1290 ASSOCIATES,
Landlord
TO
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
Tenant
Lease
Dated as of July 20, 1995
TABLE OF CONTENTS
ARTICLE 1
Premises; Term; Use
1.01 Demise.
1.02 Term.
1.03 Relevant Date.
1.04 Tenant Delay.
1.05 Use.
1.06 Tenant's Right of First Offer.
ARTICLE 2
Rent
2.01 Rent.
2.02 Fixed Rent.
2.03 Additional Charges.
2.04 Tax Payments.
2.05 Operating Payments.
2.06 Tax and Operating Provisions.
2.07 Electric Charges.
2.08 Manner of Payment.
ARTICLE 3
Landlord Covenants
3.01 Office Space Services
3.02 Concourse Space Services
3.03 Other Building Services
3.04 General Provisions
ARTICLE 4
Leasehold Improvements; Tenant Covenants
4.01 Initial Improvements.
4.02 Alterations.
4.03 Landlord's and Tenant's Property.
4.04 Access and Changes to Building.
4.05 Repairs.
4.06 Compliance with Laws.
4.07 Tenant Advertising.
4.08 Right to Perform Tenant Covenants.
ARTICLE 5
Assignment and Subletting
5.01 Assignment; Etc.
5.02 Landlord's Right of First Offer.
5.03 Assignment and Subletting Procedures.
5.04 General Provisions.
5.05 Assignment and Sublease Profits.
ARTICLE 6
Subordination; Default; Indemnity
6.01 Subordination.
6.02 Estoppel Certificate.
6.03 Default.
6.04 Re-entry by Landlord.
6.05 Damages.
6.06 Other Remedies.
6.07 Right to Injunction.
6.08 Certain Waivers.
6.09 No Waiver.
6.10 Holding Over.
6.11 Attorneys' Fees.
6.12 Nonliability and Indemnification.
ARTICLE 7
Insurance; Casualty; Condemnation
7.01 Compliance with Insurance Standards.
7.02 Tenant's Insurance.
7.03 Subrogation Waiver.
7.04 Condemnation.
7.05 Casualty.
7.06 Certain Termination Payments.
7.07 Termination Rights As To Sublet Space.
ARTICLE 8
Miscellaneous Provisions
8.01 Notice.
8.02 Building Rules.
8.03 Severability.
8.04 Certain Definitions.
8.05 Quiet Enjoyment.
8.06 Limitation of Landlord's Personal Liability.
8.07 Counterclaims.
8.08 Survival.
8.09 Arbitration.
8.10 No Offer.
8.11 Captions; Construction.
8.12 Amendments.
8.13 Broker.
8.14 Merger.
8.15 Successors.
8.16 Applicable Law.
8.17 No Development Rights.
8.18 Parking.
8.19 Emergency Generator.
8.20 Signage.
8.21 Lobby Renovation.
8.22 Force Majeure.
8.23 Memorandum of Lease.
8.24 Major Tenant Rights.
8.25 Lobby Artwork.
ARTICLE 9
Renewal Right
9.01 Renewal Right.
9.02 Renewal Rent and Other Terms.
ARTICLE 10
Self-Help; Rent Abatement; Set-Off
10.01 Tenant's Right To Perform Landlord's Obligations.
10.02 Tenant Abatement Rights.
10.03 Tenant Termination Rights.
10.04 Tenant's Right to Interest on Late Payments.
10.05 Tenant's Set-Off Right.
10.06 Effect of Rejection by Landlord.
ARTICLE 11
Tenant Antenna
11.01 Tenant Antenna.
ARTICLE 12
Corporate Retention Benefits
12.01 Incentive Benefits.
EXHIBITS
A Description of Land
B Floor Plans
B-1 14th Floor
B-2 15th Floor
B-3 16th Floor
B-4 17th Floor
B-5 18th Floor
B-6 19th Floor
B-7 20th Floor
B-8 21st Floor
B-9 22nd Floor
B-10 12th Floor
B-11 13th Floor
B-12 11th Floor
B-13 Concourse Space
B-14 Sub-Cellar Space
B-15 Initial Possession Space
C Rules and Regulations
D Alterations Rules and Regulations
E Standard Cleaning Specifications
F Landlord's Work
G HVAC Specifications
H RSF and Tenant's Share
I Form of Landlord's Statement
J Electrical Specifications
K Form of Assumption Agreement
L Building Security Specifications
M Non-Disturbance and Attornment Agreement between Tenant and the
Indenture Trustee
N [Intentionally Omitted]
O Form of Non-Disturbance and Attornment Agreement for Superior Mortgages
P Condenser Water Specifications
Q Tenant's Required Work
R Elevator Specifications
S Locations for NYNEX Second Port of Entry
T Antenna Location
U Location of Benton Panels
V Exterior Signage Locations and Criteria
W Lobby Renovation Work
X HVAC Overtime Charge Formula
Y [Intentionally Omitted]
Z 19th Floor Radiator Covers and Grilles and Mullions
AA Exhibits Omitted from filing
INDEX OF DEFINED TERMS
Definition Where Defined
90 Day Offer Space Interval Section 1.06
AAA Section 2.07
Acceptance Notice Section 1.06
Actual Charge Section 2.07
ADA Exhibit F
Additional Charges Section 2.03
Adjusted Block A Fixed Relevant Date Section 1.03
Adjusted Block B Fixed Relevant Date Section 1.03
Adjusted Block C Fixed Relevant Date Section 1.03
Adjusted Concourse Fixed Relevant Date Section 1.03
Adjusted Fixed Relevant Date Section 1.03
Affiliate Section 5.01
Agency Section 12.01
Allowance Section 4.01
Alterations Section 4.02
Antenna Section 11.01
Applicable Allowance Section 1.03
Available Section 1.06
Base Cleaning Cost Section 3.04
Base Operating Amount Section 2.05
Base Operating Year Section 2.05
Base Tax Amount Section 2.04
Base Tax Year Section 2.04
Benton Section 8.25
Block A and B Allowance Section 4.01
Block A Relevant Date Section 1.03
Block A Fixed Relevant Date Section 1.03
Block A Rent Commencement Date Section 2.02
Block A Space Section 1.01
Block B Relevant Date Section 1.03
Block B Fixed Relevant Date Section 1.03
Block B Rent Commencement Date Section 2.02
Block B Space Section 1.01
Block C Allowance Section 4.01
Block C Relevant Date Section 1.03
Block C Fixed Relevant Date Section 1.03
Block C Rent Commencement Date Section 2.02
Block C Space Section 1.01
Blocks Section 1.01
Brokerage Agreement Section 8.13
Brokers Section 8.13
Building Recitals Business Days Section 3.04
Business Hours Section 3.04
Cafeteria Section 1.05
Casualty Section 7.05
Casualty Terminated Space Section 7.05
Commission Section 8.13
Commission Rent Credit Section 8.13
Companies Section 6.01
Competitor Section 5.02
Concourse Relevant Date Section 1.03
Concourse Rent Commencement Date Section 2.02
Concourse Space Section 1.01
Concourse Space Work Section 1.03
Contractor Section 7.05
Control Section 5.01
Curing Party Section 4.08
Deemed Termination Allowance Section 7.05
Delivery Condition Section 1.03
Delivered Partial Floor Section 1.03
Dependent Group Section 1.03
Direct Cleaning Notice Section 3.04
ELAS Section 8.20
EREIM Section 5.01
Essential Group Section 1.03
Estimate Section 7.05
Eviction Section 10.02
Excess Cleaners Section 3.04
Execution and Delivery Date Section 4.01
Expiration Date Section 1.02
Fair Market Rent Section 9.02
First Outside Date Section 7.05
First Rescission Date Section 1.06
Fixed Cleaning Rent Section 3.04
Fixed Relevant Date Section 1.03
Fixed Rent Section 2.02
Fixtures Section 4.03
Force Majeure Section 8.22
GAAP Section 2.05
Ground Lease Section 6.01
Holdover Excess Section 1.03
Holdover Percentage Section 6.10
Holdover Profit Section 1.06
Holdover Renewal Term Section 6.10
Identified Ancillary Uses Section 1.05
Improper Use Section 1.05
Includable Capital Improvements Section 2.05
Indenture Section 6.01
Initial Charge Section 2.07
Initially Named Tenant Section 5.04
Initial Possession Space Section 4.01
Interest Rate Section 4.08
Interruption Section 10.01
Land Recitals
Landlord Introduction;
Section 8.04
Landlord Delay Section 2.02
Landlord Indemnified Party Section 6.12
Landlord Obligation Areas Section 4.05
Landlord Services Section 3.01
Landlord's Acceptance Notice Section 5.02
Landlord's Determination Section 9.02
Landlord's New Lease Section 6.10
Landlord's Rate Section 2.07
Landlord's Statement Section 2.05
Landlord's Work Section 4.01
Late Delivery Terminated Space Section 1.03
Laws Section 4.06
Lease Introduction
Lobby Abatement Period Section 8.21
Lobby Renovation Work Section 8.21
Long Lead Work Section 7.05
Major Tenant Rights Section 8.24
Material Alteration Section 4.02
New Tenant Section 6.10
Non-Delivered Block Section 1.03
Non-Delivered Partial Floor Section 1.03
Notice Section 8.01
Offer Notice Section 1.06
Offer Period Section 1.06
Offer Space Section 1.06
Offer Space Option Section 1.06
Office Space Section 1.01
Offset Amount Section 10.05
Offset Notice Section 10.05
OS Inclusion Date Section 1.06
Operating Denominator Section 2.05
Operating Expense Cutoff Date Section 8.04
Operating Expenses Section 2.05
Operating Payment Section 2.05
Operating Year Section 2.05
Other Affected Space Section 1.03
Phase I Lobby Renovation Work Section 8.21
Phase I Target Date Section 8.21
Phase II Lobby Renovation Work Section 8.21
Phase II Target Date Section 8.21
Postponement Period Section 1.05
Preceding Operating Year Section 8.04
Premises Section 1.01
Primary Concourse Space Section 1.01
Primary Portion Section 1.03
Prime Rate Section 4.08
Project Recitals
Punch List Items Section 1.03
Qualifying Condition Section 1.03
Qualifying Transactions Section 5.03
Records Section 2.05
Relevant Date Section 1.03
Renewal Notice Section 9.01
Renewal Option Section 9.01
Renewal Percentage Section 9.02
Renewal Premises Section 9.01
Renewal Term Section 9.01
Rent Section 2.01
Rent Commencement Date Section 2.02
Rent Notice Section 9.02
Required Restoration Work Section 7.05
Rescission Acceleration Notice Section 1.06
Rescission Notice Section 1.06
Rescission Right Section 1.06
Second Outside Date Section 7.05
Second Tier Sublease Section 5.04
Secondary Concourse Space Section 1.01
Secondary Portion Section 1.03
Sub-Cellar Space Section 4.01
Sublet Rent Section 5.02
Sublet Space Section 5.02
Sublet Term Section 5.02
Substantial Completion Date Section 7.05
Successor Landlord Section 6.01
Superior Lease Section 6.01
Superior Lessor Section 6.01
Superior Mortgage Section 6.01
Superior Mortgagee Section 6.01
Supervisory Fee Section 3.04
Survey Notice Section 2.07
Target Date Section 1.06
Tax and Operating Payments Section 8.21
Tax Bill Section 2.04
Tax Denominator Section 2.04
Tax Payment Section 2.04
Tax Payment Date Section 2.04
Tax Statement Section 2.04
Tax Year Section 2.04
Taxes Section 2.04
Tenant Introduction Tenant Delay Section 1.04
Tenant Indemnified Party Section 6.12
Tenant's Basic Cost Section 5.05
Tenant's Determination Section 9.02
Tenant's New Lease Section 6.10
Tenant's Notice Section 9.02
Tenant's Offer Notice Section 5.02
Tenant's Operating Share Section 2.05
Tenant's Parking Spaces Section 8.18
Tenant's Property Section 4.03
Tenant's Qualified Sublet Cost Section 5.02
Tenant's Required Work Section 4.01
Tenant's Statement Section 2.05
Tenant's Tax Share Section 2.04
Term Section 1.02
Terminated Space Section 10.03
Termination Section 6.04
Termination Notice Section 7.05
Transfer Notice Section 5.03
Unforeseen Condition Section 4.01
Unpaid Commission Section 8.13
Untenantable Section 7.05
Work Exhibit D
LEASE (this lease, including all Exhibits attached to this lease, is called
the "Lease"), dated as of July 20, 1995, between 1290 ASSOCIATES ("Landlord"), a
New York partnership whose address is c/o Olympia & York Companies (U.S.A.), 237
Park Avenue, New York, New York 10017, and THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES ("Tenant"), a New York corporation, whose address is 787
Seventh Avenue, New York, New York 10019 prior to Tenant's occupancy of any
portion of the Premises for the conduct of business therein, and thereafter
Tenant's address shall be that of the Building.
W I T N E S S E T H WHEREAS,
Landlord is willing to lease to Tenant and Tenant is willing to hire from
Landlord, on the terms hereinafter set forth, certain space in the office
building located at 1290 Avenue of the Americas, New York, New York (the
"Building") on the land more particularly described in Exhibit A (the "Land";
the Land and the Building are collectively called the "Project").
NOW, THEREFORE, Landlord and Tenant agree as follows:
ARTICLE 1
Premises; Term; Use
1.01 Demise. (a) Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, subject to the terms and conditions of this Lease, the following:
(i) the entire 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st and 22nd floors of
the Building substantially as shown on the plans thereof attached hereto as
Exhibits B-1 through B-9 (collectively, the "Block A Space"), (ii) the entire
12th and 13th floors of the Building substantially as shown on the plans thereof
attached hereto as Exhibits B-10 and B-11 (collectively, the "Block B Space"),
(iii) the entire 11th floor of the Building substantially as shown on the plan
thereof attached hereto as Exhibit B-12 (the "Block C Space"; the Block A Space,
the Block B Space and the Block C Space are individually "Blocks" and
collectively, the "Office Space"), and (iv) the portion of the concourse floor
of the Building substantially as shown hatched on the plan thereof attached
hereto as Exhibit B-13 (the "Primary Concourse Space") and the portion of the
concourse floor of the Building substantially as shown cross-hatched on the plan
thereof attached hereto as Exhibit B-13 (the "Secondary Concourse Space", the
Primary Concourse Space and the Secondary Concourse Space are collectively
called the "Concourse Space" and the Office Space and the Concourse Space are
collectively called the "Premises").
(b) Landlord and Tenant confirm that (i) the Office Space is conclusively
deemed to contain 502,480 rentable square feet and (ii) the Concourse Space and
each floor comprising the Office Space is conclusively deemed to contain the
number of rentable square feet specified therefor on Exhibit H attached hereto.
1.02 Term. (a) The term of this Lease (the "Term") shall commence on the
date of this Lease (subject to the proviso in Section 1.02(b) below) and shall
end with respect to the entire Premises, unless sooner terminated as herein
provided, on the last day of the calendar month in which occurs the 16th
anniversary of the day preceding the first Relevant Date applicable to any space
included in the Block A Space (such date, as the same may be extended pursuant
to Article 9, is called the "Expiration Date").
(b) For all purposes of this Lease (including, without limitation, for the
purposes of Section 365(h) of the Federal Bankruptcy Code), but subject to the
proviso below, the Term shall be deemed to have commenced with respect to each
of the Blocks and the Concourse Space on the date of this Lease; provided, that
until the respective Relevant Date with respect to each Block (or the applicable
portion thereof) and the Concourse Space (i) this Lease, any leasehold estate
created in such Block (or portion thereof) and the Concourse Space hereby, any
rights to possession, use and enjoyment of such Block (or portion thereof) and
the Concourse Space created or derived herefrom, and all of the terms,
covenants, conditions and agreements of this Lease are hereby made, and shall
continue to be, subject and subordinate to the leasehold estates of all existing
tenants in such Block (or
portion thereof) and the Concourse Space, their rights of possession, use and
enjoyment of such Block (or portion thereof) and the Concourse Space created or
derived therefrom and all of the terms, covenants, conditions and agreements of
their leases thereto, (ii) except for the Initial Possession Space (which Tenant
may, subject to the further provisions of this Lease, possess, use and occupy
from and after the date of this Lease), Tenant shall not possess, use or occupy
such Block (or portion thereof) and the Concourse Space, (iii) Tenant shall have
no right to any rent, income or profits accruing with respect to such Block (or
portion thereof) and the Concourse Space, whether from the leasehold estates of
such existing tenants or otherwise, (iv) Landlord's covenant of quiet enjoyment
set forth in Section 8.05 shall not apply to such Block (or portion thereof) and
the Concourse Space and (v) Tenant shall have no obligations under this Lease
with respect to such Block (or portion thereof) and the Concourse Space, except
that in the case of the Initial Possession Space, Tenant shall comply with all
of Tenant's obligations under this Lease with respect to such space from and
after the date that Tenant takes possession of such space for the performance of
Alterations or for any other purpose.
(c) On the Adjusted Fixed Relevant Date with respect to each Block and the
Concourse Space, Landlord shall deliver such Block or the Concourse Space, as
the case may be, to Tenant; provided, that if Landlord fails timely to deliver
any Block or the Concourse Space on the applicable Adjusted Fixed Relevant Date,
Tenant's sole rights and remedies shall be as expressly set forth elsewhere in
this Lease, and this Section 1.02(c) shall not be construed to create any
further rights or remedies in favor of Tenant under this Lease or otherwise if
Landlord so fails timely to deliver any Block or the Concourse Space.
1.03 Relevant Date. (a) (i) "Block A Relevant Date" means the later of (A)
January 1, 1996 (the "Block A Fixed Relevant Date") and (B) the later of (x) the
day on which the Block A Space (or the applicable portion thereof) is delivered
to Tenant in Delivery Condition and (y) the date specified by Landlord in a
notice to Tenant as the date on which Landlord anticipates in good faith that
such space will be delivered in Delivery Condition, which notice shall be given
not less than 10 days prior to such date; provided, that if, after the giving of
such notice, Landlord believes that the actual delivery date will be later than
the date set forth in such notice, then Landlord shall keep Tenant advised of
the status of such delay and, if the actual delivery date shall be more than 2
Business Days later than the date set forth in such notice, Landlord shall give
to Tenant not less than 2 Business Days prior notice of the actual delivery
date. (ii) "Block B Relevant Date" means the later of (A) October 1, 1996 (the
"Block B Fixed Relevant Date") and (B) the later of (x) the day on which the
Block B Space (or the applicable portion thereof) is delivered to Tenant in
Delivery Condition and (y) the date specified by Landlord in a notice to Tenant
as the date on which Landlord anticipates in good faith that such space will be
delivered in Delivery Condition, which notice shall be given not less than 10
days prior to such date; provided, that if, after the giving of such notice,
Landlord believes that the actual delivery date will be later than the date set
forth in such notice, then Landlord shall keep Tenant advised of the status of
such delay and, if the actual delivery date shall be more than 2 Business Days
later than the date set forth in such notice, Landlord shall give to Tenant not
less than 2 Business Days prior notice of the actual delivery date. If the Block
B Space is in Delivery Condition prior to October 1, 1996, Landlord shall
deliver such Block to Tenant at such time; provided, that (I) Tenant shall not
be obligated to accept delivery of such Block prior to October 1, 1996 and (II)
Landlord shall not be obligated to expend any additional sums to enable Landlord
to deliver such Block to Tenant prior to October 1, 1996. (iii) "Block C
Relevant Date" means the later of (A) March 1, 1999 (the "Block C Fixed Relevant
Date") and (B) the later of (x) the day on which the Block C Space (or the
applicable portion thereof) is delivered to Tenant in Delivery Condition and (y)
the date specified by Landlord in a notice to Tenant as the date on which
Landlord anticipates in good faith that such space will be delivered in Delivery
Condition, which notice shall be given not less than 10 days prior to such date;
provided, that if, after the giving of such notice, Landlord believes that the
actual delivery date will be later than the date set forth in such notice, then
Landlord shall keep Tenant advised of the status of such delay and, if the
actual delivery date shall be more than 2 Business Days later than the date set
forth in such notice, Landlord shall give to Tenant not less than 2 Business
Days prior notice of the actual delivery date (each of the Block A Relevant
Date, the Block B Relevant Date and the Block C Relevant Date is called a
"Relevant Date" and each of the Block A Fixed Relevant Date, the Block B Fixed
Relevant Date and the Block C Fixed Relevant Date is called a "Fixed Relevant
Date"). (iv) Promptly after the determination of the first Relevant Date
applicable to any space included in the Block A Space in accordance with this
Section 1.03, Landlord shall notify Tenant thereof and Landlord and Tenant shall
confirm such Block A Relevant Date and the Expiration Date by a separate
instrument. Promptly after the determination of each Relevant Date applicable to
any space included in the Block A Space, the Block B Space and the Block C Space
in accordance with this Section 1.03, Landlord shall notify Tenant thereof and
Landlord and Tenant shall confirm such Relevant Date by a separate instrument.
The failure to execute and deliver any such instrument confirming such dates
shall not affect the occurrence of any such dates in accordance with this Lease.
Any dispute as to any Relevant Date shall be determined by arbitration in
accordance with Section 8.09. Pending the resolution of any dispute as to a
Relevant Date, Landlord's determination of such Relevant Date shall govern,
without prejudice to Tenant's position. If it is resolved that such Relevant
Date was not the date so fixed by Landlord, any Rent paid by Tenant to Landlord
with respect to the applicable space for periods prior to the proper Relevant
Date, together with interest thereon at the Prime Rate from the date paid by
Tenant until credited by Landlord, shall be credited by Landlord against future
installments of Fixed Rent and/or Additional Charges payable by Tenant.
(b) "Delivery Condition" means, with respect to any space comprising the
Office Space, that Landlord's Work with respect to such space is deemed to have
been substantially completed in accordance with this Section 1.03(b). Landlord's
Work with respect to any space comprising the Office Space shall be deemed to
have been substantially completed on the date upon which such Landlord's Work
has been completed, other than (i) minor details or adjustments ("Punch List
Items"), but only if such details or adjustments shall not interfere in any
material respect with Tenant's ability to (A) prepare any portion of such space
for Tenant's initial occupancy thereof, or (B) thereafter use and occupy the
same for the ordinary conduct of Tenant's intended use of such space (as such
intended use is shown on, or reasonably inferable from, Tenant's then current
plans and specifications with respect to Tenant's initial Alterations therein);
provided, that such intended use is permitted pursuant to Section 1.05, (ii)
those items which, as set forth in Exhibit F, are not a condition to delivery of
such space and (iii) any part of Landlord's Work if and to the extent the same
is not completed due to Tenant Delay. Landlord and Tenant, within 5 days after
the Relevant Date with respect to any Block, shall jointly inspect such Block
and note any Punch List Items with respect to such Block. Landlord shall
complete any and all such Punch List Items and any such other incomplete
portions of Landlord's Work with respect to such Block described in clauses
(ii), and (iii) above within 30 days after such joint inspection, subject to
delays due to Force Majeure, Tenant Delays and the inability to complete any
such items which cannot with diligence be so completed within 30 days. In
performing such Punch List Items and such other incomplete portions of
Landlord's Work, Landlord shall use commercially reasonable efforts to minimize
any interference with Tenant's performance of its initial Alterations; provided,
that Landlord shall not be required to use overtime labor in performing the
same.
(c) If Landlord fails to deliver to Tenant, in Delivery Condition (i) the
Block A Space on or before October 1, 1996, subject to Section 1.03(d) below or
(ii) the Block B Space on or before July 1, 1997 (as the dates in clauses (i)
and (ii) may be extended to the extent of any Tenant Delay applicable to the
space in question), then Tenant shall have the right, by giving notice to
Landlord on or before the earlier to occur of (x) the date that Landlord
delivers the applicable Block to Tenant in Delivery Condition and (y) the date
that is 30 days after the applicable date specified in clause (i) or (ii) above
(time of the essence), to terminate this Lease. In addition, if Landlord fails
to deliver to Tenant all or any portion of (A) the Block A Space on or before
October 1, 1996, subject to Section 1.03(d) below, (B) the Block B Space on or
before July 1, 1997 or (C) the Block C Space on or before December 1, 1999 (as
the dates in clauses (A), (B) and (C) may be extended to the extent of any
Tenant Delay applicable to the space in question), then Tenant shall have the
right, by giving notice to Landlord on or before the earlier to occur of (1) the
date that Landlord delivers the applicable Block to Tenant in Delivery Condition
and (2) the date that is 30 days after the applicable date specified in clause
(A), (B) or (C) above (time of the essence), to terminate this Lease with
respect to, at Tenant's option, (I) the entire applicable Block or (II) the
portion of the applicable Block which Landlord failed to deliver to Tenant in
Delivery Condition on or before such date. In the case of a partial termination,
Tenant shall specify in such termination notice the space (the "Late Delivery
Terminated Space") with respect to which Tenant is terminating this Lease in
accordance with this Section 1.03(c). If Tenant timely gives a termination
notice pursuant to this Section 1.03(c) and such termination is not by reason of
Landlord's willful refusal to prepare any space so that it is in Delivery
Condition or to deliver to Tenant any space that is in Delivery Condition, then,
as Tenant's sole remedy, Tenant shall be entitled to retain so much of the
Applicable Allowance as is equal to the sum of (xx) a portion of the costs and
expenses incurred by Tenant in connection with entering into this Lease which
bears the same proportion to the total of all such costs and expenses as the
rentable square footage of the Late Delivery Terminated Space bears to the total
rentable square footage of the Block A Space, the Block B Space and the Block C
Space, (yy) the cost and expenses of moving into and preparing for occupancy the
applicable Late Delivery Terminated Space (excluding all actual costs incurred
to purchase and install Tenant's Property) and (zz) 10% of the amounts described
in clauses (xx) and (yy) above, and any such termination notice shall be null
and void unless, together with such notice, Tenant pays to Landlord an amount
equal to the Applicable Allowance less such sum and delivers to Landlord paid
invoices or other evidence reasonably satisfactory to Landlord with respect to
such costs and expenses; provided, that if Landlord disputes the amount of any
such payment by Tenant and it is subsequently determined that the amount so paid
by Tenant was less than the amount due to Landlord hereunder, then the
termination of this Lease as to the applicable Late Delivery Terminated Space
shall nevertheless be effective and Tenant shall pay to Landlord the amount of
such underpayment together with interest at the Prime Rate (or the Interest Rate
if it is determined by an arbitration in accordance with Section 8.09 that such
underpayment was made by Tenant in bad faith) from the date of the giving of the
applicable termination notice until paid. If Tenant timely gives a termination
notice pursuant to this Section 1.03(c) and such termination is by reason of
Landlord's willful refusal to prepare any space so that it is in Delivery
Condition or to deliver to Tenant any space that is in Delivery Condition (it
being agreed that, to the extent that any failure by Landlord to comply with
Landlord's obligations is by reason of Force Majeure, including, without
limitation, by reason of the holdover in any space of another tenant without the
consent of Landlord, such failure shall not constitute Landlord's "willful
refusal"), then, without limiting Tenant's other rights and remedies, Tenant
shall be entitled to retain the entire Applicable Allowance. "Applicable
Allowance" means (aa) the Block A and B Allowance in the case of a termination
of this Lease, (bb) the portion of the Block A and B Allowance allocable to the
Block A Space in the case of a termination of this Lease as to the Block A Space
or any portion thereof, (cc) the portion of the Block A and B Allowance
allocable to the Block B Space in the case of a termination of this Lease as to
the Block B Space or any portion thereof and (dd) the Block C Allowance in the
case of a termination of this Lease as to the Block C Space or any portion
thereof. For purposes of clauses (bb) and (cc) above, $13,804,974 of the Block A
and B Allowance shall be deemed allocable to the Block A Space and $6,496,459 of
the Block A and B Allowance shall be deemed allocable to the Block B Space. If
Tenant timely gives a termination notice pursuant to this Section 1.03(c), this
Lease shall terminate in its entirety or with respect to the Late Delivery
Terminated Space, as applicable, on the 20th day after such notice is given by
Tenant and Tenant shall surrender the Premises, or the Late Delivery Terminated
Space, as applicable, to Landlord in accordance with the terms of this Lease.
Upon a termination of this Lease with respect to less than the entire Premises,
there shall be a pro rata reduction of Tenant's Rent obligations to reflect such
partial termination and Landlord and Tenant shall promptly enter into an
instrument evidencing such partial termination and the reduced rentable area of
the Premises (such rentable area to be determined in a manner consistent with
the method used in calculating the rentable area of the Premises initially
demised under this Lease); provided, that the failure to enter into such
instrument shall not affect the effectiveness of such partial termination.
(d) If the 22nd floor of the Building is to be occupied by EREIM and on or
before the date that this Lease would otherwise terminate as to all or any
portion of the Premises by reason of Landlord's failure timely to deliver the
Block A Space to Tenant in Delivery Condition, Landlord delivers to Tenant in
Delivery Condition the Block A Space other than the 22nd floor (the "Secondary
Portion"), then (i) the Block A Relevant Date applicable to the portion of the
Block A Space other than the Secondary Portion (the "Primary Portion") shall be
deemed to have occurred on the date Landlord so delivers to Tenant the Primary
Portion, (ii) the Block A Relevant Date applicable to the Secondary Portion
shall occur upon the date Landlord delivers to Tenant in Delivery Condition the
Secondary Portion, and the Rent Commencement Date applicable to the Secondary
Portion shall be determined separately and shall occur the same period of time
after the Block A Relevant Date applicable to the Secondary Portion as the
period of time that the Rent Commencement Date applicable to the Primary Portion
occurs after the Block A Relevant Date applicable to the Primary Portion and
(iii) notwithstanding anything to the contrary contained in this Section 1.03,
Tenant shall have no right by reason of the late delivery by Landlord of the
Secondary Portion to decline to accept delivery of the Primary Portion or to
terminate this Lease as to all or any portion of the Premises, except that
Tenant shall have the right, subject to and in accordance with the second
sentence of Section 1.03(c) above, to terminate this Lease with respect only to
all or any Secondary Portion which has not been delivered to Tenant in Delivery
Condition on or before October 1, 1996 (as such date may be extended to the
extent of any Tenant Delay applicable to such Secondary Portion).
(e) If, for any reason, Landlord fails to deliver to Tenant all or any
portion of the Block A Space in Delivery Condition on or before the Block A
Fixed Relevant Date, as extended by any Tenant Delay (the "Adjusted Block A
Fixed Relevant Date") (and, provided that Tenant shall have declined to accept
possession of any portion of the Block A Space that Landlord may have tendered
to Tenant in Delivery Condition so that Tenant shall not then be in possession
of any portion of the Office Space), then the Block A Rent Commencement Date
shall be postponed by (i) 1 day for each day that such failure continues beyond
the Adjusted Block A Fixed Relevant Date to and including the 30th day after the
Adjusted Block A Fixed Relevant Date, (ii) 1.1 days for each day that such
failure continues beyond the 30th day after the Adjusted Block A Fixed Relevant
Date to and including the 60th day after the Adjusted Block A Fixed Relevant
Date, (iii) 1.2 days for each day that such failure continues beyond the 60th
day after the Adjusted Block A Fixed Relevant Date to and including the 90th day
after the Adjusted Block A Fixed Relevant Date, (iv) 1.3 days for each day that
such failure continues beyond the 90th day after the Adjusted Block A Fixed
Relevant Date to and including the 120th day after the Adjusted Block A Fixed
Relevant Date, (v) 1.4 days for each day that such failure continues beyond the
120th day after the Adjusted Block A Fixed Relevant Date to and including the
150th day after the Adjusted Block A Fixed Relevant Date and (vi) 1.5 days for
each day that such failure continues beyond the 150th day after the Adjusted
Block A Fixed Relevant Date. For purposes of this Section 1.03(e), Tenant's
right to use and occupy the Initial Possession Space prior to the Relevant Date
applicable to the Initial Possession Space shall not be construed so as to
render Tenant in possession of a portion of the Office Space.
(f) If, for any reason, Landlord fails to deliver to Tenant in Delivery
Condition (i) a portion of the Block A Space on or before the Adjusted Block A
Fixed Relevant Date, but Tenant shall at such time have accepted possession of
any one or more portions of the Block A Space that Landlord may have tendered to
Tenant so that Tenant shall then be in possession of a portion, but not all of,
the Block A Space, and/or (ii) all or any portion of the Block B Space or the
Block C Space on or before the Fixed Relevant Date applicable to such Block, as
extended by any Tenant Delay applicable to such Block (the "Adjusted Block B
Fixed Relevant Date" and the "Adjusted Block C Fixed Relevant Date",
respectively; each of the Adjusted Block A Fixed Relevant Date, the Adjusted
Block B Fixed Relevant Date and the Adjusted Block C Fixed Relevant Date is
called an "Adjusted Fixed Relevant Date"), then the Rent Commencement Date
applicable to such Block or portion thereof that was not delivered by Landlord
(or such portion of a Block as may have been tendered by Landlord, but not
accepted by Tenant) shall be postponed by 1.5 days for each day that such
failure continues beyond the applicable Adjusted Fixed Relevant Date. If the
space that Landlord so failed to deliver to Tenant or Tenant so failed to accept
from Landlord constitutes less than a full floor (a "Non-Delivered Partial
Floor") (i.e., Landlord shall have tendered to Tenant delivery of a partial
floor and Tenant shall have accepted delivery of such partial floor (a
"Delivered Partial Floor")), then (A) subject to the following proviso, the Rent
Commencement Date applicable to the Delivered Partial Floor shall not be
postponed by reason of such failure to deliver the Non-Delivered Partial Floor,
and the Rent Commencement Date applicable to such Non-Delivered Partial Floor
only shall be postponed by 1.5 days for each day that such failure continues
beyond the applicable Adjusted Fixed Relevant Date; provided, that if (x) as
shown on, or reasonably inferable from, Tenant's then current plans and
specifications for such Non-Delivered Partial Floor, such Non-Delivered Partial
Floor was to be occupied by a group of Tenant's employees that was also going to
occupy the Delivered Partial Floor, (y) upon substantial completion of Tenant's
initial Alterations in the Delivered Partial Floor, such group does not occupy
any portion of the Non-Delivered Partial Floor or the Delivered Partial Floor or
any other portion of the Premises and (z) Tenant does not otherwise occupy the
Delivered Partial Floor, then the Rent Commencement Date with respect to the
Delivered Partial Floor shall also be delayed for so long as the Rent
Commencement Date applicable to such Non-Delivered Partial Floor is delayed;
provided, further, that if such group occupies any portion of the Premises, or
if Tenant occupies such Delivered Partial Floor prior to the date that Landlord
delivers such Non-Delivered Partial Floor to Tenant, then the Rent Commencement
Date applicable to such Delivered Partial Floor shall occur as of the date of
such occupancy. Notwithstanding the foregoing, if upon substantial completion of
Tenant's initial Alterations in the Delivered Partial Floor, Tenant does occupy
the Delivered Partial Floor, then Landlord shall reimburse Tenant for any
incremental costs incurred by Tenant by reason of the delivery by Landlord, and
build-out and occupancy by Tenant of such partial floor (in excess of the costs
that would have been incurred by Tenant to build out such portion of the floor
had Landlord delivered to Tenant the full floor when required to do so pursuant
to this Section 1.03), such reimbursement to be made within 30 days after
delivery by Tenant to Landlord of reasonable substantiation of such incremental
costs. Nothing contained in this Section 1.03(f) shall be construed to obligate
Tenant to accept delivery by Landlord of a partial floor where Landlord's
obligation is to deliver an entire floor. For purposes of Section 1.03(f)(i),
Tenant's right to use and occupy the Initial Possession Space prior to the
Relevant Date applicable to the Initial Possession Space shall not be construed
so as to render Tenant in possession of a portion of the Block A Space.
(g) If (i) Landlord fails to deliver to Tenant any Block in Delivery
Condition on or before the Adjusted Fixed Relevant Date for such Block (the
"Non-Delivered Block"), (ii) as shown on, or reasonably inferable from, Tenant's
then current plans and specifications for such Non-Delivered Block, such
Non-Delivered Block was to be occupied by a group of Tenant's employees (an
"Essential Group") who are an essential part of the conduct of Tenant's normal
business operations to be conducted at the Premises, such that there would be
significant hardship to the conduct of Tenant's normal business operations to be
conducted at the Premises if such Essential Group were not located at the
Premises, (iii) as shown on, or reasonably inferable from, such then current
plans and specifications, either such Essential Group, or another group of
Tenant's employees which is dependent upon such Essential Group and which would
suffer significant hardship to the conduct of such group's normal business
operations to be conducted at the Premises if such Essential Group is not
operating in the Premises (a "Dependent Group"), was going to occupy other space
which Landlord had previously delivered to Tenant in accordance with the terms
of this Lease (the "Other Affected Space"), (iv) at the time of delivery to
Tenant of the Other Affected Space, Tenant notified Landlord that such space
constitutes Other Affected Space for purposes of this Section 1.03(g), (v)
neither such Essential Group nor any such Dependent Group occupies any portion
of the Non-Delivered Block, the Other Affected Space or any other portion of the
Premises and (vi) Tenant does not otherwise occupy the Other Affected Space,
then the Rent Commencement Date with respect to such Other Affected Space shall
also be delayed for so long as the Rent Commencement Date applicable to such
Non-Delivered Block is delayed; provided, further, that if such Essential Group
and/or such Dependent Group occupies any portion of the Premises, or if Tenant
occupies such Other Affected Space prior to the date that Landlord delivers such
Non-Delivered Block to Tenant, then the Rent Commencement Date applicable to
such Other Affected Space shall occur as of the date of such occupancy.
(h) If Landlord shall be unable to deliver possession of any Block to
Tenant on or before the Adjusted Fixed Relevant Date for such Block by reason of
a holdover tenancy in all or any portion of such Block, (i) Landlord shall use
commercially reasonable efforts (including the commencement and diligent
prosecution of summary dispossess or other appropriate proceedings) to terminate
such holdover tenancy and (ii) provided that Tenant shall not exercise any
termination right that Tenant may have pursuant to this Section 1.03 with
respect to such Block or this Lease, Landlord shall pay to Tenant any Holdover
Excess actually received by Landlord from the tenant holding over in such Block,
such payment to be made by Landlord to Tenant within 30 days after Landlord
actually receives such Holdover Excess from such holdover tenant (but in no
event earlier than the Relevant Date with respect to such Block). "Holdover
Excess" means, with respect to any holdover tenant in any space comprising a
Block, the excess, if any, of (A) all moneys actually paid by such holdover
tenant to Landlord with respect to the holdover period, other than amounts
representing a reimbursement to Landlord of Landlord's expenses (e.g., payments
in respect of electricity) over (B) the sum of (x) the value of any deferral of
the Rent Commencement Date with respect to such Block pursuant to this Section
1.03 by reason of such holdover (e.g., if a Rent Commencement Date is deferred
by 1 day by reason of a holdover, the value of such deferral shall be equal to
the Rent which would have been payable by Tenant for such day but for such
deferral with respect to all of the applicable space with respect to which the
Rent Commencement Date is so deferred), plus (y) any amounts which, pursuant to
the provisions of this Lease, become payable by Landlord to Tenant by reason of
the late delivery of the applicable space as a result of such holdover, plus (z)
all unreimbursed costs and expenses actually incurred by Landlord in terminating
such holdover tenancy.
(i) With respect to the Concourse Space, the Term shall commence on the
date (the "Concourse Relevant Date") that Landlord delivers to Tenant vacant
possession of such space in Qualifying Condition, but in no event earlier than
the first Relevant Date applicable to any space included in the Block A Space.
If, for any reason, Landlord fails to deliver to Tenant all or any portion of
the Concourse Space in Qualifying Condition on or before January 1, 1996, as
extended by any Tenant Delay (the "Adjusted Concourse Fixed Relevant Date"),
then the Concourse Rent Commencement Date shall be postponed by 1.5 days for
each day that such failure continues beyond the Adjusted Concourse Fixed
Relevant Date. "Qualifying Condition" means, with respect to the Concourse
Space, that the Concourse Space Work is deemed to have been substantially
completed in accordance with Section 1.03(b) (other than the first sentence
thereof); provided, that for purposes of this Section 1.03(i) all references in
Section 1.03(b) to "Landlord's Work" shall be deemed to be replaced by
"Concourse Space Work" and all references in Section 1.03(b) to "Office Space"
or "Block" shall be deemed to be replaced by "Concourse Space". "Concourse Space
Work" means (A) to the extent applicable to the Concourse Space, the work
described in Paragraphs 1 (which shall include demolition of the concrete ramp
in the Primary Concourse Space; provided, that Landlord shall not be required to
demolish or relocate any of the items described in said Paragraph 1 that are
used by (or reserved for use by) other tenants or occupants of the Building) 2,
8, 9, 11 and 13 of Exhibit F annexed hereto, (B) in performing the demolition
work with respect to the bathrooms located in the Concourse Space, the capping
of the plumbing lines in such bathrooms, (C) the provision of an HVAC supply
duct and return opening to the demising wall of the Concourse Space or within
such space and (D) the construction of a Building standard demising wall on the
westerly side of the Primary Concourse Space. As part of Tenant's initial
Alterations to the Concourse Space, Tenant shall have the right to tie into the
sprinkler loop located on the concourse floor of the Building.
(j) Provided that any Block delivered by Landlord to Tenant is in Delivery
Condition, Tenant shall accept such Block in its "as is" condition on the date
of such delivery. Provided that the Concourse Space is in Qualifying Condition
when delivered by Landlord to Tenant, Tenant shall accept such space in its "as
is" condition on the date of such delivery. The provisions of this Section
1.03(j) shall not be construed to negate or diminish (i) Landlord's obligation
to thereafter complete (A) those items of Landlord's Work which, in accordance
with Exhibit F, are not a condition to delivery of the Block in question, (B)
any incomplete Punch List Items with respect to the Block in question or (C)
those items, if any, of Landlord's Work which, in accordance with Exhibit F, are
a condition to delivery of the Block in question but which Tenant may have
hereafter agreed to allow Landlord to complete after delivery or (ii) Landlord's
repair and maintenance obligations as set forth elsewhere in this Lease.
(k) Except as may be expressly set forth in this Section 1.03, if, for any
reason, Landlord shall be unable to deliver possession of any Block to Tenant on
or before the Adjusted Fixed Relevant Date for such Block, the validity of this
Lease shall not be impaired, nor shall the Term be extended, by reason thereof,
and (unless Landlord willfully refuses to prepare any Block so that it is in
Delivery Condition or to deliver to Tenant any Block that is in Delivery
Condition) Landlord shall have no liability to Tenant therefor. This Section
1.03 shall be an express provision to the contrary for purposes of Section 223-a
of the New York Real Property Law and any other law of like import now or
hereafter in effect.
(l) Except as provided in Section 1.03(d) with respect to the Primary
Portion or the Secondary Portion, nothing contained in this Section 1.03 shall
be construed to permit delivery by Landlord to Tenant, or to obligate Tenant to
accept delivery by Landlord, of a partial Block (except where Tenant has
previously accepted delivery of a partial Block and the partial Block then being
delivered by Landlord constitutes the remainder of such Block).
1.04 Tenant Delay. "Tenant Delay" means any delay which Landlord may
encounter in the performance of Landlord's obligations under this Lease if and
to the extent caused by any act or (where Tenant has an affirmative obligation
to act pursuant to the terms of this Lease) omission of Tenant, its agents or
contractors, including, without limitation, delays by Tenant in submission of
information required to be submitted pursuant to the terms of this Lease, or
giving authorizations or approvals required to be given pursuant to the terms of
this Lease; provided, that no such delay shall constitute a Tenant Delay if
Landlord, using reasonable prudence and diligence, but without additional
expense, could avoid such delay, and no such delay shall constitute a Tenant
Delay to the extent it occurs after Landlord has actual knowledge or should
reasonably have knowledge of such delay and before Landlord notifies Tenant of
such Tenant Delay (it being understood that in all events such delay shall
constitute a Tenant Delay to the extent it occurs after Landlord notifies Tenant
of such Tenant Delay). If Landlord notifies Tenant of the occurrence of any
Tenant Delay, upon Tenant's request, Landlord shall notify Tenant of Landlord's
estimate of the duration of such Tenant Delay. Tenant shall pay to Landlord any
reasonable costs or expenses if and to the extent incurred by Landlord by reason
of any Tenant Delay. Any dispute as to the existence, duration or cost of any
Tenant Delay shall be determined by arbitration in accordance with Section 8.09.
1.05 Use. (a) The Premises may be used and occupied solely as general,
professional, administrative and executive offices (including such ancillary
uses in connection therewith as shall be reasonably required by Tenant in the
operation of its business, which ancillary uses may include, without limitation,
the following (but only to the extent such uses are ancillary to use of the
Premises as general, professional, administrative and executive offices and in
no event shall any of such uses be made available to the general public or to
more than 200 employees of Tenant (at any one time) who are not located at the
Building): (i) cafeterias and "convenience areas" which convenience areas may
include coffee stations, mini refrigerators, small stoves and microwave ovens
(each, a "Cafeteria"); provided, that in the case of each such Cafeteria where
cooking will be done (other than any Cafeteria where only microwave cooking will
be done) (A) Tenant shall install all flues, vents, grease traps and ansul
systems and other similar items reasonably requested by Landlord, (B) Tenant
shall install an exhaust system that, in Landlord's reasonable judgment, is
consistent with the standards of a first-class office building in Manhattan, (C)
all ducts and flues shall be installed within the Premises and shall exit the
Building from a location reasonably acceptable to Landlord and Tenant, (D)
Tenant shall clean all grease traps, (E) Tenant shall bag all wet garbage, place
such garbage in containers that prevent the escape of odors, and provide for a
refrigerated waste facility to store such garbage pending disposal and (F)
Tenant shall contract with an exterminator (such exterminator to be subject to
Landlord's reasonable approval) to exterminate vermin and rodents on a regular
basis as part of a program to keep the Premises free of vermin and rodents by
reason of the operation of each such Cafeteria; and provided further, in the
case of each such Cafeteria (whether or not cooking will be done), (x) Tenant
shall not allow any odors to escape from the Premises to other portions of the
Project and (y) Tenant shall otherwise maintain and operate each Cafeteria
consistent with the standards of a first-class office building in Manhattan,
(ii) an infirmary, (iii) a health and fitness facility; provided, that the
entire floor on which such health and fitness facility is located and the entire
floor immediately above and the entire floor immediately below the floor on
which such health and fitness facility is located shall be fully leased by
Tenant, (iv) an emergency childcare facility and (v) storage space, mailroom,
copying/reproduction facility, messenger center, chauffeur's office and archives
(the ancillary uses described in clauses (i) through (iv) above are called the
"Identified Ancillary Uses")). Notwithstanding anything in Section 4.06 or
elsewhere in this Lease to the contrary, Tenant shall be responsible for
complying with all Laws applicable to the use of the Premises for the Identified
Ancillary Uses and for obtaining, at Tenant's sole cost and expense, all
consents, approvals and permits (including, without limitation, any amendment to
the certificate of occupancy for the Building and any public assembly permit)
required by reason of any such use and Landlord makes no representation to
Tenant as to the suitability of the Premises for any of the Identified Ancillary
Uses. Landlord, at Tenant's reasonable expense, shall cooperate with Tenant's
efforts to obtain any such consents, approvals and permits, including, without
limitation, executing and delivering any documents or instruments reasonably
required by Tenant in connection therewith. If Tenant shall be unable to obtain
any such consent, approval or permit by reason of any violation noted against
the Building (other than a violation that is the obligation of Tenant to remove)
Landlord shall, promptly after notice of such violation from Tenant, commence
and diligently pursue the removal of such violation.
(b) If Tenant shall have obtained a temporary certificate of occupancy
permitting use of a portion of the Premises for public assembly purposes, but
shall be unable to obtain a final certificate of occupancy permitting use of
such portion of the Premises for public assembly purposes by reason of any
violation noted against the Building (other than any violation that is the
obligation of Tenant to remove), Landlord shall timely obtain all necessary
renewals of such temporary certificate of occupancy. If Tenant shall have
obtained a temporary certificate of occupancy permitting use of a portion of the
Premises for public assembly purposes, and at any time thereafter, by reason of
a violation noted against the Building (other than any violation that is the
obligation of Tenant to remove), the certificate of occupancy for the Building
shall no longer permit use of such portion of the Premises for public assembly
purposes such that Tenant shall be unable to use such portion of the Premises
for its intended purpose (as shown on, or reasonably inferable from, Tenant's
then current plans and specifications for such space) then, with respect to so
much of such space as shall not be occupied by Tenant for such purpose (i) if
the Rent Commencement Date with respect to such space has not yet occurred, such
Rent Commencement Date shall be postponed for a period of time (the
"Postponement Period") equal to the number of days beginning on the date that
Tenant is first unable to occupy such space for such purpose and ending on the
earlier of (A) the date that Tenant may again use such space for such intended
purpose or (B) the date that Tenant would be legally permitted to use such space
for such intended purpose but for any act or (where Tenant has an affirmative
obligation to act pursuant to the terms of this Lease) omission of Tenant, its
agents or contractors or (ii) if the Rent Commencement Date with respect to such
space has then occurred, the Fixed Rent and Additional Charges applicable to
such space shall be abated until the earlier of (A) the date that Tenant may
again use such space for such intended purpose or (B) the date that Tenant would
be legally permitted to use such space for such intended purpose but for any act
or (where Tenant has an affirmative obligation to act pursuant to the terms of
this Lease) omission of Tenant, its agents or contractors. Notwithstanding the
foregoing, if Tenant shall permanently change the use of such space to a purpose
that does not require a public assembly permit, then as of the date of such
change any Postponement Period under clause (i) above, and any rent abatement
under clause (ii) above, shall end.
(c) Anything contained in this Section 1.05 to the contrary notwithstanding
(i) in no event shall the Premises be used for any of the following: (A) a
retail banking, trust company or safe deposit business serving the general
public, (B) a retail savings bank, savings and loan association, or loan company
serving the general public, (C) the retail sale to the general public of
travelers' checks and/or foreign exchange, (D) a retail stock brokerage office
or for stock brokerage purposes serving the general public, (E) a restaurant,
bar or for the sale of food or beverages, except as permitted in Section
1.05(a)(i) above, (F) photographic reproductions and/or offset printing, other
than such reproduction or printing which is ancillary to the use of the Premises
as general, professional, administrative and executive offices, (G) an
employment or travel agency, except to service Tenant's employees, (H) a school
or classroom, except that Tenant may use part of the Premises for classroom and
educational purposes to the extent such use is ancillary to the use of the
Premises as general, professional, administrative and executive offices, (I)
medical or psychiatric offices, except as permitted in Section 1.05(a)(ii)
above, (J) conduct of an auction, (K) gambling activities, (L) conduct of
obscene or pornographic activities, (M) offices of an agency, department or
bureau of the United States Government, any state or municipality within the
United States or any foreign government, or any political subdivision of any of
them unless, in any such case, Tenant establishes, to the reasonable
satisfaction of Landlord, that both such agency, department or bureau and the
persons who will be occupying the Premises (w) do not possess sovereign or
diplomatic immunity, (x) are subject to the jurisdiction of state and federal
courts located in the State of New York, (y) may be served with legal process
within the State of New York and (z) are not inconsistent with the first-class
character of the Building, (N) offices of any charitable, religious, union or
other not-for-profit organization which is inconsistent with the first-class
character of the Building; provided, that in no event shall the aggregate
rentable square feet occupied by charitable, religious, union and other
not-for-profit organizations exceed 25,000 rentable square feet in the Office
Space, or (O) 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, which is
inconsistent with the first-class character of the Building; provided, that in
no event shall the aggregate rentable square feet occupied by such exempt
entities exceed 25,000 rentable square feet in the Office Space, and (ii) in no
event shall the Premises be used for any purpose which would materially lower
the first-class character of the Building (Landlord acknowledges that the
Premises may be used by Tenant, in whole or in part, for so-called "back office"
uses and that such use, in and of itself, would not materially lower the
first-class character of the Building), materially impair or materially
interfere with any of the Building operations, constitute a public or private
nuisance, unreasonably interfere with or disturb Landlord, actually disturb
another tenant or occupant of the Building or materially impair the appearance
of the Building. Any use of the Premises for any purpose which violates clause
(ii) above is hereinafter referred to as an "Improper Use." If Landlord notifies
Tenant that the Premises are being used in a manner which constitutes an
Improper Use, such use shall not constitute a default under this Lease unless
(1) it is finally determined by arbitration in accordance with Section 8.09 that
such use constitutes an Improper Use and, if Tenant shall not have previously
ceased such use of the Premises in accordance with clause (2) below, Tenant
shall not immediately cease such use of the Premises or (2) Tenant shall not,
immediately upon receipt of such notice from Landlord, cease such use of the
Premises pending the resolution of such dispute by arbitration; provided, that
Tenant shall not be required to cease such use of the Premises pending the
resolution of such dispute by arbitration if Tenant shall have been using the
Premises in such manner on a regular basis for longer than 1 year.
(d) Tenant shall have access to the Premises for the uses permitted in this
Section 1.05, on a 24 hours per day, 365 days per year, basis.
1.06 Tenant's Right of First Offer. (a) As used herein: "Available" means,
as to any space, that such space is vacant and free of any present or future
possessory right now or hereafter existing in favor of any third party;
provided, that (i) until the end of the Offer Period, Landlord shall not grant
to any third party a right of renewal with respect to any Offer Space (other
than (A) any rights of renewal in favor of Warner Communications Inc. or any
Affiliate of Warner Communications Inc. or (B) any rights of renewal granted in
connection with a new leasing of any Offer Space to another tenant), or any
right of offer, right of first refusal or expansion right with respect to any
Offer Space which is prior in right to Tenant's right of first offer set forth
in this Section 1.06 (other than any expansion obligation on the part of Warner
Communications Inc., or any Affiliate of Warner Communications Inc.; provided,
that such expansion obligation either exists on the date of this Lease or is set
forth in a written agreement between Landlord and such party entered into on or
before the 1st anniversary of the date of this Lease), (ii) any Offer Space
which is subleased to Landlord by another tenant by virtue of a provision in
such tenant's lease similar to Landlord's right of first offer set forth in
Section 5.02 shall be deemed to be Available for the term of such sublease,
(iii) any space which is vacant on the date of this Lease shall not be deemed
Available unless and until such space is first leased to another tenant and then
again becomes Available and (iv) following the vacating of the 23rd floor of the
Building by the tenants occupying such floor on the date of this Lease, Landlord
shall have the right to lease such floor to any third party that also leases
from Landlord at least the 24th and 25th floors of the Building, and the 23rd
floor of the Building shall not be deemed to be Available unless and until the
same becomes Available after the leasing thereof to any such third party. If any
third party has a right to renew or extend a lease of any Offer Space, whether
granted before or after the date of this Lease, nothing contained herein shall
be construed to prohibit Landlord (without first offering such space to Tenant
hereunder) from renewing or extending such party's lease on terms other than as
set forth in such party's lease, so long as such renewal or extension is for a
period of time not longer than that contemplated in such party's lease. Landlord
shall promptly notify Tenant of any expansion agreement between Landlord and
Warner Communications Inc. or any Affiliate of Warner Communications Inc. which
contains an expansion obligation on such party's part with respect to any Offer
Space and which is entered into on or before the 1st anniversary of the date of
this Lease, which notice shall specify the Offer Space affected by such
expansion obligation and the commencement date and expiration date of such
party's leasing of such space. "Offer Period" means the period commencing on the
Block A Relevant Date to and including the date that is 18 months prior to the
last day of the initial Term of this Lease; provided, that if Tenant shall
exercise the Renewal Option, then upon the giving of the Renewal Notice the
Offer Period shall be extended until (and including) the date that is 3 years
prior to the Expiration Date. "Offer Space" means any space on the 7th, 8th,
9th, 10th and 23rd floors of the Building. Landlord and Tenant confirm that each
floor constituting Offer Space is conclusively deemed to contain the number of
rentable square feet specified therefor on Exhibit H annexed hereto.
(b) Provided (i) this Lease shall not have been terminated, (ii) Tenant
shall not be in default under this Lease after notice and beyond all applicable
grace periods, and (iii) Tenant and/or any Affiliated subtenants of Tenant shall
then occupy not less than 50% of the Premises, if at any time during the Offer
Period any Offer Space either becomes, or Landlord reasonably anticipates that
within the next 18 months (but not later than the last day of the Offer Period)
such Offer Space will become, Available, Landlord shall give to Tenant notice
(an "Offer Notice") thereof, specifying (A) Landlord's determination of the fair
market rental value for such Offer Space, (B) the date or estimated date that
such Offer Space has or shall become Available (the "Target Date"), (C) the
location and rentable area of such Offer Space (such rentable area to be
determined in a manner consistent with the method used in calculating the
rentable area of the Premises initially demised under this Lease), (D) the term
for which such Offer Space is Available; provided, that such term shall be
coterminous with the Term unless such Offer Space is subject to any future
possessory right then existing in favor of any third party, in which case the
term shall expire on the day immediately prior to the date during the Term that
such future possessory right shall mature, and (E) such other matters as
Landlord may deem appropriate for such Offer Notice. The "fair market rental
value" for any Offer Space means the fixed annual rent that a willing lessee
would pay and a willing lessor would accept for such Offer Space in an
arms-length transaction, taking into account all relevant factors at the time in
question.
(c) Provided that on the date that Tenant exercises an Offer Space Option
(i) this Lease shall not have been terminated, (ii) Tenant shall not be in
default under this Lease after notice and beyond all applicable grace periods,
(iii) Tenant and/or any Affiliated subtenants of Tenant shall occupy not less
than 50% of the Premises and (iv) if required pursuant to Section 1.06(n) below,
Tenant shall have exercised the Renewal Option, then Tenant shall have the
option (an "Offer Space Option"), exercisable by notice (an "Acceptance Notice")
given to Landlord on or before the date that is 60 days after the giving of the
applicable Offer Notice (time being of the essence) to include such Offer Space
in the Premises.
(d) If Tenant timely gives an Acceptance Notice with respect to any Offer
Space, but disagrees with Landlord's determination of the fair market rental
value for such Offer Space as set forth in the applicable Offer Notice, Tenant
shall so notify Landlord in such Acceptance Notice and shall either specify
therein Tenant's determination of the fair market rental value for such Offer
Space or state therein that Tenant shall notify Landlord of Tenant's
determination of such fair market rental value within 30 days after the giving
of such Acceptance Notice. If such dispute is not resolved between the parties
within 20 days after the date that Tenant advises Landlord (whether in the
applicable Acceptance Notice or in such notice given within 30 days thereafter)
of Tenant's determination of the fair market rental value for such Offer Space,
such dispute shall be settled in accordance with Section 9.02(d). The fees and
expenses of any arbitration of the fair market rental value for any Offer Space
shall be borne by the parties equally, but each party shall bear the expense of
its own arbitrator, attorneys and experts and the additional expense of
presenting its own proof. If Tenant timely gives an Acceptance Notice with
respect to such Offer Space, but fails in such Acceptance Notice to object to
Landlord's determination of the fair market rental value for such Offer Space as
set forth in the applicable Offer Notice, then Landlord's determination of the
fair market rental value as so set forth shall govern with respect to such Offer
Space. If Tenant timely gives an Acceptance Notice with respect to such Offer
Space and in such Acceptance Notice Tenant informs Landlord that Tenant disputes
Landlord's determination of the fair market rental value for such Offer Space as
set forth in the applicable Offer Notice and that Tenant shall notify Landlord
of Tenant's determination of the fair market rental value for such Offer Space
within 30 days after the date that Tenant delivers such Acceptance Notice to
Landlord and Tenant fails to deliver such rental determination to Landlord
within such 30-day period, then Landlord's determination of the fair market
rental value as set forth in such Offer Notice shall govern with respect to such
Offer Space.
(e) If Tenant timely gives an Acceptance Notice, then (subject to Section
1.06(g) below) on the date on which Landlord delivers vacant possession of such
Offer Space to Tenant (the "OS Inclusion Date"), such Offer Space shall become
part of the Premises, upon all of the terms and conditions set forth in this
Lease, except (i) Fixed Rent with respect to such Offer Space shall be payable
from and after the applicable OS Inclusion Date and shall be 95% of the fair
market rental value for such Offer Space (A) as set forth in the applicable
Offer Notice or (B) as agreed to by Landlord and Tenant within the 20 day period
set forth in Section 1.06(d) or (C) as determined in accordance with Section
9.02(d), as the case may be, (ii) Tenant's Tax Share and Tenant's Operating
Share shall each be proportionately increased based upon the number of rentable
square feet contained in such Offer Space as set forth in the applicable Offer
Notice, (iii) (A) if the rentable square footage of such Offer Space constitutes
67% or more of the total rentable square footage of the floor on which such
Offer Space is located, then such Offer Space shall, to the extent applicable,
be delivered in Delivery Condition (except that, if such Offer Space constitutes
a partial floor, Landlord shall not be required to demolish or relocate any of
the items described in Paragraph 1 of Exhibit F annexed hereto that are used by
(or reserved for use by) other tenants or occupants of the Building; provided,
that upon request by Tenant, Landlord shall, at Tenant's reasonable expense,
relocate any of such items), and (B) if the rentable square footage of such
Offer Space constitutes less than 67% of the total rentable square footage of
the floor on which such Offer Space is located, then Landlord shall have
demolished such Offer Space in accordance with Paragraph 1 of Exhibit F annexed
hereto, except that Landlord shall not be required to demolish or relocate any
of the items described in said Paragraph 1 that are used by (or reserved for use
by) other tenants or occupants of the Building (provided, that upon request by
Tenant, Landlord shall, at Tenant's reasonable expense, relocate any of such
items) and Landlord, to the extent applicable, shall have performed the work
described in Paragraphs 2, 9, 10, 11, 12, 13 and 15 of Exhibit F annexed hereto,
(iv) except as specified in clause (iii) above, and except for any other work or
allowance specified in the applicable Offer Notice, Landlord shall not be
required to perform any work, pay any work allowance or any other amount, or
render any services to make such Offer Space ready for Tenant's use or occupancy
and, subject to Landlord's compliance with its obligations set forth in clause
(iii) above and as may be set forth in the applicable Offer Notice, Tenant shall
accept such Offer Space in its "as is" condition on the applicable OS Inclusion
Date and (v) as may be otherwise set forth in the applicable Offer Notice. The
provisions of clause (iv) above shall not be construed to negate or diminish (x)
Landlord's obligation to complete after the applicable OS Inclusion Date (1)
those items of the work required to be performed by Landlord with respect to
such Offer Space which, in accordance with Exhibit F, are not a condition to
delivery, (2) any incomplete Punch List Items with respect to such Offer Space
or (3) those items, if any, of the work required to be performed by Landlord
with respect to such Offer Space which, in accordance with Exhibit F, are a
condition to delivery but which Tenant may have agreed to allow Landlord to
complete after delivery or (y) Landlord's repair and maintenance obligations as
set forth elsewhere in this Lease.
(f) If Landlord is unable to deliver possession of any Offer Space to
Tenant for any reason on or before the Target Date for such Offer Space, then,
except as set forth in Section 1.06(g), the OS Inclusion Date with respect to
such Offer Space shall be the date on which Landlord is able to so deliver
possession of such Offer Space. If Landlord is unable to so deliver possession
of any Offer Space, the validity of this Lease shall not be impaired, nor shall
the Term be extended by reason thereof, and (unless Landlord willfully refuses
to prepare any Offer Space so that it is in Delivery Condition or to deliver to
Tenant any Offer Space that is in Delivery Condition) Landlord shall have no
liability to Tenant therefor. This Section 1.06(f) constitutes "an express
provision to the contrary" within the meaning of Section 223(a) of the New York
Real Property Law and any other law of like import now or hereafter in effect.
(g) If, for any reason whatsoever, Landlord fails to deliver any Offer
Space on or before the date that is 60 days after the Target Date for such Offer
Space (the "First Rescission Date"), then Tenant, as Tenant's sole remedy
(except in a case of Landlord's willful failure to comply with its obligations
under this Section 1.06), shall have the right (a "Rescission Right"), by notice
(a "Rescission Notice") given to Landlord on or before the date that is 10 days
after the First Rescission Date, to notify Landlord that if such Offer Space is
not delivered to Tenant on or before the date that is 30 days after Tenant gives
such Rescission Notice to Landlord, Tenant's Acceptance Notice with respect to
such Offer Space shall be deemed to be rescinded. If Tenant timely gives a
Rescission Notice to Landlord, then Tenant's Acceptance Notice with respect to
such Offer Space shall be deemed to be rescinded unless Landlord shall deliver
such Offer Space to Tenant on or before the date which is 30 days after the date
that Tenant gives such Rescission Notice to Landlord, in which event Tenant's
exercise of such Rescission Right shall be null and void. If Tenant timely gives
the Rescission Notice to Landlord, Landlord shall have the right to give a
notice (a "Rescission Acceleration Notice") to Tenant notifying Tenant that
Tenant's Acceptance Notice with respect to such Offer Space shall be deemed to
be rescinded as of the date that Landlord gives such notice to Tenant. If
Landlord gives a Rescission Acceleration Notice to Tenant, Tenant's Acceptance
Notice with respect to such Offer Space shall be deemed to be rescinded and
Landlord shall have no further right or obligation to deliver such Offer Space
to Tenant. If Tenant shall not have so exercised any such Rescission Right and
Landlord shall not, within 90 days after the First Rescission Date (such 90 day
period, and each 90 day period thereafter being hereinafter referred to as a "90
Day Offer Space Interval"), have so delivered such Offer Space to Tenant, then
Tenant shall, within 10 days after the initial 90 Day Offer Space Interval, and
within 10 days after each succeeding 90 Day Offer Space Interval during which
Landlord continues so to fail to deliver the applicable Offer Space, as Tenant's
sole remedy (except in a case of Landlord's willful failure to comply with its
obligations under this Section 1.06), again have the right to exercise such
Rescission Right by giving a Rescission Notice to Landlord within such 10 day
period. If Tenant timely gives any such Rescission Notice to Landlord, then
Tenant's Acceptance Notice with respect to such Offer Space shall be deemed to
be rescinded unless Landlord shall deliver such Offer Space to Tenant on or
before the date which is 30 days after the date that Tenant gives such
Rescission Notice to Landlord, in which event Tenant's exercise of such
rescission right shall be null and void. If Tenant timely gives any such
Rescission Notice to Landlord, Landlord shall have the right to give to Tenant a
Rescission Acceleration Notice, in which event Tenant's Acceptance Notice with
respect to such Offer Space shall be deemed to be rescinded upon the giving of
such Rescission Acceleration Notice and Landlord shall have no further right or
obligation to deliver such Offer Space to Tenant. Upon any exercise by Tenant of
a Rescission Right, Landlord shall have no further obligations and Tenant shall
have no further rights pursuant to Section 1.06(k) with respect to the
applicable Offer Space (but the foregoing shall not be construed as a limitation
of Tenant's rights and remedies in the event of the willful failure by Landlord
to comply with any of the provisions of this Section 1.06). If Tenant's
Acceptance Notice with respect to any Offer Space shall be deemed to be
rescinded pursuant to this Section 1.06(g) Landlord shall have no further
obligation to offer such Offer Space to Tenant unless and until such Offer Space
is leased and thereafter again becomes Available. Time is of the essence with
respect to all of the time periods set forth in this Section 1.06(g). For
purposes of this Section 1.06(g), any failure by Landlord to comply with
Landlord's obligations under this Section 1.06 by reason of Force Majeure,
including, without limitation, by reason of the holdover in the applicable Offer
Space by another tenant without the consent of Landlord, shall not constitute
Landlord's "willful failure."
(h) If Tenant fails timely to give an Acceptance Notice with respect to any
Offer Space, then (i) Landlord may enter into one or more leases of such Offer
Space with third parties on such terms and conditions as Landlord shall
determine, the Offer Space Option with respect to such Offer Space shall be null
and void and of no further force and effect and, except as provided in the
following sentence, Landlord shall have no further obligation to offer such
Offer Space to Tenant unless and until such Offer Space is leased and thereafter
again becomes Available, and (ii) Tenant, promptly following demand by Landlord,
shall execute an instrument confirming that the Offer Space Option with respect
to such Offer Space has been waived by Tenant and that, except as provided in
the following sentence, Landlord has no further obligation to offer such Offer
Space to Landlord unless and until such Offer Space is leased and thereafter
again becomes Available, but the failure by Tenant to execute any such
instrument shall not affect the provisions of clause (i) above. If Tenant fails
timely to give an Acceptance Notice with respect to any Offer Space and Landlord
has not entered into a lease of such Offer Space with a third party within 12
months after the last day of the 60-day period set forth in Section 1.06(c)
during which Tenant was entitled to give an Acceptance Notice with respect to
such Offer Space, then Landlord shall once again offer such Offer Space to
Tenant, subject to, and in accordance with, the terms and conditions of this
Section 1.06.
(i) Promptly after the occurrence of the OS Inclusion Date with respect to
any Offer Space, Landlord and Tenant shall confirm the occurrence thereof and
the inclusion of such Offer Space in the Premises by executing an instrument
reasonably satisfactory to Landlord and Tenant; provided, that failure by
Landlord or Tenant to execute such instrument shall not affect the inclusion of
such Offer Space in the Premises in accordance with this Section 1.06.
(j) If in the Acceptance Notice with respect to any Offer Space Tenant
disputes Landlord's determination of the fair market rental value for such Offer
Space and the final determination of such fair market rental value shall not be
made on or before the applicable OS Inclusion Date, then pending such final
determination, Tenant shall pay, as Fixed Rent for such Offer Space, an amount
equal to 95% of the average of Landlord's determination of such fair market
rental value as set forth in the applicable Offer Notice and Tenant's
determination of such fair market rental value as set forth in the applicable
Acceptance Notice or, if applicable, the applicable notice given to Landlord
within 30 days after Tenant gives such Acceptance Notice to Landlord. If, based
upon the final determination of such fair market rental value, the Fixed Rent
payments made by Tenant for such Offer Space were (i) less than such fair market
rental value as finally determined, Tenant shall pay to Landlord the amount of
such deficiency within 30 days after demand therefor or (ii) greater than such
fair market rental value as finally determined, Landlord shall credit the amount
of such excess against future installments of Fixed Rent and/or Additional
Charges payable by Tenant.
(k) If Landlord shall be unable to deliver possession of any Offer Space to
Tenant on or before the Target Date for such Offer Space by reason of a holdover
tenancy in all or any portion of such Offer Space, (i) Landlord shall use
commercially reasonable efforts (including the commencement and diligent
prosecution of summary dispossess or other appropriate proceedings) to terminate
such holdover tenancy and (ii) provided that Tenant shall not rescind Tenant's
Acceptance Notice with respect to such Offer Space pursuant to Section 1.06(g),
Landlord shall pay to Tenant any Holdover Profit actually received by Landlord
from the tenant holding over in such Offer Space, such payment to be made by
Landlord to Tenant within 30 days after Landlord actually receives such Holdover
Profit from such holdover tenant (but in no event earlier than the OS Inclusion
Date with respect to such Offer Space). "Holdover Profit" means, with respect to
any tenant which holds over in any Offer Space, the excess, if any, of (A) all
monies actually paid by such holdover tenant to Landlord with respect to the
holdover period, other than amounts representing a reimbursement to Landlord of
Landlord's expenses (e.g., payments in respect of taxes, operating expenses and
electricity), over (B) the sum of (x) the Fixed Rent which would be payable by
Tenant with respect to the space in which such holdover occurs for the holdover
period (assuming for purposes hereof that the Rent Commencement Date with
respect to such space had already occurred) plus (y) all unreimbursed costs and
expenses actually incurred by Landlord in terminating such holdover tenancy.
(l) Notwithstanding the foregoing provisions of this Section 1.06, if, at
any time after Tenant's delivery of an Acceptance Notice with respect to any
Offer Space and before the OS Inclusion Date with respect to such Offer Space,
this Lease shall be terminated, then such Acceptance Notice shall be null and
void and of no further force and effect and Tenant shall have no further right
or option to lease such Offer Space.
(m) As part of Tenant's initial Alterations to any Offer Space of less than
an entire floor that is included in the Premises, Tenant shall have the right,
subject to Section 4.02 and the other provisions of this Lease, (i) to install a
telephone (for internal communication on Tenant's telephone system, but not for
outside calling) in the public corridor outside the entry door to such Offer
Space, (ii) to run a sprinkler loop above the ceiling in the public corridor
outside such Offer Space, and (iii) to request that Landlord install, at
Tenant's reasonable expense, a submeter to measure the consumption and demand of
electricity in such Offer Space. If (A) the rentable square footage of such
Offer Space constitutes 50% or more of the total rentable square footage of the
floor on which such Offer Space is located, (B) there are at least 2 electrical
closets on such floor and (C) one of such electrical closets is not being used
by another occupant of such floor, then Tenant shall have the exclusive use of
such electrical closet that is not being used. If such Offer Space satisfies the
square footage requirement described in the preceding sentence and all
electrical closets on the floor on which such Offer Space is located are being
used by other occupants of such floor, Tenant shall have the right to rewire one
of such electrical closets designated by Landlord so as to permit Tenant to have
the exclusive use of such electrical closet. Such rewiring shall be performed by
Landlord with reasonable diligence, at Tenant's reasonable expense, but in a
manner and at such times so as to not interfere (other than to a de minimis
extent) with the business operations of the occupant of such floor who is using
such electrical closet.
(n) Anything contained in this Section 1.06 to the contrary
notwithstanding, with respect to any Offer Space which becomes, or which
Landlord reasonably anticipates will become, Available on or after the date that
is 3 years prior to the last day of the initial Term of this Lease and on or
before the date that is 18 months prior to the last day of the initial Term of
this Lease, then Tenant shall not have the right to exercise the Offer Space
Option with respect to such Offer Space (and any attempt to exercise same shall
be null and void) unless (i) Tenant, together with or before the giving of the
Acceptance Notice therefor, also gives to Landlord the Renewal Notice and (ii)
if the Renewal Premises is to consist of less than all of the space then
included in the Premises, the applicable "Offer Space" shall continue to meet
the definition of Offer Space after application of Section 8.24(c) (such
application to be determined as though the Renewal Premises were the only space
then leased by Tenant).
ARTICLE 2
Rent
2.01 Rent. "Rent" shall consist of Fixed Rent and Additional Charges.
2.02 Fixed Rent. (a) The fixed rent ("Fixed Rent") shall be at the
following rates: (i) in the case of the Block A Space, $10,427,820 per annum,
payable by Tenant in 12 equal monthly installments of $868,985 each, in advance
on the Block A Rent Commencement Date and on the first day of each calendar
month thereafter, (ii) in the case of the Block B Space, $4,912,890 per annum,
payable by Tenant in 12 equal monthly installments of $409,407.50 each, in
advance on the Block B Rent Commencement Date and on the first day of each
calendar month thereafter, (iii) in the case of the Block C Space, $2,874,190
per annum, payable by Tenant in 12 equal monthly installments of $239,515.83
each, in advance on the Block C Rent Commencement Date and on the first day of
each calendar month thereafter, and (iv) in the case of the Concourse Space, (A)
for the period commencing on the Concourse Rent Commencement Date to and
including the day before the 5th anniversary of the Concourse Rent Commencement
Date, $211,480 per annum, payable by Tenant in 12 equal monthly installments of
$17,623.33 each, (B) for the period commencing on the 5th anniversary of the
Concourse Rent Commencement Date to and including the day before the 10th
anniversary of the Concourse Rent Commencement Date, $232,628 per annum, payable
by Tenant in 12 equal monthly installments of $19,385.67 each and (C) for the
period commencing on the 10th anniversary of the Concourse Rent Commencement
Date to and including the Expiration Date, $253,776 per annum, payable by Tenant
in 12 equal monthly installments of $21,148 each, in each case in advance on the
first day of each calendar month during the applicable period.
(b) Subject to Section 2.02(c): (i) "Block A Rent Commencement Date" means
the 545th day after the Block A Relevant Date. (ii) "Block B Rent Commencement
Date" means the 365th day after the Block B Relevant Date. (iii) "Block C Rent
Commencement Date" means the 300th day after the Block C Relevant Date. (iv)
"Concourse Rent Commencement Date" means the 365th day after the Concourse
Relevant Date (each of the Block A Rent Commencement Date, the Block B Rent
Commencement Date, the Block C Rent Commencement Date and the Concourse Rent
Commencement Date is called a "Rent Commencement Date").
(c) Notwithstanding Section 2.02(b), the Rent Commencement Date with
respect to any Block, any portion of any Block or any other space included in
the Premises, as the case may be, shall be postponed by the number of days, if
any, of Landlord Delay applicable to such space. "Landlord Delay" means any
delay which Tenant may encounter in the substantial completion of any of
Tenant's initial Alterations in any space or in the initial occupancy of any
space for the conduct of business in accordance with this Lease, in either case
(i) to the extent caused by any act or (where Landlord has an affirmative
obligation to act pursuant to the terms of this Lease) omission of Landlord, its
agents or contractors (including, without limitation, the failure by Landlord to
cure any violations noted against the Building (other than a violation that is
the obligation of Tenant to remove), to the extent such failure (A) delays the
substantial completion of Tenant's initial Alterations in any space or (B)
delays Tenant's initial occupancy of any space for the conduct of business in
accordance with this Lease for the purposes shown on, or reasonably inferable
from, Tenant's then current plans and specifications for the space in question)
or (ii) to the extent caused by any Unforeseen Condition which arises during the
performance by Tenant of any item of Tenant's Required Work; provided, in all
cases that no such delay shall constitute a Landlord Delay if Tenant, using
reasonable prudence and diligence, but without additional expense, could avoid
such delay, and no such delay shall constitute a Landlord Delay to the extent it
occurs after Tenant has actual knowledge or should reasonably have knowledge of
such delay and before Tenant notifies Landlord of such Landlord Delay (it being
understood that in all events such delay shall constitute a Landlord Delay to
the extent it occurs after Tenant notifies Landlord of such Landlord Delay). If
Tenant notifies Landlord of the occurrence of any Landlord Delay, upon Tenant's
request, Landlord shall notify Tenant of Landlord's estimate of the duration of
such Landlord Delay. Anything contained in this Lease to the contrary
notwithstanding, this Section 2.02(c) shall not apply to any delay by Landlord
in completing (x) any item of Landlord's Work which is a condition to delivery
of any space to Tenant or (y) the Lobby Renovation Work; it being understood
that Tenant's remedies for any such delay are set forth in Sections 1.03 and
8.21, respectively. Any dispute as to the existence or duration of any Landlord
Delay shall be determined by arbitration in accordance with Section 8.09.
(d) If the Rent Commencement Date with respect to any Block or other space
is not the first day of a month, then Fixed Rent with respect to such Block or
other space for the month in which such Rent Commencement Date occurs shall be
prorated and paid on such Rent Commencement Date.
(e) As reimbursement for Tenant's performance of Tenant's Required Work,
Tenant shall be entitled to a credit against the first installments of Rent
coming due under this Lease (i) with respect to the Block A Space, in the amount
of $1,009,918, (ii) with respect to the Block B Space, in the amount of $358,177
and (iii) with respect to the Block C Space, in the amount of $256,304. Anything
to the contrary contained in this Lease notwithstanding, Tenant shall only be
entitled to receive such rent credits if and to the extent that Tenant performs
Tenant's Required Work. Tenant's entitlement to such rent credits shall be in
addition to (A) any reimbursement to which Tenant becomes entitled, or (B) any
expenses to be incurred by Landlord, by reason of Unforeseen Conditions pursuant
to Section 4.01(a)(vi).
2.03 Additional Charges. "Additional Charges" means Tax Payments, Operating
Payments and all other sums of money at any time payable by Tenant under this
Lease, all of which Additional Charges shall be deemed to be rent.
2.04 Tax Payments. (a) "Base Tax Amount" means $17,683,400; provided, that
if the Taxes, as finally determined, for the 1995/1996 Tax Year, the 1996/1997
Tax Year and/or the 1997/1998 Tax Year shall be greater than $17,683,400, then
the Base Tax Amount shall be increased to equal the greatest of such amounts. If
Landlord shall at any time, as part of any settlement, compromise or other
disposition, settle, compromise or otherwise dispose of applications or other
proceedings for the reduction of Taxes with respect to more than one Tax Year
(including, for purposes of this sentence only, any tax years occurring prior to
the Term), which settlement, compromise or disposition includes the 1995/1996
Tax Year, the 1996/1997 Tax Year and/or the 1997/1998 Tax Year (any of such Tax
Years is called a "Base Tax Year"), Landlord shall not agree to any settlement,
compromise or other disposition that would result in the overall reduction of
Taxes for the applicable Tax Years being inequitably allocated to any Base Tax
Year so as to reduce the Base Tax Amount by more than the Base Tax Amount would
have been reduced if Landlord had compromised, settled or otherwise disposed of
the Taxes for the Base Tax Year in question without reference to any compromise,
settlement or other disposition of Taxes for any other Tax Year. In the event of
a breach of the preceding sentence by Landlord, as Tenant's sole remedy, the
Taxes for the Base Tax Year in question shall be modified to be the Taxes for
such Tax Year that would have applied had Landlord complied with the terms
hereof and Landlord shall refund to Tenant the amount, if any, overpaid by
Tenant in respect of any Tax Payment by reason of Landlord's failure to comply
with the terms of this Section 2.04(a), together with interest on such amount at
the Interest Rate from the date of the applicable payment by Tenant through the
date of refund by Landlord. Any dispute concerning this Section 2.04(a) shall be
resolved by arbitration in accordance with Section 8.09.
(b) "Taxes" means amounts actually payable for (i) the real estate taxes,
vault taxes, assessments and special assessments levied, assessed or imposed
upon or with respect to the Project by any federal, state, municipal or other
government or governmental body or authority (provided, that the same shall be
reflected in a tax bill or other notice of the applicable authority (or, if
applicable, of any Superior Lessor or Superior Mortgagee to whom Landlord must
pay Taxes; provided, in such case, that Landlord shall provide to Tenant the
actual tax bill or other notice of the applicable authority promptly after the
same becomes available) rendered with respect to the Project (such tax bill or
other notice is called a "Tax Bill")) and giving effect to any and all
abatements, refunds, reductions, credits and the like, and calculated as if the
Building and the Land were Landlord's sole assets; (ii) all taxes assessed or
imposed with respect to the rentals payable under this Lease other than general
income and gross receipts taxes; provided, that any such tax shall exclude
Commercial Rent or Occupancy Tax imposed pursuant to Title 11, Chapter 7, of the
New York City Administrative Code so long as such tax is required to be paid by
tenants; and (iii) any expenses incurred by Landlord in contesting such taxes or
assessments and/or the assessed value of the Project, which expenses shall be
allocated to the Tax Year to which such expenses relate. If at any time the
method of taxation shall be altered so that in lieu of, or as a substitute for,
the whole or any part of such real estate taxes, assessments and special
assessments now imposed on real estate, there shall be levied, assessed or
imposed (x) a tax, assessment, levy, imposition, fee or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom, or (y)
any other such substitute tax, assessment, levy, imposition, fee or charge, then
all such taxes, assessments, levies, impositions, fees or charges or the part
thereof so measured or based shall be included in "Taxes". If the owner, or
lessee under a Superior Lease, of all or any part of the Building and/or the
Land is an entity exempt from the payment of taxes described in clauses (i) and
(ii), there shall be included in "Taxes" the taxes described in clauses (i) and
(ii) which would be so levied, assessed or imposed if such owner or lessee were
not so exempt and such taxes shall be deemed to have been paid by Landlord on
the dates on which such taxes otherwise would have been payable if such owner or
lessee were not so exempt, but only to the extent any such payments are actually
required to be made by Landlord. "Taxes" shall not include (A) any succession,
gains, recording, income, franchise, transfer, inheritance, capital stock,
excise, excess profits, occupancy or rent (except as permitted pursuant to
clause (ii) above), gift, estate, foreign ownership or control, payroll or stamp
tax of Landlord or any superior party, (B) any other tax assessment, charge or
levy on the rent reserved under this Lease (except as permitted pursuant to
clause (ii) above), (C) any charges and/or taxes of a type customarily paid by
individual tenants if and to the extent the same are allocable to, and payable
by, individual tenants (including, by way of example only, vault fees for a
tenant using such vaults, and water and sewer taxes for a restaurant tenant) or
(D) any penalties or late charges imposed against Landlord or any superior party
with respect to real estate taxes, assessments and the like; provided, that, to
the extent that such penalties or late charges are incurred by Landlord as a
result of a failure by Tenant to pay any installment of any Tax Payment in a
timely manner in accordance with Section 2.04(e), Tenant shall pay to Landlord
the amount of such penalties or late charges for which Tenant is responsible
within 30 days after demand therefor by Landlord.
(c) "Tax Year" means each period of 12 months, commencing on the first day
of July of each such period, in which occurs any part of the Term, or such other
period of 12 months occurring during the Term as hereafter may be adopted as the
fiscal year for real estate tax purposes of the City of New York.
(d) "Tenant's Tax Share" means a fraction expressed as a percentage, the
numerator of which shall be the rentable square footage of the space from time
to time included in the Premises and the denominator of which shall be 1,930,773
(the "Tax Denominator"). Exhibit H attached hereto sets forth Tenant's Tax Share
for each full floor of the Office Space and the Offer Space. Any change in
Tenant's Tax Share shall be effective from and after each applicable Rent
Commencement Date (or other date, with respect to any space other than the
Blocks and the Concourse Space, on which Tenant is required pursuant to the
terms of this Lease to commence making Tax Payments with respect to such space)
and Tenant's Tax Payments for any Tax Year in which such a change occurs shall
be adjusted accordingly. Landlord represents to Tenant that the Tax Denominator
was determined using the same standard of measurement as that used to determine
the rentable square footages set forth on Exhibit H annexed hereto.
(e) If Taxes for any Tax Year, including the Tax Year in which the Rent
Commencement Date with respect to any Block occurs, shall exceed the Base Tax
Amount, Tenant shall pay to Landlord (each, a "Tax Payment") Tenant's Tax Share
of the amount by which Taxes for such Tax Year are greater than the Base Tax
Amount. The Tax Payment for each Tax Year shall be due and payable in
installments in the same manner that Taxes for such Tax Year are due and payable
by Landlord, whether to the City of New York or to a Superior Lessor or Superior
Mortgagee. Tenant shall pay Tenant's Tax Share of each such installment within
30 days after the rendering of a statement therefor (a "Tax Statement") by
Landlord to Tenant, but in no event shall Tenant be required to pay Tenant's Tax
Share of any Taxes more than 10 days prior to the date such Taxes first become
due. The Tax Statement to be rendered by Landlord shall set forth in reasonable
detail the computation of Tenant's Tax Share of the particular installment(s)
being billed, and, if Landlord shall have received the relevant Tax Bill at such
time, shall accurately reflect such Tax Bill or, if Landlord shall not have
received such Tax Bill at such time, shall reflect Landlord's good faith
estimate of such installment(s) being billed. A copy of the relevant Tax Bill
shall accompany each Tax Statement (if Landlord shall have received such Tax
Bill at the time such Tax Statement is delivered to Tenant). If Landlord shall
not have received the relevant Tax Bill at the time any Tax Statement is
delivered to Tenant, Landlord shall deliver to Tenant, promptly after receipt
thereof by Landlord, a copy of such Tax Bill, together with a statement setting
forth the amount (if any) of any overpayment or underpayment by Tenant with
respect to the Tax Payment paid by Tenant in accordance with such Tax Statement
and the appropriate party shall pay to the other party the amount of such
overpayment or underpayment within 30 days after such statement is received by
Tenant. If there shall be any increase in the Taxes for any Tax Year, whether
during or after such Tax Year, or if there shall be any decrease in the Taxes
for any Tax Year, the Tax Payment for such Tax Year shall be appropriately
adjusted and paid or refunded, as the case may be, in accordance herewith. In no
event, however, shall Taxes be reduced below the Base Tax Amount. Anything to
the contrary contained in this Lease notwithstanding, in no event shall Tenant
be required to pay a Tax Payment for any period prior to July 1, 1998.
(f) If, in respect of any Taxes for which Tenant has paid Tenant's Tax
Share, Landlord shall receive a refund of such Taxes or shall become entitled to
a credit against a future payment of Taxes, Landlord shall (i) in the case of a
refund, pay to Tenant within 30 days after Landlord's receipt thereof or (ii) in
the case of a credit, permit Tenant to credit against the Tax Payment applicable
to the payment of Taxes against which Landlord will take such credit (unless
such payment of Taxes is due and payable after the end of the Term, in which
event Landlord shall pay to Tenant at the time Landlord makes such Tax Payment),
in any such case an amount equal to Tenant's Tax Share of such refund or credit
(after deducting from such refund or credit the actual costs and expenses of
obtaining the same, including, without limitation, appraisal, accounting and
legal fees, if and to the extent that (A) such legal fees have not already been
deducted by the party conducting the contest on behalf of Landlord prior to
Landlord's receipt of such refund and (B) such costs and expenses were not
included in the Taxes for such Tax Year); provided, that such payment to Tenant
shall in no event exceed Tenant's Tax Payment paid for such Tax Year. The
reference to "Tenant's Tax Share" in this Section 2.04(f) shall be deemed to
mean Tenant's Tax Share in effect during the Tax Year to which the applicable
refund relates; provided, that if Tenant's Tax Share changed during such Tax
Year, any refund to which Tenant is entitled under this Section 2.04(f) shall be
appropriately adjusted.
(g) If Landlord is required to pay Taxes to a Superior Lessor or Superior
Mortgagee and as a result Tenant is required to make Tax Payments to Landlord
earlier than such Tax Payments would be required to be made if such Taxes were
payable by Landlord directly to the applicable taxing authority, then Landlord
shall pay to Tenant interest, at an annual rate equal to the Prime Rate, on the
amount of such Tax Payments from the date paid by Tenant until the date (the
"Tax Payment Date") that is 10 days before the date that the Taxes in respect of
which such Tax Payments were made are due to the applicable taxing authority,
such interest to be paid within 30 days after Tenant gives to Landlord a notice
requesting such payment but in no event earlier than the applicable Tax Payment
Date. Anything contained in this Section 2.04 to the contrary notwithstanding,
Landlord may at any time and from time to time notify Tenant that Landlord
waives the requirement that Tax Payments be made at the time the applicable
Taxes are due to a Superior Lessor or Superior Mortgagee, in which event Tenant
shall make each Tax Payment at the time such Tax Payment would be due to
Landlord if Landlord were paying the Taxes in respect of which such Tax Payment
is made directly to the applicable taxing authority, and the first sentence of
this Section 2.04(g) shall not apply.
2.05 Operating Payments. (a) "Base Operating Amount" means Operating
Expenses for the Base Operating Year.
(b) "Base Operating Year" means calendar year 1997.
(c) "Includable Capital Improvements" means all alterations, repairs,
replacements, improvements and other items the cost of which is incurred at any
time during or after the Base Operating Year and which (i) are required by any
Laws enacted after the date of this Lease, (ii) have the effect of reducing
expenses that would otherwise be included in Operating Expenses, (iii)
constitute a replacement which in Landlord's reasonable judgment is prudent to
make in lieu of repairs to the replaced item(s) or (iv) in accordance with
generally accepted accounting principles consistently applied ("GAAP"), are
required to be capitalized and to be amortized or depreciated over a period of
not more than 10 years.
(d) "Landlord's Statement" means an instrument substantially in the form
attached to this Lease as Exhibit I setting forth the Operating Payment payable
by Tenant for a specified Operating Year, certified by Landlord.
(e) (i) "Operating Expenses" means all commercially reasonable expenses
actually paid or incurred by or on behalf of Landlord in respect of the repair,
replacement, maintenance, operation and security of the Project, including,
without limitation (but without duplication, and other than as specifically
qualified or excluded below), (A) salaries, wages, medical, surgical, insurance
(including, without limitation, group life and disability insurance), union and
general welfare benefits, pension payments, severance payments, sick day
payments and other fringe benefits of persons engaged in the repair,
replacement, maintenance, operation and/or security of the Project, but
excluding personnel above the grade of building manager or equally held
positions, and with respect to persons who are so engaged with respect to the
Building and properties other than the Building, such expenses to be allocated
on a pro rata basis; (B) payroll taxes, worker's compensation, uniforms and
related expenses for such employees; (C) the cost of fuel, gas, steam,
electricity, heat, ventilation, air-conditioning and chilled or condenser water,
water, sewer and other utilities, together with any taxes, surcharges and other
fees payable to the provider of such utilities (the amount includable in
Operating Expenses for electricity consumed in the Building and includable in
Operating Expenses shall be the amount at which Landlord from time to time
purchases electricity for the same period from the utility company (including
all demand charges, consumption charges, surcharges, taxes, fuel adjustments,
taxes passed on to consumers by the public utility, and other sums required to
be paid to the public utility for such electricity), which amount shall be
determined by dividing the cost charged with respect to the Building by said
utility during each respective billing period by the number of KWHRs consumed by
the Building as set forth on the utility company invoice for such period); (D)
the cost of painting and/or decorating all areas of the Project, excluding,
however, any space contained therein which is leased to, or available for
leasing by, tenants; (E) the cost of casualty, liability, fidelity, rent and all
other insurance regarding the Project; (F) subject to the proviso set forth in
clause (J) below, the cost of all supplies, tools, materials and equipment,
whether by purchase or rental, used in the repair, replacement, maintenance,
operation and/or security of the Project and any sales taxes thereon; (G) the
rental value of Landlord's Building office; provided, that the same shall be
included in Operating Expenses only to the extent that the rentable area of such
office does not exceed the rentable area of Landlord's Building office on the
date of this Lease; (H) the cost of cleaning, janitorial and security services,
including, without limitation, glass cleaning, snow and ice removal and garbage
and waste collection and disposal; (I) the cost of all interior and exterior
landscaping; (J) the cost of all alterations, repairs, replacements and/or
improvements made at any time during or after the Base Operating Year by or on
behalf of Landlord, whether structural or non structural, ordinary or
extraordinary, foreseen or unforeseen, and whether or not required by this
Lease, and all tools and equipment related thereto; provided, that if under
GAAP, any of the costs referred to in this clause (J) are required to be
capitalized, then such costs shall not be included in Operating Expenses unless
incurred for (x) an Includable Capital Improvement of the type described in
Sections 2.05(c)(i), (ii) or (iv), in which event the cost thereof, together
with interest thereon (at either (I) if Landlord shall not finance such
Includable Capital Improvement, the Prime Rate determined as of December 31 of
the Operating Year in which such costs were incurred or (II) if Landlord shall
finance such Includable Capital Improvement, the actual costs incurred by
Landlord to finance such Includable Capital Improvement), shall in each case be
amortized and included in Operating Expenses over the useful life of the item in
question, as determined in accordance with GAAP or (y) an Includable Capital
Improvement of the type described in Section 2.05(c)(iii), in which case, there
shall be included in Operating Expenses in the Operating Year in which Landlord
pays for such Includable Capital Improvement (and, if and to the extent that the
cost of such Includable Capital Improvement, together with interest thereon in
accordance with clause (I) above, shall not be fully recovered in such Operating
Year, such subsequent Operating Years until such cost (together with interest)
is fully recovered), an amount equal to the lesser of (1) the unrecovered cost
of such Includable Capital Improvement (together with interest if the entire
cost of such Includable Capital Improvement is not fully recovered in the
Operating Year in which Landlord pays for such Includable Capital Improvement)
and (2) a reasonable estimate of the expenses which would have been incurred by
Landlord during the Operating Year in question to perform repairs to the item in
question had such item not been replaced; provided, further, that in the case of
any Includable Capital Improvements of the type described in Section
2.05(c)(ii), in no event shall Tenant be required to pay more in any one
Operating Year by reason of such Includable Capital Improvements (plus interest)
than Tenant would have had to pay during such Operating Year with respect to the
relevant component of Operating Expenses which has been reduced as a result of
such Includable Capital Improvements; (K) management fees; provided, that if
Landlord or an Affiliate of Landlord is the managing agent of the Building then
the amount includable in Operating Expenses in respect of the annual management
fee shall at all times, regardless of the actual management fee paid, be 2 1/2%
of the aggregate rents and additional rents (excluding any amounts payable by
tenants to Landlord for electricity) payable to Landlord by tenants of the
Building and (L) any assessments, dues, levies or charges paid to any business
improvement district or similar organization or to any entity on behalf of such
an organization. During calendar year 1997, Landlord shall cause an electrical
consultant to perform a survey of the electricity consumed in the Building and
includable in Operating Expenses, which survey shall reflect the actual
equipment amperage readings. Upon request by Tenant, Landlord shall provide
Tenant with the results of such survey. Any dispute concerning such survey shall
be resolved in the same manner provided for the resolution of disputes under
Section 2.07(e). (ii) Notwithstanding Section 2.05(e)(i), "Operating Expenses"
shall not include the following: (1) depreciation and amortization (except with
respect to Includable Capital Improvements); (2) principal and interest payments
and other costs incurred in connection with any financing or refinancing of the
Project or any portion thereof (except if and to the extent includable as
Includable Capital Improvements); (3) the cost of tenant improvements made for
tenant(s) of the Building and any "contribution" to such tenant(s) in connection
therewith; (4) brokerage commissions, advertising expenses, promotional
expenses, architect's fees and space planners' fees incurred in procuring
tenants for the Building; (5) the cost of any work or service performed for any
tenant of the Building (including Tenant), whether at the expense of Landlord or
such tenant, to the extent that such work or service is in excess of the work or
service that Landlord is required to furnish Tenant under this Lease at the
expense of Landlord; (6) the cost of any electricity consumed in the Premises or
in any other areas of the Building that are leased to, or available for leasing
by, tenants; (7) Taxes and any amounts excluded from Taxes pursuant to the last
sentence of Section 2.04(b); (8) legal, bookkeeping and accounting fees and
expenses; (9) any cost if and to the extent Landlord is reimbursed therefor out
of insurance proceeds or otherwise, including, without limitation, if and to the
extent that any tenant of the Building is required pursuant to its lease or
other agreement with Landlord to reimburse Landlord therefor (other than by
means of operating expense reimbursement provisions contained in the lease or
other agreement of such other tenant); (10) all costs of alterations or
improvements to the Premises or the premises of any other tenant, except if and
to the extent that such alterations or improvements are performed in order to
comply with Laws, in which case such costs shall be included in Operating
Expenses (but only if such costs are not required to be capitalized under GAAP);
provided, that if such alterations or improvements are performed in order to
comply with Laws enacted after the date of this Lease and the costs of such
alterations or improvements are required to be capitalized under GAAP, such
costs shall be included in Operating Expenses in accordance with Section
2.05(e)(i)(J)(x); (11) all expenses which would not have been incurred but for
the negligence or willful misconduct of Landlord or Landlord's agents, servants,
employees, contractors, suppliers, or the negligence or willful misconduct of
another tenant; (12) any bad debt loss, rent loss or reserves for bad debts or
rent loss; (13) all costs associated with the operation of the business of the
partnership or entity which constitutes the Landlord, as the same are
distinguished from the costs of operation of the Building, including, without
limitation, partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee and costs of selling, syndicating, financing,
mortgaging or hypothecating any of Landlord's interests in the Building; (14)
all fines, penalties and interest (other than interest includable pursuant to
Section 2.05(e)(i)(J)); (15) all amounts paid by Landlord under any ground lease
(other than amounts which constitute a reimbursement to the ground lessor for
items which would have been included in Operating Expenses under this Lease if
the same were paid directly by Landlord); (16) any costs or expenses incurred
principally for the benefit of the retail portions of the ground floor and
concourse levels, or any portion of any other floor in the Building devoted to
retail operation; (17) all costs of capital improvements and any other capital
costs other than as expressly provided in Section 2.05(e)(i)(J); (18) all costs
arising from the presence of asbestos, PCB's or other hazardous materials or
substances in or about the Project (exclusive of any such costs with respect to
hazardous materials or substances (other than asbestos and PCB's) used in
compliance with applicable Laws in the ordinary course of operating and
maintaining the Project, which costs may be included in Operating Expenses);
(19) all costs incurred by Landlord with respect to goods and services
(including utilities sold and supplied to tenants and occupants of the Building)
to the extent that Landlord would be entitled to reimbursement from Tenant
(other than pursuant to this Section 2.05) for the cost of like goods and
services furnished to Tenant pursuant to this Lease; (20) expenses in connection
with services or other benefits which are not made available to Tenant but which
are made available to another tenant or occupant of the Building; (21) all
amounts (other than any management fees which shall be governed by Section
2.05(e)(i)(K) above) paid by Landlord to Affiliates of Landlord for services in
the Building to the extent that the same exceed the costs of such services
rendered by unaffiliated third parties on a competitive basis in first class
midtown Manhattan office buildings; (22) all compensation paid to clerks,
attendants or other persons in commercial concessions operated by Landlord; (23)
all costs associated with Landlord's political, civic or charitable
contributions (except if and to the extent includable pursuant to Section
2.05(e)(i)(L)); (24) all costs to acquire, install, maintain, insure, repair or
replace sculpture, paintings or other objects of art, other than holiday
decorations; (25) all costs of Landlord's general corporate overhead and general
and administrative expenses; provided, that the same are customarily charged as
overhead by, and are not separately reimbursed as operating expenses to, owners
of first class midtown Manhattan office buildings which are managed by the owner
or an Affiliate of the owner; (26) all costs which would not have been incurred
by Landlord but for the violation by Landlord or any tenant of the terms and
conditions of any lease of space in the Building; (27) any expenses for repairs
or maintenance if and to the extent the same are covered by warranties and
service contracts or would have been so covered had Landlord obtained a
commercially reasonable warranty with respect to the item in question (if and to
the extent Landlord was required to obtain such warranty in accordance with
Section 4.05(b) below); (28) new categories of Operating Expenses not included
in Landlord's Statement in respect of the Base Operating Year; provided, that
the cost of any category of Operating Expenses which was included in Landlord's
Statement in respect of the Base Operating Year and which ceases to be provided
by Landlord at any time after the Base Operating Year shall be excluded from the
Base Operating Amount from and after the date that such category of Operating
Expenses ceases to be provided by Landlord; and provided further, that any such
new category of Operating Expenses may be included in Operating Expenses, if,
from and after the Operating Year in which such new category is first included
in Operating Expenses, the Operating Expenses for the Base Operating Year are
grossed up to include the amount of such new category of Operating Expenses that
would have been incurred in the Base Operating Year had Landlord provided such
service or incurred such expense in the Base Operating Year; (29) the cost of
repairs or replacements incurred by reason of fire or other casualty to the
extent such costs are incurred because of Landlord's failure to maintain the
insurance required by Section 7.01(d) or because of Landlord's inability to
collect insurance proceeds due to Landlord's negligence or willful misconduct;
(30) any costs which duplicate costs for which Landlord is reimbursed by Tenant
under other provisions of this Lease; (31) the cost of temporary exhibitions
located at or within the Project (other than holiday decorations); and (32)
costs and expenses for which owners of first class midtown Manhattan office
buildings which are managed by the owner or an Affiliate of the owner and which
manager receives a management fee comparable to the management fee included in
Operating Expenses pursuant to Section 2.05(e)(i)(K) above are customarily
compensated as part of their management fee and are not separately reimbursed as
operating expenses.
(f) "Operating Year" means each calendar year in which occurs any part of
the Term.
(g) "Tenant's Operating Share" means a fraction, expressed as a percentage,
the numerator of which shall be the rentable square footage of the space from
time to time included in the Premises, and the denominator of which shall be
1,850,452 (the "Operating Denominator"). Exhibit H attached hereto sets forth
Tenant's Operating Share for each full floor of the Office Space and the Offer
Space. Any change in Tenant's Operating Share shall be effective from and after
each applicable Rent Commencement Date (or other date, with respect to any space
other than the Blocks and the Concourse Space, on which Tenant is required
pursuant to the terms of this Lease to commence making Operating Payments with
respect to such space) and Tenant's Operating Payments for any Operating Year in
which such a change occurs shall be adjusted accordingly. Landlord represents to
Tenant that the Operating Denominator was determined using the same standard of
measurement as that used to determine the rentable square footages set forth on
Exhibit H annexed hereto.
(h) For each Operating Year, including the Operating Year in which the Rent
Commencement Date with respect to any Block occurs, Tenant shall pay (each, an
"Operating Payment") Tenant's Operating Share of the amount by which Operating
Expenses for such Operating Year exceed the Base Operating Amount.
(i) If during any relevant period, including the Base Operating Year, (A)
any rentable space in the Building shall be unoccupied, and/or (B) the tenant or
occupant of any rentable space in the Building undertook to perform work or
services therein in lieu of having Landlord perform the same, such work or
services are of the same type as Landlord is required to provide to Tenant under
this Lease and the cost thereof would have been included in Operating Expenses,
then, in any such event, the Operating Expenses for such period shall be
increased to reflect the additional expenses (exclusive of any additional
management fee that would have been payable by reason of such increased
expenses) that would have been incurred, if any, if 100% of the rentable space
in the Building were occupied by tenants during such period or if Landlord had
performed such work or services with respect to 100% of the rentable space in
the Building, as the case may be.
(j) Landlord may furnish to Tenant, prior to the commencement of each
Operating Year, a statement substantially in the form attached to this Lease as
Exhibit I setting forth Landlord's reasonable estimate of the Operating Payment
for such Operating Year. In estimating the Operating Payment for any Operating
Year, the percentage increase in Operating Expenses for such Operating Year over
the Operating Expenses for the prior Operating Year shall not exceed the average
of the percentage increases in Operating Expenses from Operating Year to
Operating Year over the prior 3 Operating Years; provided, that if the
percentage increase in any component of Operating Expenses for the Operating
Year in question is reasonably expected to be higher than such average
percentage increase due to a demonstrable event which has occurred or is
reasonably likely to occur, then, for purposes of such estimate, Landlord shall
have the right to increase such component of Operating Expenses by such higher
percentage (in which event Landlord's statement setting forth such estimate
shall be accompanied by a detailed explanation of such higher increase). Tenant
shall pay to Landlord on the first day of each month during such Operating Year,
an amount equal to 1/12th of Landlord's estimate of the Operating Payment for
such Operating Year. If Landlord shall not furnish any such estimate for an
Operating Year or if Landlord shall furnish any such estimate for an Operating
Year subsequent to the commencement thereof, then (A) until the first day of the
second month following the month in which such estimate is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount equal to
the monthly sum payable by Tenant to Landlord under this Section 2.05 in respect
of the last month of the preceding Operating Year; (B) after such estimate is
furnished to Tenant, Landlord shall notify Tenant whether the installments of
the Operating Payment previously made for such Operating Year were greater or
less than the installments of the Operating Payment to be made in accordance
with such estimate, and (x) if there is a deficiency, Tenant shall pay the
amount thereof within 30 days after demand therefor, or (y) if there is an
overpayment, Landlord shall within 30 days refund to Tenant the amount thereof;
and (C) on the first day of the second month following the month in which such
estimate is furnished to Tenant and monthly thereafter throughout such Operating
Year Tenant shall pay to Landlord an amount equal to 1/12th of the Operating
Payment shown on such estimate. Landlord may, not more often than twice during
each Operating Year, furnish to Tenant a revised statement of Landlord's
estimate of the Operating Payment for such Operating Year, and in such case, the
Operating Payment for such Operating Year shall be adjusted and paid or refunded
as the case may be, substantially in the same manner as provided in the
preceding sentence; provided, that any such revised Landlord's estimate shall be
calculated in accordance with the limitation specified in the second sentence of
this Section 2.05(j).
(k) Landlord shall furnish to Tenant a Landlord's Statement for each
Operating Year (and shall endeavor to do so within 180 days after the end of
such Operating Year). If Landlord's Statement shall show that the sums paid by
Tenant, if any, under Section 2.05(j) exceeded the Operating Payment to be paid
by Tenant for the applicable Operating Year, Landlord shall within 30 days
refund to Tenant the amount of such excess; provided, that if the sums paid by
Tenant under Section 2.05(j) exceeded the actual Operating Payment by more than
2.5%, then such refund shall include interest thereon at the Prime Rate from the
date of the applicable payment by Tenant through the date of refund by Landlord
and if it is finally determined by arbitration in accordance with Section 8.09
that Landlord shall have so overcharged Tenant in bad faith, then such refund
shall include interest thereon at the Interest Rate (instead of at the Prime
Rate) from the date of the applicable payments by Tenant through the date of
refund by Landlord; and if the Landlord's Statement shall show that the sums so
paid by Tenant were less than the Operating Payment to be paid by Tenant for
such Operating Year, Tenant shall pay the amount of such deficiency within 30
days after demand therefor; provided, that if the sums paid by Tenant under
Section 2.05(j) were less than the actual Operating Payment by reason of the
limitation specified in the second sentence of Section 2.05(j), then such
payment by Tenant to Landlord shall include interest thereon at the Prime Rate
from the date such payments by Tenant would have been due but for said
limitation through the date of payment by Tenant pursuant to this Section
2.05(k).
(l) (i) Provided that Landlord's Statement with respect to a particular
Operating Year shall not have become conclusive and binding under the second
sentence of Section 2.05(l)(ii), Tenant, upon notice given at any time within 4
years after Landlord furnishes to Tenant a Landlord's Statement with respect to
any Operating Year (but subject to Section 8.04(a) below), may elect to have
Tenant's designated (in such notice) certified public accountant (who may be an
employee of Tenant) or other representative examine such of Landlord's books and
records (collectively "Records") as are relevant to such Landlord's Statement.
If Tenant shall not give such notice within such 4-year period, then such
Landlord's Statement shall be conclusive and binding upon Tenant. If, under
Section 8.04(a) below, Tenant's right to claim a refund of Operating Expenses
under this Section 2.05 shall have been cut off with respect to any period
without Tenant having asserted a claim to a refund for such period, then Tenant
shall no longer have the right to examine the Records for such period. "Records"
shall include, without limitation, sales tax reports and sales tax returns,
receipts, bank and check books and records supporting data maintained by
Landlord and related to Operating Expenses. Subject to the other provisions of
this Section 2.05(l)(i), Tenant's accountant or other representative shall be
permitted to examine the Records at the office of Landlord or Landlord's
managing agent in Manhattan at such time or times during normal business hours
as Landlord shall reasonably designate and Tenant shall be entitled, at its
expense, to make copies of any Records. Tenant and Tenant's employees,
accountants and agents shall treat all Records as confidential, and, upon
request by Landlord, shall confirm such confidentiality obligation in writing.
In no event shall the preceding sentence be deemed to limit Tenant's rights of
discovery and disclosure in any action or proceeding, or be construed so as to
prohibit Tenant from complying with the directive of any court or arbitrator.
(ii) Tenant, within 180 days after the date on which the Records are made
available to Tenant in response to a request by Tenant pursuant to Section
2.05(l)(i) above, may send a notice ("Tenant's Statement") to Landlord that
Tenant disagrees with the applicable Landlord's Statement, specifying in
reasonable detail the basis for Tenant's disagreement and the amount of the
Operating Payment Tenant claims is due. If Tenant fails timely to deliver a
Tenant's Statement, then such Landlord's Statement shall be conclusive and
binding on Tenant. Landlord and Tenant shall attempt to adjust such
disagreement. If they fail to resolve such disagreement within 90 days after the
date that Tenant gives Tenant's Statement to Landlord, either Landlord or Tenant
may notify the other that such party desires to have such disagreement
determined by arbitration in accordance with Section 8.09. Pending resolution of
such disagreement, (A) Tenant shall pay the undisputed portion(s) of the
Operating Payment in accordance with the Landlord's Statement in question (i.e.,
Tenant shall pay all undisputed components included in such Operating Payment
and, if Tenant shall be disputing the amount of any component included in such
Operating Payment (as opposed to the component itself), the undisputed amount of
such component), and (B) Tenant shall not be deemed to be in default under this
Lease for withholding payment of the disputed portion(s). If the arbitrator
shall determine that any disputed portion of such Operating Payment was required
to be paid by Tenant, Tenant shall pay to Landlord within, 30 days after such
determination, such disputed amount, together with interest thereon at the Prime
Rate from the date the applicable payments were required to be made by Tenant
pursuant to the provisions of this Section 2.05 through the date of payment by
Tenant pursuant to this Section 2.05(l)(ii); provided, that if the arbitrator
shall determine that Tenant disputed any portion of such Operating Payment in
bad faith, then such payment by Tenant shall include interest thereon at the
Interest Rate (instead of at the Prime Rate). (iii) Landlord, for at least 4
years after Landlord furnishes to Tenant a Landlord's Statement with respect to
any Operating Year, shall retain Records relating to payment of Operating
Expenses for such Operating Year. Subject to the other provisions of this
Section 2.05(l), Tenant's payment of any Operating Payment shall not preclude
Tenant from later disputing the correctness of any Landlord's Statement.
2.06 Tax and Operating Provisions. (a) Subject to Section 10.05(b), in any
case provided in Section 2.04 or 2.05 in which Tenant is entitled to a refund,
Landlord may, in lieu of making such refund, credit against future installments
of Rent any amounts to which Tenant shall be entitled. Nothing in this Article 2
shall be construed so as to result in a decrease in the Fixed Rent. If this
Lease shall expire before any such credit shall have been fully applied, then
Landlord shall within 30 days thereafter, but subject to Landlord's right to
offset any amounts then due and payable by Tenant to Landlord in accordance with
Section 10.05(a), refund to Tenant the unapplied balance of such credit.
(b) Landlord's failure to render or delay in rendering a Landlord's
Statement with respect to any Operating Year or any component of the Operating
Payment shall not prejudice Landlord's right to thereafter render a Landlord's
Statement with respect to any such Operating Year or any such component, nor
shall the rendering of a Landlord's Statement for any Operating Year prejudice
Landlord's right to thereafter render a corrected Landlord's Statement for such
Operating Year. Landlord's failure to render or delay in rendering a Tax
Statement with respect to any Tax Payment or installment thereof shall not
prejudice Landlord's right to thereafter render such Tax Statement, nor shall
the rendering of a Tax Statement for any Tax Payment or installment thereof
prejudice Landlord's right to thereafter render a corrected Tax Statement
therefor. Notwithstanding the foregoing, (i) if Landlord shall fail to render a
Landlord's Statement with respect to any Operating Year, or a Tax Statement with
respect to any Tax Year, within 1 year after the end of such Operating Year or
Tax Year, then Landlord shall be deemed to have waived its right to claim or
receive any additional Operating Payment for such Operating Year or Tax Payment
for such Tax Year, as the case may be and (ii) Landlord shall have no right to
render a corrected Landlord's Statement for any Operating Year or a corrected
Tax Statement for any Tax Year more than 4 years after the end of the applicable
Operating Year or Tax Year (or, if later in the case of Tax Statements, 4 years
after the last date on which costs applicable to the Tax Year in question were
incurred). If, under Section 8.04(a) below, Tenant's right to claim a refund of
Operating Expenses under Section 2.05 shall have been cut off with respect to
any period without Tenant having asserted a claim to a refund for such period,
then Landlord's right to render a corrected Landlord's statement with respect to
such period under the preceding sentence shall be cut off as of the same date
that Tenant's right was so cut off.
(c) The computations under this Article 2 are intended to constitute an
actual reimbursement to Landlord for Taxes and other costs and expenses incurred
by Landlord with respect to the Project as to which Tenant has agreed to
reimburse Landlord under this Lease. If the Building shall be condominiumized,
then Tenant's Operating Payments and Tax Payments shall, if necessary, be
equitably adjusted such that Tenant shall thereafter continue to pay its fair
share of the Taxes and Operating Expenses of the Building taken as a whole;
provided that Tenant shall not be required to pay an amount greater than the
amount Tenant would have been required to pay had the Building not been
condominiumized, unless the Building shall have been condominiumized at the
request of Tenant, in which case Tenant shall be responsible for any such
increased amounts.
(d) Each Tax Payment in respect of a Tax Year, and each Operating Payment
in respect of an Operating Year, which begins prior to the Rent Commencement
Date with respect to any Block or ends after the expiration or earlier
termination of this Lease, and any tax refund pursuant to Section 2.04(f), shall
be prorated to correspond to that portion of such Tax Year or Operating Year
occurring within the Term.
2.07 Electric Charges. (a) Tenant's demand for, and consumption of,
electricity in the Office Space shall be determined by meter or meters installed
(or, if existing, retrofitted) by Landlord to the extent Landlord is required to
install same as part of Landlord's Work, and otherwise by Tenant. Any such
meters so installed by Landlord shall measure only Tenant's demand for, and
consumption of, electricity and neither any electricity of any other tenant in
the Building nor any electricity used in the common areas of the Building.
Tenant shall pay for electric consumption within 15 days after rendition of a
bill therefor (but in no event more than 5 days before Landlord's payment for
the applicable period is due to the public utility), which bill shall reflect
the aggregate charge for electricity for the Premises, as determined by or on
behalf of Landlord separately for each meter. Within 60 days after request by
Tenant, Landlord shall install, at Tenant's reasonable expense, a meter to
measure Tenant's demand for, and consumption of, electricity in the Concourse
Space.
(b) The amount payable by Tenant for electricity consumed within the
Premises, whether determined by meters or as otherwise provided below, shall be
the amount (as adjusted from time to time, "Landlord's Rate") at which Landlord
from time to time purchases electricity for the same period from the utility
company (including all demand charges, consumption charges, surcharges, taxes,
fuel adjustments, taxes passed on to consumers by the public utility, and other
sums required to be paid to the public utility for such electricity). Landlord's
Rate shall be determined by dividing the cost charged with respect to the
Building by said utility during each respective billing period by the number of
KWHRs consumed by the Building as set forth on the utility company invoice for
such period.
(c) (i) If, prior to the installation of a separate meter, any portion of
Tenant's electric consumption is measured on a meter that also measures the
electric consumption of another tenant in the Building, (ii) if Tenant occupies
any portion of the Office Space prior to the installation of meters with respect
thereto, (iii) at all times in the case of the Concourse Space (unless a meter
is installed to measure Tenant's consumption therein), and/or (iv) in the case
of any Offer Space which constitutes less than 67% of the total rentable square
footage of the floor on which such Offer Space is located and with respect to
which there is no meter installed to measure the consumption of electricity
therein (it being agreed that Tenant shall have the right, at Tenant's expense
and in accordance with Section 4.02, to install a meter), then in each such case
Tenant's consumption of electricity shall be reasonably estimated by Landlord,
and Tenant shall pay Landlord's Rate as applied to such consumption (the
"Initial Charge"); provided, that in no event shall Tenant pay less than $2.00
per annum per rentable square foot of the Office Space and $1.00 per annum per
rentable square foot of the Concourse Space (which amounts shall be reduced to
$.75 per annum per rentable square foot with respect to any space in the
Premises during the period of Tenant's construction of initial Alterations to
such space), unless a survey conducted in accordance with Section 2.07(e)
indicates that the foregoing rates (other than the $.75 per annum per rentable
square foot charge applicable to Tenant's initial construction periods; it being
understood that such rate shall not be subject to increase or decrease, pursuant
to survey or otherwise) should be lower. The Initial Charge may only be changed
from time to time in accordance with Sections 2.07(d) and (e) below (the Initial
Charge, as so modified from time to time, is called the "Actual Charge").
(d) The Actual Charge may be adjusted by Landlord from time to time to
accurately reflect a change (if any) in Landlord's Rate, any such change to be
retroactive to the date of the change in Landlord's Rate.
(e) If at any time Landlord or Tenant believes that the Actual Charge does
not accurately reflect Tenant's demand for, and consumption of, electricity,
then such party may give a notice (the "Survey Notice") to the other requesting
that the Actual Charge be determined by survey in accordance with this Section
2.07(e). If either party gives a Survey Notice, then the parties shall select an
independent electrical consultant reasonably satisfactory to Landlord and Tenant
who shall survey the demand for, and consumption of, electricity by Tenant and,
if applicable, each other tenant who shares a submeter with Tenant, and the
Actual Charge shall be calculated by applying Landlord's Rate to such demand
for, and consumption of, electricity as determined by such electrical
consultant. Any such survey shall reflect the actual equipment amperage
readings. The determination by such electrical consultant shall be final and
binding on Landlord and Tenant. If the parties shall be unable to select an
electrical consultant reasonably satisfactory to Landlord and Tenant within 30
days after the giving of the Survey Notice, then either party shall have the
right to request the American Arbitration Association (or any successor
organization thereto) (the "AAA") to designate an independent electrical
consultant to conduct such survey and the determination of such electrical
consultant shall be final and binding on Landlord and Tenant. The fees of any
electrical consultant selected pursuant to this Section 2.07(e) shall be shared
equally by Landlord and Tenant. If applicable, any adjustment to the Actual
Charge shall be retroactive to the date of any relevant change in Tenant's
consumption as determined by the electrical consultant. Pending the
determination of such electrical consultant, Tenant shall continue to pay the
Actual Charge then being charged by Landlord, and within 30 days after the
determination by such electrical consultant, Landlord or Tenant shall make an
appropriate refund or payment, which refund or payment shall include interest at
the Prime Rate from the date of the applicable payments by Tenant in respect of
electricity through the date of such refund or payment. Surveys of Tenant's
electrical consumption shall be based upon the use of electricity during
Business Hours on Business Days, and on such other days and hours when
electricity is used in the Premises; and if cleaning services are provided by
Landlord, such survey shall include Landlord's normal cleaning hours of 5 hours
per day for lighting within the Premises and for electrical equipment normally
used for such cleaning. No party may give a Survey Notice more than two times in
any 12 month period.
(f) At Tenant's option, Landlord shall furnish and install all replacement
lighting, tubes, lamps, bulbs and ballasts required in the Premises, and Tenant
shall pay to Landlord or its designated contractor, within 30 days after receipt
of an itemized bill, the actual cost incurred by Landlord therefor.
(g) Tenant shall be entitled to the benefit of any payment or credit
received by Landlord from the public utility supplying electricity to the
Building by reason of energy saving devices installed by Tenant in the Premises.
Any application for such benefits or for any similar benefit program shall be
made by Tenant; provided, that at Tenant's request and at Tenant's expense (if
and to the extent Landlord incurs any out-of-pocket expenses therefor), Landlord
shall sign any application required for Tenant to obtain such benefits and shall
otherwise reasonably cooperate with Tenant's efforts to obtain such benefits.
2.08 Manner of Payment. Tenant shall pay all Rent as the same shall become
due and payable under this Lease (a) in the case of Fixed Rent, by wire transfer
of immediately available federal funds as directed by Landlord, in accordance
with wiring instructions given by Landlord at least 30 days in advance, such
instructions not to be changed by Landlord more than twice per year, and (b) in
the case of all other sums, at Tenant's election, either by wire transfer as
aforesaid or by check (subject to collection) drawn on a New York Clearing House
Association member bank, in each case at the times provided herein and, except
as otherwise provided in this Lease, without notice or demand and without
setoff, credit, counterclaim or abatement except such set-offs, credits and
abatements to which Tenant may be entitled pursuant to the express provisions of
this Lease. All Rent shall be paid in lawful money of the United States to
Landlord at its office or such other place (which shall be located in the
continental United States if Tenant is paying Rent by check) as Landlord may
from time to time designate. If Tenant fails timely to pay any Rent, Tenant
shall pay interest thereon from the date when such Rent became due to the date
of Landlord's receipt thereof at the Interest Rate; provided, that Tenant shall
not be required to pay such interest on any late Rent payment if both (i) such
late Rent payment is paid within 7 Business Days after the applicable due date
and (ii) including such late Rent payment, Tenant shall have failed timely to
make Rent payments no more than twice in any 12-month period and no more than 10
times in the aggregate during the Term. Any Additional Charges for which no due
date is specified in this Lease, or which this Lease describes as being due
"upon demand" (or like words), shall be due and payable on the 30th day after
the date of invoice.
ARTICLE 3
Landlord Covenants
3.01 Office Space Services . From and after the date that Tenant first
occupies the Office Space for the performance of Tenant's initial improvements
(or, in the case of cleaning and passenger elevator service (except as provided
in Section 4.01(a)(v)), for the conduct of Tenant's business), Landlord shall,
at Landlord's expense (except as otherwise expressly provided and subject to
reimbursement as part of Operating Expenses to the extent properly includable
therein), furnish Tenant with the following services to the Office Space
(collectively, "Landlord Services"):
(a) heat, ventilation and air-conditioning during Business Hours on
Business Days substantially in accordance with the design specifications set
forth in Exhibit G attached hereto; if Tenant shall request that Landlord
provide heat, ventilation or air conditioning services through the Building's
systems at any other times, Landlord shall furnish such service (i) in the case
of a Business Day, upon receiving notice from Tenant by 3:00 p.m. of such
Business Day, or (ii) in the case of a non-Business Day, upon receiving notice
from Tenant by 3:00 p.m. of the immediately preceding Business Day, and Tenant
shall pay to Landlord upon demand the charge therefor calculated in accordance
with the formula set forth on Exhibit X attached hereto (which calculation shall
be initially made upon Landlord's completion of the work being performed to the
VAV system as part of Landlord's Work and recalculated thereafter on an annual
basis to reflect changes in the costs for the utilities applicable to such
calculation); provided, that Tenant shall be entitled to receive, in the
aggregate, up to 100 hours of such after-hours heat, ventilation or air
conditioning services, without charge, during Tenant's initial move into the
Building (such after-hours services to be so provided without charge with
respect to the Block or Blocks into which Tenant is then moving). Landlord shall
provide at the Building an operating engineer to manage the Building's heating,
ventilating and air conditioning systems on a 24 hour per day, 7 day per week
basis. As part of Tenant's initial Alterations to the Blocks, Tenant shall have
the right in connection with the installation of Tenant's supplemental air
conditioning system (A) to tap into the Building's compressed air system;
provided, that in no event shall the draw from the Building's air supply exceed
2 SCFM and (B) to install, subject to and in accordance with the provisions of
Section 8.19(b) below, an independent air-cooled chilled water system and/or a
cooling tower on the 17th floor set-back in a location selected by Tenant and
mutually agreeable to Landlord and Tenant; provided, (x) that the location of
any such cooling tower shall be subject to Landlord's reasonable approval as to
line of sight and (y) Tenant shall install upon any such cooling tower a
cosmetic enclosure reasonably approved by Landlord. Upon request by Tenant,
Landlord shall make the operating engineering staff that services the Building
equipment available to service any such system in a timely manner (including in
case of an emergency) and Tenant shall pay to Landlord, within 30 days after
demand, Landlord's reasonable charges for such services. If Tenant does not
install such independent system, Landlord shall provide up to 200 tons of
condenser water to the Office Space on a year-round basis through the Building's
condenser water system. Whether or not Tenant installs such independent system,
Landlord shall provide up to 20 tons of condenser water for each additional full
floor of Offer Space included in the Premises from time to time (such 20 tons to
be appropriately pro rated in the case of any partial floor of Offer Space
included in the Premises). Tenant shall have the right, without charge, to tap
into the Building's condenser water system on any one or more floors of the
Premises in order to allow Tenant to receive such condenser water service in
such amounts per floor as Tenant may elect (subject to the aggregate maximum
amount set forth above) and to receive the condenser water service to be
provided by Landlord to the Primary Concourse Space in accordance with Section
3.02. Tenant shall pay to Landlord, within 30 days after demand, Landlord's
reasonable estimate of the actual cost (excluding any depreciation of the
Building's condenser water system) of providing such condenser water (which, as
of the date of this Lease, is $.03 per ton hour). Such condenser water shall be
provided in accordance with the specifications attached to this Lease as Exhibit
P. Landlord shall retain a condenser water specialist throughout the Term to
ensure that the Building's condenser water system is maintained in a condition
so that the same is capable of meeting such specifications. Wet connections to
the Building's condenser water system are not permitted. Upon 45 days prior
notice, Landlord shall perform any draindowns and refills required for Tenant's
connection to the Building's condenser water system (including Tenant's
connection thereto for purposes of receiving the condenser water service to be
provided by Landlord to the Primary Concourse Space in accordance with Section
3.02) without charge to Tenant (subject to reimbursement as part of Operating
Expenses to the extent properly includable therein);
(b) steam, if required by Tenant for any additional heating or permitted
kitchen use, in which event Tenant shall pay to Landlord, within 30 days after
demand, Landlord's reasonable estimate of the actual cost (excluding any
depreciation of the Building's piping and other equipment used to supply steam
to the Office Space) of providing such steam; Tenant shall have the right,
without charge, to tap into the valved outlet to be installed by Landlord in
accordance with Paragraph 19 of Exhibit F annexed hereto; if Tenant uses the
Building's steam, Tenant shall install in accordance with Landlord's
specifications, and Landlord shall maintain, at Tenant's reasonable expense,
meters to measure Tenant's consumption of steam;
(c) (i) (A) provided this Lease has not terminated as to any of the Office
Space included in the Block A Space, the Block B Space and the Block C Space,
exclusive use of 4 passenger elevators in the elevator bank serving floors 7-15
(provided, that until the tenant that occupies the Block B Space on the date of
this Lease vacates the same, Tenant shall have the exclusive use of only 2
passenger elevators in such elevator bank), and (B) provided this Lease has not
terminated as to any of the Office Space in the Block A Space, exclusive use of
all passenger elevators in the elevator bank serving floors 15-22, in each case
to provide passenger elevator service to the applicable floors of the Office
Space at all times during Business Hours on Business Days, with at least one
passenger elevator in the elevator bank serving floors 7-15 and one passenger
elevator in the elevator bank serving floors 15-22 subject to call at all other
times and (ii) freight elevator service to the Office Space 24 hours per day,
365 days per year, on a first come-first served basis (i.e., no advance
scheduling) during Business Hours on Business Days, and on a reserved basis at
all other times, and Tenant shall reimburse Landlord for the reasonable costs
therefor; provided, that Tenant shall be entitled to receive up to the following
number of man-hours of such overtime freight elevator usage, without charge,
during Tenant's initial move into the Blocks (as distinguished from usage during
Tenant's construction of its initial Alterations, which is provided for in
Section 4.01(a)(iv) below): up to 335 man-hours during Tenant's initial move
into the Block A Space; up to 158 man-hours during Tenant's initial move into
the Block B Space and up to 92 man-hours during Tenant's initial move into the
Block C Space; except as set forth in Section 4.01(a)(iv), the use of all
freight elevators shall be on a nonexclusive basis; upon completion of the Lobby
Renovation Work, such passenger elevators serving the Office Space shall meet
the specifications attached to this Lease as Exhibit R; if at any time this
Lease shall have been terminated as to any of the Office Space included in the
Block A Space, the Block B Space and the Block C Space, then Tenant shall
continue to receive passenger elevator service commensurate with the amount of
space then Leased by Tenant in the applicable bank; Landlord shall reprogram (x)
the other 4 passenger elevators not serving the Office Space in the elevator
bank serving floors 7-15 so that such elevators do not stop on any floors
included in the Premises and (y) all passenger elevators in the elevator bank
serving floors 22-29 so that such elevators do not stop on the 22nd floor;
Tenant shall have the right to use the passenger elevators serving the Office
Space in connection with Tenant's move into the Office Space; provided, that
Tenant shall comply with such reasonable rules and regulations as Landlord may
prescribe for such use (including, without limitation, reasonable rules and
regulations requiring Tenant to protect the elevators and the Building lobby to
prevent damage thereto); if the tenant that occupies the Block B Space on the
date of this Lease holds over in the Block B Space after the date that Tenant
first occupies any portion of the Office Space in the elevator bank serving
floors 7-15 for the conduct of business, Landlord and Tenant shall reasonably
cooperate with each other with respect to the security of Tenant's passenger
elevators in such elevator bank;
(d) reasonable quantities of hot and cold water to the floors on which the
Office Space is located for core lavatory, pantry and cleaning purposes only and
cold water to the floors on which the Office Space is located for private
showers and lavatories and water cooler purposes only; if Tenant requires water
for any other purpose, Landlord shall furnish cold water at the Building core
riser through a capped outlet located on the floor on which such water is
required (within the core of the Building); Tenant shall install in accordance
with Landlord's specifications, and Landlord shall maintain, at Tenant's
reasonable expense, meters to measure Tenant's consumption of cold water and/or
hot water for such other purposes in which event Tenant shall reimburse Landlord
for the quantities of cold water and hot water shown on such meters (including
the reasonable cost incurred by Landlord for the production of such hot water,
if produced by Landlord), within 30 days after receipt of an itemized bill
therefor;
(e) electric energy in accordance with the specifications attached to this
Lease as Exhibit J; Tenant shall have the right to redistribute the electric
energy provided to Tenant in accordance with Exhibit J between the floors of the
Premises; provided, that Tenant, at its expense, performs such work in
compliance with the provisions of Section 4.02 and all applicable Laws and
installs any additional meters necessary to measure such redistributed electric
energy; if Tenant demonstrates the need for additional electric power for
Tenant's use and occupancy of the Office Space as general and executive offices
(without limiting the foregoing, specifically excluding any such need by reason
of trading floors or large computer rooms), upon request by Tenant, Landlord
shall make available to Tenant additional electric energy sufficient to provide
Tenant with up to 8 watts demand load per rentable square foot per floor of the
Office Space (inclusive of the electric power already being made available to
Tenant as provided in Exhibit J of this Lease, other than the electricity being
provided by the express riser to be installed by Landlord in accordance with
paragraph 27 of Exhibit F); except as set forth above, Tenant shall have no
right to any unallocated power available in the Building;
(f) subject to Section 3.04(e), cleaning services in accordance with
Exhibit E attached hereto. Tenant shall pay to Landlord, within 30 days after
receipt of an itemized bill therefor, the reasonable costs incurred by Landlord
for (i) extra cleaning work in the Office Space required because of (A) misuse
on the part of Tenant, its subtenants or their respective employees or visitors
and/or (B) interior glass partitions or an unusual quantity of interior glass
surfaces and (ii) removal from the Office Space and the Building of any refuse
of Tenant (A) in excess of that ordinarily accumulated in business office
occupancy, including, without limitation, kitchen refuse, or (B) if requested by
Tenant or if required by reason of the acts or (where Tenant has an affirmative
obligation to act pursuant to the terms of this Lease) omissions of Tenant, its
agents, employees or contractors, at times other than Landlord's standard
cleaning times (i.e., at times other than between 5:00 p.m. and midnight on
Business Days). Notwithstanding the foregoing, Landlord shall not be required to
clean any portions of the Office Space used for preparation, serving or
consumption of food or beverages, training rooms, data processing or reproducing
operations, private lavatories or toilets or other special purposes requiring
greater or more difficult cleaning work than office areas and Tenant shall
retain Landlord's cleaning contractor or any other contractor reasonably
acceptable to Landlord (which will utilize the same union local as Landlord's
cleaning contractor) to perform such cleaning at Tenant's expense. Landlord's
cleaning contractor shall have access to the Office Space after 6:00 p.m. and
before 8:00 a.m. and shall have the right to use, without charge therefor, all
light, power and water in the Office Space reasonably required to clean the
Office Space. Tenant shall have the right (x) to use Tenant's employees to
perform day porter services in the Office Space and/or (y) provided the same
does not disturb harmony with any trade engaged in performing any other work in
the Building or create any actual interference with the operation of the
Building, to hire day porters to perform day porter services in the Office
Space;
(g) except as expressly provided in Section 4.01(a)(iii), use of the
Building's loading docks between the hours of 6:00 a.m. and 6:00 p.m. on
Business Days, on a first come-first served basis (i.e., no advance scheduling)
and on a reserved basis at all other times, and Tenant shall pay Landlord's
actual out-of-pocket costs for such after-hours use of the loading docks;
(h) Landlord shall reasonably cooperate with Tenant, at Tenant's expense
(if Landlord incurs any out-of-pocket expenses therefor), so that Tenant may
obtain gas service from the public utility and, upon reasonable prior notice
from Tenant, shall provide any necessary shutdowns required for Tenant's tap
into the gas riser and Tenant shall pay to Landlord the actual out-of-pocket
costs incurred by Landlord in connection with such shutdown (provided, that such
shutdown shall be at no charge to Tenant if performed as part of Tenant's
initial Alterations to the Blocks); and
(i) the ambient noise level in the Office Space, measured 8 feet from the
induction units therein, shall not exceed NC 45, excluding any noise caused by
any of Tenant's Fixtures or Tenant's Property.
3.02 Concourse Space Services . From and after the date that Tenant first
occupies the Concourse Space for the performance of Tenant's initial
improvements therein, Landlord shall, at Landlord's expense (except as otherwise
expressly provided and subject to reimbursement as part of Operating Expenses to
the extent properly includable therein), furnish Tenant with the following
services to the Concourse Space:
(a) heat, ventilation and air-conditioning to the Primary Concourse Space
during Business Hours on Business Days substantially in accordance with the
design specifications set forth in Exhibit G attached hereto, but based upon (i)
an electric heat dissipation load of 4 watts per usable square foot and (ii) an
occupancy rate of 1 person per 300 usable square feet, and ventilation to the
Secondary Concourse Space during Business Hours on Business Days;
(b) freight elevator service in the same manner described in Section
3.01(c)(ii);
(c) electric energy at a 400 amp. fuse disconnect switch at 480 volts
located in the switchgear room (Tenant being responsible for bringing such
electric energy from such switch to the Concourse Space);
(d) from and after the completion, in accordance with Section 4.01(a)(xi)
below, of the work necessary to provide such service, 2 of the 4 passenger
elevators in the elevator bank serving floors 7-15 which serve the Office Space
shall also serve the Concourse Space during Business Hours on Business Days,
with at least one of such passenger elevators subject to call at all other
times; (e) up to 20 tons of condenser water to the Primary Concourse Space on a
year-round basis through the Building's condenser water system; and (f)
reasonable quantities of hot and cold water to the Primary Concourse Space for
core lavatory, pantry and cleaning purposes only.
3.03 Other Building Services . (a) Landlord shall employ, or cause to be
provided, the services of a staff comparable to the staffs of comparable
first-class office buildings in midtown Manhattan to perform all of the services
that Landlord is obligated to perform pursuant to this Lease. Landlord shall
operate and maintain the Building and all systems servicing the Building in a
first-class manner.
(b) Landlord shall provide Building security in accordance with the
specifications attached to this Lease as Exhibit L; provided, that Landlord
shall have the right to modify such specifications during the Term so long as
Building security is provided in a manner which is equal to or better than the
level of security set forth in the specifications attached to this Lease as
Exhibit L.
(c) Landlord shall maintain listings on the Building directory of the name
of Tenant and/or Tenant's permitted subtenants, and the names of their
respective officers and employees; provided, that, unless Landlord shall have
installed in the Building a computerized directory, the names so listed shall
equal the product of (i) Tenant's Operating Share and (ii) the total number of
listings available on such directory. Landlord shall install a computerized
Building directory on or before the Phase II Target Date. If Landlord removes
the manual directory existing on the date of this Lease prior to the
installation of such computerized directory, Landlord shall provide a lobby
attendant during Business Hours on Business Days to direct visitors to the
tenants of the Building.
(d) Landlord shall retain a qualified independent contractor to test, not
less often than once in any 12 month period, the indoor air quality in the
Building. Upon request of Tenant, Landlord shall provide to Tenant a copy of the
report of any such test.
(e) Landlord shall retain a New York State certified laboratory to test and
evaluate the Building water annually (or, at Tenant's expense, more frequently
upon reasonable request of Tenant) to detect bacteriological contamination and
levels of priority metals, including, without limitation, lead. Upon request of
Tenant, Landlord shall provide to Tenant a copy of the report of any such test.
3.04 General Provisions . (a) Except as provided elsewhere in this Lease,
Landlord shall have no liability to Tenant by reason of any stoppage or
interruption of any Landlord Service, electricity or other service or the use of
any Building facilities and systems. Landlord shall provide Tenant with such
advance notice, if any, as is reasonable under the circumstances of such
stoppage or interruption. Landlord shall use commercially reasonable efforts
(including the use of overtime labor to the extent that the curing of the
problem in question is within Landlord's reasonable control) to begin and
diligently prosecute to completion such repairs as may be required to machinery
or equipment within the Project to provide restoration of any Landlord Service
as promptly as possible and in a manner so as to minimize interference with
Tenant's use and enjoyment of the Premises, and, where the cessation or
interruption of such Landlord Service has occurred due to circumstances or
conditions beyond the Project boundaries, to cause the same to be restored by
diligent application or request to the provider. To the extent reasonably
possible, Landlord shall confine all such stoppages within Landlord's reasonable
control to times that are not Business Hours.
(b) Without limiting any of Landlord's other rights and remedies, if Tenant
shall be in default of any Fixed Rent or recurring Additional Charges after
notice and beyond all applicable grace periods, Landlord shall not be obligated
to furnish to the Premises any service outside of Business Hours on Business
Days, and Landlord shall have no liability to Tenant by reason of any failure to
provide, or discontinuance of, any such service; provided, that if Tenant shall
pay to Landlord, in advance, the cost payable by Tenant under this Lease for any
such service, Landlord shall furnish such service in accordance with this Lease.
(c) "Business Hours" means 8:00 a.m. to 6:00 p.m. "Business Days" means all
days except Saturday, Sundays, New Year's Day, Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Thanksgiving, the day following Thanksgiving,
Christmas and any other days which are designated as a holiday by the applicable
Building Service Union Employee Service contract or Operating Engineers
contract. Notwithstanding the foregoing, for purposes of any Notice which may or
is required to be given by either party to the other under this Lease, "Business
Days" shall exclude any days which are observed by both the federal and the
state governments as legal holidays.
(d) In no event shall Tenant's consumption of electricity exceed the
capacity of existing feeders to the Building or the risers or wiring serving the
Premises.
(e) (i) Tenant may, upon not less than 60 days prior notice to Landlord (the
"Direct Cleaning Notice"), elect to contract directly with Landlord's cleaning
contractor for the cleaning of the Office Space. Within 30 days after the
delivery of the Direct Cleaning Notice to Landlord, Tenant shall submit to
Landlord Tenant's specifications for the cleaning of the Office Space. Upon
receipt of such specifications, Landlord shall submit the same to the contractor
who is cleaning the Building, and shall obtain from such contractor a bid which
specifies the portion of the total bid price for cleaning the Building which is
allocable to the cleaning of the Office Space. Provided that the bid submitted
by such contractor is reasonably competitive, Tenant shall retain such
contractor for the cleaning of the Office Space. If such bid is not reasonably
competitive, or if Tenant shall in good faith determine that the cleaning
services provided by Landlord's contractor are not satisfactory, Tenant may
retain another contractor reasonably acceptable to Landlord (which will utilize
the same union local as Landlord's cleaning contractor) for the cleaning of the
Office Space; provided, that if Tenant retains a contractor other than
Landlord's contractor, then (A) any reasonable out-of-pocket security expenses
incurred from time to time by Landlord (which expenses would not have been
incurred but for the presence of more than one cleaning contractor in the
Building) shall be paid by Tenant within 30 days after demand therefor;
provided, that Landlord shall have substantiated to Tenant both the amount
thereof and the need therefor, (B) Tenant's contractor shall store all of its
equipment and supplies and material within the Premises, and Landlord shall
furnish no space therefor; except that (x) with respect to floors of the
Premises which are fully leased to Tenant, Tenant shall have the right to use
the janitor closets on such floors to store such equipment, supplies and
materials; and (y) upon request by Tenant, Landlord shall lease to Tenant up to
200 rentable square feet in the sub-cellar of the Building or in another
location in the Building selected by Landlord (with Landlord to endeavor to
select a location at which running water is available) for locker space for
Tenant's cleaning contractor (and Landlord and Tenant shall execute and exchange
an amendment to this Lease to reflect the leasing of such locker space by
Tenant; provided, that (1) Tenant shall not pay Fixed Rent, Tax Payments or
Operating Payments in respect of such space, nor shall Tenant's Tax Share or
Tenant's Operating Share be affected by the leasing of such space and (2)
Landlord shall not be required to perform any work or pay any amounts in
connection with such space), and (C) Tenant shall bag and place all rubbish,
garbage, waste and other debris in an area within the Premises reasonably
designated by Landlord daily prior to the hour that Tenant's contractor's
employees are required to leave the Building and Tenant shall arrange with the
contractor designated by Landlord or at Landlord's option Landlord shall
arrange, at Tenant's reasonable expense, for removal of such items from the
Premises to the Building loading dock at such times as are reasonably designated
by Landlord. If Tenant increases the number of cleaning personnel beyond the
number of cleaners which would be assigned to clean the Office Space if Landlord
were doing such cleaning (such increased number of cleaners are called "Excess
Cleaners"), then Tenant shall cause Tenant's cleaning contractor to have such
Excess Cleaners perform "special cleaning services", and Tenant shall be solely
responsible for all termination costs in connection with the termination of the
Excess Cleaners at such time as Tenant no longer cleans its own Office Space
whether by reason of the expiration of this Lease or otherwise. If Tenant shall
elect to contract directly with another cleaning contractor in accordance with
this Section 3.04(e)(i), then, upon request by Tenant, Landlord shall notify
Tenant of the number of cleaning personnel which would be assigned to clean the
Office Space if Landlord were doing such cleaning. Tenant shall pay the
contractor retained by Tenant directly for the cost of cleaning the Office
Space, and Landlord shall not be required to clean the Office Space or any part
thereof. Notwithstanding the foregoing, Landlord shall supervise the work of any
contractor performing cleaning services in the Office Space (at Tenant's
request, such supervision to include taking such reasonable measures to ensure
the security of the Premises as would be taken by Landlord if Landlord were
contracting with such cleaning contractor) but only Tenant shall have the right
to enforce the contractor's obligations. During and for the period that Tenant
shall be receiving cleaning services directly from a contractor and not from
Landlord, Tenant shall pay to Landlord, as Additional Charges, a supervisory fee
(the "Supervisory Fee") equal to 2-1/2% of the sums that would have been due by
Landlord to Landlord's cleaning contractor to provide to the Premises the
cleaning services specified in Exhibit E, which fee shall be paid by adjustment
to the Fixed Cleaning Rent, as described in Section 3.04(e)(ii) below. (ii) If
and so long as Tenant obtains cleaning under Section 3.04(e)(i) above, then (A)
there shall be excluded from Operating Expenses all costs incurred for the
cleaning of the Office Space in accordance with Exhibit E and the Building
standard cleaning of all other tenant areas of the Building, (B) Operating
Expenses for the Base Operating Year shall be reduced by the cost (the "Base
Cleaning Cost") incurred by Landlord in the Base Operating Year for the cleaning
of the Office Space in accordance with Exhibit E and the Building standard
cleaning of all other tenant areas of the Building (provided that there shall be
no retroactive Operating Payment resulting from such reduction in the Base
Operating Year), and (C) the Fixed Rent provided in Section 2.02 shall be
reduced by an amount equal to the Fixed Cleaning Rent. "Fixed Cleaning Rent"
means the amount determined from time to time by (x) multiplying (1) the
quotient obtained by dividing the Base Cleaning Cost by the Operating
Denominator, and (2) the number of rentable square feet from time to time
constituting the Office Space and (y) subtracting from such product the
applicable Supervisory Fee. (iii) If Tenant shall elect to contract directly
with another cleaning contractor in accordance with Section 3.04(e)(i) above for
the provision of cleaning services to the Office Space, Tenant may discontinue
obtaining cleaning services from such contractor and require Landlord, upon not
less than 30 days prior notice, to clean the Office Space in accordance with the
provisions of Section 3.01(f). If Tenant elects to have Landlord resume
furnishing cleaning to the Office Space, then if and so long as Tenant receives
cleaning from Landlord, (A) there shall be included in Operating Expenses the
cost and expenses incurred for the cleaning of the Office Space in accordance
with Exhibit E and the Building standard cleaning of all other tenant areas of
the Building, (B) Operating Expenses for the Base Operating Year shall be
increased by the Base Cleaning Cost and (C) the Fixed Rent provided in Section
2.02 shall be increased by the Fixed Cleaning Rent.
(f) Any provision of this Lease which provides that Landlord or employees
of Landlord shall perform a service for Tenant at Tenant's cost, charge or
expense shall be deemed to mean that Landlord or Landlord's designated
contractor shall perform such service and Tenant shall pay such cost, charge or
expense for such service to, at Landlord's election, either Landlord or such
contractor (subject to the relevant provisions of this Lease with respect to
timing of payment, furnishing of back-up and Tenant's dispute rights).
(g) Prior to the first billing (and any time thereafter at the request of
Tenant) of any Landlord Service for which the payment that Landlord is entitled
to be reimbursed by Tenant requires a computation to determine Landlord's cost
of providing such service, Tenant shall be given a reasonable opportunity to
review such computation. With respect to all Additional Charges invoiced by
Landlord to Tenant, other than Tax Payments, Operating Payments and payments in
respect of electricity (which remain subject to the relevant provisions of this
Lease with respect thereto), Landlord shall provide to Tenant, within 5 Business
Days after notice from Tenant, such back-up as Tenant may reasonably request
with respect to the amount of such invoice.
(h) Any installation or item of work permitted or required to be made by
Tenant under this Article 3 shall be made in accordance with the provisions of
Section 4.02.
ARTICLE 4
Leasehold Improvements; Tenant Covenants
4.01 Initial Improvements. (a) (i) Landlord shall perform or cause to be
performed in each Block the work described on Exhibit F ("Landlord's Work"). All
Landlord's Work shall be performed by Landlord at Landlord's expense, except for
the work described in Paragraph 27 of Exhibit F which shall be performed by
Landlord at Tenant's reasonable expense. Subject to delays by reason of Force
Majeure and/or Tenant Delays, Landlord shall, with respect to each Block (A)
perform each item of Landlord's Work which, as set forth on Exhibit F, is a
condition to delivery of such Block, in a manner so that the same shall be
substantially completed on or before the Fixed Relevant Date applicable to such
Block and (B) perform each item of Landlord's Work which, as set forth on
Exhibit F, is not a condition to delivery of such Block, in a manner so that the
same shall be substantially completed on or before the date set forth for such
substantial completion on Exhibit F. All initial improvements that Tenant
desires to make to the Premises which do not constitute Landlord's Work shall
constitute Alterations and shall be performed by Tenant at Tenant's expense in
accordance with Section 4.02. Subject to delays by reason of Force Majeure,
within 1 year after the last Relevant Date with respect to any Block, Tenant
shall have expended not less than $45 per rentable square foot of such Block in
connection with Tenant's initial Alterations in such Block (inclusive of soft
costs). (ii) As part of Tenant's initial Alterations to the Blocks and any other
space included in the Premises, Tenant shall have the right to tie-into the
Building's Class E system through a sub-panel and to install on any stair tower
re-entry doors in the Premises electronic locks which fail-safe open tied to the
Building's Class E system through a sub-panel. In no event shall any direct
tie-ins to the Building's Class E system be permitted. (iii) During Tenant's
initial Alterations to the Blocks, upon reasonable notice to Landlord and
subject to reasonable scheduling requirements of Landlord, Landlord shall make
the Building's loading docks available (A) from 4:00 a.m. until 6:00 p.m. each
Business Day, at no charge to Tenant and (B) at other times, for which Tenant
shall pay to Landlord $28 per hour in the case of Tenant's initial Alterations
to the Block A Space and the Block B Space and Landlord's actual cost per hour
in the case of Tenant's initial Alterations to the Block C Space.
Notwithstanding the foregoing, Landlord shall only be obligated to make such
loading docks available to Tenant (x) for the period commencing on the first
Relevant Date applicable to the Block A Space or the Block B Space through and
including the last day of the 9-month period commencing on the last Relevant
Date applicable to the Block A Space or the Block B Space and (y) for a 9-month
period commencing on the Relevant Date applicable to the Block C Space. (iv)
During Tenant's initial Alterations to the Block A Space and the Block B Space,
Landlord shall dedicate 1 freight elevator car to Tenant between the hours of
4:00 a.m. and 6:00 p.m. on Business Days; provided, that the Building's other
freight elevator car shall then be operational (and if either freight elevator
shall not be in service, Landlord shall use commercially reasonable efforts to
repair same); and provided further, that such dedicated freight elevator car
shall at all times be operated by Building personnel. Notwithstanding the
foregoing, Landlord shall only be obligated to dedicate such freight elevator
car to Tenant for the period commencing on the first Relevant Date applicable to
the Block A Space or the Block B Space through and including the last day of the
9-month period commencing on the last Relevant Date applicable to the Block A
Space or the Block B Space. During such Alterations, Tenant shall not be charged
for overtime freight elevator usage except for any such usage between the hours
of 6:00 p.m. and 4:00 a.m. on Business Days and at any time on days other than
Business Days; provided, that Tenant shall not be charged for the first 20 man
hours of such overtime freight elevator usage. (v) During Tenant's initial
Alterations to the Blocks, Tenant shall have the non-exclusive right, but
subject to the schedule for the elevator renovations and upgrades to be
performed by Landlord as part of the Lobby Renovation Work, to use (A) the
passenger elevators in the elevator bank serving floors 15-22 and (B) 2
passenger elevators in the elevator bank serving floors 7-15 (which passenger
elevators are the same elevators being made available to Tenant in accordance
with Section 3.01(c)(i)(A) above and are not in addition to such elevators), for
transporting construction personnel; provided, that (w) such personnel shall
enter the Building from the 52nd Street entrance or such other entrance as
Landlord shall reasonably designate, (x) Tenant shall be responsible for any
costs for union personnel to operate such elevators and for any damage caused to
such elevators by Tenant's construction personnel after the renovation of such
elevators (or before such renovation if and to the extent such damage increases
the cost of such renovation), (y) such elevators shall be used solely for
transporting Tenant's construction personnel and in no event shall the same be
used for transporting any equipment, machinery, tools, materials or supplies
other than hand tools and other small items and (z) the use of such elevators
shall be subject to such reasonable rules and regulations as Landlord may
prescribe for such use (including, without limitation, reasonable rules and
regulations requiring Tenant to take certain actions to prevent damage to such
elevators). If Tenant or Tenant's construction personnel shall at any time fail
to comply with any of the foregoing requirements, upon notice to Tenant by
Landlord specifying such failure, Tenant shall immediately cease such improper
use of the passenger elevators. If Tenant or Tenant's construction personnel
fail to comply with any of the foregoing requirements more than 2 times, then,
upon notice from Landlord, Tenant shall have no further right to use such
passenger elevators. If Tenant disputes any determination by Landlord that
Tenant or Tenant's construction personnel violated any of the foregoing
requirements, such dispute shall be resolved by arbitration pursuant to Section
8.09, and, pending the resolution of such dispute, Tenant shall have no right to
use such elevators for transporting construction personnel. Anything to the
contrary contained in this Section 4.01(a)(v) notwithstanding, Tenant shall only
have the right to use such passenger elevators for transporting construction
personnel in accordance with this Section 4.01(a)(v) (1) for the period
commencing on the first Relevant Date applicable to the Block A Space or the
Block B Space through and including the last day of the 9-month period
commencing on the last Relevant Date applicable to the Block A Space or the
Block B Space and (2) for a 9-month period commencing on the Relevant Date
applicable to the Block C Space. (vi) As part of Tenant's initial Alterations to
the Premises, Tenant shall perform the work set forth on Exhibit Q annexed
hereto ("Tenant's Required Work"). If any Unforeseen Condition arises during the
performance by Tenant of any item of Tenant's Required Work, Tenant shall
promptly notify Landlord thereof. Landlord shall at Landlord's option, either
remedy such Unforeseen Condition at Landlord's expense using commercially
reasonable diligence or, provided Landlord and Tenant agree as to the scope of
and cost of the work to be performed, have Tenant remedy such Unforeseen
Condition and reimburse Tenant for the incremental costs reasonably incurred by
Tenant to remedy such Unforeseen Condition. "Unforeseen Condition" means any
condition affecting the Building structure or Building systems (i) which
increases the cost to Tenant of performing any item of Tenant's Required Work
above the amount of the work allowance provided by Landlord to Tenant for the
performance thereof as specified on Exhibit Q annexed hereto and (ii) which
Tenant did not have actual knowledge of prior to the date of this Lease, or
reasonably should have had knowledge of based upon the joint inspection of the
Premises, the Building structure and Building systems conducted by Landlord and
Tenant prior to the date of this Lease. (vii) As part of Tenant's initial
Alterations to the Blocks, Landlord shall permit NYNEX, at Tenant's expense, to
install a second port of entry into the Building; provided, that such
installation shall be performed in accordance with all provisions of this Lease
applicable to Alterations (including, without limitation, Landlord's right to
approve plans and specifications therefor) and such port of entry shall be
installed in one of the 3 locations indicated on Exhibit S annexed hereto.
(viii) During Tenant's initial Alterations to the Block A Space and the Block B
Space (but not after the date that is 9 months after the Relevant Date
applicable to the last space included in the Block B Space), Tenant shall have
the exclusive right to use, without charge, the portion of the sub-cellar floor
of the Building substantially as shown hatched on the plan thereof attached
hereto as Exhibit B-14 (the "Sub-Cellar Space") as a staging area. If, in
connection with Tenant's use of the Sub-Cellar Space as a staging area for the
construction of Tenant's initial Alterations to the Block A Space and the Block
B Space, Tenant shall have demolished any portion of the cinder block demising
wall of the Sub-Cellar Space, then promptly following the last day on which
Tenant has the right to so use the Sub-Cellar Space under this Section
4.01(a)(viii), Tenant shall restore such wall to not less than the condition it
was in upon delivery of the Sub-Cellar Space to Tenant. During Tenant's initial
Alterations to the Block C Space, and if and for so long as at any other time
during the Term Tenant undertakes Alterations of a scope which in accordance
with good construction practice reasonably requires a staging area located
outside of the Premises, Landlord shall make available to Tenant, without
charge, either the Sub-Cellar Space or other suitable space in the Building as a
staging area. Notwithstanding the foregoing, Landlord shall only be obligated to
make such staging area available to Tenant in connection with (A) Tenant's
initial Alterations to the Block C Space (or any applicable portion thereof),
for the 9-month period commencing on the Relevant Date applicable to the Block C
Space (or such portion thereof) and (B) any other Alterations, if Landlord has
space available in the Building at the time of such Alteration and, if Landlord
does have available space, then such space shall be made available to Tenant
only for a reasonable period of time commensurate with the scope of work being
performed by Tenant. Tenant, at its expense, shall be solely responsible for
providing security to any staging area made available to Tenant pursuant to this
Section 4.01(a)(viii) and Landlord shall have no liability for any loss or
damage to any item of Tenant's property stored in such staging area. (ix)
Without limiting the generality of any other provision of this Lease, if, with
respect to any Block, Landlord shall fail to substantially complete the work
described in paragraph 24 of Exhibit F (i.e., installation of isolation dampers
and modification of fans) on or before the date required for such substantial
completion as set forth on Exhibit F, subject to extension for Tenant Delays,
Landlord shall reimburse Tenant for any incremental costs reasonably incurred by
Tenant by reason of such failure, such reimbursement to be made within 30 days
after submission by Tenant to Landlord of reasonably detailed invoices
substantiating such costs. (x) Upon reasonable notice to Landlord (which notice
may be oral), Tenant shall have the right to enter, inspect and monitor the
Premises during the course of Landlord's Work. If and to the extent that such
entry, inspection and monitoring is performed in accordance with good
construction practices, the same shall not constitute a Tenant Delay. (xi)
Landlord shall install, at Tenant's expense, new elevator logic to control the
passenger elevators in the elevator bank serving floors 7-15 which provide
passenger elevator service to the Premises. Landlord shall not be permitted to
use such logic to control the other elevators in such bank or otherwise unless
Landlord shall first pay to Tenant an amount equal to 50% of the actual cost
incurred by Tenant for the purchase and installation of such elevator logic.
Landlord shall perform, at Tenant's expense, the work necessary to cause the
passenger elevators described in Section 3.02(d) to serve the Concourse Space,
which work shall be substantially completed by Landlord on or before June 1,
1996, provided, that (A) there are no material changes to the plans and
specifications for such work which exist on July 17, 1995 and (B) Tenant
approves a bid for the performance of such work on or before July 27, 1995.
(xii) Landlord shall, at Tenant's reasonable expense, modify the Building's
sprinkler system to provide a 30 minute reserve. Landlord shall submit the plans
and specifications for such work to Tenant for Tenant's reasonable approval and,
after such approval by Tenant, perform the work shown on such plans and
specifications and make all necessary filings with the Building Department and
Tenant shall reimburse Landlord for the reasonable expenses incurred by Landlord
in connection therewith. Subject to Tenant Delay and Force Majeure, Landlord
shall complete such work to modify the Building's sprinkler system on or before
February 1, 1996; provided, that Tenant acknowledges that all necessary Building
Department sign-offs and approvals for such work may not be obtained by such
date (but Landlord shall diligently attempt to obtain such sign-offs and
approvals). (xiii) Tenant may request, by notice given to Landlord no earlier
than 7 days prior to September 1, 1996, that Landlord inform Tenant of
Landlord's proposed schedule for the removal of any remaining vinyl asbestos
tiles in the Block B Space. (xiv) Subject to Tenant's compliance with the
provisions of Section 4.02, Tenant shall have the right to relocate the 2
express electric risers which serve the Block B Space on the date of this Lease,
which relocation may be performed by Tenant as soon as the occupants of such
Block vacate the same, notwithstanding that the Block B Relevant Date may not
have occurred at such time. (xv) As part of Tenant's initial alterations to the
Blocks, Tenant shall have the right, as part of Tenant's security program, to
install turnstiles at the entrances to Tenant's elevator banks in the Building
lobby subject to the location and design thereof being reasonably acceptable to
Landlord and Tenant.
(b) Landlord shall pay to Tenant a work allowance of $20,301,433 (the
"Block A and B Allowance") to be used by Tenant for costs and expenses incurred
by Tenant in connection with Tenant's moving into and preparation of the Block A
Space and the Block B Space for Tenant's occupancy. The Block A and B Allowance
shall be paid by Landlord to Tenant in installments as follows: (i) $3,425,499
on the date that this Lease is executed and delivered by Landlord and Tenant
(provided, that if this Lease is executed and delivered by Landlord and Tenant
into escrow, then such installment shall be paid on the date this Lease is
unconditionally released from such escrow; the date that Landlord is required to
pay to Tenant the first installment of the Block A and B Allowance in accordance
with this clause (i) is called the "Execution and Delivery Date"), (ii)
$3,425,499 on or before the 30th day after the Execution and Delivery Date,
(iii) $3,425,499 on or before the 60th day after the Execution and Delivery
Date, (iv) $3,425,499 on or before the 90th day after the Execution and Delivery
Date, (v) $3,425,497 on or before the 120th day after the Execution and Delivery
Date and (vi) $3,173,940 on or before the 150th day after the Execution and
Delivery Date. On or before January 1, 1999, Landlord shall pay to Tenant a work
allowance of $3,567,960 (the "Block C Allowance") to be used by Tenant for costs
and expenses incurred by Tenant in connection with Tenant's moving into and
preparation of the Block C Space for Tenant's occupancy. Each of the Block A and
B Allowance and the Block C Allowance is called an "Allowance". All installments
of the Block A and B Allowance and the Block C Allowance shall be paid by
Landlord to Tenant, at Landlord's election, either by wire transfer of
immediately available federal funds or by check drawn on a New York Clearing
House Association member bank.
(c) Tenant shall reasonably cooperate with Landlord in connection with the
performance by Landlord of Landlord's Work. If Landlord requests any information
from Tenant which is reasonably necessary to perform Landlord's Work or submits
any drawings, plans or other materials with respect to Landlord's Work to Tenant
for Tenant's authorization or approval, Tenant shall, within 5 Business Days
thereafter (or within such other time period set forth elsewhere in this Lease),
(i) provide such information or (ii) authorize or approve such drawings, plans
or materials or request Landlord to make specific changes therein.
(d) Within 30 days after Landlord gives to Tenant an invoice therefor
(together with reasonable back-up documentation), Tenant shall pay (i) the
actual costs incurred by Landlord, based on the bids that were approved by
Tenant for such work, in connection with (A) the installation of the elevator
logic in accordance with Section 4.01(a)(xi), (B) the performance of the work
described in Section 4.01(a)(xi) to cause the Concourse Space to receive
passenger elevator service, and (C) the interior finishes to Tenant's security
desk areas in accordance with Section 8.21(b) and (ii) the reasonable costs
incurred by Landlord in connection with (A) the installation of the express
riser and electric meter in accordance with paragraph 27 of Exhibit F, (B) the
installation of Tenant's signage in accordance with Section 8.20, (C) the
installation of the electric meter in the Concourse Space in accordance with
Section 1.03(i), (D) the performance of the work to modify the Building's
sprinkler system to provide a 30 minute reserve in accordance with Section
4.01(xii) and the preparation of plans and specifications with respect to such
work and the making of all necessary filings with the Building Department, and
(E) any other work which is being performed by Landlord under this Lease at
Tenant's expense. Anything contained in this Lease to the contrary
notwithstanding, Landlord shall have no obligation to perform any of the work
described in clauses (i)(A), (i)(B) and (i)(C) above unless and until Tenant has
approved a bid for such item of work.
(e) With respect to the work described in paragraph 26 of Exhibit F,
Landlord shall deliver to Tenant a sketch therefor indicating the termination
points of the base building plumbing lines. With respect to the work described
in paragraph 27 of Exhibit F, Landlord shall deliver to Tenant for Tenant's
approval plans and specifications for such work; provided, that Tenant shall not
unreasonably withhold such approval and such approval shall be deemed given by
Tenant if Tenant fails to approve or disapprove the same within 14 days after
Tenant receives such plans and specifications.
(f) Anything to the contrary contained in this Lease notwithstanding
(including, without limitation, Sections 1.02 and 4.04), prior to the Relevant
Date with respect to the Initial Possession Space (i) Tenant shall have no right
to perform any Alterations in and to the Initial Possession Space or to possess,
use or occupy the Initial Possession Space in any manner which interferes with
Landlord's performance of Landlord's Work (or any other work being performed by
Landlord) in the Initial Possession Space and (ii) Landlord shall have the
unconditional right to enter the Initial Possession Space to perform Landlord's
Work therein (including, without limitation, demolishing the demising walls and
all systems servicing the Initial Possession Space) or for any other purpose and
all other provisions of this Lease regarding Landlord's right to enter the
Premises shall not be applicable to the Initial Possession Space (including,
without limitation, any provision of this Lease which requires that Landlord
notify Tenant prior to entering the Premises or that Landlord be accompanied by
a representative of Tenant or that Landlord perform its work therein in a manner
so as to mitigate interference with Tenant). The Relevant Date with respect to
the Initial Possession Space shall not be deemed to occur solely by reason of
Tenant's right to possess, use and occupy the Initial Possession Space from and
after the date of this Lease in accordance with Section 1.02, but shall occur in
accordance with the relevant provisions of Section 1.03. "Initial Possession
Space" means the portion of the 15th floor of the Building substantially as
shown hatched on the plan thereof attached hereto as Exhibit B-15.
4.02 Alterations. (a) Tenant shall make no improvements, changes or
alterations in or to the Premises ("Alterations") which constitute Material
Alterations without Landlord's prior approval. Prior to the commencement by
Tenant of any Alteration which does not constitute a Material Alteration, but
which does require Tenant to obtain a building permit therefor, Tenant shall
notify Landlord of such Alteration and of the names of the contractors to be
used by Tenant to perform such Alteration, which notice shall be accompanied by
any and all available plans and specifications for such Alteration. If Tenant
fails to give such notice to Landlord with respect to any such Alteration, such
failure shall not constitute a default hereunder and Tenant shall have no
liability to Landlord solely by reason of such failure, unless Landlord shall
incur any loss, liability or damage by reason of Tenant's performance of such
Alterations, in which case, subject to Section 7.05(f), Tenant shall be
responsible for all of such losses, liabilities and damages incurred by Landlord
(including, without limitation, any costs and expenses relating thereto) and, in
addition thereto, Tenant shall pay to Landlord a fee in respect of such
Alteration in an amount equal to 2% of the cost of such Alteration. "Material
Alteration" means any Alteration that (i) affects the floor slabs, ceiling
slabs, load-bearing walls, or load-bearing columns of the Building, (ii) affects
the exterior of the Building, (iii) affects areas outside of the Premises or
those portions of the Building systems servicing areas of the Building outside
of the Premises, (iv) requires work to be performed outside of the Premises or
(v) requires a change to the Building's certificate of occupancy.
(b) Tenant, in connection with any Alteration, shall comply with the
Alteration Rules and Regulations set forth as Exhibit D attached hereto. Tenant
shall not proceed with any Material Alteration unless and until Landlord
approves Tenant's plans and specifications therefor. Landlord shall not
unreasonably withhold its consent to any Material Alteration which will not
affect space leased to, or services provided to, another tenant or occupant of
the Building. Landlord shall not arbitrarily withhold its consent to any
Material Alteration which affects space leased to, or services provided to,
another tenant or occupant of the Building. Landlord shall, within 10 Business
Days following receipt of Tenant's plans and specifications for the performance
of any Material Alteration, advise Tenant of Landlord's approval or disapproval
of such plans and specifications or any part thereof. If Landlord shall fail to
approve or disapprove Tenant's plans and specifications or any part thereof
within such 10 Business Day period, Tenant shall have the right to give a
reminder notice to Landlord and if Landlord fails to approve or disapprove
Tenant's plans and specifications or any part thereof within 1 Business Day
after receipt of such reminder notice, Landlord shall be deemed to have approved
such plans and specifications or the applicable part thereof. If Landlord shall
disapprove such plans and specifications (or any part thereof), Landlord shall
set forth its reasons for such disapproval in writing and in reasonable detail
and itemize those portions of the plans and specifications so disapproved.
Landlord shall advise Tenant within 5 Business Days following receipt of
Tenant's revised plans and specifications, or portions thereof, of Landlord's
approval or disapproval of the revised plans and specifications or any portion
thereof, and shall set forth Landlord's reasons for any such further disapproval
in writing and in reasonable detail. If Landlord fails to approve or disapprove
the revised plans and specifications or any portion thereof within such 5
Business Day period, Tenant shall have the right to give a reminder notice to
Landlord and if Landlord fails to approve or disapprove Tenant's plans and
specifications or any part thereof within 1 Business Day after receipt of such
reminder notice, Landlord shall be deemed to have approved the revised plans and
specifications or such portions thereof. Notwithstanding the foregoing, in the
case of Tenant's initial Alterations to any Block, Tenant shall not be required
to give the 1 Business Day reminder notice to Landlord prior to Landlord being
deemed to have approved Tenant's plans and specifications (including any revised
plans and specifications) or any part thereof in accordance with this Section
4.02(b). Any review or approval by Landlord of plans and specifications with
respect to any Alteration is solely for Landlord's benefit, and without any
representation or warranty to Tenant with respect to the adequacy, correctness,
its compliance with Laws or efficiency thereof or otherwise.
(c) If Landlord uses an outside consultant to review Tenant's plans and
specifications for any Material Alteration (other than Tenant's initial
Alterations to any portion of the Premises) and Tenant is not using an architect
or engineer designated by Landlord for the preparation of such plans and
specifications, then Tenant shall pay to Landlord the reasonable actual fees of
such outside consultant for reviewing such plans and specifications.
(d) Tenant shall obtain (and furnish copies to Landlord of) all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations and for final approval thereof upon completion, and shall cause
Alterations to be performed in compliance therewith and in compliance with all
Laws and, in the case of Material Alterations, in compliance in all material
respects with the plans and specifications approved by Landlord. Alterations
shall be performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the then standards for the
Building reasonably established by Landlord. Material Alterations shall be
performed by contractors first approved by Landlord which approval shall not be
unreasonably withheld or delayed; provided, that all tie-ins to the Building's
life safety systems shall be performed only by a contractor designated by
Landlord, provided the rates of such contractor are reasonably competitive with
rates charged by other contractors performing such services in first-class
office buildings in midtown Manhattan. The performance of any Alteration shall
not be done in a manner which would disturb harmony with any trade engaged in
performing any other work in the Building or create any actual interference with
the operation of the Building. Tenant shall immediately stop the performance of
any Alteration if Landlord notifies Tenant that continuing such Alteration would
so disturb harmony with any trade engaged in performing any other work in the
Building or create any actual interference with the operation of the Building.
(e) Throughout the performance of Alterations, Tenant shall carry worker's
compensation insurance in statutory limits, "all risk" Builders Risk coverage
and general liability insurance, with completed operation endorsement, for any
occurrence arising from the performance of such Alterations in or about the
Project, under which Landlord and its agent and any Superior Lessor and Superior
Mortgagee whose name and address have been furnished to Tenant shall (in the
case of such general liability insurance only) be named as additional parties
insured as their interest may appear, in such limits as Landlord may reasonably
require (but not in excess of such limits as are customarily required by
landlords of similar midtown Manhattan buildings for similar jobs costing the
amount of the particular job being performed for Tenant). Tenant shall furnish
Landlord with evidence that such insurance is in effect at or before the
commencement of the performance of Alterations and, on request, at reasonable
intervals thereafter during the continuance of the performance of Alterations.
(f) Should any mechanics' or other lien be filed against any portion of the
Project by reason of the acts or (where Tenant has an affirmative obligation to
act pursuant to the terms of this Lease) omissions of, or because of a claim
against, Tenant, any subtenant of Tenant or any of their respective agents,
employees or contractors, Tenant shall cause the same to be canceled or
discharged of record by bond or otherwise within 45 days after notice from
Landlord. If Tenant shall fail to cancel or discharge any such lien within said
45 day period, Landlord may cancel or discharge the same only by bonding the
same, in which event Tenant shall obtain and substitute a bond for Landlord's
bond and reimburse Landlord for all reasonable costs incurred in canceling or
discharging such liens (including, without limitation, the cost of Landlord's
bond and of any security posted to obtain Landlord's bond), such substitution to
be effected and reimbursement to be made within 30 days after receipt by Tenant
of a detailed written statement from Landlord as to the amount of such bond and
costs. Except if and to the extent arising from an act or (where such party has
an affirmative obligation to act pursuant to the terms of this Lease) omission
of any Landlord Indemnified Party, Tenant shall indemnify and hold all Landlord
Indemnified Parties harmless from and against all costs (including, without
limitation, attorneys' fees and disbursements and costs of suit), losses,
liabilities or causes of action caused by the performance of any Alteration,
including, without limitation, any mechanics' or other liens asserted in
connection with the performance of such Alteration.
(g) At Landlord's request, Tenant shall deliver to Landlord, within 30 days
after the completion of an Alteration, "as-built" drawings thereof (but only if
the Building Department shall require Tenant to submit the same or if Tenant
shall otherwise have prepared the same) and, otherwise, the final working
drawings therefor. Tenant shall keep records of Alterations costing in excess of
$25,000 and of the cost thereof and shall, within 30 days after demand by
Landlord, furnish to Landlord copies of such records and cost.
(h) Landlord shall reasonably and diligently cooperate with Tenant in the
performance of Alterations, including, without limitation, by signing such
applications for governmental permits and certificates as Tenant may reasonably
require. Provided that Tenant shall have submitted to Landlord the plans and
specifications applicable to the Alteration in question, Landlord shall sign and
return any such application within 2 Business Days after receipt of Tenant's
request therefor. Notwithstanding the foregoing, Landlord shall not be deemed to
have approved Tenant's plans and specifications with respect to any Material
Alteration by reason of Landlord signing any such application prior to
Landlord's approval (or deemed approval) of such plans and specifications and,
notwithstanding Landlord's signing such application prior to Landlord's approval
(or deemed approval) of such plans and specifications, such plans and
specifications shall remain subject to Landlord's approval in accordance with
the terms of this Section 4.02 and Landlord shall not be responsible for any
additional costs incurred by Tenant by reason of any additional filing with the
Building Department required by reason of Landlord's subsequent review of such
plans and specifications.
4.03 Landlord's and Tenant's Property. (a) All fixtures, equipment,
improvements and appurtenances attached to or built into the Premises, whether
or not at the expense of Tenant, which cannot be removed without significant
damage to Premises or the Building (collectively, "Fixtures"), shall be and
remain a part of the Premises, and shall not be removed by Tenant, except as
provided in Section 4.03(b), and subject to Tenant's rights to alter or remove
Fixtures in connection with any Alteration. Upon such removal Tenant shall
immediately and at its expense, repair any damage to the Premises which Tenant
is required to repair in accordance with Section 4.05(a) due to such removal.
All Fixtures shall be the property of Tenant during the Term and, upon
expiration or earlier termination of this Lease, shall become the property of
Landlord.
(b) All fixtures, equipment, improvements and appurtenances which do not
constitute Fixtures and all furniture, furnishings and other articles of movable
personal property located in the Premises (collectively, "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by Tenant at
any time during the Term; provided, that if any Tenant's Property is removed,
Tenant shall repair any damage to the Premises which Tenant is required to
repair in accordance with Section 4.05(a) resulting from the installation and/or
removal thereof.
(c) At or before the Expiration Date, or within 15 days after any earlier
termination of this Lease, Tenant, at Tenant's expense, shall remove Tenant's
Property from the Premises (except such items thereof as Landlord shall have
expressly permitted to remain, which shall become the property of Landlord), and
Tenant shall repair any damage to the Premises which Tenant is required to
repair in accordance with Section 4.05(a) resulting from any installation and/or
removal of Tenant's Property. Any items of Tenant's Property which remain in the
Premises after the Expiration Date, or after 15 days following an earlier
termination date, may, after 10 days notice to Tenant (except that, in the case
of an earlier termination of this Lease by reason of a default by Tenant, such
notice shall not be required), at the option of Landlord, be deemed to have been
abandoned, and may be retained by Landlord as Landlord's property or disposed of
by Landlord, without accountability, in such manner as Landlord shall determine,
at Tenant's expense; provided that, if after the Expiration Date or any earlier
termination date there shall remain in the Premises any Tenant's Property that
has not been abandoned or deemed abandoned by Tenant, and if Landlord shall then
require vacant possession of the Premises, Landlord shall have the right, at
Tenant's reasonable expense, using due care, to move Tenant's Property into
storage at a location in the Borough of Manhattan and, if Tenant shall fail to
remove such Tenant's Property from such storage area within 10 days after demand
by Landlord (such 10 days to be extended if Tenant shall be unable to so remove
Tenant's Property by reason of events beyond Tenant's reasonable control (for
example, a movers' strike; it being acknowledged by Tenant that Tenant's
inability to move into new premises by reason of a holdover therein or because
such premises is not then ready for occupancy shall not constitute an event
beyond Tenant's reasonable control for purposes hereof) until 10 days after the
date that Tenant is no longer so unable to remove Tenant's Property), such
Tenant's Property shall be deemed to have been abandoned, and may be retained by
Landlord as Landlord's property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine, at Tenant's expense.
(d) Anything contained in this Section 4.03 to the contrary
notwithstanding, Tenant, on or before the Expiration Date or within 15 days
after any earlier termination of this Lease, shall remove any equipment
installed by Tenant on the roof (provided, that Tenant shall not be required to
remove any conduits or cables installed in connection with the installation of
the Antenna) and any equipment installed by Tenant on any setback of the
Building which equipment is not in good working order on the Expiration Date or
such earlier date of termination of this Lease. Any such equipment which Tenant
is required to remove and which is not so removed after Landlord shall have
given Tenant reasonable access to the roof or setback, as the case may be, for
such removal shall be deemed to have been abandoned and may be retained by
Landlord as Landlord's property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine, at Tenant's
reasonable expense. If the removal of any such equipment (whether by Tenant or,
if pursuant to the preceding sentence, by Landlord) results in the impairment of
the integrity of the roof or any setback, as applicable, then Tenant shall
restore the integrity thereof.
4.04 Access and Changes to Building. (a) Landlord reserves the right, at
any time, to make changes in or to the Project (other than within the Premises
except as provided in the further provisions of this Section 4.04 or elsewhere
in this Lease) as Landlord may deem necessary or desirable, and Landlord shall
have no liability to Tenant therefor; provided, that any such change does not
interfere with Tenant's reasonable access to the Premises and does not affect
the first-class nature of the Project. Nothing contained in the preceding
sentence shall be deemed to relieve Landlord of any of its obligations expressly
set forth elsewhere in this Lease. Landlord may install and maintain pipes,
fans, ducts, wires and conduits within or through the walls, floors or ceilings
of the Premises; provided, that the same are concealed behind walls, below
floors, or above ceilings. In exercising its rights under this Section 4.04,
Landlord shall (i) use commercially reasonable efforts (including the use of
overtime labor if the performance of any work by Landlord shall materially
interfere with Tenant's use of the Premises for the ordinary conduct of Tenant's
business) to minimize any interference with Tenant's use of the Premises for the
ordinary conduct of Tenant's business by reason of the performance of any work
by Landlord and (ii) use best efforts to prevent any permanent interference with
Tenant's use of the Premises for the ordinary conduct of Tenant's business by
reason of any installation or change made by Landlord. Tenant shall not have any
easement or other right in or to the use of any door or any passage or any
concourse or any plaza connecting the Building with any subway or any other
building or to any public conveniences, and the use of such doors, passages,
concourses, plazas and conveniences may, upon reasonable prior notice to Tenant,
be reasonably regulated or discontinued at any time by Landlord; provided, that
no other tenants in the Building shall have the right to permanently use the
same in any manner more favorable than Tenant.
(b) Except for the space within the inside surfaces of all walls, ceiling
slabs, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrance, any terraces or roofs adjacent to the
Premises, and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as access thereto through the
Premises, are reserved to Landlord and are not part of the Premises. Nothing
contained in this Section 4.04(b) shall be construed (i) to require Landlord, or
to permit Tenant, to remove or relocate, on any partial floor leased by Tenant,
any item used by (or reserved for use by) another tenant or occupant of the
Building, or (ii) to diminish Tenant's right under Article 11 or other express
provisions of this Lease which permit Tenant to use shaft space or other
non-Premises space in the Building.
(c) Landlord shall have no liability to Tenant if at any time any windows
of the Premises are either temporarily darkened or obstructed by reason of any
repairs, maintenance and/or cleaning in or about the Building (or permanently
darkened or obstructed if required by Law for reasons other than any act or
(where Landlord has an affirmative obligation to act pursuant to the terms of
this Lease) omission of Landlord or any of Landlord's Affiliates) or covered by
any translucent material for the purpose of energy conservation, or if any part
of the Building, other than the Premises and all other public areas of the
Building used by Tenant (subject to Landlord's rights under Section 4.04(a)), is
temporarily or permanently closed or inoperable. Notwithstanding the foregoing,
if more than 20% of the windows of the Premises shall be permanently darkened or
obstructed (exclusive of any such obstruction that is not materially worse than
any obstruction existing on the date of this Lease), Tenant may terminate this
Lease either as to the entire Premises or as to the portion(s) of the Premises
affected thereby (provided that any such portion(s) of the Premises as to which
Tenant terminates this Lease shall constitute tenantable units) without payment
of any penalty (and, in the case of a termination of less than the entire
Premises, with a pro rata reduction of Tenant's Rent obligations to reflect such
partial termination). In the event of any termination of this Lease under this
Section 4.04(c), whether as to all or a portion of the Premises, Tenant shall
pay to Landlord the amount, if any, due in accordance with Section 7.06 below.
(d) Landlord and persons authorized by Landlord shall have the right, upon
reasonable prior notice to Tenant (except in an emergency, in which case, upon
such notice, if any, as is feasible), to enter the Premises (together with any
necessary materials and/or equipment), to inspect or perform such work as
Landlord may reasonably deem necessary or desirable and as is permitted under
this Lease, or to exhibit the Premises to prospective purchasers or, during the
last 18 months of the Term, to prospective tenants. Landlord shall have no
liability to Tenant by reason of any such entry; provided, that (i) Landlord
shall use commercially reasonable efforts (unless a higher standard provided
elsewhere in this Lease is applicable to such entry by Landlord) to minimize
interference with Tenant's use and enjoyment of the Premises and to exercise due
care in entering or exhibiting the Premises and (ii) Landlord shall repair any
damage caused by Landlord in the Premises during such entry, including, without
limitation, any repair or replacement required to any finishes in the Premises
as a result of such entry. During the performance of any work by Landlord in any
portion of the Premises, Landlord shall have the right to store materials and
equipment utilized in connection with such work in the portion of the Premises
where such work is being performed, but only if Landlord would suffer a hardship
if Landlord were required to remove such materials and equipment at the end of
each day's work. Except in an emergency, Landlord shall not enter the Premises
unless accompanied by a representative of Tenant; provided, that Tenant makes
such representative available to Landlord upon reasonable prior notice.
(e) Landlord shall not change the address of the Building at any time.
4.05 Repairs. (a) Except if and to the extent the following shall be
Landlord's obligation pursuant to the express provisions of this Lease, Tenant
shall keep the Premises (including, without limitation, all Fixtures) in good
condition and, upon expiration or earlier termination of the Term, shall
surrender the same to Landlord in its then "as is" condition (but subject to
Section 4.03). All damage caused by Tenant, its agents, subtenants (including
any licensee or other occupant described in Section 5.01(d)) and its and their
respective employees, contractors and invitees (so long as such invitees are in
the Premises) (i) to the equipment and other installations in the Premises shall
be repaired by Tenant if and to the extent that Tenant's failure to repair such
damage causes or is reasonably likely to cause any loss, cost, liability,
damage, harm, material inconvenience or expense to Landlord or any other tenant
of the Building and (ii) to the solar film attached to the exterior windows of
the Premises shall be repaired by Landlord at Tenant's reasonable expense (it
being acknowledged that any repair to such solar film required by reason of
ordinary wear and tear shall be performed by Landlord at Landlord's expense).
Neither Tenant nor Tenant's agents, subtenants (including any licensee or other
occupant described in Section 5.01(d)) and their respective employees,
contractors and invitees (so long as such invitees are in the Premises) shall
commit any waste or damage to any portion of the Premises or the Building.
(b) Except if and to the extent the following shall be Tenant's obligation
pursuant to the express provisions of this Lease, Landlord shall, at Landlord's
cost and expense (subject to reimbursement by Tenant as Operating Expenses, but
only if and to the extent such costs and expenses are not excludable therefrom
pursuant to the express provisions of Section 2.05), operate, maintain, repair
and replace (if reasonably necessary) (i) all structural portions of the
Building (whether located within or outside of the Premises), such as, by way of
example only, the roof, foundation, footings, exterior walls, load-bearing
columns, ceiling and floor slabs, windows, window sills and sashes, (ii) all
common and public service areas of the Building, including, without limitation,
all elevators, corridors, lobbies, core lavatories (including all fixtures
therein), core electric closets, core telecommunication closets, core janitor
closets (unless and for so long as Tenant elects to contract directly with a
contractor to clean the Office Space in accordance with Section 3.04(e) above)
and, on floors which are not fully leased by Tenant, core freight elevator
lobbies, (iii) all items of Tenant's Required Work, subject to the further
provisions of this Section 4.05(b), (iv) the solar film attached to the exterior
windows of the Premises, and (v) all Building systems (including, without
limitation, the sprinkler system, other than Tenant's distribution thereof)
(whether such Building systems are located within or outside of the Premises)
serving the common and public service areas and the Premises (other than any
distribution of such systems located in the Premises and installed by Tenant,
unless such distribution was installed by Tenant in place of Landlord (A) by
reason of the exercise by Tenant of its self-help remedy in accordance with
Section 10.01 or (B) as part of Tenant's Required Work) (the areas described in
clauses (i), (ii), (iii), (iv) and (v) are collectively called the "Landlord
Obligation Areas"), in each case throughout the Term, and in such manner as is
consistent with the maintenance, operation and repair standards of first-class
office buildings located in the vicinity of the Building. Tenant shall obtain
commercially reasonable warranties for each item of Tenant's Required Work. If
Tenant fails to obtain a commercially reasonable warranty for any item of
Tenant's Required Work, then Tenant shall reimburse Landlord for the reasonable
cost of any maintenance, repair or replacement with respect to such item of
Tenant's Required Work if and to the extent that the same would have been
covered by a commercially reasonable warranty. Landlord shall obtain
commercially reasonable warranties in connection with the installation by
Landlord in the Building of any item, if the cost of maintaining, repairing and
replacing such item would otherwise be payable by Tenant, whether by way of
Operating Expenses or otherwise. If Landlord fails to obtain any such
commercially reasonable warranty, then Tenant shall not be responsible for the
cost of any maintenance, repair or replacement thereof (by means of
reimbursement as part of Operating Expenses or otherwise) if and to the extent
that the same would have been covered by such a commercially reasonable
warranty. For purposes of this Section 4.05(b) (with respect to both Tenant and
Landlord), a commercially reasonable warranty means the warranty, if any, which
would be obtained by an owner of a first class office building, acting
prudently, in connection with the work in question.
4.06 Compliance with Laws. (a) Tenant shall comply with all laws,
ordinances, rules, orders and regulations (present, future, ordinary,
extraordinary, foreseen or unforeseen) of any governmental, public or
quasi-public authority or of the New York Board of Underwriters, the New York
Fire Insurance Rating Organization or any other entity performing similar
functions (including, without limitation, all building and fire codes, zoning
requirements, asbestos laws, environmental laws and ADA), at any time duly in
force (collectively "Laws"), but only if and to the extent such compliance
obligation is the result of any Alteration or particular manner of use by Tenant
(in contrast to use by Tenant for customary office purposes) of the Premises or
any part thereof; it being acknowledged that (i) all Laws affecting Tenant's
occupancy of the Premises (as opposed to Laws requiring physical changes to the
Premises) shall be Tenant's obligation and (ii) all Laws governing Tenant's use
of the Premises for the Identified Ancillary Uses shall be Tenant's obligation.
Notwithstanding the foregoing, Tenant shall comply with all Laws imposed by the
Occupational Safety and Health Administration or other governmental agency
relating to indoor air quality with respect to the distribution of the air
within the Premises (subject to Landlord's obligation under Section 4.06(c) to
comply with all such Laws with respect to air brought to the Premises through
the Building's systems). Without limiting the generality of the indemnity
obligation of Tenant under Section 6.12(b), Tenant shall indemnify and hold each
Landlord Indemnified Party harmless from and against any and all claims, costs,
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) and liabilities caused by Tenant's failure to comply with the
foregoing indoor air quality requirements, except if and to the extent such
failure is caused by the acts or (where Landlord has an affirmative obligation
to act pursuant to the terms of this Lease) omissions of Landlord or Landlord's
agents, employees or contractors. Tenant shall not place a load upon any floor
of the Premises exceeding the floor load per square foot which is allowed by
applicable Laws.
(b) Anything contained in this Lease to the contrary notwithstanding, as
part of Tenant's initial Alterations, Tenant shall perform all work and make all
installations necessary in order to fully sprinkler the Premises in compliance
with the provisions of Local Law 5 of the New York City Administrative Code, as
approved January 18, 1973, as amended from time to time. Landlord shall provide
a sprinkler riser in the Building in accordance with Paragraph 3 of Exhibit F.
(c) Except as otherwise expressly made the obligation of Tenant pursuant to
this Lease, Landlord shall, at Landlord's own cost and expense (subject to
reimbursement as Operating Expenses to the extent such costs and expenses are
includable therein), comply with all Laws affecting the Landlord Obligation
Areas and all Laws that require physical changes in or to the Premises. Without
limiting the generality of the foregoing: (i) Landlord shall maintain in effect
a certificate of occupancy for the Building that shall allow the Office Space to
be used as general, professional, administrative and executive offices (but
Landlord shall have no obligation to modify such certificate of occupancy to
permit any of the Identified Ancillary Uses; provided, that if such certificate
of occupancy shall permit any of the Identified Ancillary Uses in the Office
Space, then Landlord shall not cause such certificate of occupancy to be
modified so as to prohibit Tenant from using such portion of the Office Space
for such permitted Identified Ancillary Use); and (ii) Landlord shall comply
with all Laws imposed by the Occupational Safety and Health Administration or
other governmental agency relating to indoor air quality with respect to (A) the
public and service areas of the Building, and (B) the heating, ventilating and
air-conditioning services and systems furnished by Landlord to the Premises (but
only up to the point of delivery of such services and systems to the supply duct
at the core wall on each floor of the Premises). Without limiting the generality
of the indemnity obligation of Landlord under Section 6.12(c), Landlord shall
indemnify and hold each Tenant Indemnified Party harmless from and against any
and all claims, costs, expenses (including, without limitation, reasonable
attorneys' fees and disbursements) and liabilities caused by Landlord's failure
to comply with the foregoing indoor air quality requirements, except if and to
the extent such failure is caused by the acts or (where Tenant has an
affirmative obligation to act pursuant to the terms of this Lease) omissions of
Tenant or Tenant's agents, employees or contractors.
4.07 Tenant Advertising. Tenant shall not use, and shall cause each of its
Affiliates not to use, the name or likeness of the Building or the Project in
any advertising (by whatever medium) without Landlord's consent (not to be
unreasonably withheld or delayed). Tenant shall not in any way represent,
whether in advertising, correspondence or otherwise, that the Building or the
Premises is part of Rockefeller Center or Rockefeller Plaza.
4.08 Right to Perform Tenant Covenants. If Tenant fails to perform any of
its obligations under this Lease, Landlord, any Superior Lessor or any Superior
Mortgagee (each, a "Curing Party") may perform the same at the reasonable
expense of Tenant (a) after such notice, if any, as is feasible under the
circumstances in the case of emergency, imminent violation of any Law, imminent
cancellation of any insurance policy maintained by Landlord, imminent threat of
danger to the health or safety of persons, imminent risk of civil or criminal
liability of Landlord, material adverse affect on the Project or any portion
thereof or Landlord's interest therein or unreasonable interference with the use
of another tenant's space or the operation of the Building, and (b) in any other
case, if such failure continues after notice and beyond all applicable grace
periods provided in this Lease, and thereafter such failure is not remedied
within 10 days after a second notice to Tenant (in which the Curing Party
notifies Tenant that the Curing Party will undertake such performance at
Tenant's expense). If a Curing Party performs any of Tenant's obligations under
this Lease pursuant to the immediately preceding sentence, Tenant shall pay to
such Curing Party (as Additional Charges) the reasonable costs thereof, together
with interest at the Interest Rate from the date such costs were incurred by the
Curing Party until paid by Tenant, within 30 days after receipt by Tenant of a
detailed statement as to the amounts of such costs. "Prime Rate" means an annual
interest rate equal to the prime or base rate from time to time announced by
Citibank, N.A. (or, if Citibank, N.A. shall not exist, such other New York
Clearing House Association member bank, as shall be designated by Landlord in a
notice to Tenant) to be in effect at its principal office in New York, New York.
"Interest Rate" means an annual interest rate equal to the lesser of (i) the
Prime Rate plus 2% or (ii) the maximum rate permitted by Law.
ARTICLE 5
Assignment and Subletting
5.01 Assignment; Etc. (a) Subject to Section 5.02, neither this Lease nor
the term and estate hereby granted, nor any part hereof or thereof, shall be
assigned, mortgaged, pledged, encumbered or otherwise transferred, and neither
the Premises, nor any part thereof, shall be subleased or be encumbered in any
manner by reason of any act or omission on the part of Tenant, and no rents or
other sums receivable by Tenant under any sublease of all or any part of the
Premises shall be assigned or otherwise encumbered, without the prior consent of
Landlord. The transfer of more than 50% of the stock, partnership or other
beneficial ownership interests in Tenant or in any entity which, directly or
indirectly controls Tenant shall be deemed an assignment of this Lease;
provided, that the transfer of any such stock, partnership or other ownership
interests shall not constitute an assignment of this Lease if such stock,
partnership or other ownership interests are listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in the "over the counter" market with quotations reported by the National
Association of Securities Dealers. No assignment or other transfer of this Lease
and the term and estate hereby granted, and no subletting of all or any portion
of the Premises shall relieve Tenant of its liability under this Lease or of the
obligation to obtain Landlord's prior consent in accordance with Section 5.03(b)
to any further assignment, other transfer or subletting (unless otherwise
permitted by this Lease). Any attempt to assign this Lease or sublet all or any
portion of the Premises in violation of this Article 5 shall be null and void.
(b) Notwithstanding Section 5.01(a), 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 receive contemporaneously therewith a notice of
such assignment from Tenant, (B) the assignee assumes by written instrument
substantially in the form attached to this Lease as Exhibit K all of Tenant's
obligations under this Lease (but, in the case of clause (i), the same shall
only be necessary if Tenant shall not be the surviving entity), (C) the
avoidance of any obligations under this Lease is not the primary purpose of such
assignment, and (D) the assignee shall have, immediately after giving effect to
such assignment, an aggregate net worth (computed in accordance with GAAP) of
not less than 95% of the aggregate net worth (as so computed) of Tenant
immediately prior to such assignment.
(c) Notwithstanding Section 5.01(a), without the consent of Landlord,
Tenant may assign this Lease or sublet all or any part of the Premises to an
Affiliate of Tenant; provided, that (i) Landlord shall receive contemporaneously
therewith a notice of such assignment or sublease from Tenant; and (ii) in the
case of any such assignment, (A) the avoidance of any obligations under this
Lease is not the primary purpose of such assignment, and (B) the assignee
assumes by written instrument substantially in the form attached to this Lease
as Exhibit K all of Tenant's obligations under this Lease. "Affiliate" means, as
to any designated person or entity, any other person or entity which controls,
is controlled by, or is under common control with, such designated person or
entity. "Control" (and with correlative meaning, "controlled by" and "under
common control with") means ownership or voting control, directly or indirectly,
of 25% or more of the voting stock, partnership interests or other beneficial
ownership interests of the entity in question.
(d) Notwithstanding anything to the contrary contained in this Article 5,
Tenant shall have the right, without being required to obtain the consent of
Landlord, to permit portions of the Premises not exceeding 50,000 rentable
square feet in the aggregate at any one time to be used under so-called
"desk-sharing" arrangements by service providers or other independent
contractors who use such space primarily in connection with Tenant's business.
(e) Notwithstanding Section 5.01(a), and without limiting the generality of
Section 5.01(c), without the consent of Landlord, Tenant may sublease the entire
22nd floor of the Building to Equitable Real Estate Investment Management, Inc.
("EREIM"); provided, that Landlord shall receive contemporaneously therewith a
notice of such sublease. On the date of this Lease, EREIM is an Affiliate of
Tenant. Notwithstanding Section 5.01(a), without the consent of Landlord, Tenant
may engage in a transaction which results in EREIM no longer being an Affiliate
of Tenant; provided, that Landlord shall receive contemporaneously therewith a
notice of such transaction. If Tenant engages in a transaction which results in
EREIM no longer being an Affiliate of Tenant and, at such time, no tenant (other
than Tenant or any Affiliate of Tenant) leases 6 or more floors of floors 23
through 29, then Tenant shall have the right to require by notice to Landlord,
that Landlord, at Tenant's reasonable expense, reprogram the passenger elevators
in the elevator bank serving floors 15-22 and the passenger elevators in the
elevator bank serving floors 23 - 29 so that the 22nd floor shall thereafter be
serviced by the elevator bank serving floors 23 - 29. Nothing contained in this
Section 5.01(e) shall be construed as a consent by Landlord to any subletting or
assignment by EREIM, to the extent that such consent is otherwise required
pursuant to this Article 5.
5.02 Landlord's Right of First Offer. (a) If Tenant desires to assign this
Lease or sublet all or part of the Premises (other than in accordance with
Sections 5.01(b), (c) or (d)), Tenant shall give to Landlord notice ("Tenant's
Offer Notice") thereof, specifying (i) in the case of a proposed subletting, the
location of the space to be sublet (the "Sublet Space") and the term of the
subletting of such Sublet Space (the "Sublet Term"), (ii) (A) in the case of a
proposed assignment, Tenant's good faith offer of the consideration Tenant
desires to receive or pay for such assignment or (B) in the case of a proposed
subletting, Tenant's good faith offer of the fixed annual rent which Tenant
desires to receive for such proposed subletting (assuming that a subtenant will
pay for Taxes, Operating Expenses and electricity in the same manner, and
utilizing the same base year or base amount, as Tenant pays for such amounts
under this Lease) (the "Sublet Rent"), (iii) in the case of a proposed
subletting involving a partial floor, whether or not Tenant intends to demise
separately the subleased space or provide an allowance to the subtenant for the
purpose of performing such work and (iv) the proposed assignment or sublease
commencement date.
(b) Landlord (or its designee) shall have the option, exercisable by notice
("Landlord's Acceptance Notice") given to Tenant on or before the date that is
15 days after the giving of the applicable Tenant's Offer Notice (time of the
essence) (i) in the case of a proposed assignment, to have this Lease assigned
to it or (ii) in the case of a proposed sublease, to sublet the Sublet Space
from Tenant.
(c) If Landlord exercises its option under Section 5.02)(b)(i) 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 and Tenant, effective on the proposed
assignment commencement date specified in the applicable Tenant's Offer Notice.
On such effective date, the appropriate party shall pay to the other the
consideration for such assignment specified in Tenant's Offer Notice.
(d) If Landlord exercises its option under Section 5.02(b)(ii) to sublet
the Sublet Space, then (i) during the Sublet Term, Tenant shall be relieved of
all of Tenant's obligations under this Lease with respect to the Sublet Space,
other than Tenant's obligation to pay Rent, (ii) during the Sublet Term, if and
to the extent that Landlord or its designee (as subtenant) fails to pay to
Tenant any amount that such subtenant is required to pay with respect to the
Sublet Space, then Tenant shall have the right to credit such amount against
Tenant's Rent obligations under this Lease and (iii) such sublease to Landlord
or its designee (as subtenant) shall be in form and substance reasonably
satisfactory to Landlord and Tenant, at the Sublet Rent as set forth in the
applicable Tenant's Offer Notice (provided, that if the Sublet Rent is greater
than Tenant's Qualified Sublet Cost, then the rent which Landlord (or its
designee) is required to pay to Tenant in respect of the Sublet Space shall be
reduced by an amount equal to 50% of the amount by which the Sublet Rent exceeds
Tenant's Qualified Sublet Cost; for purposes of this Section 5.02(d), "Tenant's
Qualified Sublet Cost" for any Sublet Space subleased to Landlord (or its
designee) in accordance with this Section 5.02 means the sum of (v) the portion
of the annual Fixed Rent which is attributable to such Sublet Space, plus (w)
the amount of any reasonable brokerage commissions and reasonable legal fees
paid by Tenant in connection with the sublease amortized on a straight-line
basis over the Sublet Term with interest at the Prime Rate, plus (x) 1/2 of any
costs incurred by Tenant for improvements to such Sublet Space within 12 months
prior to the sublease commencement date (as evidenced by paid invoices), plus
(y) the expenses, if any, which Tenant is required to reimburse Landlord for in
accordance with Section 5.02(d)(E)(3) or the amount of any allowance specified
in Tenant's Offer Notice to be paid by Tenant to the subtenant for the purpose
of performing the work to separately demise the Sublet Space, plus (z) all other
out-of-pocket costs incurred by Tenant in connection with such sublease), and
for the Sublet Term (commencing on the proposed sublease commencement date
specified in the applicable Tenant's Offer Notice), and: (A) 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 5.02(d); (B) shall be upon the same terms and conditions as those
contained in Tenant's Offer Notice and otherwise on the terms and conditions of
this Lease (including, without limitation, an indemnity from Landlord (or its
designee) (as subtenant) in favor of the Tenant Indemnified Parties
substantially in the form of Section 6.12(b)), except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Section 5.02(d); (C) 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 Sublet Space (provided, that (I) if (1) the Sublet Space includes a
partial floor and (2) on the commencement date of any such sublease and on the
commencement date of any further sublease by such sublessee or the effective
date of any assignment by such sublessee, Tenant and/or any Affiliated
subtenants of Tenant occupies the balance of such floor, then any such assignee
or subtenant of such partial floor shall (x) use the applicable space for only
uses permitted under this Lease and (y) not be a Competitor and (II) if (1) the
Sublet Space includes a full floor and (2) on the commencement date of any such
sublease and on the commencement date of any further sublease by such sublessee
or the effective date of any assignment by such sublessee, Tenant and/or any
Affiliated subtenants of Tenant occupies not less than 50% of the floors
included in the elevator bank which services such full floor included in the
Sublet Space, then any such assignee or subtenant of such full floor shall not
be a Competitor); "Competitor" means any company that is (aa) known by the
general public primarily as an insurance company or (bb) engaged primarily in
the insurance business; (D) 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 the Sublet 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 (1) such assignee or subtenant, at its expense, shall
repair any damage caused by such removal and (2) if the Sublet Term is less than
substantially all of the remaining Term (i.e., such Sublet Term is scheduled to
expire, assuming all sublease extension options are exercised, prior to the date
that is 1 year prior to the last day of the Term, which shall be deemed to
exclude the Renewal Term if the Renewal Option shall not have been previously
exercised), then any such alterations and installations shall require Tenant's
consent, not to be unreasonably withheld, unless such assignee or subtenant
agrees to remove same at the end of the Sublet Term and return the Sublet Space
to substantially its condition before the commencement of the Sublet Term,
ordinary wear and tear excepted, in which event no such consent shall be
required and (3) if the Sublet Space involves a partial floor, no such
alterations or installations shall (except to the extent required by applicable
Laws or, if not required by applicable Laws, except to a de minimis extent)
adversely impact the remainder of such floor or any other floor of the Premises;
and (E) shall provide that (1) 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, (2) any assignment or subletting by
Landlord or its designee (as the subtenant) may be for any purpose or purposes
that Landlord shall deem appropriate (but subject to the proviso in Clause C
above), (3) on the commencement date of such sublease or on such other date
specified in Tenant's Offer Notice, Tenant shall pay to Landlord any allowance
specified in Tenant's Offer Notice for the purpose of separately demising the
Sublet Space or Landlord, at Tenant's expense, may make such alterations as may
be required or deemed necessary by Landlord to demise separately the Sublet
Space (unless, as set forth in Tenant's Offer Notice, Tenant did not intend to
demise separately the Sublet Space) and to comply with any Laws relating to such
demise, and (4) at the expiration of the term of such sublease, Tenant shall
accept the Sublet Space in its then existing condition, subject to (x) the
obligations of the sublessee to make such repairs thereto as may be necessary to
preserve such space in good order and condition and (y) any obligation to
restore the Sublet Space under Clause (D)(2) above, and if such sublessee fails
to make such repairs or perform such restoration, Landlord shall perform the
same.
(e) If the Sublet Rent (on a per rentable square foot basis) as specified
in Tenant's Offer Notice is equal to or exceeds the Fixed Rent (on a per
rentable square foot basis) payable by Tenant at the time such Tenant's Offer
Notice is given, Tenant shall not be permitted to sublet the applicable Sublet
Space to a third party at a Sublet Rent which is less (on a per rentable square
foot basis) than such Fixed Rent without complying once again with all of the
provisions of this Section 5.02 and re-offering such Sublet Space to Landlord at
such lower Sublet Rent. If Tenant offered in Tenant's Offer Notice to assign
this Lease to Landlord upon Landlord's payment of the consideration for such
assignment specified therein, Tenant shall not be permitted to assign this Lease
to a third party where Tenant pays consideration to such third party for such
assignment without complying once again with all of the provisions of this
Section 5.02 and re-offering to assign this Lease to Landlord and pay such
consideration to Landlord.
5.03 Assignment and Subletting Procedures. (a) If Tenant delivers to
Landlord a Tenant's Offer Notice with respect to any proposed assignment of this
Lease or subletting of all or part of the Premises and Landlord does not timely
exercise any of its options under Section 5.02, and Tenant thereafter desires to
assign this Lease or sublet the Sublet Space set forth in such Tenant's Offer
Notice, Tenant may notify Landlord (a "Transfer Notice") of such desire, which
notice shall be accompanied by a statement setting forth in reasonable detail
the identity of the proposed assignee or subtenant, the nature of its business
and its proposed use of the Premises. Tenant shall have the right to give the
Transfer Notice with respect to any proposed assignment or subletting
simultaneously with Tenant's giving of Tenant's Offer Notice with respect
thereto.
(b) If Tenant gives a Transfer Notice, Landlord's consent to the proposed
assignment or sublease shall not be withheld, provided that: (i) the proposed
assignee or subtenant states its intention to use the Premises in a manner that
(A) is in keeping with or better than the then standards of the Building, and
(B) is limited to the use expressly permitted under this Lease; (ii) the
proposed assignee or subtenant is a reputable person or entity; (iii) except in
the case of Qualifying Transactions, neither the proposed assignee or sublessee
is then a tenant or an occupant of any part of the Building (but this
restriction shall apply only if Landlord then has, or within the next 6 months
is scheduled to have, comparable vacant space in the Building available for
lease for a comparable term); and (iv) except in the case of Qualifying
Transactions, the proposed assignee or sublessee is not a person with whom
Landlord is then actively negotiating to lease space in the Building (but this
restriction shall apply only if Landlord then has, or within the next 6 months
is scheduled to have, comparable vacant space in the Building available for
lease for a comparable term) (it being understood that a letter from such
proposed assignee or subtenant stating that such person is no longer interested
in negotiating with Landlord to lease space in the Building shall be sufficient
evidence that Landlord is no longer actively negotiating with such person;
provided, that neither Tenant nor Tenant's broker shall have induced such
proposed assignee or subtenant to send such letter).
(c) If Landlord consents to a proposed assignment or sublease and Tenant
fails to execute and deliver the assignment or sublease to which Landlord
consented within 270 days after the giving of such consent, then Tenant shall
again comply with Section 5.03(a) before assigning this Lease or subletting all
or the relevant part of the Premises.
(d) If Landlord fails to grant or deny consent to a proposed assignment or
subletting within 15 days after receipt of the relevant Transfer Notice, Tenant
shall have the right to give a reminder notice to Landlord (which notice shall
state that Landlord shall be deemed to have consented to the proposed assignment
or subletting if Landlord fails to grant or deny consent thereto within 1
Business Day) and if Landlord fails to grant or deny consent to such proposed
assignment or subletting within one Business Day after receipt of such reminder
notice, Landlord shall be deemed to have consented to such assignment or
subletting. Any denial of consent to a proposed assignment or subletting shall
be effective only if accompanied by a statement that sets forth in detail
Landlord's reason(s) for denying such consent; provided, that in the case of any
denial of consent by reason of a failure of the condition specified in Section
5.03(b)(ii), Landlord shall only be required to cite such Section in order to
comply with this sentence.
(e) "Qualifying Transactions" means any of the following: (i) any sublease
of less than 25,000 rentable square feet (including any option or must take
space and any space previously sublet by Tenant to the same subtenant), (ii) any
sublease with an entity with which Tenant then has a material ongoing business
relationship or (iii) any sublease or assignment if (A) the fair market rental
value (determined as if leased directly by Landlord) of the Sublet Space (or the
Premises in case of an assignment), on a per rentable square foot, net effective
basis is less than (B) the Rent, on a per rentable square foot basis, payable
under this Lease; provided, in the case of clause (iii), that Tenant pays to
Landlord in monthly installments an amount equal to 50% of the excess, if any,
of (x) the fair market rental value of the Sublet Space (or the Premises in case
of an assignment) determined as provided in clause (A) above over (y) (I) in the
case of a sublease, the rent, on a per rentable square foot, net effective
basis, payable by the subtenant with respect to the Sublet Space or (II) in the
case of an assignment, the Rent, on a per rentable square foot basis, payable
under this Lease, net of any consideration being paid by Tenant to such assignee
for such assignment. As an example for clause (iii) above, if Tenant desires to
sublet Sublet Space to a subtenant for $24 per rentable square foot on a net
effective basis and the fair market rental value of such Sublet Space
(determined as provided in subclause (A) above) is $30 per rentable square foot
on a net effective basis, then, because the fair market rental value of such
Sublet Space ($30 per rentable square foot) is less than the Rent payable under
this Lease ($36 per rentable square foot) and the proposed sublease rent ($24
per rentable square foot) is less than such fair market rental value, Tenant
must pay to Landlord an amount equal to 50% of the excess of the fair market
rental value of such Sublet Space ($30 per rentable square foot) over the
proposed sublease rent ($24 per rentable square foot) or $3 per rentable square
foot of such Sublet Space.
5.04 General Provisions. (a) If this Lease is assigned, whether or not in
violation of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or occupied by anybody other than
Tenant, whether or not in violation of this Lease, Landlord may, after default
by Tenant in the payment of any sum payable under this Lease after notice and
beyond applicable grace periods, collect rent from the subtenant or occupant
(but not in excess of the total amount of such monetary defaults by Tenant which
exist at such time). In either event, Landlord may apply the net amount
collected against Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 5.01(a),
or the acceptance of the assignee, subtenant or occupant as tenant, or a release
of Tenant from the performance of Tenant's obligations under this Lease.
(b) No assignment or transfer shall be effective until the assignee
delivers to Landlord (i) evidence that the assignee, as Tenant hereunder, has
complied with the requirements of Sections 7.02 and 7.03, and (ii) an agreement
substantially in the form attached to this Lease as Exhibit K whereby the
assignee assumes Tenant's obligations under this Lease, which agreement shall
only be required in the case of an actual assignment, but not in the case of a
deemed transfer pursuant to the second sentence of Section 5.01(a).
(c) Notwithstanding any assignment or transfer, whether or not in violation
of this Lease, and notwithstanding the acceptance of any Rent by Landlord from
an assignee, transferee, or any other party, the original named Tenant and each
successor Tenant shall remain fully liable for the payment of the Rent and the
performance of all of Tenant's other obligations under this Lease. The joint and
several liability of Tenant and any immediate or remote successor in interest of
Tenant shall not be discharged, released or impaired in any respect by any
agreement made by Landlord extending the time to perform, or otherwise
modifying, any of the obligations of Tenant under this Lease, or by any waiver
or failure of Landlord to enforce any of the obligations of Tenant under this
Lease; provided, that (i) in the case of any modification of this Lease made
after the date of an assignment or other transfer of this Lease by Tenant, if
such modification increases or enlarges the obligations of Tenant or reduces the
rights of Tenant, then the Tenant named herein and each respective assignor or
transferor that has not consented to such modification shall not be liable under
or bound by such increase, enlargement or reduction (but shall continue liable
under this Lease as though such modification were never made) and (ii) in the
case of any waiver by Landlord of a specific obligation of an assignee or
transferee of Tenant, or an extension of time to perform in connection
therewith, such waiver and/or extension shall also be deemed to apply to the
immediate and remote assignors or transferors of such assignee or transferee. If
this Lease shall have been assigned by the Initially Named Tenant (other than to
an Affiliate of the Initially Named Tenant), Landlord shall give the initially
named Tenant (or any entity which, pursuant to Section 5.01(b) above, directly
or indirectly succeeds to the interest of the initially named Tenant) (the
"Initially Named Tenant"), a copy of each notice of default given by Landlord to
the then current tenant under this Lease. Except if Landlord shall execute and
deliver a written instrument releasing the Initially Named Tenant from any
further liability under this Lease, Landlord shall not have any right to
terminate this Lease, or otherwise to exercise any of Landlord's rights and
remedies hereunder (other than Landlord's self-help remedy in accordance with
Section 4.08(a)), after a default by such current tenant, unless and until (A)
Landlord shall have made a demand on the then tenant to cure the default in
question, (B) the Initially Named Tenant receives a copy of the default notice
in question, and (C) the Initially Named Tenant has an opportunity to remedy
such default within the time periods set forth in this Lease (such time periods,
with respect to the Initially Named Tenant, being deemed to run from the date
that Landlord gives such Initially Named Tenant a copy of the default notice in
question); provided, that this sentence shall not be applicable if the then
current tenant under this Lease is an Affiliate of the Initially Named Tenant.
Landlord shall accept timely performance by the Initially Named Tenant of any
term, covenant, provision or agreement contained in this Lease on the then
current tenant's part to be observed and performed with the same force and
effect as if performed by the then current tenant (but only if such then current
tenant is not an Affiliate of the Initially Named Tenant). If the Initially
Named Tenant shall cure the default by such current tenant, or if the default
shall be incurable (such as bankruptcy), and Landlord or the current tenant
seeks to terminate this Lease, then the Initially Named Tenant shall have the
right to enter into a new lease with Landlord upon all of the then executory
terms of this Lease and to resume actual possession of the Premises for the
unexpired balance of the Term; provided, that this sentence shall not be
applicable if the then current tenant under this Lease is an Affiliate of the
Initially Named Tenant
(d) Each subletting by Tenant shall be subject to the following: (i) No
subletting shall be for a term (including any renewal or extension options
contained in the sublease, unless conditioned upon the exercise by Tenant of
Tenant's renewal option pursuant to the terms of this Lease) ending later than
one day prior to the Expiration Date. (ii) No sublease shall be valid, and no
subtenant shall take possession of the Premises or any part thereof, until there
has been delivered to Landlord, both (A) an executed counterpart of such
sublease, the form of which shall comply with the applicable provisions of this
Article 5 and a certificate of insurance evidencing that there is in full force
and effect the insurance required by Section 7.02(a) covering the subtenant's
personal property, which insurance includes the waiver of subrogation required
pursuant to Section 7.03. (iii) Each sublease shall provide that it is subject
and subordinate to this Lease, and that in the event of termination, reentry or
dispossess by Landlord under this Lease Landlord may, at its option, take over
all of the right, title and interest of Tenant, as sublessor, under such
sublease, in which case such subtenant shall attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord shall not be
liable for, subject to or bound by any item of the type that a Superior
Mortgagee is not so liable for, subject to or bound by in the case of an
attornment by a subtenant to a Superior Mortgagee pursuant to Paragraph 3 of
Exhibit B attached to Exhibit M annexed hereto. (iv) Notwithstanding clause
(iii) above, provided Tenant is not then in default under this Lease after
notice and beyond applicable grace periods, with respect to any sublease
(including a further sublease by a subtenant of Tenant (a "Second Tier
Sublease") but not a further subletting) other than pursuant to Section 5.01(c)
or 5.01(e), to which Landlord has given its consent or is deemed to have given
its consent pursuant to the terms of this Article 5 and which (A) is for not
less than 20,000 rentable square feet of Office Space (50,000 rentable square
feet in the case of a Second Tier Sublease), (B) consists of either (x) not less
than 100,000 rentable square feet of Office Space or (y) contiguous space which
includes the highest or lowest floor then comprising the Office Space or is
contiguous to another floor that has, in substantial part, been sublet by Tenant
and with respect to which Landlord has executed and delivered one or more
non-disturbance and attornment agreements hereunder with respect to
substantially all of such floor, (C) provides for a rental which, after taking
into account any free rent periods, credits, offsets or deductions to which the
subtenant may be entitled thereunder, is equal to or in excess (on a per
rentable square foot basis) of the Fixed Rent and recurring Additional Charges
payable hereunder by Tenant with respect to such space from time to time
throughout the Term (or if less (on a per rentable square foot basis) than the
Fixed Rent and recurring Additional Charges payable hereunder by Tenant, if such
subtenant agrees, in the non-disturbance and attornment agreement hereinafter
referred to, that such rental will automatically and without condition become so
equal, if, as and when the attornment provided for in such non-disturbance and
attornment agreement becomes effective between Landlord and the subtenant
following the termination of this Lease), (D) consists of space that will be
demised separately from the remainder of the Premises in accordance with all
applicable Laws and (E) provides for other obligations of the subtenant at least
substantially identical to the obligations of Tenant under this Lease (but in
compliance, to the extent applicable, with Section 8.24 below), Landlord shall,
at Tenant's request, execute and deliver to such subtenant a non-disturbance and
attornment agreement substantially in the form of Exhibit B attached to Exhibit
M annexed hereto, modified as necessary to reflect that the non-disturbance is
being granted by Landlord rather than by a Superior Mortgagee, provided and upon
condition that (1) in the case of any subtenant that is a partnership that is
not publicly traded, such subtenant shall have had net income determined in
accordance with GAAP (i.e., the excess of all gross revenues and fees over all
expenses (including, without limitation, all partnership debt service), as
determined by a firm of independent certified public accountants) for the 12
month period ending on the last day of the most recently ended fiscal quarter of
such subtenant equal to or in excess of the product of (I) 5 multiplied by (II)
the greater of (aa) the Rent payable by Tenant with respect to the sublease
space for the 12 month period commencing on the sublease commencement date
(determined without giving effect to any credits, offsets, abatements or free
rent periods) and (bb) all sums payable under the sublease for such 12 month
period (as so determined), (2) in the case of any subtenant other than a
subtenant described in clause (1) above, Tenant has furnished to Landlord's
reasonable satisfaction proof that the subtenant has a financial worth
sufficient to timely fulfill its obligations under such sublease as a primary
tenant of Landlord (and not as a subtenant of Tenant), including any increase in
such financial obligations which may become effective pursuant to this clause
(iv), and (3) the subtenant executes and delivers to Landlord such
non-disturbance and attornment agreement. Notwithstanding anything to the
contrary set forth in this clause (iv), any non-disturbance and attornment
agreement delivered by Landlord pursuant to this clause (iv) shall, pursuant to
this Lease, be conditional and by its terms expressly contain the condition such
that, in the event of any termination of this Lease other than by reason of
Tenant's default (e.g., by reason of a casualty pursuant to Section 7.05), then
any non-disturbance and attornment agreement to a subtenant shall, automatically
and without further act of the parties, terminate and be of no further force or
effect from and after the applicable termination date; provided, that if (AA)
this Lease is terminated with respect to less than all of the Premises, or (BB)
Tenant pursuant to Article 9 exercises the Renewal Option with respect to less
than all of the Premises, only such non-disturbance and attornment agreements to
subtenants who sublease any of such space with respect to which this Lease is
terminated or not renewed, as the case may be, shall, automatically and without
further act of the parties, terminate and be of no further force or effect from
and after the applicable termination date or the day preceding the commencement
of the Renewal Term, as the case may be. Anything contained in this Section
5.04(d)(iv) to the contrary notwithstanding, with respect to any sublease for
which Landlord has delivered a non-disturbance and attornment agreement pursuant
hereto, no provision of any such sublease providing in substance for the
exculpation from personal liability of the partners of a partnership subtenant
shall be binding on Landlord unless such subtenant, on the date the attornment
provided for in such non-disturbance and attornment agreement becomes effective
between Landlord and such subtenant, shall post with Landlord, as security for
such subtenant's obligations under its sublease, cash or a clean, unconditional
and irrevocable letter of credit (in form and from a bank reasonably
satisfactory to Landlord) in either case in an amount equal to the annual fixed
rent and recurring charges (without regard to any abatements, credits or
offsets) payable by such subtenant to Landlord at such time (such security to be
increased from time to time to reflect increases in such fixed rent and
recurring charges). Any subletting by Tenant to an Affiliate of Tenant in
accordance with Section 5.01(c) or 5.01(e) and any subletting by Tenant to the
Agency or by the Agency to Tenant in accordance with Section 12.01 shall not
constitute a subletting tier for purposes of this Section 5.04(d)(iv).
(e) Each sublease shall provide that the subtenant may not assign its
rights thereunder or further sublet the space demised under the sublease, in
whole or in part, without Landlord's consent in accordance with Section 5.03(b)
and without complying with all of the terms and conditions of this Article 5,
including, without limitation, Section 5.05, which Article 5 for purposes of
this Section 5.04(e) shall be deemed to be appropriately modified to take into
account that the transaction in question is an assignment of the sublease or a
further subletting of the space demised under the sublease, as the case may be.
(f) Tenant shall not publicly advertise the availability of the Premises or
any portion thereof as sublet space or by way of an assignment of this Lease,
without first obtaining Landlord's consent, which consent shall not be
unreasonably withheld or delayed; provided, that Tenant shall in no event
publicly advertise the rental rate or any description of such rental rate.
Notwithstanding the foregoing, Landlord's consent shall not be required for
Tenant to list the Premises or any portion thereof with brokers or for Tenant or
such brokers to distribute flyers with respect to the availability of the
Premises or any portion thereof, subject to the proviso set forth in the
preceding sentence.
(g) If this Lease is assigned to a partnership in accordance with the
provisions of this Article 5, then the partners of such partnership shall be
exculpated from personal liability for the obligations of such partnership as
Tenant hereunder; provided, that (i) in the case of any such assignee that is
not a publicly traded partnership, such assignee shall, as of the effective date
of such assignment, have had net income determined in accordance with GAAP
(i.e., the excess of all gross revenues and fees over all expenses (including,
without limitation, all partnership debt service), as determined by a firm of
independent certified public accountants) for the 12 month period ending on the
last day of the most recently ended fiscal quarter of such assignee equal to or
in excess of the product of (A) 5 multiplied by (B) the Rent payable by Tenant
with respect to the Premises for the 12 month period commencing on the
assignment commencement date (determined without giving effect to any credits,
offsets, abatements or free rent periods), (ii) in the case of any such assignee
that is a publicly traded partnership, such assignee has furnished to Landlord's
reasonable satisfaction proof that such assignee, as of the effective date of
such assignment, has financial worth sufficient to timely fulfill its
obligations under this Lease, and (iii) in all cases, such assignee shall post
with Landlord cash or a clean, unconditional and irrevocable letter of credit
(in form and from a bank reasonably satisfactory to Landlord) in an amount equal
to the annual Rent payable from time to time by Tenant to Landlord.
5.05 Assignment and Sublease Profits. (a) If the aggregate of the amounts
payable as fixed rent and as additional rent on account of Taxes, Operating
Expenses and electricity by a subtenant under a sublease of any part of the
Premises and the amount of any other consideration payable to Tenant by such
subtenant, whether received in a lump-sum payment or otherwise shall be in
excess of Tenant's Basic Cost therefor at that time then, promptly after the
collection thereof, Tenant shall pay to Landlord in monthly installments if, as
and when collected, as Additional Charges, 50% of such excess. Tenant shall
deliver to Landlord within 60 days after the end of each calendar year
(including, without limitation, the calendar year in which occurs the expiration
or earlier termination of this Lease) a statement specifying each sublease in
effect during such calendar year or partial calendar year, the rentable area
demised thereby, the term thereof and a computation in reasonable detail showing
the calculation of the amounts paid and payable by the subtenant to Tenant, and
by Tenant to Landlord, with respect to such sublease for the period covered by
such statement. Notwithstanding the foregoing, if Tenant fails to timely give
any such statement to Landlord, such failure shall not constitute a default
under this Lease unless Landlord gives notice to Tenant after the foregoing
60-day period and Tenant fails to give such statement to Landlord within 30 days
thereafter. "Tenant's Basic Cost" for sublet space at any time means the sum of
(i) the portion of the Fixed Rent, Tax Payments and Operating Payments which is
attributable to the sublet space, plus (ii) the amount payable by Tenant on
account of electricity in respect of the sublet space, plus (iii) the amount of
any costs reasonably incurred by Tenant in making changes in the layout and
finish of the sublet space for the subtenant amortized on a straight-line basis
over the term of the sublease with interest plus (iv) the amount of any
reasonable brokerage commissions and reasonable legal fees paid by Tenant in
connection with the sublease amortized on a straight-line basis over the term of
the sublease with interest, plus (v) 1/2 of any costs incurred by Tenant for
improvements made to the sublet space within 12 months prior to the subletting
in question (as evidenced by paid invoices), plus (vi) any take-over costs in
excess of any income from any such take-over received by Tenant, plus (vii) any
contribution for work and/or the subtenant's moving expenses, plus (viii) all
other out-of-pocket costs incurred by Tenant in connection therewith. All
references to interest in this Section 5.05 shall be deemed to be interest at
the Prime Rate.
(b) Upon any assignment of this Lease, Tenant shall pay to Landlord 50% of
the consideration received by Tenant for such assignment, after deducting
therefrom (i) all out-of-pocket expenses actually incurred by Tenant in
connection with such assignment (including, without limitation, all of the
expenses referred to in Section 5.05(a), if and to the extent applicable), plus
(ii) (without duplicating any amounts deducted under clause (i)) 1/2 of any
costs incurred by Tenant for improvements made to the Premises within 12 months
prior to the assignment in question (as evidenced by paid invoices).
(c) For the purpose of determining whether Tenant is obligated to pay any
amounts (or how much Tenant is obligated to pay) under this Section 5.05 to
Landlord, the current and all previous (if any) sublease transactions
consummated within 24 months of the current sublease transaction and which are
all part of the same subletting program shall be aggregated, so as to allow
Tenant to off-set all "losses" incurred by Tenant in connection with such
transactions against any "profits".
(d) In no event shall Tenant be required to make any payment to Landlord by
reason of, or in connection with, any assignment or subletting, other than as
expressly set forth in this Section 5.05.
ARTICLE 6
Subordination; Default; Indemnity
6.01 Subordination. (a) This Lease is subject and subordinate to each
mortgage (a "Superior Mortgage") and each underlying lease (a "Superior Lease")
which may now or hereafter affect all or any portion of the Project or any
interest therein; provided, that (i) in the case of the Indenture, the Superior
Mortgagee under the Indenture, concurrently with the execution and delivery of
this Lease by Landlord and Tenant, shall have executed, acknowledged and
delivered to Tenant the non-disturbance and attornment agreement attached to
this Lease as Exhibit M, (ii) in the case of the Ground Lease (if the Superior
Lessor thereunder shall no longer be Landlord or an Affiliate of Landlord) or
any other Superior Lease which may hereafter affect all or any portion of the
Project or any interest therein, the Superior Lessor shall have executed,
acknowledged and delivered a non-disturbance and attornment agreement containing
the same substantive provisions as those set forth in the form attached to this
Lease as Exhibit M, modified as necessary to reflect that the party granting the
non-disturbance is a Superior Lessor rather than a Superior Mortgagee and (iii)
in the case of any Superior Mortgage which may hereafter affect all or any
portion of the Project or any interest therein, the Superior Mortgagee
thereunder shall have executed, acknowledged and delivered to Tenant a
non-disturbance and attornment agreement containing the same substantive
provisions as those set forth in the form attached to this Lease as Exhibit O.
Notwithstanding anything contained in this Section 6.01(a) to the contrary, if
any such Superior Lessor or Superior Mortgagee executes, acknowledges and
delivers to Tenant a non-disturbance and attornment agreement in the form herein
required, and Tenant either fails or refuses to execute and deliver such
agreement within 20 days after delivery of such agreement to Tenant, then this
Lease shall automatically and without further act be deemed to be subject and
subordinate to such Superior Lease or Superior Mortgage, as the case may be, and
such non-disturbance and attornment agreement shall then be deemed to be in
effect with respect to such Superior Lease or Superior Mortgage, as the case may
be. If the foregoing conditions are satisfied, Tenant shall execute, acknowledge
and deliver such instrument as may be reasonably requested by Landlord, a
Superior Lessor or Superior Mortgagee to evidence the subordination described in
this Section 6.01(a), but no such instrument shall be necessary to make such
subordination effective. Tenant shall execute any amendment of this Lease
requested by a Superior Mortgagee or a Superior Lessor (other than the Superior
Lessor under the Ground Lease so long as such Superior Lessor is Landlord or an
Affiliate of Landlord), provided such amendment shall not reduce or extend the
Term, increase the Rent, reduce the area of the Premises, increase Tenant's
obligations or decrease Tenant's rights under this Lease (other than to a de
minimis extent) or decrease Landlord's obligations or increase Landlord's rights
under this Lease (other than to a de minimis extent). Any dispute under the
preceding sentence shall be determined by arbitration in accordance with Section
8.09. In the event of the enforcement by a Superior Mortgagee of the remedies
provided for by law or by such Superior Mortgage, or in the event of the
termination or expiration of a Superior Lease, Tenant, upon request of such
Superior Mortgagee, Superior Lessor or any person succeeding to the interest of
such mortgagee or lessor (each, a "Successor Landlord"), shall automatically
become the tenant of such Successor Landlord without change in the terms or
provisions of this Lease (it being understood that Tenant shall, if requested,
enter into a new lease on terms identical to those in this Lease). Upon request
by such Successor Landlord, Tenant shall execute and deliver an instrument or
instruments, reasonably requested by such Successor Landlord, confirming the
attornment provided for herein, but no such instrument shall be necessary to
make such attornment effective. The lessor under a Superior Lease is called a
"Superior Lessor" and the mortgagee under a Superior Mortgage is called a
"Superior Mortgagee".
(b) Without limiting the generality of this Section 6.01, this Lease is
subject and subordinate to (i) a certain Superior Lease, dated February 25,
1959, between Martha F. Keeping, as lessor, and 91078 Corporation, as lessee
(the "Ground Lease"), a memorandum of which was recorded in the office of the
Register of the City of New York, County of New York in Liber 5068 of
Conveyances, Page 489, and (ii) a certain Mortgage Spreader and Consolidation
Agreement and Trust Indenture dated as of March 20, 1984 (the "Indenture") made
between O&Y Equity Corp., Olympia & York Holdings Corporation, FAME Associates,
Olympia & York 2 Broadway Land Company and Olympia & York 2 Broadway Company
(collectively "Companies"), as mortgagor, and Nationsbank of Tennessee, N.A. (as
successor to Manufacturers Hanover Trust Company), as Trustee, as mortgagee.
Section 6.6D(1) and Section 6.6D(3) of the Indenture provide as follows: "D. The
Companies will not: "(1) receive or collect, or permit the receipt or collection
of, any rental or other payments under any Lease more than one month in advance
of the respective periods in respect of which they are to accrue, except that
(i) in connection with the execution and delivery of any Lease or of any
amendment to any Lease, rental payments hereunder may be collected and received
in advance in an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount up to any amount permitted by
law (provided that such deposits are maintained in accordance with applicable
law) and (ii) the Companies may receive and collect escalation charges in
accordance with the terms of each Lease;" "(3) enter into any Lease that does
not contain terms to the effect as follows: (a) the Lease and the rights of the
tenants thereunder shall be subject and subordinate to the rights of the Trustee
under this Indenture; (b) the Lease has been assigned as collateral security by
the landlord thereunder to the Trustee under this Indenture but that the
landlord thereunder is entitled to receive and collect all rental and other
payments thereunder unless and until contrary notice is received from the
Trustee; (c) in the case of any foreclosure hereunder, the rights and remedies
of the tenant in respect of any obligations of any successor landlord thereunder
shall be nonrecourse as to any assets of such successor landlord other than its
equity in the building in which the leased premises are located; and (d) the
tenant's obligation to pay rent and any additional rent shall not be subject to
any abatement, deduction, counterclaim or setoff as against any mortgagee or
purchaser upon the foreclosure of any of the Properties by reason of any
landlord default occurring prior to such foreclosure." This Lease falls within
the definition of "Lease" referred to in the above quoted language from the
Indenture. Landlord and Tenant acknowledge that the non-disturbance and
attornment agreement delivered by the Superior Mortgagee under the Indenture by
its terms modifies and supersedes the provisions of Section 6.6D(3)(d) of the
Indenture quoted above.
(c) Landlord represents to Tenant that, as of the date of this Lease,
Landlord or an Affiliate of Landlord is the successor-in-interest to each of the
lessor and the lessee under the Ground Lease, and Landlord agrees that so long
as the lessor under the Ground Lease is Landlord or an Affiliate of Landlord, in
no event shall any action taken by said lessor serve to reduce any rights, or
increase any obligations, of Tenant under this Lease.
6.02 Estoppel Certificate. Each party shall, at any time and from time to
time, within 20 days after request by the other party, execute and deliver to
the requesting party (or to such person or entity as the requesting party may
designate) 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 modified and stating the modifications), certifying the
Relevant Dates, Expiration Date and the dates to which the Fixed Rent and
Additional Charges have been paid and stating whether or not, to the best
knowledge of such party, the other party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such default of
which such party shall have knowledge, it being intended that any such statement
shall be deemed a representation and warranty to be relied upon by the party to
whom such statement is addressed. Tenant also shall include or confirm in any
such statement such other information concerning this Lease as Landlord may
reasonably request in order to confirm the status of any rights or obligations
of Tenant or Landlord under this Lease.
6.03 Default. (a) This Lease and the term and estate hereby granted are
subject to the limitation that: (i) if Tenant defaults in the payment of any
Fixed Rent, Tax Payment, Operating Payment or payment in respect of electricity,
and such default continues for 5 Business Days after Landlord gives to Tenant
(and, if applicable, to the Initially Named Tenant if required pursuant to
Section 5.04(c) above) a notice specifying such default; provided, that if
Tenant, within such 5-Business Day period, notifies Landlord that Tenant
disputes the payment in question, specifying the basis for Tenant's dispute, and
pays to Landlord any undisputed portion of such payment, such 5-Business Day
period shall be extended as to the disputed portion of such payment by an
additional 10 Business Days (i.e., 15 Business Days in the aggregate), or (ii)
if Tenant defaults in the payment of any Additional Charges (other than a Tax
Payment, Operating Payment or payment in respect of electricity, each of which
is provided for in Section 6.03(a)(i) above), and such default continues for 15
Business Days after Landlord gives to Tenant (and, if applicable, to the
Initially Named Tenant if required pursuant to Section 5.04(c) above) a notice
specifying such default, or (iii) if Tenant defaults in the keeping, observance
or performance of any covenant or agreement (other than a default of the
character referred to in Sections 6.03(a)(i), (a)(ii) or (a)(iv)), and if such
default continues and is not cured within 30 days after Landlord gives to Tenant
(and, if applicable, to the Initially Named Tenant if required pursuant to
Section 5.04(c) above) a notice specifying the same, or, in the case of a
default which for causes beyond Tenant's reasonable control cannot with due
diligence be cured within such period of 30 days, if Tenant shall not within
said 30 days institute and thereafter diligently prosecute to completion, in a
commercially reasonable manner, all steps necessary to cure the same, or (iv) if
this Lease or the estate hereby granted would, by operation of law or otherwise,
devolve upon or pass to any person or entity other than Tenant, except as
expressly permitted by Article 5, and Tenant shall fail to remedy such default
within 30 days after notice by Landlord to Tenant (and, if applicable, to the
Initially Named Tenant if required pursuant to Section 5.04(c) above) specifying
such default, then, in any of such cases, in addition to any other remedies
available to Landlord at law or in equity (but subject to Section 6.06(a) with
respect to such other remedies), Landlord shall be entitled to give to Tenant a
notice of intention to end the Term at the expiration of 5 days from the date of
the giving of such notice, and, in the event such notice is given, this Lease
and the term and estate hereby granted shall terminate upon the expiration of
such 5 days with the same effect as if the last of such 5 days were the
Expiration Date, but Tenant shall remain liable for damages as provided herein
or pursuant to law.
(b) (i) If Tenant shall dispute, in good faith, the occurrence of any
default described in Section 6.03(a)(iii) or (iv), subject to the following
sentence, Tenant shall have the right, within 30 days after Tenant receives
notice of such default, to institute an arbitration proceeding in accordance
with the provisions of Section 8.09 for the purpose of determining whether or
not such default exists and pending the final outcome of such arbitration and
during the cure period hereinafter provided for, Landlord shall not be entitled
to terminate this Lease by reason of the occurrence of such default. Tenant's
right to dispute such default under this Section 6.03(b)(i) and the restriction
on Landlord's right to terminate this Lease by reason of the occurrence of such
default shall exist only if and to the extent that (A) neither the Land nor the
Building nor any portion thereof, nor Landlord's interest therein, shall be
materially and adversely affected by such contest, (B) the health or safety of
persons shall not be in imminent danger of being threatened, (C) such default
shall not subject Landlord to imminent risk of civil or criminal liability, (D)
such default shall not be the cause of the imminent cancellation of any
insurance policy maintained by Landlord, (E) such default shall not cause
unreasonable interference to the use of space by another tenant or occupant of
the Building and (F) Tenant shall prosecute such arbitration in compliance with
all of the provisions of Section 8.09; provided, that in the case of clauses (A)
through (F), Landlord shall give Tenant notice of its determination that such
dispute by Tenant would violate any such clause and the basis therefor. The
determination of the arbitration proceeding shall be final and binding upon
Landlord and Tenant and (x) if the arbitration shall determine that such default
exists, Tenant shall have no rights at law or in equity (all of which are hereby
waived by Tenant) to contest the existence of such default and (y) if the
arbitration shall determine that such default does not exist, Landlord shall
have no right to thereafter give to Tenant a default notice with respect to the
specific event that the arbitrator determined not to be a default. Without
limiting the generality of Section 8.09, the non-prevailing party in such
arbitration shall pay all of the reasonable costs and expenses incurred by the
parties in connection with such proceeding. If the arbitration shall determine
that a default exists, then the date on which the arbitrators give Landlord and
Tenant notice of such determination shall be deemed to be the date that Tenant
was given notice of such default under Section 6.03 (a)(iii) or (iv), as the
case may be, for all purposes hereunder, so that Tenant shall thereafter have
the cure periods set forth in such Section to cure such default. The dispute
rights provided for in this Section 6.03(b)(i) shall not apply in the case of
any default described in Section 6.03(a)(i) or Section 6.03(a)(ii) (but payment
by Tenant of any Rent shall not preclude Tenant from thereafter arbitrating the
correctness of such payment in accordance with Section 8.09). (ii) If Landlord
gives a notice to Tenant in accordance with Section 6.03(b)(i) informing Tenant
that the dispute by Tenant of any default in accordance with such Section would
violate any of clauses (A) through (F) of such Section, then Tenant shall
perform the disputed obligation, and if Tenant fails to do so, Landlord shall be
entitled to exercise all rights and remedies under this Lease or otherwise with
respect to such failure (including, without limitation, the right to terminate
this Lease). Notwithstanding the foregoing, after Tenant completes the
performance of such disputed obligation, Tenant shall have the right to initiate
an arbitration in accordance with Section 8.09 for the purpose of determining
whether or not Tenant was obligated to perform such disputed obligation in
accordance with the provisions of this Lease. If such arbitration shall
determine that Tenant was not obligated to perform such obligation, then
Landlord shall promptly reimburse Tenant for all amounts reasonably incurred by
Tenant in performing such obligation, together with interest thereon at the
Prime Rate from the date that such expenditure was incurred by Tenant through
the date of reimbursement by Landlord; provided, that if such arbitration shall
determine that Landlord acted in bad faith in requiring Tenant to perform such
obligation, then such reimbursement by Landlord shall be with interest at the
Interest Rate (instead of at the Prime Rate).
6.04 Re-entry by Landlord. If this Lease shall terminate, either (a) as in
Section 6.03 provided or (b) after a default by Tenant in the payment of any
Rent, by summary dispossess or other appropriate proceeding (a termination under
clause (a) or (b) is called a "Termination"), Landlord or Landlord's agents and
servants may immediately or at any time thereafter re-enter into or upon the
Premises, or any part thereof, without being liable to indictment, prosecution
or damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold and enjoy the Premises. The
words "re-enter" and "re-entering" as used in this Lease are not restricted to
their technical legal meanings. Upon any Termination, Tenant shall pay to
Landlord any Rent then due and owing (in addition to any damages payable under
Section 6.05).
6.05 Damages. In the event of a Termination, Tenant shall pay to Landlord
as damages, at the election of Landlord, either: (a) a sum which, at the time of
such termination, represents the then value of the excess, if any, of (i) the
aggregate of the Rent which, had this Lease not terminated, would have been
payable hereunder by Tenant for the period commencing on the day following the
date of such termination or re-entry to and including the Expiration Date over
(ii) the aggregate fair rental value of the Premises for the same period (for
the purposes of this clause (a) the amount of Additional Charges which would
have been payable by Tenant under Sections 2.04 and 2.05 shall, for each
calendar year ending after such termination or re-entry, be deemed to be an
amount equal to the amount of such Additional Charges payable by Tenant for the
calendar year immediately preceding the calendar year in which such termination
or re-entry shall occur), or
(b) sums equal to the Rent that would have been payable by Tenant through
and including the Expiration Date had this Lease not terminated, payable upon
the due dates therefor specified in this Lease; provided, that if Landlord shall
relet all or any part of the Premises for all or any part of the period
commencing on the day following the date of such termination or re-entry to and
including the Expiration Date, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
reletting the expenses incurred or paid by Landlord in terminating this Lease
and of re-entering the Premises and of securing possession thereof, as well as
the actual expenses of reletting, including, without limitation, altering and
preparing the Premises for new tenants, brokers' commissions, and all other
actual expenses properly chargeable against the Premises and the rental
therefrom in connection with such reletting, it being understood that any such
reletting may be for a period equal to or shorter or longer than said period;
provided, further, that (i) in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord under this
Lease, (ii) in no event shall Tenant be entitled, in any suit for the collection
of damages pursuant to this Section 6.05(b), to a credit in respect of any net
rents from a reletting except to the extent that such net rents are actually
received by Landlord on account of any period that is the subject of such suit
and (iii) if the Premises or any part thereof should be relet in combination
with other space, then proper apportionment on a square foot rentable area basis
shall be made of the rent received from such reletting and of the expenses of
reletting. Suit or suits for the recovery of any damages payable hereunder by
Tenant, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall require Landlord to
postpone suit until the date when the Term would have expired but for such
Termination.
6.06 Other Remedies. (a) Nothing contained in this Lease (other than
Section 7.05(f) below) shall be construed as limiting or precluding the recovery
by Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant; provided, that Landlord's
damages solely in respect of Tenant's failure to pay Rent for the remainder of
the Term in the event of a Termination shall be limited to amounts calculated in
accordance with Section 6.05.
(b) Except where any provision of this Lease provides that Tenant's sole
remedy for any failure by Landlord to perform any of its obligations under this
Lease is as specified in this Lease (or words to that effect), nothing contained
in this Lease (other than Section 7.05(f) below) shall be construed as limiting
or precluding the recovery by Tenant against Landlord of any sums or damages to
which, in addition to the damages particularly provided in this Lease, Tenant
may lawfully be entitled by reason of any default hereunder on the part of
Landlord (but subject in all events to Section 8.06).
(c) Anything to the contrary contained in this Lease notwithstanding, in no
event shall Landlord or Tenant be liable to the other for consequential damages
under this Lease.
6.07 Right to Injunction. In the event of a breach or threatened breach by
Landlord or Tenant of any of its obligations under this Lease, the other party
shall also have the right of injunction. Except as set forth in Sections 6.06(a)
and (b) above, the specified remedies to which Landlord or Tenant may resort
hereunder are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which Landlord or Tenant may lawfully be
entitled, and Landlord or Tenant may invoke any remedy allowed at law or in
equity as if specific remedies were not herein provided for.
6.08 Certain Waivers. Tenant waives and surrenders all right and privilege
that Tenant might have under or by reason of any present or future law to redeem
the Premises or to have a continuance of this Lease after Tenant is dispossessed
or ejected therefrom by process of law or under the terms of this Lease or after
any termination of this Lease. Tenant also waives the right to seek a delay in
levy of execution in case of any eviction or dispossession for nonpayment of
rent. Landlord and Tenant each waive trial by jury in any action in connection
with this Lease.
6.09 No Waiver. Failure by either party to declare any default immediately
upon its occurrence or delay in taking any action in connection with such
default shall not waive such default but such party shall have the right to
declare any such default at any time thereafter. If either party designates by
notice to the other party that a payment made by the paying party is to be
applied by the receiving party to a particular item then owing by the paying
party to the receiving party, then the receiving party shall apply such payment
to such particular item. Any amounts paid by Landlord or Tenant to the other
party, without notice of a particular item to which such payment is to be
applied, may be applied by the receiving party, in its discretion, to any
amounts then owing by the paying party to the receiving party. Receipt by
Landlord of a partial payment shall not be deemed to be an accord and
satisfaction (notwithstanding any endorsement or statement on any check or any
letter accompanying any check or payment) nor shall such receipt constitute a
waiver by Landlord of Tenant's obligation to make full payment. No act or thing
done by Landlord or its agents shall be deemed an acceptance of a surrender of
the Premises, and no agreement to accept such surrender shall be valid unless in
writing and signed by Landlord and by each Superior Lessor (other than the
Superior Lessor under the Ground Lease so long as such Superior Lessor is
Landlord or an Affiliate of Landlord) and Superior Mortgagee with whom Tenant
has (or is deemed to have) in effect a binding non-disturbance and attornment
agreement.
6.10 Holding Over. (a) If Tenant holds over without the consent of Landlord
after expiration or termination of this Lease, Tenant shall pay as holdover
rental for each month of the holdover tenancy an amount equal to the product of
(i) the Holdover Percentage multiplied by (ii) the greater of (A) the fair
market rental value of the Premises for such month or (B) the Fixed Rent and
recurring Additional Changes which Tenant was obligated to pay for the month
immediately preceding the end of the Term. "Holdover Percentage" means, with
respect to any holdover by Tenant after the expiration or termination of this
Lease, (I) for the first 30 days of such holdover tenancy, 110%, (II) for the
second 30 days of such holdover tenancy, 120%, (III) for the third 30 days of
such holdover tenancy, 130%, (IV) for the fourth 30 days of such holdover
tenancy, 140% and (V) thereafter, 150%. Subject to Section 6.10(b), no holding
over by Tenant after the Term shall operate to extend the Term. Notwithstanding
the foregoing, the acceptance of any rent paid by Tenant pursuant to this
Section 6.10 shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding.
(b) If (i) Tenant holds over for more than 9 months after the expiration or
termination of this Lease, (ii) Landlord enters into a lease ("Landlord's New
Lease") with a tenant for all or any part of the Premises (a "New Tenant") and
such New Tenant terminates Landlord's New Lease by reason of the holding over by
Tenant and (iii) either (A) Tenant shall not have entered into a lease for new
premises ("Tenant's New Lease") on or before the date that is the later of (x)
the date that the New Tenant terminates Landlord's New Lease and (y) the date
that is 9 months after the expiration or termination of this Lease or (B) Tenant
shall have entered into Tenant's New Lease on or before the later of the dates
described in clauses (x) and (y) above, and Tenant shall have terminated, or
shall then have the right to terminate (provided that such right shall continue
to be available for at least 2 Business Days after the giving of Landlord's
notice of exercise of Landlord's option next described), Tenant's New Lease,
then, at Landlord's option exercisable upon 2 Business Days notice to Tenant,
this Lease shall be deemed to be automatically renewed upon all of the terms and
conditions set forth in this Lease, except that (I) the term of this Lease shall
be extended for an additional period equal in duration to the initial term of
Landlord's New Lease (the "Holdover Renewal Term"), (II) Fixed Rent with respect
to the Premises for the Holdover Renewal Term shall be equal (on a per rentable
square foot basis) to the Fixed Rent payable in accordance with Landlord's New
Lease for the initial term thereof (after giving effect to the value of any
concessions under Landlord's New Lease that are not received by Tenant), (III)
Tenant's Tax Payment and Tenant's Operating Payment shall be payable in
accordance with Article 2; provided, that the Base Tax Amount and the Base
Operating Year shall be as specified in Landlord's New Lease, (IV) Tenant shall
accept the Premises in its "as is" condition at the commencement of the Holdover
Renewal Term, and any provisions of this Lease with respect to Landlord's Work,
payment of a work allowance and any abatement of Fixed Rent and any Additional
Charges (relating only to Tenant's initial construction period with respect to
any space comprising the Premises, i.e., the period prior to the rent
commencement date for such space) shall not be applicable during the Holdover
Renewal Term and (V) Tenant shall have no option to renew this Lease beyond the
expiration of the Holdover Renewal Term. Promptly after the commencement of the
Holdover Renewal Term, the parties shall execute and deliver an instrument
confirming the extension of the term of this Lease for the Holdover Renewal Term
upon the terms and conditions of this Section 6.10(b), but the failure to so
execute and deliver such instrument shall not affect such extension of the term
of this Lease. Landlord shall promptly notify Tenant of the terms of any
termination right contained in Landlord's New Lease which permits the New Tenant
to terminate Landlord's New Lease by reason of the failure of Landlord to
deliver the premises leased to the New Tenant within a certain time period or by
a certain date. Tenant shall promptly notify Landlord of the terms of any
termination right contained in Tenant's New Lease which permits Tenant to
terminate Tenant's New Lease by reason of the failure of the landlord thereunder
to deliver Tenant's new premises within a certain time period or by a certain
date.
6.11 Attorneys' Fees. If either party places the enforcement of this Lease
or any part thereof, or the collection of any Rent or other payment due or to
become due hereunder, or recovery of the possession of the Premises, in the
hands of an attorney, or files suit upon the same, the prevailing party shall be
reimbursed by the losing party, within 30 days after demand, for its reasonable
attorneys' fees and disbursements and court costs.
6.12 Nonliability and Indemnification. (a) Neither Landlord, any Superior
Lessor or any Superior Mortgagee, nor any partner, director, officer,
shareholder, principal, agent, servant or employee of Landlord, any Superior
Lessor or any Superior Mortgagee (whether disclosed or undisclosed), shall be
liable to Tenant for (i) any loss, injury or damage to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss, nor shall the aforesaid parties be liable for any loss of or
damage to property of Tenant or of others entrusted to employees of Landlord;
provided, that, subject to Sections 7.03 and 7.05(f), the foregoing shall not be
deemed to relieve Landlord, any Superior Lessor or any Superior Mortgagee,
respectively, of any liability to the extent resulting from the negligence or
willful misconduct of such party or its agents, servants, employees or
contractors in the operation or maintenance of the Premises or the Building,
(ii) any loss, injury or damage described in clause (i) above caused by other
tenants or persons in, upon or about the Building, or caused by operations in
construction of any public or quasi-public work, except in the case of Landlord,
if and to the extent caused by the negligence or willful misconduct of Landlord
or Landlord's agents, servants, employees or contractors (but subject to
Sections 7.03 and 7.05(f)), or (iii) even if negligent, consequential damages
arising out of any loss of use of the Premises or any equipment, facilities or
other Tenant's Property therein. This Section 6.12(a) shall not be construed to
relieve Landlord of any of Landlord's obligations set forth elsewhere in this
Lease or to deprive Tenant of any remedies to which Tenant may be entitled in
the event of the breach by Landlord of any of Landlord's obligations under this
Lease.
(b) Subject to the provisions of Sections 7.03 and 7.05(f), Tenant shall
indemnify and hold harmless Landlord, all Superior Lessors and all Superior
Mortgagees and each of their respective partners, directors, officers,
shareholders, principals, agents and employees (each (including Landlord and
such superior parties), a "Landlord Indemnified Party"), from and against any
and all claims caused by (i) the conduct or management of the Premises or of any
business therein, or any work or thing done, or any condition created, in the
Premises; provided, that Tenant's indemnity pursuant to this clause (i) shall
not apply to the extent such claim results from the acts (other than any act in
connection with the exercise by Landlord of its self-help remedy set forth in
Section 4.08, in which case Tenant's indemnity pursuant to this clause (i) shall
not apply only to the extent that any such claim results from the negligence or
willful misconduct of Landlord) or (where a Landlord Indemnified Party has an
affirmative obligation to act pursuant to the terms of this Lease) omissions of
any Landlord Indemnified Party, (ii) any negligence or willful misconduct of
Tenant or any person claiming through or under Tenant or any of their respective
partners, directors, officers, agents, employees, contractors or invitees (so
long as such invitees are in the Premises) with respect to any accident, injury
or damage occurring in, at or upon the Project or (iii) the use by Tenant or any
other person of Tenant's Parking Spaces; provided, that Tenant's indemnity
pursuant to clauses (ii) and (iii) above shall not apply to the extent such
claim results from the negligence or willful misconduct of any Landlord
Indemnified Party, in each case together with all reasonable costs and expenses
incurred in connection with each such claim or action or proceeding brought
thereon, including, without limitation, all reasonable attorneys' fees and
disbursements. If any action or proceeding is brought against any Landlord
Indemnified Party by reason of any such claim, Tenant, upon notice from such
Landlord Indemnified Party, shall resist and defend such action or proceeding
(by counsel reasonably satisfactory to such Landlord Indemnified Party, and
counsel selected by Tenant's insurance company to resist and defend such action
or proceeding is hereby deemed to be satisfactory to such Landlord Indemnified
Party).
(c) Subject to the provisions of Sections 7.03 and 7.05(f), Landlord shall
indemnify and hold harmless Tenant and Tenant's partners, directors, officers,
shareholders, principals, agents and employees (each (including Tenant), a
"Tenant Indemnified Party"), from and against any and all claims arising from or
in connection with any negligence or willful misconduct of Landlord or any
Landlord Indemnified Party with respect to any accident, injury or damage
occurring in, at or upon the Project; together with all reasonable costs,
expenses and liabilities incurred in connection with each such claim or action
or proceeding brought thereon, including, without limitation, all attorneys'
fees and disbursements; provided, that (except in the case of Tenant's exercise
of its self-help remedies under Section 10.01(a), in which case the foregoing
indemnity shall apply with respect to claims made by third parties arising from
or in connection with the acts or omissions of Tenant or any Affiliated agent of
Tenant, but not those of any contractor or non-Affiliated agent of Tenant) the
foregoing indemnity shall not apply to the extent such claim results from the
negligence or willful misconduct of any Tenant Indemnified Party. If any action
or proceeding is brought against any Tenant Indemnified Party by reason of any
such claim, Landlord, upon notice from such Tenant Indemnified Party, shall
resist and defend such action or proceeding (by counsel reasonably satisfactory
to such Tenant Indemnified Party, and counsel selected by Landlord's insurance
company to resist and defend such action or proceeding is hereby deemed to be
satisfactory to such Tenant Indemnified Party).
ARTICLE 7
Insurance; Casualty; Condemnation
7.01 Compliance with Insurance Standards. (a) Neither Tenant nor any person
claiming through or under Tenant, nor any of their respective agents, employees,
contractors or invitees (so long as such invitees are in the Premises) shall
violate any reasonable condition imposed by any insurance policy then issued in
respect of the Project or do or keep anything in the Premises (after Landlord
shall have notified Tenant not to do so) which would subject Landlord, any
Superior Lessor or any Superior Mortgagee to any liability or responsibility for
personal injury or death or property damage, or which would increase any
insurance rate in respect of the Project over the rate which would otherwise
then be in effect or which would result in insurance companies of good standing
refusing to insure the Project in amounts reasonably satisfactory to Landlord,
or which would result in the cancellation of, or the assertion of any defense by
the insurer in whole or in part to claims under, any policy of insurance in
respect of the Project; but nothing in this Section 7.01(a) shall be construed
to prohibit Tenant's use of the Premises for the uses permitted under Section
1.05. Tenant shall not be responsible for any increased insurance rate in
respect of the Project over the rate that would otherwise then be in effect, and
this Section 7.01(a) shall not be construed to impose any liability on Tenant,
in each case solely by reason of Tenant's use of the Premises for the purposes
stated in Section 1.05; provided, that, in the case of Tenant's use of the
Premises as a Cafeteria, Tenant complies with all Laws and the reasonable
requirements of Landlord's insurer applicable to such use.
(b) If, as a direct result of any failure of Tenant to comply with this
Lease, the premiums on Landlord's insurance on the Project shall be higher than
they otherwise would be, Tenant shall reimburse Landlord, within 30 days after
demand, for that part of such premiums paid by reason of such failure on the
part of Tenant, provided that said demand shall be accompanied by a statement
from the insurer which shall expressly identify the specific act or activity of
Tenant causing the increase in the insurance rate. A schedule or "make up" of
rates for the Project or the Premises, as the case may be, issued by the New
York Fire Insurance Rating Organization or other similar body making rates for
insurance for the Project or the Premises, as the case may be, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the insurance rate then applicable to the Project or the Premises, as
the case may be.
(c) Notwithstanding anything to the contrary contained herein, Tenant shall
not be liable for any increases in fire insurance premiums, unless Tenant shall
have received not less than 120 days advance notice of the imposition of such
increases, during which period Tenant may notify Landlord that Tenant desires
Landlord to contest the imposition of such increases with Landlord's insurance
company. If Tenant timely gives such notice to Landlord, Landlord shall
vigorously contest the imposition of such increases with Landlord's insurance
company. Pending the final determination of any such contest, Tenant shall not
be required to pay any such disputed amount. If it is finally determined that
Tenant is required to pay such disputed amount, Tenant shall pay the same,
together with interest thereon at the Prime Rate (or the Interest Rate if Tenant
is determined by an arbitration in accordance with Section 8.09 to have
contested any such increase in insurance premiums in bad faith) from the date
such disputed amounts were paid by Landlord through the date of payment by
Tenant, within 30 days after demand therefor by Landlord.
(d) Landlord, at Landlord's expense, shall maintain at all times during the
Term, with a reputable insurance company licensed to do business in New York
State and rated by Best's Insurance Reports or any successor publication of
comparable standing as "A VIII" or better or the then equivalent of such rating,
the following insurance: (i) commercial general liability insurance against all
claims, demands or actions for injury to or death of person or property having a
limit of not less than $25,000,000 per occurrence and/or in the aggregate,
including products liability, contractual liability and independent contractors'
coverage, arising from or related to, the conduct of Landlord, the operation of
the Project and/or caused by the acts or omissions of Landlord, the managing
agent for the Building and their respective employees; (ii) if there is a boiler
or other similar refrigeration equipment or pressure object or other similar
equipment in the Building, steam boiler, air conditioning and machinery
insurance written on broad form basis with a limit of not less than the full
replacement value of such equipment; (iii) "all-risk" insurance, to the extent
of 100% of the replacement cost of the Building (including, without limitation,
the Landlord Obligation Areas, but excluding the Premises, other than any
Landlord Obligation Areas within the Premises, and all Tenant's Fixtures); and
(iv) worker's compensation, disability and such other similar insurance covering
all persons employed in connection with Landlord's Work and with respect to whom
death or bodily injury claims could be asserted against Landlord, Tenant, the
Premises or the Building.
(e) Within 10 days after Landlord's receipt of notice from Tenant
requesting same, Landlord shall give Tenant reasonable evidence that the
insurance required to be carried by Landlord under Section 7.01(d) is in full
force and effect.
7.02 Tenant's Insurance. Tenant shall maintain at all times during the Term
(a) "all risk" property insurance covering the Premises (including, without
limitation, all present and future Tenant's Property and Tenant's Fixtures, but
excluding any Landlord Obligation Areas) to a limit of not less than the full
replacement cost thereof, (b) commercial general liability insurance, including
a contractual liability endorsement, and personal injury liability coverage, in
respect of the Premises and the conduct or operation of business therein, with
Landlord and its managing agent, if any, and each Superior Lessor and Superior
Mortgagee whose name and address shall have been furnished to Tenant, as
additional insureds, with limits of not less than $5,000,000 combined single
limit for bodily injury and property damage liability in any one occurrence (c)
steam boiler, air conditioning or machinery insurance, if there is a boiler or
pressure object or similar equipment in the Premises, with limits of not less
than the full replacement value of such equipment, (d) when Alterations are in
process, the insurance specified in Section 4.02(e) hereof and (e) the insurance
specified in Section 8.25(d). Such insurance may be carried under blanket and/or
umbrella policies covering the Premises and other properties owned or leased by
Tenant; provided, that each such policy shall in all respects comply with this
Section 7.02, shall specify that the portion of the total coverage of such
policy that is allocated to the Premises is in the amounts required pursuant to
this Section 7.02 and shall provide that the amount of coverage afforded
thereunder with respect to the Premises shall not be reduced by claims
thereunder against such other properties. The limits of the insurance required
under this Section 7.02 shall not limit the liability of Tenant. Tenant shall
deliver to Landlord and any additional insureds, on or before the Relevant Date
with respect to each Block (or any applicable portion thereof), certificates of
insurance evidencing the insurance required to be maintained by Tenant under
this Section 7.02 issued by the insurance company or its authorized agent.
Tenant shall procure renewals of such insurance from time to time before the
expiration thereof, and Tenant shall deliver to Landlord and any additional
insureds such renewal certificate before the expiration of any existing policy.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New York State and rated by Best's Insurance Reports
or any successor publication of comparable standing as "A VIII" or better or the
then equivalent of such rating, and all such policies shall contain a provision
whereby the same cannot be canceled unless Landlord and any additional insureds
are given at least 30 days' prior written notice of such cancellation. Landlord
and Tenant shall cooperate with each other in connection with the collection of
any insurance monies that may be due in the event of loss and Landlord and
Tenant shall execute and deliver to each other such proofs of loss and other
instruments which may be required to recover any such insurance monies. Landlord
may from time to time (but not more frequently than once every 3 years) require
that the amount of the insurance to be maintained by Tenant under this Section
7.02 be increased, so that the amount thereof is equal to the amount of
insurance which landlords of midtown Manhattan buildings comparable to the
Building are then requiring tenants to carry.
7.03 Subrogation Waiver. Landlord and Tenant shall each include in each of
its respective insurance policies insuring the Building, any portion thereof or
any property therein against loss, damage or destruction by fire or other
casualty, a waiver of the insurer's right of subrogation against the other party
during the Term or, if such waiver should be unobtainable or unenforceable, (a)
an express agreement that such policy shall not be invalidated if the assured
waives the right of recovery against any party responsible for a casualty
covered by the policy before the casualty or (b) any other form of permission
for the release of the other party. Each party hereby releases the other party
with respect to any claim (including a claim for negligence) which it might
otherwise have against the other party for loss, damage or destruction with
respect to its property occurring during the Term to the extent to which it is,
or is required to be, insured under a policy or policies containing a waiver of
subrogation or permission to release liability. Nothing contained in this
Section 7.03 shall be deemed to relieve either party of any duty imposed
elsewhere in this Lease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this Lease.
7.04 Condemnation. (a) If there shall be a total taking of the Building in
condemnation proceedings or by any right of eminent domain, this Lease and the
term and estate hereby granted shall terminate as of the date of taking of
possession by the condemning authority and all Rent shall be prorated and paid
as of such termination date. If there shall be a taking of the Land or the
Building (whether or not the Premises are affected by such taking) of such scope
such that the untaken part thereof would be in Landlord's reasonable judgment
uneconomic or undesirable to operate, then Landlord may terminate this Lease and
the term and estate granted hereby by giving notice to Tenant within 60 days
after the date of taking of possession by the condemning authority; provided,
that if no part of the Premises is subject to such taking, Landlord shall be
entitled to terminate this Lease only if Landlord then terminates all other
leases for office space in the Building. If there shall be a taking of the
Premises of such scope that the untaken part of the Premises would in Tenant's
reasonable judgment be uneconomic or undesirable to operate, then Tenant may
terminate this Lease and the term and estate granted thereby by giving notice to
Landlord within 60 days after the date of taking of possession by the condemning
authority. If either Landlord or Tenant shall give a termination notice as
aforesaid, then this Lease and the term and estate granted hereby shall
terminate as of the date of such notice and all Rent shall be prorated and paid
as of such termination date. In the event of a taking of the Premises which does
not result in the termination of this Lease (i) the term and estate hereby
granted with respect to the taken part of the Premises shall terminate as of the
date of taking of possession by the condemning authority and all Rent applicable
to the taken part of the Premises shall be appropriately abated for the period
from such date to the Expiration Date and (ii) Landlord shall with reasonable
diligence restore the remaining portion of the Premises (exclusive of Tenant's
Property) as nearly as practicable to its condition prior to such taking. In the
case of any termination of this Lease under this Section 7.04, whether as to all
or a portion of the Premises, Tenant shall pay to Landlord the amount, if any,
due in accordance with Section 7.06 below.
(b) In the event of any taking of all or a part of the Building, Landlord
shall be entitled to make a claim for and receive the entire award in the
condemnation proceeding made for the value of the estate vested by this Lease in
Tenant or any value attributable to the unexpired portion of the Term and for
the costs to perform the repairs to the Building and the Premises which Landlord
is required to perform pursuant to Section 7.04(d), and Tenant shall be entitled
to make a claim for and receive from the condemning authority, any compensation
to which Tenant may otherwise lawfully be entitled in such case in respect of
Tenant's Property, the unamortized cost (as shown on Tenant's financial
statements) of all Alterations made by Tenant to the Premises at Tenant's
expense (without the use of any work allowance provided by Landlord), any
increased rent which Tenant is (or would be) required to pay for new space to
the extent such space is comparable to the Premises, moving expenses and the
unamortized cost of all Alterations for which Tenant was reimbursed by any work
allowance provided by Landlord to Tenant for each Block or any other space
included in the Premises which shall have been repaid to Landlord through the
payment of Fixed Rent by Tenant (for purposes solely of determining the portion
of any such work allowance which shall have been so repaid, work allowances for
each Block or any other space shall be deemed to be amortized on a straight-line
basis during the period commencing on the rent commencement date for such Block
or other space and ending on the last day of the initial Term (or, if such work
allowance is provided by Landlord during any renewal term, the last day of such
renewal term), so that each Fixed Rent payment made by Tenant during such period
shall include an equal amount of such work allowance); provided, that if such
taking shall include only a portion of any Block or a portion of any other space
included in the Premises and this Lease shall not be terminated by reason
thereof, any work allowance provided by Landlord with respect to such Block or
other space shall be appropriately prorated based upon the rentable area of the
taken portion of such Block or other space and amortized in accordance with the
foregoing provisions. Notwithstanding the foregoing, Tenant shall not be
permitted to make a claim in any such condemnation proceeding which shall reduce
the award to Landlord for the costs to perform the repairs to the Building and
the Premises which Landlord is required to perform pursuant to Section 7.04(d).
(c) If all or any part of the Premises shall be taken for a limited period,
Tenant shall be entitled, except as hereinafter set forth, to that portion of
the award for such taking which represents compensation for the use and
occupancy of the Premises, for the taking of Tenant's Property and for moving
expenses, and Landlord shall be entitled to that portion which represents
reimbursement for the cost of restoration of the Premises (including Tenant's
Alterations). Notwithstanding anything to the contrary contained in this Section
7.04(c), if any such temporary taking shall continue for a period in excess of 6
months, the same shall be deemed a permanent taking, and the provisions of
Sections 7.04(a) and (b) shall apply thereto. This Lease shall remain unaffected
by such taking (unless such taking exceeds 6 months and one of the parties
terminates this Lease under the preceding sentence) and Tenant shall continue
responsible for all of its obligations under this Lease to the extent such
obligations are not affected by such taking and shall continue to pay in full
all Rent when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award which represents compensation
for the use and occupancy of the Premises shall be apportioned between Landlord
and Tenant as of the Expiration Date. Any award for temporary use and occupancy
for a period beyond the date to which the Rent has been paid shall be paid to,
held and applied by Tenant as a trust fund for payment of the Rent thereafter
becoming due.
(d) In the event of any taking which does not result in termination of this
Lease, Landlord, whether or not any award shall be sufficient therefor, shall
proceed with reasonable diligence to repair the remaining parts of the Building
and the Premises (including all Fixtures, but excluding Tenant's Property) to
substantially their former condition to the extent that the same may be feasible
(subject to reasonable changes which Landlord deems desirable) and so as to
constitute a complete and rentable Building and Premises.
7.05 Casualty. (a) If the Building or the Premises shall be partially or
totally damaged or destroyed by fire or other casualty (each, a "Casualty") and
if this Lease is not terminated as provided below, then (i) Landlord shall
repair and restore the Building (including, without limitation, the Landlord
Obligation Areas, but excluding the Premises, other than any Landlord Obligation
Areas within the Premises, and all Fixtures and Tenant's Property) with due
diligence (provided, that Landlord shall not be required to perform the same on
an overtime or premium pay basis except to the extent the insurance carrier
agrees to pay for such overtime without reducing the total insurance proceeds
available to be paid to Landlord) after Landlord has actual knowledge of such
Casualty and (ii) Tenant shall repair and restore, in accordance with Section
4.02, the Premises (including, without limitation, all Fixtures and Tenant's
Property, but excluding all Landlord Obligation Areas) with reasonable dispatch
after the Casualty.
(b) If, by reason of a Casualty, all or part of the Premises shall be
rendered Untenantable, whether by reason of damage to the Premises or by reason
of damage to other portions of the Building which results in a lack of
reasonable access to, or a material interference with the ability to use, the
Premises, the Fixed Rent and Additional Charges under Sections 2.04 and 2.05
shall be abated in the proportion that the Untenantable area of the Premises
bears to the total area of the Premises, for the period from the date of the
Casualty to the earlier of (i) the date (the "Substantial Completion Date") that
Landlord substantially completes the repair and restoration to the portions of
the Building (including, without limitation, the Landlord Obligation Areas, but
excluding the Premises, other than any Landlord Obligation Areas within the
Premises, and all Fixtures and Tenant's Property) necessary in order to render
the Premises tenantable (the "Required Restoration Work") (provided, that if
such repair and restoration would have been substantially completed at an
earlier date but for Tenant having failed to cooperate with Landlord in
effecting repairs or restoration or collecting insurance proceeds or any Tenant
Delay, then such repair and restoration shall be deemed to have been
substantially completed on such earlier date and the abatement shall cease on
such earlier date) or (ii) the date Tenant or any subtenant reoccupies a portion
of the Premises for the conduct of Tenant's normal business operations therein
(in which case the Fixed Rent and the Additional Charges allocable to such
reoccupied portion shall be payable by Tenant from the date of such occupancy).
Landlord's determination of the Substantial Completion Date shall be controlling
unless Tenant disputes same by notice to Landlord within 10 days after Landlord
shall have given notice of such determination to Tenant, and pending resolution
of such dispute, Tenant shall pay Rent in accordance with Landlord's
determination. If it is resolved that the Substantial Completion Date was not
the date so fixed by Landlord, any payments of Rent paid by Tenant to Landlord
during the period commencing on such date fixed by Landlord and ending on the
day before the proper Substantial Completion Date, together with interest
thereon at the Prime Rate from the date of the applicable payments by Tenant to
the date of payment by Landlord, shall be paid by Landlord to Tenant within 30
days after the resolution of such dispute. Nothing contained in this Section
7.05 shall relieve Tenant from any liability that may exist as a result of any
Casualty. For purposes of this Section 7.05(b), in the case of any Casualty
which renders all or part of the Premises Untenantable, the Required Restoration
Work shall be deemed to be substantially completed on the date upon which such
work is completed other than minor details or adjustments to such work, but only
if such details or adjustments shall not interfere in any material respect with
Tenant's ability to repair and restore the portion of the Premises (including,
without limitation, Tenant's Fixtures and Tenant's Property) rendered
Untenantable by such Casualty or thereafter use and occupy such portion of the
Premises for the ordinary conduct of Tenant's intended use of such portion of
the Premises (as such use is shown on, or reasonably inferable from Tenant's
then current plans and specifications with respect to Tenant's repair and
restoration work); provided, that such intended use is permitted pursuant to
Section 1.05. "Untenantable" means that Tenant (or any applicable subtenant of
Tenant) shall be unable to occupy, and shall not be occupying, the Premises or
the applicable portion thereof for the purposes for which Tenant (or such
subtenant) was using the Premises or such portion thereof immediately prior to
the Casualty or other event in question (including for the purpose of
construction if Tenant (or such subtenant) was then performing Alterations in
the Premises or such portion thereof).
(c) If by reason of a Casualty (i) the Building shall be totally damaged or
destroyed, (ii) the Building shall be so damaged or destroyed (whether or not
the Premises are damaged or destroyed) that repair or restoration shall require
more than 270 days or the expenditure of more than 33% percent of the full
insurable value of the Building (which, for purposes of this Section 7.05(c),
shall mean replacement cost less the cost of footings, foundations and other
structures below the street and first floors of the Building) immediately prior
to the Casualty, then in any such case Landlord may terminate this Lease by
notice given to Tenant within 180 days after the Casualty; provided, that
Landlord may only terminate this Lease if Landlord then also terminates the
leases of all of the other office tenants in the Building. In the event of any
termination of this Lease under this Section 7.05(c), Tenant shall pay to
Landlord the amount, if any, due in accordance with Section 7.06 below.
(d) (i) Within 45 days after Landlord has actual knowledge of any Casualty,
Landlord shall deliver to Tenant an estimate prepared by a reputable contractor
selected by Landlord and reasonably acceptable to Tenant setting forth such
contractor's estimate as to the time reasonably required to repair the damage in
order to make the Office Space no longer Untenantable (other than any Long Lead
Work which the Contractor estimates will take more than 315 days from the date
of such Casualty to repair); provided, that if Landlord shall fail to deliver
such estimate within said 45-day period, Tenant may designate a contractor
(subject to Landlord's reasonable approval thereof; provided, that if Landlord
fails to approve or disapprove any contractor designated by Tenant within 5 days
after the giving of notice by Tenant, such contractor shall be deemed to be
approved by Landlord) to prepare the same (the contractor designated by either
Landlord or Tenant pursuant to this sentence is called the "Contractor" and the
estimate prepared by the Contractor is called the "Estimate"). (ii) If at least
the lesser of (A) one full floor of the Building included in the Office Space or
(B) 25,000 contiguous rentable square feet of space in the Office Space shall be
rendered Untenantable by reason of a Casualty and the period set forth in the
applicable Estimate exceeds 315 days from the date of such Casualty, Tenant may
elect to terminate this Lease with respect to the Casualty Terminated Space by
notice (a "Termination Notice") to Landlord given not later than 30 days
following Tenant's receipt of such Estimate. (iii) If at least the lesser of (A)
one full floor of the Building included in the Office Space or (B) 25,000
contiguous rentable square feet of space in the Office Space shall be rendered
Untenantable by reason of a Casualty, the time period set forth in the
applicable Estimate does not exceed 315 days from the date of such Casualty, and
for any reason whatsoever Landlord shall not substantially complete the Required
Restoration Work on or before the date (the "First Outside Date") which is 410
days after the date of such Casualty (provided, that the First Outside Date
shall be extended to the extent that Landlord is delayed in substantially
completing the Required Restoration Work by reason of Tenant Delay and/or Force
Majeure; provided, further, that any such extension of the First Outside Date by
reason of Force Majeure shall not exceed 60 days), then Tenant shall have the
right to terminate this Lease with respect to the Casualty Terminated Space by
giving a Termination Notice to Landlord on or before the earlier to occur of (x)
the date that Landlord substantially completes the Required Restoration Work or
(y) the date that is 30 days after the First Outside Date. (iv) If at least the
lesser of (A) one full floor of the Building included in the Office Space or (B)
25,000 contiguous rentable square feet of space in the Office Space shall be
rendered Untenantable by reason of a Casualty, the time period set forth in the
applicable Estimate does exceed 315 days from the date of such Casualty and
Tenant has not elected to terminate this Lease under Section 7.05(d)(ii), and
for any reason whatsoever Landlord shall not substantially complete the Required
Restoration Work on or before the date (the "Second Outside Date") that is 6
months after the date set forth in the applicable Estimate as the date by which
the repair and restoration (other than any Long Lead Work which the Contractor
estimated would take more than 315 days from the date of such Casualty to
repair) should reasonably be completed (provided, that the Second Outside Date
shall be extended if and to the extent that Landlord is delayed in substantially
completing the Required Restoration Work by reason of Tenant Delay, but shall
not be extended for any other reason, including, without limitation, if Landlord
is so delayed by reason of Force Majeure), then Tenant shall have the right to
terminate this Lease with respect to the Casualty Terminated Space by giving a
Termination Notice to Landlord on or before the earlier to occur of (x) the date
that Landlord substantially completes the Required Restoration Work or (y) the
date that is 30 days after the Second Outside Date. (v) If Tenant timely gives a
Termination Notice pursuant to this Section 7.05(d), this Lease shall terminate
with respect to the Casualty Terminated Space on the 20th day after such notice
is given by Tenant and Tenant shall vacate the Casualty Terminated Space and
surrender the same to Landlord in accordance with the terms of this Lease. Upon
any such termination, Tenant's liability for Fixed Rent and Additional Charges
hereunder with respect to the Casualty Terminated Space shall cease as of the
date of such termination, and any prepaid portion of Rent with respect to the
Casualty Terminated Space for any period after such date shall be refunded by
Landlord to Tenant within 30 days after such termination date. Upon a
termination of this Lease with respect to less than the entire Office Space,
there shall be a pro rata reduction of Tenant's Rent obligations to reflect such
partial termination and Landlord and Tenant shall promptly enter into an
instrument evidencing such partial termination and the reduced rentable area of
the Office Space (such rentable area to be determined in a manner consistent
with the methods used in calculating the rentable area of the Premises initially
demised under this Lease); provided, that the failure to enter into such
instrument shall not affect the effectiveness of such partial termination. In
the event of any termination of this Lease under this Section 7.05(d), whether
as to all or a portion of the Premises, Tenant shall pay to Landlord the amount,
if any, due in accordance with Section 7.06 below. (vi) Anything to the contrary
contained in this Section 7.05(d) notwithstanding, if any Casualty occurs during
the last 3 years of the Term, all references in this Section 7.05(d) to "315
days" and "410 days" shall be deemed to be replaced with the following number of
days (provided, that such number of days shall not be extended even if Landlord
is delayed in substantially completing the Required Restoration Work by reason
of Force Majeure, but such number of days shall be extended if and to the extent
Landlord is delayed in substantially completing the Required Restoration Work by
reason of Tenant Delay): (A) if such Casualty occurs during the 12-month period
commencing on the date that is 3 years prior to the last day of the Term, "240
days" and "365 days", respectively; (B) if such Casualty occurs during the
12-month period commencing on the date that is 2 years prior to the last day of
the Term, "180 days" and "270 days", respectively; and (C) if such Casualty
occurs during the last 12-months of the Term, "120 days" and "180 days",
respectively. (vii) Subject to Section 7.07, "Casualty Terminated Space" means,
at Tenant's election as specified in the applicable Termination Notice, either
(A) the entire Premises or (B) a portion of the Premises consisting of entire
floors of the Building (or so much of any floor as shall then be part of the
Premises); provided, that in the case of any such partial termination, (x) all
floors included within the Casualty Terminated Space shall be contiguous and (y)
the Casualty Terminated Space shall consist of either (I) all or any of the
floors which shall have been rendered Untenantable by such Casualty or (II)
either the highest or lowest floor then included in the Office Space and any
other floor(s) contiguous to such highest or lowest floor so long as the total
rentable area of the Casualty Terminated Space does not exceed the rentable area
of the portion of the Premises which was rendered Untenantable by such Casualty.
(viii) Time is of the essence with respect to all of the time periods set forth
in this Section 7.05(d).
(e) If Landlord terminates this Lease in accordance with Section 7.05(c),
Landlord shall inform Tenant in Landlord's termination notice whether or not
Landlord intends to rebuild the Building for use as a first class office
building. If Landlord so notifies Tenant that Landlord intends to rebuild the
Building, then Tenant shall have the right, by notice given to Landlord within
30 days after the giving by Landlord of such notice, to reject Landlord's
termination of this Lease. If Tenant timely gives such rejection notice, then
(i) Landlord's termination notice shall be null and void and of no further force
and effect, (ii) anything to the contrary contained in this Section 7.05
notwithstanding, Tenant shall have no further right to terminate this Lease on
account of such Casualty and (iii) the Term shall be extended by a period which
is equal to the period commencing on the date of such Casualty and ending on the
date that Landlord notifies Tenant that the Premises are tenantable.
(f) Landlord shall not be obligated to repair or replace the Premises
(other than any Landlord Obligation Areas within the Premises) or any Tenant's
Fixtures or Tenant's Property, notwithstanding that Landlord may carry its own
insurance covering the same. Tenant shall look solely to its insurance for
recovery of any damage to or loss of the Premises (other than any Landlord
Obligation Areas within the Premises) or any Tenant's Fixtures or Tenant's
Property. Tenant shall notify Landlord promptly of any Casualty in the Premises,
unless Landlord has actual knowledge thereof. Tenant shall not be obligated to
repair or replace the Building or any portion thereof (other than the Premises
(but excluding any Landlord Obligation Areas within the Premises) and Tenant's
Fixtures), notwithstanding that Tenant may carry its own insurance covering the
same. Landlord shall look solely to its insurance for recovery of any damage to
or loss of the Building or any portion thereof (other than the Premises (but
excluding any Landlord Obligation areas within the Premises) and Tenant's
Fixtures). Anything to the contrary contained in this Lease notwithstanding,
neither Landlord nor Tenant shall be responsible for any property damage
suffered by the other party if and to the extent that such damage is covered by
any insurance carried by such other party (or would have been so covered had
such party carried the insurance required to be carried by such party under this
Lease), except that, to the extent so provided in Section 4.05(a), Tenant shall
be responsible for certain damage to the solar film attached to the exterior
windows of the Premises.
(g) This Section 7.05 shall be deemed an express agreement governing any
damage or destruction of the Premises by fire or other casualty, and Section 227
of the New York Real Property Law providing for such a contingency in the
absence of an express agreement, and any other law of like import now or
hereafter in force, shall have no application.
(h) "Long Lead Work" means any item of repair to Tenant's Alterations which
is not a stock item and must be specifically manufactured, fabricated or
installed or is of such an unusual, delicate or fragile nature that there is a
substantial risk that (i) there will be a delay in its manufacture, fabrication,
delivery or installation, or (ii) after delivery, such item will need to be
reshipped or redelivered, so that the item of work in question would delay the
completion of the standard items of such work even though the items of Long Lead
Work in question are (A) ordered together with the other items required for such
work and (B) then installed or performed (after the manufacture or fabrication
thereof) in order and sequence that such Long Lead Work and other items of work
are normally installed or performed in accordance with good construction
practice.
(i) If in case of a Casualty, Landlord shall be delayed in completing the
repair and restoration that Landlord is obligated to perform under this Section
7.05 by reason of Force Majeure, Landlord shall promptly notify Tenant of the
occurrence of such Force Majeure and, to the extent possible, Landlord's good
faith estimate of the duration of such Force Majeure delays and, if requested by
Tenant from time to time, Landlord shall update Tenant as to the status of such
Force Majeure delays.
(j) In case of any Casualty which renders all or part of the Premises
Untenantable, prior to the substantial completion of the repair and restoration
that Landlord is obligated to perform under this Section 7.05, Landlord shall
provide Tenant and Tenant's contractors access to the Premises to repair and
restore the Premises on the following terms and conditions. Tenant shall not
commence work in any portion of the Premises until the date specified in a
notice from Landlord to Tenant (which notice shall be given by Landlord to
Tenant as soon as the giving of such notice shall be feasible) stating that the
repairs required to be made by Landlord have been or will be completed to the
extent reasonably necessary, in the reasonable opinion of Landlord, to permit
the repair and restoration of the portion of the Premises in question then
prudent to be performed in accordance with good construction practice without
interference with, and consistent with the performance of, the repairs and
restoration, remaining to be performed by Landlord.
7.06 Certain Termination Payments. In the event of any termination of this
Lease as to all or any portion of the Premises pursuant to Sections 4.04(c),
7.04, 7.05 or 10.03 (but excluding a termination under Section 10.03 by reason
of an Eviction that results from the willful acts or (where Landlord has an
affirmative obligation to act pursuant to the terms of this Lease) omissions of
Landlord), then (a) if such termination is with respect to all of the Premises,
Tenant shall pay to Landlord an amount equal to the excess of (i) all work
allowances (including, without limitation, the Allowances) theretofore paid by
Landlord to Tenant over (ii) the costs and expenses incurred by Tenant in
connection with Tenant's moving into and preparation for Tenant's occupancy of
the Premises (including, without limitation, all soft costs incurred in
connection therewith, but excluding all actual costs incurred to purchase and
install Tenant's Property), and (b) if such termination is with respect to less
than the entire Premises, Tenant shall pay to Landlord an amount equal to the
excess of (i) the Deemed Termination Allowance for such terminated space over
(ii) the costs and expenses incurred by Tenant in connection with Tenant's
moving into and preparation for Tenant's occupancy of such terminated space
(including, without limitation, all soft costs incurred in connection therewith,
but excluding all actual costs incurred to purchase and install Tenant's
Property). "Deemed Termination Allowance" means, with respect to any terminated
space, an amount equal to the sum of (A) the product of (x) $45 multiplied by
(y) the number of rentable square feet included in such terminated space that is
part of the Blocks and (B) any work allowance paid by Landlord to Tenant with
respect to any portion of such terminated space that is not part of the Blocks
(such work allowance to be appropriately prorated based upon the rentable area
of such terminated space if such work allowance was paid by Landlord with
respect to a larger space which included such terminated space). Any payment
required to be made under this Section 7.06 shall be paid by Tenant to Landlord
(1) in the case of Tenant exercising a right of termination, together with the
giving of Tenant's notice of termination (and any such notice shall be null and
void unless (I) accompanied by such payment or (II) such notice states that no
payment is required to be paid by Tenant under this Section 7.06) and (2) in the
case of any termination other than as described in clause (1) above, on or
before the date that such termination becomes effective; provided, that if
Tenant claims that no payment is required to be paid by Tenant under this
Section 7.06, Tenant shall so notify Landlord in Tenant's termination notice.
Any such payment (or notice that no such payment is required to be paid) shall
be accompanied by invoices or other evidence reasonably satisfactory to Landlord
establishing the amount of such payment or that no payment is due.
Notwithstanding the foregoing, if Tenant timely notifies Landlord that no
payment is required to be paid by Tenant under this Section 7.06 and, as of the
date of such notice, Tenant has occupied substantially all of the Block or
Blocks in which the terminated space is located (or if such terminated space
consists of or includes Offer Space, Tenant has occupied substantially all of
the applicable Offer Space), and Tenant informs Landlord thereof in such notice,
then Tenant shall not be required to deliver such invoices or other evidence to
Landlord together with such notice; provided, that upon request by Landlord,
Tenant shall promptly deliver such invoices or other evidence to Landlord. If
Landlord disputes the amount of any payment by Tenant under this Section 7.06
and it is subsequently determined that the amount so paid by Tenant was less
than the amount due to Landlord hereunder, then the termination of this Lease as
to the applicable space shall nevertheless be effective and Tenant shall pay to
Landlord the amount of such underpayment together with interest at the Interest
Rate from the date such amount was first due from Tenant until paid.
7.07 Termination Rights As To Sublet Space. Anything to the contrary
contained in Section 7.05(d) or 10.03 notwithstanding, if (a) a Casualty occurs
and Tenant would have the right to terminate this Lease as to the Casualty
Terminated Space in accordance with Section 7.05(d) or if an Eviction occurs and
Tenant would have the right to terminate this Lease as to the Terminated Space
in accordance with Section 10.03 (in either case, without regard to this Section
7.07), (b) the space rendered Untenantable by such Casualty or Eviction, as the
case may be, includes space that was occupied by a non-Affiliated subtenant of
Tenant at the time of such Casualty or Eviction, as the case may be, and (c) (i)
in the case of any such Casualty, the space rendered Untenantable by such
Casualty does not include at least the lesser of (x) one full floor of the
Building included in the Office Space, which floor was occupied by Tenant and/or
any Affiliated subtenants of Tenant at the time of such Casualty or (y) 25,000
contiguous rentable square feet of space in the Office Space, which space was
occupied by Tenant and/or any Affiliated subtenants of Tenant at the time of
such Casualty or (ii) in the case of any such Eviction, the space rendered
Untenantable by such Eviction does not include 50,000 or more rentable square
feet of the Office Space, which space was occupied by Tenant and/or any
Affiliated subtenants of Tenant at the time of such Eviction, then, provided
that (1) in the case of any such Casualty, the space rendered Untenantable by
such Casualty includes at least the lesser of (A) one full floor of the Building
included in the Office Space, which space was occupied by such non-Affiliated
subtenant of Tenant at the time of such Casualty or (B) 25,000 contiguous
rentable square feet of space in the Office Space, which space was occupied by
such non-Affiliated subtenant of Tenant at the time of such Casualty or (2) in
the case of any such Eviction, the space rendered Untenantable by such Eviction
includes 50,000 or more rentable square feet of the Office Space, which space
was occupied by such non-Affiliated subtenant of Tenant at the time of such
Eviction, Tenant shall only have the right to terminate this Lease in accordance
with Section 7.05(d) or 10.03, as applicable, with respect to the space that was
occupied by such non-Affiliated subtenant of Tenant at the time of such Casualty
or Eviction, as the case may be, and, for purposes of any such termination,
"Casualty Terminated Space" or "Terminated Space", as applicable, shall mean
only such space.
ARTICLE 8
Miscellaneous Provisions
8.01 Notice. All notices, demands, consents, approvals, advices, waivers or
other communications (each, a "Notice") which may or are required to be given by
either party to the other under this Lease shall be in writing and, unless
otherwise required by any Laws, shall be sent (a) by hand, (b) by United States
Mail, certified or registered, postage prepaid, return receipt requested or (c)
by a nationally recognized overnight carrier, in each case addressed to the
party to be notified at the address for such party specified in the first
paragraph of this Lease (in the case of any Notice to Tenant, to the attention
of the Vice President, Facilities), or to such other place in the continental
United States as the party to be notified may from time to time designate by at
least 20 days' notice to the notifying party (with a copy, in the case of each
Notice to Landlord, to Landlord's Managing Attorney, c/o Olympia & York
Companies (U.S.A.), 237 Park Avenue, New York, New York 10017 and, in the case
of each Notice to Tenant, to the attention of the General Counsel, at the
address for Tenant specified in the first paragraph of this Lease). Each Notice
shall be deemed to have been given on the date such Notice is actually received
as evidenced by a written receipt therefor, and in the event of failure to
deliver by reason of changed address of which no Notice was given or refusal to
accept delivery, as of the date of such failure.
8.02 Building Rules. Tenant shall comply with, and Tenant shall cause its
licensees, employees, contractors, agents and (while on the Premises) invitees
to comply with, the rules of the Building set forth in Exhibit C, as the same
may be reasonably modified or supplemented by Landlord from time to time for the
safety, care and cleanliness of the Premises and the Building and for
preservation of good order therein; provided, that in no event shall any such
modified or supplemented rule increase Tenant's obligations or reduce Tenant's
rights under this Lease (in either case, other than to a de minimis extent).
Landlord shall not be obligated to enforce the rules of the Building against
Tenant or any other tenant of the Building or any other party (unless Tenant is
adversely affected with respect to Tenant's use or occupancy of the Premises in
any material respect and Tenant notifies Landlord thereof, specifying in
reasonable detail the manner in which Tenant's use or occupancy is being so
adversely affected). Unless Landlord shall willfully or negligently fail to so
enforce said rules (and Tenant's use or occupancy of the Premises is adversely
affected in any material respect by reason of such failure by Landlord and
Tenant notifies Landlord thereof, specifying in reasonable detail the manner in
which Tenant's use or occupancy is being so adversely affected), Landlord shall
have no liability to Tenant by reason of the violation by any tenant or other
party of the rules of the Building. In no event shall Landlord enforce the rules
of the Building in a manner which discriminates against Tenant. If any rule of
the Building shall conflict with any provision of this Lease, such provision of
this Lease shall govern.
8.03 Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected, and each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.
8.04 Certain Definitions. (a) "Landlord" means only the owner, at the time
in question, of the Building or that portion of the Building of which the
Premises are a part, or of a lease of the Building or that portion of the
Building of which the Premises are a part, so that in the event of any transfer
or transfers of title to the Building or of Landlord's interest in a lease of
the Building or such portion of the Building, the transferor shall be and hereby
is relieved and freed of all obligations of Landlord under this Lease accruing
from and after the date of such transfer, and it shall be deemed, without
further agreement, that such transferee has assumed all obligations of Landlord
during the period it is the holder of Landlord's interest under this Lease;
provided, that any such transferee shall not be deemed to have assumed any
liabilities of Landlord accruing prior to the date of such transfer, except for
(i) any such liabilities set forth in sufficient detail to identify the claim by
Tenant in an estoppel certificate or other notice given by Tenant to Landlord
within 30 days after Landlord notifies Tenant of such transfer, (ii) any amounts
to which Tenant is entitled under Section 2.05 in respect of Operating Payments
made by Tenant for periods prior to such transfer (and which amounts have not
been previously paid to Tenant), but only if Tenant, on or before the Operating
Expense Cutoff Date, delivers to such transferee a Tenant's Statement setting
forth in reasonable detail any such amounts which Tenant claims to be due and
(iii) any liabilities for unpaid tax refunds owed to Tenant pursuant to Section
2.04(f) in respect of periods prior to such transfer. "Operating Expense Cutoff
Date" means, in the case of any transfer or transfers of title to the Building
or of Landlord's interest in a lease of the Building or the applicable portion
of the Building, the date that is the later of (A) 365 days after the last day
of the Operating Year immediately preceding the Operating Year in which such
transfer takes place (the "Preceding Operating Year") and (B) 180 days after the
date that Landlord delivers to Tenant (x) a Landlord's Statement with respect to
the Preceding Operating Year, and (y) a notice stating that Tenant's failure to
deliver a Tenant's Statement under Section 8.04(a)(ii) shall result in Tenant
being estopped from further claiming any refund for the period to which such
Landlord's Statement relates and for any prior periods. In case of any such
transfer, Landlord shall reasonably cooperate with Tenant in making the Records
with respect to Operating Years prior to such transfer which Tenant has the
right to examine in accordance with Section 2.05(l)(i) available to Tenant in
accordance with Section 2.05(l)(i).
(b) "Landlord shall have no liability to Tenant" or words of similar import
mean that Tenant is not entitled to terminate this Lease, or to claim actual or
constructive eviction, partial, or total, or to receive any abatement or
diminution of Rent, or to be relieved in any manner of any of its other
obligations under this Lease, or to be compensated for loss or injury suffered
or to enforce any other right or kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Premises.
(c) Wherever in this Lease it is provided that a party shall not
unreasonably withhold a consent or approval, such party shall also not
unreasonably delay such consent or approval.
8.05 Quiet Enjoyment. During the Term, Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises, subject to the other terms of this
Lease and to Superior Leases and Superior Mortgages.
8.06 Limitation of Landlord's Personal Liability. Tenant shall look solely
to Landlord's interest in the Project for the recovery of any judgment against
Landlord, and no other property or assets of Landlord or Landlord's partners,
officers, directors, shareholders or principals, direct or indirect, disclosed
or undisclosed, shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease. For purposes of the preceding sentence, "Landlord's interest in the
Project" shall be deemed to include (a) all rent or other consideration received
by Landlord (and/or by the lessor under the Ground Lease; provided, that such
lessor is Landlord or an Affiliate of Landlord) in respect of the Building, (b)
proceeds of a sale (net of transaction costs), financing or refinancing (but
only to the extent the proceeds of a financing or refinancing exceed (i) the
amount of any indebtedness that was paid with the proceeds of such financing or
refinancing plus (ii) all transaction costs associated with such financing or
refinancing) of the Building or the Project (or any portion thereof), or of
Landlord's (or such lessor's) estate or interest therein, or in any property,
equipment or improvements in the Project (or any portion thereof), and (c) any
insurance proceeds or condemnation awards relating to any portion of the Project
(to the extent in excess of any restoration costs and net of all costs of
obtaining such proceeds or awards); provided, in each case that Tenant (A) shall
have delivered a notice to Landlord asserting a claim for a breach of Landlord's
obligations under this Lease prior to the receipt by Landlord (or such lessor)
of such rent or other consideration, proceeds or awards, (B) shall have
commenced an appropriate proceeding against Landlord asserting such breach
within 6 months after the date such notice was delivered to Landlord and (C)
shall be diligently prosecuting such claim to completion, and Tenant shall have
the right to look to such rent, consideration, proceeds or awards only as to the
subject matter of such action.
8.07 Counterclaims. If Landlord commences any summary proceeding or action
for nonpayment of Rent or to recover possession of the Premises, Tenant shall
not interpose any counterclaim of any nature or description in any such
proceeding or action, unless Tenant's failure to interpose such counterclaim in
such proceeding or action would result in the waiver of Tenant's right to bring
such claim in a separate proceeding under applicable law.
8.08 Survival. All obligations and liabilities of Landlord or Tenant to the
other which accrued before the expiration or other termination of this Lease and
all such obligations and liabilities which by their nature or under the
circumstances can only be, or by the provisions of this Lease may be, performed
after such expiration or other termination, shall survive the expiration or
other termination of this Lease. Without limiting the generality of the
foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to Tax Payments, Operating Payments
and any other amounts payable under this Lease, shall survive the expiration or
other termination of this Lease.
8.09 Arbitration. (a) Except as otherwise expressly set forth elsewhere in
this Lease, each party shall have the right to submit all disputes regarding the
interpretation of the provisions of this Lease and all determinations made by
any party under this Lease to arbitration, which shall be conducted in Manhattan
in accordance with the Commercial Arbitration Rules (Expedited Procedures) of
the AAA, except that the provisions of this Section 8.09 shall supersede any
conflicting or inconsistent provisions of said rules. The party requesting
arbitration shall do so by giving notice to that effect to the other party,
specifying in said notice the nature of the dispute, and that said dispute shall
be determined in the City of New York, by a panel of 3 arbitrators in accordance
with this Section 8.09. Landlord and Tenant shall each appoint their own
arbitrator within 5 days after the giving of notice by either party. If either
Landlord or Tenant shall fail timely to appoint an arbitrator, the appointed
arbitrator shall select the second arbitrator, who shall be impartial, within 5
days after such party's failure to appoint. The arbitrators so appointed shall
meet and shall, if possible, determine such matter within 10 days after the
second arbitrator is appointed and their determination shall be binding on the
parties. If for any reason such two arbitrators fail to agree on such matter
within such period of 10 days, then either Landlord or Tenant may request
ENDISPUTE/JAMS (or any organization which is the successor thereto or any other
arbitration or mediation organization, including, without limitation, the AAA,
which will provide an impartial arbitrator that is an active or retired state or
federal judge) to appoint an arbitrator who shall be impartial within 7 days of
such request and both parties shall be bound by any appointment so made within
such 7-day period. The third arbitrator (and the second arbitrator if selected
by the other arbitrator as provided above) only shall subscribe and swear to an
oath fairly and impartially to determine such dispute. Within 7 days after the
third arbitrator has been appointed, each of the first two arbitrators shall
submit their respective determinations to the third arbitrator who must select
one or the other of such determinations (whichever the third arbitrator believes
to be correct or closest to a correct determination) within 7 days after the
first two arbitrators shall have submitted their respective determinations to
the third arbitrator, and the selection so made shall in all cases be binding
upon the parties, and judgment upon such decision may be entered into any court
having jurisdiction. In the event of the failure, refusal or inability of an
arbitrator to act, a successor shall be appointed within 10 days as hereinbefore
provided. Except as provided in the next sentence, in the case of all disputes
to be determined by arbitration in accordance with this Section 8.09, the third
arbitrator shall be an active or retired federal or New York State judge.
Notwithstanding the foregoing, (i) in the case of an arbitration involving the
determination of Fair Market Rent or the fair market rental value of any Offer
Space or (ii) if no arbitration or mediation organization shall be able to
appoint an active or retired state or federal judge to serve as arbitrator of
the dispute in question within the 7-day period specified above for such
appointment, then either Landlord or Tenant may request AAA to appoint the third
arbitrator who shall be experienced in the issue with which the arbitration is
concerned and shall have been actively engaged in such field for a period of at
least 10 years before the date of his or her appointment hereunder. If the
second arbitrator is appointed by the first arbitrator as provided above, such
second arbitrator shall also be experienced in the issue with which the
arbitration is concerned and have been actively engaged in such field for a
period of at least 10 years before the date of his or her appointment hereunder.
The third arbitrator shall apply the laws of the State of New York, without
giving effect to any principles of conflicts of laws. The third arbitrator shall
schedule a hearing where the parties and their advocates shall have the right to
present evidence, call witnesses and experts and cross-examine the other party's
witnesses and experts. Either party shall have the right, at any time, to make a
motion to the third arbitrator to grant summary judgment as to any question of
law.
(b) Except with respect to an arbitration involving the determination of
Fair Market Rent or the fair market rental value of any Offer Space (which shall
be governed by the provisions of Sections 9.02 and 1.06, respectively), the
losing party shall pay the fees and expenses of all arbitrators acting under
this Section 8.09.
(c) Landlord and Tenant agree to sign all documents and to do all other
things necessary to submit any such matter to arbitration and further agree to,
and hereby do, waive any and all rights they or either of them may at any time
have to revoke their agreement hereunder to submit to arbitration and to abide
by the decision rendered thereunder. For such period, if any, as this agreement
to arbitrate is not legally binding or the arbitrator's award is not legally
enforceable, the provisions requiring arbitration shall be deemed deleted and
matters to be determined by arbitration shall be subject to litigation.
(d) If there shall be submitted to arbitration in accordance with this
Section 8.09 any dispute concerning the payment of any Rent by Tenant (other
than any dispute under Section 2.05(l)(ii), which dispute shall be governed by
the provisions of said Section), pending the resolution of such dispute, Tenant
shall pay the disputed Rent to Landlord. If the arbitrator shall determine that
such disputed payment was not required to be paid by Tenant, Landlord shall pay
to Tenant, within 30 days after such determination, such disputed payment,
together with interest thereon at the Prime Rate from the date the applicable
payment was made by Tenant through the date of payment by Landlord pursuant to
this Section 8.09(d); provided, that if the arbitrator shall determine that the
disputed payment was charged to Tenant by Landlord in bad faith, then such
payment by Landlord shall include interest thereon at the Interest Rate (instead
of at the Prime Rate).
8.10 No Offer. The submission by Landlord of this Lease in draft form shall
be solely for Tenant's consideration and not for acceptance and execution. Such
submission shall have no binding force or effect and shall confer no rights nor
impose any obligations, including brokerage obligations, on either party unless
and until both Landlord and Tenant shall have executed a lease and duplicate
originals thereof shall have been delivered to the respective parties.
8.11 Captions; Construction. The table of contents, captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
8.12 Amendments. This Lease may not be altered, changed or amended, except
by an instrument in writing signed by the party to be charged.
8.13 Broker. (a) Each party represents to the other that such party has
dealt with no broker other than EREIM and Newmark & Company Real Estate Inc.
(collectively, the "Brokers") in connection with this Lease or the Building, and
each party shall indemnify and hold the other harmless from and against all
loss, cost, liability and expense (including, without limitation, reasonable
attorneys' fees and disbursements) arising out of any claim for a commission or
other compensation by any broker other than the Brokers who alleges that it has
dealt with the indemnifying party in connection with this Lease or the Building.
Landlord shall enter into a separate agreement with EREIM (the "Brokerage
Agreement") which provides that, if this Lease is executed and delivered by both
Landlord and Tenant, Landlord shall pay to EREIM a commission (the "Commission")
to be agreed upon between Landlord and EREIM, subject to, and in accordance
with, the terms and conditions of such agreement.
(b) If and to the extent that (i) the Commission or any portion thereof is
not paid by Landlord when due in accordance with the provisions of the Brokerage
Agreement and (ii) Tenant delivers to Landlord a release, signed by EREIM,
releasing Landlord from any obligation to pay to EREIM the unpaid amount then
overdue (the "Unpaid Commission"), then Tenant shall be entitled to a credit (a
"Commission Rent Credit") against installments of Rent next coming due under
this Lease in an amount equal to the Unpaid Commission, together with interest
on the Unpaid Commission at the Prime Rate plus 6% from the date the Unpaid
Commission was due in accordance with the provisions of the Brokerage Agreement
to the date such amount is credited against Rent in accordance with the
provisions of this Section 8.13(b). If Tenant delivers a release from EREIM with
respect to any Unpaid Commission, Landlord shall have the right, at any time
prior to Tenant crediting against Rent in accordance with this Section 8.13(b)
the full amount of such Commission Rent Credit, to pay to Tenant an amount equal
to the remaining Commission Rent Credit to which Tenant is entitled in
accordance with this Section 8.13(b) in respect of such Unpaid Commission
(together with interest to the date of such payment) and, upon Landlord paying
such amount to Tenant, Tenant shall have no further right to any credit against
Rent with respect to such Unpaid Commission. Nothing contained in this Section
8.13(b) shall be construed to impose any obligation on Tenant to pay any Unpaid
Commission. If Landlord fails to pay any installment of the Commission in a
timely manner in accordance with the provisions of the Brokerage Agreement, in
no event shall there be any duplication of interest payable by Landlord with
respect to such installment of the Commission pursuant to the Brokerage
Agreement and this Section 8.13(b) or any other provision of this Lease.
8.14 Merger. Tenant acknowledges that Landlord has not made and is not
making, and Tenant, in executing and delivering this Lease, is not relying upon,
any warranties, representations, promises or statements, except to the extent
that the same are expressly set forth in this Lease. This Lease embodies the
entire understanding between the parties with respect to the subject matter
hereof, and all prior agreements, understanding and statements, oral or written,
with respect thereto are merged in this Lease.
8.15 Successors. This Lease shall be binding upon and inure to the benefit
of Landlord, its successors and assigns, and shall be binding upon and inure to
the benefit of Tenant, its successors, and to the extent that an assignment is
permitted under this Lease, Tenant's assigns.
8.16 Applicable Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to any
principles of conflicts of laws.
8.17 No Development Rights. Tenant acknowledges that this Lease does not
grant to Tenant any development rights, air rights or comparable rights
appurtenant to the Project, and Tenant consents, without further consideration,
to any utilization of such rights by Landlord. Tenant shall promptly execute and
deliver any instruments which may be reasonably requested by Landlord, including
instruments merging zoning lots, evidencing such acknowledgment and consent. The
provisions of this Section 8.17 shall be construed as an express waiver by
Tenant of any interest Tenant may have (arising out of Tenant having entered
into this Lease) as a "party in interest" (as such term is defined in Section
12-10 Zoning Lot of the Zoning Resolution of the City of New York) in the
Project.
8.18 Parking. During the Term, Landlord (or any person or entity designated
by Landlord to operate the indoor parking spaces in the Building) shall make
available to Tenant, and Tenant shall hire from Landlord (or Landlord's
designated operator), on a non-reserved basis, 6 of the indoor parking spaces in
the Building ("Tenant's Parking Spaces"); provided, that if Tenant terminates
this Lease with respect to less than all of the Premises or exercises the
Renewal Option with respect to less than all of the Premises or if Tenant leases
Offer Space in accordance with Section 1.06 or if the number of indoor parking
spaces in the Building shall be increased, the number of Tenant's Parking Spaces
shall be appropriately reduced or increased, as the case may be, so that Tenant
shall have Tenant's Operating Share of the indoor parking spaces in the
Building. Landlord and Tenant acknowledge that on the date of this Lease there
are 25 indoor parking spaces in the Building. Tenant shall pay to Landlord (or
Landlord's designated operator) monthly, as an Additional Charge, on the first
day of each month, the Building's established charges for Tenant's Parking
Spaces (which charges are subject to change from time to time and shall be
comparable to those charged by neighboring garages which are comparable to the
Building's garage). Landlord (or Landlord's designated operator) may require
Tenant to use reasonable visible identification (e.g., bumper decal, window
sticker, or pass) to evidence authorized use of Tenant's Parking Spaces. Tenant
shall from time to time furnish Landlord (or Landlord's designated operator)
with a list of the persons that Tenant has permitted to use Tenant's Parking
Spaces, together with such other corresponding identification (e.g., license
plates, car models or addresses) as Landlord (or Landlord's designated operator)
may require. Tenant's use of Tenant's Parking Spaces shall be subject to such
reasonable rules and regulations as may from time to time be promulgated by
Landlord in accordance with the provisions of this Lease (which may include the
obligation to leave the car keys as designated by Landlord (or Landlord's
designated operator)). Except as may otherwise be required pursuant to Section
3.03(b), Landlord shall not be obligated to police the use of any elevators or
any other points of access which may connect Tenant's Parking Spaces with any
other areas of the Building. Landlord shall have no responsibility for loss,
theft or damage, howsoever caused, to person or property arising out of or
attributable to Tenant's Parking Spaces, except to the extent the same arise out
of the gross negligence or willful misconduct of Landlord or Landlord's
contractors or employees (subject, however, to Section 7.03).
8.19 Emergency Generator. (a) To the extent permitted by Law, Tenant may,
at Tenant's sole cost and expense, install an emergency generator, at Tenant's
option, in any of the following locations: (i) on the Building setback on the
17th floor of the Building in a location designated by Tenant and reasonably
satisfactory to Landlord, (ii) alongside Landlord's emergency generator in the
pit located on the sub-cellar floor of the Building or (iii) in the mechanical
equipment room on the 8th floor of the Building in the location shown on that
certain drawing dated 6/20/95, Sketch No. SKM-3, prepared by Edwards and Zuck,
P.C. and titled "8th Floor MER Room Proposed Generator Loc.", together with all
required controls, wiring, distribution and other ancillary equipment normally
associated therewith; provided, that any fuel tank shall be located on the
sub-cellar level of the Building adjacent to Landlord's fuel tanks. Tenant may
replace or modify such equipment (and modify Tenant's electrical distribution
system connected to such generator) from time to time during the Term, subject
to the provisions of this Lease.
(b) In any case where, pursuant to the provisions of this Lease, Tenant is
permitted to install equipment on a setback of the Building, or in the case
where Tenant is permitted to install an emergency generator in the sub-cellar or
8th floor mechanical equipment room in accordance with Section 8.19(a) above,
Tenant's installation of such equipment shall be done as an Alteration, and
shall constitute a Material Alteration. Any installation, maintenance, repair
and replacement of such equipment shall be done at Tenant's expense, and
Landlord shall have no liability in respect thereof. No installation on a
Building setback may be closer than 5 feet to the parapet wall, and any
installation shall provide for adequate drainage and decking and be done in a
manner to provide that such equipment shall not cause unreasonable noise,
unreasonable vibration or other unreasonable interference with any other
occupants of the Building or the operation of the Building. Any reinforcement of
the setback area or other reasonable requirements of Landlord's structural
engineer required as a result of Tenant's installation shall be performed by
Landlord at Tenant's reasonable expense. Landlord may at all times use the
setback area, sub-cellar or 8th floor mechanical equipment room in connection
with any cleaning, maintenance, repair or operation of the Building, and
Landlord shall have no liability to Tenant by reason thereof, provided that
Landlord does not interfere with the operation of Tenant's equipment. Subject to
Sections 7.03 and 7.05(f), Tenant shall be responsible for all damage to persons
or property which results from Tenant's use of the setback area, sub-cellar or
8th floor mechanical equipment room except to the extent caused by the
negligence or willful misconduct of any Landlord Indemnified Party. Landlord
makes no warranty to Tenant as to the permissibility under Laws of using the
setback, sub-cellar or 8th floor mechanical equipment room for any purpose
permitted under this Lease or as to the suitability of the setback, sub-cellar
or 8th floor mechanical equipment room for any such purpose. Tenant shall comply
with all Laws applicable to the equipment so installed and Tenant's use of the
setback area, sub-cellar or 8th floor mechanical equipment room. Tenant shall
secure and keep in full force and effect, from and after the time Tenant begins
installation of such equipment, such supplementary insurance with respect to
such equipment as Landlord may reasonably require, provided that the same shall
not be in excess of that which would customarily be required from time to time
by landlords of buildings of similar class and character in New York City with
respect to similar installations.
(c) Landlord shall give Tenant reasonable access to the setback area, the
sub-cellar space or the 8th floor mechanical equipment room, as the case may be,
so as to permit Tenant to install, operate, maintain, repair and replace its
emergency generator and to connect the same to the Premises; provided, that, in
any such case, Tenant shall be accompanied by a representative of Landlord who
shall be made available to Tenant at reasonable times upon reasonable advance
notice from Tenant. If Tenant installs the emergency generator in the sub-cellar
space, Landlord may at any time and from time to time during the Term (but only
after such prior notice, if any, as is reasonable under the circumstances) at
Tenant's reasonable expense, temporarily disconnect and remove Tenant's
generator if reasonably required in order to access the Building emergency
generator or other emergency generators at such location, in which event, upon
completion of Landlord's work, Landlord shall, at Tenant's reasonable expense,
re-install the same in substantially its original location.
8.20 Signage. (a) Subject to the provisions of Section 8.20(b), Tenant
shall have the right to place signs containing Tenant's name in the Building
lobby and on the exterior of the Building; provided, that (i) in the case of
such Building lobby signage, the same shall be installed as part of the Lobby
Renovation Work only in the locations shown on the applicable drawings referred
to in Exhibit W and shall meet the design criteria set forth in the applicable
specifications referred to in Exhibit W and (ii) in the case of such exterior
signage, the same shall be installed only in the locations shown, and shall meet
the design criteria set forth, on the drawings referred to on Exhibit V attached
hereto (provided that Tenant may use a style of lettering other than as
described on Exhibit V subject to the reasonable approval of Landlord). All such
signage (including, without limitation, such Building lobby signage,
notwithstanding that the same is being installed as part of the Lobby Renovation
Work) shall be installed, maintained and repaired by Landlord at Tenant's
reasonable expense.
(b) The provisions of Section 8.20(a) shall be null and void and of no
further force or effect, and Landlord shall have the right to remove any signage
theretofore installed pursuant to Section 8.20(a), if (i) ELAS is no longer the
Tenant under this Lease, (ii) ELAS and/or any Affiliated subtenants of ELAS
shall be occupying less than 300,000 rentable square feet in the Building or
(iii) the Term shall expire or terminate. "ELAS" means (A) The Equitable Life
Assurance Society of the United States, the original Tenant under this Lease,
(B) any entity which, pursuant to Section 5.01(b) above, directly or indirectly
succeeds to the interest of The Equitable Life Assurance Society of the United
States as Tenant under this Lease, and/or (C) any Affiliate of The Equitable
Life Assurance Society of the United States or of any entity described in clause
(B) above.
(c) Upon the expiration or earlier termination of the Term (or earlier, if
required by Landlord under Section 8.20(b)), any signage of Tenant shall be
removed by Landlord and Tenant shall reimburse Landlord for any reasonable costs
incurred by Landlord to remove such signage and to repair or restore the areas
from which such signage was removed (ordinary wear and tear excepted).
(d) Subject to the provisions of Section 8.20(e), Landlord shall not grant
to any other tenant the right to place exterior signage containing such tenant's
name on the Sixth Avenue or 52nd Street sides of the Building; provided, that
Landlord may grant to retail tenants the right to place on the Sixth Avenue
and/or 52nd Street sides of the Building exterior signage, so long as such
signage (i) is in keeping with the character of the Building, (ii) does not
diminish the impact of Tenant's exterior signage and (iii) is in keeping with
the standards of retail signage in comparable buildings in the vicinity of the
Building. The restrictions on retail signage in the preceding sentence shall not
apply to retail signage existing at the Building on the date of this Lease.
(e) The provisions of Section 8.20(d) shall be null and void and of no
further force or effect and Landlord shall have the right to grant to any tenant
the right to place any exterior signage on the Sixth Avenue and/or 52nd Street
sides of the Building (i) if (A) ELAS is no longer the Tenant under this Lease,
(B) ELAS and/or any Affiliated subtenants of ELAS shall be occupying less than
300,000 rentable square feet in the Building, or (C) the Term shall expire or
terminate and (ii) during the last 18 months of the Term.
(f) Notwithstanding the foregoing, if (i) the provisions of Sections
8.20(a) and 8.20(d) shall become null and void because ELAS and/or any
Affiliated subtenants of ELAS fail to occupy at least 300,000 rentable square
feet in the Building, (ii) such failure constitutes the first time that ELAS
and/or any Affiliated subtenants of ELAS failed to meet such occupancy
requirement and (iii) at a later date during the Term, ELAS and/or any
Affiliated subtenants of ELAS shall again be occupying at least 300,000 rentable
square feet in the Building, then, provided Landlord shall not have previously
granted the signage rights granted to ELAS pursuant to Section 8.20(a) to
another tenant and shall not then be engaged in active negotiations with another
tenant to do so (provided, that, for so long as this Section 8.20(f) shall be
relevant, Landlord shall not have the right to so grant to any other tenant
exterior signage in the locations shown on the plans attached hereto as Exhibit
U unless, at the time such right is granted to such tenant, such tenant occupies
in the Building at least the amount of rentable square feet occupied by ELAS
and/or any Affiliated subtenants of ELAS in the Building at such time), the
provisions of Sections 8.20(a) and 8.20(d) shall be reinstated. Tenant
acknowledges that the reinstatement of Tenant's rights under Sections 8.20(a)
and 8.20(d) pursuant to the preceding sentence is a one-time right.
8.21 Lobby Renovation. (a) For purposes of this Lease, the following terms
shall have the following meanings: "Lobby Renovation Work" means, collectively,
the Phase I Lobby Renovation Work and the Phase II Lobby Renovation Work. "Phase
I Lobby Renovation Work" means the work shown on the drawings referred to in
Exhibit W annexed hereto, to the extent such drawings identify the work shown on
such drawings to be part of the Phase I Lobby Renovation Work; provided, that
Landlord shall have the right to change such work after having received Tenant's
consent thereto if such consent is required pursuant to Section 8.21(e) below.
"Phase II Lobby Renovation Work" means the work shown on the drawings referred
to in Exhibit W annexed hereto, to the extent such drawings identify the work
shown on such drawings to be part of the Phase II Lobby Renovation Work;
provided, that Landlord shall have the right to change such work after having
received Tenant's consent thereto if such consent is required pursuant to
Section 8.21(e) below. "Phase I Target Date" means August 15, 1996; provided,
that the Phase I Target Date shall be postponed one day for each day that
Landlord is delayed in substantially completing the Phase I Lobby Renovation
Work by reason of either Force Majeure or Tenant Delay; provided, further, that
if Tenant fails substantially to move into the Block A Space on or before August
15, 1996, then the Phase I Target Date shall be postponed one day for each day
occurring in the period commencing on August 16, 1996 through and including the
date that is 30 days after Tenant has substantially moved into the Block A Space
and Tenant notifies Landlord of the same. "Phase II Target Date" means December
31, 1997; provided, that the Phase II Target Date shall be postponed one day for
each day that Landlord is delayed in substantially completing the Phase II Lobby
Renovation Work by reason of either Force Majeure or Tenant Delay; provided,
further, that the Phase II Target Date shall be postponed one day for each day
that the Phase I Target Date is postponed beyond August 15, 1996 as provided in
the definition of "Phase I Target Date".
(b) Landlord, at Landlord's expense (except as provided in Section 8.20(a)
above with respect to the installation of Tenant's Building lobby signage),
shall perform the Lobby Renovation Work; provided, that Tenant shall be
responsible for the installation of the security desks in Tenant's elevator
lobbies and Tenant shall reimburse Landlord, in accordance with Section 4.01(d)
above, for Landlord's actual costs incurred to perform the interior finishes to
the security desk areas (it being understood that Landlord shall be responsible
for the cost of exterior finishes to such areas). Landlord shall substantially
complete the Phase I Lobby Renovation Work on or prior to the Phase I Target
Date and the Phase II Lobby Renovation Work on or prior to the Phase II Target
Date. For purposes of this Section 8.21, the Phase I Lobby Renovation Work or
the Phase II Lobby Renovation Work, as the case may be, shall be deemed to be
substantially completed on the date upon which such work has been completed,
other than minor details or adjustments to such work.
(c) If Landlord shall fail substantially to complete either the Phase I
Lobby Renovation Work on or before the Phase I Target Date or the Phase II Lobby
Renovation Work on or before the Phase II Target Date, then as Tenant's sole
remedy for such failure of Landlord, Tenant shall be entitled to an abatement of
Rent in the amount set forth in the next sentence during the period (the "Lobby
Abatement Period") from the day after the Phase I Target Date or the Phase II
Target Date, as applicable, to and including, the date upon which the Phase I
Lobby Renovation Work or the Phase II Lobby Renovation Work, as applicable,
shall be substantially completed. The Rent to be abated under the preceding
sentence shall consist of (i) during the first 180 days of any Lobby Abatement
Period, all Fixed Rent, Tax Payments and Operating Payments and (ii) thereafter,
in any month (appropriately prorated in the case of a partial month), the excess
of (A) Fixed Rent over (B) the sum of Tenant's Tax Share of Taxes for such month
plus Tenant's Operating Share of Operating Expenses for such month (i.e., after
the initial 180 day period described in clause (i) above to and including the
last day of the applicable Lobby Abatement Period, but subject to the other
provisions of this Lease, Tenant shall be obligated to pay the amounts described
in this clause (B) (the "Tax and Operating Payments")). If, as of the first day
of any Lobby Abatement Period, the Relevant Date with respect to any space
included in the Premises has occurred, but the Rent Commencement Date with
respect to such space has not occurred, then, in lieu of the rent abatement
provided in this Section 8.21(c), the Rent Commencement Date with respect to
such space shall be delayed for the number of days occurring in the Lobby
Abatement Period, except that from and after the 181st day that such Rent
Commencement Date is so postponed to and including the last day of such
postponement, but subject to the other provisions of this Lease, Tenant shall be
obligated to pay the Tax and Operating Payments.
(d) If requested by Landlord at any time on or after July 1, 1996, Tenant
shall notify Landlord, within 10 days after such request, whether or not Tenant
reasonably expects to be able to move into substantially all of the Block A
Space on or before August 15, 1996, and, if not, of Tenant's reasonable estimate
of the date on which Tenant expects to be moved into substantially all of the
Block A Space.
(e) Landlord shall not change the Lobby Renovation Work in any material
respect without Tenant's prior consent, which consent shall not be unreasonably
withheld if such change does not diminish the scope or quality of such work
(except to a de minimis extent).
(f) Tenant shall provide Landlord with access to the Secondary Concourse
Space as reasonably required by Landlord for the performance of the Lobby
Renovation Work.
8.22 Force Majeure. If, by reason of strike, lockouts or other labor or
industrial troubles, governmental pre-emption in connection with a national
emergency, any rule, order or regulation of any governmental agency applicable
to the Building or to the party obligated to perform, conditions of supply or
demand that are affected by war or other national, state or municipal emergency,
fire or other casualty, acts of God such as (by way of example only) tornado,
earthquake, hurricane, washout or storm, civil disturbance, act of the public
enemy, riot, sabotage, blockade, embargo, explosion or any other cause beyond a
party's reasonable control, whether or not similar to any of the causes
hereinabove stated (collectively, "Force Majeure"), such party shall be unable
to perform any obligation that such party is obligated to perform, then such
party's obligation to perform shall be excused for the duration of such Force
Majeure, and, except as otherwise set forth in this Lease, this Lease and the
other party's rights and obligations hereunder shall not be affected, impaired
or excused. Notwithstanding anything to the contrary contained in this Section
8.22, any party's failure timely to fulfill an obligation required to be
fulfilled by such party under this Lease shall not be excused or deemed to be an
event of Force Majeure if (a) said obligation is an obligation to pay money, (b)
said failure shall be attributable to such party's lack of funds, (c) said
obligation relates to Tenant's obligation to vacate the Premises or any
applicable portion thereof at the end of the term of this Lease applicable
thereto (in which case Sections 4.03 and 6.10 shall apply thereto) or (d) the
provisions of this Lease expressly limit the amount of time by which such
obligation shall be excused by reason of Force Majeure.
8.23 Memorandum of Lease. Upon the request of Tenant, Landlord shall,
contemporaneously with the execution of this Lease, execute, acknowledge and
deliver to Tenant a short form or memorandum of this Lease in recordable form
and otherwise in form reasonably satisfactory to Landlord. Recording, filing and
like charges imposed by any governmental agency to effect such recording shall
be paid by Tenant. Upon the termination of this Lease, Tenant shall execute,
acknowledge and deliver to Landlord all necessary instrument(s) in recordable
form evidencing a termination of this Lease and sufficient to discharge any
memorandum hereof of record, and Tenant shall pay for all recording, filing and
like charges imposed by any governmental agency to effect such recording.
8.24 Major Tenant Rights. (a) "Major Tenant Rights" means: (i) the right to
lease, and the obligation of Landlord to deliver, the Block C Space; (ii) the
rights granted under Section 1.06; (iii) the right to use the Premises for the
Identified Ancillary Uses; (iv) the right to initiate an examination of
Landlord's Records with respect to any Operating Year up to 4 years after
Landlord delivers a Landlord's Statement with respect to such Operating Year;
(v) the right to require Landlord to consent to a sublease or assignment which
is a Qualifying Transaction; (vi) the right to require Landlord to execute and
deliver a non-disturbance and attornment agreement with respect to a Second Tier
Sublease; (vii) the right to an abatement of certain Rent payments under Section
8.21(c); (viii) the right to maintain a partitioning of the elevator banks
servicing the 7th through the 15th floors of the Building and interior signage
and a dedicated security desk adjacent to such elevator bank and turnstiles at
the entrances to such elevator banks; (ix) the right to maintain a dedicated
security desk and interior signage adjacent to the elevator bank servicing the
15th through the 22nd floors of the Building; (x) the rights granted under
Section 10.01(a); (xi) the rights granted under Section 10.03; (xii) the rights
granted under Section 10.05; (xiii) the right to an abatement of Rent under
Section 10.02 prior to the 3rd Business Day after notice from Tenant of an
Eviction; (xiv) the right to terminate this Lease pursuant to Section 7.05 or
10.03 with respect to less than the entire Premises; and (xv) the rights granted
under Section 3.04(e).
(b) If this Lease terminates prior to the Block C Relevant Date and Tenant
has granted the Major Tenant Right described in Section 8.24(a)(i) to any
subtenant that has received a non-disturbance and attornment agreement from
Landlord (or who Landlord elects to have attorn to Landlord in accordance with
Section 5.04(d)(iii) above), then such Major Tenant Right shall be null and void
with respect to such subtenant if such subtenant at any time prior to the
delivery of the Block C Space leases less than 300,000 rentable square feet of
the Office Space.
(c) The Major Tenant Rights described in Section 8.24(a)(ii), (vii), (x),
(xiii) and (xv) shall be null and void if at any time the Office Space shall
consist of less than 300,000 rentable square feet in the Building.
Notwithstanding the foregoing, so long as the Office Space shall consist of less
than 300,000, but more than 100,000, rentable square feet then (i) the rights
granted under Section 1.06 shall continue in effect but the term "Offer Space"
shall mean only the one floor in the Building that is contiguous to the highest
floor then comprising the Office Space and the one floor in the Building that is
contiguous to the lowest floor then comprising the Office Space; provided, that
(A) in no event shall Offer Space include any floor in the Building below the
7th floor or above the 23rd floor and (B) if such floor that is contiguous to
such highest or lowest floor then comprising the Office Space becomes Available
and Tenant leases the same in accordance with Section 1.06, "Offer Space" shall
not include the floor that is contiguous to such floor leased by Tenant in
accordance with Section 1.06 (for example, if the Office Space at any time
consists of floors 14 through 21, then "Offer Space" shall mean only the 13th
and 22nd floors and if Tenant leases the 13th floor or the 22nd floor in
accordance with Section 1.06, "Offer Space" would not include the 12th floor or
the 23rd floor, as the case may be) and (ii) the right to an abatement of
certain Rent payments under Section 8.21(c) shall continue in effect but such
abatement shall be limited to 25% of the Fixed Rent, Tax Payments and Operating
Payments payable during the period that Tenant is entitled to such abatement (or
if Tenant is entitled under Section 8.21(c) to a deferral of a rent commencement
date, the same shall be deferred by only 1/4 of one day for each day in the
applicable Lobby Abatement Period).
(d) The Major Tenant Right described in Section 8.24(a)(viii) shall be null
and void if at any time more than one floor of floors 11 through 15 is leased by
a tenant other than Tenant or an Affiliate of Tenant and the Major Tenant Right
described in Section 8.24(a)(ix) shall be null and void if at any time more than
one floor of floors 15 through 22 is leased by a tenant other than Tenant or an
Affiliate of Tenant. If either or both of such Major Tenant Rights become null
and void in accordance with the preceding sentence, Landlord and Tenant shall
reasonably cooperate with each other to establish a modified security and
interior signage program for Tenant so that Tenant shall continue to receive
security and interior signage rights commensurate with the security and interior
signage rights customarily granted by Landlord to tenants leasing the number of
rentable square feet then included in the Office Space in a multi-tenanted
elevator bank. If Tenant at any time no longer leases all of floors 11 through
15 (but continues to lease at least 4 of such floors) or all of floors 15
through 22 (but continues to lease at least 7 of such floors), so that the
applicable Major Tenant Right shall not become null and void in accordance with
this clause (d), Tenant shall cooperate with any tenant who leases such portion
of such floor so that such tenant shall have access to its premises 24 hours per
day, 365 days per year, subject only to reasonable security requirements of
Tenant which do not render such portion of such floor unreasonably difficult to
market and lease.
(e) If at any time the Office Space shall consist of less than 300,000
rentable square feet in the Building, the Major Tenant Right described in
Section 8.24(a)(iii) shall be null and void, except with respect to any
Identified Ancillary Uses existing in the Office Space at the time that the
Office Space first consisted of less than 300,000 rentable square feet.
(f) If at any time the Office Space shall consist of less than 300,000
rentable square feet in the Building, the Major Tenant Right described in
Section 8.24(a)(iv) shall be null and void; provided, that (i) during such time,
if any, that the Office Space consists of less than 300,000, but at least
200,000, rentable square feet, Tenant shall have the right to initiate an
examination of Landlord's Records with respect to any Operating Year up to 3
years after Landlord delivers a Landlord's Statement with respect to such
Operating Year, (ii) during such time, if any, that the Office Space consists of
less than 200,000, but at least 100,000, rentable square feet, Tenant shall have
the right to initiate such examination up to 2 years after Landlord delivers a
Landlord's Statement with respect to any Operating Year and (iii) during such
time, if any, that the Office Space consists of less than 100,000 rentable
square feet, Tenant shall have the right to initiate such examination up to 1
year after Landlord delivers a Landlord's Statement with respect to any
Operating Year. Landlord's time period to deliver a corrected Landlord's
Statement for any Operating Year or a corrected Tax Statement for any Tax Year
shall be reduced from 4 years commensurate with the reduction in Tenant's time
period to initiate an examination of Landlord's Records pursuant to this Section
8.24(f).
(g) The Major Tenant Rights described in Section 8.24(a)(v) and (vi) shall
be null and void if at any time the Office Space consists of less than 200,000
rentable square feet. During the Term, no subtenant of Tenant shall have the
Major Tenant Right described in Section 8.24(a)(v), unless such subtenant
subleases from Tenant not less than 200,000 rentable square feet of Office
Space. If this Lease terminates and Tenant has granted either or both of the
Major Tenant Rights described in Section 8.24(a)(v) and (vi) to any subtenant
that has received a non-disturbance and attornment agreement from Landlord (or
who Landlord elects to have attorn to Landlord in accordance with Section
5.04(d)(iii) above), then such Major Tenant Rights shall be null and void with
respect to such subtenant if such subtenant at any time leases less than 300,000
rentable square feet of the Office Space.
(h) The Major Tenant Rights described in Section 8.24(a)(xi) and (xiv)
shall be null and void if at any time the Office Space shall consist of less
than 100,000 rentable square feet.
(i) If this Lease terminates and Tenant has granted the Major Tenant Right
described in Section 8.24(a)(xii) to any subtenant who has received a
non-disturbance and attornment agreement from Landlord (or who Landlord elects
to have attorn to Landlord in accordance with Section 5.04(d)(iii) above), then
such Major Tenant Right shall be null and void with respect to such subtenant if
at any time such subtenant leases less than 100,000 rentable square feet of the
Office Space; provided, that, if and to the extent Tenant granted the following
rights to such subtenant in its sublease, such subtenant shall have the right to
set-off against the rent payable to Landlord (i) such subtenant's share of any
tax refund to which such subtenant may become entitled pursuant to Section
2.04(f) if such tax refund is not timely paid to such subtenant in accordance
with Section 2.04(f) and (ii) any amount required to be reimbursed by Landlord
to such subtenant in accordance with Section 2.05 with respect to any Operating
Payment made by such subtenant to Landlord, if such reimbursement is not timely
made by Landlord to such subtenant in accordance with Section 2.05.
8.25 Lobby Artwork. (a) Tenant shall install in the Building lobby the work
consisting of 10 panels and known as the "America Today" murals by Thomas Hart
Benton (the "Benton"). Tenant, at Tenant's expense, shall be responsible for
deinstalling the Benton from its present location at 787 Seventh Avenue and
moving the Benton to the Building. Landlord shall reimburse Tenant, within 30
days after submission of an invoice therefor, for the reasonable cost of
installing the Benton in the Building. The Benton shall be moved to, and
installed in, the Building by Tenant, under the supervision of Tenant's curator,
upon completion of the Lobby Renovation Work. The Benton shall be installed in
the locations in the Building lobby shown on the drawing designated SK7-7-2,
dated June 7, 1995, prepared by David Kenneth Specter & Associates, Architects
P.C. Exhibit U annexed hereto shows where each panel of the Benton is to be
located, except for the panel known as "Outreaching Hands", which shall be
located in the Building lobby in a location reasonably acceptable to Landlord
and Tenant.
(b) Tenant shall not be permitted to deinstall and remove the Benton from
the Building before the later of (i) the date that is one year before the
scheduled Expiration Date of the initial Term and (ii) the date that is 12
months after Tenant notifies Landlord of Tenant's intention to deinstall and
remove the Benton from the Building. The provisions of the preceding sentence
shall apply notwithstanding any earlier expiration or termination of this Lease.
Notwithstanding the foregoing (A) if this Lease shall terminate by reason of the
default of Landlord (it being understood that any termination of this Lease by
reason of the occurrence of any Force Majeure event (including, without
limitation, any Casualty) shall not constitute the default of Landlord), then
Tenant shall have the right at any time, upon notice to Landlord, to deinstall
and remove the Benton from the Building and (B) if this Lease shall terminate or
expire for any reason as to the entire Premises, Landlord may, upon not less
than 12 months prior notice to Tenant, require Tenant to deinstall and remove
the Benton from the Building. Any removal of the Benton from the Building shall
be at Tenant's expense.
(c) Landlord, at Landlord's expense, shall install as part of the Lobby
Renovation Work glass barriers approximately 3 feet in height and motion
detectors, in each case to protect the panels of the Benton installed on the
north and south sides of the lobby (but not the panels over the escalator). The
glass barriers shall be substantially as shown on the drawing designated as
SK7-7-1, dated July 18, 1995, prepared by David Kenneth Specter & Associates,
Architects P.C.
(d) For so long as the Benton is in the Building, Tenant, at Tenant's
expense, shall (i) provide all maintenance and repair of the Benton necessary or
appropriate to preserve the Benton in excellent condition and (ii) maintain a
fine arts policy covering the Benton with sufficient limits to cover 100% of the
replacement value of the Benton and including a waiver of subrogation in
accordance with Section 7.03 above. If Tenant shall at any time deem it
reasonably necessary to provide security measures for the Benton in excess of
those described in Section 8.25(c) above and on Exhibit L annexed hereto,
Landlord shall provide such security measures and Tenant shall reimburse
Landlord for the reasonable cost thereof within 30 days after demand. Landlord
and Tenant shall cooperate to agree on the scope of any such additional security
measures. Tenant shall have no claim against Landlord by reason of the security
specifications described in Section 8.25(c) above and on Exhibit L annexed
hereto, or any excess security measures provided by Landlord pursuant to the
preceding sentence, being insufficient to prevent damage to the Benton.
(e) Tenant represents to Landlord that Tenant is the owner of the Benton
and that the moving of the Benton to the Building, the installation of the
Benton in the Building lobby and the other provisions of this Section 8.25 do
not violate the provisions of any agreement to which Tenant or any Affiliate of
Tenant is a party. Anything to the contrary contained in this Lease
notwithstanding, the Benton shall in all events remain Tenant's property.
(f) The provisions of this Section 8.25 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 9
Renewal Right
9.01 Renewal Right. (a) Provided that on the date Tenant exercises the
Renewal Option (i) this Lease shall not have been terminated, (ii) Tenant shall
not be in default under this Lease after notice and beyond all applicable grace
periods and (iii) Tenant shall occupy at least 50% of the Premises, Tenant shall
have the option (the "Renewal Option") to extend the term of this Lease for, at
Tenant's option, either an additional 5 year period or an additional 10 year
period (the "Renewal Term"), to commence at the expiration of the initial Term.
(b) The Renewal Option shall be exercised with respect to, at Tenant's option,
(i) the entire Premises, (ii) all space then included in the Premises and
located on floors 7 through 15 or (iii) all space then included in the Premises
and located on floors 15 through 22 (the "Renewal Premises"), and shall be
exercisable by Tenant giving notice to Landlord (the "Renewal Notice") at least
18 months before the last day of the initial Term. Tenant shall specify in the
Renewal Notice the duration of the Renewal Term and the space to be included in
the Renewal Premises. Time is of the essence with respect to the giving of the
Renewal Notice.
9.02 Renewal Rent and Other Terms. (a) The Renewal Term shall be upon all
of the terms and conditions set forth in this Lease, except that (i) Fixed Rent
shall be as determined pursuant to the further provisions of this Section 9.02;
(ii) Tenant shall accept the Renewal Premises in its "as is" condition at the
commencement of the Renewal Term, and any provisions of this Lease with respect
to Landlord's Work, payment of a work allowance and any abatement of Fixed Rent
and Additional Charges (relating only to Tenant's initial construction period
with respect to any space comprising the Premises, i.e., the period prior to the
rent commencement date for any such space) shall not be applicable during the
Renewal Term; (iii) Tenant shall have no option to renew this Lease beyond the
expiration of the Renewal Term; (iv) all references in this Lease to the
"Premises" shall be deemed to refer to the "Renewal Premises", and (v) Tenant's
Tax Share and Tenant's Operating Share shall be recalculated to reflect the
rentable area of the Renewal Premises (such rentable area to be determined based
on the measurements set forth in Exhibit H annexed hereto).
(b) The annual Fixed Rent for the Renewal Premises for the Renewal Term
shall be the Fair Market Rent therefor multiplied by the Renewal Percentage.
"Fair Market Rent" means the fixed annual rent that, as of the date that is 18
months before the commencement of the Renewal Term, a willing lessee would pay
and a willing lessor would accept for the Renewal Premises during the Renewal
Term in an arms-length transaction, taking into account all relevant factors at
the time in question. "Renewal Percentage" means (i) if the Renewal Term is for
5 years, 97.5% and (ii) if the Renewal Term is for 10 years, 95%.
(c) If Tenant timely exercises the Renewal Option, Landlord shall notify
Tenant (the "Rent Notice") within 30 days after Landlord's receipt of the
Renewal Notice of Landlord's determination of the Fair Market Rent ("Landlord's
Determination"), which Rent Notice shall state that if Tenant fails to give
Tenant's Notice within 30 days after Tenant's receipt of the Rent Notice, Tenant
shall be deemed to have accepted Landlord's Determination. Tenant shall notify
Landlord ("Tenant's Notice"), within 30 days after Tenant's receipt of the Rent
Notice, whether Tenant accepts or disputes Landlord's Determination, and if
Tenant disputes Landlord's Determination, Tenant's Notice shall set forth
Tenant's determination of the Fair Market Rent ("Tenant's Determination"). If
Tenant fails to give Tenant's Notice within such 30 day period, Tenant shall be
deemed to have accepted Landlord's Determination. If Landlord fails to give
Landlord's Determination within 30 days after Landlord's receipt of the Renewal
Notice, Tenant shall have the right, at any time prior to Tenant's receipt of
Landlord's Determination, to give to Landlord a notice setting forth Tenant's
Determination, which notice shall state that if Landlord fails to give
Landlord's Determination within 30 days after Landlord's receipt of such notice,
Landlord shall be deemed to have accepted Tenant's Determination. If Tenant
timely gives such notice setting forth Tenant's Determination in accordance with
the preceding sentence and Landlord fails to give Landlord's Determination
within 30 days after Landlord's receipt of Tenant's Notice, Landlord shall be
deemed to have accepted Tenant's Determination.
(d) If Tenant timely disputes Landlord's Determination and Landlord and
Tenant fail to agree as to the Fair Market Rent within 20 days after Landlord's
receipt of Tenant's Determination (or if Tenant gives Tenant's Determination
prior to Landlord giving Landlord's Determination as provided in clause (c)
above and thereafter Landlord timely gives Landlord's Determination and Landlord
and Tenant fail to agree as to the Fair Market Rent within 20 days after
Tenant's receipt of Landlord's Determination), then the Fair Market Rent shall
be determined as follows: Such dispute shall be resolved by arbitration
conducted in accordance with the Real Estate Valuation Arbitration Rules
(Expedited Procedures) of the AAA, except that the provisions of Section 8.09
shall supersede any conflicting or inconsistent provisions of said rules. The
fees and expenses of any arbitration of Fair Market Rent shall be borne by the
parties equally, but each party shall bear the expense of its own arbitrator,
attorneys and experts and the additional expenses of presenting its own proof.
(e) If Tenant disputes Landlord's Determination (or, if applicable,
Landlord disputes Tenant's Determination) and if the final determination of Fair
Market Rent shall not be made on or before the first day of the Renewal Term,
then, pending such final determination, Tenant shall pay, as Fixed Rent for the
Renewal Term, an amount equal to the applicable Renewal Percentage of the
average of Landlord's Determination and Tenant's Determination. If, based upon
the final determination of the Fair Market Rent, the Fixed Rent payments made by
Tenant for such portion of the Renewal Term were (i) less than the Fair Market
Rent therefor, Tenant shall pay to Landlord the amount of such deficiency within
30 days after demand therefor or (ii) greater than the Fair Market Rent
therefor, Landlord shall credit the amount of such excess against future
installments of Fixed Rent and/or Additional Charges payable by Tenant.
(f) Notwithstanding the foregoing provisions of this Article 9, if, at any
time after Tenant's delivery of the Renewal Notice and before the commencement
of the Renewal Term, this Lease shall be terminated, then such Renewal Notice
shall be null and void and of no further force and effect and Tenant shall have
no further right or option to extend the Term.
ARTICLE 10
Self-Help; Rent Abatement; Set-Off
10.01 Tenant's Right To Perform Landlord's Obligations. (a) If (i) for any
reason, including, without limitation, Force Majeure, there is a failure to
furnish any of the services which Landlord is required to furnish pursuant to
this Lease, or to make any repairs or replacements which Landlord is required to
make pursuant to the terms of this Lease, or to perform any other obligation of
Landlord under this Lease, and as a result thereof the conduct of Tenant's
normal business operations in the Premises (or a material portion thereof) shall
be materially impaired (any or all of the foregoing hereinafter sometimes
referred to as an "Interruption"), (ii) the curing of such Interruption would
require work to be performed, or otherwise affect any space, in the Landlord
Obligation Areas or elsewhere outside of the Premises, (iii) either (A) Tenant
obtains the decision of an arbitrator in accordance with Section 8.09 that an
Interruption has occurred and Landlord does not immediately after such
arbitration decision commence and diligently prosecute action to remedy such
Interruption or (B) Landlord, in bad faith, fails to comply with the arbitration
procedures set forth in Section 8.09, then, in any such event, and upon the
giving of 5 days notice to Landlord (which notice shall expressly state that
Tenant intends to exercise its self-help remedy in accordance with this Section
10.01(a)), Tenant shall have the right (but not the obligation) to furnish any
such Landlord's services or to make any such repairs or replacements which
Landlord shall have failed to make, or to perform such other obligation of
Landlord as Landlord shall have failed to perform. Landlord hereby irrevocably
appoints Tenant as Landlord's agent, coupled with an interest, for the sole and
limited purpose of permitting Tenant access to areas of the Building outside of
the Premises to the extent necessary to perform, in accordance with this Section
10.01(a), any obligation or furnish any service that Landlord so failed to
perform. If at any time Tenant becomes entitled in accordance with this Section
10.01(a) to cure any Interruption and, thereafter, Landlord prevents Tenant from
exercising its right to cure such Interruption, then the parties agree that, in
such case, damages would be an inadequate remedy and Tenant shall be entitled to
injunctive relief or specific performance in order to enable Tenant to cure such
Interruption. If (x) Tenant becomes entitled in accordance with this Section
10.01(a) to cure any Interruption, (y) in order to cure such Interruption Tenant
must obtain access to another tenant's premises, and (z) after compliance by
Tenant with all requirements set forth in such tenant's lease regarding access
thereto for Landlord and its agents, such tenant prevents Tenant from entering
its premises in breach of such tenant's lease, then Landlord shall enforce all
of its rights and remedies against such tenant in order to permit Tenant to
enter such tenant's premises in order to cure such Interruption. Without
limiting the generality of any other provision of this Lease, Tenant shall have
no right to perform any obligation or furnish any service that Landlord has
failed to perform or furnish, the curing of which failure will require work to
be performed, or otherwise affect any space in the Landlord Obligation Areas or
elsewhere outside the Premises unless such failure results in an Interruption,
and, in the case of an Interruption, Tenant's sole right to perform such
obligation or furnish such service shall be as set forth in this Section
10.01(a). Nothing contained in this Article 10 shall be construed to permit
Tenant to cause Landlord's managing agent for the Building to be removed or
replaced.
(b) If (i) any Interruption shall occur, (ii) the curing of such
Interruption would not require work to be performed, or otherwise affect any
space, in the Landlord Obligation Areas or elsewhere outside of the Premises and
(iii) after notice thereof by Tenant to Landlord, Landlord does not immediately
commence action to remedy such Interruption, or if so commenced, does not
continue such action with reasonable diligence, and complete the same within 7
days or, in the case of emergency, within 2 days, then, in any such event, and
upon the giving of 5 days notice to Landlord (which notice shall expressly state
that Tenant intends to exercise its self-help remedy in accordance with this
Section 10.01(b)) or, in the case of emergency, upon the giving of such notice,
oral or written, as may be reasonable under the circumstances, Tenant shall have
the right (but not the obligation) to furnish any such Landlord's services or to
make any such repairs or replacements which Landlord shall have failed to make,
or to perform such other obligation of Landlord as Landlord shall have failed to
perform.
(c) If (i) for any reason, including, without limitation, Force Majeure,
there is a failure to furnish any of the services which Landlord is required to
furnish pursuant to this Lease, or to make any repairs or replacements which
Landlord is required to make pursuant to the terms of this Lease, or to perform
any other obligation of Landlord under this Lease, (ii) such failure does not
result in an Interruption, (iii) the curing of such failure would not require
work to be performed, or otherwise affect any space, in the Landlord Obligation
Areas or elsewhere outside of the Premises, (iv) such failure continues for 30
days after notice by Tenant to Landlord; provided, that if the cure of such
failure cannot with due diligence be performed within such 30-day period, such
30-day period shall be extended for so long as Landlord shall be diligently
prosecuting the performance of such cure and (v) such failure continues for 10
days after a second notice by Tenant to Landlord (which notice shall expressly
state that Tenant intends to exercise its self-help remedy in accordance with
this Section 10.01(c)), then Tenant shall have the right (but not the
obligation) to furnish any such Landlord's services or to make any such repairs
or replacements which Landlord shall have failed to make, or to perform such
other obligation of Landlord as Landlord shall have failed to perform.
(d) If Tenant exercises its self-help remedy in accordance with clauses
(a), (b) or (c) of this Section 10.01, Landlord shall pay to Tenant the
reasonable costs incurred by Tenant in furnishing such Landlord's services which
Landlord failed to furnish or making such repairs or replacements which Landlord
failed to make or performing such other obligations of Landlord which Landlord
failed to perform, as the case may be, together with interest at the Interest
Rate (unless Landlord shall have been unable to perform the obligation in
question by reason of Force Majeure, in which case such interest shall be at the
Prime Rate) from the date of the expenditure by Tenant to the date that such
costs plus interest shall have been paid to Tenant, within 30 days after receipt
by Landlord of a detailed statement as to the amount of such costs. If Landlord
notifies Tenant within the 30-day period described in the preceding sentence
that in lieu of making such payment to Tenant, Landlord shall allow Tenant to
credit against the next installments of Rent to come due any amounts to which
Tenant may be entitled under this Section 10.01(d), then, subject to Section
10.05(b), Tenant shall so credit such amounts.
(e) For all purposes of this Article 10, a material portion of the Premises
shall mean at least 5,000 contiguous rentable square feet of the Office Space or
at least 10,000 rentable square feet of the Office Space (regardless of
contiguity).
(f) If and to the extent that Tenant successfully exercises its self-help
remedy in accordance with this Section 10.01, Tenant shall have no right to
terminate this Lease in accordance with Section 10.03 on account of the failure
by Landlord to perform the obligation with respect to which Tenant exercises
such self-help remedy. If Landlord fails to perform any of its obligations under
this Lease by reason of Force Majeure and Tenant exercises its self-help remedy
in accordance with this Section 10.01 with respect thereto, then such self-help
remedy (including Tenant's right to reimbursement in accordance with Section
10.01(d) above) and, if applicable, any rent abatement which Tenant may be
entitled to pursuant to Section 10.03 shall be Tenant's sole remedies in respect
of Landlord's failure to perform such obligation. 10.02 Tenant Abatement Rights.
If, for any reason, including, without limitation, Force Majeure (but not by
reason of (a) a Casualty or (b) any act or (where Tenant has an affirmative
obligation to act pursuant to the terms of this Lease) omission of Tenant or any
person claiming through or under Tenant or any of their respective agents,
employees, contractors or (while in the Premises) invitees), there is a failure
to furnish any of the services which Landlord is required to furnish pursuant to
this Lease, or to make any repairs or replacements which Landlord is required to
make pursuant to this Lease, or to perform any other obligation of Landlord
under this Lease or if Landlord performs any repair, replacement, alteration,
addition, improvement or installation in or about the Premises which Landlord is
required or permitted to make under this Lease (other than in connection with
the exercise by Landlord of its self-help remedy set forth in Section 4.08) and
as a result of any of the foregoing all or any material portion of the Premises
shall be Untenantable (an "Eviction") for 1 Business Day after notice from
Tenant, then Fixed Rent and the Additional Charges payable under Sections 2.04
and 2.05 shall abate solely with respect to the portion or portions of the
Premises that are Untenantable from the day after such one Business Day until
such space is no longer Untenantable.
10.03 Tenant Termination Rights. (a) If, by reason of an Eviction, 50,000
or more rentable square feet of the Office Space are Untenantable (A) for
reasons other than Force Majeure for 60 or more consecutive days after notice
from Tenant to Landlord, (B) for reasons other than Force Majeure for 90 or more
days in any consecutive 12-month period (such reference to 90 days being deemed
to refer to the number of days that the applicable space is so Untenantable
after Tenant has given Landlord notice of each occurrence of such
Untenantability) or (C) as a result of Force Majeure for 365 or more consecutive
days after notice from Tenant to Landlord (such 60, 90 and 365 day periods to be
extended for up to an additional 90 days during which time Landlord is
diligently prosecuting to cure the cause of such Untenantability), then in each
such case Tenant may, by notice given to Landlord on or before the earlier to
occur of (x) the date that the applicable portion of the Office Space is
rendered tenantable and (y) the date that is 30 days after the end of such 60,
90 or 365 day period (as so extended), as applicable (time of the essence),
terminate this Lease, at Tenant's option, with respect to the Terminated Space.
If Tenant timely gives a termination notice in accordance with this Section
10.03, this Lease shall terminate with respect to the Terminated Space on the
20th day after such notice is given by Tenant and Tenant shall vacate the
Terminated Space and surrender the same to Landlord in accordance with the terms
of this Lease. Upon any such termination, Tenant's liability for Fixed Rent and
Additional Charges hereunder with respect to the Terminated Space shall cease as
of the date of such termination, and any prepaid portion of Rent with respect to
the Terminated Space for any period after such date shall be refunded by
Landlord to Tenant within 30 days after Landlord receives Tenant's termination
notice. Upon a termination of this Lease with respect to less than the entire
Premises, there shall be a pro rata reduction of Tenant's Rent obligations to
reflect such partial termination and the reduced rentable area of the Premises
(such rentable area to be determined in a manner consistent with the methods
used in calculating the rentable area of the Premises initially demised under
this Lease) and Landlord and Tenant shall promptly enter into an instrument
evidencing such partial termination; provided, that the failure to enter into
such instrument shall not affect the effectiveness of such partial termination.
In the event of any termination of this Lease under this Section 10.03, whether
as to all or a portion of the Premises, Tenant shall pay to Landlord the amount,
if any, due in accordance with Section 7.06 above. Tenant acknowledges that, in
the case of an Eviction, Tenant's sole rights to terminate this Lease by reason
of such Eviction are as expressly set forth in this Section 10.03(a) and Tenant
hereby waives all other rights at law or in equity (including, without
limitation, any right to claim a constructive eviction) to terminate this Lease
by reason of such Eviction; provided, that this sentence (i) shall not be
applicable if such Eviction occurs by reason of Landlord's bad faith acts or
(where Landlord has an affirmative obligation to act pursuant to the terms of
this Lease) omissions and (ii) shall not be deemed to constitute a waiver by
Tenant of any right that Tenant may have under this Lease or at law or in equity
to make a claim for any damages suffered by Tenant by reason of such Eviction.
Any notice given by Tenant pursuant to this Section 10.03 as to the occurrence
of an Eviction which renders all or a portion of the Premises Untenantable shall
not be effective unless such notice expressly states that such notice is being
given pursuant to this Section 10.03 and that Tenant may have the right to
terminate this Lease in accordance with the provisions of this Section 10.03.
(b) Subject to Section 7.07, "Terminated Space" means, at Tenant's election
as specified in the applicable termination notice, either (i) the entire
Premises or (ii) a portion of the Premises consisting of entire floors of the
Building (or so much of any floor as shall then be part of the Premises);
provided, that in the case of any such partial termination, (x) all floors
included within the Terminated Space shall be contiguous and (y) the Terminated
Space shall include either (I) all or any of the floors the Untenantability of
which gave rise to such termination right or (II) either the highest or lowest
floor then included in the Office Space and any other floor(s) contiguous to
such highest or lowest floor so long as the total rentable area of the
Terminated Space does not exceed the rentable area of the portion of the
Premises the Untenantability of which gave rise to such termination right. If an
Eviction occurs by reason of Force Majeure, then Tenant's sole remedies in
respect of such Eviction shall be as set forth in Sections 10.02 and 10.03 and
Tenant hereby waives all other rights or remedies at law or in equity
(including, without limitation, any right to claim a constructive eviction), if
and to the extent that Tenant may be entitled to such rights or remedies by
reason of such Eviction.
10.04 Tenant's Right to Interest on Late Payments. Any amounts payable by
Landlord to Tenant under this Lease shall be due and payable on the 30th day
after the date of invoice, unless a different due date is specified in this
Lease. If Landlord fails to pay any amount which is due and payable to Tenant
under this Lease on or before the due date therefor, Landlord shall pay interest
thereon at the Interest Rate (provided, that if Landlord fails timely to pay any
installment of the Block A and B Allowance or the Block C Allowance to Tenant,
the same shall bear interest at the Prime Rate plus 5%) from the date when such
amount became due and payable to the date of Landlord's payment of such amount;
provided, that in no event shall there be any duplication of any interest
payable by Landlord pursuant to this Section 10.04 and any other provision of
this Lease.
10.05 Tenant's Set-Off Right. (a) If Landlord fails to pay any amount which
is due and payable to Tenant under this Lease on or before the due date therefor
and such failure continues for 30 days after Tenant notifies Landlord of such
failure (which notice shall state that Tenant intends to set-off such amount
against the next installment of Rent unless Landlord pays such amount to Tenant)
(an "Offset Notice"), then, as Tenant's sole remedy (but subject to Section
10.05(b)), Tenant may set-off such amount, together with any interest accrued
thereon in accordance with Section 10.04 or the other applicable provisions of
this Lease (collectively, the "Offset Amount"), against the next installments of
Rent coming due. If any portion of any Offset Amount shall not have been
credited as of the end of the Term, Landlord, within 30 days after the end of
the Term, shall pay such amount to Tenant (but subject to Landlord's right to
offset against such unused rent credit any amounts which are then due and
payable by Tenant to Landlord). The preceding sentence shall survive the
expiration or earlier termination of this Lease. Notwithstanding the preceding
provisions of this Section 10.05(a), if Landlord, within 30 days after the
giving of an Offset Notice, notifies Tenant that Landlord disputes Tenant's
entitlement to all or any portion of the Offset Amount, specifying in such
notice the reasons for such dispute and the exact amount (if less than all) that
Landlord so disputes, then Tenant shall not be entitled to so offset the Offset
Amount (or such portion thereof as is in dispute) pending resolution of such
dispute by arbitration in accordance with Section 8.09 of this Lease.
(b) If pursuant to any provision of this Lease Tenant is entitled to a
credit, for any amount owed by Landlord to Tenant under this Lease, against Rent
and such credit, together with all other such credits to which Tenant is then
entitled, exceeds the Rent which is required to be paid by Tenant for the next
calendar month, then, within 30 days after notice by Tenant to Landlord,
Landlord shall pay to Tenant the total amount of such credits.
10.06 Effect of Rejection by Landlord. Landlord and Tenant acknowledge that
this Lease is being executed and exchanged by the parties in contemplation of a
bankruptcy proceeding involving Landlord and Landlord agrees that, in connection
with any bankruptcy proceeding involving Landlord, Landlord shall not reject
this Lease. If, notwithstanding the agreement by Landlord in the preceding
sentence, in connection with any bankruptcy proceeding involving Landlord, this
Lease shall be rejected by Landlord or any legal representative of Landlord, and
if Tenant shall elect to retain its rights under this Lease under Section
365(h)(1)(A)(ii) or other then applicable provision of the Federal Bankruptcy
Code, then Tenant's occupancy of the Premises for the remainder of the Term
shall be on all of the same terms and conditions set forth in this Lease as
though such rejection had not occurred.
ARTICLE 11
Tenant Antenna
11.01 Tenant Antenna. (a) Tenant may, subject to and in accordance with the
provisions of this Section 11.01, use those portions of the roof of the Building
designated on Exhibit T-1 attached hereto to install, maintain and operate one
8-foot whip antenna, three microwave dishes and one satellite dish and related
equipment, mountings and support structures (collectively, the "Antenna") and to
run lines therefrom into the Premises, as shall be reasonably required in
connection with the operation of the Antenna. Landlord shall permit Tenant to
construct a telecommunications riser along a path that is reasonably acceptable
to Landlord and Tenant to connect the Antenna to the Premises, and Landlord
shall cooperate with Tenant to provide Tenant with access to other tenants'
premises to the extent required to construct such riser. Tenant's use of the
roof of the Building is a non exclusive use and Landlord may permit the use of
any other portion of the roof by any other person for any use including
installation of other antennas and related equipment and support structures.
Landlord shall use reasonable efforts (at no cost to Tenant, subject to
reimbursement as part of Operating Expenses if and to the extent properly
includable therein) to ensure that such use does not impair Tenant's data
transmission and reception via Tenant's Antenna. Tenant shall use its reasonable
efforts to ensure that its use of the roof does not impair such other person's
data transmission and reception via its respective antennas and support
equipment. If Tenant's construction, installation, maintenance, repair,
operation or use of the Antenna shall interfere with the rights of Landlord
(including, without limitation, Landlord's right reasonably to use the remainder
of the roof) or other tenants in the Building, Tenant shall cooperate with
Landlord or such other tenants in exercising reasonable efforts in eliminating
such interference; provided, that the cost of remedying such interference shall
be borne by the party which is suffering such interference, unless such party
was using the roof in the manner suffering such interference prior in time to
the use of the Antenna in the manner causing such interference by Tenant, in
which case the cost of remedying such interference shall be borne by Tenant.
Tenant shall secure and keep in full force and effect, from and after the time
Tenant begins construction and installation of the Antenna, such supplementary
insurance with respect to the Antenna as Landlord may reasonably require,
provided that the same shall not be in excess of that which would customarily be
required from time to time by landlords of buildings of similar class and
character in New York City with respect to similar installations.
(b) Tenant shall comply with all Laws applicable to the Antenna. Landlord
makes no warranties as to the permissibility of an Antenna under applicable Laws
or the suitability of the roof of the Building for the installation thereof. If
Landlord's structural engineer reasonably deems it necessary that there be
structural reinforcement of the roof or other structural requirements in
connection with the installation of the antenna, Landlord shall perform same at
Tenant's reasonable cost within 120 days after Tenant delivers to Landlord final
plans and specifications with respect to the installation of the Antenna and
Tenant shall not perform any such installation prior to the completion of any
such structural reinforcement or other structural requirements. If Tenant
disputes the need for any such structural reinforcement or other structural
requirements or whether such need arises out of Tenant's installation of the
Antenna, then, pending the resolution of such dispute in accordance with Section
8.09, (i) Landlord shall not perform such structural reinforcement or other
structural requirements, (ii) Landlord's time period for completing such work
shall be extended by the number of days that it takes to resolve such dispute
and (iii) Tenant shall not perform the installation of the Antenna until such
dispute is resolved and any structural reinforcement or other structural
requirements determined by such arbitration as necessary are completed. The
installation of the Antenna shall be an Alteration subject to Article 4. For the
purpose of installing, servicing or repairing the Antenna, Tenant shall have
access to the roof of the Building at reasonable times upon reasonable notice to
Landlord and Landlord shall have the right to require, as a condition to such
access, that Tenant (or its employee, contractor or other representative) at all
times be accompanied by a representative of Landlord whom Landlord shall make
available upon reasonable notice (except that such accompaniment shall be
required in the case of an emergency only if practicable). All work required to
be performed to the roof and other parts of the Building outside of the Premises
in connection with the installation of the Antenna (including, without
limitation, any roof penetrations, structural modifications and reroofing) shall
be performed by Landlord at Tenant's reasonable expense.
(c) Tenant shall be responsible for all costs and expenses for maintenance
of the roof if and to the extent the same actually results from Tenant's use of
the roof for the construction, installation, maintenance, repair, operation, and
use or removal of the Antenna.
(d) Notwithstanding anything to the contrary contained in this Section
11.01, Landlord may, at Landlord's expense (except as provided in the last
sentence of this Section 11.01(d)), on not less than 90 days' prior notice,
relocate the Antenna to another location on the roof of the Building, provided
that Landlord does not, except during such relocation (which shall be scheduled
at a time reasonably convenient to Tenant), either interfere with or adversely
affect the receipt of and/or transmittal of microwaves or other similar signals,
and Tenant shall cooperate in all reasonable respects with Landlord in any such
relocations. If such relocation is done pursuant to any Law, Tenant shall
reimburse Landlord for the cost thereof within 30 days after receipt of
statements therefor.
(e) The rights granted in this Section 11.01 are given in connection with,
and as part of the rights created under, this Lease and are not separately
transferable or assignable. Tenant shall use the Antenna solely in connection
with activities permitted under Section 1.05. Tenant shall not sell any services
arising out of the use of the Antenna (i) to any other tenant or (ii) to the
general public.
ARTICLE 12
Corporate Retention Benefits
12.01 Incentive Benefits. Landlord hereby consents to Tenant entering into
an arrangement with agencies of the City and State of New York, including,
without limitation, the New York City Economic Development Corporation and the
Industrial Development Agency (such agencies are referred to herein collectively
as the "Agency") pursuant to which Tenant subleases the Premises to the Agency
and the Agency sub-subleases the Premises to Tenant. Landlord shall fully
cooperate with Tenant in connection with such arrangement between Tenant and the
Agency; provided, that the same shall be accomplished without Landlord being
required to incur any out-of-pocket cost or expense thereby. If such cooperation
by Landlord shall result in any out-of-pocket cost or expense to Landlord,
Tenant shall nonetheless have the right to require Landlord's cooperation in
connection therewith, provided that Tenant shall reimburse Landlord for such
out-of-pocket costs or expenses within 30 days after demand.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first written above.
Landlord: 1290 ASSOCIATES
By: O&Y Management Corp., As Agent
By: /s/Tom Falus
--------------------------------------
Tom Falus
Executive Vice President
Tenant: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/William T. McCaffrey
-------------------------------------
William T. McCaffrey
Executive Vice President and
Chief Administrative Officer
Tenant's Federal Tax I.D. No.: 13-5570651
1290 Associates, in its capacity as the lessor ("Lessor") under the Ground Lease
(as defined in Section 6.01(c)(i) of the within Lease) hereby consents to the
within Lease and agrees, for itself and each of its successors and assigns which
is an Affiliate of the then Landlord, that in the event of the termination of
the Ground Lease, the Lease shall continue in full force and effect as a direct
lease between Lessor and Tenant, and Lessor and Tenant shall be bound to each
other under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining, with the same force and effect as if
Lessor were the Landlord, and Tenant does hereby (i) agree to attorn to Lessor,
as its Landlord, (ii) affirm its obligations under the Lease, and (iii) agree to
make payment to Lessor of all sums required to be paid by Tenant to Landlord
under the Lease, and Lessor does hereby (a) agree to recognize Tenant, as its
Tenant, (b) affirm all of its obligations as Landlord under the Lease, and (c)
agree to make payment to Tenant of all sums required to be paid by Landlord to
Tenant under the Lease, said attornment (recognition), affirmation and agreement
by Tenant and Lessor to be effective and self-operative without the execution of
any further instruments, upon Lessor succeeding to the interest of Landlord
under the Lease; provided, that if Lessor or Tenant requests, without implying
any obligation to do so on either party's part, Lessor and Tenant shall confirm
the attornment and recognition described herein in writing. Tenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any termination of the Ground Lease.
1290 ASSOCIATES
By: O&Y Management Corp., As Agent
By: /s/Tom Falus
--------------------------------------
Tom Falus
Executive Vice President
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/William T. McCaffrey
-------------------------------------
William T. McCaffrey
Executive Vice President and
Chief Administrative Officer
EXHIBIT A
DESCRIPTION OF LAND
All that certain plot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of
West 51st Street with the easterly side of Avenue of the Americas (formerly
Sixth Avenue); running thence Easterly along the northerly side of West 51st
Street 448 feet to a point distant 472 feet Westerly from the corner formed by
the intersection of the northerly side of West 51st Street with the westerly
side of Fifth Avenue, thence Northerly parallel with Fifth Avenue and part of
the distance through a party wall 100 feet 5 inches to the center line of the
block between West 51st Street and West 52nd Street, thence Westerly along said
center line of the block 2 feet, thence Northerly parallel with Fifth Avenue and
part of the distance through a party wall 100 feet 5 inches to the southerly
side of West 52nd Street, at a point therein distant 474 feet Westerly from the
southwest corner of West 52nd Street and Fifth Avenue; running thence Westerly
along the southerly side of West 52nd Street 446 feet to the easterly side of
Avenue of the Americas, thence Southerly along the easterly side of Avenue of
the Americas 200 feet 10 inches to the northerly side of West 51st Street at the
point or place of BEGINNING.
A-1
EXHIBIT B (B1 through B15)
FLOOR PLANS
See Exhibit AA
B-1
EXHIBIT C
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress and egress from such
tenant's premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors, escalators
or elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by any other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it in its reasonable judgment deems
best for the benefit of the tenants generally.
2. Landlord may refuse admission to the Building outside of Business Hours
on Business Days to any person not known to the watchman in charge or not having
a pass issued by Landlord or the tenant whose premises are to be entered or not
otherwise properly identified, and Landlord may require all persons admitted to
or leaving the Building outside of Business Hours on Business Days to provide
appropriate identification. Tenant shall be responsible for all persons for whom
it issues any such pass and shall be liable to Landlord for all acts or
omissions of such persons. Any person whose presence in the Building at any time
shall, in the judgment of Landlord, be prejudicial to the safety of the Building
or of its tenants may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens which are different from
the standards adopted by Landlord for the Building shall be attached to or hung
in, or used in connection with, any exterior window or door of the premises of
any tenant, without the prior written consent of Landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord, which approval shall not be
unreasonably withheld.
4. No lettering, sign, advertisement or notice shall be displayed in or on
the exterior windows or doors, or on the outside of any tenant's premises, or at
any point inside any tenant's premises (except in the elevator lobbies on floors
fully leased by Tenant) where the same is designed or intended to be visible
outside of such premises, without the prior written consent of Landlord. In the
event of the violation of the foregoing by any tenant and if such tenant shall
not cure such violation within 10 days after notice from Landlord, Landlord may
remove the same without any liability, and may charge the reasonable expense
incurred in such removal to the tenant violating this rule.
C-1
5. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant.
6. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
7. No bicycles, vehicles, animals (other than seeing eye dogs to aid the
handicapped), fish or birds of any kind shall be brought into or kept in or
about the premises of any tenant or the Building.
8. No noise, including, without limitation, music or the playing of musical
instruments, recordings, radios or television, which actually disturbs other
tenants in the Building, shall be made or permitted by any tenant. Nothing shall
be done or permitted in the premises of any tenant which actually impairs or
interferes with the use or enjoyment by any other tenant of any space in the
Building.
9. No tenant, nor any tenant's contractors, employees, agents, visitors or
licensees, shall at any time bring into or keep upon the premises or the
Building any inflammable, combustible, explosive, or otherwise hazardous or
dangerous fluid, chemical, substance or material; provided, that Tenant shall
have the right to use and store such materials in the Premises so long as the
same are reasonably required for the performance of Tenant's Alterations or in
the ordinary conduct of Tenant's use and occupancy of the Premises, and, in
either of such cases, such materials are used and stored in compliance with all
Laws.
10. Additional locks or bolts of any kind which shall not be operable by
the Grand Master Key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Notwithstanding the foregoing, Tenant shall have the right to install a
separate security/access system for the Premises; provided, that Tenant delivers
to Landlord keys or other access devices which allow Landlord to always have
access to the Premises.
11. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place during such hours and in such elevators, and in such
manner as Landlord or its agent may reasonably determine from time to time. The
persons employed to move safes and other heavy objects shall be reasonably
acceptable to Landlord and, if so required by law, shall hold a Master Rigger's
license. Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All
out-of-pocket labor and engineering costs incurred by Landlord in connection
with any moving specified in this rule shall be paid by tenant to Landlord, on
demand, subject to Sections 3.04(c)(ii) and 4.01(a)(iv) of the Lease.
C-2
12. Landlord reserves the right to inspect all objects and matter (other
than confidential documents) to be brought into the Building and to exclude from
the Building all objects and matter which violate any of these Rules and
Regulations or the lease of which this Exhibit is a part. Landlord may require
any person leaving the Building with any package or other object or matter to
submit a pass, listing such package or object or matter, from the tenant from
whose premises the package or object or matter is being removed, but the
establishment and enlargement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Except as may otherwise be
expressly provided in the lease to which this Exhibit is attached. Landlord
shall in no way be liable to any tenant for damages or loss arising from the
admission, exclusion or ejection of any person to or from the premises or the
Building under the provisions of this Rule or of Rule 2 hereof.
13. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a barber, beauty or manicure shop, or as a school. No tenant
shall use, or permit its premises or any part thereof to be used, for
manufacturing, or the sale at retail or auction of merchandise, goods or
property of any kind, except for the sale of food and beverages to Tenant's
employees and invitees from vending machines in its premises.
14. No machinery or mechanical equipment other than such as are customarily
found in general, executive or administrative offices (or are customary for the
ancillary uses permitted in Section 1.05 of the lease to which this Exhibit is
attached) may be installed or operated in any tenant's premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld or delayed, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to actually disturb other tenants; but
machines and mechanical equipment which may be permitted to be installed and
used in a tenant's premises shall be so equipped, installed and maintained by
such tenant as to prevent any noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building, which noise, vibration or electrical or other interference actually
interferes with or disturbs any other tenant or unreasonably interferes with or
disturbs Landlord.
C-3
15. Landlord, its contractors, and their respective employees shall have
the right to use, without charge therefor, all light, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant. If Landlord, its contractors or their employees turn on
any lights, power or water in the premises for purposes of performing such
cleaning, repairs or alterations, they shall turn the same off upon completing
such work.
16. No premises of any tenant shall be used for lodging or sleeping or for
any illegal purpose.
17. The requirements of tenants will be attended to only upon application
at the office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties, unless under special
instructions from Landlord.
18. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
19. Tenant shall not cause or permit any unusual or objectionable fumes,
vapors or odors to emanate from the Premises which would annoy other tenants or
create a public or private nuisance. No cooking shall be done in the Premises
except as is expressly permitted in the Lease.
C-4
20. No acids, vapors or other materials shall be discharged or permitted to
be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes of which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. Subject to
the waiver of subrogation described in Section 7.03 of the Lease, all damages
resulting from any misuse of the fixtures shall be borne by the tenant who, or
whose servants, employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in the premises of
any tenant, or for garbage or similar refuse, shall be emptied, cared for and
cleaned by and at the expense of such tenant.
21. All entrance doors in each tenant's premises shall be left locked and
all windows shall be left closed by the tenant when the tenant's premises are
not in use. Entrance doors on any floor not fully leased to Tenant shall not be
left open at any time. If Tenant installs a security system for the Premises,
Tenant shall provide Landlord with a reasonable number of keys/cards for access
thereto.
22. Hand trucks not equipped with rubber tires and side guards shall not be
used within the Building.
23. All windows in each tenant's premises shall be kept closed. If Landlord
shall elect to install any energy saving film on the windows of the Premises or
to install energy saving windows in place of the present windows, tenant shall
cooperate with the reasonable requirements of Landlord in connection with such
installation and thereafter the maintenance and replacement of the film and/or
windows and permit Landlord to have access to the tenant's premises at
reasonable times during Business Hours to perform such work.
24. If the Premises shall at any time be infested with vermin or rodents as
a result of the use or any misuse or neglect of the Premises by Tenant, its
agents, employees, licensees or invitees, Tenant shall cause the same to be
exterminated from time to time to the reasonable satisfaction of Landlord and
Tenant shall employ for such purpose an exterminator reasonably approved by
Landlord.
25. To the extent there is a conflict or inconsistency between the
provisions contained in the Lease or this Exhibit C annexed thereto, the
provisions of the Lease shall govern and control.
C-5
EXHIBIT D
ALTERATIONS RULES AND REGULATIONS
A. General
1) Tenant will make no Alterations (as defined in the Lease), in, to or
about the Premises except in compliance with Section 4.02 of the Lease.
2) Prior to the commencement of any Alterations, Landlord and Tenant shall
perform a walk-through of the Premises to determine the existing condition of
Premises.
3) Prior to the commencement of any Alterations, Tenant shall submit for
Landlord's written approval all required items described in Paragraphs 1, 2 and
3 of Section B hereof.
4) Tenant shall ensure that the proposed Alterations comply with The
Administrative Code of The City of New York and all other laws, ordinances,
rules and regulations promulgated by all governmental agencies and bodies having
jurisdiction over such Alterations, including, without limitation, the Americans
With Disabilities Act.
5) Tenant shall ensure that all proposed Alterations comply with Building
standards listed in Section C hereof, and are adequately designed to serve
Tenant's needs while remaining in conformity with, and not adversely affecting,
any Building systems.
6) All (i) demolition or removal of construction materials, or (ii) moving
of construction materials to or from the Building, or (iii) other categories of
work which actually disturb or interfere with other Tenants of the Building or
unreasonably disturb or interfere with Building operations, must be scheduled
and performed before or after Business Hours; provided, that clause (ii) above
shall not be applicable to Tenant's initial Alterations to the Blocks. Tenant
shall provide the Building Manager with written notice at least 24 hours prior
to scheduling any Alteration, and except as may otherwise be expressly provided
in the Lease, shall pay Landlord's standard charges for overtime porters,
security, engineers and other costs incurred by Landlord in connection with such
after hours scheduling.
7) All inquiries, Tenant plans, requests for approvals, and all other
matters concerning Alterations shall be initially processed through the Building
Manager.
D-1
8) Except if and to the extent expressly provided to the contrary in this
Exhibit D, Tenant shall not be required to pay any fees or other charges for any
of the obligations of Landlord set forth in this Exhibit D (subject to
reimbursement of Landlord's costs and expenses as part of Operating Expenses to
the extent properly includable therein).
B. Tenant Submittals
1) Tenant to submit, to Landlord, the following information for Landlord's
review and approval prior to commencement of any Alterations for which
Landlord's approval is required under the Lease. Landlord's review and approval
period will not commence until the Building Manager is in receipt of the
following items, as one complete package:
a) Letter of Intent to perform construction. Letter to include a brief
description of the proposed Alterations, Tenant contact, list of proposed
contractors and estimated work schedule. Such letter of intent shall not be
required with respect to Tenant's initial Alterations to the Blocks.
b) 2 sets of design drawings and specifications noting full scope of work
involved in performing such Alterations. All drawings must be signed and sealed
by Tenant's Registered Architect or Professional Engineer licensed to conduct
business in the State of New York. Part plan drawings will not be acceptable.
(i) If full height partition walls are being installed in an area that is
sprinklered, the existing sprinkler head locations must be included to show that
new partitions are not in conflict with sprinkler coverage.
(ii) If the area being altered includes existing compartmentation walls,
those compartmentation walls must be indicated on Tenant's layout.
c) A letter from Tenant's Registered Architect or Professional Engineer
stating that their design and scope of work complies with all applicable codes,
and local laws, especially noting Local Laws 16/84, 58/87, and 5/73. This letter
must be signed and include their professional seal.
d) Proper New York City Building Department filing applications, as
required, for all Alterations indicated on drawings.
2) Upon completion of Landlord's review, the following will be returned to
Tenant:
D-2
a) A letter (i) granting approval to file drawings; or (ii) granting
conditional approval, subject to Tenant incorporating Landlord's comments and
suggested revisions into a revised set of design drawings (no Alterations will
commence or applications be filed until Landlord is in receipt of such revised
set of drawings); or (iii) disapproving such Alterations (it being understood
that the time period for Landlord's approval shall be governed by Section 4.02
of the Lease); and
b) If approved, or conditionally approved, Building Department applications
signed by Landlord (it being understood that the time period for Landlord's
signing such applications shall be governed by Section 4.02(h) of the Lease).
Landlord's review is for conformance with Building standards only and is not a
review for compliance with law or a review of the adequacy of Tenant's design.
No such approval, or comments shall constitute a waiver of the obligation that
Tenant's Alterations comply with all laws and receive Buildings Department or
other governmental approvals.
3) Prior to commencement of Alterations:
Tenant to submit to Landlord the following:
a) A letter or revised drawings addressing Landlord's comments, if any.
b) Approved New York City Building Department filing applications,
drawings, and all work permits for work then being performed by Tenant.
c) A final list of all contractors and subcontractors who will perform the
Alterations.
d) A work schedule noting duration of work.
e) Valid Certificates of Insurance and a Contractors Agreement signed by
each contractor with whom Tenant contracts directly, including, without
limitation, any construction manager (see Insurance Requirements in Section D
hereof).
4) Upon completion of Alterations:
Tenant to submit to Landlord, in a timely manner, the following:
a) All sign-off documents which pertain to work filed from all agencies
having jurisdiction.
b) As-built drawings or final working drawings (to the extent required
under the Lease).
c) A properly executed Air Balancing Report, signed by a Professional
Engineer (other than in connection with Tenant's initial Alterations to the
Premises).
D-3
C. Building Standard Requirements
1) All structural or floor loading requirements, mechanical (HVAC),
plumbing, sprinkler, electrical, fire alarm, elevator, of any proposed Tenant
installation shall be subject to the prior approval of Landlord's consultants.
All actual out-of-pocket expenses reasonably incurred by Landlord's consultant
regarding review and approval of Tenant's design shall be at Tenant's expense;
provided, that such expenses shall not be payable by Tenant in connection with
Tenant's initial Alterations to the Blocks.
2) Landlord or its representative shall have the right to monitor all
demolition.
3) Except as otherwise may be expressly provided in the Lease, elevator
service for construction work shall be charged to Tenant at standard Building
rates. Prior arrangements for elevator use shall be made with Building Manager
by Tenant. No material or equipment shall be carried under or on top of
elevators. Except as otherwise may be expressly provided in the Lease, if
workmen (including, without limitation, Operating Engineers and Personnel
Carriers), are required by any union regulations for material or personnel
hoisting, such workmen shall be paid for by Tenant.
4) If shutdown of any mechanical or electrical risers (other than any
express risers serving only the Premises) are required, such shutdown shall be
performed by Landlord's contractors at Tenant's reasonable expense or, at
Landlord's option, supervised by Landlord's representative at Tenant's
reasonable expense; provided, that there shall be no charge to Tenant by
Landlord for such shutdown unless Tenant requests that such shutdown be
performed on an overtime basis.
5) Tenant's contractor shall:
a) have a Superintendent or Foreman on the Premises at all times;
b) police the job at all times, continually keeping the Premises orderly;
protection and maintenance will be Tenant's responsibility;
c) maintain cleanliness and protection of all areas, including elevators
and lobbies;
d) protect the front and top of all peripheral HVAC units and thoroughly
clean them at the completion of work;
e) block off supply and return grills, diffusers and ducts to keep dust
from entering into the Building air conditioning system;
f) protect all Class "E" fire alarm devices and wiring; and
g) avoid the actual disturbance of other Tenants.
D-4
6) If any part of Tenant's Alteration is improperly performed, Tenant shall
be charged for the reasonable and actual cost of corrective work done by
Landlord's personnel or contractors engaged for such purpose by Landlord.
Landlord may not perform any such corrective work unless, in Landlord's
reasonable judgment, Tenant's Alteration adversely affects any Landlord
Obligation Area or any other area outside of the Premises, and Tenant is given
such notice and cure period as is reasonable under the circumstances.
7) All equipment and installations must be equal to or better than the
standards of the Building.
8) Tenant shall pay Landlord for any amounts billed in connection with any
Alteration within 30 days after receipt by Tenant of an invoice therefor
reasonably describing the charges and accompanied by reasonable back-up for the
amount invoiced.
9) Landlord's contract fire alarm service personnel shall be the only
personnel permitted to perform the final tie-in to the Class "E" System;
provided, that the rates of such personnel are reasonably competitive with rates
charged by other contractors providing such services in first-class office
buildings in midtown Manhattan.
10) During such times that Tenant's alterations or demolition of the
Premises require that fire protection afforded by the Class "E" System or
sprinkler system be disabled, Tenant, at Tenant's expense, shall maintain fire
watch service deemed reasonably suitable to Landlord, and any governmental
authority having jurisdiction.
11) Landlord, at Tenant's expense, shall repair or cause to have repaired,
any and all defects, deficiencies or malfunctions of the Class "E" System caused
by Tenant's Alterations or related demolition performed by Tenant or its
contractors. Such expense may include reasonable expenses of engineering,
supervision and standby fire watch personnel that Landlord deems reasonably
necessary to protect the Building during the time such defects, deficiencies and
malfunctions are being corrected.
12) Should Tenant desire to install its own internal fire alarm system,
Tenant shall request Landlord to connect such system to the Class "E" System at
Tenant's expense in such reasonable manner as prescribed by Landlord. Tenant
shall, at Tenant's reasonable expense, have such internal fire alarm system
approved by governmental agencies having jurisdiction, and shall submit to
Landlord an approved copy of plans of such system before initiating any
installation of such system. Tenant must demonstrate that system is in working
order prior to requesting tie-in.
13) Tenant, at Tenant's expense, shall be responsible for the maintenance
and proper operation of any Tenant Class "E" Fire Alarm sub-system.
D-5
14) When Tenant's use of any space requires a change in the Certificate of
Occupancy, whether a building has a Final Certificate of Occupancy or Temporary
Certificate of Occupancy, or (as in the case of a new Building with a Temporary
Certificate of Occupancy) involves the initial inclusion of the Premises on the
Certificate of Occupancy, Tenant shall have the right to engage its own
consultant to perform such work. Tenant shall be responsible for all costs in
connection with such consultant's services, other than any costs relating to the
removal of violations or other encumbrances affecting the Building which must be
removed by Landlord in accordance with the Lease.
15) Tenant shall be responsible for keeping, on Premises, a copy of all
required Building Department approved applications, drawings, permits, and
sign-offs during and after completion of construction and shall deliver same to
Landlord upon Landlord's request (provided such request is made within 1 year
after completion of construction of the Alteration in question).
16) Tenant shall be responsible for the payment of all fines and penalties
assessed by any governmental agency and for the removal of any violations noted
by any governmental agency, in either case by reason of Tenant's failure to
obtain any governmental sign-off required for any Alteration.
17) The attachment of any work to Building window mullions, HVAC
enclosures, window soffets, will not be permitted. Notwithstanding the
foregoing, Landlord shall not unreasonably withhold its consent to any
Alteration which provides for dry wall partitions abutting the Building window
mullions or the modification of window soffets in connection with the
installation of louvers.
18) Electrical wire mold will not be permitted without written approval
from Landlord, which approval shall not be unreasonably withheld. Whips to feed
furniture panels are permitted; provided, that the same comply with all Laws.
19) Chasing of structural slab or Building masonry walls will not be
permitted unless consent is given by Landlord. Such consent shall not be
unreasonably withheld if such work will not affect space leased to, or services
provided to, another tenant or occupant of the Building. Such consent shall not
be arbitrarily withheld if such work affects space leased to, or services
provided to, another tenant or occupant of the Building.
20) The attachment of drywall metal studs or track to mechanical,
electrical, plumbing, sprinkler, or any Building systems will not be permitted.
21) All valves or equipment controlling Building systems or Tenant systems
must be tagged and identified.
22) Access doors must be provided to all Building equipment and Tenant
equipment.
23) Tenant's design consultant is responsible to ensure that base Building
systems are adequately sized to meet Tenant's requirements. Tenant shall be
responsible for alterations to any existing HVAC ductwork or system and shall
ensure that such work is integrated so as not to adversely affect the Building
system.
D-6
24) All hardware is to match Building standards.
25) Tenant shall have the right to install outside louvers on the windows
of the Premises; provided, that no louvers shall be installed on any windows
facing 6th Avenue or on the first 2 windows in from 6th Avenue on the north and
south sides of the Building. Tenant shall not install any other outside louvers
without Landlord's prior written approval. Detailed sketches of all proposed
louvers shall be submitted for Landlord's approval. Such approval shall not be
unreasonably withheld if the installation of such louvers will not affect space
leased to, or services provided to, another tenant or occupant of the Building.
Such approval shall not be arbitrarily withheld if the installation of such
louvers affects space leased to, or services provided to, another tenant or
occupant of the Building.
26) Any connections to Building systems must be of the same materials as
existing Building standards.
27) All elevator devices must remain accessible for maintenance.
28) Tenant is not to mount any equipment in Building Electrical Closets,
Telephone Closets, or Mechanical Equipment Rooms without prior written approval
from Landlord, which approval shall not be unreasonably withheld provided the
floor on which such closets or rooms are located is fully leased by Tenant.
29) Tenant is responsible to ensure that all work is performed in
accordance with good construction practices.
D. Contractors Agreement; Insurance Requirements
[To be retyped on Letterhead of Tenant's contractors, addressed to
Landlord; References below to "general contractor" shall be deemed to include
any construction manager]
Tenant:
Premises:
The undersigned contractor (hereinafter called "Contractor") has been hired
by the Tenant or occupant (hereinafter called "Tenant") of the Building named
above or by Tenant's contractor to perform certain work (hereinafter called
"Work") for Tenant in the Tenant's Premises in the Building. Contractor and
Tenant have requested the undersigned Landlord (hereinafter called "Landlord")
to grant Contractor access to the Building and its facilities in connection with
the performance of the Work and Landlord agrees to grant such access to
Contractor upon and subject to the following terms and conditions:
1) Contractor agrees to indemnify and save harmless the Landlord, any
Superior Lessor and any Superior Mortgagee and their respective officers,
employees, agents, affiliates, subsidiaries, and partners, and each of them,
from and with respect to any claims, demands, suits, liabilities, losses and
expenses, including reasonable attorneys' fees, arising out of or in connection
with the Work (and/or imposed by law upon any or all of them) because of
personal injuries, including death at any time resulting therefrom, and loss of
or damage to property, including consequential damages, whether such injuries to
persons or property are claimed to be due to negligence of the Contractor or
Tenant, except to the extent specifically prohibited by law (and any such
prohibition shall not void this Agreement but shall be applied only to the
minimum extent required by law).
2) Contractor shall provide and maintain at its own expense, until
completion of Work, the following insurance:
a) Workers' Compensation and Employers' Liability Insurance covering each
and every workman employed in, about or upon the Work, as provided for in each
and every statute applicable to Workers' Compensation and Employers' Liability
Insurance.
D-7
b) Commercial General Liability Insurance Including Coverage for Completed
Operations, Broad Form Property Damage "XCU" exclusion if any deleted, and
Contractual Liability (to specifically include coverage for the indemnification
clause of this Agreement) for not less than the following limits:
Combined Single Limit
Bodily Injury and
Property Damage Liability: $5,000,000 (for Tenant's general
contractor and all Major Trade
contractors) and $1,000,000
(for all non-Major Trade
contractors), in each case written
on a per occurrence basis.
"Major Trades" means HVAC,
------------
electric, sprinkler and plumbing.
c) Commercial Automobile Liability Insurance (covering all owned, non-owned
and/or hired motor vehicles to be used in connection with the Work) for not less
than the following limits:
Bodily Injury: $5,000,000 (for Tenant's
general contractor and all Major
Trade contractors) and
$1,000,000 (for all non-Major
Trade contractors), in each case
per person
$5,000,000 (for Tenant's general contractor
and all Major Trade contractors)
and $1,000,000(for all non-Major Trade
contractors), in each case per occurrence
Property Damage: 5,000,000 (for Tenant's
general contractor and all Major
Trade contractors) and
$1,000,000 (for all non-Major
Trade contractors), in each case
per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that it has
complied with the above requirements regarding insurance and providing that the
insurer will give Landlord 10 days prior written notice of the cancellation of
any of the foregoing policies. Such insurance may be carried under blanket
and/or umbrella policies covering the Building and/or the Work and other work
sites of Contractor; provided, that each such policy shall in all respects
comply with this Exhibit D, shall specify that the portion of the total coverage
of such policy that is allocated to the Building and/or the Work is in the
amounts required pursuant to this Exhibit D and shall provide that the amount of
coverage afforded thereunder with respect to the Building and/or the Work shall
not be reduced by claims thereunder against such other work sites of Contractor.
3) Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
a) Commercial General Liability Insurance Including Protective and
Contractual Liability Coverage with limits of liability at least equal to the
above stated limits.
D-8
b) Commercial Automobile Liability Insurance (covering all owners,
non-owned and/or hired motor vehicles to be used in connection with the Work)
for not less than the following limits:
Bodily Injury: $5,000,000 (for Tenant's
general contractor and all Major
Trade contractors) and
$1,000,000 (for all non-Major Trade contractors),
in each case per person
$5,000,000 (for Tenant's general contractor and
all Major Trade contractors) and $1,000,000(for
all non-Major Trade contractors), in each case
per occurrence
Property Damage: $5,000,000 (for Tenant's
general contractor and all Major
Trade contractors) and
$1,000,000 (for all non-Major
Trade contractors), in each case
per occurrence
Agreed to and executed this day of , 19 . ---------- --------------------
- -----
Landlord: Contractor:
D-9
EXHIBIT E
STANDARD CLEANING SPECIFICATIONS
All cleaning services except those performed by day porters, window
cleaners and matrons are to be performed nightly, 5 nights per week (except as
herein otherwise provided). No Saturday, Sunday or Holiday service.
Holiday are to be those days designated by the applicable Building service
union agreements, however, on "Holidays" other than New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, a cleaning crew will be provided by Contractor to empty waste
paper baskets, ash trays and remove rubbish in tenanted areas throughout the
Building and prepare public areas for the next business day that building is
open. (Such reduced service is "blitz cleaning," which will be provided at no
cost to Tenant.)
Sufficient day porters and matrons will be assigned to the Building to
perform daily tasks as specified below. However, one of such day porters will be
assigned to the Building on a Tuesday to Saturday work schedule. Competent
supervisors will be assigned to the Building both day and night. Supervisors
shall not leave until work is completed and they must check that all lights are
turned out, windows closed, doors locked and offices left in a neat, orderly
condition after nightly cleaning. Head day porter is not to act as daytime
on-site supervision.
Contractor will provide Building manager with a schedule of cleaning
services (e.g., high dusting) not performed daily or weekly ("projects") to
allow verification that work is completed in accordance with the Specifications.
TENANT SPACE
------------
In tenant areas, Contractor's employees will work behind locked doors, and
will only open a door for members of their cleaning crew who have been assigned
to remove rubbish or other like material from tenant's premises during the
nighttime cleaning operation.
The nighttime supervisor will verify that the work has been completed in
all tenant areas, that all venetian blinds have been lowered and set in a
uniform appearance, that all lights have been turned off, windows closed, doors
locked and offices left in a neat and orderly appearance for the next day's
business.
TENANT OFFICES AND WORK SPACE (INCLUDING TENANT ELEVATOR LOBBIES)
Hand dust and wipe clean with damp or treated cloth all furniture, file
cabinets, fixtures, horizontal surfaces of window frames, window sills and
convector enclosure tops nightly; wash said sills and tops when necessary. Dust
all chair rails, trim and baseboards as necessary, but at least weekly.
Empty all waste receptacles nightly, provide liners at no cost to Tenant,
and deliver the waste paper and waste materials to locations designated by
Customer. Contractor is to separate, bale and/or deposit the building waste
material in mechanical compactor, if applicable, or other designated areas, for
removal at no additional expense to Customer. Contractor will supply all bags
and related equipment necessary for a proper rubbish removal operation each
night.
E-1
If, in compliance with NYC recycling laws, tenant separates refuse at
source, Contractor will remove such refuse in accordance with such procedure.
Damp wipe all waste receptacles nightly.
Empty and clean all ashtrays nightly. Dust and wipe clean all telephones
nightly.
All venetian blinds to be lowered and set in a uniform appearance nightly
on all floors.
All uncarpeted flooring to be swept nightly, using approved dust-down
preparation, and damp mopped as needed.
All carpeting and rugs to be vacuum cleaned nightly.
Dust all door louvers and other ventilating louvers within reach nightly.
Clean all unpainted metal and remove fingerprints nightly, treat as
necessary.
Wash clean all water fountains and coolers nightly.
High dusting--done quarterly (unless specified otherwise in tenant lease),
including:
Dust all pictures, frames, charts, graphs, and similar wall hangings
not reached in nightly cleaning, except those works identified by
Tenant.
Dust clean all vertical surfaces, such as walls, partitions, doors,
and bucks and other surfaces not reached in nightly cleaning except as
otherwise herein provided.
Dust clean all pipes, ventilating and air conditioning louvers, ducts,
high moldings and other high areas not reached in nightly cleaning.
Dust all exterior surfaces of light fixtures, including glass and
plastic enclosures. Wash interior and exterior of lighting fixture
lenses annually.
Dust and inspect all venetian blinds.
Vacuum clean or replace (as directed by Builing manager) lint screens in
all perimeter HVAC enclosures semi-annually, if Building has such perimeter
units. At same time, vacuum clean coils/fins and nozzles.
E-2
PRIVATE STAIRWELLS
Vacuum all carpeted private stairwells nightly and keep in clean condition.
Uncarpeted stairwells should be vacuumed or swept nightly using approved
dust-down preparation.
Certain ELAS rooms (to be identified by Tenant) will be off limits to
Contractor's cleaning personnel.
COMMON AREAS (BASE BUILDING)
----------------------------
SIDEWALKS AND PLAZAS
Remove gum and spot clean daily. Steam or power clean daily, autoscrub
weekly, temperatures permitting. Keep drain screens free of accummulated debris.
Clean subway grates, if any, monthly.
Day porter to keep all sand urns and equivalent fixtures screened and
clean. Screen and clean same nightly.
Remove snow from all regular and emergency Building entrances and
approaches; remove snow at curbs in front of the Building entrances to allow
adequate access by vehicles. Remove snow from concrete walkways immediately
adjacent to the Building, all as and when required, at no additional charge to
Customer. All entrances, exits, driveways, walkways (including plaza walkways if
applicable), and crosswalks are to be made accessible and kept clean all times.
Snow removal should not hamper water flow to street catch basins.
Day porter to keep exterior planting areas in clean condition.
EXTERIOR METAL, GLASS, AND POLISHED STONE
Day porter to maintain exterior granite and metalwork up to first
horizontal caulking joint above retail store fronts. Porter will also wipe down
and maintain in clean condition, metal in Building entrance doors, store front
trim, exterior window frames and mullions, standpipe and sprinkler siamese
connections, and hose bibs. Generally, porter will properly maintain the
exterior of the building so that there is uniformity of color and brightness at
all times. Graffitti and marks will be removed immediately.
LOBBY (INCLUDING GROUND FLOOR LOBBY AREA WITHIN TENANT'S CONTROLLED ELEVATOR
-------------------------------------------------------------------------
BANKS)
- ------
All stone, ceramic tile, marble, terrazzo and other unwaxed or untreated
flooring to be swept nightly, using approved dust-down preparation; machine
scrub such flooring nightly and polish as necessary, but at least once a week to
produce appearance satisfactory to Owner. All linoleum, rubber, asphalt tile and
other similar types of flooring (that may be waxed or treated) to be swept
nightly, using approved dust-down preparation. Such flooring in public areas to
be waxed or treated in approved manner as necessary, but at least once a month.
E-3
All carpeting and rugs to be spot cleaned and vacuum cleaned nightly.
Shampoo carpeting to maintain appearance satisfactory to Customer, not less than
quarterly.
Wash all entrance mats as necessary to maintain clean condition and
appearance.
Clean all unpainted metal and remove fingerprints nightly, treat as
necessary. Polish all lobby entrance door push bars nightly, Wipe clean nightly
and polish as necessary all brass and other bright work.
Damp wipe all waste receptacles nightly.
Horizontal louvers to be dusted, spot cleaned, treated to maintain a
uniform appearance. Dust all door and other ventilating louvers within reach
nightly.
Day porter to maintain lobby floor in a clean condition throughout day and,
during wet weather, keep entrance mopped dry. Day porter to lay down, remove and
clean lobby rain mat runners as necessary.
Day porter to rub down Building directory daily.
Vertical surfaces, such as walls, partitions, doors, and bucks, of all
corridors and lobbies to be dusted, spot cleaned, treated and polished as
necessary.
Clean lights, globes, lenses and fixtures (including glass, metal and
plastic lenses and enclosures) in lobby, public areas, and maintenance areas as
often as necessary.
Day porter to keep lobby and planting areas in clean condition.
PUBLIC CORRIDORS
All carpet installed throughout the public corridor of the building will be
vacuumed nightly, spot cleaned nightly, and shampooed to maintain an appearance
suitable to Customer.
All stone, ceramic tile, marble, terrazzo and other unwaxed or untreated
flooring to be swept nightly, using approved dust-down preparation; machine
scrub such flooring daily and polish as necessary, but at least once a week to
achieve appearance satisfactory to Owner. All linoleum, rubber, asphalt tile and
other similar types of flooring (that may be waxed or treated) to be swept
nightly, using approved dust-down preparation. Such flooring in public areas to
be waxed or treated in approved manner as necessary, but at least once a month.
E-4
Horizonal louvers to be dusted, spot cleaned, treated to maintain a uniform
appearance. Dust all door and other ventilating louvers within reach nightly.
Clean all unpainted metal and remove fingerprints nightly, treat as
necessary. Wipe clean nightly and polish as necessary all brass and other bright
work.
Contractor to clean public corridors and facilities.
LAVATORIES AND REST ROOMS (INCLUDING ALL CORE LAVATORIES SERVING FULL FLOOR
TENANTS)
Check all bathroom fixtures for leaks, clogs, and proper operation nightly.
Report any deficiencies to Building manager daily.
Scour, wash and disinfect all basins, bowls, and urinals nightly; odorless
disinfectants to be used.
Wash all toilet seats both sides nightly.
Hand dust and clean, washing where necessary, all partitions, tile walls,
dispensers and receptacles in all lavatories and rest rooms nightly. Thoroughly
wash and polish all wall tile and stall surfaces as necessary but no less than
once a week.
Sweep and wash all lavatory and rest room floors nightly, using approved
disinfectants. Wash and polish all mirrors, powder shelves, bright work and
enameled surfaces in all lavatories and rest rooms nightly. Machine scrub rest
room floors with disinfectants weekly.
Empty paper towel and sanitary napkin disposal receptacles nightly. Deliver
waste paper and waste materials to location designated by the Customer.
Fill all toilet tissue holders nightly (tissue to be furnished by the
Owner). Fill toilet seat cover dispensers, if any, nightly (covers to be
provided by tenant or Contractor).
Wash waste cans, towel dispensers, and receptacles as necessary to keep
them clean and odor free, but at least once a week.
Fill soap dispensers and paper towel dispensers nightly as required (soap
and paper towels to be furnished by Contractor or Owner at no expense to
tenant.)
Day porter to check all bathroom walls and partitions for graffiti daily
and remove same immediately.
E-5
Day porter to inspect and service men's lavatories and rest rooms (tissue
to be furnished by Owner) as necessary at no cost to Tenant.
Day porter to fill soap dispensers and paper towel dispensers in men's
lavatories and rest rooms (soap and paper towels to be furnished by the
Contractor or Owner at no cost to the tenant). If required, waste cans and
receptacles to be emptied. Lavatories and restrooms to be visited and policed a
minimum of once in the morning and once in the afternoon.
Sufficient day matrons will be assigned to the Building inspect all ladies'
lavatories and rest rooms at least twice a day. They will insert toilet tissue
(tissue to be furnished by the Owner). They will also service sanitary npakin
dispensers with sanitary napkins furnished by the Contractor. Fill soap
dispensers and paper towel dispensers in ladies' lavatories and rest rooms (soap
and paper towels to be furnished by the Contractor or Owner at no cost to the
tenant).
ELEVATORS
Day porter will keep elevator cars and escalators clean and neat during the
day.
Elevator cab floors are to be treated with same methods and frequencies as
comparable lobby floor surfaces. For example, if carpeted, vacuum and spot clean
nightly, shampoo as necessary to maintain appearance satisfactory to Customer.
Elevator cab walls, metal work, and saddles to be dusted and rubbed down
nightly.
Interior and exterior of metal car and hatch doors (including saddles) of
all elevators to be properly cleaned and treated. Saddles to hand rubbed and
polished nightly.
Day porter to dust and rub down all elevator doors, frames.
STAIRWELLS
Police all public stairwells throughout building daily and maintain in
clean condition. Wet mop floors and stairs as required, but at least once a
month. Wash quarterly. Wipe down handrails and posts weekly.
Day porter to dust and clean fire hoses monthly, report any obvious damage
to Building manager immediately.
Day porter to keep public staircases policed during the day.
LOADING DOCK
Day porter to sweep loading dock, trucking area, etc., daily.
Contractor will scrub and steam-clean loading dock walls and floors and
ceilings as necessary, but at least weekly,
E-6
Night porter to clean truck dock and ramps.
Night porter to separate, bail and/or deposit waste paper and rubbish as
directed by Customer in the loading dock area compactor or in area designated by
Customer for removal by others.
ROOF AND SETBACK ROOFS
Day porter to police and sweep, where possible, roof and setbacks weekly
(weather permitting). Clean out roof drains weekly.
LOCKER ROOMS AND STOREROOMS
Keep locker rooms storerooms, and slop sink rooms in a neat and orderly
condition at all times.
MECHANICAL EQUIPMENT ROOMS
Porter will keep fan rooms, motor rooms, electric closets, telephone
closets and air conditioning rooms in neat and clean condition. Electric and
telephone closets to be policed weekly. Police, sweep, and mop engine rooms as
necessary, but at least monthly. Maintain all drain screens free of debris.
GARAGES
Night porter to police and broom sweep any private garage areas operated by
Customer and maintain appearance suitable to Customer. Floors and walls to be
steam cleaned or hosed down monthly. Maintain all drain screens free of debris.
INITIAL CLEANING REQUIREMENTS
Contractor shall provide an "initial cleaning" for newly occupied tenant
areas and for any public building areas subsequent to major renovations as per
the specifications set forth below at no additional cost to owner.
1. Scrub all floors and wax resilient floors.
2. Wipe finger marks and dust from painted metal and other partitions and
doors. Remove packing material where encountered.
3. Vacuum clean carpets and rugs.
4. Wash, clean and vacuum all air conditioning units and enclosures, inside
and outside along perimeter and interior areas of the Building.
E-7
5. Clean and set all venetian blinds for uniform appearance.
6. Dust lighting fixtures, inside and outside.
7. Wash and scrape clean all windows, inside and outside, partition glass,
glass doors, mail chutes and directory boards.
8. Clean metal window frames and surrounding metal, inside and outside. Clean
exterior curtain wall column cover, sills and spandrels.
9. Remove existing packing material and clean elevator floors, walls,
ceilings, panels, doors, hoistway entrance frames and doors and lighting
and signal fixtures.
10. Remove existing packing material and clean all escalators including steps
and maintain metal in uniform bright appearance.
11. Scrub, wash, dust and scrape all toilet room floors, walls, partitions,
fixtures and accessories. Polish all bright work, tile walls, partitions
and install supplies prior to tenant occupancy.
12. Prepare areas to be occupied, in advance of moving date as required by
Building manager and re-clean after tenants move in for first business
day.
13. Scrub and mop main floor lobby and clean public areas continuously upon
completion of renovation.
14. Clean sidewalks, driveways, loading dock and garage areas which have been
released by construction contractor.
E-8
WINDOW CLEANING SERVICE
-----------------------
All windows, and fixed glass from 2nd floor up to and including roof to be
cleaned inside and outside approximately once every five weeks, weather
permitting. Other polished surfaces and spandrels which can be cleaned by
squeegee once a year.
Damp wipe all interior metal window frames, pilasters and other unpainted
interior metal surfaces of the perimeter walls of the building each time window
interiors are washed. Clean these surfaces annually with a suitable cleaning
solution to obtain results satisfactory to Building manager. Plaster walls or
other surfaces adjacent to these window frames to be prtected from staining or
damage; if damage occurs, Contractor to restore areas to original condition.
Entrance doors and lobby glass to be cleaned twice daily and kept in clean
condition at all times during the day.
Exterior store front glass to be cleaned weekly.
A daily work slip to indicate location and amount of windows cleaned and
panels of interior-partition glass cleaned will be provided to Customer's
representative to enable verification of services performed.
Contractor to provide necessary labor and materials to properly maintain
and operate all window cleaning rigs (Customer's and/or Contractor's) at all
times. Contractor will be responsible to insure that rigs meet all Federal,
State, and City regulations governing use and operation of window cleaning rigs,
including operation and maintenance of a radio communication system (walkie
talkie) compatible with Building radio communications system.
Wherever in this Exhibit E reference is made to Customer or Owner, this
shall be taken to mean the Landlord.
E-9
EXHIBIT F
LANDLORD'S WORK
Landlord shall (i) perform each of the items of work described below and
(ii) in the case of each item below which is not a condition to delivery of the
applicable Block, substantially complete each item of work on or before the date
designated therefor.
ITEM OF WORK CONDITION TO DELIVERY
Block A Block B Block C
1. Demolish all applicable space from slab-to-slab, yes yes yes
including without limitation, all interior
partitioning, hung ceilings and support systems, lighting, floor tile and
glue, carpeting and padding, unused conduits, cables, plumbing lines,
miscellaneous steel, duct work, the partitions and doors at the elevator
lobbies, plumbing fixtures, all electrical closets which are not base
Building electrical closets and removal of materials (i.e., other than
paint) which have been applied to convector enclosures. All existing
horizontal cables and all conduits and wiring in electric and telephone
closets shall be cleaned out. The applicable space shall be delivered free
of debris and in broom-clean condition. Any damaged fireproofing on the
columns shall be repaired.
2. Landlord shall provide in the stairwell adjacent to yes yes yes
the electrical closet on each applicable floor at
least 2 points on each floor for Tenant to tie into the Building's Class E
System. All existing fire and safety systems in the applicable space,
including alarms, speakers, communications, etc. shall be in working order
and comply with applicable code (other than any compliance required by
reason of Tenant's Alterations). Landlord shall provide a riser with
sufficient power for all speakers and strobes required by Laws, including
ADA. Landlord shall leave all existing speakers and strobes in place.
3. Landlord shall provide all necessary infrastructure yes yes yes
with a sufficient sprinkler capacity and reserve to
the applicable space so as to enable installation in such space of a
sprinkler system compliant with NYC building code. Tenant acknowledges that
a 20 minute reserve will be provided. Landlord shall deliver valve
connections to the main sprinkler line on each applicable floor. The main
sprinkler loop on each floor of the Premises, if not already installed,
shall be installed by Tenant.
4. Landlord shall deliver main HVAC supply duct and yes yes yes
return opening to the core wall on each floor,
including fire dampers.
5. The induction units in the applicable space shall be yes yes yes
cleaned and vacuumed.
F-1
6. Landlord shall balance all induction units and no - 15 Business no - 15 days after no - 15 days after
deliver a balancing report to Tenant for review by Days after Tenant Tenant notifies Tenant notifies
Tenant's engineers. notifies Landlord Landlord of Landlord of
of substantial substantial substantial
completion of completion of completion of
Tenant's initial Tenant's initial Tenant's initial
Alterations in the Alterations in the Alterations in the
applicable space applicable space applicable space
7. Repair and close off the internal stairwell slab-cuts yes - as to yes - as to the N/A
between the 22nd and 23rd floors. Repair and close stairwell slab-cut, mezzanine and
off the mezzanine and two internal stairwell slab-cuts structural supports stairwell
between the 12th and 13th floors. The replaced slabs and columns between slab-cuts,
shall have a load bearing capacity not less than the the 22nd and 23rd structural supports
capacity for such space permitted by the certificate floors and columns between
of occupancy for the Building. The structural the 12th and 13th
supports shall be fireproofed and shall provide the floors
same above ceiling clearances as available on the
balance of the floor. If columns need to be
installed, they shall be lined up with existing
columns on contiguous floors of the Building.
8. Landlord shall furnish all required yes yes yes
firestopping/fireproofing on walls, floors, ceilings
and structural steel.
9. All exposed piping is to be enclosed and insulated as yes yes yes
required to meet New York City Codes, including
Building, Fire and Electrical Codes.
10. All windows shall be weathertight with all broken and yes yes yes
chipped glass replaced.
11. Landlord shall remove all asbestos, asbestos yes yes yes
containing materials and other hazardous materials, if
any, from the applicable space and other areas in which Tenant will be
performing work (other than shafts and mechanical rooms), refireproof the
applicable space and such other areas after removal of asbestos and deliver
an ACP-5 Certificate (multiple originals) to Tenant for each portion of the
Premises. All asbestos removal shall be performed by a licensed removal
company.
12. Landlord shall not be required to perform a complete no - 30 days after no
- 30 days after no - 30 days after removal of asbestos from the shafts and
mechanical Tenant designates Tenant designates Tenant designates rooms in
which Tenant shall be performing work, the portions of the the portions of
the the portions of the provided, however, Landlord shall perform a spot
shafts and shafts and shafts and abatement of the affected area, so Tenant
is not mechanical rooms in mechanical rooms in mechanical rooms in
performing work in an asbestos condition. which work is to be which work is
to be which work is to be performed performed performed
13. All local law 5 devices are to be left in place, yes yes yes
temporarily supported.
14. Landlord will provide sufficient hose cabinets on each yes yes yes
applicable floor (after demolition is completed) at
locations with the core areas to comply with Code.
15. The weatherstripping on all doors, if any, opening to yes yes yes
the exterior shall be weathertight.
F-2
16. Landlord shall replace all solar film on the windows no - 30 days after no
- 10 days after no - 6 days after in the applicable space which are shown
as damaged on notice from Tenant notice from Tenant notice from Tenant a
punch list prepared by Landlord and Tenant after to Landlord to Landlord to
Landlord completion of demolition and before the commencement (provided
such (provided such (provided such of Tenant's work in such space, with new
P-19 film notice may not be notice may not be notice may not be
manufactured by 3M. given before such given before such given before such
space is delivered space is delivered space is delivered
to Tenant). to Tenant). to Tenant).
17. Landlord shall be responsible for ADA compliance with yes yes yes
respect to fire pull stations, warden stations,
elevator call buttons and hall lanterns in the core areas on each
applicable floor.
18. Landlord shall provide building standard venetian yes yes yes
blinds for all windows in the applicable space.
19. Landlord shall install a valved outlet on the base no - 30 days after N/A N/A
Building steam riser at a location designated by Tenant notifies
Tenant. Landlord of the
location
accompanied by
applicable plans
20. There shall be no violations against the Building yes yes yes
which would delay Tenant from obtaining a building
permit for the performance by Tenant of Tenant's
initial Alterations.
21. Landlord shall provide Tenant with 2 scfms of yes N/A N/A
compressed air for Tenant's supplemental
air-conditioning requirements at a valved outlet in
close proximity to the 17th floor setback.
22. Landlord shall install submeters to measure Tenant's no - 60 days after no - 60 days after yes
consumption of electricity in the applicable space, delivery of delivery of
except for Tenant's express riser to the 15th floor applicable space to applicable space to
UPS system. Tenant Tenant
23. Landlord shall provide an express riser, terminating N/A N/A no - 60 days after
with a disconnect switch, with all associated delivery of space
transformers (which need not be "K" type) and panels to Tenant
to an electrical closet designated by Tenant on the
11th floor. Riser will consist of one set of four 500
MCMCU.
F-3
24. Landlord shall install isolation dampers on all no - the later of yes yes
applicable floors and modify fans for variable speed March 1, 1996 and
drive. the date Landlord
delivers the
applicable space to
Tenant.
25. All induction units shall be in working condition yes yes yes
(consistent with the original specifications
therefor), including all piping, valves and
thermostats.
26. Landlord shall demolish the bathrooms on the 11th N/A N/A yes
floor which are located outside the core of the
Building.
27. Landlord shall provide additional power via an express February 15, 1996 N/A N/A
riser from the basement to a disconnect switch to be
identified by Tenant on the 15th floor for Tenant's
telecommunications room requirement. This riser will
be provided from the new westerly service take-off
located in the switch gear room. Landlord shall
install an electric meter with respect to such riser.
28. Landlord shall provide the necessary roughing for the N/A N/A yes
11th core toilet either in accordance with base
Building plans or reasonably modified therefrom to accommodate the
telecommunications room immediately below on the 10th floor (e.g., fixtures
may be wall mounted instead of floor mounted) and Tenant's design criteria.
F-4
EXHIBIT G
HVAC SPECIFICATIONS
The Building heating, ventilation and air conditioning system shall be capable
of maintaining (a) 76+2 degrees Fahrenheit dry bulb & 50% relative humidity when
outdoor conditions are 95 degrees Fahrenheit dry bulb and 74 degrees Fahrenheit
wet bulb and (b) 70 degrees Fahrenheit dry bulb when outdoor conditions are 0
degrees Fahrenheit dry bulb, and shall maintain ventilation for minimum outside
fresh air make-up rates of 0.25 CFM per usable square foot. Total air
distribution shall not be less than 1 CFM per usable square foot. Building air
conditioning supply air systems shall be provided with minimum 45-55% efficiency
air filters. The above design is based upon (i) an electrical heat dissipation
load of 5.3 watts per usable square foot, (ii) occupancy rate of 1 person per
100 usable square feet, and blinds drawn to 45 degrees in the exposures subject
to direct solar radiation. Interior conditions include both perimeter and
interior spaces and anticipate a ceiling height of 8'-0" above the finished
floor. The base Building interior air handling system shall deliver the supply
air at a temperature not to exceed 55(0)F at the supply air shaft, tapped to
each floor at a minimum static pressure of 1.25 w.g.
G-1
EXHIBIT H
RSF AND TENANT'S SHARE
TAX OPERATING
FLOOR RSF SHARE SHARE
7 91,684 4.7486% 4.9547%
8 50,533 2.6172% 2.7308%
9 77,554 4.0167% 4.1911%
10 78,008 4.0402% 4.2156%
11 79,288 4.1065% 4.2848%
12 72,023 3.7303% 3.8922%
13 63,505 3.2891% 3.4319%
14 47,900 2.4809% 2.5886%
15 48,453 2.5095% 2.6184%
16 47,903 2.4810% 2.5887%
17 23,051 1.1939% 1.2457%
18 24,380 1.2627% 1.3175%
19 24,380 1.2627% 1.3175%
20 23,035 1.1930% 1.2448%
21 24,281 1.2576% 1.3122%
22 24,281 1.2576% 1.3122%
23 24,281 1.2576% 1.3122%
PRIMARY CONCOURSE SPACE 10,051 0.5206% 0.5432%
SECONDARY CONCOURSE SPACE 523 0.0271% 0.0283%
H-1
EXHIBIT I
FORM OF LANDLORD'S STATEMENT
DATE
RE: TENANT NAME SQ. FT
- --------------------------------------------------------------------------------
In accordance with the terms of your lease, tenant shall pay its proportionate
share of the increase in actual operating costs over the base year.
General Operating Costs For Operating
Year Ended $
Base Year Amount ___________
Increase over Base Year
Tenant's Proportionate Share
___________%
Annual Escalation Amount
I-1
STATEMENT OF OPERATING COSTS
YEAR ENDING DECEMBER 31, 1994
PAYROLL and RELATED EXPENSES $ 2,448,071
PORTER SERVICES 3,480,017
ELECTRIC SERVICES 4,598,628
STEAM 965,640
WATER 203,462
REPAIRS & MAINTENANCE 1,353,294
RUBBISH REMOVAL 417,474
INSURANCE 361,498
MISCELLANEOUS 88,193
MANAGEMENT FEES 2,037,742
PROFESSIONAL FEES 166,027
---------------
16,120,046
COST OF TENANTS' ELECTRICITY (2,482,992)
COST OF TENANTS' SERVICES (558,447)
---------------
$ 13,078,607
===============
I-2
EXHIBIT J
ELECTRICAL SPECIFICATIONS
Landlord shall provide, at the electrical closets on each floor of the
Office Space, the following amperes of electrical service:
- --------- ----------- -------------- -------------
FL ELEC BASE BLDG SUPPL
CLOSET AMPERES AMPERES
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
22 1 200 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
21 1 200 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
20 1 175 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
19 1 200 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
18 1 200 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
17 1 175 0
- --------- ----------- -------------- -------------
- --------- ----------- -------------- -------------
16 1 200 0
- --------- ----------- -------------- -------------
----------- -------------- -------------
4 175 0
----------- -------------- -------------
----------- -------------- -------------
5 175 0
----------- -------------- -------------
6 100 0
- --------- ----------- -------------- -------------
650
- --------- ----------- -------------- -------------
15 1 150 0
- --------- ----------- -------------- -------------
----------- -------------- -------------
4 175 0
----------- -------------- -------------
----------- -------------- -------------
5 175 0
----------- -------------- -------------
----------- -------------- -------------
6 100 0
- --------- ----------- -------------- -------------
600
- --------- ----------- -------------- -------------
J-1
14 1 200 0
----------- -------------- -------------
- --------- ----------- -------------- -------------
4 175 0
----------- -------------- -------------
----------- -------------- -------------
5 175 0
----------- -------------- -------------
----------- -------------- -------------
6 100 0
- --------- ----------- -------------- -------------
650
- --------- ----------- -------------- -------------
13 2 100 0
----------- -------------- -------------
- --------- ----------- -------------- -------------
3 100 0
----------- -------------- -------------
----------- -------------- -------------
4 125 0
----------- -------------- -------------
----------- -------------- -------------
5 125 0
----------- -------------- -------------
----------- -------------- -------------
6 125 600
- --------- ----------- -------------- -------------
575
- --------- ----------- -------------- -------------
12 2 125
----------- -------------- -------------
- --------- ----------- -------------- -------------
3 125
----------- -------------- -------------
----------- -------------- -------------
4 125
----------- -------------- -------------
----------- -------------- -------------
5 125 800
----------- -------------- -------------
----------- -------------- -------------
6 125
- --------- ----------- -------------- -------------
625
- --------- ----------- -------------- -------------
11 2 125
----------- -------------- -------------
- --------- ----------- -------------- -------------
3 125
----------- -------------- -------------
----------- -------------- -------------
4 125 400 1
----------- -------------- -------------
----------- -------------- -------------
5 125
----------- -------------- -------------
----------- -------------- -------------
6 150
- --------- ----------- -------------- -------------
650
- --------------------- -------------- -------------
TOTAL 4,900 1,800
- --------------------- -------------- -------------
BASE BUILDING & SUPPLEMENTAL AVAILABLE POWER IS BASED ON SWITCH SIZE
1 Such supplemental power shall be located in an electrical closet on the
11th floor to be designated by Tenant.
J-2
EXHIBIT K
FORM OF ASSUMPTION AGREEMENT
Assignment and Assumption of Lease, dated as of the ____ of ________, ____,
between __________________________ ("Assignor") and ____________________
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is the tenant under that certain lease dated
_____________, between 1290 Associates, as landlord, and Assignor, as tenant
(the "Lease"), covering the entire 11th through 22nd floors and a portion of the
concourse floor of a building known as 1290 Avenue of the Americas located in
New York, New York;
WHEREAS, Assignor desires to assign all of its interest in the Lease to
Assignee and Assignee desires to assume all Assignor's obligations under the
Lease, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in, to and under the Lease, effective as of ___________ (the "Effective
Date").
2. Assignee, for the benefit of Assignor and the landlord, hereby assumes,
and agrees to be bound by and to perform, all of the covenants, agreements,
terms, provisions and conditions on the part of the tenant under the Lease to be
kept, performed and observed from and after the Effective Date.
3. This Assignment and Assumption of Lease shall be binding upon and inure
to the benefit of the parties' respective successors and assigns.
K-1
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption of Lease as of the day and year first above written.
Assignor
----------------------------
By:__________________________
Name:
Title:
Assignee
----------------------------
By:__________________________
Name:
Title:
K-2
EXHIBIT "L"
BUILDING SECURITY SPECIFICATIONS
SECURITY PROCEDURES
During the hours of 8 a.m. to 6 p.m. people can freely access and leave the
building without signing a log sheet or show identification. Security measures
are left to each tenant's discretion within their premises. This does not apply
to delivery or messenger personnel.
Messenger and delivery personnel are diverted by signage or lobby security
to the front desk where they are asked to show ID and sign in on a "MESSENGER
LOG SHEET".
If a messenger or delivery person refuses or is unable to produce a valid
company ID, they are not permitted into the building.
At that point, so as to minimize any inconvenience (caused by an
uncooperative messenger) to a tenant, security is instructed to call the tenant
expecting the package to ask them to meet the messenger in the lobby.
During non-business hours (6 p.m. to 8 a.m. weekdays and all-day on
weekends and holidays) all persons entering the building are required to show ID
and sign in and sign out when leaving.
At all times, any person leaving the building with packages, equipment,
etc. must have a tenant property pass to be given to the lobby guard.
The loading dock and freight cars operate Monday to Friday (excluding
holidays) form 8 a.m. to 6 p.m. All deliveries (other than hand held items) are
made through the loading dock.
Construction material, large furniture deliveries, and move projects must
be scheduled during non-business hours.
SECURITY EQUIPMENT FEATURES
The following areas are equipped with CCTV:
Front Lobby - With a panning feature
Freight Cars - Stationary
Concourse Corridor - Stationary (there are several cameras covering
the entire corridor to the Rockefeller Center
entrance)
L-1
EXHIBIT "L"
1290 Avenue of the Americas
SECURITY EQUIPMENT FEATURES
Lobby renovation will include all passenger elevators - Stationary
Truck and Car Lifts - Stationary
Exterior Entrance to Garage - Stationary
Garage - With panning feature
Sub-Cellar Corridor - Stationary
Sub-Cellar Freight Elevator Lobby - Stationary
There are 2 recorders located in the security office in the concourse that
intermittently record all or specific CCTV cameras 24 hours a day 7 days a week.
All tapes are kept for 2 weeks before being re-used.
In addition to the above, we also have in place a guard tour system with 40
stations located at various common areas throughout the building.
The security guard carries a data recorder when he goes on a designated
tour of the building. Each station is numbered (1-40) and as the guard reaches
each station he uses the data recorder with the station box and each stop is
recorded (date, time, location). These tours are completed at least twice each
shift.
The following morning, the security supervisor prints out the information
from the data recorders and reviews the tours of each shift.
GARAGE & LOADING DOCK
The garage and loading dock share same entrance located on east end of the
building on 52nd street side.
During hours of 7 A.M. to 6 P.M. Mon to Fri, a security guard is posted at
entrance way. He will check each vehicle's license plate number to see if it is
authorized to park, log time and license plate number.
L-2
EXHIBIT "L"
1290 Avenue of the Americas
GARAGE & LOADING DOCK
He will then allow the vehicle to enter either large or small hydraulic
elevator which will carry vehicle 2 levels below grade. A second security guard
will indicate what area the vehicle should be parked in that particular day.
Typically upon entering garage area right side has been dedicated for monthly
parking on a first come, first serve basis. The vehicle keys must be left with
security guard on duty.
The vehicle license plate number will be recorded when leaving the garage
area.
During all other hours & holidays the garage and loading dock are closed.
Monthly vehicles can enter the garage by notifying security by entering the
building via 6th Avenue night entrance. Security will open the garage area and
escort you down and up to lobby level where you must sign in and leave your keys
at register. Same procedure must be followed when exiting the garage.
L-3
EXHIBIT M
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT BETWEEN
TENANT AND THE INDENTURE TRUSTEE
THIS AGREEMENT, made as of the _______ day of __________, 1995 by and
between NATIONSBANK OF TENNESSEE, N.A., a national banking corporation, having
an office at 1301 Gervais Street, Columbia, South Carolina 29201 (hereinafter
called "Mortgagee"), THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
a New York corporation, having an office at 787 Seventh Avenue, New York, New
York 10019 (hereinafter called "Tenant") and 1290 ASSOCIATES, a New York
partnership having an office c/o Olympia and York Companies (U.S.A.), 237 Park
Avenue, New York, New York 10019.
W I T N E S S E T H:
WHEREAS, Mortgagee is the trustee under that certain Mortgage Spreader and
Consolidation Agreement and Trust Indenture dated March 20, 1984 (said Mortgage
Spreader and Consolidation Agreement and Trust Indenture, as amended and
supplemented and as it may be amended, increased, renewed, modified,
consolidated, replaced, combined, substituted, severed, split, spread or
extended, being hereinafter referred to as the "Mortgage") between Manufacturers
Hanover Trust Company, predecessor-in-interest to Mortgagee, as trustee, and
certain mortgagors described therein which was recorded on March 20, 1984 in the
Office of the City Register, New York County in Reel 775, Page 1097, and which
encumbers, among other properties, the land and the building located at 1290
Avenue of the Americas, New York, New York (the "Property") and more
particularly described on Exhibit A annexed hereto,
WHEREAS, Tenant and 1290 Associates (together with any successor holder of
the Landlord's interest under the Lease, being hereinafter called "Landlord")
have entered into a certain agreement of lease dated as of _______________, 1995
(the "Lease") initially covering the eleventh through twenty-second floors (the
"Demised Premises") in the building forming a part of the Property,
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at all times
continue to be subordinate to the Mortgage. Tenant, upon request, shall execute
and deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that (i) Tenant is the owner and holder of the Tenant's
interest under the Lease, (ii) the Lease is presently in full force and effect
and unmodified, (iii) no rent or additional rent payable under the Lease has
been paid more than one (1) month in advance of its due date (it being expressly
agreed that any rent abatements, set-offs or deductions expressly provided for
in the Lease shall not be deemed an advance payment of rent or additional rent
under this Agreement), (iv) no default exists under the Lease, and (v) there are
no offsets or defenses as of the date hereof to the payment of the rents,
additional rents or other sums payable under the Lease.
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3. As long as no default exists under the Lease which has continued after
notice and beyond the expiration of any applicable grace period as and to the
extent provided in the Lease (and provided that nothing shall imply any right of
Tenant to further notice if Landlord has previously provided such notice),
Mortgagee shall not name Tenant as a party defendant to any action for
foreclosure or other enforcement of the Mortgage (unless required by law), nor
shall the Lease be terminated by Mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage, or by
reason of a transfer of the Landlord's interest under the Lease pursuant to the
taking of a deed in lieu of foreclosure (or similar device) whether in
connection with a bankruptcy proceeding or otherwise, nor shall Tenant's use or
possession of the Demised Premises be interfered with by Mortgagee (except to
the extent permitted under the Lease), except that the person acquiring, or
succeeding to, the interests of the Landlord in the Property as a result of any
such action or proceeding or taking of a deed in lieu of foreclosure (including,
without limitation, Mortgagee), and such person's successors and assigns (any of
the foregoing being hereinafter referred to as the "Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Tenant might
have against any prior Landlord, except that a Successor shall be subject to any
credits, offsets and defenses to which Tenant may be entitled pursuant to the
express provisions of the Lease; nor
(b) bound by any rent or additional rent which Tenant might have paid for
more than one (1) month in advance to any prior Landlord, unless such prepayment
shall have been made with Mortgagee's prior written consent; nor
(c) liable for any act or omission of any prior Landlord except as
expressly provided in this Agreement, it being understood that the foregoing is
not intended to (i) relieve a Successor of any liability arising by reason of
its acts or omissions from and after the date the Successor succeeds to the
rights of the prior Landlord, including a continuation of the failure of the
prior Landlord to perform its obligations under the Lease, in which case the
Successor upon receipt of notice of such continuation from Tenant shall have a
reasonable period of time to remedy same (it being agreed that to the extent a
time period is granted Landlord in the Lease for such remedy such time period
shall be deemed a reasonable period of time for purposes of this clause (i)), or
(ii) deny Tenant the benefit of any rent offset right, abatement or credit to
which Tenant is entitled under the Lease, subject to the express terms hereof.
Notwithstanding the foregoing, the Successor shall not be liable to Tenant for
any claim Tenant may have against a prior Landlord under the provisions of
Section 6.12 of the Lease (by way of example, the Successor shall not be liable
for any loss or damage to Tenant caused by the negligence of a prior Landlord or
its agents, servants, employees or contractors); nor
(d) bound by any covenant to undertake or complete any Landlord's Work with
respect to any Block of space or any Offer Space or the Lobby Renovation Work
(as such terms are defined in the Lease); provided however; that if the
Successor shall fail to complete any such work, then Tenant shall have the
following rights (which shall be the sole and exclusive remedies available to
Tenant for such failure): (i) in the case of the Successor's failure to complete
the Landlord's Work with respect to any Block of space Tenant shall, subject to
the terms hereof, have the rights described in Sections 1.03 and 10.01 of the
Lease, (ii) in the case of Successor's failure to complete the Landlord's Work
with respect to any Offer Space Tenant shall, subject to the terms hereof, have
the rights described in Sections 1.06 and 10.01 of the Lease, and (iii) in the
case of Successor's failure to complete the Lobby Renovation Work Tenant shall,
subject to the terms hereof, have the rights described in Section 8.21(c) of the
Lease. The Successor's failure to complete any such work shall not constitute a
default by the Successor under the Lease giving rise to any remedies other than
as expressly set forth in this paragraph (d); nor
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(e) be required to account for any security deposit other than any security
deposit actually delivered to the Successor; nor
(f) liable for any payment to Tenant of any sums or the granting to Tenant
of any credit in the nature of a contribution towards the cost of preparing,
furnishing or moving into the Demised Premises or any portion thereof, or
otherwise (except to the extent provided in paragraph (a) above), provided,
however, that the Successor shall be responsible to pay to Tenant any unpaid
portion of the Block A and B Allowance, the Block C Allowance and the Expansion
Allowance (as such terms are defined in the Lease and collectively referred to
herein as "Landlord's Contributions") as and when the same are due and payable
under the Lease; provided, further, however, that the sole and exclusive remedy
available to Tenant in the event the Successor shall fail to pay any or all of
the Landlord's Contributions shall be to exercise the set-off rights described
in Section 10.05 of the Lease and the Successor's failure to make any such
payment shall not constitute a default by the Successor under the Lease giving
rise to any remedies other than the set-off rights expressly set forth in such
Section 10.05. Notwithstanding the foregoing, Mortgagee shall have the right
(but not the obligation) if Landlord shall default in funding all or any portion
of the Landlord's Contributions to pay such amounts to Tenant; nor
(g) bound by any modification of the Lease made without the written consent
of Mortgagee, including without limitation any agreement by Tenant to surrender
the Lease. Mortgagee agrees not to unreasonably withhold, delay or condition its
consent to a modification of the Lease.
4. (a) If the interest of the Landlord under the Lease shall be transferred
by reason of foreclosure or other proceedings for enforcement of the Mortgage in
which Tenant has not been named as party defendant or pursuant to a taking of a
deed in lieu of foreclosure (or similar device) whether in connection with a
bankruptcy proceeding or otherwise, the Lease shall not be terminated or
affected thereby but shall continue in full force and effect as a direct lease
between the Successor and Tenant and Tenant shall be bound to the Successor,
and, except as expressly provided in this Agreement, the Successor shall be
bound to Tenant, under all of the terms, covenants and conditions of the Lease
for the balance of the term thereof remaining, with the same force and effect as
if the Successor were the Landlord, and Tenant does hereby (i) agree to attorn
to the Successor, including Mortgagee if it be the Successor, as its landlord,
(ii) affirm its obligations under the Lease, and (iii) agree to make payments of
all sums due under the Lease to the Successor, said attornment, affirmation and
agreement to be effective and self-operative without the execution of any
further instruments, upon the Successor succeeding to the interest of the
Landlord under the Lease, provided that if the Successor requests, without
implying any obligation to do so on the Successor's part, Tenant will confirm
the attornment described herein to the Successor in writing. Tenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any foreclosure or similar proceeding.
(b) Provided the Lease has not been previously cancelled or terminated, if
(i) Mortgagee or any other Successor shall acquire title to the Property upon
foreclosure in an action in which Mortgagee shall have been required to name
Tenant as a party defendant, and (ii) Tenant is not in default under the Lease
after notice and beyond the expiration of all applicable cure periods as and to
the extent provided in the Lease (and provided that nothing shall imply any
right of Tenant to further notice if Landlord has previously provided such
notice), then, in such event, Mortgagee or any other Successor (as the case may
be) shall enter into a new lease with Tenant upon the same terms and conditions
as were contained in the Lease, except that (x) the obligations and liabilities
of Mortgagee or other Successor (as the case may be) under any such new lease
shall be subject to the terms and conditions of this Agreement, and (y) the
expiration date of such new lease shall coincide with the original expiration
date of the Lease. Tenant shall execute any such new lease and shall attorn to
Mortgagee or the other Successor (as the case may be) so as to establish direct
privity between Mortgagee or such other Successor (as the case may be) and
Tenant.
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(c) If (i) Landlord, as debtor-in-possession, or any trustee appointed in a
bankruptcy case of Landlord, obtains an order of the Bankruptcy Court
authorizing the rejection of the Lease in accordance with ss.365 of the
Bankruptcy Code (as hereinafter defined), and Tenant elects to retain its rights
under the Lease in accordance with ss.365(h) of the Bankruptcy Code, (ii)
Mortgagee or any other Successor shall acquire title to the Property upon
foreclosure or by the acceptance of a deed in lieu thereof or by any other
means, and (iii) Tenant is not in default under the Lease after notice and
beyond the expiration of all applicable cure periods as and to the extent
provided in the Lease (and provided that nothing shall imply any right of Tenant
to further notice if Landlord has previously provided such notice) then, in such
event, Mortgagee or any other Successor (as the case may be) shall enter into a
new lease with Tenant upon the same terms and conditions as were contained in
the Lease, except that (x) the obligations and liabilities of Mortgagee or other
Successor (as the case may be) under any such new lease shall be subject to the
terms and conditions of this Agreement, and (y) the expiration date of such new
lease shall coincide with the original expiration date of the Lease. Tenant
shall execute any such new lease and shall attorn to Mortgagee or the other
Successor (as the case may be) so as to establish direct privity between
Mortgagee or such other Successor (as the case may be) and Tenant.
5. (a) Tenant shall notify Mortgagee of any default, breach or other
failure (a "Default") by Landlord under the Lease which would entitle Tenant to
cancel or terminate the Lease. If Landlord fails to cure any Default as to which
Tenant is obligated to give notice pursuant to the preceding sentence within the
time period, if any, provided for in the Lease and such Default is of a nature
which can be cured by the payment of money, then Mortgagee shall have an
additional 10 days within which to cure such Default after receipt of Tenant's
notice that Landlord has failed to cure same, and the Lease shall not be
cancelled or terminated unless Mortgagee shall have failed to cure such Default
(without implying any obligation to do so) prior to the expiration of such 10
day period.
(b) If (A) an Eviction shall occur causing a portion of the Demised
Premises constituting not less than 50,000 rentable square feet of Office Space
to become Untenantable (as such terms are defined in the Lease) and such
Eviction shall continue for the requisite number of days provided for in Section
10.03 of the Lease such that Tenant shall then be entitled to deliver a
termination notice under Section 10.03 of the Lease or (B) Tenant shall be
entitled to terminate the Lease by reason of an Eviction described in clause (i)
of Section 10.03(a) of the Lease, then in either such case, Tenant shall provide
Mortgagee notice of such event (the date of such notice being referred to as the
"Notice Date") and Tenant shall not exercise its right to terminate the Lease if
(x) (i) within 15 days after the Notice Date Mortgagee shall commence an action
seeking the appointment of a receiver, (ii) within 30 days after commencement of
such action such receiver has been appointed, and (iii) upon such appointment,
Mortgagee shall request such receiver to cure the Eviction and such receiver
shall thereafter diligently pursue the cure of the Eviction, or (y) Mortgagee,
within 15 days after the Notice Date, shall otherwise commence and thereafter
diligently pursue the actual cure of the Eviction (it being agreed for the
purposes hereof that taking steps to foreclose the Mortgage or to obtain
possession of the Property shall not be deemed to be a commencement of such
cure).
(c) The provisions of paragraphs (a) and (b) above are intended to be
applicable to Mortgagee prior to its becoming the Successor, and, from and after
the date on which Mortgagee shall become the Successor, Mortgagee's rights as
the Successor in the circumstances described in this paragraph 5 shall be
governed by the provisions of paragraph 3(c)(i) above such that Mortgagee, as
the Successor, shall have a reasonable period of time to remedy the matter in
question (taking into account the time which Mortgagee had available to it for
such purpose under this paragraph 5 prior to becoming the Successor).
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(d) Any termination of the Lease by Tenant pursuant to Section 10.03
without compliance with the applicable provisions of this paragraph 5 shall be
without force or effect and shall be void ab initio.
6. (a) If (i) Landlord shall fail to (x) furnish any of the services which
it is required to furnish pursuant to the Lease or (y) make any repair or
replacement which it is required to make under the Lease or (z) perform any
other obligation of the Landlord under the Lease, (ii) such failure results in a
material interference with Tenant's use and occupancy of the Demised Premises,
(iii) the curing of such condition would require work to be performed or
otherwise affect space in the Landlord Obligation Areas (as defined in the
Lease) or elsewhere outside of the Demised Premises, (iv) Tenant has obtained an
arbitrator's decision as provided in Section 8.09 of the Lease that such event
has occurred and is Landlord's responsibility to remedy, or Landlord, in bad
faith, fails to comply with the arbitration procedures set forth in the Lease
and Mortgagee fails to elect to participate in such arbitration proceeding
pursuant to paragraph (c) below, and (v) Landlord shall thereafter fail to act
diligently (subject to Force Majeure and Tenant Delay, as such terms are defined
in the Lease) to cure such condition and Tenant shall deliver to Mortgagee
notice of Landlord's continued failure (which notice shall reference this
paragraph 6(a) of this Agreement, shall state that the events described in
clauses (i) through (v) above have occurred and shall include Tenant's request
that Mortgagee take the hereinafter described actions), then (A) Mortgagee shall
as immediately as practicable commence an action seeking specific performance by
Landlord of the Landlord's obligations in question, and (B) if Landlord
continues to fail to perform such obligations (subject to Force Majeure and
Tenant Delay) notwithstanding a court order directing performance, then upon
Tenant's request Mortgagee shall as immediately as practicable commence and
diligently pursue an action for the appointment of a receiver for the Property
and, upon appointment of such receiver, Mortgagee shall request the court to
authorize and direct the receiver to perform the obligations which Landlord
shall have failed to perform. In the event that Mortgagee is unable to pursue
the actions described in clauses (A) and (B) above by reason of the commencement
by or against Landlord of a proceeding under the Bankruptcy Code, 11 U.S.C.
ss.101 et seq., as now in effect or as hereafter amended, or under the
provisions of any successor statute thereto (the "Bankruptcy Code"), Mortgagee
shall as immediately as practicable seek the relief in question from the
Bankruptcy Court or otherwise seek authorization from the Bankruptcy Court to
pursue such relief notwithstanding the commencement of such proceeding. Tenant
acknowledges that the determination of whether a matter constitutes a "material
interference with Tenant's use and occupancy of the Demised Premises" as
provided in clause (ii) above shall be without regard to the provisions of
Section 10.01(e) of the Lease which reflect Landlord's and Tenant's agreement as
to what constitutes a material portion of the Demised Premises. Notwithstanding
the foregoing, Mortgagee shall not be obligated to make rents and other income
from the Property available for the purpose of funding Landlord obligations to
be performed by the receiver under this paragraph 6 in excess of $4,500,000 in
any year, Mortgagee agreeing to make rents and other income from the Property
actually received by it up to $4,500,000 in any year available to the receiver
for such purpose. Tenant agrees that it shall not request Mortgagee to take the
actions described in clauses (A) and (B) above with respect to a particular
Landlord default if and to the extent Tenant shall have exercised its self-help
rights set forth in the Lease and thereby cured the Landlord's default, unless
such default is of a recurring nature and Tenant has delivered to Landlord and
Mortgagee a notice stating that Tenant no longer intends to exercise its
self-help rights with respect to such default. In addition, the provisions of
this paragraph 6(a) shall be applicable only to matters which give rise to
Tenant's right of self-help under Section 10.01(a) of the Lease and which
constitute a "material interference with the Tenant's use and occupancy of the
Demised Premises" and shall be inapplicable to matters which do not give rise to
any such right of self-help under Section 10.01(a) of the Lease or which do give
rise thereto but which do not constitute a "material interference with Tenant's
use and occupancy of the Demised Premises".
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(b) Subject to the provisions of this paragraph (b), Tenant's recourse
against Mortgagee for Mortgagee's failure to perform its obligations under this
paragraph 6 shall be limited to the interest of Mortgagee in the Property. For
purposes of this paragraph 6, the "interest of the Mortgagee" in the Property
shall be deemed to mean the rents and other income actually received by
Mortgagee from the Property after the payment of the costs of operating the
Property but prior to the payment of debt service. Mortgagee acknowledges that
the financial projections delivered by Landlord to Tenant reflect an anticipated
net operating deficit (prior to debt service) for the Property during calendar
year 1996. Mortgagee agrees that during calendar year 1996 only, Tenant shall
also have recourse against the "interest of Mortgagee" (as defined above) in 237
Park Avenue, New York, New York for Mortgagee's failure to perform its
obligations under this paragraph 6, provided that the requirements of this
sentence shall be of no further force or effect if Landlord or Mortgagee shall
(i) deliver to Tenant updated projections reflecting new or additional sources
of revenue (i.e., executed new leases or amendments to existing leases) or
documented reduction of expenses which eliminate the above-described deficit and
provide for projected net operating income for the Property for 1996 (or the
balance thereof) of not less than $4,500,000 (less any amount funded during 1996
under paragraph (a) above), or (ii) otherwise provide Tenant evidence of the
availability of not less than $4,500,000 (less any amount funded during 1996
under paragraph (a) above) to fund Mortgagee's agreements under this paragraph 6
for 1996. The foregoing provisions shall not limit Tenant's right to set-off
against the rents next coming due under the Lease any amounts payable under this
paragraph 6 in excess of the foregoing $4,500,000 limitation on the Mortgagee's
liability under this paragraph (as well as any other set-off) to the extent
Tenant elects to fund such excess costs pursuant to its self-help rights under
the Lease and such set-off is otherwise permitted under the terms of the Lease.
(c) Tenant's rights under this paragraph 6 are expressly conditioned upon
(i) Tenant delivering to Mortgagee copies of all notices delivered by Tenant
relating to the Landlord default which is the subject of Tenant's claim
concurrent with their delivery to Landlord, and (ii) Mortgagee being provided
the opportunity by Tenant to monitor and participate in any arbitration or other
proceeding related to the Landlord default. Tenant shall deliver to Mortgagee
concurrent with delivery to or receipt from Landlord or the arbitrators
determining any dispute, a copy of any submission, claim or pleading served by
or upon Tenant or delivered to or received from the arbitrators. Mortgagee shall
have the right to appear before and make presentations to the arbitrators
determining any dispute within the time periods provided in Section 8.09 of the
Lease.
(d) The provisions of this paragraph 6 shall terminate and be of no further
force or effect (except that the exculpatory provisions of paragraph (b) above
shall survive such termination) if (i) the ratio of (x) the projected net
operating income from the Property (calculated prior to debt service) for the
succeeding 24 month period to (y) the debt service projected to be payable under
the Mortgage for such period shall equal or exceed 1.25, or (ii) to the extent
that the Property remains cross-collateralized with 237 Park Avenue, the ratio
of (A) the projected net operating income from the Property and 237 Park Avenue
(calculated prior to debt service) for the succeeding 24 month period to (B) the
debt service projected to be payable under the Mortgage for such period shall
equal or exceed 1.25. For purposes of the foregoing, net operating income shall
include rental income only from signed leases for which the initial Landlord's
work or tenant work allowance has been funded or for which funds are available
and have been segregated, and projected debt service shall include projected
interest at the stated rate of accrual and the greater of actual scheduled
amortization or the amortization that would be payable during such period
assuming a 25 year self-liquidating amortization schedule.
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7. Notwithstanding anything to the contrary contained in this Agreement:
(a) In the event that a receiver, trustee or any other similar person or
entity acting in like capacity is appointed for the Property in any action or
proceeding, then provided the Lease has not been cancelled or terminated and for
so long as Tenant is not in default under the Lease after notice and beyond the
expiration of all applicable cure periods as and to the extent provided in the
Lease (and provided that nothing shall imply any right of Tenant to further
notice if Landlord has previously provided such notice), Mortgagee will neither
consent to nor cause or instruct such receiver, trustee or other similar person
or entity to (i) disturb Tenant in its possession of the Demised Premises
(except to the extent permitted under the Lease), (ii) diminish Tenant's rights
under the Lease, or (iii) terminate the Lease (except to the extent permitted
under the Lease). Without limiting the generality of the foregoing, Mortgagee
will file an objection to such receiver, trustee or other similar person or
entity taking any of the actions described in clauses (i) through (iii) above
provided Tenant shall deliver Mortgagee notice of same and will cooperate with
Tenant in its efforts to oppose and defeat such receiver, trustee or similar
person with respect to such actions.
(b) In the event that (i) Landlord becomes the subject of a bankruptcy case
under the provisions of the Bankruptcy Code, (ii) Landlord, as
debtor-in-possession, or any trustee approved in the bankruptcy case of
Landlord, seeks an order of the bankruptcy court or other court of competent
jurisdiction (the "Bankruptcy Court"), authorizing the rejection of the Lease,
then for so long as Tenant is not in default under the Lease after notice and
beyond the expiration of all applicable cure periods as and to the extent
provided in the Lease, Mortgagee will file an objection to such party's motion
seeking to reject the Lease;
(c) In the event that (i) Landlord, or a trustee in bankruptcy of the
Landlord obtains an order of the Bankruptcy Court authorizing the rejection of
the Lease in accordance with ss.365 of the Bankruptcy Code and Tenant elects to
retain its rights under the Lease in accordance with ss.365(h) of the Bankruptcy
Code, (ii) Mortgagee or any other Successor shall acquire possession and control
of the Property, and (iii) Tenant is not in default under the Lease after notice
and beyond the expiration of all applicable cure periods as and to the extent
provided in the Lease (and provided that nothing shall imply any right of Tenant
to further notice if Landlord has previously provided such notice) then, in such
event, Mortgagee or such other Successor (as the case may be) shall enter into a
new lease with the Tenant on the then executory terms of the original Lease, as
provided in this Agreement, if and to the extent that Mortgagee or such other
Successor has the legal right and power to do so; and
(d) Mortgagee acknowledges and agrees that (i) if Landlord, as
debtor-in-possession, or any trustee appointed in the bankruptcy case of the
Landlord, obtains an order of the Bankruptcy Court authorizing the rejection of
the Lease in accordance with ss.365 of the Bankruptcy Code, and (ii) Tenant
elects to retain its rights under the Lease in accordance with ss.365(h) of the
Bankruptcy Code, (x) the provisions of this Agreement shall continue to remain
in full force and effect, and (y) Tenant shall have all of Tenant's rights and
remedies provided under the Lease, including, without limitation, such right as
may be provided in the Lease to offset against any and all rents due and payable
by Tenant under the Lease, or under any new lease entered into pursuant to this
Agreement, any damages occurring after the date of rejection caused by the
non-performance of any obligation of Landlord under the Lease or any new lease
entered into pursuant to this Agreement. Tenant's right of offset provided for
in this paragraph (d) shall survive any transfer of the Property in foreclosure
or by deed in lieu of foreclosure and shall be binding upon Landlord, Mortgagee
or any other Successor.
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8. Provided Tenant is not in default under the Lease after notice and
beyond the expiration of applicable cure periods as and to the extent provided
in the Lease (and provided that nothing shall imply any right of Tenant to
further notice if Landlord has previously provided such notice) and the Lease
has not been cancelled or terminated, Mortgagee agrees that in the event
Landlord shall become the subject of a case under the Bankruptcy Code, (a)
Mortgagee shall consent to the use of cash collateral (as such term is defined
in Section 363(a) of the Bankruptcy Code) for the performance of the obligations
of the Landlord under the Lease, (b) Mortgagee shall consent to the inclusion in
any cash collateral order or stipulation of an assumption by Landlord of the
Lease under ss.365 of the Bankruptcy Code (without waiving the right of Trustee
to object to any other provision of any cash collateral order or committing
Trustee to agree to any other provision of a cash collateral stipulation), (c)
Mortgagee will file and pursue an objection to any rejection by Landlord of the
Lease, and (d) Mortgagee will file and pursue an objection to the confirmation
of any plan of reorganization of Landlord that provides for the rejection of the
Lease. The provisions of this Paragraph 8 shall be of no further force or effect
from and after the effective date of a plan of reorganization of Landlord which
has been confirmed and which provides for the assumption of the Lease.
9. Mortgagee agrees that, provided Tenant is not then in default under this
Agreement or the Lease after notice and beyond the expiration of applicable
grace periods as and to the extent provided under the Lease (and provided that
nothing shall imply any right of Tenant to further notice if Landlord has
previously provided such notice), with respect to any sublease (other than a
sublease to an affiliate of Tenant pursuant to Sections 5.01(c) or (e) of the
Lease or otherwise) and which (a) is not for less than 20,000 rentable square
feet of Office Space, (b) consists of either (x) not less than 100,000 rentable
square feet of Office Space or (y) contiguous space which includes the highest
or lowest floor then comprising the Office Space or is contiguous to another
floor substantially all of which has been sublet by Tenant and with respect to
which Mortgagee has executed and delivered one or more non-disturbance and
attornment agreements hereunder with respect to substantially all of such floor,
(c) provides for a rental which, after taking into account any free rent
periods, credits, offsets or deductions to which the subtenant may be entitled
thereunder, is equal to or in excess (on a per rentable square foot basis) of
the Fixed Rent and recurring Additional Charges (as such terms and defined in
the Lease) payable by Tenant under the Lease with respect to such space from
time to time throughout the term of the Lease (or if less (on a per rentable
square foot basis) than the Fixed Rent and recurring Additional Charges payable
by Tenant under the Lease, if such subtenant agrees, in the non-disturbance and
attornment agreement hereinafter referred to, that such rental will
automatically and without condition become so equal, if, as and when the
attornment provided for in such non-disturbance and attornment agreement becomes
effective between Mortgagee and the subtenant following the termination of the
Lease), (d) consists of space that will be demised separately from the remainder
of the Premises in accordance with all applicable laws and (e) provides for
other obligations of the subtenant at least substantially identical to the
obligations of Tenant under the Lease (but in compliance, to the extent
applicable, with Section 8.24 of the Lease), Mortgagee shall, at Tenant's
request, execute and deliver to such subtenant a non-disturbance and attornment
agreement substantially in the form attached to this Agreement as Exhibit B
provided and upon condition that (i) Tenant has furnished to Mortgagee's
reasonably satisfactory evidence that the subtenant has a financial worth
sufficient to timely fulfill its obligations under such sublease as a primary
tenant (and not as a subtenant), including any increase in such financial
obligations which may become effective as provided above, (ii) the sublease is
in a form reasonably satisfactory to Mortgagee, and (iii) the subtenant executes
and delivers to Landlord such non-disturbance and attornment agreement. Any
dispute as to the creditworthiness of a prospective subtenant may be submitted
to determination by arbitration in the manner provided in Section 8.09 of the
Lease as if such provisions were set forth herein and "Mortgagee" were
substituted for "Landlord" therein, and any such determination shall be binding
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upon Mortgagee and Tenant. Notwithstanding anything to the contrary set forth in
this paragraph 9, any non-disturbance and attornment agreement delivered by
Mortgagee pursuant to this paragraph 9 shall be conditional and by its terms
expressly contain the condition such that, in the event of any termination of
the Lease other than by reason of Tenant's default (e.g., by reason of a
casualty), then any non-disturbance and attornment agreement to a subtenant
shall, automatically and without further act of the parties, terminate and be of
no further force or effect from and after the applicable termination date;
provided, that if (A) the Lease is terminated with respect to less than all of
the Demised Premises, or (B) Tenant pursuant to Article 9 of the Lease exercises
the Renewal Option (as defined therein) with respect to less than all of the
Demised Premises, only such non-disturbance and attornment agreements to
subtenants who sublease any of such space with respect to which the Lease is
terminated or not renewed, as the case may be, shall automatically and without
further act of the parties, terminate and be of no further force or effect from
and after the applicable termination date or the day preceding the commencement
of the Renewal Term, as the case may be. In addition, to the extent any such
non-disturbance and attornment agreement relates to a subtenant which is a
partnership, such agreement shall provide that no provision of such sublease
providing in substance for the exculpation from personal liability of the
partners of such partnership shall be binding on Mortgagee or any other
Successor unless such subtenant shall, on the date the attornment provided in
such non-disturbance and attornment agreement becomes effective between
Mortgagee and such subtenant, post with Mortgagee or such other Successor as
security for such subtenant's obligations under its sublease, cash or a clean,
unconditional and irrevocable letter of credit (in form and from a bank
reasonably satisfactory to Mortgagee) in either case in an amount equal to the
annual fixed rent and recurring charges (without regard to any abatement,
credits or offsets) payable at such time (such security to be increased from
time to time to reflect increases in such fixed rent and recurring charges) by
such subtenant to Mortgagee, unless such cash or letter of credit was previously
delivered to Landlord in accordance with the provisions of the Lease.
10. Tenant shall deliver to Mortgagee copies of all notices under the Lease
concurrent with delivery to or receipt from Landlord (including, without
limitation, default notices, notices establishing delivery and commencement
dates and notices commencing arbitration proceedings but excluding routine
operational notices such as requests for overtime services). No notice shall be
effective as to Mortgagee unless properly served upon Mortgagee in the manner
provided herein.
M-9
11. This Agreement may not be modified except by an agreement in writing
signed by Tenant and Mortgagee or their respective successors in interest. In
addition, any modification of this Agreement which would adversely affect
Landlord shall require the consent of Landlord. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, their respective heirs,
representatives, successors and assigns including, without limitation, with
respect to Mortgagee, the grantee under a deed in lieu of foreclosure and/or the
purchaser of the Demised Premises at a foreclosure sale or at any sale of the
Demised Premises following the granting of a deed in lieu of foreclosure or
following foreclosure.
12. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Mortgage except as specifically set forth herein.
13. Landlord, Tenant and Mortgagee agree that this Agreement satisfies any
condition or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Mortgagee and Tenant further agree that
in the event there is any inconsistency between the terms and provisions hereof
and the terms and provisions of the Lease dealing with non-disturbance by
Mortgagee or the provisions of the Mortgage referred to in Section 6.01(b) of
the Lease (as they relate to Tenant's rights and obligations), the terms and
provisions hereof shall be controlling.
14. All notices, demands, consents, approvals, advices, waivers or other
communications (each, a "Notice") which may or are required to be given by
either party to the other under this Agreement shall be in writing and, unless
otherwise required by law, shall be sent (a) by hand, (b) by United States Mail,
certified or registered, postage prepaid, return receipt requested or (c) by a
nationally-recognized overnight carrier, in each case addressed to the party to
be notified at the address for such party specified in the first paragraph of
this Agreement (in the case of any Notice to Tenant, to the attention of the
Vice President, Facilities, and in the case of any Notice to Mortgagee, to the
attention of John S. Hiott, Vice President), or to such other place in the
continental United States as the party to be notified may from time to time
designate by at least 20 days' notice to the notifying party (with copy, in the
case of each Notice to Mortgagee, to Kelley Drye & Warren, 101 Park Avenue, 30th
floor, New York, New York 10178, Attention: David Retter, Esq., and in the case
of each Notice to Tenant, to the attention of the General Counsel, at the
address for Tenant specified in the first paragraph of this Agreement). Each
Notice shall be deemed to have been given on the date such Notice is actually
received as evidenced by a written receipt therefor, and in the event of failure
to deliver by reason of changed address of which no Notice was given or refusal
to accept delivery, as of the date of such failure. Tenant shall also deliver a
copy of any Notice provided to Mortgagee under paragraphs 5 and 6 hereof to
Landlord at the address and in the manner provided in the Lease, excluding
Notices which Tenant shall previously or concurrently have delivered to or
received from Landlord.
15. Notwithstanding anything to the contrary contained herein, Tenant
acknowledges and agrees that the provisions of paragraph (3)(c) set forth in
Section 6.01(b) of the Lease shall be effective and run to the benefit of any
Successor, including Mortgagee. Notwithstanding anything to the contrary
contained herein, Mortgagee acknowledges and agrees that the provisions of
paragraph (3)(d) set forth in Section 6.01(b) of the Lease shall be deemed null
and void and of no effect as against Tenant.
16. This Agreement shall be governed by the laws of the State of New York.
If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
to be an original and all of which taken together, will be deemed to be one and
the same instrument.
M-10
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be duly executed as of the day and year first above written.
Mortgagee
NATIONSBANK OF TENNESSEE, N.A.
By:___________________________
Name:
Title:
Tenant
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By:____________________________
Name:
Title:
Landlord
1290 ASSOCIATES
By: O&Y Management Corp., As Agent
By:____________________________
Name:
Title:
M-11
STATE OF )
) ss.:
COUNTY OF )
On this ____ day of __________, 1995, before me personally came
____________________________________ to me known, who being by me duly sworn,
did say that he resides at _____________________________, that he is
_____________________ of NationsBank of Tennessee, N.A., the corporation
described in and which executed the foregoing instrument as Mortgagee by order
of the board of directors of said corporation; and that he signed his name
thereto be like order.
----------------------------
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On this ____ day of __________, 1995, before me personally came
_____________________________ to me known, who being by me duly sworn, did say
that he resides at ___________ _____________________________ that (s)he is
_____________________________ of The Equitable Life Assurance Society of the
United States, the corporation described in and which executed the foregoing
instrument as Tenant by order of the board of directors of said corporation; and
that (s)he signed his name thereto be like order.
----------------------------
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On this ____ day of __________, 1995, before me personally came
_____________________________ to me known, who being by me duly sworn, did say
that he resides at ___________ _____________________________ that (s)he is
_____________________________ of O&Y Management Corp., the corporation described
in and which executed the foregoing instrument as Agent for 1290 Associates by
order of the board of directors of said corporation; and that (s)he signed his
name thereto be like order.
----------------------------
Notary Public
M-12
EXHIBIT B - to Exhibit M
FORM OF SUBTENANT
NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the _______ day of ___________, _____ by and
between NATIONSBANK OF TENNESSEE, N.A., a national banking corporation, having
an office at 1301 Gervais Street, Columbia, South Carolina 29201 (1)
(hereinafter called "Mortgagee"), ______________, a _________________, having an
office at ___________________________________ (hereinafter called "Subtenant"),
and THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York
corporation, having an office at 787 Seventh Avenue, New York, New York 10019
(hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the trustee under that certain Mortgage Spreader and
Consolidation Agreement and Trust Indenture dated March 20, 1984 (said Mortgage
Spreader and Consolidation Agreement and Trust Indenture, as amended and
supplemented and as it may be amended, increased, renewed, modified,
consolidated, replaced, combined, substituted, severed, split, spread or
extended, being hereinafter referred to as the "Mortgage") between Manufacturers
Hanover Trust Company, predecessor-in-interest to Mortgagee, as trustee, and
certain mortgagors described therein which was recorded on March 20, 1984 in the
Office of the City Register, New York County in Reel 775, Page 1097, and which
encumbers, among other properties, the land and the building located at 1290
Avenue of the Americas, New York, New York (the "Property"),
WHEREAS, Tenant has entered into a certain agreement of lease dated as of
July __, 1995 (the "Overlease") covering, inter alia, __________________________
(the "Sublet Premises") in the building forming a part of the Property,
WHEREAS, Subtenant has entered into a certain agreement of sublease dated
as of ___________, ____ with Tenant (the "Sublease") covering Sublet Premises,
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Subtenant covenants and agrees that the Sublease now is and shall at all
times continue to be subject and subordinate in each and every respect to the
Mortgage. Subtenant, upon request, shall execute and deliver any certificate or
other instrument which the Mortgagee may reasonably request to confirm said
subordination by Subtenant.
2. Subtenant certifies that (i) Subtenant is the owner and holder of the
Subtenant's interest under the Sublease, (ii) the Sublease is presently in full
force and effect and unmodified, (iii) no rent or additional rent payable under
the Sublease has been paid more than one (1) month in advance of its due date,
(iv) no default exists under the Sublease, and (v) there are no offsets or
defenses as of the date hereof to the payment of the rents, additional rents or
other sums payable under the Sublease.
(1) If the identity of the Trustee changes, this agreement must be
appropriately modified.
M-13
3. As long as no default exists under the Sublease which has continued
after notice and beyond the expiration of any applicable grace period as and to
the extent provided in the Sublease (and provided that nothing shall imply any
right of Subtenant to further notice if Tenant or the Landlord (as defined
below) has previously provided such notice) and subject to the provisions of
paragraph 5 below, Mortgagee shall not name Subtenant as a party defendant to
any action for foreclosure or other enforcement of the Mortgage (unless required
by law), nor shall the Sublease be terminated by Mortgagee in connection with,
or by reason of, foreclosure or other proceedings for the enforcement of the
Mortgage, or by reason of a transfer of the landlord's interest under the
Overlease pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Subtenant's use or possession of the Sublet Premises be
interfered with by Mortgagee, unless the Tenant or 1290 Associates or any
successor owner of the Property (the "Landlord") would have had such right if
the Mortgage had not been granted, except that the person acquiring or
succeeding by or through Mortgagee to the interests of the Landlord under the
Overlease as a result of any such action or proceeding (including Mortgagee
should it acquire or succeed to such interests), and such person's successors
and assigns (any of the foregoing being hereinafter referred to as the
"Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Subtenant
might have against any prior sublessor or landlord; nor
(b) bound by any rent or additional rent which Subtenant might have paid
for more than one month in advance to any prior sublessor or landlord, unless
such prepayment shall have been made with Mortgagee's prior written consent; nor
(c) liable for any act or omission of any prior sublessor or landlord; nor
(d) bound by any covenant to undertake or complete any improvement to the
Sublet Premises or the building forming a part of the Property; nor
(e) required to account for any security deposit other than any security
deposit actually delivered to the Successor; nor
(f) liable for any payment to Tenant of any sums, or the granting to Tenant
of any credit, in the nature of a contribution towards the cost of preparing,
furnishing or moving into the Demised Premises or any portion thereof; nor
(g) bound by any modification of the Sublease which results in the Sublease
no longer conforming to the parameters set forth in the Overlease for the
granting by Landlord of a non-disturbance agreement to a subtenant made without
the written consent of Mortgagee.
4. If the interest of the Landlord in the Property shall be transferred by
reason of foreclosure or other proceedings for enforcement of the Mortgage or
pursuant to a taking of a deed in lieu of foreclosure (or similar device) and
the Overlease shall have previously terminated (and the Sublease shall have
become a direct lease between Subtenant and Landlord pursuant to a
non-disturbance and attornment agreement between such parties) or shall be
terminated concurrent with or subsequent to such foreclosure, other enforcement
proceeding or taking, then subject to the provisions of paragraph 5 below,
Subtenant shall be bound to the Successor, and, except as provided in this
Agreement, the Successor shall be bound to Subtenant, under all of the terms,
covenants and conditions of the Sublease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Tenant
under the Sublease, and Subtenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its landlord, (ii)
affirm its obligations under the Sublease (subject to the provisions of
paragraph 5 below), and (iii) agree to make payments of all sums due under the
Sublease (as same may be adjusted pursuant to the terms of paragraph 5 below) to
the Successor, said attornment, affirmation and agreement to be effective and
self-operative without the execution of any further instruments, upon the
Successor succeeding to the interest of the Tenant under the Sublease, provided
that if the Successor requests, without implying any obligation to do so on the
Successor's part, Subtenant will confirm the attornment described herein to the
Successor in writing. Subtenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it any right or
election to terminate or otherwise adversely affect the Sublease or the
obligations of Subtenant thereunder by reason of any foreclosure of similar
proceeding.
M-14
5. (a) Subtenant agrees that to the extent the Sublease provides for a
rental which, after taking into account any free rent periods, credits, offsets
or deductions to which the Subtenant may be entitled thereunder, is less (on a
per rentable square foot basis) than the Fixed Rent and recurring Additional
Charges (as such terms are defined in the Overlease) payable by Tenant under the
Overlease with respect to the Sublet Premises (the "Overlease Rent") from time
to time throughout the term of the Sublease, Subtenant agrees that the rental
payable under the Sublease will automatically and without condition become equal
to the Overlease Rent, if, as and when the attornment provided for herein
becomes effective between Mortgagee or any other Successor and the Subtenant.
Subtenant further agrees that the Sublease shall at all times comply with the
provisions of Section 8.24 of the Overlease.
[(b) In addition, Subtenant agrees that no provision of the Sublease
providing in substance for the exculpation from personal liability of the
partners of Subtenant shall be binding on Mortgagee or any other Successor
unless Subtenant shall, on the date the attornment provided herein becomes
effective between Mortgagee or any other Successor and Subtenant, post with
Mortgagee or such Successor as security for Subtenant's obligations under the
Sublease, cash or a clean, unconditional and irrevocable letter of credit (in
M-15
form and from a bank reasonably satisfactory to Mortgagee or such Successor) in
either case in an amount equal to the annual fixed rent and recurring charges
(without regard to any abatements, credits or offsets) payable at such time
(such security to be increased from time to time to reflect increases in such
fixed rent and recurring charges) by Subtenant to Mortgagee or such other
Successor as same may be modified in accordance with the terms of paragraph (a)
above, unless such cash or letter of credit was previously delivered to Landlord
in accordance with the provisions of the Overlease.]2
(c) Notwithstanding anything to the contrary set forth in this Agreement,
the agreements of the Mortgagee hereunder (on behalf of itself and any other
Successor) shall be effective only in the event the cause of termination of the
Overlease is the default of Tenant thereunder and if the Overlease is cancelled,
terminated or expires (in whole or in part but including the Sublet Premises)
for any other reason (e.g., by reason of a casualty or condemnation or the
exercise by Tenant of any termination or cancellation right or remedy provided
in the Overlease, at law or in equity or by reason of Tenant's failure to
exercise the Renewal Option (as defined in the Overlease)), then this Agreement
shall, automatically and without further act of the parties, terminate and be of
no further force or effect from and after the applicable termination date of the
Overlease (or portion thereof) or the day preceding the commencement of the
Renewal Term (as defined in the Overlease), as the case may be.
6. In the event the Overlease is terminated and Subtenant becomes a direct
tenant of Landlord pursuant to the terms of a non-disturbance and attornment
agreement between such parties, Subtenant shall notify Mortgagee of any default
by Landlord under the Sublease which would entitle Subtenant to cancel the
Sublease or abate the rents, additional rents or other sums payable thereunder
or to exercise any self-help or set-off rights thereunder. If Landlord fails to
cure any default as to which Subtenant is obligated to give notice pursuant to
the preceding sentence within the time provided for in the Sublease, Subtenant
shall provide Mortgagee notice of such occurrence and Mortgagee shall then have
an additional 30 days after receipt of such notice within which to cure such
default or if such default cannot be cured within that time, then such
additional time as may be necessary if, within such 30 days, Mortgagee shall
give Subtenant notice of its intention to diligently pursue the remedies
necessary to cure such default (including, without limitation, commencement of
foreclosure proceedings or eviction proceedings if necessary to effect such
cure) and thereafter does diligently pursue such remedies and cure, in which
event the Sublease shall not be terminated and Subtenant shall not exercise any
other rights or remedies under the Sublease or otherwise while such remedies are
being so diligently pursued by Mortgagee, other than Subtenant's right, subject
to Section 8.24 of the Overlease, to (a) any abatement, deduction, counterclaim
or setoff of any rent or additional rent expressly set forth in the Sublease, or
(b) self-help in accordance with the express provisions of the Sublease, or (c)
terminate the Sublease in accordance with the provisions thereof in connection
with a casualty or condemnation affecting the Sublet Premises or the Property.
For purposes hereof, the term Sublease shall include any successor direct lease
between Subtenant and Landlord.
2 To be deleted if Subtenant is not a partnership.
M-16
7. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors in interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, their
respective heirs, representatives, successors and assigns.
8. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Mortgage except as specifically set forth herein.
9. Subtenant agrees that in the event there is any inconsistency between
the terms and provisions hereof and the terms and provisions of the Sublease
dealing with non-disturbance by Mortgagee or the provisions of the Mortgage
referred to in Section 6.01(b) of the Lease (as they relate to Tenant's rights
and obligations), the terms and provisions hereof shall be controlling.
10. All notices, demands or requests made pursuant to, under, or by virtue
of the Sublease or this Agreement must be in writing and mailed to the party
whom the notice, demand or request is being made by certified or registered
mail, return receipt requested, at its address set forth above (in the case of
any Notice to Mortgagee, to the attention of John S. Hiott, Vice President). Any
party may change the place that notices and demands are to be sent by written
notice delivered in accordance with this Agreement.
11. Notwithstanding anything to the contrary contained herein, Subtenant
acknowledges and agrees that the provisions of paragraph (3)(c) set forth in
Section 6.01(b) of the Lease shall be effective and run to the benefit of
Mortgagee or any other Successor.
12. This Agreement shall be governed by the laws of the State of New York.
If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
to be an original and all of which taken together, will be deemed to be one and
the same instrument.
13. Tenant is executing this Agreement for the purpose of confirming that
this Agreement satisfies any condition or requirement in the Overlease or the
Subordination, Non-Disturbance and Attornment Agreement dated ____________, 1995
between Tenant and Mortgagee relating to the granting of a non-disturbance
agreement by Mortgagee to a subtenant of Tenant.
M-17
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be duly executed as of the day and year first above written.
Mortgagee
NATIONSBANK OF TENNESSEE, N.A.
By:_______________________________
Name:
Title:
Subtenant
[--------------------------------]
By:_______________________________
Name:
Title:
Tenant
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By:_______________________________
Name:
Title:
[ADD NOTARY FORMS]
1 If the identity of the Trustee changes, this agreement must be
appropriately modified.
M-18
EXHIBIT N
[INTENTIONALLY OMITTED FROM ORIGINAL DOCUMENT]
N-1
EXHIBIT O
FORM OF NON-DISTURBANCE AND
ATTORNMENT AGREEMENT FOR SUPERIOR MORTGAGES
THIS AGREEMENT, made as of the _______ day of __________, _____ by and
between __________________________, a _________________, having an office at
________________________________ (hereinafter called "Mortgagee"), THE EQUITABLE
LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation, having an
office at 787 Seventh Avenue, New York, New York 10019 (hereinafter called
"Tenant") and 1290 ASSOCIATES, a New York partnership having an office c/o
Olympia and York Companies (U.S.A.), 237 Park Avenue, New York, New York 10019.
W I T N E S S E T H:
WHEREAS, Mortgagee is the ______ under that certain ____________________
______________________________________ (the "Mortgage") between ______________
___________________________________, as lender, and ________________, as
borrower, which was recorded on ________, ____ in the Office of the City
Register, New York County in Reel ___, Page ____, and which encumbers the land
and the building located at 1290 Avenue of the Americas, New York, New York (the
"Property") and more particularly described on Exhibit A annexed hereto,
WHEREAS, Tenant and 1290 Associates (together with any successor holder of
the Landlord's interest under the Lease, being hereinafter called "Landlord")
have entered into a certain agreement of lease dated as of July ___, 1995 (the
"Lease") initially covering the eleventh through twenty-second floors (the
"Demised Premises") in the building forming a part of the Property,
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at all times
continue to be subordinate to the Mortgage. Tenant, upon request, shall execute
and deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that (i) Tenant is the owner and holder of the Tenant's
interest under the Lease, (ii) the Lease is presently in full force and effect
and unmodified, (iii) no rent or additional rent payable under the Lease has
been paid more than one (1) month in advance of its due date (it being expressly
agreed that any rent abatements, set-offs or deductions expressly provided for
in the Lease shall not be deemed an advance payment of rent or additional rent
under this Agreement), (iv) no default exists under the Lease, and (v) there are
no offsets or defenses as of the date hereof to the payment of the rents,
additional rents or other sums payable under the Lease.
O-1
3. As long as no default exists under the Lease which has continued after
notice and beyond the expiration of any applicable grace period as and to the
extent provided in the Lease (and provided that nothing shall imply any right of
Tenant to further notice if Landlord has previously provided such notice),
Mortgagee shall not name Tenant as a party defendant to any action for
foreclosure or other enforcement of the Mortgage (unless required by law), nor
shall the Lease be terminated by Mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage, or by
reason of a transfer of the Landlord's interest under the Lease pursuant to the
taking of a deed in lieu of foreclosure (or similar device) whether in
connection with a bankruptcy proceeding or otherwise, nor shall Tenant's use or
possession of the Demised Premises be interfered with by Mortgagee (except to
the extent permitted under the Lease), except that the person acquiring, or
succeeding to, the interests of the Landlord in the Property as a result of any
such action or proceeding or taking of a deed in lieu of foreclosure (including,
without limitation, Mortgagee), and such person's successors and assigns (any of
the foregoing being hereinafter referred to as the "Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Tenant might
have against any prior Landlord, except that a Successor shall be subject to any
credits, offsets and defenses to which Tenant may be entitled pursuant to the
express provisions of the Lease; nor
(b) bound by any rent or additional rent which Tenant might have paid for
more than one (1) month in advance to any prior Landlord, unless such prepayment
shall have been made with Mortgagee's prior written consent; nor
(c) liable for any act or omission of any prior Landlord except as
expressly provided in this Agreement, it being understood that the foregoing is
not intended to (i) relieve a Successor of any liability arising by reason of
its acts or omissions from and after the date the Successor succeeds to the
rights of the prior Landlord, including a continuation of the failure of the
prior Landlord to perform its obligations under the Lease, in which case the
Successor upon receipt of notice of such continuation from Tenant shall have a
reasonable period of time to remedy same (it being agreed that to the extent a
time period is granted Landlord in the Lease for such remedy such time period
shall be deemed a reasonable period of time for purposes of this clause (i)), or
(ii) deny Tenant the benefit of any rent offset right, abatement or credit to
which Tenant is entitled under the Lease, subject to the express terms hereof.
Notwithstanding the foregoing, the Successor shall not be liable to Tenant for
any claim Tenant may have against a prior Landlord under the provisions of
Section 6.12 of the Lease (by way of example, the Successor shall not be liable
for any loss or damage to Tenant caused by the negligence of a prior Landlord or
its agents, servants, employees or contractors); nor
(d) bound by any covenant to undertake or complete any Landlord's Work with
respect to any Block of space or any Offer Space or the Lobby Renovation Work
(as such terms are defined in the Lease); provided however; that if the
Successor shall fail to complete any such work, then Tenant shall have the
following rights (which shall be the sole and exclusive remedies available to
Tenant for such failure): (i) [OMIT IF NO LONGER APPLICABLE: in the case of the
Successor's failure to complete the Landlord's Work with respect to any Block of
space Tenant shall, subject to the terms hereof, have the rights described in
Sections 1.03 and 10.01 of the Lease, (ii)] in the case of Successor's failure
to complete the Landlord's Work with respect to any Offer Space Tenant shall,
subject to the terms hereof, have the rights described in Sections 1.06 and
10.01 of the Lease [OMIT IF NO LONGER APPLICABLE: and (iii) in the case of
Successor's failure to complete the Lobby Renovation Work Tenant shall, subject
to the terms hereof, have the rights described in Section 8.21(c) of the Lease.]
The Successor's failure to complete any such work shall not constitute a default
by the Successor under the Lease giving rise to any remedies other than as
expressly set forth in this paragraph (d); nor
O-2
(e) be required to account for any security deposit other than any security
deposit actually delivered to the Successor; nor
(f) liable for any payment to Tenant of any sums or the granting to Tenant
of any credit in the nature of a contribution towards the cost of preparing,
furnishing or moving into the Demised Premises or any portion thereof, or
otherwise (except to the extent provided in paragraph (a) above), provided,
however, that the Successor shall be responsible to pay to Tenant any unpaid
portion of the [OMIT ANY THAT ARE NO LONGER APPLICABLE: Block A and B Allowance,
the Block C Allowance and] the Expansion Allowance (as such terms are defined in
the Lease and collectively referred to herein as "Landlord's Contributions") as
and when the same are due and payable under the Lease; provided, further,
however, that the sole and exclusive remedy available to Tenant in the event the
Successor shall fail to pay any or all of the Landlord's Contributions shall be
to exercise the set-off rights described in Section 10.05 of the Lease and the
Successor's failure to make any such payment shall not constitute a default by
the Successor under the Lease giving rise to any remedies other than the set-off
rights expressly set forth in such Section 10.05. Notwithstanding the foregoing,
Mortgagee shall have the right (but not the obligation) if Landlord shall
default in funding all or any portion of the Landlord's Contributions to pay
such amounts to Tenant; nor
(g) bound by any modification of the Lease made without the written consent
of Mortgagee, including without limitation any agreement by Tenant to surrender
the Lease. Mortgagee agrees not to unreasonably withhold, delay or condition its
consent to a modification of the Lease.
4. (a) If the interest of the Landlord under the Lease shall be transferred
by reason of foreclosure or other proceedings for enforcement of the Mortgage in
which Tenant has not been named as party defendant or pursuant to a taking of a
deed in lieu of foreclosure (or similar device) whether in connection with a
bankruptcy proceeding or otherwise, the Lease shall not be terminated or
affected thereby but shall continue in full force and effect as a direct lease
between the Successor and Tenant and Tenant shall be bound to the Successor,
and, except as expressly provided in this Agreement, the Successor shall be
bound to Tenant, under all of the terms, covenants and conditions of the Lease
for the balance of the term thereof remaining, with the same force and effect as
if the Successor were the Landlord, and Tenant does hereby (i) agree to attorn
to the Successor, including Mortgagee if it be the Successor, as its landlord,
(ii) affirm its obligations under the Lease, and (iii) agree to make payments of
all sums due under the Lease to the Successor, said attornment, affirmation and
agreement to be effective and self-operative without the execution of any
further instruments, upon the Successor succeeding to the interest of the
Landlord under the Lease, provided that if the Successor requests, without
implying any obligation to do so on the Successor's part, Tenant will confirm
the attornment described herein to the Successor in writing. Tenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any foreclosure or similar proceeding.
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(b) Provided the Lease has not been previously cancelled or terminated, if
(i) Mortgagee or any other Successor shall acquire title to the Property upon
foreclosure in an action in which Mortgagee shall have been required to name
Tenant as a party defendant, and (ii) Tenant is not in default under the Lease
after notice and beyond the expiration of all applicable cure periods as and to
the extent provided in the Lease (and provided that nothing shall imply any
right of Tenant to further notice if Landlord has previously provided such
notice), then, in such event, Mortgagee or any other Successor (as the case may
be) shall enter into a new lease with Tenant upon the same terms and conditions
as were contained in the Lease, except that (x) the obligations and liabilities
of Mortgagee or other Successor (as the case may be) under any such new lease
shall be subject to the terms and conditions of this Agreement, and (y) the
expiration date of such new lease shall coincide with the original expiration
date of the Lease. Tenant shall execute any such new lease and shall attorn to
Mortgagee or the other Successor (as the case may be) so as to establish direct
privity between Mortgagee or such other Successor (as the case may be) and
Tenant.
(c) If (i) Landlord, as debtor-in-possession, or any trustee appointed in a
bankruptcy case of Landlord, obtains an order of the Bankruptcy Court
authorizing the rejection of the Lease in accordance with ss.365 of the
Bankruptcy Code (as hereinafter defined), and Tenant elects to retain its rights
under the Lease in accordance with ss.365(h) of the Bankruptcy Code, (ii)
Mortgagee or any other Successor shall acquire title to the Property upon
foreclosure or by the acceptance of a deed in lieu thereof or by any other
means, and (iii) Tenant is not in default under the Lease after notice and
beyond the expiration of all applicable cure periods as and to the extent
provided in the Lease (and provided that nothing shall imply any right of Tenant
to further notice if Landlord has previously provided such notice) then, in such
event, Mortgagee or any other Successor (as the case may be) shall enter into a
new lease with Tenant upon the same terms and conditions as were contained in
the Lease, except that (x) the obligations and liabilities of Mortgagee or other
Successor (as the case may be) under any such new lease shall be subject to the
terms and conditions of this Agreement, and (y) the expiration date of such new
lease shall coincide with the original expiration date of the Lease. Tenant
shall execute any such new lease and shall attorn to Mortgagee or the other
Successor (as the case may be) so as to establish direct privity between
Mortgagee or such other Successor (as the case may be) and Tenant.
5. Tenant shall notify Mortgagee of any default by Landlord under the Lease
or any other circumstance which would entitle Tenant to cancel or terminate the
Lease. If Landlord fails to cure any default as to which Tenant is obligated to
give notice pursuant to the preceding sentence within the time provided for in
the Lease (or if no such period of time is provided in the Lease, within a
reasonable period of time), then Mortgagee shall have an additional 30 days
after receipt of such notice within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if, within such 30 days, Mortgagee has commenced and is diligently
pursuing the remedies necessary to cure such default (including, without
limitation, commencement of foreclosure proceedings or eviction proceedings, if
necessary to effect such cure), in which event the Lease shall not be terminated
and Tenant shall not exercise any other rights or remedies under the Lease or
otherwise while such remedies are being so diligently pursued, other than
Tenant's right to (a) any abatement, deduction, counterclaim or setoff of any
rent or additional rent expressly set forth in this Lease, (b) self-help in
accordance with Section 10.01 or (c) terminate the Lease pursuant to and in
accordance with Section 7.04 or Section 7.05 of the Lease. Nothing herein shall
be deemed to imply that Tenant has any right to terminate the Lease or any other
right or remedy, except as may be otherwise expressly provided for in the Lease.
6. Mortgagee agrees that, provided Tenant is not then in default under this
Agreement or the Lease after notice and beyond the expiration of applicable
grace periods as and to the extent provided under the Lease (and provided that
nothing shall imply any right of Tenant to further notice if Landlord has
previously provided such notice), with respect to any sublease (other than a
sublease to an affiliate of Tenant pursuant to Sections 5.01(c) or (e) of the
Lease or otherwise) and which (a) is not for less than 20,000 rentable square
feet of Office Space, (b) consists of either (x) not less than 100,000 rentable
square feet of Office Space or (y) contiguous space which includes the highest
or lowest floor then comprising the Office Space or is contiguous to another
floor substantially all of which has been sublet by Tenant and with respect to
which Mortgagee has executed and delivered one or more non-disturbance and
attornment agreements hereunder with respect to substantially all of such floor,
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(c) provides for a rental which, after taking into account any free rent
periods, credits, offsets or deductions to which the subtenant may be entitled
thereunder, is equal to or in excess (on a per rentable square foot basis) of
the Fixed Rent and recurring Additional Charges (as such terms and defined in
the Lease) payable by Tenant under the Lease with respect to such space from
time to time throughout the term of the Lease (or if less (on a per rentable
square foot basis) than the Fixed Rent and recurring Additional Charges payable
by Tenant under the Lease, if such subtenant agrees, in the non-disturbance and
attornment agreement hereinafter referred to, that such rental will
automatically and without condition become so equal, if, as and when the
attornment provided for in such non-disturbance and attornment agreement becomes
effective between Mortgagee and the subtenant following the termination of the
Lease), (d) consists of space that will be demised separately from the remainder
of the Premises in accordance with all applicable laws and (e) provides for
other obligations of the subtenant at least substantially identical to the
obligations of Tenant under the Lease (but in compliance, to the extent
applicable, with Section 8.24 of the Lease), Mortgagee shall, at Tenant's
request, execute and deliver to such subtenant a non-disturbance and attornment
agreement substantially in the form attached to this Agreement as Exhibit B
provided and upon condition that (i) Tenant has furnished to Mortgagee's
reasonably satisfactory evidence that the subtenant has a financial worth
sufficient to timely fulfill its obligations under such sublease as a primary
tenant (and not as a subtenant), including any increase in such financial
obligations which may become effective as provided above, (ii) the sublease is
in a form reasonably satisfactory to Mortgagee, and (iii) the subtenant executes
and delivers to Landlord such non-disturbance and attornment agreement. Any
dispute as to the creditworthiness of a prospective subtenant may be submitted
to determination by arbitration in the manner provided in Section 8.09 of the
Lease as if such provisions were set forth herein and "Mortgagee" were
substituted for "Landlord" therein, and any such determination shall be binding
upon Mortgagee and Tenant. Notwithstanding anything to the contrary set forth in
this paragraph 9, any non-disturbance and attornment agreement delivered by
Mortgagee pursuant to this paragraph 9 shall be conditional and by its terms
expressly contain the condition such that, in the event of any termination of
the Lease other than by reason of Tenant's default (e.g., by reason of a
casualty), then any non-disturbance and attornment agreement to a subtenant
shall, automatically and without further act of the parties, terminate and be of
no further force or effect from and after the applicable termination date;
provided, that if (A) the Lease is terminated with respect to less than all of
the Demised Premises, or (B) Tenant pursuant to Article 9 of the Lease exercises
the Renewal Option (as defined therein) with respect to less than all of the
Demised Premises, only such non-disturbance and attornment agreements to
subtenants who sublease any of such space with respect to which the Lease is
terminated or not renewed, as the case may be, shall automatically and without
further act of the parties, terminate and be of no further force or effect from
and after the applicable termination date or the day preceding the commencement
of the Renewal Term, as the case may be. In addition, to the extent any such
non-disturbance and attornment agreement relates to a subtenant which is a
partnership, such agreement shall provide that no provision of such sublease
providing in substance for the exculpation from personal liability of the
partners of such partnership shall be binding on Mortgagee or any other
Successor unless such subtenant shall, on the date the attornment provided in
such non-disturbance and attornment agreement becomes effective between
Mortgagee and such subtenant, post with Mortgagee or such other Successor, as
security for such subtenant's obligations under its sublease, cash or a clean,
unconditional and irrevocable letter of credit (in form and from a bank
reasonably satisfactory to Mortgagee) in either case in an amount equal to the
annual fixed rent and recurring charges (without regard to any abatements,
credits or offsets) payable by such subtenant to Mortgagee at such time (such
security to be increased from time to time to reflect increases in such fixed
rent and recurring charges), unless such cash or letter of credit was previously
delivered to Landlord in accordance with the provisions of the Lease.
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7. Tenant shall deliver to Mortgagee copies of all notices under the Lease
concurrent with delivery to or receipt from Landlord (including, without
limitation, default notices, notices establishing delivery and commencement
dates and notices commencing arbitration proceedings but excluding routine
operational notices such as requests for overtime services). No notice shall be
effective as to Mortgagee unless properly served upon Mortgagee in the manner
provided herein.
8. This Agreement may not be modified except by an agreement in writing
signed by Tenant and Mortgagee or their respective successors in interest. In
addition, any modification of this Agreement which would adversely affect
Landlord shall require the consent of Landlord. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, their respective heirs,
representatives, successors and assigns including, without limitation, with
respect to Mortgagee, the grantee under a deed in lieu of foreclosure and/or the
purchaser of the Demised Premises at a foreclosure sale or at any sale of the
Demised Premises following the granting of a deed in lieu of foreclosure or
following foreclosure.
9. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Mortgage except as specifically set forth herein.
10. Landlord, Tenant and Mortgagee agree that this Agreement satisfies any
condition or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Mortgagee and Tenant further agree that
in the event there is any inconsistency between the terms and provisions hereof
and the terms and provisions of the Lease dealing with non-disturbance by
Mortgagee or the provisions of the Mortgage referred to in Section 6.01(b) of
the Lease (as they relate to Tenant's rights and obligations), the terms and
provisions hereof shall be controlling.
11. All notices, demands, consents, approvals, advices, waivers or other
communications (each, a "Notice") which may or are required to be given by
either party to the other under this Agreement shall be in writing and, unless
otherwise required by law, shall be sent (a) by hand, (b) by United States Mail,
certified or registered, postage prepaid, return receipt requested or (c) by a
nationally-recognized overnight carrier, in each case addressed to the party to
be notified at the address for such party specified in the first paragraph of
this Agreement (in the case of any Notice to Tenant, to the attention of the
Vice President, Facilities, and in the case of any Notice to Mortgagee, to the
attention of __________________), or to such other place in the continental
United States as the party to be notified may from time to time designate by at
least 20 days' notice to the notifying party (with copy, in the case of each
Notice to Mortgagee, to ______________________________________________________,
Attention: __________, and in the case of each Notice to Tenant, to the
attention of the General Counsel, at the address for Tenant specified in the
first paragraph of this Agreement). Each Notice shall be deemed to have been
given on the date such Notice is actually received as evidenced by a written
receipt therefor, and in the event of failure to deliver by reason of changed
address of which no Notice was given or refusal to accept delivery, as of the
date of such failure. Tenant shall also deliver a copy of any Notice provided to
Mortgagee under paragraphs 5 and 6 hereof to Landlord at the address and in the
manner provided in the Lease, excluding Notices which Tenant shall previously or
concurrently have delivered to or received from Landlord.
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12. Anything herein or in the Lease to the contrary notwithstanding, if
Mortgagee shall acquire title to the Property, or shall otherwise become liable
for any obligations of Landlord under the Lease, Mortgagee shall have no
obligation, nor incur any liability, beyond Mortgagee's then interest, if any,
in the Property (as such interest is defined in Section 8.06 of the Lease) and
Tenant shall look exclusively to such interest of Mortgagee, if any, in the
Property for the payment and discharge of any obligations imposed upon Mortgagee
hereunder or under the Lease. Tenant agrees that with respect to any money
judgment that may be obtained or secured by Tenant against Mortgagee, Tenant
shall look solely to the estate or interest owned by Mortgagee in the Property
(as such interest is defined in Section 8.06 of the Lease) and Tenant shall not
collect or attempt to collect any such judgment out of any other assets of
Mortgagee. Nothing contained in this Section 12 shall be construed to diminish
or impair Tenant's abatement, offset, credit or self-help rights under the
Lease.
13. This Agreement shall be governed by the laws of the State of New York.
If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
to be an original and all of which taken together, will be deemed to be one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be duly executed as of the day and year first above written.
Mortgagee
By:___________________________
Name:
Title:
Tenant
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By:____________________________
Name:
Title:
Landlord
1290 ASSOCIATES
By: O&Y Management Corp., As Agent
By:____________________________
Name:
Title:
[ADD NOTARY FORMS]
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EXHIBIT B TO EXHIBIT O
FORM OF SUBTENANT
NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the _______ day of ___________, _____ by and
between ____________________________, a _________________, having an office at
_________________________________ (hereinafter called "Mortgagee"),
______________, a _________________, having an office at
___________________________________ (hereinafter called "Subtenant"), and THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation,
having an office at 787 Seventh Avenue, New York, New York 10019 (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the ___________ under that certain _____________
____________________________________________________________________________
(the "Mortgage") between _________________________, as lender, and ____________
______________, as borrower, which was recorded on __________________ in the
Office of the City Register, New York County in Reel ____, Page ____, and which
encumbers, among other properties, the land and the building located at 1290
Avenue of the Americas, New York, New York (the "Property"),
WHEREAS, Tenant has entered into a certain agreement of lease dated as of
July 20, 1995 (the "Overlease") covering, inter alia, __________________________
(the "Sublet Premises") in the building forming a part of the Property,
WHEREAS, Subtenant has entered into a certain agreement of sublease dated
as of ___________, ____ with Tenant (the "Sublease") covering Sublet Premises,
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Subtenant covenants and agrees that the Sublease now is and shall at all
times continue to be subject and subordinate in each and every respect to the
Mortgage. Subtenant, upon request, shall execute and deliver any certificate or
other instrument which the Mortgagee may reasonably request to confirm said
subordination by Subtenant.
2. Subtenant certifies that (i) Subtenant is the owner and holder of the
Subtenant's interest under the Sublease, (ii) the Sublease is presently in full
force and effect and unmodified, (iii) no rent or additional rent payable under
the Sublease has been paid more than one (1) month in advance of its due date,
(iv) no default exists under the Sublease, and (v) there are no offsets or
defenses as of the date hereof to the payment of the rents, additional rents or
other sums payable under the Sublease.
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3. As long as no default exists under the Sublease which has continued
after notice and beyond the expiration of any applicable grace period as and to
the extent provided in the Sublease (and provided that nothing shall imply any
right of Subtenant to further notice if Tenant or the Landlord (as defined
below) has previously provided such notice) and subject to the provisions of
paragraph 5 below, Mortgagee shall not name Subtenant as a party defendant to
any action for foreclosure or other enforcement of the Mortgage (unless required
by law), nor shall the Sublease be terminated by Mortgagee in connection with,
or by reason of, foreclosure or other proceedings for the enforcement of the
Mortgage, or by reason of a transfer of the landlord's interest under the
Overlease pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Subtenant's use or possession of the Sublet Premises be
interfered with by Mortgagee, unless the Tenant or 1290 Associates or any
successor owner of the Property (the "Landlord") would have had such right if
the Mortgage had not been granted, except that the person acquiring or
succeeding by or through Mortgagee to the interests of the Landlord under the
Overlease as a result of any such action or proceeding (including Mortgagee
should it acquire or succeed to such interests), and such person's successors
and assigns (any of the foregoing being hereinafter referred to as the
"Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims which Subtenant
might have against any prior sublessor or landlord; nor
(b) bound by any rent or additional rent which Subtenant might have paid
for more than one month in advance to any prior sublessor or landlord, unless
such prepayment shall have been made with Mortgagee's prior written consent; nor
(c) liable for any act or omission of any prior sublessor or landlord; nor
(d) bound by any covenant to undertake or complete any improvement to the
Sublet Premises or the building forming a part of the Property; nor
(e) required to account for any security deposit other than any security
deposit actually delivered to the Successor; nor
(f) liable for any payment to Tenant of any sums, or the granting to Tenant
of any credit, in the nature of a contribution towards the cost of preparing,
furnishing or moving into the Demised Premises or any portion thereof; nor
(g) bound by any modification of the Sublease which results in the Sublease
no longer conforming to the parameters set forth in the Overlease for the
granting by Landlord of a non-disturbance agreement to a subtenant made without
the written consent of Mortgagee.
4. If the interest of the Landlord in the Property shall be transferred by
reason of foreclosure or other proceedings for enforcement of the Mortgage or
pursuant to a taking of a deed in lieu of foreclosure (or similar device) and
the Overlease shall have previously terminated (and the Sublease shall have
become a direct lease between Subtenant and Landlord pursuant to a
non-disturbance and attornment agreement between such parties) or shall be
terminated concurrent with or subsequent to such foreclosure, other enforcement
proceeding or taking, then subject to the provisions of paragraph 5 below,
Subtenant shall be bound to the Successor, and, except as provided in this
Agreement, the Successor shall be bound to Subtenant, under all of the terms,
covenants and conditions of the Sublease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Tenant
under the Sublease, and Subtenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its landlord, (ii)
affirm its obligations under the Sublease (subject to the provisions of
paragraph 5 below), and (iii) agree to make payments of all sums due under the
Sublease (as same may be adjusted pursuant to the terms of paragraph 5 below) to
the Successor, said attornment, affirmation and agreement to be effective and
self-operative without the execution of any further instruments, upon the
Successor succeeding to the interest of the Tenant under the Sublease, provided
that if the Successor requests, without implying any obligation to do so on the
Successor's part, Subtenant will confirm the attornment described herein to the
Successor in writing. Subtenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it any right or
election to terminate or otherwise adversely affect the Sublease or the
obligations of Subtenant thereunder by reason of any foreclosure of similar
proceeding.
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5. (a) Subtenant agrees that to the extent the Sublease provides for a
rental which, after taking into account any free rent periods, credits, offsets
or deductions to which the Subtenant may be entitled thereunder, is less (on a
per rentable square foot basis) than the Fixed Rent and recurring Additional
Charges (as such terms are defined in the Overlease) payable by Tenant under the
Overlease with respect to the Sublet Premises (the "Overlease Rent") from time
to time throughout the term of the Sublease, Subtenant agrees that the rental
payable under the Sublease will automatically and without condition become equal
to the Overlease Rent, if, as and when the attornment provided for herein
becomes effective between Mortgagee or any other Successor and the Subtenant.
Subtenant further agrees that the Sublease shall at all times comply with the
provisions of Section 8.24 of the Overlease.
[(b) In addition, Subtenant agrees that no provision of the Sublease
providing in substance for the exculpation from personal liability of the
partners of Subtenant shall be binding on Mortgagee or any other Successor
unless Subtenant shall, on the date the attornment provided herein becomes
effective between Mortgagee or any other Successor and Subtenant, post with
Mortgagee or such Successor as security for Subtenant's obligations under the
Sublease, cash or a clean, unconditional and irrevocable letter of credit (in
form and from a bank reasonably satisfactory to Mortgagee or such Successor) in
either case in an amount equal to the annual fixed rent and recurring charges
(without regard to any abatements, credits or offsets) payable at such time
(such security to be increased from time to time to reflect increases in such
fixed rent and recurring charges) by Subtenant to Mortgagee or such other
Successor as same may be modified in accordance with the terms of paragraph (a)
above, unless such cash or letter of credit was previously delivered to Landlord
in accordance with the provisions of the Overlease.]1
(c) Notwithstanding anything to the contrary set forth in this Agreement,
the agreements of the Mortgagee hereunder (on behalf of itself and any other
Successor) shall be effective only in the event the cause of termination of the
Overlease is the default of Tenant thereunder and if the Overlease is cancelled,
terminated or expires (in whole or in part but including the Sublet Premises)
for any other reason (e.g., by reason of a casualty or condemnation or the
exercise by Tenant of any termination or cancellation right or remedy provided
in the Overlease, at law or in equity or by reason of Tenant's failure to
exercise the Renewal Option (as defined in the Overlease)), then this Agreement
shall, automatically and without further act of the parties, terminate and be of
no further force or effect from and after the applicable termination date of the
Overlease (or portion thereof) or the day preceding the commencement of the
Renewal Term (as defined in the Overlease), as the case may be.
6. In the event the Overlease is terminated and Subtenant becomes a direct
tenant of Landlord pursuant to the terms of a non-disturbance and attornment
agreement between such parties, Subtenant shall notify Mortgagee of any default
by Landlord under the Sublease which would entitle Subtenant to cancel the
Sublease or abate the rents, additional rents or other sums payable thereunder
or to exercise any self-help or set-off rights thereunder. If Landlord fails to
cure any default as to which Subtenant is obligated to give notice pursuant to
the preceding sentence within the time provided for in the Sublease, Subtenant
shall provide Mortgagee notice of such occurrence and Mortgagee shall then have
an additional 30 days after receipt of such notice within which to cure such
default or if such default cannot be cured within that time, then such
additional time as may be necessary if, within such 30 days, Mortgagee shall
give Subtenant notice of its intention to diligently pursue the remedies
necessary to cure such default (including, without limitation, commencement of
foreclosure proceedings or eviction proceedings if necessary to effect such
cure) and thereafter does diligently pursue such remedies and cure, in which
event the Sublease shall not be terminated and Subtenant shall not exercise any
other rights or remedies under the Sublease or otherwise while such remedies are
being so diligently pursued by Mortgagee, other than Subtenant's right, subject
to Section 8.24 of the Overlease, to (a) any abatement, deduction, counterclaim
or setoff of any rent or additional rent expressly set forth in the Sublease, or
(b) self-help in accordance with the express provisions of the Sublease, or (c)
terminate the Sublease in accordance with the provisions thereof in connection
with a casualty or condemnation affecting the Sublet Premises or the Property.
For purposes hereof, the term Sublease shall include any successor direct lease
between Subtenant and Landlord.
1 To be deleted if Subtenant is not a partnership.
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7. This Agreement may not be modified except by an agreement in writing
signed by the parties or their respective successors in interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, their
respective heirs, representatives, successors and assigns.
8. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Mortgage except as specifically set forth herein.
9. Subtenant agrees that in the event there is any inconsistency between
the terms and provisions hereof and the terms and provisions of the Sublease
dealing with non-disturbance by Mortgagee or the provisions of the Mortgage
referred to in Section 6.01(b) of the Lease (as they relate to Tenant's rights
and obligations), the terms and provisions hereof shall be controlling.
10. All notices, demands or requests made pursuant to, under, or by virtue
of the Sublease or this Agreement must be in writing and mailed to the party
whom the notice, demand or request is being made by certified or registered
mail, return receipt requested, at its address set forth above (in the case of
any Notice to Mortgagee, to the attention of John S. Hiott, Vice President). Any
party may change the place that notices and demands are to be sent by written
notice delivered in accordance with this Agreement.
11. Notwithstanding anything to the contrary contained herein, Subtenant
acknowledges and agrees that the provisions of paragraph (3)(c) set forth in
Section 6.01(b) of the Lease shall be effective and run to the benefit of
Mortgagee or any other Successor.
12. This Agreement shall be governed by the laws of the State of New York.
If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered will be deemed
to be an original and all of which taken together, will be deemed to be one and
the same instrument.
13. Tenant is executing this Agreement for the purpose of confirming that
this Agreement satisfies any condition or requirement in the Overlease or the
Subordination, Non-Disturbance and Attornment Agreement dated ____________, 1995
between Tenant and Mortgagee relating to the granting of a non-disturbance
agreement by Mortgagee to a subtenant of Tenant.
O-11
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be duly executed as of the day and year first above written.
Mortgagee
By:_______________________________
Name:
Title:
Subtenant
[--------------------------------]
By:_______________________________
Name:
Title:
Tenant
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By:_______________________________
Name:
Title:
[ADD NOTARY FORMS]
O-12
EXHIBIT P
CONDENSER WATER SPECIFICATIONS
1290 6TH AVE
WATERTREATMENT CONTROL SPECIFICATION
MAIN & TENANT COOLING TOWER
- --------------------------------------------------------------------------------
CONTROL LIMITS PRODUCT
- --------------------------------------------------------------------------------
PH 7.0 - 8.5 N/A
CONDUCTIVITY 500 - 900 PPM RAW WATER X 10 CYCLES
CORROSION 6 - 8 PPM DREW # 2040 & 1625
FREE CHLORINE 0.1 - 0.25 PPM DREW # 261 T (TENANT TOWER)
BIOCIDES 10 X 5TH DREW # 250 & 255 (ALTERNATE FEED)
- --------------------------------------------------------------------------------
P-1
Tenant's Required Work Allowance
EXHIBIT Q
TENANT'S REQUIRED WORK AND ALLOWANCE AMOUNTS
Tenant's Required Work Allowance 1. Tenant shall replace all disconnect
switches, transformers and all panels (both $200,000 high and low voltage) in
the electrical closets in the Premises with new equipment.
2. New (or refurbished and painted if substantially new) radiator covers
and grilles $360,000 shall be provided on all floors. The standard for
refurbishment shall be consistent with the condition of the radiator covers and
grilles on the 19th floor of the Building as of the date of this Lease as shown
on the photograph of such radiator covers and grills attached to this Lease as
Exhibit Z.
3. All floors shall be scraped, patched and leveled to the standard of a
first class $125,000 office building, ready to receive floor covering.
4. Tenant shall construct accessible bathrooms on each floor of the
Premises, with $180,000 handicapped facilities in compliance with NYC Building
Code, Local Law 58 and ADA. The specific location of, and the level of finish to
be used in, the ADA bathrooms shall be subject to the review and approval of
Landlord. Each ADA bathroom shall include:
(a) 1 handicap toilet and lavatory. (b) Drywall (greenboard) walls, 1
hollow metal door and buck with lever hardware. (c) American Olean Standard
floor tile with waterproofing and base. (d) Toilet accessories (2 grab bars,
soap dispenser, paper towel dispenser, tilt mirror, toilet paper holder,
sanitary napkin disposal). (e) Lay-in ceiling with light fixture - 1 G.F.I.
duplex outlet. (f) Strobe/speaker. (g) Toilet exhaust with exhaust fan. (h)
Sprinkler
5. All damaged window mullions are to be repaired to a "like new"
condition. The $145,000 standard for repair shall be consistent with the
condition of the mullions on the 19th floor of the Building as of the date of
this Lease as shown on the photograph of such mullions attached to this Lease as
Exhibit Z.
6. Tenant shall be responsible for ADA compliance in the core areas on each
floor of $35,000 the Premises, including, without limitation, core door
hardware, horn strobes, core signage, etc. (but excluding fire pull stations,
warden stations, elevator call buttons and hall lanterns). All core door
hardware shall be uniform and reasonably acceptable to Landlord.
7. Tenant shall refurbish all existing bathrooms to not less than Building
standard $101,000 condition. This refurbishment shall include, without
limitation, replacement of cracked, damaged and missing floor, wall and ceiling
tiles, cracked, damaged and missing mirrors, damaged partitions and ceilings and
damaged, broken and missing fixtures and hardware.
8. Tenant shall reinstate within the core the second men's and women's
bathrooms on $103,000 the 11th floor of the Building which are now located
outside the core. Such bathrooms shall be located within the core on the 11th
floor of the Building in the location designated on Schedule 1 attached to this
Exhibit Q. All hardware, doors, bucks, saddles, as well as 1 water closet and
lavatory in each new men's and women's bathroom must be ADA-compliant. Each new
bathroom shall include the following:
(a) Men's Room- 3 water closets (1 of which is handicap) 4 lavatories (1
handicap) 3 urinals Women's Room- 5 water closets (1 handicap) 4 lavatories (b)
New rated door/buck/hardware into each. (c) American Olean Standard floor tile
with waterproofing and wall tile (3/4 UP) (handicap-compliant saddles). (d) New
ceiling-hung toilet partitions. (e) New toilet accessories (all including grab
bars, etc.) and mirrors. (f) New lay-in ceiling with light fixtures (4 ea. 1 x
4's in each men's and women's rooms - 2 G.F.I outlet in each). (g)
Strobe/speaker in each. (h) Install toilet exhaust with exhaust fan in each. (i)
Relocate sprinklers as necessary.
9. Tenant shall install the main sprinkler loop on each floor (if not
already $211,000 installed) [and Tenant's sprinkler distribution shall include
all core bathrooms and utility closets].
Q-1
SCHEDULE 1 TO EXHIBIT Q
LOCATION OF 11TH FLOOR CORE BATHROOMS
See Exhibit AA
Q-2
EXHIBIT R
1290 Avenue of the Americas
ELEVATOR SPECIFICATIONS
Cars # 1 to 8 Lobby - 6th floor
4000# @500 F.P.M.
Cars # 9 to 16 Lobby, 7th - 15th floor
3500# @ 500 F.P.M.
Cars # 17 to 20 Lobby, 15th - 22nd floor
3500# @ 800 F.P.M.
Cars # 21 to 24 Lobby, 22nd - 29th floor
3500# @ 800 F.P.M.
Cars # 25 to 32 Lobby, 30th - 43rd floor
3500# @ 1000 F.P.M.
FREIGHT CARS
Cars # 33 & 34 Sub-cellar to 43rd floor
4000# @ 800 F.P.M.
HYDRAULIC LIFTS
#35 30,000#
#36 10,000#
Passenger car operating specifications
o Rated speed indicated +/-5%
o Floor to floor time 9.0 sec +/-5%
(From full door closure, next floor 3/4 open)
o Door operating time 2.0 seconds
o Door closure time 3.0 seconds
o Car call & hall call dwell time in accordance with ADA requirements
R-1
EXHIBIT S
LOCATIONS FOR NYNEX SECOND PORT OF ENTRY
See Exhibit AA
S-1
EXHIBIT T
ANTENNA LOCATION
See Exhibit AA
T-1
EXHIBIT U
LOCATION OF BENTON PANELS
See Exhibit AA
U-1
EXHIBIT V
EXTERIOR SIGNAGE LOCATIONS AND CRITERIA
See Exhibit AA
V-1
EXHIBIT W
LOBBY RENOVATION WORK
LIST OF DRAWINGS, SPECIFICATIONS AND OTHER BID DOCUMENTS
- --------------------------------------------------------
CONTRACT DOCUMENTS - PREPARED BY O&Y
- ------------------------------------
Article 1 to 14 O&Y General Conditions 1 thru 34 11/1/94
Appendix A Insurance 1 thru 3 11/1/94
Sample Contractor Affidavit,
Lien Waiver and Release
of Claim 1 not dated
Sample Subcontractor Affidavit,
Lien Waiver and Release
of Claim 1 not dated
Building Rules and Regulations 1 thru 4 4/28/95
DRAWINGS & SPECIFICATIONS - PREPARED BY
DAVID KENNETH SPECTER & ASSOCIATES, ARCHITECTS, P.C.
SPECIFICATIONS
--------------
Section Pages Section Title
- ------- ----- -------------
Index 3 Index to Specifications
DIVISION #1 - GENERAL REQUIREMENTS
01000 4 Description of Work
01010 6 Alterations to Existing Facilities
01030 3 Alternate Proposals
01040 4 Project Coordination
01045 4 Cutting and Patching
01080 1 Permits and Compliance
01200 2 Project Meetings
01300 7 Submittal Requirements
STAMP 1 Combined Contract Shop Drawing
Submittal and Review Stamp
CSC 2 Certification of Specification Compliance
01420 2 Controlled Inspection
01500 6 Temporary Facilities
01600 2 Material and Equipment
01700 5 Project Close Out
W-1
DIVISION #2 - SITE WORK
02070 6 Selective Removals and Demolition
02500 4 Pavements and Surfacing
02900 1 Landscaping
DIVISION #3 - CONCRETE WORK
03300 12 Plain and Reinforced Concrete
DIVISION #4 - MASONRY
04100 3 Mortars
04400 7 Stone Work
DIVISION #5 - METALS
05100 10 Structural Steel
05300 4 Metal Decking
05400 4 Cold Formed Metal Framing
05500 8 Miscellaneous Metals - General
05700 5 Ornamental Metal Systems
05741 4 Ornamental Metal Restoration
05750 3 Ornamental Metal Column Covers
DIVISION #6 - WOOD AND PLASTICS
06100 7 Rough Carpentry
06200 11 Finish Carpentry
DIVISION #7 - THERMAL AND MOISTURE PROTECTION
07110 8 Membrane Waterproofing
07250 5 Firestopping
07270 7 Firestopping
07410 10 Preformed Laminated Metal Panel System
07900 9 Caulking and Sealing
DIVISION #8 - DOORS AND WINDOWS
08110 7 Hollow Metal Work
08400 6 Entrance Construction
08470 6 Revolving Entrance Doors
08700 4 Finished Hardware
08800 5 Glazing
08810 5 Glass Ceiling System, Complete
08900 10 Structural Glazed Wall Systems
W-2
DIVISION #9 - FINISHES
09200 6 Furring, Lathing and Plastering
09250 8 Gypsum Drywall
09600 7 Stone Flooring
09900 8 Painting
DIVISION #10 - SPECIALTIES
10400 3 Identifying Devices
DIVISION #11 - EQUIPMENT
NONE
DIVISION #12 - FURNISHINGS
NONE
DIVISION #13 - SPECIAL CONSTRUCTION
NONE
DIVISION #14 - CONVEYING SYSTEMS
NONE
ARCHITECTURAL DRAWING LIST
--------------------------
A-0 Title - Drawing Sheet List; Building Department Notes;
Plot Plan; Location Plan; Abbreviations; Symbol List
D-1 Demolition Plan and Notes
A-1 Partial Floor Plan A
A-2 Partial Floor Plan B, Column Details
A-3 Partial Floor Plan C, D & E Floor Details
A-4 Partial Reflected Ceiling Plan A Ceiling Details
A-5 Partial Reflected Ceiling Plan B Ceiling Details
A-6 Partial Reflected Ceiling Plan C, D & E
A-7 Exterior Elevations, Planter, Flagpole Details
A-8 Interior Elevation
A-9 Interior Elevation
A-10 Interior Elevation
A-11 Interior Elevation
A-12 Interior Elevation
A-13 Interior Elevation
A-14 Entrance & Storefront Details
A-15 Canopy Details
A-16 Canopy Details
A-17 Stone Details, Wood Details
A-18 Glass Ceiling Panel Details; Ceiling Details
A-19 Glass Ceiling Panel Details; Ceiling Details
A-20 Concierge Desk Details; Railing Details
A-21 Elevator Car Details
W-3
DRAWINGS PREPARED BY STRUCTURAL ENGINEER,
OFFICE OF JAMES RUDERMAN
------------------------
S-1 Canopy Details and Floor Infill Details
S-2 Miscellaneous Details and General Notes
DRAWINGS & SPECIFICATIONS PREPARED BY
MECHANICAL & ELECTRICAL ENGINEERS, JAROS BAUM AND BOLLES
--------------------------------------------------------
DIVISION #15 - MECHANICAL
SECTION Section Title # of Pages Date
- ------- ------------- ---------- ----
15200 Plumbing 15200-TC-1 4/10/95
15200 Plumbing 15200-1 4/10/95
15300 Fire Protection 15300-TC-2 4/10/95
15300 Fire Protection 15300-1 4/10/95
15600 Heating, Ventilating
and Air Conditioning TC-1 &2 4/10/95
15600 Heating, Ventilating
and Air Conditioning 15600-1 4/10/95
16100 Electrical TC-1 4/10/95
16100 Electrical TC-2 4/10/95
MECHANICAL DRAWING LIST
- -----------------------
M-1 Mechanical Drawing Sheet List; Building Department Notes;
General Notes; Symbols List & Schedule
M-2 Partial Reflected Ceiling Plan A - Demolition
M-3 Partial Reflected Ceiling Plan B - Demolition
M-4 Partial Reflected Ceiling Plan C - Demolition
M-5 Partial Reflected Ceiling Plan A - Mechanical
M-6 Partial Reflected Ceiling Plan B - Mechanical
M-7 Partial Reflected Ceiling Plan C - Mechanical
M-8 Partial Floor Plan A - Heating
Electrical Drawing List
- -----------------------
E-1 Electrical Symbols List & Schedules
E-2 Partial Reflected Ceiling Plan A - Lighting
E-3 Partial Reflected Ceiling Plan B - Lighting
E-4 Partial Reflected Ceiling Plan C, D & E - Lighting
E-5 Plan - Lighting Demolition
E-6 Plan - Power
E-7 Electrical Fire Alarm & Power Distribution Riser Diagram
W-4
Sprinkler Drawing List
- ----------------------
SP-1 Partial Reflected Ceiling Plan A - Sprinkler
SP-2 Partial Reflected Ceiling Plan B - Sprinkler
SP-3 Partial Reflected Ceiling Plan C, D & E - Sprinkler
Plumbing Drawing List
- ---------------------
P-1 Partial Floor Plan A - Plumbing
P-2 Partial Floor Plan C, D & E - Plumbing
ASBESTOS ABATEMENT SPECIFICATIONS
PREPARED BY HILLMANN ENVIRONMENTAL CO., INC.
--------------------------------------------
DIVISION #1 - GENERAL REQUIREMENTS
Section Title # of Pages
- ------- ----- ----------
-- Asbestos Abatement - Insurance Requirements 1
01013 Summary of Work 13
01043 Project Coordination 3
01092 Codes & Regulations 7
01313 Schedules, Reports, Payments 4
01314 Required Submittals 4
01410 Air Monitoring & Test Lab. Services 5
01503 Temporary Facilities 4
01513 Negative Air Containment System 6
01526 Preparation of Work Area 6
01527 Local Air Protection 4
01560 Worker Protection - Asbestos Abatement 4
01562 Respiratory Protection 5
01563 Decontamination Enclosure System 7
01701 Project Closeout 5
01714 Work Area Clearance 4
01810 Negative Air Containment 3
01830 Mini-Containment Technique 3
W-5
EXHIBIT X
FORMULA TO DETERMINE OVERTIME HVAC COST
(PER ZONE)
HEATING (6 MONTHS) JAN TO MAR, OCT TO DEC
DETERMINE KW VALUE OF AIR HANDLERS & PUMPS WHICH SERVE
THE EQUITABLE PREMISES AFTER VAV SYSTEM IS COMMISSIONED. (CURRENTLY
PREDICTED AT 4 FLOOR MINIMUM)
DETERMINE OUTSIDE AIR REQUIREMENTS FOR OCCUPIED FLOORS.
ESTABLISH MONTHLY M/# STEAM & ENERGY
KWH RATE FROM CON EDISON BILL
APPLY PIPE FRICTION & DAMPER LOSS FACTOR OF 4%
SAMPLE BILL:
ELECTRIC
KW X ENERGY (KWH) RATE = COST
450 KW X .06/KWH = $27.00 HR
STEAM (INTERIOR)
OUTSIDE AIR CFM X (72 - AVG WINTER TEMP)X 1.08 X 1.04 X RATE = COST
-----------------------------------------
970,000 BTU'S M/#
31,000 X 30 DELTA "T" X 1.08 X 1.04 X $12.85 = $13.84 HR
----------------------------------------
970,000 BTU'S M/#
STEAM (PERIMETER)
DESIGN WATER LOAD M #'S X (AVG WINTER DD DAYS - 65)X 1.04 X RATE = COST
2.63 M#'S X (23/65) X 1.04 X $12.85 = $12.43 HR
- -------------------------------------
HOURLY WINTER RATE = $53.27
- -------------------------------------
X-1
COOLING (6 MONTHS) APR TO SEPT
DETERMINE KW VALUE OF AIR HANDLERS & PUMPS WHICH SERVE
THE EQUITABLE PREMISES AFTER VAV SYSTEM IS COMMISSIONED. (CURRENTLY
PREDICTED AT 4 FLOOR MINIMUM)
DETERMINE CFM REQUIREMENT FOR OCCUPIED FLOORS.
ESTABLISH MONTHLY M/# STEAM & ENERGY
KWH RATE FROM CON EDISION BILL
APPLY PIPE FRICTION & DAMPER LOSS FACTOR OF 4%
DETERMINE CHILLER PUMPING & COOLING TOWER FAN KW
DETERMINE CHILLER STEAM TON HOUR LOAD @ 18.5 #'S TON/HR
DETERMINE MAKE UP WATER USE & PUMPING ELECTRIC
DETERMINE WATER TREATMENT MAKE UP
SAMPLE BILL:
BASE CHILLER PUMPING & TOWER FAN ELECTRIC
KW X ENERGY (KWH) RATE = COST
300 KW X .06/KWH = $24.00 HR
ELECTRIC
KW X ENERGY (KWH) RATE = COST
450 KW X .06/KWH = $27.00 HR
COOLING (INTERIOR)
SUPPLY AIR CFM X (81 - 53) X 1.08 X 1.04 = TONS HR
--------------------------------------------------
12,000 BTU'S
140,000 X 28 DELTA "T" X 1.08 X 1.04 = 367 TONS HR
-----------------------------------
12,000 BTU'S
COOLING (PERIMETER)
DESIGN WATER LOAD TON/HRS X LOAD FACTOR X 1.04= TONS HR
229 TONS X .66 = 96 TONS HR
96 + 347 = 463 TONS HR
463 x 18.5 #/TON = 8.56 M#'S
8.56 M#'S X $10.65 M# = $91.16 HR
MAKE UP WATER
GPM @ 2.5% EVAPORATION, BLOWDOWN & DRIFT RATE
500 TONS X 3 GPM TON X .025 = 37.5 GAL MIN
37.8 X 60 MIN/HR = 2,250 GAL HR
1 GAL = $.0050
2,250 X .0050/GAL = $11.25
DOMESTIC WATER PUMP ELECTRIC
REQUIRED GPH/RATED GPH X ENERGY KWH = COST
2,250/18,000 X 75 KW X .06 = $.56
WATER TREATMENT
$.00227 TON/HR
463 X .00227 = $1.05
- ----------------------------------------
HOURLY SUMMER RATE = $156.02
- ----------------------------------------
X-2
EXHIBIT Y
[INTENTIONALLY OMITTED IN ORIGINAL DOCUMENT]
Y-1
EXHIBIT Z
19TH FLOOR RADIATOR COVERS AND GRILLES AND MULLIONS
See Exhibit AA
Z-1
Exhibit AA
The following Exhibits have been omitted from this filing because they
consist of graphic or image material and cannot be reproduced in an electronic
filing:
Exhibit B1 through B15: Contains floor plans of space being leased.
Exhibit Q: Schedule 1 to Exhibit Q contains a floor plan indicating the
location of certain work to be performed.
Exhibit S: Contains an electronic schematic indicating how a service
provider will access the building.
Exhibit T: Contains a plan indicating where an antenna is to be attached.
Exhibit U: Contains an elevation indicating where art is to be installed in
the lobby.
Exhibit V: Contains drawings of where exterior signs are to be located.
Exhibit Z: Contains photographs indicating the condition of certain
interior design features.
AA-1