenant’s Offer Notice shall be deemed an
offer from Tenant to Landlord whereby Landlord (or Landlord’s designee) may, at
Landlord’s option, (i) sublease such space from Tenant (if the proposed
transaction is a sublease of all or part of the Demised Premises), (ii) have
this Lease assigned to it or terminate this Lease (if the proposed transaction
is an assignment or a sublease of all or substantially all of the Demised
Premises or a sublease of a portion of the Demised Premises which, when aggregated
with other subleases then in effect, covers all or substantially all of the
Demised Premises), or (iii) terminate this Lease with respect to the space
covered by the proposed sublease (if the proposed transaction is a sublease of
part of the Demised Premises). Said option may be exercised by Landlord by
notice to Tenant within sixty (60) days after a Tenant’s Offer Notice, together
with all information required pursuant to Section 13.03(a), has been given by
Tenant to Landlord.


(c)   If Landlord exercises its option under
Section 13.03(b) to terminate this Lease, then this Lease shall terminate on
the proposed assignment or sublease commencement date specified in the
applicable Tenant’s Offer Notice and all Fixed Rent and Additional Rent shall
be paid and apportioned to such date.


(d)   If Landlord exercises its option under
Section 13.03(b) to have this Lease assigned to it (or its designee), then
Tenant shall assign this Lease to Landlord (or Landlord’s designee) by an
assignment in form and substance reasonably satisfactory to Landlord, effective
on the proposed assignment or sublease commencement date specified in the
applicable Tenant’s Offer Notice. Tenant shall not be entitled to consideration
or payment from Landlord (or Landlord’s designee) in connection with any such
assignment. If the Tenant’s Offer Notice provides that Tenant will pay any
consideration or grant any concessions in connection with the proposed
assignment or sublease, then Tenant shall pay such consideration and/or grant
any such concessions to Landlord (or Landlord’s designee) on the date Tenant
assigns this Lease to Landlord (or Landlord’s designee).


(e)   If Landlord exercises its option under
Section 13.03(b) to terminate this Lease with respect to the space covered by a
proposed sublease, then (i) this Lease shall terminate with respect to such
part of the Demised Premises on the effective date of the proposed sublease,
(ii) from and after such date the Fixed Rent and



 32
 






 



Additional Rent shall be
adjusted, based upon the proportion that the rentable area of the Demised
Premises remaining bears to the total rentable area of the Demised Premises,
and (iii) Tenant shall pay to Landlord, upon demand, the costs incurred by
Landlord in demising separately such part of the Demised Premises and in
complying with any applicable laws and regulations relating to such demise.


(f)    If Landlord exercises its option under
Section 13.03(b) to sublet the space Tenant desires to sublet, such sublease to
Landlord or its designee (as subtenant) shall be in form and substance
reasonably satisfactory to Landlord at the rental rate per rentable square foot
of Fixed Rent and Additional Rent then payable pursuant to this Lease and shall
be for the term set forth in the applicable Tenant’s Offer Notice, and:


(i)    shall be subject to all of the terms and
conditions of this Lease except such as are irrelevant or inapplicable, and
except as otherwise expressly set forth to the contrary in this Section 13.03;


(ii)   shall be upon the same terms and conditions
as those contained in the applicable Tenant’s Offer Notice and otherwise on the
terms and conditions of this Lease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in
this Section 13.03;


(iii)  shall permit the sublessee, without Tenant’s
consent, freely to assign such sublease or any interest therein or to sublet
all or any part of the space covered by such sublease and to make any and all
alterations and improvements in the space covered by such sublease;


(iv)  shall provide that any assignee or further
subtenant of Landlord or its designee may, at the election of Landlord, make
alterations, decorations and installations in such space or any part thereof,
any or all of which may be removed, in whole or in part, by such assignee or
subtenant, at its option, prior to or upon the expiration or other termination
of such sublease, provided that such assignee or subtenant, at its expense,
shall repair any damage caused by such removal; and


(v)   shall provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties, (ii)
any assignment or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord shall deem appropriate, (iii)
Landlord, at Tenant’s expense, may make such alterations as may be required or
deemed necessary by Landlord to demise separately the subleased space and to
comply with any applicable laws and regulations relating to such demise, and
(iv) at the expiration of the term of such sublease, Tenant shall accept the
space covered by such sublease in its then existing condition, subject to the
obligations of the sublessee to make such repairs thereto as may be necessary
to preserve such space in good order and condition.



 33
 






 



 


(g)   In the case of a proposed sublease, Tenant
shall not sublet any space to a third party at a rental which is less (on a per
rentable square foot basis) than the rental (on a per rentable square foot
basis) specified in Tenant’s Offer Notice with respect to such space, without
complying once again with all of the provisions of this Section 13.03 and
re-offering such space to Landlord at such lower rental. In the case of a
proposed assignment, Tenant shall not assign this Lease to a third party where
Tenant pays greater consideration or grants a greater concession to such third
party for such assignment then the consideration offered to be paid or
concession offered to be granted to Landlord in Tenant’s Offer Notice without
complying once again with all of the provisions of this Section 13.03 and
re-offering to assign this Lease to Landlord and pay such consideration or
grant such concession to Landlord.


Section 13.04 – Landlord
Consent. If Landlord shall not exercise its option to
terminate this Lease pursuant to Section 13.03(b) above, except as set forth in
Section 13.13, Landlord shall not unreasonably delay, condition or withhold its
consent to the proposed assignment or subletting referred to in Tenant’s Offer
Notice, provided that the following further conditions shall be fulfilled:


(a)   The Demised Premises shall not, without
Landlord’s prior consent, have been listed or otherwise publicly advertised for
assignment or subletting at a rental less than the Fixed Rent and Additional
Rent. However, this shall not be deemed to prohibit Tenant from negotiating or
consummating a sublease at a lower rental if Tenant shall first have offered to
sublet the space involved to Landlord for the same rent and term by notice
given with or after Tenant’s request for consent to the subletting or
assignment. Landlord may accept such offer within thirty (30) days from receipt
of such request for consent or twenty (20) days after receipt of the offer, whichever
is later;


(b)   Tenant shall not then be in default hereunder
beyond the time herein provided, if any, to cure such default;


(c)   The proposed assignee or subtenant shall have
a financial standing, be of a character, be engaged in a business, and propose
to use the Demised Premises in a manner consistent with the extent of the
obligations undertaken by the proposed assignee or subtenant;


(d)   No subletting shall end later than one (1)
day before the Expiration Date of this Lease or shall be for a term of less
than two (2) years unless it commences less than two (2) years before the
Expiration Date;


(e)   There should be no more than three (3)
subtenants in the Demised Premises;


(f)    Tenant shall reimburse Landlord on demand
for any actual costs that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, the costs of making
investigations as to the acceptability of the proposed assignee or subtenant,
and legal costs incurred in connection with the 



 34
 






 



 


granting of any
requested consent; and


(g)   The proposed assignee or subtenant is engaged
in a business and the Demised Premises will be used in a manner, which is
limited to the Permitted Use.


Section 13.05 -
Attornment. Every subletting hereunder is subject to the
express condition, and by accepting a sublease hereunder each subtenant shall
be conclusively deemed to have agreed, that if this Lease should be terminated
prior to the Expiration Date or if Landlord should succeed to Tenant’s estate
in the Demised Premises, then at Landlord’s election the subtenant shall either
surrender the Demised Premises to Landlord within sixty (60) days of Landlord’s
request therefor, or attorn to and recognize Landlord as the subtenant’s
landlord under the sublease and the subtenant shall promptly execute and
deliver any instrument Landlord may request to evidence such attornment.


Section 13.06 –
Counterpart/Insurance.


(a)   Tenant shall furnish Landlord with a
counterpart (which may be a reproduced copy) of each sublease or assignment
made hereunder within ten (10) days after the date of its execution.


(b)   No sublease shall be valid, and no subtenant
shall take possession of the Demised Premises or any part thereof, until there
has been delivered to Landlord, both (i) an executed counterpart of such
sublease, and (ii) a certificate of insurance evidencing that (x) Landlord and
its designees are additional insureds under the insurance policies required to
be maintained by occupants of the Premises pursuant to Article 11, and (y) there
is in full force and effect, the insurance otherwise required by Article 11.


Section 13.07 – Tenant
Liability. Except where Landlord exercises its option under
Section 13.3(b) to sublet the entire Demised Premises, notwithstanding any
sublease or any assignment and assumption by the assignee of all or any part of
the obligations of Tenant hereunder, Tenant herein named, and each immediate or
remote successor in interest of Tenant named herein, shall remain liable
jointly and severally (as a primary obligor) with its assignee and subtenant
and all subsequent assignees and subtenants for the performance of Tenant’s
obligations hereunder, and, without limiting the generality of the foregoing,
shall remain liable to Landlord for all acts and omissions on the part of any
assignee and subtenant subsequent to it in violation of any of the obligations
of this Lease.


Section 13.08 –
Partnership Tenant. If at any time Tenant is a partnership,
the following shall apply:


(a)   the liability of each of the parties comprising
Tenant shall be joint and several;


(b)   each of the parties comprising Tenant hereby
consents to, and 



 35
 






 



 


agrees to be bound by,
any written instrument which may hereafter be executed, changing, modifying or
discharging this Lease, in whole or in part, or surrendering all or any part of
the Demised Premises to Landlord or renewing or extending this Lease and by any
notices, demands, requests or other communications which may hereafter be
given, by Tenant or by any of the parties comprising Tenant;


(c)   any bills, statements, notices, demands,
requests or other communications given or rendered to Tenant or to any of the
parties comprising Tenant shall be deemed given or rendered to Tenant and to
all such parties and shall be binding upon Tenant and all such parties;


(d)   if Tenant shall admit new partners, all of
such new partners shall, by their admission to Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this Lease
on Tenant’s part to be observed and performed;


(e)   Tenant shall give prompt notice to Landlord
of the admission of any partner or partners, and upon demand of Landlord, shall
cause each such partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner shall assume
performance of all of the terms, covenants and conditions of this Lease on
Tenant’s part to be observed and performed (but neither Landlord’s failure to
request any such agreement nor the failure of any such new partner to execute
or deliver any such agreement to Landlord shall vitiate the provisions of this
Section 13.08;


(f)    on each anniversary of the Commencement
Date, Tenant shall deliver to Landlord a list of all partners together with
their current residential addresses;


(g)   For so long as Tenant shall not be in default
under the terms of this Lease, if any partner in Tenant, as now or hereafter
constituted, shall resign or retire from Tenant, or shall die, then in any such
event the equity partner so retiring, or resigning or the estate of an equity
partner or shareholder thereof who has died, as the case may be, shall be
released from any liability or responsibility under this Lease from and after
the date of such retirement, resignation or death provided that only the first
such equity partner or shareholder resigning, retiring, or dying within any
given calendar year shall be so released in that calendar year, with any
subsequent equity partner or shareholder resigning, retiring or dying within
said calendar year being released, in chronological order, in the
next-subsequent calendar year or calendar years. Tenant shall give Landlord
prompt notice of such resignation, retirement or death; and


Section 13.09 – Profit.          If Tenant shall sublet the Demised
Premises to anyone for rents which for any period shall exceed the Fixed Rent
payable under this Lease for the same period, Tenant shall pay Landlord, as
Additional Rent hereunder, the amount of any rents, additional charges or other
consideration payable under the sublease to Tenant by the subtenant which is in
excess of the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the Demised Premises



 36
 






 



 


pursuant to the terms
hereof. The sums payable under this Section 13.09 shall be paid to Landlord as
Additional Rent as and when payable by the subtenant to Tenant.


Section 13.10 – Transfers
of Interests in Tenant. Any transfer, by operation of law or
otherwise, of Tenant’s interest in this Lease (in whole or in part) or of a
fifty (50%) percent or greater interest in Tenant or of fifty (50%) percent or
more of the assets of Tenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this Lease within the meaning of this Article.
If there has been a previous transfer of less than a fifty (50%) percent
interest in Tenant or Tenant’s assets, then any simultaneous or subsequent
transfer of an interest in Tenant or Tenant’s assets which, when added to the
total percentage interest previously transferred, totals a transfer of greater than
a fifty (50%) percent interest in Tenant or Tenant’s assets shall be deemed an
assignment of Tenant’s interest in this Lease within the meaning of this
Article.


Section 13.11 – Corporate
Reorganization. Notwithstanding the provisions of Section
13.10 hereof, without the consent of Landlord, this Lease may be assigned to
(i) an entity created by merger, reorganization or recapitalization of or with
Tenant or (ii) a purchaser of all or substantially all of Tenant’s assets; provided,
in the case of both clause (i) and clause (ii), that (A) Landlord
shall have received a notice of such assignment from Tenant, (B) the assignee
assumes by written instrument satisfactory to Landlord all of Tenant’s
obligations under this Lease, (C) such assignment is for a valid business
purpose and not to avoid any obligations under this Lease, and (D) the assignee
is a reputable entity of good character and shall have, immediately after
giving effect to such assignment, an aggregate net worth (computed in
accordance with GAAP) at least equal to the aggregate net worth (as so
computed) of Tenant immediately prior to such assignment or on the date of this
Lease, whichever is greater.


13.12 – Metropolitan
Transit Authority. Notwithstanding any provisions of this
Article to the contrary, without the consent of Landlord, Tenant may sublet, in
whole or in part, the Demised Premises to MTA and/or MTA Bus, provided Tenant
provides Landlord with a copy of the executed sublease. Sections 13.02,
13.04(b), 13.04(d), 13.05, 13.06, 13.07 and 13.09 of this Lease shall apply to
such sublease.


13.13 – Non-Compliance
with Article. In the event that (i) Landlord fails to
exercise any of its options under this Article 13 and (ii) Tenant fails to
execute and deliver the assignment or sublease to which Landlord consented
within forty-five (45) days after the giving of such consent, then, Tenant
shall again comply with all of the provisions and conditions of this Article 13
before assigning its interest in this Lease or subletting the Demised Premises.


ARTICLE
14

INDEMNIFICATION


Section
14.01 – Indemnity. Tenant shall indemnify, defend, save and
hold harmless Landlord and its affiliates, trustees, agents, members,
employees, officers, directors, successors and assigns (each, an “Indemnified
Party”) from and against any 



 37
 






 



 


and all liability
and damages and any and all injury, loss, claim, damage or suit of every kind
and nature, including Landlord’s reasonable counsel fees and disbursements, to
any person, firm, association or corporation or to any property, arising out of
or based upon, related to, or in any way connected with, a breach of Tenant’s
obligations under this Lease, the actions or omissions of Tenant or any Tenant
Party or the use or occupancy of the Demised Premises, except that Tenant shall
not indemnify Landlord for Landlord’s negligence or willful misconduct or the
negligence or willful misconduct of any Indemnified Party, or for any
Pre-Existing Environmental Condition in Article 10.


Section
14.02 - Notice of Proceedings. An Indemnified Party which
becomes entitled to indemnification under this Agreement shall promptly notify
Tenant of any claim or proceeding in respect of which it is to be indemnified.
Such notice shall be given as soon as reasonably practicable after the
Indemnified Party obligated to give such notice becomes aware of such claim or
proceeding and shall include a complete copy of all notices, pleadings and
other papers related thereto. Failure to give such notice shall not excuse an
indemnification obligation except to the extent failure to provide notice
adversely affects Tenant’s interests.


Section
14.03 - Conduct of Claim. Tenant shall assume the defense of
the claim or proceeding with counsel designated by Tenant; provided, however,
that the Indemnified Party shall have the right to participate fully in any
claim or proceeding and to retain its own counsel, but the fees and expenses of
such counsel will be at its own expense unless (i) Tenant shall have agreed to
the retention of such counsel for both Tenant and the Indemnified Party or (ii)
the named parties to any action or proceeding include the Tenant and the
Indemnified Party and representation of both such parties has been determined
in the reasonable and good faith judgment of either party to be inappropriate
under applicable standards of professional conduct due to actual or potential
conflicting interests between them. In the event the Tenant is defending or
prosecuting any claim or proceeding, (a) the Indemnified Party shall not admit
any liability with respect to, or settle, compromise or discharge such claim or
proceeding without Tenant’s prior written consent, and (b) the Indemnified
Party will agree to any settlement, compromise or discharge of the suit, action
or proceeding which the Tenant may recommend and which by its terms obligates
Tenant to pay the full amount of liability in connection with such claim or
proceeding; provided, however, that without the Indemnified Party’s consent,
which consent may not be unreasonably withheld or delayed, Tenant may only consent
to the entry of any judgment or enter into any settlement that does not provide
for injunctive or other non-monetary relief affecting the Indemnified Party. If
Tenant fails to assume the defense of a claim, the indemnification of which is
required under this Lease, the Indemnified Party may, at the expense of Tenant,
contest, settle, or pay such claim. Except as otherwise expressly set forth
herein, Tenant shall not compromise or settle a claim hereunder without the
prior written consent of the Indemnified Party


 



 38














 


 


ARTICLE 15

CONDEMNATION


Section 15.01 –
Condemnation/Notice. If Landlord or Tenant receives
written notice of a Taking
(hereinafter defined) or a proposed Taking, it shall promptly notify the other
thereof, but no such notice of intention shall confer any rights upon Tenant
under this Article, all of which rights shall come into effect only upon the
vesting of title in the Taking authority. As used herein, a “Taking” shall mean the
appropriation, condemnation or taking of all or any portion of the Demised Premises
by any governmental or public authority for public or quasi-public use under
any right of eminent domain, condemnation or other law, or the giving of a deed
in lieu thereof.


Section 15.02 –
Material Taking.


(a)   (i)    In
the event of a Taking of the entire Demised Premises, this Lease shall
automatically cease and terminate upon the date that title is vested in the
Taking authority and all Fixed Rent and Additional Rent shall be paid up to
that date. In the event of a Taking of the entire Demised Premises during the
Term, in addition to any award received by Landlord and in addition to all
other payments required to be made by Tenant hereunder, and in the event such
Taking is effected by the City of New York or any of its agencies or
instrumentalities, or by the MTA, or by New York State on behalf of the MTA,
Tenant shall pay Landlord an additional amount equal to twenty-five (25%)
percent of the award received by Landlord in the condemnation proceeding (which
award, for purposes of calculating the additional amount paid to Landlord,
shall not be reduced by such amount). Landlord and Tenant agree that this
additional amount represents Landlord’s recovery of its loss of business
opportunity and such amount is not a penalty.


(ii)   In the event of a Taking of less than the
entire Demised Premises, this Lease shall continue in full force and effect as
to the portion of the Demised Premises not Taken and Section 15.03 shall apply.


(b)   In the event of a Taking, Landlord and any
Mortgagee designated by Landlord shall have the exclusive right to file any
claim or to commence any action or proceeding to collect any Proceeds payable
out of or in connection with such Taking, except for any separate award to
which Tenant may be entitled pursuant to Section 15.05, and Tenant and everyone
claiming by, under or through Tenant waives all right to assert any claim
against Landlord or the Taking authority in such proceeding. The term “Proceeds” shall mean any award,
settlement, compensation or proceeds payable by reason of or in connection with
any Taking, including the value of the interests of Landlord and Tenant in the
Demised Premises and this Lease, any Improvements made by Tenant and Landlord
respectively, the value of all awards for severance and indirect damage, and the
right to receive any advance payment or interest thereon. Tenant shall, at
Tenant’s own cost and expense, cooperate with Landlord and take all actions and
execute all documents reasonably required by Landlord or required by the Taking
authority to collect such Proceeds, and if Tenant shall fail or refuse to take
any act and/or execute any document which is reasonably required by Landlord or
required by the Taking authority to collect such Proceeds (or any part
thereof), then Tenant shall be



 39
 






 



 


responsible to
Landlord for the sum of all Proceeds, including interest at the Default Rate,
and for all damages, expenses and fees incurred by Landlord as a result of
Tenant’s failure or refusal to act or execute any document as aforesaid,
including, but not limited to, attorneys’ fees and suspension of interest by
the Taking authority, which sums shall be Additional Rent under this Lease and
which Landlord may offset from any share of such Proceeds to which Tenant may
be entitled pursuant to Sections 15.02, 15.03 and 15.04. The provisions of this
Section are in addition to any other remedies available to Landlord.


(c)   In the event of a Taking of the entire
Demised Premises and a termination of this Lease, all Proceeds shall be paid to
Landlord who shall within forty-five (45) days thereafter (or within thirty
(30) days following any final determination in any arbitration proceeding
pursuant to Section 15.07 hereof, as hereinafter set forth) disburse the net
Proceeds of such Taking to Landlord and Tenant in proportion to their interests
in the Demised Premises, as follows:


(i)    to the Landlord for the value of the
Landlord’s interest in the Demised Premises, valuing the Demised Premises free
and clear of this Lease and at its highest and best use as of the date of the
Taking, except that consideration shall be given to this Lease to the extent it
is relevant in determining the highest and best use of the Demised Premises,
including Landlord’s reversionary interest, and any consequential damages,
including severance damages, out of which Landlord shall pay any sums due any
Mortgagee; and


(ii)   provided that no uncured Event of Default has
occurred which is then continuing and provided further that there are at least
two (2) years remaining in the Term on the date on which title to the Demised
Premises is vested in the Taking authority to Tenant for the value of Tenant’s
leasehold estate, giving consideration to the terms of this Lease, as though
there had been no Taking. Any dispute between Landlord and Tenant concerning
the pro rata portions of Proceeds payable to
Landlord and Tenant in accordance with clauses (i) and (ii) above shall be
promptly submitted to binding arbitration in accordance with Section 15.07
hereof.


Section 15.03 – Taking of Less Than Entire Demised
Premises.


(a)   If a Taking involves less than the Entire
Demised Premises, this Lease shall terminate as to the area so Taken from and
after the vesting of title in such Taking and shall continue as to the
remainder of the Demised Premises; provided, however, from and after the date
on which possession of the portion of the Demised Premises is Taken, the Tenant
shall proceed diligently and in good faith to close in and restore the
Improvements. The Fixed Rent shall be reduced as of the vesting date
proportionally to account for the area of the Improvements so taken. Notwithstanding
the foregoing, in the event of a taking of less than the Entire Demised
Premises, this Lease shall automatically terminate as to the area so taken by
or given to the Taking Authority and shall continue as to the remainder of the
Demised Premises. In the event of a Taking of less than the Entire Demised
Premises during the Term, in addition to any award



 40
 






 



 


received by
Landlord and in addition to all other payments required to be made by Tenant
hereunder and in the event such Taking is effected by the City of New York or
any of its agencies or instrumentalities, or by the MTA, or by New York State
on behalf of the MTA,, Tenant shall pay Landlord an additional amount equal to
twenty-five (25%) percent of the award received by Landlord in the condemnation
proceeding (which award, for purposes of calculating the additional amount paid
to Landlord, shall not be reduced by such amount). Landlord and Tenant agree
that this additional amount represents Landlord’s recovery of its loss of
business opportunity and such amount is not a penalty. From and after the date
on which title the possession of the portion of the Demised Premises is Taken,
the Tenant shall proceed diligently and in good faith to close in and restore
the Improvements.


(b)   Landlord shall be entitled to receive all
Proceeds and Tenant shall have no part thereof or claim thereto nor shall
Tenant have any claim for the value of the portion of the leasehold estate so
Taken. Landlord shall pay all fees, costs and expenses of every character and
kind of Landlord incurred in connection with such Taking and obtaining the
Proceeds therefor.


Section 15.04 –
Temporary Taking. If possession of all or any portion
of the Demised Premises shall be Taken for occupancy for a limited period (a “Temporary Taking”), this Lease
shall continue in full force and effect and Tenant shall continue to pay in
full the Fixed Rent, Additional Rent and other charges herein reserved without
reduction or abatement. Landlord shall receive out of the Proceeds of such
Temporary Taking (and Tenant shall be credited with) an amount equal to the
total of the Fixed Rent, Additional Rent and other charges due to Landlord or
to be paid by Tenant under the terms of this Lease for the period of such
Temporary Taking (less any amounts theretofore paid by Tenant to Landlord) and
the balance thereof shall be divided equally between Landlord and Tenant.


Section
15.05 – Tenant’s Claim for Fixtures. In any condemnation
proceeding, Tenant may submit a separate claim against the Taking authority for
the value of Tenant’s trade fixtures, the cost of removal or relocation,
goodwill, inventory, equipment and going concern values if such separate claims
are allowable as such and, provided that such Proceeds shall not include an
amount of such claims of Tenant, such separate claims shall not reduce the
amount of Proceeds otherwise payable to Landlord.


(a)   Section 15.06 – Costs of Taking. Landlord
and Tenant shall be solely responsible for their respective legal, appraisal,
engineering and other fees, costs and expenses arising out of or in connection
with any claim allocable or attributable to any item which each is permitted to
separately claim under this Article 15; provided, however, that the Landlord’s
legal, appraisal, engineering and other fees and expenses incurred in
connection with the collection of any Proceeds pursuant to Section 15.02 shall
be allocated and paid by Landlord and Tenant in proportion to the amount of
Proceeds disbursed to Landlord and Tenant respectively.



 41
 






 



 


ARTICLE 16

RIGHT TO INSPECT


Section 16.01 –
Right to Inspect. Tenant shall permit Landlord or Landlord’s
agents to enter the Demised Premises at all reasonable hours and upon
reasonable notice to Tenant for the purpose of (i) inspecting the same; (ii)
confirming that Tenant is complying with terms of this Lease; (iii) making
repairs which Tenant neglects or refuses to make; (iv) exhibiting the Demised
Premises to prospective mortgagees; (v) exhibiting the Demised Premises to
brokers and prospective purchasers; and (vi) during the two (2) years preceding
the expiration of this Lease, exhibiting the Demised Premises to brokers and
prospective purchasers and lessees  (it
being understood that Landlord shall have no obligation to do any of the
foregoing acts); provided, in each and every case, Landlord shall use
commercially reasonable efforts not to unreasonably interfere with the conduct
of Tenant’s business at the Demised Premises.



 42
 






 



 


ARTICLE
17

[INTENTIONALLY OMITTED]


ARTICLE 18

DEFAULT PROVISIONS


Section
18.01 - Events of Default. If any one or more of the
following events (in this Lease sometimes called “Events of Default”)
shall happen:


(a)   (i)    if
default shall be made in the due and punctual payment of any Fixed Rent payable
under this Lease or any part thereof when and as the same shall become due and
payable, and such default shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant; provided, however, that such
thirty (30) day period shall be reduced to ten (10) days after the third (3rd) default in any twelve (12)
month period, and further reduced to five (5) days if such default occurs four
(4) or more times in any twelve (12) month period;


(ii)   if default
shall be made in the due and punctual payment of any Additional Rent or other
charges payable under this Lease or any part thereof when and as the same shall
become due and payable, and such default shall continue for a period of thirty
(30) days after written notice thereof from Landlord to Tenant;


(b)   if default shall be made by Tenant in
keeping, observing or performing any of the terms, covenants, agreements,
provisions, conditions or limitations contained in this Lease on Tenant’s part
to be kept, observed or performed, other than those referred to in the
foregoing subdivision (A) of this Section, which do not expose the Landlord to
criminal liability, and such default shall continue for a period of thirty (30)
days after written notice thereof from Landlord to Tenant, or in the case of
such a default or a contingency which cannot with due diligence and in good
faith be cured within thirty (30) days, and Tenant fails to proceed promptly
and with due diligence and in good faith to cure the same and thereafter to
prosecute the curing of such default with due diligence and in good faith (it
being intended that in connection with a default which does not expose Landlord
to criminal liability, and is not susceptible of being cured with due diligence
and in good faith within thirty (30) days, that the time of the Tenant within
which to cure the same shall be extended for such a period as may be necessary
for the curing thereof promptly with due diligence and in good faith);


(c)   if Tenant shall file a voluntary petition in
bankruptcy and shall be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, or shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of Tenant
or of all or any substantial part of its properties or of the Demised Premises
or of Tenant’s interest therein; or



 43
 






 



 


(d)   if within ninety (90) days after the
commencement of any proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law, such
proceeding shall not have been dismissed or if, within ninety (90) days after
the appointment, without the consent or acquiescence of Tenant, of any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties or of the Demised Premises or of Tenant’s interest therein, such
appointment shall not have been vacated or stayed on appeal or otherwise, or
if, within forty-five (45) days after the expiration of any such stay, such
appointment shall not have been vacated;


then and in any
such event Landlord at any time thereafter during the continuance of any such
Event of Default may give written notice to Tenant, specifying such Event of
Default or Events of Default and stating that this Lease and the term hereby
demised shall expire and terminate on the date specified in such notice, which
shall be at least thirty (30) days after the giving of such notice, and upon
the date specified in such notice, subject to the provisions of Section 18.03,
this Lease and the term hereby demised and all rights of Tenant under this
Lease, including all rights of renewal whether exercised or not, shall expire
and terminate, as if the date specified in such notice were the day herein
definitely fixed for the end and expiration of this Lease and the term thereof.


Section
18.02 - Bankruptcy. Any such proceeding or action involving
bankruptcy, insolvency, reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other statute or law, above set forth in subdivisions (c) and (d) of Section
18.01 of this Article, shall be grounds for the termination of this Lease
pursuant to the terms, covenants, agreements, provisions, conditions and
limitations of this Article 18, only when such proceeding, action or remedy
shall be taken or brought by or against Tenant or any assignee of this Lease,
while such Tenant or such assignee is the owner of this Lease.


Section
18.03 – Termination of Lease. Upon any expiration or
termination of this Lease, Tenant shall quit and peacefully surrender the
Demised Premises to Landlord, and Landlord, upon or at any time after any such
expiration or termination, may without further notice, enter upon and reenter
the Demised Premises and possess and repossess itself thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess Tenant and
remove Tenant and all other persons and property from the Demised Premises and
may have, hold and enjoy the Demised Premises and the right to receive all
rental and other income of and from the same.


Section 18.04 –
Reletting of Demised Premises. At any time or from time to
time after any such expiration or termination, Landlord may relet the Demised
Premises or any part thereof, in the name of Landlord or otherwise, for such
term or terms (which



 44
 






 



 


may be greater or
less than the period which would otherwise have constituted the balance of the
Term of this Lease) and on such conditions (which may include concessions or
free rent) as Landlord, in its uncontrolled discretion, may determine and may
collect and receive the rents therefor. Landlord shall in no way be responsible
or liable for any failure to relet the Demised Premises or any part thereof, or
for any failure to collect any rent due upon any such reletting.


Section
18.05 - Damages. No such expiration or termination of the
Lease shall relieve Tenant of its liabilities and obligations under this Lease,
and such liabilities and obligations shall survive any such expiration or
termination. In the event of any such expiration or termination, whether or not
the Demised Premises or any part thereof shall have been relet, Tenant shall
pay to Landlord a sum equal to the Fixed Rent and the Additional Rent required
to be paid by Tenant up to the time of such expiration or termination of this
Lease, and thereafter Tenant, until the end of what would have been the Term of
this Lease in the absence of such expiration or termination, shall be liable to
Landlord for, and shall pay to Landlord, as and for liquidated and agreed
current damages for Tenant’s default, at the election of Landlord, either:


(a)   (i)    the
equivalent of the amount of the Fixed Rent and the Additional Rent which would
be payable under this Lease by Tenant if this Lease were still in effect, less


(ii)   the net proceeds of any reletting effected
pursuant to the provisions of Section 18.04 hereof, after deducting all
Landlord’s expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses,
reasonable attorneys’ fees, alteration costs, and expenses of preparation for
such reletting.


Tenant shall pay such
current damages (herein called “deficiency”) to Landlord quarterly on
the first day of each calendar quarter, commencing with the next succeeding
calendar quarter, and Landlord shall be entitled to recover from Tenant each
deficiency as the same shall arise. If the Demised Premises or any part thereof
be relet by the Landlord for the unexpired Term of this Lease, or any part
thereof, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the part or the whole of the premises so relet during the term
of the reletting.


Nothing contained in this
Section 18.05 shall limit or prejudice the right of the Landlord to prove for
and obtain as liquidated damages by reason of such expiration or termination,
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, such damages are to
be proved, whether or not such amount be greater, equal to, or less than the
amount of the sums referred to above.



 45
 






 



 


Section
18.06 – Tenant’s Waiver of Notice to Re-enter. Tenant hereby
expressly waives, so far as permitted by law, the service of any notice of
intention to enter or re-enter provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant (including but not
limited to any leasehold mortgagee or other creditor) also waives any and all
right of redemption or re-entry or re-possession or to redeem or to restore the
operation of this Lease in case Tenant shall be dispossessed by a judgment or
by warrant of any court or judge or in case of entry, re-entry or re-possession
by lessor or in case of any expiration or termination of this Lease. Landlord
and Tenant, so far as permitted by law, hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of, or in any way connected with
this Lease, including but not limited to, the relationship of Landlord and
Tenant, Tenant’s use or occupancy of the Demised Premises or any claim of
injury or damage. The terms “enter”, “re-enter”, “entry” or re-entry”, as used
in this Lease are not restricted to their technical legal meaning.


Section
18.07 – Threatened Breach. In the event of any breach or
threatened breach by Tenant of any of the terms, covenants, agreements,
provisions, conditions or limitations contained in this Lease, Landlord shall
be entitled to enjoin such breach or threatened breach and shall have the right
to invoke any right or remedy allowed at law or in equity or by statute or
otherwise as though entry, re-entry, summary proceedings, and other remedies
were not provided for in this Lease.


Section 18.08 –
Remedies Cumulative. Each right or remedy of Landlord
provided for in this Lease shall be cumulative and shall be in addition to
every other right or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
the beginning of the exercise by Landlord of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by Landlord of any or all other rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or
other law.



 46
 






 



 


ARTICLE 19

ATTORNEYS’ FEES


Section
19.01 – Attorneys’ Fees. If at any time there shall occur an
Event of Default hereunder, and if Landlord shall institute an action or
summary proceedings against Tenant based upon such Event of Default and prevail
in such action or summary proceeding, then Tenant shall reimburse Landlord for
the expenses of reasonable and actual attorneys’ fees and disbursements
incurred by Landlord. The amount of such expenses shall be deemed to be “Additional
Rent” hereunder and shall be due from Tenant on demand from Landlord.


ARTICLE 20

WAIVER OF REDEMPTION; COUNTERCLAIM; TRIAL BY JURY


Section
20.01 - Waiver. Tenant hereby expressly (i) waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Demised Premises by reason of the
violation by Tenant of any of the covenants and conditions of this Lease or
otherwise; (ii) waives all rights to stay summary proceedings except in
connection with a “Yellowstone” injunction; and (iii) agrees that it shall not
interpose any counterclaim in any summary proceeding or any action based on
non-payment of Fixed Rent, Additional Rent or any other payments or charges
required to be made by Tenant to Landlord. Nothing contained herein shall
prevent Tenant from asserting any such counterclaim as a cause of action in a
separate action or proceeding, but Tenant shall not seek a consolidation or
joint trial of such separate action or proceeding with any summary proceeding
or other action or proceeding commenced by Landlord for non-payment of Fixed
Rent, Additional Rent or any other payments or charges required to be made by
Tenant to Landlord. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of them against the other
with respect to any matters arising out of or connected with this Lease, the
relationship of Landlord and Tenant, Tenant’s use or occupancy of the Demised
Premises, and/or any claim of injury or damage and any emergency statutory or
any other statutory remedy.


ARTICLE 21

NO WAIVER


Section 21.01 – No
Waiver. No act or thing done by Landlord or Landlord’s agents
during the Term hereby demised shall be deemed an acceptance of a surrender of
the Demised Premises, and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. The failure of Landlord or Tenant to seek
redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease shall not prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The receipt by Landlord of Fixed Rent or
Additional Rent with knowledge of the breach of any covenant



 47
 






 



 


of this Lease
shall not be deemed a waiver of such breach. No provision of this Lease shall
be deemed to have been waived by Landlord or Tenant unless such waiver is in
writing signed by the Party against whom such waiver is to be enforced.


ARTICLE 22

END OF TERM


Section
22.01 – Surrender of Demised Premises.


(a)   Tenant shall, at the expiration or other
termination of this Lease quit and surrender to Landlord the Demised Premises,
broom clean and in good condition and repair, reasonable wear and tear and
casualty excepted, and the roof shall be free of leaks. Tenant shall surrender
all keys for the Demised Premises to Landlord at Landlord’s office, and shall
inform Landlord of all combinations of locks, safes, vaults, alarms and other
encoded devices or facilities if any, located in the Demised Premises. If the
last day of the Term shall fall on a Saturday, Sunday or legal holiday, the
Term of this Lease shall expire on the business day immediately preceding such
date.


(b)   All personal property, furniture, furnishings
and trade fixtures furnished by or at the expense of Tenant, other than those
affixed to the Demised Premises so that they cannot be removed without damage,
shall remain the property of Tenant and may be removed by Tenant from
time-to-time prior to the expiration or other termination of this Lease. Tenant
shall notify Landlord in writing not less than sixty (60) days prior to the
expiration of the Term specifying any such items of property which Tenant does
not wish to remove. If, within thirty (30) days after the service of such
notice, Landlord shall request Tenant to remove any of said items, Tenant
shall, at Tenant’s expense, remove said items prior to the expiration of the
Term.


(c)   In any case where Tenant removes any property
or Alterations pursuant to Sections 22.01(a) or 22.01(b), or otherwise, Tenant
shall immediately repair all structural damage caused by said removal and shall
restore the Demised Premises to good condition at Tenant’s expense, and if
Tenant fails to do so, Landlord may do so at Tenant’s cost and Tenant shall
reimburse Landlord therefor upon demand for reasonable and actual costs
incurred by Landlord.


(d)   Upon failure of Tenant to remove any property
in accordance with Sections 22.01(a) and 22.01(b), or upon failure of Tenant to
notify Landlord of any property it does not wish to remove from the Demised
Premises in accordance with Section 22.01(b), then, as to such property, upon
termination of this Lease, Landlord may, at Tenant’s expense: (i) remove all
such property which Landlord may require Tenant to remove pursuant  to Sections 22.01(a) and 22.01(b), (ii) cause
the same to be placed in storage, and (iii) repair any damage caused by said
removal. Tenant shall, upon demand, reimburse Landlord for all of the aforesaid
expenses.


(e)   [Intentionally Omitted].



 48
 






 



 


(f)    Notwithstanding anything to the contrary
contained in this Section 22.01, any items of property or Alterations not
removed by Tenant may, at the election of Landlord, be deemed to have been
abandoned by Tenant, and Landlord may retain and dispose of said items without
any liability to Tenant and without accounting to Tenant for the proceeds
thereof.


Section
22.02 - Ownership of Improvements. Upon the termination of
this Lease, whether by expiration of the Term or by reason of default on the
part of Tenant, or for any other reason whatsoever, all Improvements then
located on the Premises including all affixed lighting fixtures, heating,
ventilating and air conditioning equipment, pipes, ducts, conduits, wiring,
paneling, partitions, railings, mezzanine floors, galleries and the like,
shall, except as provided otherwise in Section 8.01, remain upon and be
surrendered with the Demised Premises as a part thereof and shall then merge
with the freehold estate and become the property of Landlord as a part of the
realty, free and clear of any liens, encumbrances or burdens placed upon Tenant’s
leasehold estate.


Section
22.03 – Holdover.


(a)   If the Demised Premises shall not be
surrendered as and when aforesaid and in the condition required hereunder,
Tenant shall pay to Landlord as use and occupancy for each month or fraction
thereof during which Tenant continues to occupy the Demised Premises from and
after the Expiration Date (the “Continued
Occupancy Period”), an amount of money (the “Occupancy Payment”) equal to one
hundred fifty (150%) percent of one-twelfth (1/12th) of the aggregate Fixed Rent
and Additional Rent paid or payable by Tenant during the first twelve (12)
months immediately preceding such holding over. Tenant shall make the Occupancy
Payment, without notice or previous demand therefor, on the first day of each
and every month during the Continued Occupancy Period.


(b)   The receipt and acceptance by Landlord of the
Occupancy Payment shall not be deemed a waiver or acceptance by Landlord of
Tenant’s breach of Tenant’s covenants and agreements under this Article 22, or
a waiver by Landlord of Landlord’s right to institute any summary holdover
proceedings against Tenant, or a waiver by Landlord of Landlord’s rights to
enforce any of Landlord’s rights or pursue any of Landlord’s remedies against
Tenant in such event other than the payment of Fixed Rent as provided for in
this Lease or under law. This Section shall be deemed to be an agreement
expressly providing otherwise within the meaning of Section 232-c of the Real
Property Law of the State of New York and any successor law of like import.


(c)   No holding over by Tenant shall be deemed nor
operate as an extension of the Term of this Lease.


Section
22.04 – Survival. Tenant’s obligation to observe or perform
each and every one of the covenants set forth in this Article shall survive the
expiration or other termination of the Term.



 49















 


ARTICLE 23

BROKER


Section
23.01 – Broker. Tenant and Landlord each represent that to
the other that it has dealt with no broker in connection with this Lease other
than Lighthouse Real Estate Management, LLC (“Broker”). Landlord shall
pay Broker any commission earned pursuant to a separate agreement between
Landlord and Broker. Tenant hereby agrees to indemnify and hold Landlord
harmless of and from any and all losses, costs, damages or expense (including,
without limitation, attorneys’ fees and disbursements) incurred by Landlord by
reason of any claim of or liability to any broker, other than the Broker, who
claims to have dealt with Tenant in connection with this Lease, which indemnity
shall survive the expiration or other termination of this Lease.


ARTICLE 24

QUIET ENJOYMENT


Section
24.01 – Quiet Enjoyment. Landlord covenants that if and so
long as Tenant pays the Fixed Rent and Additional Rent and other charges
reserved by this Lease, and performs all the terms, covenants and conditions of
this Lease on the part of Tenant to be performed, Tenant shall quietly enjoy
the Demised Premises subject, however, to the terms of this Lease.


ARTICLE 25

NON-LIABILITY OF LANDLORD


Section
25.01 – Non-Liability of Landlord.


(a)   Landlord
and Landlord’s affiliates, trustees, agents, members, employees, officers,
directors, successors and assigns shall not be liable for, and Tenant waives
all claims for, loss or damage to Tenant’s business or damage to person or
property sustained by Tenant resulting from any accident or occurrence,
including, but not limited to, claims for damage resulting from: (i) any
equipment or appurtenances becoming out of repair; (ii) injury done or
occasioned by wind, rain, fire, storm or other occurrence of nature; (iii) any
defect in or failure of plumbing, heating or air conditioning equipment,
electric wiring or installation thereof, gas, water, or steam pipes, stairs,
porches, railings or walks; (iv) broken glass; (v) the backing up of any sewer
pipe or downspout; (vi) the bursting, leaking or running of any tank, tub,
washstand, water closet, waste pipe, drain or other pipe or tank in, upon or
about the Demised Premises; (vii) the escape of steam or hot water; (viii)
water, snow or ice being upon or coming through the roof, skylight, trapdoor, stairs,
doorways, windows, walks or any other place upon or near the Demised Premises
or otherwise; (ix) the falling of any fixture, plaster, tile or stucco; and (x)
any act, omission or negligence of Tenant, any Tenant Party or of any other
persons or occupants of the Improvements or of adjoining or contiguous
buildings or improvements or of owners of adjacent or contiguous property.


(b)   Landlord
shall be under no personal liability with respect to its



 50
 






 



 


obligations under
this Lease. Tenant shall look solely to the equity of the Landlord in the Land
and Improvements constituting the Demised Premises for the satisfaction of
Tenant’s remedies, and in no event shall Tenant attempt to secure any personal
judgment against any individual or any member, principal, partner, employee,
officer, director or agent of Landlord by reason of such default by Landlord.


(c)   The word “Landlord”
as used herein means only the owner in fee for the time being of the Demised
Premises, and in the event of any sale of the Demised Premises, Landlord shall
be and hereby is entirely freed and relieved of all covenants and obligations
of Landlord hereunder and it shall be deemed and construed without further
agreement between the parties or between the parties and the purchaser of the Demised
Premises, that such purchaser has assumed and agreed to carry out any and all
covenants and obligations of Landlord hereunder.


ARTICLE 26

APPLICABLE LAW AND CONSTRUCTION


Section 26.01 –
Applicable Law and Construction. The laws of the State of New
York shall govern the validity, performance and enforcement of this Lease
without giving effect to any principle of such law as would result in the
selection or application of law of any other jurisdiction. The invalidity or
unenforceability of any provision of this Lease shall not affect or impair any
other provision. The headings of the several articles and sections contained
herein are for convenience only and do not define, limit or construe the
contents of such articles or sections. Whenever herein the singular number is
used, the same shall include the plural, and the neuter gender shall include
the masculine and feminine genders. Neither this Lease nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. This Lease shall be given a
fair and reasonable construction in accordance with the intentions of the
parties hereto, and without regard to or aid of canons requiring construction
against the party drafting this Lease.



 51
 






 



 


ARTICLE 27

BINDING EFFECT OF LEASE


Section
27.01 - Binding Effect of Lease. The covenants, agreements
and obligations contained in this Lease shall, except as herein otherwise
provided, extend to, bind and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Each covenant, agreement,
obligation or other provision herein contained shall be deemed and construed as
a separate and independent covenant of the party bound by, undertaking or
making the same, not dependent on any other provision of this Lease unless
otherwise expressly provided.


ARTICLE 28

NOTICES


Section
28.01 - Notice. All notices to be given hereunder shall be in
writing and given by hand delivery, by certified or registered mail, or by
recognized overnight courier (e.g. Fed Ex) addressed to either of the parties
at the address listed below or at any other subsequent mailing address they may
indicate by written notice. Any notice given hereunder by mail shall be deemed
delivered upon receipt or rejection of delivery by the addressee.


	
  If to Landlord:

  	
   

  	
  Mr. Jerome Cooper

  
	
   

  	
   

  	
  444 Merrick
  Road, Suite 370

  
	
   

  	
   

  	
  Lynbrook, New
  York 11563

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Ruskin Moscou Faltischek, P.C.

  
	
   

  	
   

  	
  1425 Reckson
  Plaza, East Tower, 15th Floor

  
	
   

  	
   

  	
  Uniondale, New
  York 11556-1425

  
	
   

  	
   

  	
  Attn: Chairman,
  Real Estate Department

  
	
   

  	
   

  	
   

  
	
  If to Tenant:

  	
   

  	
  Assistant
  Commissioner for Acquisitions,

  and Construction Services

  
	
   

  	
   

  	
  Department of Citywide
  Administrative Services

  
	
   

  	
   

  	
  Division of Real
  Estate Services

  
	
   

  	
   

  	
  1 Centre Street,
  20th Floor North

  
	
   

  	
   

  	
  New York, New
  York 10007

  
	
   

  	
   

  	
   

  
	
  And

  	
   

  	
  Metropolitan Transportation Authority

  
	
   

  	
   

  	
  347 Madison
  Avenue

  
	
   

  	
   

  	
  New York, New
  York 10017

  
	
   

  	
   

  	
  Attn: Director
  of Real Estate

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Office of General Counsel

  
	
   

  	
   

  	
  Metropolitan
  Transportation Authority

  




 52
 






 



 


	
  

  	
   

  	
  347 Madison
  Avenue

  
	
   

  	
   

  	
  New York, New
  York 10017

  



 


ARTICLE 29

FEE MORTGAGES


Section
29.01 – Landlord’s Right to Mortgage. Nothing herein
contained shall limit Landlord’s right to place any mortgage on the interest of
Landlord in the Demised Premises including, without limitation, any
modifications, consolidations, extensions, renewals and replacements thereof (“Mortgage”).


Section
29.02 – Mortgagee’s Right to Cure. If any act or omission of
Landlord would give Tenant the right, immediately or after lapse of a period of
time, to cancel or terminate this Lease, or to abate the payment of rent or to
claim a partial or total eviction, Tenant shall not exercise such right (a)
until it has given written notice of such act or omission to Landlord and the
holder of each Mortgage; provided the name and address of the holder of any
such Mortgage shall previously have been furnished to Tenant, and (b) until
thirty (30) days shall have elapsed following the giving of such notice if the
same can be remedied within such thirty (30) day period or if the same cannot
be remedied within thirty (30) days until a reasonable period of time has
elapsed to cure provided such cure has commenced within the thirty (30) day
period, and, further, provided the holder of such Mortgage shall with due
diligence continue to remedy such act or omission.


Section
29.03 – Tenant’s Attornment. If the holder of any Mortgage, or
any designee of any such holder, shall succeed to the rights of Landlord under
this Lease, whether through possession or foreclosure action or delivery of a
new lease or deed, then Tenant shall automatically attorn to and recognize such
party so succeeding to Landlord’s rights (“Successor Landlord”) as
Tenant’s landlord under this Lease and shall promptly execute and deliver any
instrument (“Attornment Agreement”) that such Successor Landlord may
reasonably request to evidence such Attornment. Upon such Attornment, this
Lease shall continue in full force and effect as a direct lease between the
Successor Landlord and Tenant upon all of the terms, conditions and covenants
as are set forth in this Lease, except that the Successor Landlord shall not
(a) be liable for any previous act or omission of Landlord under this Lease;
(b) be subject to any offset, not expressly provided for in this Lease, which
theretofore shall have accrued to Tenant against Landlord; (c) be bound by any
previous modification of this Lease or by any previous prepayment of more than
one (1) month’s rent, unless such modification or prepayment shall have been
expressly approved in writing by the holder of the Mortgage; or (d) be
obligated to make any improvements to, or perform any work at, or furnish any
services to, the Demised Premises.


Section 29.04 –
Priority of Lease. This Lease and all rights of Tenant
hereunder are and shall be subject and subordinate to every underlying lease,
the rights of the overlandlord or overlandlords under each underlying lease,
all Mortgages heretofore or



 53
 






 



 


hereafter placed
on or affecting any underlying lease, alone or with other property, and to all
advances heretofore or hereafter made under such leasehold mortgage, and to the
lien of all renewals, modifications, consolidations, replacements,
substitutions, spreaders, additions and extensions of any such leasehold
mortgage, and (b) any Mortgage now or hereafter affecting the Demised Premises
or any part or parts of such real property, or such real property and other
property, and to each advance made or hereafter to be made under any such
Mortgage and to all renewals, modifications, consolidations, replacements,
substitutions, spreaders, additions and extensions of any such underlying lease
or leases and/or Mortgages. In confirmation of such subordination, Tenant shall
execute and deliver promptly any certificate reasonably approved by Tenant’s
counsel that Landlord or its successors in interest may reasonably request.


ARTICLE 30

ESTOPPEL CERTIFICATES


Section
30.01 – Tenant’s Estoppel Certificate. Tenant shall, upon not
less than fifteen (15) days’ prior written request from Landlord, execute and
deliver to Landlord a statement certifying 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 so modified) and stating whether there are any
defaults under this Lease of which Tenant has actual knowledge and specifying
such defaults, if any, and stating such other factual information which
Landlord reasonably requests.


Section
30.02 – Landlord’s Estoppel Certificate. Landlord shall, upon
not less than fifteen (15) days’ prior written request from Tenant, execute and
deliver to Tenant a statement certifying 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 so modified) and stating whether there are any
defaults under this Lease of which Landlord has actual knowledge and specifying
such defaults, if any, and stating such other factual information which Tenant
reasonably requests.


ARTICLE 31

REPRESENTATIONS


Section
31.01 – Tenant’s Representations. Tenant represents and
warrants that:


(a)   Tenant is a municipal corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and to execute, deliver
and perform this Lease. The Lease has been duly authorized by all necessary
action on the part of the Tenant.


(b)   The execution, delivery and performance of the Lease and the
consummation of the transactions contemplated hereby will not result in
violation of or be in conflict with or constitute a default under any term or
provision of Tenant’s



 54
 






 



 


governing organization documents or under any
term or condition of any contract, agreement, lease or instrument to which
Tenant is a party or by which Tenant is bound or any term of any judgment,
decree, statute, rule, regulation, ordinance, franchise, certificate, permit or
the like applicable to the Tenant.


(c)   There is no action, suit, proceeding or
investigation pending or threatened or any basis therefor known to Tenant which
would question the validity of any of the foregoing representations or the
validity of this Lease.


The foregoing representations and warranties
shall be deemed made as of the date hereof and as of the Commencement Date.


Section
31.02 – Landlord’s Representations. Landlord represents and
warrants that:


(a)   Landlord is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and has all requisite power and authority to own and operate properties, to
carry on its business as now conducted, and to execute, deliver and perform
this Lease. The Lease has been duly authorized by all necessary action on the
part of the Landlord.


(b)   The execution, delivery and performance of
the Lease and the consummation of the transactions contemplated hereby and
thereby will not result in violation of or be in conflict with or constitute a
default under any term or provision of the Certificate of Incorporation or
By-Laws of the Landlord or any term of any judgment, decree, statute, rule,
regulation, ordinance, franchise, certificate, permit or the like applicable to
the Landlord.


(c)   There is no action, suit, proceeding or
investigation pending or threatened or any basis therefor known to Landlord
which would question the validity of any of the foregoing representations or
the validity of this Lease.


(d)   The
shareholder of the Landlord is Green Bus Lines Inc. and the officers of the
Landlord are as follows: Jerome Cooper, President; Stephen Eagar, Vice
President; and Stan Brettschneider, Secretary and Treasurer. The foregoing
representations and warranties shall be deemed made as of the date hereof and
as of the Commencement Date.



 55
 






 



 


ARTICLE 32

MISCELLANEOUS


Section
32.01 - Taxes. Tenant shall be responsible for any taxes,
including, but not limited to, New York State transfer taxes, payable by reason
of the execution of this Lease. Landlord shall complete and sign any required
tax return.


Section 32.02 –
Venue; Service of Process. Landlord and Tenant and any
subtenant under this Lease, hereby expressly consent to the jurisdiction of the
Supreme Court of the County of Queens (or any successor thereto), the Supreme
Court of the State of New York and the United States District Court with
respect to any action or proceeding between Landlord and Tenant or such party
with respect to this Lease or any rights or obligations of either party
pursuant to or in connection with this Lease, and each of such subtenant,
Landlord and Tenant agree that venue shall lie in Queens County. Tenant and any
subtenant further waive any and all rights to commence any such action or
proceeding against Landlord before any other court. Without limiting any other
methods of obtaining jurisdiction, personal jurisdiction of the Tenant in any
action or proceeding may be obtained within and without the jurisdiction of any
court located in the State of New York, and that process or notice of motion or
other application in connection with such action or proceeding may be served
upon the Tenant by registered or certified mail at the last known address of
the Tenant, whether such address be within or without the jurisdiction of any
such court, and service shall be deemed complete three (3) business days after
when mailed even if delivery is refused by the addressee.


Section 32.03 –
Lease Not an Offer. The submission of this Lease to
Tenant shall not be construed as an offer, nor shall Tenant have any rights
with respect thereto or the Demised Premises unless and until Landlord shall
execute a counterpart of this Lease and deliver the same to Tenant. Until such
execution and delivery, any action taken or expense incurred by Tenant in
connection with this Lease or the Demised Premises shall be solely at Tenant’s
own risk and account.


Section
32.04 - Memorandum of Lease. This Lease shall not be
recorded by Landlord or Tenant. At the request of either party, Landlord and
Tenant shall execute and deliver to the other party a short form memorandum of
lease in form for recording. Such memorandum of lease shall not set forth any
of the financial terms of this Lease and shall set forth the Initial Term of
this Lease and shall provide that the memorandum of lease shall automatically
expire at the Expiration Date of the Term.


Section 32.05 – No
Waiver. Except as otherwise expressly provided in this Lease,
the failure of Landlord to enforce its rights for violation of, or to insist
upon the strict performance of any covenant, agreement, term, provision or
condition of this Lease, or any of the rules and regulations, shall not
constitute a waiver thereof, and Landlord shall have all remedies provided
herein and by applicable law with respect to any subsequent act which would
have originally constituted a violation. The receipt by Landlord or the payment
by Tenant, as the case may be, of rent with knowledge of the



 56
 






 



 


breach of any
covenant, agreement, term, provision or condition of this Lease shall not be
deemed a waiver of such breach. Except as otherwise expressly provided in this
Lease, no provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver be in a writing signed by the party against whom
enforcement shall be enforced. The remedies provided in this Lease shall be
cumulative and shall not in any way abridge, modify or preclude any other
rights or remedies to which Landlord may be entitled under this Lease, at law
or in equity.


Section 32.06 –
Landlord’s Consent. In any instance in which Landlord’s
consent, approval or other action or exercise of judgment or discretion shall
be made or shall be required by this Lease, or otherwise requested by Tenant,
and Tenant disputes Landlord’s reasonableness in granting, exercising, delaying
or withholding the same, Tenant in no event shall be entitled to make, nor
shall Tenant make, any claim for, and Tenant hereby waives, any claim for
damages or any remedy not specifically authorized herein; nor shall Tenant
claim any damages by way of setoff, counterclaim or defense but Tenant’s sole
remedy shall be an action or proceeding to enforce any such provision, or for
specific performance or declaratory judgment.


Section
32.07 – Counterparts. This Lease may be executed in multiple
counterparts, each of which shall be an original, and all of which shall
constitute one and the same instrument.


ARTICLE 33

ROOF RIGHTS; AIR RIGHTS


Section 33.01 –
Roof Rights. Provided that Landlord does not interfere with
Tenant’s use of the Demised Premises, Landlord shall retain rights to utilize
the roof and/or to lease rights to utilize the roof for the installation,
relocation or repair of transmitting/receiving antennae. Landlord shall require
Landlord’s contractors or agents which perform work on the Demised Premises
regarding the installation, relocation or repair of the antennae to maintain
insurance in a form and amount as are commonly maintained for such work in cases
of properties that are similarly situated, and further provided that Tenant,
MTA and MTA Bus are named as additional insureds, as their interest may appear
(during the Term of this Lease) on insurance policies maintained by those
contractors or agents which perform work on the Demised Premises regarding the
installation, relocation or repair of the antennae. Landlord shall, at its
expense, be responsible for obtaining all permits from all applicable agencies
in connection with utilization of the roof. Tenant shall cooperate with
Landlord in performing any alterations required to permit use of the roof by
Landlord. Landlord shall be responsible to make any roof repairs necessitated
by Landlord’s use of the roof. If it is reasonably determined by the Tenant that
Landlord’s antennae interferes with Tenant’s Permitted Use of the Demised
Premises, Landlord shall relocate the antennae within a reasonable time after
being notified by Tenant.



 57
 






 



 


Section
33.02 – Air Rights.


(a)   Landlord
shall retain air rights and transferable development rights (collectively “Air
Rights”) to the Demised Premises. Subject to the provisions of this Section
33.02 Landlord may transfer any and all Air Rights, either to a non-related
party or an affiliate, provided Landlord’s affiliate is an adjoining property
owner (if the adjoining ownership requirement is then existing under the Zoning
Resolution of the City of New York) and further provided that the offer to
purchase the Air Rights is a bona fide offer. Prior to transferring any Air Rights,
Landlord shall transmit a written notice to Tenant (the “Air Rights Request
Notice”) setting forth the material terms of the proposed transfer (the “Material
Terms”), no later than forty-five (45) days prior to the effective date of such
transfer. Tenant may by written notice to Landlord (the “Air Rights Response
Notice”) within forty-five (45) days of receipt of the Air Rights Request
Notice elect to either (i) approve the transfer, (ii) purchase the Air Rights
on the Material Terms, (iii) terminate the Lease or (iv) disapprove the
transfer, in which event Tenant, contemporaneously with the transmittal of the
Air Rights Response Notice, shall pay Landlord an amount equal to the Air
Rights Payment (as hereinafter defined). In the event Tenant elects either (ii)
or (iii) above, Landlord by written notice (the “Air Rights Withdrawal Notice”)
transmitted within thirty (30) days of Landlord’s receipt of the Air Rights
Response Notice, may withdraw the Air Rights Request Notice and Tenant shall
have no right to acquire the Air Rights or terminate the Lease, as the case may
be. In the event Tenant elects (ii) above, and Landlord does not transmit an
Air Rights Withdrawal Notice within the required time period, Tenant may assign
its right to acquire the Air Rights to the New York City Economic Development
Corporation (“EDC”).


(b)   The Air
Rights Payment shall be the amount equal to the consideration stated in the Air
Rights Request Notice multiplied by an amount equal to the Prime Rate plus 3%,
payable monthly for the balance of the Term and all Renewal Terms, which Air
Rights Payment shall be increased in the same percentage and contemporaneously
with the increased Fixed Rent under Section 3.01. If Tenant does not respond to
Landlord’s Air Rights Request Notice within forty-five (45) days of Tenant’s
receipt of the Air Rights Request Notice, Tenant shall be deemed to have
approved the Transfer. Landlord shall not seek Tenant’s approval for the
transfer of Air Rights for the first five (5) years of the Term and for the
first two (2) years of each Renewal Term. Landlord is permitted to transfer Air
Rights during the last five (5) years of the last Renewal Term without seeking
Tenant’s approval. If a Renewal Option is not exercised, Landlord shall not be
required to seek Tenant’s approval to transfer Air Rights. Under no
circumstances will the use of any Air Rights by Landlord or its transferee
interfere with the Tenant’s current operations.


ARTICLE 34

INVESTIGATIONS


Section 34.01 –
Cooperation. The parties to this agreement agree to cooperate
fully and faithfully with any investigation, audit or inquiry conducted by a
State of New York (State) or City of New York (City) governmental agency or
authority that is empowered directly or by designation to compel the attendance
of witnesses and to examine witnesses under oath, or conducted by the Inspector
General of a



 58
 






 



 


governmental
agency that is a party in interest to the transaction, submitted bid, submitted
proposal, contract, lease, permit, or license that is the subject of the
investigation, audit or inquiry.


Section 34.02 - Testimony


(a)   If any
person who has been advised that his or her statement, and any information from
such statement, will not be used against him or her in any subsequent criminal
proceeding refuses to testify before a grand jury or other governmental agency
or authority empowered directly or by designation to compel the attendance of
witnesses and to examine witnesses under oath concerning the award of or
performance under any transaction, agreement, lease, permit, contract, or
license entered into with the City, the State, or any political subdivision or
public authority thereof, or the Port Authority of New York and New Jersey, or
any local development corporation within the City, or any public benefit
corporation organized under the laws of the State of New York, or;


(b)   If any
person refuses to testify for a reason other than the assertion of his or her
privilege against self-incrimination in an investigation, audit or inquiry
conducted by a City or State governmental agency or authority empowered
directly or by designation to compel the attendance of witnesses and to take
testimony under oath, or by the Inspector General of the governmental agency
that is a party in interest in, and is seeking testimony concerning the award
of, or performance under, any transaction, agreement, lease, permit contract,
or license entered into with the City, the State, or any political subdivision
thereof or any local development corporation within the City, then;


Section 34.03 – Failure to Testify. The
commissioner or agency head whose agency is a party in interest to the
transaction, submitted bid, submitted proposal, contract, lease, permit, or
license shall convene a hearing, upon not less than five (5) days written
notice to the parties involved to determine if any penalties should attach for
the failure of a person to testify.


Section
34.04 - Penalties. The penalties which may attach after a
final determination by the commissioner or agency head may include but shall
not exceed:


(a)   The
disqualification for a period not to exceed five (5) years from the date of an
adverse determination for any person, or any entity of which such person was a
member at the time the testimony was sought, from submitting bids for, or transacting
business with, or entering into or obtaining any contract, lease, permit or
license with or from the City; and/or


(b)   The
cancellation or termination of any and all such existing City contracts,
leases, permits or licenses that the refusal to testify concerns and that have
not been assigned as permitted under this agreement, nor the proceeds of which
pledged, to an unaffiliated and unrelated institutional lender for fair value
prior to the issuance of the



 59
 






 



 


notice scheduling the
hearing, without the City incurring any penalty or damages on account of such
cancellation or termination; monies lawfully due for goods delivered, work
done, rentals, or fees accrued prior to the cancellation or termination shall
be paid by the City.


Section
34.05 – Agency Considerations. The commissioner or agency
head shall consider and address in reaching his or her determination and in
assessing an appropriate penalty the factors in paragraphs (a) and (b) below. He
or she may also consider, if relevant and appropriate, the criteria established
in paragraphs (c) and (d) below in addition to any other information which may
be relevant and appropriate:


(a)   The party’s
good faith endeavors or lack thereof to cooperate fully and faithfully with any
governmental investigation or audit, including but not limited to the
discipline, discharge, or disassociation of any person failing to testify, the
production of accurate and complete books and records, and the forthcoming
testimony of all other members, agents, assignees or fiduciaries whose
testimony is sought.


(b)   The relationship of the person who refused to
testify to any entity that is a party to the hearing, including, but not
limited to, whether the person whose testimony is sought has an ownership
interest in the entity and/or the degree of authority and responsibility the
person has within the entity.


(c)   The nexus
of the testimony sought to the subject entity and its contracts, leases,
permits or licenses with the City.


(d)   The effect a penalty may have on an
unaffiliated and unrelated party or entity that has a significant interest in
an entity subject to penalties under 1.4 above, provided that the party or
entity has given actual notice to the commissioner or agency head upon the
acquisition of the interest, or at the hearing called for in 1.3(a) above gives
notice and proves that such interest was previously acquired. Under either
circumstance the party or entity must present evidence at the hearing
demonstrating the potential adverse impact a penalty will have on such person
or entity.


Section
34.06 - Definitions.


(a)   The term “license”
or “permit” as used herein shall be defined as a license, permit, franchise or
concession not granted as a matter of right.


(b)   The term “person”
as used herein shall be defined as any natural person doing business alone or
associated with another person or entity as a partner, director, officer,
principal or employee.


(c)   The term “entity” as used herein shall be
defined as any firm, partnership, corporation, association, or person that receives
monies, benefits, licenses, leases, or permits from or through the City or
otherwise transacts business with the City.



 60
 






 



 


(d)   The term “member”
as used herein shall be defined as any person associated with another person or
entity as a partner, director, officer, principal or employee.


Section 34.07 -
Termination. In addition to and notwithstanding any
other provision of this Agreement, the Commissioner or agency head may in his
or her sole discretion terminate this Agreement upon not less than three (3)
days written notice in the event contractor fails to promptly report in writing
to the Commissioner of Investigation of the City of New York any solicitation
of money, goods, requests for future employment of other benefit or thing of
value, by or on behalf of any employee of the City or other person, firm,
corporation or entity for any purpose which may be related to the procurement
or obtaining of this Lease by the Landlord, or affecting the performance of
this Lease.


ARTICLE 35

SIGNIFICANT RELATED PARTY TRANSACTIONS


Section
35.01 – Significant Related Party Transactions. Landlord
shall be required to disclose and notify Tenant of any transactions with
significant related parties, including subsidiaries and affiliates of Landlord,
the costs of which are charged to Tenant as Rent or Additional Rent. Landlord
shall provide Tenant with written notice of such transactions upon submission
of invoices for rent or at the end of the calendar year in which the
transactions to be billed as rent were performed by significant related parties.
When such transactions occur, prices of same must be in line with normal
industry practice in New York City. Landlord’s failure to notify Tenant of such
related party transactions shall result in a disallowance of such costs that
would otherwise be billed as Rent. If such related party transactions occurred
and were disclosed, but it is found by Tenant that the costs thereof exceed
normal industry costs in an arms length third party transaction in New York
City, then such excessive charges shall be disallowed.


IN WITNESS WHEREOF, the
parties have executed this Agreement of Lease as of the day and year first
above written.


	
  

  	
  GREEN BUS HOLDING CORP., Landlord

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Jerome Cooper

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  CITY OF NEW YORK,

  
	
   

  	
  Tenant

  




 61
 






 



 


	
  

  	
  By:

  	
   

  	
  /s/ Lori Fierstein

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Lori Fierstein

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Deputy Commissioner

  	
   

  



 



 62