1
EXHIBIT 10.4
================================================================================
LEASE, dated as of July 16, 1998,
Between
TCC ACQUISITION CORP.,
as Agent, as Landlord
and
THE GOLDMAN SACHS GROUP, L.P.,
as Tenant
180 Maiden Lane
New York, New York 10038
================================================================================
2
TABLE OF CONTENTS(1)
Page
----
Article 1. Basic Lease Provisions .................................. 1
Article 2. Demise of Premises; Term ................................ 4
Article 3. Rent .................................................... 6
Article 4. Tax and Operating Costs ................................. 8
Section 4.1 Definitions ................................ 8
Section 4.2 Additional Rent ............................ 16
Section 4.3 Payments on Account ........................ 17
Section 4.4 Escalation Statement ....................... 17
Section 4.5 Audit, etc ................................. 18
Section 4.6 Base Year Statement ........................ 18
Section 4.7 Base Year Audit, etc ....................... 18
Section 4.8 Excess Cleaning Costs ...................... 19
Article 5. Use of Premises ......................................... 20
Article 6. Alterations by Tenant ................................... 22
Section 6.1 In General ................................. 22
Section 6.2 Landlord's Approval in Certain Cases ....... 23
Section 6.3 Government Permits and Licenses ............ 24
Section 6.4 Tenant's Contractors ....................... 24
Section 6.5 Performance of Alterations ................. 25
Section 6.6 Mechanics Lien ............................. 25
Article 7. Various Covenants ....................................... 25
Section 7.1 Tenant's Covenants ......................... 25
Section 7.2 Landlord's Covenants ....................... 29
Section 7.3 Year 2000 Compliance ....................... 30
Article 8. Changes or Alterations by Landlord ...................... 31
Article 9. Surrender; Ownership of Improvements; Removal
of Special Installations; Tenant's Shafts and
Other Areas; Holdover ................................... 33
Section 9.1 Surrender .................................. 33
Section 9.2 Ownership of Improvements .................. 33
Section 9.3 Removal of Special Installations ........... 34
Section 9.4 Areas Reserved to Landlord ................. 35
Section 9.5 [Intentionally Omitted] .................... 35
- ----------
(1) This table of contents, list of exhibits and table of definitions was not
included in the Lease at the time of execution and is not a part of the Lease.
It was prepared subsequent to the execution of the Lease solely for convenience
of reference.
3
Section 9.6 Removal of Personal Property ............. 35
Section 9.7 Holdover ................................. 35
Article 10. Electric Current and Water .............................. 36
Section 10.1 Base Electricity ......................... 36
Section 10.2 Supplemental Electricity ................. 36
Section 10.3 Additional Electricity ................... 37
Section 10.4 Character of Electricity ................. 37
Section 10.5 Tenant's Dedicated Switches .............. 37
Section 10.6 Electricity Supplier for the Building .... 37
Section 10.7 Electricity Charges--Average Cost
per KWH ................................ 38
Section 10.8 Electric Charges -- Actual Cost
Contribution ........................... 40
Section 10.9 Billing & Payment ........................ 40
Section 10.10 Direct Service -- Illegality of
Redistribution ......................... 41
Section 10.11 Direct Service -- Tenant's Election ...... 41
Section 10.12 Tenant's Generator Plan -- Sale of
Output ................................. 42
Section 10.13 General .................................. 42
Section 10.14 Lamps. Starters & Ballasts ............... 42
Section 10.15 Water .................................... 42
Section 10.16 Exculpation .............................. 43
Section 10.17 Gas ...................................... 43
Article 11. Elevators. Cleaning. Services, etc ...................... 43
Section 11.1 Definitions .............................. 43
Section 11.2 Passenger Elevator and Escalator Service . 43
Section 11.3 Freight Elevator Service ................. 45
Section 11.4 Heating, Ventilating and Air-
Conditioning ........................... 46
Section 11.5 Supplemental Condenser Water ............. 47
Section 11.6 Cleaning By Landlord ..................... 47
Section 11.7 Cleaning By Tenant ....................... 48
Section 11.8 Cooperation in the Selection of
Cleaning Contractors ................... 49
Section 11.9 Rubbish Removal .......................... 49
Section 11.10 Additional Services ...................... 49
Section 11.11 Interruption in Services ................. 50
Section 11.12 Damage or Defective Condition ............ 51
Section 11.13 Building Directory ....................... 51
Section 11.14 Operation & Maintenance of the Building .. 51
Section 11.15 Accessibility and Security ............... 52
Section 11.16 Tenant's Car Service Line ................ 54
Section 11.17 Applicable Price ......................... 54
Section 11.18 Fire Alarm ............................... 55
Article 12. Assignment and Subletting ............................... 55
Section 12.1 General .................................. 55
Section 12.2 Request for Consent ...................... 56
Section 12.3 Consent Not to Be Unreasonably Withheld;
Conditions ............................. 57
Section 12.4 Effect of Consent ........................ 58
2
4
Section 12.5 Provisions Applicable to Every Sublease .. 58
Section 12.6 Profit Sharing ........................... 59
Section 12.7 Changes in Control; Transactions with
Successors ............................... 60
Section 12.8 Transactions with Related Parties ........ 60
Section 12.9 Miscellaneous Provisions Regarding
Assignments .............................. 60
Article 13. Damage by Fire, etc ..................................... 61
Article 14. Condemnation ............................................ 63
Article 15. Compliance with Laws .................................... 64
Article 16. Mortgage, Subordination, and Attornment ................. 65
Article 17. Conditions of Limitation ................................ 67
Article 18. Re-entry by Landlord .................................... 69
Article 19. Damages ................................................. 70
Article 20. Curing Tenant's Defaults-- Additional Rent .............. 71
Article 21. Consents ................................................ 72
Article 22. Insurance ............................................... 73
Article 23. Brokerage Commission .................................... 76
Article 24. Satisfaction of Tenant's Remedies ....................... 77
Article 25. Landlord's Payments to Tenant ........................... 77
Article 26. Tenant's Right to Lease Additional Space ................ 78
Article 27. Renewal Term ............................................ 85
Article 28. Notices ................................................. 91
Article 29. Quiet Enjoyment ......................................... 91
Article 30. Binding Authority ....................................... 91
Article 31. Governing Law; Severability ............................. 91
Article 32. Lease Contains All Agreements-- No Waivers .............. 92
Article 33. Parties Bound ........................................... 92
Article 34. Special Purpose Areas; 16th Floor ....................... 93
Section 34.1 Special Purpose Areas-- General .......... 93
Section 34.2 Continued Operation 0f 41st Floor
Special Purpose Area ..................... 96
Section 34.3 Continued Operation of 3rd/4th Floor
Special Purpose Area ..................... 97
Section 34.4 Continued Operation of 2nd Floor
Special Purpose Area ..................... 98
Section 34.5 Continued Operation of Basement
Special Purpose Area ..................... 99
Section 34.6 16th Floor -- General .................... 100
3
5
Section 34.7 Miscellaneous ............................ 100
Section 34.8 Miscellaneous ............................ 101
Article 35. Arbitration ............................................. 101
Article 36. Other Installations By Tenant ........................... 102
Section 36.1 Tenant's Generator Plant and
Tenant's Cooling Plant ................... 102
Section 36.2 Tenant's Antenna Equipment ............... 105
Section 36.3 Tenant's Closed Circuit Television
Cameras ................................ 106
Section 36.4 Window Film and Window Treatment ......... 106
Section 36.5 Use of Fire Stairs ....................... 106
Section 36.6 Tenant's Messenger Center ................ 107
Article 37. Tenant's Right of First Offer to Purchase ............... 107
Article 38. Tenant's Termination Right .............................. 109
Article 39. Landlord Defaults -- Tenant Right to Cure ............... 110
Section 39.1 ............................................ 110
Section 39.2 Landlord's Failure to Pay Costs
of Initial Improvements .................. 112
Section 39.3 Successor Liability ...................... 113
Article 40. Miscellaneous ........................................... 113
Article 41. ICIP & LMEP Program ..................................... 114
Section 41.1 The Project; the Benefits ................ 114
Section 41.2 Requirements to Obtain Benefits .......... 115
Section 41.3 Requirements in Respect of Contractors ... 116
Section 41.4 Submetering .............................. 117
Section 41.5 Tenant's Obtaining Direct Electric
Service ................................ 117
Article 42. Tenant's Shafts and Other Areas ......................... 117
Section 42.1 General .................................. 118
Section 42.2 CNA Closet ............................... 119
Section 42.3 Freight Elevator Lobby Space ............. 120
Section 42.4 Carlift Room ............................. 121
Section 42.5 Carlift Conveyor Shaft ................... 122
Section 42.6 Fuel Oil Riser Shaft ..................... 122
Section 42.7 Pipe Space ............................... 123
Section 42.8 Unused Exhaust Space ..................... 123
Section 42.9 Existing Kitchen Exhaust Space ........... 124
Section 42.10 Fire Stair Riser Space ................... 125
Section 42.11 Relocations by Tenant .................... 125
Section 42.12 Other Provisions ......................... 125
Section 42.13 Telecommunications Points of Entry
Section 42.14 Tenant's Fuel Tank ....................... 126
4
6
EXHIBITS
A. Landlord
B. Stacking Plan, Areas and Floor Plans
C. Premises
D. Floor Plans
E. [Intentionally Omitted]
F. Certificate of Occupancy
G. Structural Reinforcement Work
H. Pre-Approved Critical Trade Contractors
I. Building Rules and Regulations
J. Tenant's Security and Background Check Procedures
K. Construction Rules and Regulations
L. Elevator Specifications
M. Cleaning Specifications
N. Cleaning Contractors-- Initial Bid List
0. Supplemental, Overtime and Sundry Services
P. Consent to Assignment & Consent to Sublease
Q. Form of Assumption
R. Form of Mortgage Non-Disturbance Agreement
S. Schedule of Existing Leases
T. Roof Warranty
U. Tenant's Messenger Facilities
AA. Chilled Water Plant
BB. Cooling Towers
CC. Loadbank
DD. Emergency Generator Plan
EE. Goldman Sachs Emergency Switchgear Room
FF. New' Communication Riser Location
GG. Power Conduit Risers
HH. Fuel Oil Piping Risers
II. Chilled Water Piping Riser
JJ. Stair Conduit Risers
KK. Dish Antennae
LL. Emergency Power Distribution Equipment Location
MM. Dish Antennae Space
NN. Telecommunication Point of Entry
00. Basement Switchgear Room
PP. Relocated Existing Kitchen Exhaust Flues
AAA. Entry Provisions
BBB. Pipe Erection and Other Work Provisions
CCC. SSL Special Purpose Area Lease Provision
DDD. Other Special Purpose Area Lease Provisions
5
7
180 Maiden Lane
Table of Definitions
- --------------------------------------------------------------------------------
Lease Lease
Defined Term Section Page
- --------------------------------------------------------------------------------
16th Floor Right 34.6 100
- --------------------------------------------------------------------------------
2nd Floor Special Purpose Area 34.1 93
- --------------------------------------------------------------------------------
30 Day Tenant 34.1 94
- --------------------------------------------------------------------------------
3rd Floor Escalators 11.2 45
- --------------------------------------------------------------------------------
3rd/4th Floor Special Purpose Area 34.1 93
- --------------------------------------------------------------------------------
41st Floor Machine Room 36.1 102
- --------------------------------------------------------------------------------
41st Floor Special Purpose Area 34.1 93
- --------------------------------------------------------------------------------
Acceptance Notice 26.3 79
- --------------------------------------------------------------------------------
Accepted Offer Space 26.3 80
- --------------------------------------------------------------------------------
Actual Electric Cost Contribution 10.8 40
- --------------------------------------------------------------------------------
Additional Metering Equipment 10.8 40
- --------------------------------------------------------------------------------
Additional Rent Dispute Notice 4.5 18
- --------------------------------------------------------------------------------
Alterations 7.1 27
- --------------------------------------------------------------------------------
Amortized Capital Improvement 4.1 11
- --------------------------------------------------------------------------------
Applicable Laws 15.1 64
- --------------------------------------------------------------------------------
Applicable Portion 2.3 4
- --------------------------------------------------------------------------------
Applicable Price 11.17 54
- --------------------------------------------------------------------------------
Audit Period 4.1 8
- --------------------------------------------------------------------------------
Base Building 11.14 52
- --------------------------------------------------------------------------------
Base Building Closet Installations 42.2 119
- --------------------------------------------------------------------------------
Base Building Pipes 42.7 123
- --------------------------------------------------------------------------------
Base Premises 1.5 1
- --------------------------------------------------------------------------------
Base Year Statement 4.6 18
- --------------------------------------------------------------------------------
Basement Special Purpose Area 34.1 93
- --------------------------------------------------------------------------------
BLS 11.17 54
- --------------------------------------------------------------------------------
Books and Records 37.1 108
- --------------------------------------------------------------------------------
Broker 23 76
- --------------------------------------------------------------------------------
Building Electricity 10.6 38
- --------------------------------------------------------------------------------
Building Electricity Supplier 10.7 39
- --------------------------------------------------------------------------------
Building Requirements 10.3 37
- --------------------------------------------------------------------------------
Business Days 11.1 43
- --------------------------------------------------------------------------------
Business Hours 11.1 43
- --------------------------------------------------------------------------------
C&W 23 76
- --------------------------------------------------------------------------------
Cartlift Conveyor Shaft 42.5 122
- --------------------------------------------------------------------------------
Cartlift Room 42.4 121
- --------------------------------------------------------------------------------
Cartlift Room Leased Floors 42.1 118
- --------------------------------------------------------------------------------
Cartlift Room Leases 42.1 118
- --------------------------------------------------------------------------------
Claims 7.1 28
- --------------------------------------------------------------------------------
Cleaning Costs 4.1 9
- --------------------------------------------------------------------------------
Cleaning Payment 4.8 19
- --------------------------------------------------------------------------------
CNA Closet 42.2 119
- --------------------------------------------------------------------------------
CNA Closet Installations 42.2 119
- --------------------------------------------------------------------------------
ConEd 10.6 38
- --------------------------------------------------------------------------------
Continuing Premises 38 109
- --------------------------------------------------------------------------------
Contractors 41.3 116
- --------------------------------------------------------------------------------
contractors, contractor 6.4 24
- --------------------------------------------------------------------------------
CPI Factor 11.17 54
- --------------------------------------------------------------------------------
CPI-U 11.17 54
- --------------------------------------------------------------------------------
Critical Trade Contractors 6.4 24
- --------------------------------------------------------------------------------
DBS 41.3 116
- --------------------------------------------------------------------------------
Page 1 of 5
8
180 Maiden Lane
Table of Definitions
- --------------------------------------------------------------------------------
Lease Lease
Defined Term Section Page
- --------------------------------------------------------------------------------
Default Termination 18.2 69
- --------------------------------------------------------------------------------
deliver, delivery 2.3 5
- --------------------------------------------------------------------------------
Delivery Date 2.3 5
- --------------------------------------------------------------------------------
Disputed Section 39.2 Amount 39.2 113
- --------------------------------------------------------------------------------
DOF 41.3 116
- --------------------------------------------------------------------------------
Early Termination Date 38 109
- --------------------------------------------------------------------------------
Early Termination Premises 38 110
- --------------------------------------------------------------------------------
Electric Charge 10.7 39
- --------------------------------------------------------------------------------
Electrical Equipment 10.3 37
- --------------------------------------------------------------------------------
Entry Provisions 42.1 118
- --------------------------------------------------------------------------------
Escalation Statement 4.1 9
- --------------------------------------------------------------------------------
Estimated Repair Time 13.3 62
- --------------------------------------------------------------------------------
Excess Cleaning Cost 4.8 19
- --------------------------------------------------------------------------------
Excluded Cleaning Areas 11.6 48
- --------------------------------------------------------------------------------
Executive Elevators 11.2 44
- --------------------------------------------------------------------------------
Existing Building Generators 36.1 102
- --------------------------------------------------------------------------------
Existing Bulkhead Enclosure 36.1 102
- --------------------------------------------------------------------------------
Existing First Mortgage 16.3 66
- --------------------------------------------------------------------------------
Existing Kitchen Exhaust Space 42.1 118
- --------------------------------------------------------------------------------
Existing Mortgages 16.3 67
- --------------------------------------------------------------------------------
Existing Second Mortgage 16.3 66
- --------------------------------------------------------------------------------
Existing Special Purpose Area Use 5.1 21
- --------------------------------------------------------------------------------
Expiration Date 1.7 1
- --------------------------------------------------------------------------------
Final ICIP Application 41.2 115
- --------------------------------------------------------------------------------
Fire Stair Riser Space 42.10 125
- --------------------------------------------------------------------------------
First Renewal Term 27.1 86
- --------------------------------------------------------------------------------
Fixed Rent 3.2 6
- --------------------------------------------------------------------------------
Freight Elevator Hours 11.3 45
- --------------------------------------------------------------------------------
Freight Elevator Lobby Leased Floors 42.1 119
- --------------------------------------------------------------------------------
Freight Elevator Lobby Leases 42.1 119
- --------------------------------------------------------------------------------
Freight Elevator Lobby Space 42.3 120
- --------------------------------------------------------------------------------
Fuel Oil Riser Shaft 42.6 122
- --------------------------------------------------------------------------------
Full Premises Floor 2.1 4
- --------------------------------------------------------------------------------
GS 23 76
- --------------------------------------------------------------------------------
Guarantor 17.2 68
- --------------------------------------------------------------------------------
hazardous materials 15.2 65
- --------------------------------------------------------------------------------
Holidays 11.1 43
- --------------------------------------------------------------------------------
ICIP Benefits 41.1 115
- --------------------------------------------------------------------------------
ICIP Program 41.1 115
- --------------------------------------------------------------------------------
ICIP Work 41.2 115
- --------------------------------------------------------------------------------
ICIP/LMEP Submissions 41.2 115
- --------------------------------------------------------------------------------
Index 11.17 54
- --------------------------------------------------------------------------------
Interest Rate 4.5 18
- --------------------------------------------------------------------------------
Kitchens 9.3 34
- --------------------------------------------------------------------------------
Land 1.1 1
- --------------------------------------------------------------------------------
Landlord Cleaned Building Area 4.1 9
- --------------------------------------------------------------------------------
Landlord Cleaned Premises Area 4.1 9
- --------------------------------------------------------------------------------
Landlord Failure 39.1 110
- --------------------------------------------------------------------------------
Landlord Indemnitees 7.1 28
- --------------------------------------------------------------------------------
Landlord Monthly Payments 25.1 77
- --------------------------------------------------------------------------------
Page 2 of 5
9
180 Maiden Lane
Table of Definitions
- --------------------------------------------------------------------------------
Lease Lease
Defined Term Section Page
- --------------------------------------------------------------------------------
Landlord's Determination 26.10 83
- --------------------------------------------------------------------------------
Landlord's Exercise Deadline Date 26.2 79
- --------------------------------------------------------------------------------
Landlord's Final Determination 27.4 89
- --------------------------------------------------------------------------------
Landlord's Initial Determination 27.4 88
- --------------------------------------------------------------------------------
Landlord's Low Rise Elevator Cost Contribution 11.2 44
- --------------------------------------------------------------------------------
Landlord's Offer Notice 37.1 107
- --------------------------------------------------------------------------------
Landlord's Work 2.6 6
- --------------------------------------------------------------------------------
lease 26.1 79
- --------------------------------------------------------------------------------
LMEP Application 41.2 115
- --------------------------------------------------------------------------------
LMEP Benefits 41.1 115
- --------------------------------------------------------------------------------
LMEP Program 41.1 115
- --------------------------------------------------------------------------------
Minimum Price 37.2 108
- --------------------------------------------------------------------------------
Multi-Full Floor Contiguous Block 26.3 80
- --------------------------------------------------------------------------------
New Bulkhead Enclosure 36.1 102
- --------------------------------------------------------------------------------
Newmark 23 76
- --------------------------------------------------------------------------------
Nomura 2.3 5
- --------------------------------------------------------------------------------
Non-Compliant Party 41.3 116
- --------------------------------------------------------------------------------
Notice of Landlord Failure 39.1 110
- --------------------------------------------------------------------------------
OCS 41.3 116
- --------------------------------------------------------------------------------
Offer 37.1 107
- --------------------------------------------------------------------------------
Offer Notice 26.2 79
- --------------------------------------------------------------------------------
Offer Price 37.2 108
- --------------------------------------------------------------------------------
Offer Space 26.2 79
- --------------------------------------------------------------------------------
Offer Space Appraiser 26.10 84
- --------------------------------------------------------------------------------
Offer Space Commencement Date 26.6 81
- --------------------------------------------------------------------------------
Offer Space Fair Market Rent 26.9 82
- --------------------------------------------------------------------------------
Offer Space Initial Cleaning Cost 26.9 83
- --------------------------------------------------------------------------------
Office Area Renewal Fixed Rent 27.3 87
- --------------------------------------------------------------------------------
Operating Costs 4.1 9
- --------------------------------------------------------------------------------
Original Applicable Price 11.17 54
- --------------------------------------------------------------------------------
Other Special Purpose Area Lease Provision 34.1 94
- --------------------------------------------------------------------------------
Other Tenants 34.1 94
- --------------------------------------------------------------------------------
Partial Accepted Offer Space 26.7 81
- --------------------------------------------------------------------------------
Partial Premises Floor 2.1 4
- --------------------------------------------------------------------------------
Pipe Erection and Other Work Provisions 42.1 118
- --------------------------------------------------------------------------------
Pipe Space 42.7 123
- --------------------------------------------------------------------------------
plans and specifications 6.2 23
- --------------------------------------------------------------------------------
Preliminary ICIP Application 41.2 115
- --------------------------------------------------------------------------------
Prime Rate 19.1 70
- --------------------------------------------------------------------------------
procuring party 22.6 74
- --------------------------------------------------------------------------------
Prohibited Occupant 5.3 22
- --------------------------------------------------------------------------------
Project 41.1 115
- --------------------------------------------------------------------------------
Property 37.1 108
- --------------------------------------------------------------------------------
Property Information 37.1 107
- --------------------------------------------------------------------------------
Proposed Sublease Expiration Date 12.2 56
- --------------------------------------------------------------------------------
Proposed Sublease Premises 12.2 56
- --------------------------------------------------------------------------------
Real Estate Taxes 4.1 16
- --------------------------------------------------------------------------------
Recapture Provision 26.2 79
- --------------------------------------------------------------------------------
Records Retention Deadline 4.1 16
- --------------------------------------------------------------------------------
Registers Office 16.3 66
- --------------------------------------------------------------------------------
Page 3 of 5
10
180 Maiden Lane
Table of Definitions
- --------------------------------------------------------------------------------
Lease Lease
Defined Term Section Page
- --------------------------------------------------------------------------------
Related Party 12.8 60
- --------------------------------------------------------------------------------
Renewal Notice 27.1 86
- --------------------------------------------------------------------------------
Renewal Option 27.1 85
- --------------------------------------------------------------------------------
Renewal Premises 27.1 86
- --------------------------------------------------------------------------------
Renewal Term 27.1 85
- --------------------------------------------------------------------------------
Renewal Term Appraiser 27.4 89
- --------------------------------------------------------------------------------
Renewal Term Fair Market Rent 27.3 87
- --------------------------------------------------------------------------------
Renewal Term Initial Cleaning Cost 27.3 88
- --------------------------------------------------------------------------------
Rent 3.1 6
- --------------------------------------------------------------------------------
Scheduled Delivery Date 2.3 4
- --------------------------------------------------------------------------------
Scheduled Offer Space Delivery Date 26.2 79
- --------------------------------------------------------------------------------
Second Renewal Term 27.1 86
- --------------------------------------------------------------------------------
Section 39.2 Advance 39.2 112
- --------------------------------------------------------------------------------
Section 39.2 Demand Amount 39.2 112
- --------------------------------------------------------------------------------
Section 39.2 Demand Notice 39.2 112
- --------------------------------------------------------------------------------
Section 39.2 Dispute Notice 39.2 112
- --------------------------------------------------------------------------------
Secure Area 7.1 26
- --------------------------------------------------------------------------------
Selected Removal Bid 9.3 34
- --------------------------------------------------------------------------------
Single Tenant Floors 42.2 120
- --------------------------------------------------------------------------------
Special Installations 9.3 34
- --------------------------------------------------------------------------------
Special Purpose Area 34.1 93
- --------------------------------------------------------------------------------
Special Purpose Area Right 34.1 94
- --------------------------------------------------------------------------------
Special Purpose Elevator 11.2 45
- --------------------------------------------------------------------------------
SSL Special Purpose Area Lease Provision 34.1 94
- --------------------------------------------------------------------------------
Switch 10.5 37
- --------------------------------------------------------------------------------
Tenant ID Card 11.15 52
- --------------------------------------------------------------------------------
Tenant Indemnitees 7.2 29
- --------------------------------------------------------------------------------
Tenant's Acceptance 37.1 108
- --------------------------------------------------------------------------------
Tenants Antenna Equipment 36.2 105
- --------------------------------------------------------------------------------
Tenant's Antennas 36.2 105
- --------------------------------------------------------------------------------
Tenant's Building Equipment 7.3 30
- --------------------------------------------------------------------------------
Tenant's CCTV Equipment 36.3 106
- --------------------------------------------------------------------------------
Tenants Cleaning Share 4.1 9
- --------------------------------------------------------------------------------
Tenant's Cooling Plant 36.1 103
- --------------------------------------------------------------------------------
Tenant's Cooling Tower 36.1 103
- --------------------------------------------------------------------------------
Tenant's Dedicated Switches 10.5 37
- --------------------------------------------------------------------------------
Tenant's Determination 26.10 83
- --------------------------------------------------------------------------------
Tenant's Electrical Equipment 36.1 103
- --------------------------------------------------------------------------------
Tenant's Electrical Work 10.5 37
- --------------------------------------------------------------------------------
Tenant's Final Determination 27.4 89
- --------------------------------------------------------------------------------
Tenant's Generator Plant 36.1 103
- --------------------------------------------------------------------------------
Tenant's Generators 36.1 102
- --------------------------------------------------------------------------------
Tenant's Initial Determination 27.4 88
- --------------------------------------------------------------------------------
Tenant's Loadbank 36.1 103
- --------------------------------------------------------------------------------
Tenant's Loading Dock Area 36.6 107
- --------------------------------------------------------------------------------
Tenants Low Rise Elevator Work 11.2 44
- --------------------------------------------------------------------------------
Tenant's Low Rise Elevator Work Costs 11.2 44
- --------------------------------------------------------------------------------
Tenants Mechanical Equipment 36.1 103
- --------------------------------------------------------------------------------
Tenants Self-Help Notice 39.1 111
- --------------------------------------------------------------------------------
Tenant's Self-Help Right 39.1 111
- --------------------------------------------------------------------------------
Page 4 of 5
11
180 Maiden Lane
Table of Definitions
- --------------------------------------------------------------------------------
Lease Lease
Defined Term Section Page
- --------------------------------------------------------------------------------
Tenant's Shafts 42.1 118
- --------------------------------------------------------------------------------
Tenants Termination Option 38 109
- --------------------------------------------------------------------------------
Termination Fee 38 110
- --------------------------------------------------------------------------------
Termination Notice 38 109
- --------------------------------------------------------------------------------
Underlying Lease 16.1 65
- --------------------------------------------------------------------------------
Underlying Mortgage 16.1 65
- --------------------------------------------------------------------------------
untenantable 13.1 61
- --------------------------------------------------------------------------------
Unused Exhaust Space 42.8 123
- --------------------------------------------------------------------------------
Year 2000 Compliant, Year 2000 Compliance 7.3 31
- --------------------------------------------------------------------------------
Page 5 of 5
12
LEASE, dated as of July 16, 1998, between TCC ACQUISITION CORP., as
agent for the companies listed on Exhibit A, having an office at 180 Maiden
Lane, New York, New York 10038 ("Landlord"), and THE GOLDMAN SACHS GROUP, L.P.,
a Delaware limited partnership, having an office at 85 Broad Street, New York,
New York 10004 ("Tenant").
Article 1. Basic Lease Provisions.
1.1 Building:
The Building located on the parcel of land (the "Land") having
as an address 180 Maiden Lane, New York, New York 10038.
1.2 Rentable Area of the Building (excluding Basement):
1,091,570 rentable square feet. Attached as Exhibit B is a
stacking plan showing the rentable, useable, and gross area of
each floor of the Building, and typical floor plans of a Full
Premises Floor in the mid-rise elevator bank and of a Full
Premises Floor in the high rise elevator bank.
1.3 Premises:
as set forth on the listing attached as Exhibit C and as shown
on Exhibit D.
1.4 Effective Date of Lease:
The date first-above written.
1.5 Last Delivery Date:
The Delivery Date of the last to be delivered of the 4th Floor
Office Area and floors 6-16 (the 4th Floor Office Area and
floors 6-16 being together referred to as the "Base
Premises").
1.6 Term Commencement Date:
The first Delivery Date.
1.7 Initial Expiration Date:
The last day of the calendar month during which occurs the
fifteenth (15th) anniversary of the Last Delivery Date. As
used in this Lease the term "Expiration Date" shall refer to
the Initial Expiration Date or, if any Renewal Option provided
for in Article 27 is duly and validly exercised, the
expiration date of the applicable Renewal Term.
13
1.8 Rent Commencement Date:
With respect to each Applicable Portion of the Premises
delivered to Tenant, seven (7) months after the Delivery Date
of such Applicable Portion.
1.9 Rent:
(a) Fixed Rent for Office Areas (as more particularly
described in Section 3.2):
Years (From Last Annual Rate per
Delivery Date(1)) rentable square foot
----------------- --------------------
1-5 $37.50
6-10 $39.50
11-15 $44.00
(b) Fixed Rent for Special Purpose Areas (as more particularly
described in Section 3.2):
Years (From Last Annual Rate per
Delivery Date(2)) rentable square foot
----------------- --------------------
1-5 $20.00
6-10 $21.00
11-15 $23.25
(c) Fixed Rent for Non-Office Areas (as more particularly
described in Section 3.2):
Years (From Last Annual Rate per
Delivery Date(3)) rentable square foot
----------------- --------------------
1-5 $18.75
6-10 $19.75
11-15 $22.00
(d) Additional Rent
- ----------
(1) Section 3.2 provides that floors delivered prior to the Last Delivery Date
shall have Fixed Rent payable at $37.50 per rentable square foot, subject to the
applicable Rent Abatement Period.
(2) Section 3.2 provides that floors delivered prior to the Last Delivery Date
shall have Fixed Rent payable at $20.00 per rentable square foot, subject to the
applicable Rent Abatement Period.
(3) Section 3.2 provides that floors delivered prior to the Last Delivery Date
shall have Fixed Rent payable at $18.75 per rentable square foot, subject to the
applicable Rent Abatement Period.
2
14
Additional Rent: All sums, others than Fixed Rent, which are
due and payable to Landlord by Tenant under this Lease.
1.10 Rent Abatement Period:
With respect to any Applicable Portion of the Premises, the
period commencing on the Delivery Date of such Applicable
Portion and ending on the day preceding the Rent Commencement
Date with respect to such Applicable Portion.
1.11 Base Year:
1999 calendar year.
1.12 Tenant's Proportionate Share:
At any time, the percentage which has been calculated by
dividing the total number of rentable square feet of the
Office Area and the Special Purpose Areas other those in the
Basement which has been delivered to Tenant by the total
Rentable Area of the Building.
1.13 Special Purpose Areas:
As defined in Article 34.
1.14 Non-Office Areas:
Basement Spaces "I", "G" & "M"
the 1,208 rentable square foot portion of the 28th floor
the 1.2 19 rentable square foot portion of the 26th floor
1.15 Office Areas:
All portions of the Premises other than the Special Purpose
Areas and the Non-Office Areas.
1.16 Renewal Terms:
Two (2) additional periods of five (5) years each, subject to
the provisions of Article 27 of this Lease.
1.17 Landlord Address for Notices:
TCC Acquisition Corp., as Agent
c/o The Continental Insurance Company
CNA Plaza
333 S. Wabash - 14 North
Chicago, Illinois 60685
Attention: Corporate Real Estate
3
15
1.18 Tenant Address for Notices:
General Counsel
The Goldman Sachs Group, L.P.
85 Broad Street
New York, New York 10004
Attention: Elaine S. Laurence
AND
General Services -- Lease Administration
The Goldman Sachs Group, L.P.
85 Broad Street
New York, New York 10004
Attention: Marlene G. Krammer
1.19 Initial Improvements Agreement:
the Initial Improvements Agreement of even date herewith
between Landlord and Tenant.
Article 2. Demise of Premises; Term.
2.1 Landlord hereby leases and demises to Tenant, and Tenant hereby
hires and takes from Landlord, upon and subject to the covenants, agreements,
terms, provisions and conditions of this Lease, the Premises. For the purposes
of this Lease: the term "Full Premises Floor" shall mean any floor of the
Building on or above the mezzanine level all of the leasable area of which is
leased to Tenant, and the term "Partial Premises Floor" shall mean any floor of
the Building on or above the mezzanine level some but not all of the leasable
area of which is leased to Tenant.
2.2 This Lease is effective on the Effective Date. The term shall
commence on the Term Commencement Date and shall end at 11:59 p.m. on the
Expiration Date, or on such earlier date upon which the term may expire or be
terminated pursuant to any of the conditions of limitation or other provisions
of this Lease or pursuant to law.
2.3 Landlord agrees to deliver the Premises, or portions thereof, in
accordance with the dates set forth in Exhibit C under the column heading
"Scheduled Delivery Date" (each floor, or a portion of a floor as described in
Exhibit C shall be deemed an "Applicable Portion"), and may deliver any
Applicable Portion to Tenant on any date earlier than the Scheduled Delivery
Date of such Applicable Portion, upon sixty (60) days' notice to Tenant of such
earlier delivery date. Prior to delivering the 16th floor, the 37th floor or the
40th floor Landlord shall complete Landlord's Work (as hereinafter defined) with
respect thereto. As used in this Lease the term "Delivery Date" with respect to
any
4
16
Applicable Portion shall mean the date of the actual delivery thereof; provided,
however, that in the case of the 16th floor, the 37th floor or the 40th floor
the term "Delivery Date" shall mean the later of (i) the date of the actual
delivery thereof, and (ii) the date of completion of Landlord's Work with
respect thereto. As used herein, the phrase "deliver" or "delivery" shall refer
to delivery to Tenant of vacant possession. Landlord represents to Tenant that
(except as provided in the next paragraph), pursuant to the terms thereof or the
terms of other written agreements now in effect, each lease now covering any
Applicable Portion will expire or terminate on or prior to Scheduled Delivery
Date relative to such Applicable Portion, it being understood that (i) no
holding over by any tenant beyond such expiration or termination shall give rise
to or constitute a breach of the representation set forth in this sentence, and
(ii) the provisions of Section 2.5 below shall not be applicable to any breach
of such representation.
Landlord has not yet obtained surrender agreements from the tenant
of the 22nd floor or from space E on the 21st floor. If the Delivery Date of the
22nd floor does not occur on or before January 1, 1999 Tenant shall have the
right, by giving notice to Landlord prior to such Delivery Date, to revoke its
leasing of the 22nd floor pursuant to this Article 2. If the Delivery Date of
such space E does not occur on or before January 1, 1999 Tenant shall have the
right, by giving notice to Landlord prior to such Delivery Date, to revoke its
leasing of space E pursuant to this Article 2.
Tenant acknowledges that Nomura Capital Management, Inc. ("Nomura")
has an option to lease space C on the 26th floor exercisable on or before
February 1, 2007 for delivery to Nomura no later than August 1, 2007. If Nomura
exercises such option, Landlord shall promptly notify Tenant and the term of
this Lease shall expire with respect such space C on July 31, 2007.
2.4 Within thirty (30) days after the Delivery Date with respect to
any Applicable Portion, at the request of the other party, Landlord and Tenant
shall execute a mutually acceptable instrument specifying the exact calendar
dates of the Term Commencement Date, the Delivery Date of such Applicable
Portion, the Rent Commencement Date with respect to such Applicable Portion,
Tenant's Proportionate Share following the Delivery Date and, following the Last
Delivery Date, the Initial Expiration Date.
2.5 Pursuant to Section 223-a of the Real Property Law of the State
of New York and notwithstanding any other law of like import now or hereafter in
force, the parties hereto expressly provide that, if any Applicable Portion of
the Premises are not available for delivery to Tenant on the Scheduled Delivery
Date, Tenant shall not have any claim against Landlord, except as described in
Section 3.5, nor any right to rescind this Lease. Landlord shall use
commercially reasonable efforts, including commencing eviction proceedings and
diligently prosecuting the same to completion, at Landlord's cost and expense,
to obtain possession of any Applicable Portion that is not available for
delivery to Tenant on the Scheduled Delivery Date by reason of the holding over
in the space by a prior tenant thereof.
5
17
2.6 Subject to the Initial Improvements Agreement, Landlord shall
deliver, and Tenant shall accept each Applicable Portion in its present "as is
condition, subject to reasonable wear and tear between the Effective Date and
the Delivery Date of such Applicable Portion, except (i) for latent defects,
(ii) that prior to the delivery of the 16th floor, Landlord shall have performed
all of the demolition work required by Article 34, (iii) that prior to the
delivery of the 37th floor Landlord shall have demolished all of the
improvements therein, including the existing staircase, and filled in and
restored the floor slabs above and below, and (iv) that prior to the delivery of
the 40th floor Landlord shall have demolished the existing staircase and filled
in and restored the floor slabs above and below (the work described in clauses
(ii), (iii) and (iv) being herein called "Landlord's Work"). Notwithstanding the
foregoing, within sixty (60) days after the delivery of any Applicable Portion,
Landlord, at Landlord's expense, shall refurbish the perimeter single finned
pipe radiation units serving such Applicable Portion as required for efficient
heating and otherwise in good working order and condition, all to the reasonable
satisfaction of Tenant.
Article 3. Rent.
3.1 Except as otherwise provided herein, Tenant shall pay the Fixed
Rent and Additional Rent as and when the same shall become due and payable, to
Landlord, at its office in the United States of America, or at any other place
or places in the United States of America as Landlord shall designate to Tenant,
in cash or by check payable to Landlord in United States currency, without
demand therefor and without any setoff or deduction whatsoever. The Fixed Rent
and the Additional Rent are collectively referred to from time to time as the
"Rent."
3.2 The rent reserved under this Lease for the term hereof shall be
and consist of Fixed Rent payable as follows ("Fixed Rent") with respect to each
Applicable Portion delivered to Tenant in accordance with this Lease:
with respect to the Office Areas:
(i) Commencing on the Delivery Date for each Applicable Portion and
continuing through the date which is the fifth (5th) anniversary of the
Last Delivery Date, Fixed Rent shall be payable at the rate of $37.50 per
rentable square foot per annum; and
(ii) Commencing on the date following the fifth (5th) anniversary of
the Last Delivery Date and continuing through the date which is the tenth
(10th) anniversary of the Last Delivery Date, Fixed Rent shall be payable
at the rate of $39.50 per rentable square foot per annum; and
6
18
(iii) Commencing on the date following the tenth (10th) anniversary
of the Last Delivery Date and continuing through the Initial Expiration
Date, Fixed Rent shall be payable at the rate of $44.00 per rentable
square foot per annum.
with respect to the Special Purpose Areas:
(iv) Commencing on the Delivery Date for each Applicable Portion and
continuing through the date which is the fifth (5th) anniversary of the
Last Delivery Date, Fixed Rent shall be payable at the rate of $20.00 per
rentable square foot per annum; and
(v) Commencing on the date following the fifth (5th) anniversary of
the Last Delivery Date and continuing through the date which is the tenth
(10th) anniversary of the Last Delivery Date, Fixed Rent shall be payable
at the rate of $21.00 per rentable square foot per annum; and
(vi) Commencing on the date following the tenth (10th) anniversary
of the Last Delivery Date and continuing through the Initial Expiration
Date, Fixed Rent shall be payable at the rate of $23.25 per rentable
square foot per annum.
with respect to the Non-Office Areas:
(vii) Commencing on the Delivery Date for each Applicable Portion
and continuing through the date which is the fifth (5th) anniversary of
the Last Delivery Date, Fixed Rent shall be payable at the rate of $18.75
per rentable square foot per annum; and
(viii) Commencing on the date following the fifth (5th) anniversary
of the Last Delivery Date and continuing through the date which is the
tenth (10th) anniversary of the Last Delivery Date, Fixed Rent shall be
payable at the rate of $19.75 per rentable square foot per annum; and
(ix) Commencing on the date following the tenth (10th) anniversary
of the Last Delivery Date and continuing through the Initial Expiration
Date, Fixed Rent shall be payable at the rate of $22.00 per rentable
square foot per annum.
3.3 Fixed Rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month throughout the term,
except that commencing on the Delivery Date for each Applicable Portion, Fixed
Rent shall be abated for the Rent Abatement Period.
3.4 Commencing upon the Delivery Date for each Applicable Portion,
Tenant shall pay Landlord for the electricity provided to the Premises pursuant
to Article 9 of this Lease.
7
19
3.5 Notwithstanding the foregoing, in the event that Landlord shall
fail to deliver any Applicable Portion of the Base Premises or the Special
Purpose Areas on or before the thirtieth (30th) day following the Scheduled
Delivery Date for such Applicable Portion (as postponed by Section 34.1 if
applicable) for any reason other than force majeure delays, then for each day on
or after such thirtieth (30th) day until the Delivery Date of such Applicable
Portion of the Base Premises or the Special Purposes Areas, the Rent
Commencement Date for such Applicable Portion shall be postponed by two days for
each day, commencing with the thirtieth (30th) day following the Scheduled
Delivery Date until the Delivery Date for such Applicable Portion.
3.6 In the event the Fixed Rent or Additional Rent or any part
thereof required to be paid by Tenant under the provisions of this Lease during
the term become uncollectible or shall be reduced or required to be reduced or
refunded by virtue of any Federal, state, county or city law, order or
regulation, or any direction of a public officer or body pursuant to law, or the
orders, rules, codes or regulations of any public or private organization or
entity in the nature of rent control or rent regulation, then Landlord, at its
option, may at any time thereafter terminate this Lease by not less than ninety
(90) days' written notice to Tenant on a date set forth in the notice. Upon such
termination this Lease and the Term hereof shall terminate and come to an end as
of the date fixed in the notice as if that date were the Expiration Date.
Notwithstanding the foregoing, Landlord shall not have the right to terminate
this Lease, if within the ninety (90) day period Tenant agrees in writing that:
(a) the Rent herein reserved is a reasonable rental and agrees to continue to
pay the rentals to the extent legally enforceable, and (b) upon the expiration
or other legal termination of the applicable period of time during which any
amounts shall be uncollectible, reduced or refunded, the Fixed Rent and
Additional Rent shall become and shall thereafter be payable in accordance with
the amounts reserved herein for the periods following such expiration or
termination, and (c) upon the expiration or other legal termination of the
applicable period of time during which any amounts shall be uncollectible,
reduced or refunded, Tenant shall pay to Landlord as Additional Rent, within
sixty (60) days after demand, all uncollected, reduced or refunded amounts that
would have been payable, absent such law, order, regulation, direction, rule or
code, provided that it is then legally permissible for Landlord to collect and
Tenant to pay all such amounts.
Article 4. Tax, Operating Costs and Cleaning Cost.
4.1 Definitions. As used in this Article:
(a) "Audit Period" with respect to the Escalation Statement relative
to any Lease Year shall mean the five year period commencing upon the
delivery of such Escalation Statement to Tenant.
8
20
(b) "Cleaning Costs" shall mean, for any period, the costs of
cleaning all office floors of the Building above the mezzanine level of
the Building (including the common areas on such floors) excluding any
Full Premises Floors cleaned by Tenant pursuant to pursuant to Section
11.7 (the "Landlord Cleaned Building Area"); provided, however, that
"Cleaning Costs" shall not include any of the costs referred to in clause
(2) through (31) of Section 4.1(g).
(c) "Tenant's Cleaning Share" shall mean, for any period, a fraction
(i) the numerator of which is the total number of rentable
square feet of the Premises cleaned by Landlord pursuant to clause
(b) and (c) of Section 11.6 during said period (the "Landlord
Cleaned Premises Area"), and
(ii) the denominator of which is the Landlord Cleaned Building
Area during said period.
(d) "Escalation Statement" shall mean a statement setting forth the
amount payable by Tenant for a specified Lease Year pursuant to this
Article, including a reasonably detailed statement of Real Estate Taxes
for such Lease Year and Operating Costs for such Lease Year in form
reasonably acceptable to Tenant.
(e) "Lease Year" shall mean each calendar year in which any part of
the term of this Lease occurs and, in the case of a Default Termination of
this Lease, in which any part of the term of this Lease would have
occurred except for such Default Termination.
(f) "Operating Costs" shall mean the aggregate of all expenses of
operating, maintaining, and repairing the Building and the plazas,
sidewalks and curbs adjacent thereto, including, but not limited to, the
following:
(1) the replacement of worn-out equipment, facilities and
installations;
(2) steam, water, fuel and other utilities;
(3) heat, air conditioning and ventilation;
(4) refuse and rubbish removal, window cleaning, janitorial
and exterminating services;
(5) electricity for, and painting of, the public or common
areas of the Building;
9
21
(6) security;
(7) cleaning services with respect to (i) the common areas of
the Building on or below the mezzanine level of the Building, and
(ii) the fire stairs and the windows of the Building (both the
interior and exterior thereof);
(8) gardening and other landscaping services;
(9) insurance (including rental income insurance);
(10) uniforms and supplies;
(11) sale or use taxes on supplies or services;
(12) payroll taxes, wages and salaries of all persons engaged
in the operation, maintenance and repair of the Building and the
plazas, sidewalks and curbs adjacent thereto and so-called fringe
benefits, including social security taxes, unemployment taxes,
worker's compensation, coverage for disability benefits,
contributions to any pension, hospitalization, welfare or retirement
plans or any other similar or like expenses incurred under the
provisions of any collective bargaining agreement and any other
amount incurred to provide benefits for employees engaged in the
operation, maintenance and repair of the Building and the plazas,
sidewalks and curbs adjacent thereto;
(13) fees for management services provided by an independent
management company or by Landlord, in either case, not to exceed, in
any Lease Year, including the Base Operating Year, an amount that
would be a reasonable and customary management fee paid to a
management company not affiliated with Landlord and that would
result from competitive bidding in an arms' length transaction for
buildings similar to the Building located in the vicinity of the
Building;
(14) the annual amortization over the useful life thereof of
costs, including financing costs (if any) incurred by Landlord, of
any equipment or device for, or capital improvement to, the Building
installed or paid for by Landlord on or after
(i) the date hereof (in the case of the determination of
Operating Costs for the purpose of computing the amount
payable by Tenant under this Article 4 with respect to
any Applicable Portion), or
10
22
(ii) the applicable Offer Space Commencement Date (in
the case of the determination of Operating Costs for the
purpose of computing the amount payable by Tenant under
this Article 4 with respect to any Accepted Offer Space)
(the equipment, device or capital improvement being herein called an
"Amortized Capital Improvement") that is either intended as a
labor-saving measure or to effect other economies in the operation
or maintenance of the Building (but not, in either case, in any
Lease Year with respect to any Amortized Capital Improvement an
amount in excess of the actual savings in Operating Costs resulting
in such Lease Year from such Amortized Capital Improvement) or that
is required to comply with any laws, rules or regulations of any
governmental authority having jurisdiction enacted after
(i) the date hereof (in the case of the determination of
Operating Costs for the purpose of computing the amount
payable by Tenant under this Article 4 with respect to
any Applicable Portion), or
(ii) the applicable Offer Space Commencement Date (in
the case of the determination of Operating Costs for the
purpose of computing the amount payable by Tenant under
this Article 4 with respect to any Accepted Offer
Space);
(15) the charges of any independent contractor who under a
contract does any of the work of operating and maintaining the
Building or any of the plazas, sidewalks or curbs adjacent thereto,
provided that any such contract shall be competitively bid or the
cost thereof shall not exceed an amount that would result if the
contract were competitively bid;
(16) legal and accounting fees and disbursements;
(17) liabilities, damages, awards and judgments including
interest thereon, paid or incurred by Landlord and arising from the
ownership, operation, maintenance and repair of the Building and the
plazas, sidewalks and curbs adjacent thereto (excluding specifically
(a) all liabilities, damages, awards and judgments for injury or
death to persons and for property damage arising from ownership,
operation, maintenance and repair of the Building
11
23
and the plazas, sidewalks and curbs adjacent thereto, or (b) all
liabilities, damages, awards and judgments on account of any breach
or violation of any tenant's lease); and
(18) any other expense or charge of any nature whatsoever,
whether or not herein mentioned that would, under generally accepted
accounting principles, be construed as an operating expense.
If during any period for which the Operating Costs are being
computed, including the Base Operating Year, Landlord is not for all or
any part of such period furnishing any particular work or service (the
cost of which if performed by Landlord would constitute an Operating Cost)
to more than five percent (5%) of the rentable portion of the office area
in the Building due to the fact that more than five percent (5%) of the
rentable portion of the office area of the Building is not leased to a
tenant or that Landlord is not obligated to perform the work or service in
that portion, then the amount of the Operating Costs for that period shall
be deemed, for the purposes of this Article, to be increased by an amount
equal to the additional Operating Costs that reasonably would have been
incurred during that period by Landlord if it had at its own expense
furnished the work or service to ninety-five percent (95%) of the rentable
portion of the office area in the Building.
(g) Notwithstanding anything to the contrary in this Lease, the term
"Operating Costs" shall not include any of the following:
(1) all costs of cleaning (including costs includable under
any subsection of Section 4.1(f) with respect to cleaning) any
portion of the Building other than (i) the common areas of the
Building on or below the mezzanine level of the Building, (ii) the
fire stairs of the Building, or (iii) the windows of the Building
(both the interior and the exterior thereof);
(2) Real Estate Taxes, franchise, transfer, inheritance or
capital stock taxes or taxes imposed upon or measured by the income
or profits of Landlord;
(3) the cost of any item that is, or should in accordance with
generally accepted accounting principles be, capitalized on the
books of Landlord (except as provided in Section 4.1(f)(14));
(4) the cost of any electricity or steam furnished to the
Premises or any other leasable space in the Building whether vacant
or demised to other tenants; the cost of any work or service
furnished for a tenant of space in the Building (including Tenant)
at that tenant's cost and expense;
12
24
(5) any cost to the extent that Landlord is reimbursed
therefor out of insurance proceeds or otherwise, or for which
Landlord would be reimbursed under a standard "all risk" policy that
an owner of a building similar to the Building would typically carry
containing a deductible limit not exceeding the deductible limit
that an owner of a building similar to the Building would typically
carry;
(6) leasing commissions or advertising expenses incurred in
leasing or procuring tenants for the Building and legal expenses
incurred in preparing leases for tenants or in enforcing the terms
of any lease;
(7) legal fees, expenses and disbursements (other than those
reasonably incurred in connection with the maintenance and operation
of the Building), including, without limitation those incurred in
connection with leasing, sales, financing or refinancing;
(8) the cost of overtime heating, ventilating and air
conditioning furnished to the Premises or any other space leased to
tenants;
(9) depreciation and amortization, except as provided in
Section 4.1(f)(14);
(10) interest on and amortization of debts, except as provided
in Section 4.1(f)(14);
(11) the cost of improvements, installations and decorations
made in connection with preparing space for any tenant or occupant
or renovating space for any existing tenant or occupant, including
permit, license and inspection fees and any contribution by Landlord
to the cost of any such improvements, installations and decorations;
(12) financing and refinancing costs; and any costs incurred
in connection with the sale of the Building or the making or
assignment of any underlying or ground lease;
(13) the cost of any work or service (or level or amount
thereof) provided to any tenant or occupant of the Building
(including Tenant) which is in excess of the work or service (or
level or amount thereof) which Landlord is required by this Lease to
furnish to Tenant without separate or additional charge (including
without limitation the costs of all overtime HVAC, supplemental
HVAC, supplemental chilled water, supplemental condenser water,
special or supplemental cleaning (it being understood that the term
"special or supplemental cleaning" shall include all cleaning (in
the Premises or in any other leasable area of the Building) of the
type excepted
13
25
from Landlord's cleaning obligation under clause (ii) to the proviso
to the first paragraph of Section 11.6), and overtime freight
elevator service);
(14) interest, fines and penalties resulting from the
violation by Landlord or any tenant or occupant of the Building of
any laws or requirements of legal authorities;
(15) costs and expenses incurred in connection with procuring
tenants, including lease concessions, landlord contributions and
allowances, lease takeover or rental assumption obligations;
(16) costs resulting from any judgement, settlement or
arbitration award against Landlord (including any thereof for bodily
or personal injury or property damage) and attorneys fees and
disbursements and other costs incurred in connection with the
defense of any claim or action against Landlord;
(17) costs of the type described in Section 4.1 (f)(12)
relative to any personnel above the grade of Building Manager;
(18) amounts payable under any ground or underlying lease;
provided, however, that this subsection shall not be deemed to
exclude from Operating Costs any amount payable under any such lease
which is otherwise included in and not otherwise excluded from
Operating Costs;
(19) the excess, if any of (i) any sums paid or incurred to
affiliates of Landlord or to, or to the affiliates of, the managing
agent of the Building for goods, services or other items the costs
of which are includable in Operating Costs, over (ii) the sums which
would have been paid or incurred therefor if the same had been
furnished by unaffiliated third-parties on a competitive bid basis;
(20) any compensation paid to clerks, attendants or other
persons in commercial concessions;
(21) advertising and promotional expenses;
(22) interest, charges and penalties resulting from the late
payment of any Operating Costs;
(23) costs incurred in connection with the removal,
encapsulation, enclosure, handling or other treatment of any
hazardous material or substance;
14
26
(24) the costs of purchasing sculptures, paintings or other
works of art for the Building or its plaza in excess of amounts that
reasonable owners of comparable buildings would spend for decorating
the common areas of such buildings;
(25) legal fees, expenses and disbursements relating (A) to
enforcement of leases, recovery of possession, or collection of
rent, (B) to disputes with tenants or occupants, or prospective
tenants or occupants, or real estate brokers, (C) to disputes with
purchasers or lenders or ground or underlying lessors, (D) to
negotiations of leases, contracts of sale or mortgages or sale or
finance documents, or (E) to the defense of any claim the payment of
which would not constitute an Operating Cost;
(26) the costs of installing, operating, maintaining,
repairing and replacing any parking facilities in the Building;
(27) costs relating to withdrawal liability or unfunded
pension liability under any pension plan;
(28) the cost of complying in the Premises or in any other
leasable space in the Building with any law, rule or regulation of
any governmental authority having jurisdiction to the extent that
(i) in the case of the Premises, Tenant is required by the
provisions of this Lease (other than this Article 4) to bear such
cost, or (ii) in the case of any other leasable space in the
Building, Tenant would be required by the provisions of this Lease
(other than this Article 4) to bear such cost if such other leasable
space were a part of the Premises;
(29) the cost of installing, operating, maintaining and
replacing any specialty facility, such as any cafeteria or other
food service facility, any conference. or meeting facility, any
auditorium (including the Ricker auditorium), any dining or luncheon
club (including the Continental Club), any athletic or recreational
facility, or any observatory or radio or TV facility; and
(30) Landlord's general overhead; and
(31) to the extent any costs includable in Operating Costs are
incurred with respect to both the Building and other properties
(including, without limitation, salaries, fringe benefits and other
compensation of Landlord's personnel who provide services to both
the Building and other properties), there shall be excluded from
operating expenses a fair and reasonable percentage thereof which is
properly allocable to the other properties.
15
27
(h) "Real Estate Taxes" shall mean (i) the taxes and assessments
imposed upon the Building and the Land (other than any interest or
penalties imposed in connection therewith) reduced by all abatements,
reductions and exemptions if, as and when in effect and benefitting the
Building and/or the Land, and (ii) all expenses, including fees and
expenses of counsel and experts, incurred by, or reimbursable by, Landlord
in connection with any application for a reduction in the assessed
valuation for the Building or the Land or the Real Estate Taxes or for a
judicial review thereof. If due to a future change in the method of
taxation any franchise, income, profit or other tax shall be levied
against Landlord in substitution for or in lieu of, in whole or in part,
any tax that would otherwise constitute a Real Estate Tax, the franchise,
income, profit or other tax (computed as if the Building and Land were the
only asset or business of Landlord) shall be deemed to be a Real Estate
Tax for the purposes hereof
(i) "Records Retention Deadline" with respect to any Lease Year
shall mean the last day of the Audit Period with respect to the Escalation
Statement relative to such Lease Year; provided, however, that in no event
shall the Records Retention Deadline with respect to any Lease Year occur
until all disputes relative to such Lease Year timely commenced by Tenant
under this Article 4 have been resolved. Notwithstanding the foregoing,
the Record Retention Deadline with respect to the Base Year shall mean the
last day of the Audit Period with respect to Lease Year 2000; provided,
however, that in no event shall the Records Retention Deadline with
respect to the Base Year occur until all disputes relative to the Base
Year timely commenced by Tenant under this Article 4 have been resolved.
4.2 Additional Rent. Tenant shall pay, as Additional Rent, in
respect of each Lease Year:
(a) Tenant's Proportionate Share of the excess of Real Estate
Taxes for such Lease Year over Real Estate Taxes for the Base Year;
(b) Tenant's Proportionate Share of the excess of Operating
Costs for such Lease Year over Operating Costs for the Base Year;
and
(c) Tenant's Cleaning Share of the Cleaning Costs for such
Lease Year; provided, however, that if during such Lease Year the
Landlord Cleaned Premises Area or the Landlord Cleaned Building Area
shall change the amount referred to in this clause (c) shall be
computed separately for each portion of such Lease Year.
Tenant's liability under clause (c) above with respect to any Applicable Portion
shall not commence, and shall be pro-rated as of, the Rent Commencement Date
relative to such Applicable Portion.
16
28
If the Real Estate Taxes for any Lease Year or part thereof shall be
reduced after a payment therefor shall have been made by Tenant in respect of
that Lease Year pursuant to this Section, Landlord shall credit to Tenant an
amount equal to the product obtained by multiplying Tenant's Proportionate Share
by the net refund of the Real Estate Taxes received by Landlord (after
deduction, to the extent not previously paid by Tenant, of Tenant's
Proportionate Share of expenses, including fees and expenses of counsel and
experts, incurred by, or reimbursable by, Landlord in connection with reducing
the assessed valuation for the Building or the Land and in obtaining any
reduction or refund of the Real Estate Taxes) to the extent that the amount
otherwise payable pursuant to this Article for that Lease Year by Tenant would
have been less if the reduction in Real Estate Taxes had occurred during the
Lease Year; provided, however, that if the amount of such credit to which Tenant
is entitled shall exceed $100,000 Landlord shall, if Tenant shall so request,
refund the same within ten (10) days of such request.
4.3 Payments on Account. In order to provide for current payments on
account of Additional Rent payable to Landlord pursuant to this Article for any
Lease Year, Tenant agrees to make estimated payments on account of the
Additional Rent for and during each Lease Year in twelve (12) monthly
installments. Each such installment shall be in an amount equal to 1/12th of the
amount payable by Tenant to Landlord pursuant to Section 4.2 for the preceding
Lease Year and such additional amount as reasonably estimated by Landlord,
except that
(i) Tenant's estimated payments in respect of its liability
under clauses (a) and (b) of Section 4.2 for the first Lease Year
after the Base Year shall be based on Landlord's good faith estimate
of such liability, and
(ii) Tenant's estimated payments in respect of its liability
under clause (c) of Section 4.2 for the first Lease Year shall be
based on Landlord's good faith estimate of such liability,
(iii) in any subsequent case, Tenant's estimated payments
shall not exceed by more than 5% the amount of Tenant's liability
under Section 4.2 for the most recent previous Lease Year for which
an Escalation Statement was furnished by Landlord to Tenant.
4.4 Escalation Statement. Promptly after the end of any Lease Year
Landlord shall furnish Tenant with an Escalation Statement for such Lease Year.
If, as reflected in the Escalation Statement for any Lease Year, the amount of
Additional Rent payable by Tenant to Landlord pursuant to this Article for such
Lease Year shall be greater than (resulting in an underpayment) or be less than
(resulting in an overpayment) the total of all the installments/estimated
payments paid on account to Landlord by Tenant for the Lease Year, then,
promptly after receipt of the Escalation Statement for that Lease Year, Tenant
shall, in case of an underpayment, pay to Landlord the amount of the
underpayment
17
29
or Landlord shall, in case of an overpayment, credit to Tenant the amount of
the overpayment.
4.5 Audit, etc. During the Audit Period with respect to any
Escalation Statement, Landlord shall permit all books and records of Landlord
and its managing agent relative to Real Estate Taxes, Operating Costs and
Cleaning Costs for the Lease Year to which such Escalation Statement shall
relate to be examined (and photocopied at Tenant's expense) by an officer of
Tenant or by an independent certified public accountant designated by Tenant for
the purpose of substantiating Landlord's determination of the amounts set forth
in such Escalation Statement. Landlord shall preserve such records until the
Record Retention Deadline with respect to the Lease Year to which such
Escalation Statement shall relate. Tenant shall keep all information obtained by
it pursuant to this Section 4.5 confidential other than any disclosures to
accountants, attorneys or other advisors or otherwise in connection with its
activities under this Section 4.5 or as required by law.
If during the Audit Period Tenant shall notify Landlord that Tenant
disputes the correctness of such Escalation Statement (and include in such
notice a statement of its reasons therefor) (such notice being herein called an
"Additional Rent Dispute Notice"), the parties shall make a good faith effort to
resolve their differences within thirty (30) days after Landlord's receipt of
Tenant's notice of dispute. If they are unable to do so, then either party shall
have the right to refer such dispute to arbitration as provided in Article
Thirty-Five. If and to the extent such dispute is resolved in Tenant's favor
Tenant shall be entitled to a refund of its overpayment, together with interest
at a rate per annum equal to the prime commercial lending rate (as published
from time to time by The Wall Street Journal) plus 2% but not in excess of the
amount permitted by law (the "Interest Rate") on the overpayment, from July 1 of
such Lease Year to the date of refund.
4.6 Base Year Statement. On or before the delivery to Tenant of the
Escalation Statement for Lease Year 2000, Landlord shall also deliver a
reasonably detailed statement of Real Estate Taxes for the Base Year and the
Operating Costs for the Base Year in form reasonably acceptable to Tenant (the
"Base Year Statement") and the Escalation Statement for the Lease Year 2000
shall not be deemed delivered unless accompanied by such Base Year Statement.
Subject to the provisions of Section 4.7, the Base Year Statement shall be used
to determine Tenant's liability under this Article 4 with respect to all Lease
Years during the initial term of this Lease.
4.7 Base Year Audit, etc. During the Audit Period relative to the
Escalation Statement relating to Lease Year 2000, Landlord shall permit all
books and records of Landlord and its managing agent relative to Real Estate
Taxes and Operating Costs for the Base Year to be examined (and photocopied at
Tenant's expense) by an officer of Tenant or by an independent certified public
accountant designated by Tenant for the purpose of substantiating Landlord's
determination of the amounts set forth in the Base Year Statement. Landlord
shall preserve such records until the Record Retention Deadline with respect to
the Base Year. Tenant shall keep all information obtained by it pursuant to this
Section 4.7
18
30
confidential other than any disclosures to accountants, attorneys or other
advisors or otherwise in connection with its activities under this Section 4.7
or as required by law.
If during the Audit Period relative to the Escalation Statement
relating to Lease Year 2000 Tenant shall notify Landlord that Tenant disputes
the correctness of the Base Year Statement (and include in such notice a
statement of its reasons therefor), the parties shall make a good faith effort
to resolve their differences within thirty (30) days after Landlord's receipt of
Tenant's notice of dispute. If they are unable to do so, then either party shall
have the right to refer such dispute to arbitration as provided in Article
Thirty-Five. If the Base Year Statement is corrected pursuant to this Section
4.7, the Base Year Statement as so corrected shall be used to determine Tenant's
liability under this Article 4 with respect to all Lease Years during the
initial term of this Lease.
4.8 Excess Cleaning Costs. If, for any Lease Year during which
Tenant is cleaning any portion of the Premises pursuant to clause (a) of the
first paragraph of Section 11.7, Landlord can establish to Tenant's reasonable
satisfaction that
(a) the quotient of (i) the Cleaning Costs for such Lease
Year, divided by (ii) the Landlord Cleaned Building Area for such
Lease Year, exceeds
(b) what such quotient would have been if Landlord had
cleaned, and the Landlord Cleaned Building Area had been, all of all
of the office floors of the Building above the mezzanine
(such excess as Landlord is able so to establish being herein called the "Excess
Cleaning Cost") then, in respect of such Lease Year, Tenant shall pay Landlord,
as Additional Rent, an amount (the "Cleaning Payment") equal to the product of
(i) the excess of the Landlord Cleaned Building Area for such
Lease Year over the Landlord Cleaned Premises Area for such Lease
Year, multiplied by
(ii) the Excess Cleaning Cost (but not more than $.15 per
square foot of rentable area per annum);
provided, however, that if during such Lease Year the Landlord Cleaned Premises
Area or the Landlord Cleaned Building Area shall change then the foregoing
provisions of this paragraph shall be applied separately to each portion of such
Lease Year and the Cleaning Payment for such Lease Year shall be the aggregate
thereof for each such portion. Tenant shall make the Cleaning Payment to
Landlord within thirty (30) days of the submission to Tenant of the Escalation
Statement for such Lease Year accompanied by Landlord's bill therefor the
Cleaning Payment (which shall include a statement in reasonable detail of the
derivation of the Cleaning Payment) and reasonably detailed supporting
documentation establishing the Cleaning Payment to Tenant's reasonable
satisfaction. Notwithstanding
19
31
Landlord's having established the Cleaning Payment to Tenant's reasonable
satisfaction, all of the provisions of Section 4.5 shall be applicable to this
Section 4.8, mutatis mutandis.
Article 5. Use of Premises.
5.1 The Premises shall only be used for general and executive
offices (including trading operations) and uses incidental thereto, including
the following incidental uses (i) conference and meeting facilities, including
places of assembly, (ii) computer and data processing, (iii) photocopying, (iv)
printing, (v) food preparation and service (including kitchens and kitchenettes,
pantries, dining rooms, cafeterias and vending machines), (vi) a health and
medical facility, (vii) an exercise and recreation facility, (vii) storage, (ix)
installation of equipment, and (x) support and utility functions; provided,
however, that the Special Purpose Areas may also be used for the purposes for
which the same are now being used. Tenant shall not use, or suffer or permit the
use of, the Premises or any part thereof for any other purpose.
Landlord represents and warrants that attached hereto as Exhibit F
is a true and correct copy of the Certificate of Occupancy for the Building as
in effect on the date hereof.
If pursuant to Applicable Law, Tenant cannot use any portion of the
Premises for any of the uses referred to above without amending the Certificate
of Occupancy for the Building to permit such portion of the Premises to be used
for such use, then
(i) Landlord shall (a) cooperate with Tenant as necessary or
appropriate in order to obtain such amendment to such Certificate of
Occupancy, and (b) within two (2) business days of Tenant's request,
execute any application or other documents necessary or appropriate
in order to obtain such amendment to such Certificate of Occupancy
(and, in such a case, Tenant shall reimburse Landlord within twenty
(20) days of demand for any out-of-pocket costs incurred by Landlord
for review by an independent architect or engineer of any such
application or other documents);
(ii) if, in order to obtain such amendment to such Certificate
of Occupancy, it shall be necessary to remove any violations noted
against the Building (other than any violations which pursuant to
this Lease are the responsibility of Tenant), Landlord shall,
promptly after Tenant's request, remove such violation, and if
Landlord shall fail to do so within twenty (20) days of Tenant's
request, Tenant may do so and recover the costs of doing so pursuant
to Article 39.
If pursuant to Applicable Law in effect on the date hereof, Tenant
cannot use or continue to use any portion of the Special Purpose Area for the
use for which it is now
20
32
used (an "Existing Special Purpose Area Use") without amending the Certificate
of Occupancy for the Building to permit such portion of the Special Purpose Area
to be used for such use, then (A) clause (i) and (ii) above shall apply (except
that the parenthetical provision of clause (i) shall not be applicable) and (B)
if, in order to obtain such amendment to such Certificate of Occupancy, it shall
be necessary to comply with any requirements of Applicable Law (other than any
compliance which pursuant to this Lease it is Tenant's responsibility to
effect), Landlord shall, promptly comply with such requirement of Applicable
Law, and if Landlord shall fail to do so within twenty (20) days of Tenant's
request, Tenant may do so and recover the costs of doing so pursuant to Article
39.
5.2 Tenant shall not use, or knowingly suffer or permit the use of,
the Premises or any part thereof in any manner or for any purpose or do, bring
or keep anything, or knowingly suffer or permit anything to be done, brought or
kept, therein that would (a) violate any covenant, agreement, term, provision or
condition of this Lease or be unlawful or, subject to Section 5.1 above, be in
contravention of the Certificate of Occupancy for the Building, or (b) except as
permitted by this Lease, unreasonably interfere with the use and enjoyment of
the common areas and facilities of the Building by other occupants of the
Building.
5.3 Tenant will not use, or knowingly suffer or permit the use of,
the Premises or any part thereof for any of the following purposes, whether or
not incidental to Tenant's business, namely:
(i) manufacturing of any kind,
(ii) the retail sale to persons visiting the Premises of any
item whatsoever,
(iii) an auction of any kind (other than an auction incident
to Tenant's business or by telephone or other electronic means),
(iv) the preparation, dispensation or consumption of food or
beverages (other than to Tenant, other occupants of the Premises and
their employees, clients and guests),
(v) as a school or classroom (other than for the use of
Tenant, other occupants of the Premises and their employees, clients
and guests),
(vi) as a medical or dental office (other than for the use of
Tenant, other occupants of the Premises and their employees),
(vii) as an employment or travel agency (other than a travel
agent servicing Tenant, other occupants of the Premises and their
employees),
21
33
(viii) as retail banking facilities (which term shall exclude
any ATM installed in the Premises), and
(ix) for the conduct of any disreputable activities.
Further, the Premises may not be used or occupied by any 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, or any charitable, religious, union or other not-for-profit organization,
or any tax exempt entity within the meaning of the Internal Revenue Code of
1986, as amended (a "Prohibited Occupant"). Landlord shall not lease any space
in the Building to, or suffer or permit any space in the Building to be used or
occupied by, any Prohibited Occupant.
Notwithstanding the foregoing provisions of this Section 5.3, Tenant shall have
the right, subject to the other applicable terms of this Lease, to permit other
companies (whether or not they occupy space in the Building) to use Tenant's
meeting and training rooms and facilities (including the Picker Auditorium) and,
in connection therewith, to use Tenant's food service and consumption
facilities. Tenant may charge for such use and such use shall not be subject to
the provisions of Article 12 of this Lease.
5.4 If any governmental license or permit (other than a certificate
of occupancy) shall be required for the proper and lawful conduct of any
business or other activity carried on in the Premises, and, if the failure to
secure such license or permit would in any way affect Landlord or the Building,
Tenant, at its expense, shall procure and thereafter maintain the license or
permit, submit the license or permit to inspection by Landlord, and comply with
the terms and conditions thereof.
Article 6. Alterations by Tenant.
6.1 In General. Subject to and in accordance with this Article 6 and
the other applicable provisions of this Lease, Tenant shall have the right, from
time to time, to make Alterations (as such term is defined in Section 7.1(e)) in
and to the Premises and the other areas of Building in which, pursuant to any of
the provisions of this Lease, Tenant is authorized to place or install property
or perform work. Without limiting the generality of the foregoing, it is
specifically agreed that, subject to compliance with the applicable provisions
of this Lease, Tenant shall have the right
(a) to reinforce floors and columns, including the
reinforcement of columns necessary or appropriate to support
Tenant's installations pursuant to Article 36 generally as described
on Exhibit G;
(b) to make slab cuts for the purpose of installing stairs and
running risers and conduits and to make beam cuts;
22
34
(c) to remove existing stairs and to fill in existing slab
cuts (it being specifically agreed that from and after the Term
Commencement Date Tenant may remove the interconnecting stairs
between floors 11, 12 and 13 and fill-in the existing slab cuts
notwithstanding that one or more of such floor may not yet have been
delivered to Tenant);
(d) to install stone floors and/or raised floors, including in
either case, if Tenant shall so elect, raising the level of the
elevator stops and core areas to match such raised floors;
(e) to install additional toilets, showers and other plumbing
facilities;
(f) to use BX cable rather than rigid conduit whenever
permitted by applicable law; and
(g) to install a derrick and/or a Chicago boom in connection
with Tenant's work under Article 36 (it being hereby confirmed that
the installation of any such derrick or boom shall constitute an
Alteration).
6.2 Landlord's Approval in Certain Cases. Notwithstanding the
foregoing, Tenant shall not commence or perform
(i) any structural Alteration,
(ii) any Alteration which affects the operation of the systems
of the Building outside of the Premises,
(iii) any Alteration to or which affects any portion of the
Building outside of the Premises, or
(iv) any Alteration (or series of related Alterations) the
cost of which on any floor of the Building is greater than Five
Hundred Thousand ($500,000) Dollars
unless (a) Tenant shall have submitted to Landlord complete architectural and
engineering working drawings and specifications prepared, at Tenant's expense,
by a competent architect or engineer licensed in the State of New York ("plans
and specifications"), and (b) Landlord shall have approved such plans and
specifications.
Landlord shall not unreasonably withhold such approval and shall
grant or deny such approval (including with any denial a reasonably detailed
statement of the reasons therefor) within
23
35
(a) ten (10) business days in the case of the initial
submission of plans and specifications with regard to any Alteration
referred to in clause (i), (ii) and (iii) above), or
(b) five (5) business days in the case of any resubmission of
plans and specifications with regard to any Alteration referred to
in clause (i), (ii) or (iii) above or in the case of any submission
of plans and specifications with regard to any Alteration referred
to in clause (iv) above.
If Landlord shall fail timely to disapprove any plans and specifications in
accordance with this Section 6.2 (including the required statement of reasons)
Landlord shall be deemed to have approved the same.
Any approval by Landlord shall not be deemed to be a representation
or warranty that the approved work is properly designed to perform the function
for which it is intended or complies with any Applicable Law.
6.3 Governmental Permits and Licenses. Tenant shall obtain all
governmental permits, licenses and approvals required in connection with any
Alterations performed or proposed to be performed by Tenant. Landlord shall,
within two (2) business days of Tenant's request, execute any permit, license or
approval application or any similar document required to be executed by Landlord
in connection with Tenant's obtaining any such permit, license or approval. In
case of any Alteration subject to Section 6.2, Landlord shall execute such
application or document notwithstanding its not having received or approved the
plans and specifications therefor, but Landlord's execution of such application
or document shall not constitute Landlord's approval of such plans and
specifications or a waiver of Landlord's rights under Section 6.2 with respect
thereto.
6.4 Tenant's Contractors. Subject to the provisions of Section
7.1(e), Tenant shall have the right to use contractors of its choice for
performance of any Alterations; provided, however, that Tenant's mechanical,
electrical, plumbing and fire life safety contractor ("Critical Trade
Contractors") shall be subject to Landlord's prior approval. Landlord shall not
unreasonably withhold such approval and shall grant or deny approval within five
(5) business days of Tenant's request therefor. If Landlord shall fail timely to
deny approval, it shall be deemed to have granted approval. Any Critical Trade
Contractor approved by Landlord shall remain approved with respect to the
Alteration in question and subsequent Alterations until Landlord shall by notice
to Tenant revoke such approval, but no such revocation shall be effective with
respect to the Alteration in question or any subsequent Alterations for which
such Critical Trade Contractor was retained prior to such revocation. Landlord
hereby approves the Critical Trade Contractors listed on Exhibit H hereto. As
used in this Lease (relative to Landlord or Tenant), the term "contractors" or
"contractor" (but not the phrase "general contractor") shall also include
subcontractors or subcontractor.
24
36
6.5 Performance of Alterations. Tenant will use reasonable efforts
in performing Alterations to avoid unreasonable interference with the occupants
of other parts of the Building, and shall perform the following work during
non-Business Hours, if so requested by Landlord: (a) demolition on any floor
immediately above or immediately below a floor occupied by any other tenant of
the Building, or (b) core drilling and chopping or chasing of concrete. Tenant
shall, at its sole cost and expense, repair all structural and mechanical parts
of the Building and the systems of the Building that shall be damaged by
Tenant's performance of Alterations, subject to the release provisions of
Section 22.6. Tenant shall comply with all Applicable Laws relative to the
performance by it of any Alterations. Tenant shall cause its contractors to
maintain workmen's compensation insurance as required by law and shall cause its
general contractor to maintain public liability insurance as may be reasonably
required by Landlord.
6.6 Mechanics Lien. Tenant shall not do or fail to do any act that
shall or may render the Building subject to any mechanic's lien or other lien
and if any lien or liens are filed against the Building arising out of any
Alterations undertaken by Tenant, Tenant shall, at its sole cost and expense,
promptly remove the lien or liens of record within thirty (30) days after the
earlier of demand by Landlord or the receipt of notice by Tenant from the lienor
or anyone else concerning the filing of the lien or liens. If Tenant shall fail
to timely remove such lien or liens, Landlord may cause such lien or liens to be
removed of record by payment, bond or otherwise, as Landlord may elect, and
Tenant shall reimburse Landlord, as Additional Rent, for all reasonable costs
and expenses incidental thereto (including, without limitation, legal fees).
Article 7. Various Covenants.
7.1 Tenant's Covenants. Tenant shall:
(a) take good care of the Premises, keep clean the portions of the
Premises that Landlord is not required by this Lease to clean, and,
subject to the release provisions of Section 22.6, pay the cost of making
good any injury, damage or breakage to the Building or the Premises done
by Tenant or by the employees, agents, licensees or invitees of Tenant;
(b) observe and comply with the rules and regulations annexed hereto
as Exhibit I and any other and further reasonable rules and regulations
that Landlord hereafter at any time may make and communicate to Tenant,
and that, in the reasonable judgment of Landlord, shall be necessary or
desirable for the safety, care or appearance of the Building, or the
preservation of good order therein, or the operation or maintenance of the
Building, or the equipment thereof, or the comfort of tenants or others in
the Building; provided, however, that in the case of any conflict between
the provisions of this Lease and any rule or regulation, the provisions of
this Lease shall control and provided, further that (i) Landlord will
enforce all rules and regulations uniformly against all tenants, including
Tenant, and
25
37
(ii) so long as the area of the portion of the Premises not sublet (other
than to pursuant to Section 12.7 and 12.8) shall exceed 250,000 rentable
square feet, Landlord will not make any such other or further rule or
regulation without the consent of Tenant, which consent, provided that
such other or further rule or regulation does not, other than to a di
minimis extent, affect Tenant's conduct of business or Tenant's rights and
obligations under this Lease, shall not be unreasonably withheld and, if
Landlord includes the following legend at the top of its request for
consent "THIS REQUEST FOR CONSENT IS MADE PURSUANT TO SECTION 7.1(b) OF
YOUR LEASE; IF YOU DO NOT DENY CONSENT WITHIN TEN (10) BUSINESS DAYS OF
YOUR RECEIPT HEREOF YOU SHALL BE DEEMED TO HAVE GRANTED CONSENT" shall be
deemed granted ten (10) business days after Tenant's receipt of Landlord's
request for Tenant's consent unless Tenant notifies Landlord of its denial
and the reasons therefor within that period of time;
(c) permit Landlord, and any mortgagee under any Underlying
Mortgage, and any lessor under any Underlying Lease, and their
representatives, to enter the Premises (i) in an emergency, at any time
and without notice, and (ii) otherwise, following reasonable notice at
such hours as shall not materially interfere with the conduct of Tenant's
business in the area entered, for the purposes of inspection, and permit
them or any of their agents or contractors to enter the Premises (i) in an
emergency, at any time and without notice, and (ii) otherwise, following
reasonable notice at such hours as shall not materially interfere with the
conduct of Tenant's business in the area entered, for the purpose of
complying with any Applicable Law, or exercising any right reserved to
Landlord in any other provision of this Lease, and permit Landlord,
following reasonable notice, to show the Premises at reasonable times
during Business Hours (or non-Business Hours if entry during Business
Hours would materially interfere with the conduct of Tenant's business) to
any mortgagee under any Underlying Mortgage, any lessor under any
Underlying Lease, or any prospective purchaser, lessee, mortgagee or
assignee of any mortgage of the Building or the Land or of Landlord's
interest therein, and their representatives, and during the period of
twelve (12) months next preceding the date of expiration of the term
hereof, to similarly show the Premises to any person contemplating the
leasing of all or a portion thereof provided, however, that (a) except in
the case of an emergency or as Tenant may otherwise permit, no individual
shall be permitted to enter the Premises for purposes of performing any
maintenance, repairs, alterations, cleaning or other services or work or
related inspections or preparations, unless such individual has cleared
Tenant's security and background check procedures as administered by
Tenant and in effect from time to time (a copy of Tenant's security and
background check procedures in effect on the date hereof being attached
hereto as Exhibit J), and (b) if Tenant shall identify to Landlord any
portions of the Premises that contain cash, negotiable instruments,
securities or confidential information or otherwise secure materials
("Secure Area"), neither Landlord nor any other party authorized by this
Section to enter the Premises shall (except in an emergency) enter any
Secure
26
38
Area except following reasonable notice and accompanied by Tenant's
representative which Tenant shall make available to Landlord for this
purpose;
(d) make no claim against Landlord for any injury or damage to
Tenant or to any other person or for any damage to, or loss (by theft or
otherwise) of, or loss of use of, any property of Tenant or of any other
person, irrespective of the cause of the injury, damage or loss, unless
done by Landlord, its agents, servants, employees or contractors but
subject, in any case, to the release provisions of Section 22.6;
(e) make no alteration, change, addition, improvement, repair or
replacement other than the installation, relocation and removal of trade
fixtures and business equipment (any such alteration, change, addition,
improvement, repair or replacement other than any such installation,
relocation and removal of trade fixtures and business equipment being
herein called "Alterations") in, to, or about the Premises and do no work
in connection therewith, except in accordance with Article 6 and with
Landlord's rules and regulations relating to construction, a copy of which
is attached hereto as Exhibit K; not permit the use of any contractors,
workmen or labor without proper union affiliation in the performance of
any work, labor or service if the use thereof will disturb labor harmony
with any contractors, workmen or labor engaged by Landlord to perform any
other work, labor or service in or about the Building; comply with all
Applicable Laws relative to the performance of, and maintain workmen's
compensation insurance and public liability insurance as may be reasonably
required by Landlord in connection with, any Alteration made by Tenant and
any maintenance, cleaning or service performed by Tenant; pay all charges,
as and when they become due and payable, incurred by Tenant in connection
with any Alterations made by Tenant or any maintenance, cleaning or
service performed by Tenant; and reimburse Landlord within twenty (20)
days of demand for any out-of-pocket costs incurred by Landlord for (i)
the review by an independent architect or engineer retained by Landlord of
any plans and specifications with respect to which Landlord has a right of
approval under Article 6 and/or (ii) the inspection by such architect or
engineer of the work covered thereby;
(f) without incurring any liability to Tenant, except for Landlord's
negligence, permit Landlord access to the Premises and permit Landlord to
open the Premises, whether or not Tenant shall be present, upon demand of
any receiver, trustee, assignee for the benefit of any creditor, sheriff,
marshall or court officer entitled to, or reasonably purporting to be
entitled to, access for the purpose of taking possession of, or removing,
Tenant's property or for any other purpose (but this provision and any
action by Landlord hereunder shall not be deemed a recognition by Landlord
that the person or official making the demand has any right to or interest
in or to this Lease or the Premises), or upon demand of any representative
of the fire, police, building, sanitation or other department of the city,
state or federal government;
27
39
(g) at any time and from time to time upon not less than ten (10)
days' prior notice by Landlord, execute, acknowledge and deliver to
Landlord a statement of Tenant (or if Tenant is a corporation, an
appropriate officer of Tenant) certifying (i) 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), (ii) the dates to which the Fixed Rent and
Additional Rent have been paid in advance, if any, (iii) whether or not,
to the best knowledge of the signer of the certificate, Landlord is in
default in the keeping, observance or performance of any covenant,
agreement, term, provision or condition contained in this Lease and, if
so, specifying each default of which the signer may have knowledge, and
(iv) as to any other information relative to this Lease reasonably
requested by Landlord, to the best of the knowledge of the signer of the
certificate, it being intended that the statement may be relied upon by
any mortgagee under any Underlying Mortgage, any lessor under any
Underlying Lease, or any prospective purchaser, lessee, mortgagee or
assignee of any mortgage of the Building or the Land or of Landlord's
interest therein; and
(h) indemnify and save harmless Landlord, CNA Financial Corporation,
The Continental Corporation and its subsidiaries and their respective
officers, directors, agents and employees (collectively, the "Landlord
Indemnitees") from and against all claims including any liability, lien,
loss, cost, damage or expense arising therefrom ("Claims") to which any
Landlord Indemnitee may be subject or suffer (except insofar as it (x)
arises out of the negligence or intentional misconduct of any Landlord
Indemnitee or any contractor of any Landlord Indemnitee, or (y) is covered
by any insurance maintained by any Landlord Indemnitee or would be covered
by any insurance required by this Lease to be maintained by Landlord if
the same had been maintained) whether by reason of, or by reason of any
claim of, any injury to, or death of any person or persons or damage to
property (including any loss of use thereof) or otherwise arising from or
in connection with the use of or from any work or thing whatsoever done in
the Premises other than by any Landlord Indemnitee or any contractor of
any Landlord Indemnitee (but excluding any work or thing done by Tenant as
Landlord's agent) during the term of this Lease or during the period of
time, if any, prior to the Term Commencement Date that Tenant may have
been given access thereto for the purpose of doing work or otherwise, or
arising from any condition of the Premises due to or resulting from any
default by Tenant in the keeping, observance or performance of any
covenant, agreement, term, provision or condition contained in this Lease
or from any negligence or intentional misconduct of any Tenant Indemnitee
or any contractor of any Tenant Indemnitee. If any such Claim is asserted
against any Landlord Indemnitee, Landlord will promptly notify Tenant
thereof and that such Landlord Indemnitee is entitled to indemnification
and Tenant, upon notice from Landlord, shall defend such Claim at Tenant's
expense with counsel reasonably satisfactory to Landlord. Provided that
Tenant complies with the requirements of this Section, Tenant shall not be
liable for the fees of any separate counsel retained by any Landlord
Indemnitee. If Tenant shall assert that any Claim
28
40
with respect to which it has received a demand for indemnification under
this Section 7.1(h) is or may be not covered by this Section 7.1(h), in
whole or in part, and it shall be determined by a court of competent
jurisdiction that such Claim was not covered by this Section 7.1(h), in
whole or in part, then Landlord shall reimburse Tenant for all or such
part of the costs and expenses incurred by Tenant in providing such
indemnification, including attorneys fees, with interest thereon from the
date incurred at the Interest Rate. This provision shall survive the
expiration or earlier termination of this Lease.
7.2 Landlord's Covenants. Landlord shall:
(a) subject to the release provisions of Section 22.6, pay the cost
of making good any injury, damage or breakage to the Premises or any
property therein or any other property installed in the Building by Tenant
done by Landlord or by the agents, servants, employees or contractors of
Landlord;
(b) at any time and from time to time upon not less than ten (10)
days' prior notice by Tenant, execute, acknowledge and deliver to Tenant a
statement of Landlord (or if Landlord is a corporation, an appropriate
officer of Landlord) certifying (i) 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),
(ii) the dates to which the Fixed Rent and Additional Rent have been paid,
(iii) whether or not, to the best knowledge of the signer of the
certificate, Tenant is in default in the keeping, observance or
performance of any covenant, agreement, term, provision or condition
contained in this Lease and, if so, specifying each default of which the
signer may have knowledge, and (iv) as to any other information relative
to this Lease reasonably requested by Tenant, to the best of the knowledge
of the signer of the certificate, it being intended that the statement may
be relied upon by any assignee or subtenant or prospective assignee or
subtenant of Tenant's interest under this Lease; and
(c) indemnify and save harmless the Tenant and its subsidiaries and
affiliates and their respective officers, directors, members, agents and
employees (collectively, the "Tenant Indemnitees") from and against all
Claims to which any Tenant Indemnitees may be subject or suffer (except
insofar as it (x) arises out of the negligence or intentional misconduct
of any Tenant Indemnitee or any contractor of any Tenant Indemnitee, or
(y) is covered by any insurance maintained by any Tenant Indemnitee or
would be covered by any insurance required by this Lease to be maintained
by Tenant if the same had been maintained) whether by reason of, or by
reason of any claim of, any injury to, or death of any person or persons
or damage to property (including any loss of use thereof) or otherwise
arising from or in connection with the use of or from any work or thing
whatsoever done in the Premises by any Landlord Indemnitee or any
contractor of any Landlord Indemnitee, or arising from any condition of
the Building (including the Premises) due to or
29
41
resulting from any default by Landlord in the keeping, observance or
performance of any covenant, agreement, term, provision or condition
contained in this Lease or from any negligence or intentional misconduct
of any Landlord Indemnitee or any contractor of any Landlord Indemnitee.
If any such Claim is asserted against any Tenant Indemnitee, Tenant will
promptly notify Landlord thereof and that such Tenant Indemnitee is
entitled to indemnifications and Landlord, upon notice form Tenant, shall
defend such Claim at Landlord's expense with counsel reasonable
satisfactory to Tenant Provided that Landlord complies with the
requirements of this Section, Landlord shall not be liable for the fees of
any separate counsel retained by any Tenant Indemnitee. If Landlord shall
assert that any Claim with respect to which it has received a demand for
indemnification under this Section 7.2(c) is or may be not covered by this
Section 7.2(c), in whole or in part, and it shall be determined by a court
of competent jurisdiction that such Claim was not covered by this Section
7.2(c), in whole or in part, ten Tenant shall reimburse Landlord for all
or such part of the costs and expenses incurred by Landlord in providing
such indemnification, including attorneys fees, with interest thereon from
the date incurred at the Interest Rate. This provision shall survive the
expiration or earlier termination of this Lease.
7.3 Year 2000 Compliance. Landlord shall take all actions as shall
be necessary or appropriate to insure that the Base Building becomes Year 2000
Compliant (as hereinafter defined) on or before the date on which any failure to
be Year 2000 Compliant would have any adverse effect on the operation or control
of any component of the Base Building or Tenant's Building Equipment (as
hereinafter defined), and shall take all commercially reasonable actions as
shall be necessary or appropriate to insure that the Base Building becomes Year
2000 Compliant as soon as possible. Without limiting the generality of the
foregoing, Landlord shall, and shall cause it managing agent to, (i) test each
system or component of the Base Building to confirm that it is Year 2000
Compliant, (ii) coordinate the scheduling of such tests with Tenant and permit
Tenant to observe the same, and (iii) permit Tenant and its Year 2000
consultants to inspect and copy all plans, specifications, vendor materials, and
other information regarding the Year 2000 Compliance of the Base Building.
Tenant shall take all actions as shall be necessary or appropriate
to insure that any systems or equipment installed by Tenant in the Building the
operation or control of which is interconnected with the Base Building
("Tenant's Building Equipment"), if not Year 2000 Compliant upon installation,
becomes Year 2000 Compliant on or before the date on which any failure to be
Year 2000 Compliant would have any adverse effect on the operation or control of
any component of the Base Building, and shall take all commercially reasonable
actions as shall be necessary or appropriate to insure that Tenant's Building
Equipment, if not Year 2000 Compliant upon installation, becomes Year 2000
Compliant as soon as possible. Without limiting the generality of the foregoing,
Tenant shall (i) test each system or component of the Tenant's Building
Equipment to confirm that it is Year 2000 Compliant, (ii) coordinate the
scheduling of such tests with Landlord and permit Landlord to observe the same,
and (iii) permit Landlord and its Year 2000 consultants to
30
42
inspect and copy all plans, specifications, vendor materials, and other
information regarding the Year 2000 Compliance of the Tenant's Building
Equipment.
Notwithstanding the foregoing, in no event shall either party be
required to permit the other to inspect or copy any confidential or proprietary
information.
As used in this Section 7.3, the term "Year 2000 Compliant" shall
mean that the system or component in question
(i) properly processes, uses, employs and refers to all dates
on and after January 1, 2000, and
(ii) properly functions (or, when applied prospectively, will
property function) on all dates on and after January 1, 2000,
in either case, without interruption, exception, error or inaccuracy arising by
reason of such dates being on or after January 1, 2000, and the term "Year 2000
Compliance" shall have the correlative meaning.
Article 8. Changes or Alterations by Landlord.
8.1 Landlord reserves the right, without the same constituting an
eviction and without incurring liability therefor:
(i) to make any changes, alterations, additions, improvements,
repairs or replacements in or to the Building (excluding the
Premises and the Tenant's Shafts (except for the repair or
replacement without enlargement of the Base Building Closet
Installations, the CNA Closet Installations and the Base Building
Pipes so long as the same shall remain in Tenant's Shafts)) and the
fixtures and equipment therein (excluding those in the Premises and
the Tenant's Shafts (except for the repair or replacement without
enlargement of the Base Building Closet Installations, the CNA
Closet Installations and the Base Building Pipes so long as the same
shall remain in Tenant's Shafts)), as well as in or to the street
entrances, plazas, sidewalks, curbs, halls, passages, elevators,
escalators and stairways and other parts of the Building (excluding
the Premises and Tenant's Shafts (except for the repair or
replacement without enlargement of the Base Building Closet
Installations, the CNA Closet Installations and the Base Building
Pipes so long as the same shall remain in Tenant's Shafts)), and
(ii) to make repairs to the Premises if required by the terms
of this Lease, and
31
43
(iii) to erect, maintain and use pipes, ducts and conduits in
and through the Building core (excluding (a) the portions of the
Building core included in the Premises, and (b) Tenant's Shafts
(except for the maintenance and use of the Base Building Closet
Installations, the CNA Closet Installations and the Base Building
Pipes so long as the same shall remain in Tenant's Shafts)),
all as Landlord may deem reasonably necessary or desirable; provided that as a
result of any of the foregoing referred to in clause (i), (ii) or (iii) of this
sentence, there shall be (w) no reduction in any service required to be
furnished pursuant to any other provision of this Lease (except as permitted by
Section 11.11), (x) no more than a de minimis affect on Tenant's access to or
use of the Premises or the stairways, shafts, risers and other utility areas of
the Building or the areas of the Building in which pursuant to this Lease Tenant
is permitted to install property or perform work, (y) no adverse affect upon the
security of the Building or the Premises, and (z) no adverse effect upon, or
upon the use or access to, any of the installations then existing in Tenant's
Shafts or any installations for which Tenant's Shafts could be used in the
future, and provided, further that Landlord shall use reasonable efforts to
minimize interference with Tenant in the location of any pipes, ducts and
conduits and shall permanently enclose them.
8.2 Notwithstanding the foregoing, unless required by Applicable
Law, Landlord shall not make changes, alterations, additions, improvements or
replacements to the street entrances, plazas, sidewalks, atrium, plaza level
lobby, mezzanine level lobby, escalators or elevators (except for any of such
changes, alterations, additions, improvements or replacements which are merely
cosmetic and do not involve or include the construction, installation, removal
or relocation of any wall or partition, stair or stairway, door or doorway,
ceiling or floor), or to the use of any of the foregoing, without Tenant's prior
approval, which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, Landlord shall be permitted, without consultation with Tenant, to
engage in its normal and typical maintenance of the atrium, plaza level lobby
and mezzanine level lobby in the same manner as it has prior to the date hereof
and as it shall deem necessary for the upkeep of the public portions of the
atrium. This Section 8.2 shall not be applicable so long as the Land and
Building are owned by CNA Corporation or its subsidiaries.
8.3 Landlord shall not lease or license any ground floor premises in
the Building (other than (i) the leasing of the now-existing lobby shop premises
to the present tenant thereof, or (ii) the leasing or licensing of the
now-existing lobby art gallery premises to the present tenant or licensee
thereof) without Tenant's prior approval of such person or entity and its use of
such premises (but not the terms of the lease or license), which approval shall
not be unreasonably withheld.
8.4 All art on the plaza level (including in the lobby art gallery
premises) or on the mezzanine level (i) shall be in keeping with museum quality
standards of presentation,
32
44
(ii) shall reflect subject matter suitable to corporate environment, and (iii)
shall exclude subjects alluding to religion, sex and overt aggression.
8.5 On or before December 31, 1998 Landlord shall change the name of
the Building to 180 Maiden Lane, which shall remain the sole name of the
Building throughout the term of this Lease.
8.6 On or before December 31, 1998 Landlord shall remove all signs
the continued presence of which would violate this Section 8.6. On and after
January 1, 1999, Landlord shall not erect or maintain, or suffer or permit any
other person or entity to erect or maintain, any identity signage on the Land,
on the exterior of the Building, in any of the areas referred to in Section 8.2,
or visible from the Land, the exterior of the Building or any of the areas
referred to in Section 8.2; provided, however, that (a) any tenant, including
Tenant, having a security desk in the lobby may display discrete identity
signage on its security desk, and (b) any tenant may display identity signage in
the elevator lobby on its floor notwithstanding that such signage .is visible
from the Building elevators. As used above the term "identity signage" shall
mean any signage containing the name of any person or entity (or any portion or
any abbreviation thereof) or any symbol or mark associated with any person or
entity.
8.7 Neither this Lease nor any use by Tenant shall give Tenant any
right or easement to the use of any door or any passage connecting the Building
with any subway or any other building, and the use of such doors and passages
may be regulated or discontinued at any time by Landlord.
8.8 If an excavation shall be made upon any land adjacent to the
Building, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause the excavation a license to enter upon the
Premises for the purpose of doing any work the person deems necessary to
preserve the Building from injury or damage, all without any claim for damages
or indemnity against Landlord or diminution or abatement of rent
Article 9. Surrender; Ownership of Improvements; Removal of Special
Installations; Tenant's Shafts and Other Areas; Holdover.
9.1 Surrender. On or prior to the expiration or any earlier
termination of the term hereof, Tenant shall terminate its occupancy of, and
quit and surrender to Landlord, the Premises, broom-clean and in as good
condition as it was at the commencement of the term, except for ordinary wear
and tear and damage by fire or other casualty and except for other damage for
which Tenant is not responsible under the terms of this Lease.
9.2 Ownership of Improvements. All fixtures, equipment, improvements
and installations attached to, or built into, the Premises at the commencement
of or during the term hereof, whether installed by or at the expense of Landlord
or Tenant, shall be and remain the property of Landlord and part of the
Premises, subject to this Lease, and shall not
33
45
be removed by Tenant except in connection with the continued use of the Premises
under this Lease; provided, however, that (i) unless such removal is required by
law, Tenant shall not remove any fixtures, equipment, improvements or
installations paid for by Landlord under the Initial Improvements Agreements
unless Tenant replaces the same with fixtures, equipment, improvements and
installations of substantially equal value, and (ii) Tenant shall have the
right, in all events, to remove any fuel tanks installed by it. All elevators
and all mechanical, electrical, plumbing and sprinklering fixtures, venetian
blinds, partitions, doors, vaults, stairs, paneling (including display cases and
cupboards recessed in paneling), molding, flooring, and heating, ventilation,
air conditioning and cooling equipment shall be deemed to be fixtures,
equipment, improvements and installations, whether or not attached to or built
into the Premises. If Tenant removes any fuel tank installed by it, it shall do
so in accordance with Applicable Law and shall remediate if and to the extent
required by Applicable Law.
9.3 Removal of Special Installations. As used in this Section 9.3
the term "Special Installations" shall mean any of the following furnished and
installed in the Premises by Tenant or Landlord at the request of Tenant
(whether or not attached thereto or built therein): internal staircases; slab
penetrations for interconnecting staircases and dumbwaiters; vaults; kitchens
with exhaust facilities ("Kitchens"); executive or private bathrooms; above-slab
slab reinforcements; vertical transportation systems (other than the conveyor
system installed by Landlord and existing on the date hereof); dumbwaiters; fuel
tanks; and Tenant's Antennas. If Landlord desires that any of the Special
Installations be removed from the Premises and so notifies Tenant prior to or
not more than six (6) months after the expiration or earlier termination of the
term of this Lease (which notice shall specify the Special Installations to be
removed and shall include a statement of the cost of such removal (which
Landlord shall have determined by (i) obtaining competitive bids from not fewer
than three qualified contractors (which bids shall be included with such
notice), and (ii) selecting the bid it believes to be most appropriate (which
most appropriate bid shall be identified in such notice) (the "Selected Removal
Bid"))) Tenant shall, by notice to Landlord given within thirty (30) days of its
receipt of Landlord's notice, elect either
(i) to remove such Special Installations (in which case Tenant
shall do so and repair any damage caused by such removal within
sixty (60) days after its receipt of Landlord's notice (or, if
later, within thirty (30) days after the expiration or earlier
termination of the term of this Lease), or
(ii) reimburse Landlord for the costs of such removal (in
which case if, within the period prescribed by clause (i) above,
Landlord shall remove such Special Installation Tenant shall
reimburse Landlord for the cost of such removal, not to exceed the
Selected Removal Bid).
Tenant's obligation to observe and perform this covenant shall survive the
expiration or earlier termination of this Lease. Notwithstanding the foregoing
provisions of this Section 9.3, Tenant shall not be required to remove (or pay
for the removal of) any Kitchen installed
34
46
by it unless upon expiration of this Lease there shall be more than three
Kitchens in the Premises and, in such a case, if Landlord desires the removal of
any Kitchen (i) Tenant shall not be required to remove (or pay for the removal
of) more than such number of Kitchens installed by it as shall be required to
reduce to three the number of Kitchens in the Premises, and (ii) Tenant shall
have the right to select which of the Kitchens installed by it to remove (or pay
for the removal of). If Tenant removes any fuel tank installed by it, it shall
do so in accordance with Applicable Law and shall remediate if and to the extent
required by Applicable Law.
9.4 Areas Reserved to Landlord. All the perimeter walls of the
Premises, any balconies, terraces or roofs adjacent to the Premises (including
any flagpoles or other installations on any perimeter, walls, balconies,
terraces or roofs), and any space in and or adjacent to the Premises used for
shafts, stairways, stacks, pipes, conduits, ducts, electric or other utilities,
sinks, fan rooms or other Building facilities, and the use thereof, as well as
access thereto through the Premises (subject to the provisions of Section
7.1(c)) for the purposes of the use, operation, improvement, replacement,
repair, maintenance and decoration thereof, are expressly reserved to Landlord.
9.5 [Intentionally Omitted]
9.6 Removal of Personal Property. Except as provided in Section 9.2,
at or prior to the Expiration Date or any earlier date upon which the term of
this Lease may expire or be terminated, Tenant shall remove from the Premises
all of its personal property. Any personal property that remains in the Premises
after the expiration or termination of the term of this Lease shall be deemed to
have been abandoned, and either may be retained by Landlord as its property or
may be disposed of at Tenant's expense in any manner that Landlord chooses.
9.7 Holdover. If Tenant or Tenant's successors or assigns, whoever
is in possession, fails to vacate the Premises or any portion thereof on or
before the Expiration Date or other termination date of this Lease, such
continued use and occupancy of the Premises or such portion thereof shall
constitute a holdover under a month-to-month tenancy, in which event Tenant
shall be obligated to pay Landlord in advance on the first day of each month
with respect to all floors of the Premises which Tenant has not then completely
vacated (1) for the first ninety (90) days after the Expiration Date or other
termination date, a monthly fixed rental equal to one hundred fifty percent
(150%) of the aggregate of the Fixed Rent and the Additional Rent payable under
Article 4 for the last month of the term hereof and (2) thereafter a monthly
fixed rental equal to two hundred percent (200%) of the aggregate of the Fixed
Rent and the Additional Rent payable under Article 4 for the last month of the
term hereof. Tenant's liability under this Section 9.7 with respect to any floor
of the Premises shall terminate upon Tenant's vacation of such floor, but this
sentence shall not be deemed to release Tenant from any such liability under
this Section 9.7 with respect to such floor of the Premises accrued prior to
such vacation. The liability provided for in this Section 9.7 shall constitute
Landlord's sole remedy on account of any holdover by Tenant,
35
47
and Tenant shall not be liable for any damages arising out of such holdover, or
to indemnify Landlord on account of any Claim arising out of such holdover;
provided, however, that this sentence shall not prevent Landlord from
prosecuting any action or proceeding to recover possession of the Premises.
Article 10. Electric Current and Water.
10.1 Base Electricity. Landlord shall furnish to the existing
electrical closets serving each floor of the Premises alternating electric
current in such amounts as Tenant shall from time to time draw or require;
provided, however, that Landlord shall not be required pursuant to this Section
10.1 to furnish alternating electric current in excess of 6 watts (demand) per
square foot of gross area of the Premises in the aggregate; provided, however,
that with respect to
(i) any of the Premises in the basement, the aforesaid amount
shall be 8.3 watts (demand) per square foot of gross area,
(ii) any of the Premises on the 3rd floor, the aforesaid
amount shall be 6.8 watts (demand) per square foot of gross area,
(iii) any of the Premises on the 4th floor, the aforesaid
amount shall be 12.8 watts (demand) per square foot of gross area,
and
(iv) any of the Premises on the 41st floor, the aforesaid
amount shall be 7.1 watts (demand) per square foot of gross area.
Tenant shall have the right to distribute the electrical current provided to it
under this Section 10.1 to the Premises (including transfers of electrical
current from one floor of the Premises to another) and to Tenant's installations
in, to, on or about the Building outside of the Premises. Tenant shall be
entitled to a key to the electrical closets on any floor all or any part of
which is included in the Premises.
10.2 Supplemental Electricity. Landlord shall furnish to each of
Tenant's Dedicated Switches (as hereinafter defined) alternating electric
current in such amounts as Tenant shall from time to time draw or require;
provided, however, that Landlord shall not be required pursuant to this Section
10.2 to furnish alternating electric current to Tenant's Dedicated Switches in
excess of 2000 amperes (demand) per switch, 4000 amperes (demand) in the
aggregate. Landlord shall not be obligated to furnish alternating electric
current under this Section 10.2 until Tenant shall have performed the work
described in Section 10.5. Tenant shall have the right to distribute the
electrical current provided to it under this Section 10.2 through the electrical
risers or buses installed by it pursuant to Article 42 to the Premises and to
Tenant's installations in, to, on or about the Building outside of the Premises.
36
48
10.3 Additional Electricity. If Tenant shall request or desire
alternating electrical current in excess of that to which it is entitled under
Section 10.1 and 10.2, then, subject to the provisions of this Section 10.3,
Landlord shall furnish the same; provided, however, that if, in Landlord's
reasonable judgment, such additional electric current cannot be furnished unless
additional panels, transformers, risers, conduits, feeders, switches,
switchboards and/or appurtenances ("Electrical Equipment") are installed in the
Building (a) Landlord shall not be required to furnish such additional electric
current until such additional Electrical Equipment is so installed, and (b)
Tenant shall be permitted, following written notice to Landlord, to install such
additional Electrical Equipment provided that the installation and use thereof
is permitted by Applicable Laws and shall not cause permanent damage or injury
to the Building or cause or create a dangerous or hazardous condition or entail
unreasonable alterations or unreasonably interfere with or disturb other tenants
or occupants of the Building (collectively, "Building Requirements"), and Tenant
shall pay all costs and expenses in connection with such installation.
10.4 Character of Electricity. All alternating current finished by
Landlord pursuant to this Lease shall be furnished at nominal utility voltage
(265/460V with allowable fluctuations within regulatory agency requirements), 3
phase, 4 wire, with a power factor of 0.9. The electrical voltage and current
distortion at the service switchboards shall be within the limits stated in IEEE
519.
10.5 Tenant's Dedicated Switches. The term "Tenant's Electrical
Work" shall mean
(i) modification of an existing switchboard as shown on
Exhibit OO to accept two Switches in accordance with Applicable Law,
(ii) relocation of load from a Switch on switchboard B as
shown on Exhibit OO to one of the two Switches on said modified
existing switchboard, and
(iii) connection of (a) the Switch on switchboard B referred
to in clause (ii) above, and (b) the other Switch on the existing
modified switchboard to Tenant's load. (such two switches being
herein called "Tenant's Dedicated Switches").
The term "Switch" shall refer to a switch rated a 2500 amperes fused at 2000
amperes (demand). Tenant shall have the right to perform Tenant's Electrical
Work and, if Tenant does so, Tenant shall be entitled to exclusive use of
Tenant's Dedicated Switches. Upon the completion of Tenant's Electrical Work,
Landlord shall cause alternating electrical current to be furnished to Tenant's
Dedicated Switches in accordance with Section 10.2.
10.6 Electricity Supplier for the Building. Except to the extent
that Tenant shall otherwise consent from time to time or as otherwise provided
in this Lease, Landlord
37
49
shall continue to purchase all electricity to be used by Landlord, Tenant or any
other tenant or occupant of the Building ("Building Electricity") from
Consolidated Edison Corporation or its successor ("ConEd") pursuant to ConEd's
applicable tariff and not pursuant to any contract or contractual arrangement.
Subject to the rights of any Building tenant under any lease now in
effect, Landlord shall not suffer or permit any tenant or occupant of the
Building (other than Tenant) to purchase electricity directly from ConEd or from
any other supplier (other than Landlord).
If Tenant shall so request Landlord shall solicit competitive bids
from at least three qualified electricity suppliers selected by Landlord and any
other qualified electricity suppliers identified by Tenant for the providing of
Building Electricity and, after consulting with Tenant and obtaining Tenant's
approval as provided below, shall enter into an electricity supply contract for
the providing of Building Electricity with the electricity supplier who Landlord
reasonably believes to be most beneficial to the tenants of the Building taking
into account price and any other relevant considerations; provided, however,
that Landlord shall not enter into any electricity supply contract with any
electricity supplier without Tenant's prior written approval of such contract
and such supplier. If any such contract entered into by Landlord shall provide
for any rebates or other payments to Landlord then the amounts payable by Tenant
under this Article 10 and Operating Costs under Article 4 shall be computed
after deducting such rebates and other payments. Upon the expiration or other
termination of any electricity supply contract, unless Tenant shall have
directed Landlord to purchase electricity from ConEd, Landlord shall again
comply with the provisions of this paragraph. If Tenant shall fail to approve
any electricity supply contract or any electricity supplier (either initially or
subsequently upon expiration or termination of the preceding electricity supply
contract) or shall direct Landlord to purchase Building Electricity from ConEd,
Landlord shall do so in accordance with the first paragraph of this Section
10.6, subject to the renewed application of this paragraph if Tenant shall
subsequently so request.
Landlord shall qualify and maintain qualification as a redistributor
of electricity under the applicable sales tax law, and, upon Tenant's request
from time to time, shall furnish to Tenant evidence that it has done so.
10.7 Electricity Charges -- Average Cost per KWH. All electric
current consumed by Tenant shall be measured by a meter or meters provided and
installed by Landlord at its expense at a location or locations selected by
Landlord. Each meter measuring the electricity referred to in Section 10.1 shall
be located in the Building electrical closet on the floor in question. Each
meter measuring the electricity referred to in Section 10.2 shall be located in
the basement of the Building on or adjacent to the switchboard on which the
switch in question is located. Prior to installing any meter pursuant to this
paragraph, Landlord shall so notify Tenant and, if Tenant promptly so request,
Landlord shall install a meter of the type referred to in Section 10.8 rather
than a consumption-only meter and in such a case Tenant shall reimburse Landlord
for increased cost of purchase or
38
50
installation of such meter in excess of the cost of purchasing and installing a
consumption-only meter.
Commencing on the Term Commencement Date and upon the Delivery Date
of each Applicable Portion, Tenant shall pay to Landlord, for each billing
period of the electricity supplier furnishing the Building Electricity (the
"Building Electricity Supplier"), an amount (the "Electric Charge") equal to the
product obtained by multiplying
(i) the actual number of kilowatt hours of electric current
consumed by Tenant in the billing period, by
(ii) a fraction having as its numerator
(a) if ConEd shall be the Building Electricity Supplier,
the amount charged Landlord by ConEd pursuant to the
applicable tariff for Building Electricity for the billing
period including both the consumption charge (including fuel
adjustment) and the demand charge and all utility taxes, and
excluding all sales and use taxes whether or not separately
stated on the electric bill issued to Landlord,
(b) if ConEd shall not be the Building Electricity
Supplier, the sum of (i) the amount charged Landlord by the
Building Electricity Supplier pursuant to the electricity
supply contract entered into in accordance with this Lease for
Building Electricity for the billing period and (ii) the
amount charged Landlord by ConEd pursuant to the applicable
tariff for delivery to the Building of such Building
Electricity purchased from the Building Electricity Supplier
for the billing period, including, in both cases, both the
consumption charge (including fuel adjustment) and the demand
charge and all utility taxes, and excluding all sales and use
taxes whether or not separately stated on the electric bill
issued to Landlord,
and having as its denominator the total number of kilowatt hours of
Building Electricity consumed in the billing period.
Tenant shall also pay to Landlord any sales taxes on the Billing Period Electric
Charge payable by it pursuant to this Section, and Landlord shall remit such
sales tax to the appropriate governmental agency.
If, with Tenant's prior consent, the Building Electricity shall be
purchased from more than one electricity supplier for any billing period, the
aforesaid fraction shall be computed by aggregating the amounts charged by and
the electricity furnished by such suppliers.
39
51
As used in this Section 10.7, the phrase "the amount charged
Landlord by ConEd" or "the amount charged Landlord by the Building Electricity
Supplier" shall mean such amount as reduced by all abatements, reductions and
exemptions if, as and when in effect and applicable to the electricity to which
this Section shall relate.
10.8 Electric Charges -- Actual Cost Contribution. By notice to
Landlord Tenant shall have the right to require that, in lieu of the amount
provided for in Section 10.7, the Electric Charge payable by Tenant be equal to
Tenant's actual contribution to the cost of Building Electricity ("Actual
Electric Cost Contribution"), considering consumption and demand (measured on a
co-incident demand basis) separately and, if Tenant shall so elect, considering
time of day; provided, however, that no such notice shall be effective unless
and until Tenant shall have installed in the Building such meters and other
equipment as are necessary to compute the Actual Electric Cost Contribution (the
"Additional Metering Equipment"). Tenant shall have the right to install the
Additional Metering Equipment in the Building. The demand component of the
Actual Electric Cost Contribution for any billing period shall be equal to the
ratio of Tenant's demand (measured on a co-incident demand basis) at the time of
the Building's peak demand for such billing period to the Building's peak demand
for such billing period, applied to the demand charge for such billing period.
The consumption component of the Actual Electric Cost Contribution for any
billing period shall be equal to the ratio of the Tenant's consumption for such
billing period to the Building's consumption for such billing period, applied to
the consumption charge (including fuel adjustment), and computed separately for
each applicable time of day, if applicable. The Actual Electric Cost
Contributions shall be computed exclusive of all sales and use taxes whether or
not separately stated on the electric bill issued to Landlord. Tenant shall also
pay to Landlord any sales taxes on the Electric Charge payable by Tenant
pursuant to this Section, and Landlord shall remit such sales tax to the
appropriate governmental agency. As used in this Section 10.8, the phrase "the
cost of Building electricity" shall mean such cost as reduced by all abatements,
reductions and exemptions if, as and when in effect and applicable to the
electricity to which this Section shall relate.
10.9 Billing & Payment. Landlord shall pay all charges for all
Building Electricity and shall indemnify Tenant against any claims therefor.
Landlord shall bill Tenant for the Electricity Charge, and the sales
and use tax thereon, monthly or at such other intervals as Landlord shall be
billed by the Building's Electricity Supplier. Each such bill shall be
accompanied by copies of the electric bills issued to Landlord on which it is
based, as well as records of the reading of the meters measuring Tenant's usage
and a statement showing the computation of the Electric Charge. Each such bill
rendered by Landlord in accordance with this Section shall be due and payable by
Tenant within twenty (20) days of presentation as aforesaid. If Tenant shall
dispute the amount of the Electric Charge for any billing period, and the
parties are unable to resolve such dispute within thirty (30) days of Tenant's
notice to Landlord thereof, such dispute shall be resolved by arbitration
pursuant to Article 35 and in any such arbitration the arbitrator shall be a
recognized electrical consultant practicing in New York City who shall have been
40
52
engaged in such practice for not less than ten (10) years. No such dispute shall
excuse Tenant from payment on the basis of Landlord's bill, but Tenant shall be
entitled to interest at the Interest Rate on any overpayment from the date of
overpayment to the date of refund.
Landlord shall make available to Tenant from time to time upon
Tenant's request copies of all electricity billing records and meter and
submeter readings for the Building.
10.10 Direct Service -- Illegality of Redistribution. If it shall
become illegal for Landlord to purchase and redistribute electric current to its
tenants, Landlord shall, upon not less than thirty (30) days' prior notice to
Tenant, discontinue the furnishing of electric current to Tenant and Tenant
shall contract for electric current with the electricity supplier of Tenant's
choice; provided, however, that
(a) Landlord shall permit Tenant to use any existing
Electrical Equipment in the Building for the purpose of receiving
such electric current from such supplier but only to the extent that
the same is available, suitable and safely capable of supplying
electric current to Tenant,
(b) if and to the extent that any additional Electrical
Equipment is required to be installed in Building in order for
Tenant to receive such electrical current (without reduction in
capacity or diversity) Landlord shall install the same at its
expense subject to Tenant's approval thereof (not to be unreasonably
withheld), and
(c) Landlord shall not discontinue the furnishing of electric
current to Tenant until (i) Tenant has concluded arrangements with
Tenant's electric supplier, (ii) Tenant's electricity supplier has
commenced to provide electric current to Tenant, and (iii) if any
additional Electrical Equipment is required by clause (b) above to
be installed, the same has been installed and placed in service.
10.11 Direct Service--Tenant's Election. By notice to Landlord,
Tenant shall have the right (i) to purchase directly from the electricity
supplier of its choice any or all of the electric current otherwise required to
be furnished by Landlord pursuant to this Article 10 and (ii) for such purpose
to use any existing Electrical Equipment in the Building for the purpose of
receiving such electric current from such supplier but only to the extent that
the same is available, suitable and safely capable of supplying electric current
to Tenant; provided, however, that (a) Tenant shall not directly so purchase
electricity unless and until Tenant shall have installed in the Building any
additional Electrical Equipment necessary for Tenant to do so, and (b) Tenant
shall be required, at its expense, to maintain any such Electrical Equipment
used by Tenant pursuant to clause (ii) above or installed by Tenant pursuant to
clause (a) above. Tenant shall have the right to install in the Building such
additional Electrical Equipment as shall be necessary or appropriate in order
for Tenant to
41
53
receive such electrical current (without reduction in capacity or diversity)
directly from Tenant's electricity supplier.
10.12 Tenant's Generator Plant -- Sale of Output. Tenant shall have
the right to sell the output of Tenant's Generator Plant to the purchaser of its
choosing (excluding Building tenants other than Tenant's subtenants), and to
install in the Building such additional Electrical Equipment as shall be
necessary for Tenant to do so; provided, however, that such additional
Electrical Equipment shall not adversely affect the Building's electrical system
or electric service to the Building or any of the other tenants therein.
10.13 General. Tenant's right to perform Tenant's Electrical Work
pursuant to Section 10.5 and Tenant's right to install Electrical Equipment
pursuant to Sections 10.3, 10.11 and 10.12 and Tenant's right to install
Additional Metering Equipment pursuant to Section 10.8 shall be subject to
Landlord's approval of the plans and specifications thereof (not to be
unreasonably withheld) and otherwise to the provisions of Section 6. Tenant
shall have the right to inspect and the right and obligation to maintain, repair
and replace all of the foregoing.
Tenant shall also have the right to inspect all meters referred to
in Section 10.7 and/or any Additional Metering Equipment in order to confirm the
accuracy thereof, and the right, subject to Landlord's approval (not to be
unreasonably withheld) to install devices to monitor and confirm the accuracy of
such meters and/or of such Additional Metering Equipment and/or to keep records
of Tenant's usage; provided, however, that such additional devices shall not
interfere with the functioning of such meters and/or of such Additional Metering
Equipment and that, if Landlord shall so request, Tenant shall remove such
devices upon the expiration or sooner termination of this Lease.
10.14 Lamps, Starters & Ballasts. Tenant shall purchase from the
vendor of its choice and install all lamps, starters and ballasts (including
replacements thereof) used in the lighting fixtures in the Premises.
10.15 Water. Landlord shall furnish hot and cold water for normal
use in Building lavatory and toilet facilities and for sprinklers, pantries and
slop sinks in or serving the Premises. Landlord shall furnish water for such
other purposes as Tenant shall require, including kitchens, a health club or
gymnasium, additional lavatory and toilet facilities and any cooling tower
installed by Tenant, for which Tenant shall pay as additional rent (i) the
actual out-of-pocket cost to Landlord of supplying, installing and maintaining a
meter to measure the water so furnished, (ii) the actual cost payable by
Landlord to the municipal or other water supplier for the such water, (iii) the
actual out-of-pocket cost to Landlord of any required pumping or heating of such
water, and (iv) any taxes, sewer rent or other charges that may be imposed by
any governmental agency based upon the quantity of such water the charge
therefor.
42
54
10.16 Exculpation. Landlord shall in no way be liable for any
failure, inadequacy or defect in the character or supply of electric current,
water or steam furnished to the Building.
10.17 Gas. From and after the Delivery Date of the 3rd/4th Floor
Special Purpose Area (i) Tenant shall have the exclusive right to use the gas
supply system of the Building, and (ii) Tenant shall become a direct customer of
ConEd or the gas supplier of Tenant's choice and pay all charges for gas
directly to the supplier thereof.
Article 11. Elevators, Cleaning, Services, etc.
11.1 Definitions. For the purposes of this Lease, "Business Hours"
shall mean 7:00 A.M. to 7:00 P.M. on days other than Saturdays, Sundays and
Holidays. The term "Holidays" mean the holidays prescribed in the contracts for
the Building's labor staff in general (i.e. exclusive of holidays which
individual employees may take at different times). For purposes of this Lease,
"Business Days" shall mean all days other than Saturdays, Sundays and Holidays.
11.2 Passenger Elevator and Escalator Service.
(a) Landlord shall supply passenger elevator service at all times to
each floor of the Building that is served by the Building's passenger elevators
and on which the Premises are, or any portion thereof is, located, and Landlord
shall keep all passenger elevators in service (and available to Tenant) at all
times (except for breakdown and scheduled service, repairs or other work which
shall be subject to Section 11.7).
Landlord shall cause each passenger elevator to conform to the
performance specifications attached hereto as Exhibit L. No passenger elevator
shall, without Tenant's consent, be modified to serve any floor it does not
currently serve or to cease serving any floor it currently serves, except that
(i) Tenant shall have the right, from time to time, to control
whether or not the low-rise and/or the mid-rise and/or the high-rise
elevator bank shall serve the 16th floor and, if either the mid-rise
and/or the high-rise elevator bank shall serve the 16th floor,
whether or not the same shall serve the 16th floor from the lobby,
and
(ii) Tenant shall have the right to install on the 3rd floor
of the Building doors to the low rise elevator shafts and, having
done so, the right from time to control whether the low-rise
elevators serve the 3rd floor of the Building (and Tenant
understands that doing so may increase the average waiting times
experienced throughout the low rise elevator bank).
43
55
Two of the high-rise elevators are configured so that they serve the
plaza level and provide direct exclusive service to selected floors of the
Building, known as executive service (the "Executive Elevators"). Tenant shall
have the right from time to time, limited to special occasions or special
functions, to place one or both of the Executive Elevators into executive
service and to make exclusive use of, and control the floors served by, the
Executive Elevators.
Tenant shall have the right, subject to Article 6 (including the
provisions thereof providing for Landlord's approval of the plans and
specifications), to upgrade and/or modernize the low-rise passenger elevators
("Tenant's Low Rise Elevator Work"). Tenant shall bear all costs of Tenant's Low
Rise Elevator Work, including hard and soft costs ("Tenant's Low Rise Elevator
Work Costs"), except that Landlord shall reimburse Tenant for the first $450,000
of such costs ("Landlord's Low Rise Elevator Cost Contribution"). Landlord shall
disburse Landlord's Low Rise Elevator Cost Contribution in installments. Each
installment shall be due within twenty (20) days of Tenant's request therefor
accompanied by copies of invoices for Tenant's Low Rise Elevator Work Costs paid
by Tenant.
(b) Landlord shall keep in service (and available to Tenant) at all
times (except for breakdown and scheduled service, repairs or other work which
shall be subject to Section 11.7) the two existing shuttle elevators. Except as
otherwise provided by this Section 11.2(b), one of such shuttle elevators shall
be configured to serve only the mezzanine level of the Building and the basement
of the Building and the other shuttle elevator shall be configured to serve only
the mezzanine level of the Building and the plaza level of the Building. If and
for so long as Tenant shall so request:
(i) one or both of such shuttle elevators (as Tenant shall
request) shall be configured to serve or not serve such of the
floors of the Building as it shall be capable of serving (as Tenant
shall request), and/or
(ii) Tenant shall be provided with keys in order to call
and/or operate one or both the shuttle elevators from or to any
floor of the Building it shall be capable of serving;
provided, however, that (a) the shuttle elevators shall be subject to call for
ADA access at all times as required by Applicable Law, and (b) Tenant shall
reimburse Landlord for the actual cost of any additional security necessitated
by any shuttle elevator service requested by Tenant pursuant to clause (i) of
this sentence.
(c) If Landlord shall install any card key or other security system
on any elevator the same shall be compatible with Tenant's key card.
44
56
(d) Landlord shall keep in service (and available to Tenant) at all
times (except for breakdown and scheduled service, repairs or other work which
shall be subject to Section 11.7) (i) two escalators between the plaza level and
the mezzanine level, and (ii) four escalators between the mezzanine level and
the 3rd floor of the Building (the "3rd Floor Escalators"); provided, however,
that
(A) prior to the Delivery Date of the 3rd/4th Floor Special
Purpose Area, Landlord shall not be required to keep the 3rd Floor
Escalators in service when none of the facilities on the 3rd floor
are in use, and
(B) from and after the Delivery Date of the 3rd/4th Floor
Special Purpose Area, (i) Tenant shall have the exclusive right to
use and to control access to and to control the operation and hours
of operation of the 3rd Floor Escalators, including the right to
shutdown one or more of such 3rd Floor Escalators, and (ii) Tenant's
right to use the 3rd Floor Escalators shall be exclusive, and (iii)
Tenant shall reimburse Landlord for the actual cost of the
Building's maintenance contract covering the 3rd Floor Escalators.
(e) From and after the Delivery Date of the 3rd/4th Floor Special
Purpose Area, (i) Landlord shall keep in service (and available to Tenant
exclusively) at all times (except for breakdown and scheduled service, repairs
or other work which shall be subject to Section 11.7) the elevator serving only
the loading dock and the 2nd, 3rd and 4th floors ("Special Purpose Elevator"),
and (ii) Tenant shall reimburse Landlord for the actual cost of the Building's
maintenance contract covering the Special Purpose Elevator.
(f) If for any Renewal Term the Premises shall not include the
3rd/4th Floor Special Purpose Area then (i) the provisions of clause (B) of the
proviso to Section 11.2(d) and the provisions of Section 11.2(e) shall be void,
and (ii) Landlord shall not be required to keep the 3rd Floor Escalators in
service when none of the facilities on the 3rd floor are in use.
11.3 Freight Elevator Service. Landlord shall supply freight elevator
service (including use of the Building loading docks) during the hours of 6:00
am through 8:30 pm on Business Days (the "Freight Elevator Hours") to each floor
that is served by the Building's freight elevators and on which the Premises
are, or any portion thereof is, located.
Except for breakdown and scheduled service, repairs and other work
which shall be subject to Section 11.11, Landlord shall keep both such freight
elevators in service (and available to Tenant) on a non-exclusive basis at all
times during Freight Elevator Hours.
If and for so long as Tenant shall be providing any cleaning under
Section 11.7, Landlord shall also provide freight elevator service during the
hours of 8:30 pm through midnight on Business Days for the purpose of
transporting Tenant's cleaning personnel and equipment.
45
57
Freight, furniture, business equipment, merchandise and packages of
any description shall be delivered to and removed from the Premises only in the
freight elevators and through the service entrances and corridors.
Notwithstanding the foregoing, Tenant shall be permitted to use the
passenger elevators for mail (including inter-office mail) delivery, courier
services (such as Federal Express and UPS) and messengers, provided that, if and
to the extent Tenant shall require the use of carts in connection therewith,
Tenant shall only use carts with bumpers which have been approved by Landlord,
such approval not to be unreasonably withheld, so as not to damage the passenger
elevator cars.
11.4 Heating, Ventilating and Air-Conditioning. Landlord shall
(a) subject to any applicable regulations adopted by any
governmental authority, supply heat to the Premises and the public
portions of the Building during Business Hours when needed for
comfortable occupancy, and
(b) subject to any applicable regulations adopted by any
governmental authority, supply air conditioning and ventilation to
the Premises and the public portions of the Building during Business
Hours throughout the year.
Such heating, ventilating and air-conditioning shall provide:
(a) inside conditions of no more than 76 (+/-2) degrees F.
d.b. (relative humidity of no more than 50%) so long as the outside
conditions are not more than 95 degrees F. d.b. 75 degrees F. w.b.,
except to the extent arising from occupancy of the Premises by more
than one person per 100 usable square foot or average electricity
consumption in the Premises of more than 3 watts (demand) per
useable square foot;
(b) inside conditions of not less than 70 degrees F. d.b. (no
minimum humidity) so long as the outside conditions are not less
than 5 degrees F. d.b; and
(c) at least .87 cfm of conditioned air per useable square
foot (including at least .15 cfm fresh air) supplied at no greater
than 58 degrees F. d.b. at the take-offs on each floor with not less
than 1.25 inches of residual static pressure as measured downstream
of the floor shutoff/isolation dampers on both risers and as
measured when such conditioned air is being provided to all floors
of the Building; provided, however, that when the base building
chiller plant is not in operation Landlord may supply air warmer
than the aforesaid temperature provided that Landlord increases the
quantity of air
46
58
delivered so as to provide equivalent cooling in accordance with
good operating practices.
Landlord shall maintain the heating, ventilation and air conditioning systems to
the Premises in good order and condition, except for damage occasioned by the
act of Tenant, which will be repaired by Landlord at Tenant's expense.
11.5 Supplemental Condenser Water. Landlord shall furnish to Tenant,
at all times, from the Building's condenser water system such condenser water as
Tenant shall from time to time draw for Tenant's supplemental cooling
requirements up to the Tenant's Building Condenser Water Quantity (as
hereinafter defined) of condenser water. Landlord shall furnish such condenser
water at a maximum entering water temperature of 85 degrees Fahrenheit, and
Tenant's condenser water-using equipment may cause such temperature to rise to a
maximum of 100 degrees Fahrenheit. Such condenser water shall be furnished
through the Building's condenser water riser to each floor on which the Premises
are located.
Initially Tenant's Building Condenser Water Quantity shall be 200
tons; provided, however, that by notice to Landlord given from time to time
Tenant may increase or decrease Tenant's Building Condenser Water Quantity;
provided, however, that except for any increase notice of which is given by
Tenant within 180 days of the commencement of the term of this Lease with
respect to any Accepted Offer Space and which is limited to the tonnage of
condenser water being delivered to such Accepted Offer Space prior to Tenant's
leasing the same, any such increase shall be subject to Landlord's having, at
the time of Tenant's notice of increase, such increase available.
Tenant shall pay, as additional rent to Landlord, within thirty (30)
days of being billed therefor, the Applicable Price for each ton of Tenant's
Building Condenser Water Quantity; provided, however, that for the period
commencing on the Term Commencement Date and ending on the date six (6) months
after occupancy for the conduct of business of the last of the Premises
described in Exhibit C to be occupied by Tenant, such charge shall be computed,
rather than by reference to Tenant's Building Condenser Water Quantity, by
reference to the condenser water-using equipment actually installed by Tenant
and serving the portions of the Premises in which Tenant shall have opened for
the conduct of business. There shall be no additional "tap-in" or other fees.
The charges under this paragraph shall be adjusted upon any increase or decrease
in Tenant's Building Condenser Water Quantity (and, during the period described
in the proviso the preceding sentence, upon Tenant commencing to occupy any
Applicable Portion for the conduct of business).
11.6 Cleaning By Landlord. Landlord shall clean the following areas
of the Building in accordance with the cleaning specifications annexed hereto as
Exhibit M:
(a) the common areas of the Building on or below the mezzanine
level of the Building, the fire stairs of the Building, and the
windows of the Building (both the interior and exterior thereof);
47
59
(b) all portions of the Premises (and all common areas of the
Building) that are located on any Partial Premises Floor; and
(c) during any period for which Tenant, in accordance with the
provisions of Section 12.3, has requested that Landlord clean all
portions of the Premises (and all common, service and utility areas
of the Building) that are located on any Full Premises Floor, all
portions of the Premises (and all common, service and utility areas
of the Building that are located on such Full Premises Floor;
provided, however, that Landlord shall not be required to clean (i) any portion
of the Premises below the mezzanine level of the Building, or (ii) any portion
of the Premises that is used for preparing, dispensing or consuming food or
beverages or for storage or as an exhibition area or classroom, or as a shipping
room, mail room or for similar purposes or that is a toilet (other than the
toilets located in the core of the Building) or a shop or that is used for the
operation of computers (other than personal computers or similar equipment),
data processing, reproduction, duplicating or similar equipment or any portion
of the Premises designated by Tenant as a Secure Area under Section 7.1(c) (the
portions referred to in this clause (ii) being herein called the "Excluded
Cleaning Areas")).
With respect to the cleaning provided by Landlord under this Section
11.6, Landlord shall provide to Tenant, not less frequently than quarterly, an
advance schedule of the days on which each of the periodic non-daily cleaning
services referred to in Exhibit M will be furnished to each floor of the
Premises and each portion of the common areas of the Building.
With respect to the cleaning provided by Landlord under this Section
11.6, Tenant shall pay to Landlord, Landlord's actual cost under Landlord's
cleaning contract, of any additional cleaning of the Premises required because
of the carelessness of Tenant.
Upon the conversion of any floor of the Building from a Partial
Premises Floor to a Full Premises Floor (i.e. upon the commencement of the term
of this Lease with respect to the last portion of the leasable area of such
floor) Landlord shall cease to clean such floor, subject to the provisions of
clause (i) of Section 11.7 below.
11.7 Cleaning By Tenant. Subject to the provisions of this Section
11.7, Tenant shall clean (a) all portions of the Premises (and all common areas
of the Building) located on any Full Premises Floor at least in accordance with
the applicable portions of the cleaning specification annexed hereto as Exhibit
M, and (b) all Excluded Cleaning Areas; provided, however, that upon not less
than 90 days prior notice to Landlord from time to time Tenant
48
60
(i) may request that Landlord clean all portions of the
Premises (and all common areas of the Building) on any Full Premises
Floor (and commencing upon the lapse of such 90 days (or such longer
period as shall be provided in Tenant notice under this clause (i))
such floor shall be cleaned pursuant to Section 11.6, rather than
this Section 11.7, and
(ii) may request that Landlord cease to clean all portions of
the Premises (and all common areas of the Building) on any Full
Premises Floor (and commencing upon the lapse of such 90 days (or
such longer period as shall be provided in Tenant's notice under
this clause (ii)) such floor shall again be cleaned pursuant to this
Section 11.7, rather than Section 11.6.
Tenant shall deposit its refuse and rubbish in the freight elevator
lobby of each Full Premises Floor which it is cleaning pursuant to this Section
11.7, and Landlord shall remove such rubbish nightly on Business Days.
11.8 Cooperation in the Selection of Cleaning Contractors. Landlord
and Tenant shall endeavor to cooperate with one another with respect to the
solicitation of bids for cleaning services to be provided by Landlord under
Section 12.2 and Tenant under Section 12.3; provided, however, that each party
shall have (i) the right to control the bidding procedures to be used by it
(and, in the case of Tenant, the right to award the contract without bidding)
and the terms and conditions of the cleaning contract to be entered into by it,
and (ii) to retain the cleaning contractor of its choice subject, in Tenant's
case, to the provision of Section 7.1(e). Subject to the foregoing, Landlord and
Tenant agree to solicit bids for the initial cleaning contract from the cleaning
contractors listed on Exhibit N.
11.9 Rubbish Removal. Landlord shall remove the refuse and rubbish
from each floor of the Premises and the Building nightly on Business Days;
provided, that in the case of any Full Premises Floor being cleaned by Tenant
pursuant to Section 11.7 Tenant shall have placed the same in the freight
elevator lobby. Tenant shall pay to Landlord, Landlord's actual cost under
Landlord's cleaning contract, of the removal from the Premises and the Building
of any of Tenant's refuse and rubbish in excess of that incident to normal
office occupancy, except wastepaper baskets left for emptying as an incident to
Landlord's normal cleaning of the Premises.
11.10 Additional Services. Landlord shall, when and to the extent
requested by Tenant upon advance notice not later than (x) 3:00 P.M., in case of
service on days other than Saturdays, Sundays and Holidays, (y) 12:00 P.M. on
Friday in case of service on Saturdays or Sundays and (z) 12:00 P.M. on the
business day preceding a Holiday in the case of service on a Holiday, furnish
(i) additional freight elevator (and loading dock) service on a dedicated basis,
(ii) additional heating, air conditioning, ventilation services, (iii)
additional cleaning services, and (iv) other additional services as listed on
Exhibit O annexed hereto, and Tenant, within twenty (20) days of Landlord's
bills therefor, shall pay Landlord the Applicable Price therefor. There shall be
no additional charge to Tenant for Tenant's use,
49
61
during Freight Elevator Hours, of the freight elevators to bring in construction
materials for the performance of Alterations or for Tenant's move in to any
portion of the Premises. During construction of Alterations and move-in, Tenant
will have the dedicated use of one (1) freight elevator at such times as Tenant
shall request, to be manned at such times by Landlord's own union labor;
provided, however, that (i) Tenant shall reimburse Landlord for Landlord's
actual out-of-pocket cost of furnishing such Landlord's own union labor, (ii) if
the use of Landlord's own union labor shall result in any labor trouble or
jurisdictional dispute with the union labor of Tenant's contractors, the freight
elevator shall instead be manned by union labor furnished by Tenant's
contractor, and (iii) Tenant shall not be entitled to such dedicated use of one
(1) freight elevator during any periods of breakdown of the Building's other
freight elevator. In addition, during such construction, Tenant may have the
exclusive use of one (1) passenger elevator from each bank for the transport of
its construction personnel only (but not construction materials). Tenant shall
be responsible for daily cleaning and maintenance of such elevator, the public
lobby and any other area of the Building (as opposed to the Premises) affected
thereby. During all other times, if Tenant requests temporarily the dedicated
use of one (1) freight elevator, Landlord shall furnish the same and Tenant
shall pay to Landlord the Applicable Price for such service. During its move-in
Tenant shall have the right to use the passenger elevators in the low rise
elevator bank for its move provided Tenant properly protects such elevators.
Following Tenant's performance of the initial Alterations with respect to any
portion of the Premises, Landlord shall clean such portion of the Premises to
prepare the same for Tenant's occupancy, at no additional cost to Tenant,
provided that such portion is free of construction materials and debris.
11.11 Interruption in Services. Landlord reserves the right, without
any diminution or abatement of rent or any other liability to Tenant, including,
without limitation, for direct or consequential damage, or otherwise, and
without constituting any claim of constructive eviction, to stop any heating,
elevator, escalator, ventilation, air conditioning, electricity, domestic water,
condenser water, cleaning or other service and to interrupt the use of any
Building facilities, when necessary, and for as long as may reasonably be
required, by reason of accidents, strikes, the making of repairs, alterations or
improvements, lockouts, riots, acts of God, governmental preemption in
connection with a national or local emergency, inability to secure a proper
supply of fuel, steam, water, electricity, labor or supplies, laws, orders or
regulations of any governmental authority, Landlord's compliance with any
mandatory governmental energy conservation or environmental protection program
or any voluntary governmental energy conservation program, the request or
consent of Tenant, or by reason of any other cause beyond the reasonable control
of Landlord, subject to the following provisions of this Section 11.11. Landlord
shall not, however, except in an emergency (i) voluntarily effect any shutdown
or reduction of any service without at least ten (10) business days prior notice
to Tenant of the time and duration thereof, or (ii) voluntarily effect or
continue any shutdown or reduction of (x) electricity, domestic water or
condenser water other than during the hours of 8:00 a.m. Saturday through 8:00
p.m. on Sunday, or (y) any other service (excluding cleaning) during Business
Hours. Additionally, except in emergency, Tenant, by notice to Landlord given
50
62
within five (5) business days of its receipt of Landlord's notice pursuant to
clause (i) of the preceding sentence relative to any service shutdown or
reduction, may require Landlord to postpone such service shutdown or reduction
by thirty (30) days. In case of any service shutdown or reduction arising out
of, or the ending of which requires, any work by Landlord, Landlord shall
prosecute such work diligently and continuously so as to minimize the duration
of such service shutdown or reduction. All non-emergency service, repairs and
other work to Building elevators and escalators shall be done outside Business
Hours, except for any extended repairs or other work that requires more than a
single evening; such extended repairs or other work shall be confined to one (1)
elevator or escalator per bank at any time (and the other escalator shall be
configured to run up).
11.12 Damage or Defective Condition. Tenant shall give to Landlord
prompt notice of any damage to, or defective condition in, any part or
appurtenance of the Building's sanitary, electrical, heating, air conditioning,
ventilation or other systems serving, located in, or passing through, the
Premises becoming known to Tenant's director of building operations (exclusive
of any such damage or defective condition to or in any fixtures, equipment,
improvements or installations installed by Tenant) and the damage or defective
condition shall be remedied by Landlord with reasonable diligence, provided,
however, that if the damage or defective condition was caused by, or by the
improper use of any of the systems by, Tenant or its employees, licensees or
invitees and is not coverable by an "all risk" insurance policy, the cost of the
remedy thereof shall be paid by Tenant within twenty (20) days of Landlord's
demand accompanied by appropriate supporting documentation. Tenant shall not be
entitled to claim any damages or offset in Fixed Rent or Additional Rent arising
from any such damage or defective condition, nor shall Tenant be entitled to
claim any eviction by reason of any such damage or defective condition.
11.13 Building Directory. Landlord shall maintain touch-screen
directories of tenants of the Building in the Building atrium at the Maiden Lane
and Pine Street entrances and on the mezzanine level. Landlord shall, at the
request of Tenant, maintain listings on such directories of Tenant and any other
person, firm or corporation in occupancy of the Premises or any part thereof as
permitted hereunder, and the names of any officers or employees of the
foregoing; provided, however, that the number of names so listed shall be in the
same proportion to the capacity of the Building directory as the aggregate
number of rentable square feet of the Premises is to the aggregate number of
rentable square feet of the Building, but in no event less than one per 150
square feet of rentable area of the Premises. The listing of any name other than
that of Tenant, whether on the doors or windows of the Premises, on the Building
directory, or otherwise, shall not operate to vest any right or interest in this
Lease or in the Premises or be deemed to be the consent of Landlord mentioned in
Article 12 below, nor shall it be deemed to be the consent of Landlord to any
assignment or transfer of this Lease or to any sublease of the Premises or to
the use or occupancy thereof by others.
11.14 Operation & Maintenance of the Building. Landlord shall
operate and maintain the Building and provide all services consistent with
standards for a Class A office
51
63
building in downtown Manhattan. Landlord shall maintain in condition befitting a
Class A office building in downtown Manhattan the Building's structure and
shell, all common, service and utility areas and facilities of the Building and
the Building's electrical, heating, ventilating, air-conditioning, plumbing,
sanitary, sprinkler, fire life safety and other systems (excluding any portions
thereof installed by Tenant) (all of the foregoing being herein called the "Base
Building"), and shall make all repairs and replacements to the Base Building
required to keep the same in such condition. Landlord shall clean and police the
Building atrium and shall clean, maintain, repair and replace all personal
property therein as befitting a Class A office building in downtown Manhattan,
including the plants and landscaping therein.
11.15 Accessibility and Security (a) Landlord shall provide a
uniformed guard twenty-four (24) hour a day seven (7) days a week at the Maiden
Lane entrance to the Building for security purposes and to provide ADA
accessibility and assistance as needed.
(b) The provisions of this Section 11.15(b) shall be applicable
during Business Hours.
Persons shall be permitted to enter the Building atrium at the
Maiden Lane and Pine Street entrances and proceed to the mezzanine
level without clearing security.
Landlord shall station security personnel at both the south
security desk on the mezzanine level and the north security desk on
the mezzanine level.
Persons displaying an identification card issued by Tenant (a
"Tenant ID Card") shall be permitted to pass Landlord security at
either the north or south security desk on the mezzanine level.
Persons without a Tenant ID Card seeking to enter the Premises
shall be required to clear Landlord security on the mezzanine level
and Landlord's security personnel will notify Tenant whenever any
such person seeks access to the Premises and shall admit such person
if Tenant authorizes such entry.
Notwithstanding the preceding paragraph (i) Tenant shall have
the right to station its own security personnel at the south
security desk on the mezzanine level (in addition to Landlord's
security personnel at such desk) and (ii) so long as and whenever
Tenant stations its own security personnel at the south security
desk persons without a Tenant ID Card seeking to enter the Premises
shall be processed by Tenant's security personnel rather than
Landlord's security personnel. Tenant's security personnel may issue
a day pass to any such person and, by displaying a current day pass
issued by
52
64
Tenant's security personnel, such person shall be permitted to pass
Landlord security at either the north or south security desk on the
mezzanine level.
(c) The provisions of this Section 11.15(c) shall be applicable
other than during Business Hours.
Persons shall be permitted to enter the Building atrium only
at the Maiden Lane entrance and shall be subject to security at that
location.
Landlord shall station security personnel at the Maiden Lane
entrance.
Persons displaying a Tenant ID Card shall be permitted to pass
Landlord security on the plaza level and proceed to the mezzanine
level.
Persons without a Tenant Employee ID Card seeking to enter the
Premises shall be required to clear security on the plaza level and
Landlord's security personnel will notify Tenant whenever any such
person seeks access to the Premises and shall admit such person if
Tenant authorizes such entry.
Notwithstanding the preceding paragraph (i) Tenant shall have
the right to install and station security personnel at its own
security desk on the plaza level, near the Maiden Lane entrance, and
(ii) so long as and whenever Tenant stations its own security
personnel on the plaza level persons without a Tenant ID Card
seeking to enter the Premises shall be processed by Tenant's
security personnel rather than Landlord's security personnel.
Tenant's security personnel may issue a day pass to any such person
and, by displaying a current day pass issued by Tenant's security
personnel, such person shall be permitted to pass Landlord security
on the plaza level (and proceed to the mezzanine level).
Either party may provide additional security at the mezzanine
level, but any person displaying a Tenant ID Card or a current day
pass issued by Tenant's security personnel shall be permitted to
pass any such additional Landlord security.
(d) Tenant shall furnish Landlord with samples of its Tenant ID Card
and day pass. Landlord shall not be responsible for verifying that any person
displaying a Tenant ID Card or a day pass issued by Tenant is in fact the
authorized holder thereof. Persons displaying a Tenant ID Card or a day pass
issued by Tenant shall not be required by Landlord to sign any register upon
leaving or entering the Building at any time.
(e) Tenant shall have the right to control access to the low-rise
elevator bank (and in the event Tenant shall ever lease all premises served by
the mid-rise elevator bank or the high-rise elevator bank, such additional
elevator bank or banks, as applicable). Tenant
53
65
shall have the right (i) for such purpose to install (A) turnstiles and gates to
the low-rise elevator bank (and in the event Tenant shall ever lease all
premises served by the mid-rise elevator bank or the high-rise elevator bank,
such additional elevator bank or banks, as applicable), and/or (B) to install
partitions to separate any elevator bank to which Tenant has the right to
control access from any elevator bank or other area to which Tenant does not
have the right to control such access, subject, in either case, to Landlord's
prior approval of the plans therefor, which approval shall not be unreasonably
withheld, or (ii) to exercise such control by other means, subject to the
approval of Landlord which approval shall not be unreasonably withheld.
(f) Tenant shall have the right (i) to install computers and
telephones at its security desks and (ii) to run voice, data and/or electrical
conduits from the Premises or Tenant's Shafts to such computers and telephones
and to any equipment installed by Tenant to control access to any elevator bank.
Landlord shall furnish electricity to any such computers, telephones and
equipment.
11.16 Tenant's Car Service Line. Landlord shall (at no cost to
Landlord) cooperate with Tenant's efforts to sign any permit applications
requested by Tenant to enable Tenant to acquire rights to use the area directly
in front of the Maiden Lane entrance for its car service line.
11.17 Applicable Price. The term "Applicable Price" as used with
respect to each item referred to Exhibit O shall mean the price set forth
therefor on Exhibit O (the "Original Applicable Price"); provided, however, that
on January 1, 2000 and on each succeeding January 1, Landlord may adjust the
Applicable Price of each item to reflect increases in the actual cost to
Landlord of providing such item; provided, however, that in no event shall the
Applicable Price for any item any year exceed product of the Original Applicable
Price for such item multiplied by the CPI Factor for such year.
The term "CPI Factor" shall mean for any year the quotient of the
Index for January of such year divided by the Index for January 1999. The term
"Index" shall mean the Revised Consumer Price Index for All Urban Consumers
(i.e., the "CPI-U") published by the Bureau of Labor Statistics of the United
States Department of Labor ("BLS"), for New York-Northern New Jersey-Long
Island, NY-NJ-CT, All Items (1982-84 = 100). IF BLS changes the publication
frequency of Index so that an Index is not available for the month of January to
make any adjustment specified herein, the adjustment in question shall be based
on the percentage difference between the Index for the closest preceding month
for which an Index is available and the Index for the corresponding month in
1999. If BLS changes the base reference period for the Index from 1982-84 = 100,
the adjustments required hereunder shall be determined with the use of such
conversion formula or table as may be published by BLS. If BLS otherwise
substantially revises, or ceases publication of, the Index, then a substitute
index for determining the adjustments required hereunder, issued by BLS or by a
reliable governmental or other nonpartisan publication, shall be reasonably
designated by Landlord.
54
66
11.18 Fire Alarm. Tenant shall have the right to install a new
"state of the art" micro-processor based data gathering panel (DGP) on each
floor for incorporation into the existing base building fire alarm system. The
DGPs shall be microprocessor based, and include distributed amplification and
distributed power supplier. Tenant shall have the right to install a redundant
(second) Fire Alarm System riser cable, connected to the base building system,
to serve Tenant's DGPs. In connection with this work, Tenant may relocate the
existing building fire alarm system due to its location within the CNA Closet.
In performing its work under this Section Tenant shall comply with Applicable
Law, including applicable fire regulations, and shall purchase components from
the manufacturer of the base building system.
Article 12. Assignment and Subletting.
12.1 General. Except as hereinafter provided, Tenant, for itself,
its distributees, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not, directly or indirectly, by operation of
law or otherwise, assign, mortgage or encumber this Lease or any part thereof,
or underlet, or suffer, or permit the Premises or any part thereof to be used or
occupied by others, without the prior written consent of Landlord in each
instance. If this Lease or any part thereof is assigned, or if the Premises or
any part thereof is underlet, used or occupied by anyone other than Tenant,
Landlord may, after default beyond any applicable notice or cure period by
Tenant, collect rent from the assignee, undertenant, user or occupant, and apply
the net amount collected to the rent herein reserved, but no assignment,
underletting, use, occupancy or collection shall be deemed a waiver (except to
the extent Landlord has collected Fixed Rent and Additional Rent) of the
provisions hereof, or the acceptance of the assignee, undertenant, user or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment, mortgage, encumbrance, underletting, use or occupancy
shall not in any way be construed to relieve Tenant or any assignee or subtenant
from obtaining the express consent in writing of Landlord to any further
assignment, mortgage, encumbrance, underletting, use or occupancy to the extent
required by the terms of this Article. Each assignee and each subtenant shall be
bound by the same obligations and entitled to the same rights as Tenant under
this Article 12, including the rights provided by Sections 12.7 and 12.8 except
that (i) the proviso to Section 12.7 shall not be applicable to any subtenant,
and (ii) when applying Section 12.8 to any subtenant the term "Related Party"
shall be defined by reference to such subtenant rather than Tenant. Tenant shall
not include in any advertisement the proposed sublease rental rate.
Notwithstanding any subletting to any subtenant or acceptance of rent or
additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Fixed Rent and Additional Rent due and to
become due hereunder and for the performance of a11 the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and all acts and omissions of any subtenant or anyone claiming
under or through any subtenant that shall be in violation of any of the
obligations of this Lease, and any violation shall be deemed to be a violation
55
67
by Tenant. Any amendment or modification to a sublease which shall extend the
term thereof or shall expand the premises demised thereby (other than, in either
case, pursuant to the exercise of an option or right set forth therein) shall,
as to such extension or expansion, be deemed to constitute a new sublease to
which the provisions of this Article 12 shall separately apply; any other
amendment or modification of a sublease shall not be deemed a new sublease but
Tenant shall furnish Landlord with a copy thereof prior to the effectiveness
thereof.
12.2 Request for Consent. Each request by Tenant for Landlord's
consent to any assignment of this Lease or any sublease of all or any part of
the Premises shall be accompanied by
(i) a statement of the proposed effective or commencement date
of the proposed assignment or sublease, which shall be not less than
ten (10) business days nor more than one (1) year after the giving
of the notice,
(ii) in the case of a proposed sublease, (x) a description of
the premises proposed to be sublet, including all premises covered
by any expansion rights and options proposed to be included in such
proposed sublease (together, the "Proposed Sublease Premises"), and
(y) a statement of the proposed expiration date of the proposed
sublease, assuming the exercise of any renewal options proposed to
be included in such proposed sublease (the "Proposed Sublease
Expiration Date"),
(iii) a statement setting forth in reasonable detail the
identity of the proposed assignee or subtenant and the nature of its
business,
(iv) a confirmation that the proposed primary use of the
premises to which such assignment or sublease shall relate is office
use or if such proposed primary use is not office use, then a
statement setting forth the proposed primary use of the Premises,
(v) if known to Tenant, a statement of the identity of any
broker who may be entitled to a commission in respect of the
proposed assignment or subletting,
(vi) such financial information with respect to the proposed
assignee or subtenant, as shall have been furnished to Tenant by
such assignee or subtenant (it being agreed, however, that in the
case of a proposed sublease Landlord shall not be entitled to
withhold its consent by reason of the financial condition of the
proposed subtenant), and
56
68
(vii) in the case of a proposed assignment, such other
information reasonably requested by Landlord within five (5) days of
its receipt of the information referred to in the preceding clauses
of this sentence.
12.3 Consent Not to Be Unreasonably Withheld; Conditions. Provided
that Tenant is not in default of any of Tenant's obligations under this Lease
beyond any applicable notice or grace period, Landlord's consent to the proposed
assignment or sublease shall not be unreasonably withheld, provided that the
following conditions are satisfied:
(a) Tenant shall have complied with the provisions of Section
12.2 of this Article;
(b) The proposed assignee or subtenant is engaged in a
business that is in keeping with the standards of the Building;
(c) The proposed assignee or subtenant is a reputable entity
of good character;
(d) The proposed assignee or sublessee is not an entity with
whom Landlord is then negotiating to lease comparable space in the
Building which Landlord has available for a comparable term; and
(e) In the case of a proposed sublease, there shall not be
more than three (3) occupants (including Tenant) of each floor of
the Premises on which all or any portion of the premises proposed to
be subleased shall be located, provided that an entity, together
with its Related Parties, shall be considered a single occupant for
purposes of this Section 12.3(e).
Within ten (10) business days after receipt by Landlord of all
information required by Section 12.3 Landlord shall either (i) grant consent in
the form attached hereto as Exhibit P or (ii) furnish Tenant with a notice that
it withholds consent and of its reasons therefor. If Landlord shall fail timely
to grant such consent or furnish such notice, Landlord shall be deemed to have
granted such consent.
Tenant shall reimburse Landlord, within thirty (30) days of receipt
of an invoice from Landlord therefor, for any actual reasonable out-of-pocket
costs that may be incurred by Landlord to independent third parties in
connection with the considering Tenant's request for consent, including, without
limitation, the costs of making investigations as to the acceptability of the
proposed assignee or subtenant, and reasonable legal costs incurred in
connection with the granting of any requested consent.
If Landlord shall decline to give its consent to any proposed
assignment or sublease, Tenant shall indemnify, defend and hold harmless the
Landlord Indemnitees against and from any and all Claims that may be made
against the Landlord Indemnitees by
57
69
the proposed assignee or sublessee or by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
12.4 Effect of Consent.
Each consent to assignment issued by Landlord pursuant to Section
12.3 shall be effective with respect to any assignment of this Lease to the
assignee identified in Tenant's request for consent provided that such
assignment (i) is fully-executed and delivered (and a copy thereof delivered to
Landlord) within 270 days of Tenant's request for consent, and (ii) is effective
on a date no earlier than the date set forth in Tenant's request for consent. If
Tenant proposes to enter into any assignment of this Lease not conforming to the
foregoing provisions of this paragraph, Tenant shall again be required to comply
with the foregoing provisions of this Article 12.
Each consent to sublease issued by Landlord pursuant to Section 12.3
shall be effective with respect to any sublease of all or any portion of the
Proposed Sublease Premises identified in Tenant's request for consent to the
subtenant identified in Tenant's request for consent provided that such sublease
(i) is fully-executed and delivered (and a copy thereof delivered to Landlord)
within 270 days of Tenant's request for consent, (ii) commences no earlier than
the proposed commencement date set forth in Tenant's request for consent, and
(iii) expires (assuming the exercise of any renewal options provided for
therein) no later than the Proposed Sublease Expiration Date set forth in
Tenant's request for consent. If Tenant proposed to enter into any sublease of
all or any portion of the Premises not conforming to the foregoing provisions of
this paragraph, Tenant shall again be required to comply with the foregoing
provisions of this Article 12.
Tenant shall deliver to Landlord prior to the effective date of the
assignment or the commencement date of the sublease executed copies of such
assignment or sublease as well as all other agreements, if any, relating to such
assignment or sublease, and, if not fully disclosed thereby, a statement of all
consideration to be received by Tenant for or in connection with the assignment
or sublease and the terms of payment therefor.
12.5 Provisions Applicable to Every Sublease. With respect to each
and every sublease or subletting authorized by Landlord under the provisions of
this Lease or for which Landlord's consent is not required, it is further agreed
that:
(a) No subletting shall be for a term ending later than one
(1) day prior to the Expiration Date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of the sublease has been delivered to Landlord; and
58
70
(c) Each sublease shall provide that it is subject (to the extent
applicable to the subleased premises and sublease term) and subordinate to
this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry 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 the sublease,
and the subtenant shall, at Landlord's option, attorn to Landlord pursuant
to the executory provisions of the sublease, except that Landlord shall
not (1) be liable for any previous act or omission of Tenant under the
sublease, (2) be subject to any offset, not expressly provided in the
sublease, that theretofore accrued to the subtenant against Tenant, or (3)
be bound by any modification of the sublease made after Landlord's so
taking over such right, title and interest unless Landlord has consented
to such modification or by any previous prepayment of more than one
month's rent.
12.6 Profit-Sharing. If Landlord shall give its consent to any
assignment of this Lease or to any sublease, Tenant shall in consideration
therefor, pay to Landlord, as additional rent:
(a) in the case of an assignment, an amount equal to fifty percent
(50%) of all sums (excluding rent payable under this Lease, which shall be
payable directly to Landlord) and other consideration payable to Tenant by
the assignee for or by reason of the assignment (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures,
leasehold improvements, equipment, furniture, furnishings or other
personal property, less the net unamortized cost thereof determined on the
basis of generally accepted accounting principles consistently applied)
reduced (but not below zero) by (i) the actual expenses incurred in good
faith by Tenant in connection with such assignment including without
limitation, e.g., lease takeover payments and other tenant allowances,
reasonable attorney's fees, cost of initial alterations made to the
Premises (or portions thereof) for the benefit of the assignee and
brokerage and leasing commissions, and (ii) an amount equal to the Fixed
Rent and Additional Rent payable under this Lease during the period
commencing on the date the Premises was vacated by Tenant through the
effective date of the assignment, but in no event to exceed six (6)
months, payable if, as and when Tenant receives such sums, after
recoupment by Tenant of such actual expenses referred to in clause (i)
above and such amount referred to in clause (ii) above; and
(b) in the case of a sublease, fifty percent (50%) of any rents,
additional charges or other considerations payable under the sublease to
Tenant by the subtenant that are in excess of the Fixed Rent and
Additional Rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited to, sums paid for
the sale or rental of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property, less the net
unamortized cost thereof determined on the basis of generally accepted
accounting principles consistently
59
71
applied) reduced (but not below zero) by (i) the actual expenses incurred
in good faith by Tenant in connection with such sublease including,
without limitation, e.g., lease takeover payments and other tenant
allowances, reasonable attorney's fees, cost of initial alterations made
to the subleased space for the benefit of the sublessee and brokerage and
leasing commissions and (ii) an amount equal to Fixed Rent and Additional
Rent payable under this Lease in respect of the subleased space for the
period commencing on the date the subleased space was vacated by Tenant
through the commencement date of the sublease, but in no event to exceed
six (6) months, payable if, as and when Tenant receives such sums, after
recoupment by Tenant of such actual expenses referred to in clause (i)
above and such amount referred to in clause (ii) above.
12.7 Changes in Control; Transactions with Successors. Sections
12.1, 12.2, 12.3, 12.4 and 12.6 of this Article shall apply to a transfer,
directly or indirectly, by one or more transfers (other than transfers of
publicly traded interests in Tenant), of a majority of the beneficial interest
of Tenant only if the primary purpose thereof is the circumvention of the
conditions and restrictions set forth in this Article 12, as if such transfer
were an assignment of this Lease. The first sentence of Section 12.1 and
Sections 12.2, 12.3, 12.4, 12.5 and 12.6 of this Article shall not apply to, and
Landlord's consent shall not be required for, transactions with a corporation or
other entity into or with which Tenant is merged or consolidated or to which all
or substantially all of Tenant's assets are transferred; provided that in either
case (1) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles of not less than the product of
eighteen (18) multiplied by the per annum Fixed Rent then payable under this
Lease, and (2) proof reasonably satisfactory to Landlord of such net worth shall
have been delivered to Landlord no later than ten (10) days after the effective
date of the transaction.
12.8 Transactions with Related Parties. The first sentence of
Section 12.1 and Sections 12.2, 12.3, 12.4, 12.5 and 12.6 of this Article shall
not apply to, and Landlord's consent shall not be required for, any assignment
or sublease by Tenant to any Related Party or to the occupancy of any portion of
the Premises by a Related Party without a subletting or assignment. For the
purposes of this Section, a "Related Party" shall mean (x) any corporation,
partnership or other entity which, at the time of the making of such assignment
or sublease or the commencement of such occupancy, is controlled by, controls,
or is under common control with, Tenant, (y) any service provider of Tenant
(such as, for example, any consultant providing services (e.g., travel,
technology, legal or accounting services) to Tenant and/or its employees, but
not to the public) and (z) any entity that acquires one of Tenant's business
units or divisions.
12.9 Miscellaneous Provisions Regarding Assignments. Any assignment
of this Lease (other than an assignment by operation of law in connection with a
merger or consolidation), whether made with Landlord's consent pursuant to
Section 12.1 of this Article, or without Landlord's consent pursuant to Section
12.7 or 12.8 of this Article, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and
60
72
deliver to Landlord an agreement in the form attached hereto as Exhibit Q. No
such assignment shall release any predecessor tenants, including the
original-named Tenant, from liability. The joint and several liability of Tenant
and any assignee or immediate or remote successor in interest of Tenant and the
due performance of the obligations of this Lease on Tenant's part to be
performed or observed shall not be discharged, released or impaired in any
respect by any agreement or stipulation made by Landlord extending the time of,
or modifying any of the obligations of, this Lease, or by any waiver or failure
of Landlord to enforce any of the obligations of this Lease.
Article 13. Damage by Fire, etc.
13.1 If any part of the Premises shall be damaged by fire or other
casualty, Tenant shall give prompt notice thereof to Landlord. If any part of
the Premises or of the Base Building shall be damaged by fire or other casualty
Landlord shall, subject to the provisions of Section 13.2, proceed with
reasonable diligence to repair the damage, and if any part of the Premises shall
be rendered untenantable by reason of such damage to the Premises or the Base
Building, the annual Fixed Rent and the Additional Rent on account of Real
Estate Taxes, Operating Costs and Cleaning Costs payable hereunder, to the
extent that the Fixed Rent and the Additional Rent on account of Real Estate
Taxes, Operating Costs and Cleaning Costs relates to the part of the Premises
that has been rendered untenantable, shall be abated for the period from the
date of the damage to the date when such part of the Premises shall have been
made tenantable or to any earlier date upon which the term of this Lease shall
expire or terminate. As used in this Article, the term "untenantable" shall
mean, with respect to the Premises or any portion thereof, that the same is
unsuitable for use (and is not used) in the normal manner for the purpose for
which leased, by reason of damage or destruction therein or to the Base
Building, or by reason of interruption or diminution in any of the services
otherwise ordinarily provided thereto, or by reason of not being reasonably
accessible. In the event a rent abatement occurs under this Article with respect
to a portion of the Premises then subject to another abatement of rent under
this Lease, the other abatement period shall be extended with respect to such
portion of the Premises one (1) day for each day of the abatement period under
this Article. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from any damage
or the repair thereof. Tenant acknowledges that Landlord is not obligated to
carry insurance of any kind on Tenant's goods, furniture or furnishings or on
any fixtures, equipment, improvements, installations or appurtenances installed
by Tenant or removable by Tenant as provided in this Lease, and that Landlord
shall not be obligated to repair any damage thereto or replace the same.
13.2 If repair or restoration of the Building (excluding goods,
furniture or furnishings and any fixtures, equipment, improvements,
installations or appurtenances installed by or for any tenant or removable by
any tenant) reasonably estimated to cost at least fifty percent (50%) of the
full insurable value of the Building (excluding goods, furniture or furnishing
and any fixtures, equipment, improvements, installations or appurtenances
installed by or for any tenant or removable by any tenant) shall be required
61
73
as a result of damage by fire or other casualty (whether or not the Premises
shall have been damaged by fire or other casualty), then this Lease and the term
and estate hereby granted may be terminated by Landlord by its giving to Tenant
within ninety (90) days after the date of the damage a notice specifying a date,
not less than thirty (30) days after the giving of the notice, for the
termination; provided, however, that, at Tenant's election, no such notice of
termination shall be effective unless Landlord shall also simultaneously
terminate all other leases of space in the Building. In the event of the giving
of notice of termination, this Lease and the term and estate hereby granted
shall expire as of the date specified therefor in the notice, with the same
effect as if that date were the Expiration Date, and the Fixed Rent and
Additional Rent payable hereunder shall be apportioned as of the date of
termination, subject to abatement, if any, as and to the extent above provided.
13.3 If because of damage by fire or other casualty more than
twenty-five percent (25%) of the floor area of the Premises shall have been
rendered untenantable, Landlord shall deliver to Tenant within forty-five (45)
days of the date of the fire or other casualty the determination of an
independent architect or engineer selected by Landlord, subject to Tenant's
approval (not to be unreasonably withheld), of the estimated time to complete
the repair and restoration required by Section 13.1 (the "Estimated Repair
Time"). If such independent architect's or engineer's determination of the
Estimated Repair Time is greater than one hundred eighty (180) days from the
date of the fire or other casualty, Tenant may terminate this Lease by giving
notice of termination to Landlord within thirty (30) days after the receipt by
Tenant of notice from Landlord specifying such independent architect's or
engineer's determination of the Estimated Repair Time. If Tenant does not
terminate this Lease as provided above or such independent architect's or
engineer's determination of the Estimated Repair Time was less than one hundred
eighty (180) days, and Landlord fails to complete the repair and restoration
required by Section 13.1 within the Estimated Repair Time plus thirty (30) days,
Tenant may terminate this Lease by giving notice of termination to Landlord
within thirty (30) days after the expiration of the Estimated Repair Time plus
thirty (30) days. If Tenant gives notice to Landlord to terminate this Lease as
provided above, this Lease shall terminate on the date provided for in the
notice by Tenant, but in no event later than twelve (12) months after the giving
of the notice, with the same effect as if the date specified in the notice was
the Expiration Date and the Fixed Rent and Additional Rent payable hereunder
shall be apportioned as of the date of termination, subject to abatement, if
any, as and to the extent above provided.
13.4 Nothing herein contained shall relieve Tenant from any
liability to Landlord in connection with any damage to the Premises or the
Building or Landlord's property therein by fire or other casualty if Tenant
shall be legally liable therefor, except, however, that Landlord hereby releases
Tenant with respect to any liability that Tenant might otherwise have had to
Landlord for any damage to the Premises or the Building or Landlord's property
therein by fire 6r other casualty occurring during the term of this Lease to the
extent arising from a casualty or other event coverable by an "all risk"
insurance policy.
62
74
13.5 This Lease shall be considered an express agreement governing
any case of damage to or destruction of, or any part of, the Building or the
Premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York providing for a contingency in the absence of express
agreement, and any other law of like import now or hereafter in force, shall
have no application hereunder.
Article 14. Condemnation.
14.1 In the event that the whole of the Premises shall be lawfully
condemned or taken in any manner for any public or quasi-public use, this Lease
and the term and estate hereby granted shall forthwith cease and terminate as of
the date of vesting of title as a result of the condemnation or taking.
14.2 In the event that only a part of the Premises shall be
condemned or taken, then the term and estate hereby granted with respect to that
part of the Premises shall forthwith cease and terminate as of the date of
vesting of title as a result of the condemnation or taking and the Fixed Rent
and the Additional Rent on account of Real Estate Taxes, Operating Costs and
Cleaning Costs payable hereunder, to the extent that the Fixed Rent and the
Additional Rent on account of Real Estate Taxes, Operating Costs and Cleaning
Costs relate to that part of the Premises, shall be abated for the period from
the date of the vesting of title to the Expiration Date with respect to that
part of the Premises. In the event a rent abatement occurs under this Article
with respect to a portion of the Premises then subject to another abatement of
rent under this Lease, the other abatement period shall be extended with respect
to such portion of the Premises one (1) day for each day of the abatement period
under this Article.
14.3 In the event that only a part of the Building shall be
condemned or taken, then (i) if more than twenty-five percent (25%) of the floor
area of the Building has been condemned or taken (whether or not the Premises
are affected), this Lease and the term and estate hereby granted may be
terminated by Landlord by giving to Tenant, within sixty (60) days following the
date on which Landlord shall have received notice of the vesting of title,
written notice specifying a date, not less than thirty (30) days after the
giving by Landlord of the notice, for the termination, and (ii) if the
condemnation or taking shall be of a substantial part of the Premises or of a
substantial part of the means of access thereto, this Lease and the term and
estate hereby granted may be terminated by Tenant by giving to Landlord, within
sixty (60) days following the date upon which Tenant shall have received notice
of the vesting of title, written notice specifying a date, not less than thirty
(30) days after the giving by Tenant of the notice, for the termination, or
(iii) if neither Landlord nor Tenant elects to terminate this Lease as
aforesaid, this Lease shall be and remain unaffected by the condemnation or
taking, except that this Lease and the term and estate hereby granted with
respect to the part of the Premises so condemned or taken shall expire on the
date of the vesting of title to that part and except that the Fixed Rent and the
Additional Rent payable with respect to Real Estate Taxes, Operating Costs and
Cleaning Costs payable hereunder shall be abated to the extent, if any,
hereinabove provided in this Article. In the event that
63
75
only a part of the Premises shall be condemned or taken and this Lease and the
term and estate hereby granted with respect to the remaining portion of the
Premises are not terminated as hereinabove provided, landlord will proceed with
reasonable diligence to restore the remaining portion of the Premises as nearly
as practicable to the same condition it was in prior to the condemnation or
taking.
14.4 The termination of this Lease and the term and estate hereby
granted in any of the cases hereinabove provided shall be with the same effect
as if the date of the termination were the Expiration Date, and the Fixed Rent
and Additional Rent payable hereunder shall be apportioned as of the date of
termination.
14.5 In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including, without
limitation, any award made for the value of the estate vested by this Lease in
Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title
and interest of Tenant now or hereafter arising in or to any award or any part
thereof, and Tenant shall be entitled to receive no part of any award; provided,
however, that nothing herein contained shall be deemed to preclude Tenant from
intervening for Tenant's own interest in any condemnation proceeding to claim or
receive from the condemning authority any compensation to which Tenant may
otherwise lawfully be entitled in respect of property owned by Tenant and
removable by it under Article 9 hereof.
14.6 The provisions of this Article shall not be applicable to any
condemnation or taking for governmental occupancy for a limited period.
Article 15. Compliance with Laws.
15.1 Tenant shall comply with all laws, including without limitation
the Americans with Disabilities Act, and ordinances and all rules, orders,
regulations and requirements of all governmental authorities (collectively,
"Applicable Laws") at any time duly issued and in force requiring compliance in,
to or upon the Premises or any part thereof except that Tenant shall not be
under any obligation to comply with any Applicable Law requiring any structural
Alteration of or to the Premises unless the requirement for compliance arises
out of either (i) a condition that has been created by, or at the instance of,
Tenant, or (ii) a breach of any covenant, agreement, term, provision or
condition hereof on the part of Tenant to be kept, observed or performed.
Landlord shall comply with all Applicable Laws at any time duly
issued and in force (a) requiring compliance in, to or upon the Base Building,
or (b) requiring any structural Alterations of or to the Premises which, by
reason of the exception set forth therein, Tenant is not required by the
preceding paragraph to make.
The provisions of this Section 15.1 shall be applicable to any
requirement for compliance arising out of or being a condition to any
Alterations in or to or use of the
64
76
Premises made or proposed to be made by Tenant, except that if any such
compliance is required in, to or upon the Base Building by reason of Tenant's
using or proposing to use any portion of the Premises for any use not permitted
by the now-existing Certificate of Occupancy for the Building, Tenant shall be
required to effect such compliance; provided, however, that this sentence shall
not be applicable to any circumstance governed by the last paragraph of Section
5.1.
15.2 Landlord represents to Tenant that the Building was built after
the use of asbestos was outlawed. A copy of the most current filed ACP-5 Form
for the Building shall be delivered by Landlord to Tenant prior to the Term
Commencement Date. In the event Tenant discovers any asbestos or any other
hazardous material (as hereinafter defined) in the Premises or in other portion
of the Building in which Tenant is permitted to install property or perform work
or in the common or service areas of the Building, Tenant shall have the right,
upon ten (10) business days prior written notice to Landlord, to remove such
asbestos or other hazardous material and (unless such asbestos or hazardous
material was placed or installed in the Premises or such portion of the Building
by Tenant) Landlord shall within twenty (20) days of demand therefor,
accompanied by appropriate documentation, repay to Tenant the actual cost of
removal incurred by Tenant. The term "hazardous material" as used herein shall
mean any petroleum or petroleum products (including oil, crude oil, natural or
synthetic gas) except as used in accordance with Applicable Law in connection
with fuel tanks and generators installed in the Building by Landlord or Tenant,
radioactive materials, any asbestos or asbestos containing materials, PCBs, any
explosive or flammable materials, or any other hazardous or toxic waste,
material or substance, including, without limitation, any waster, material or
substance now or hereafter included in the definition of "hazardous substances,"
"hazardous waste," "hazardous materials," "toxic substances," "toxic waste" or
"toxic material" or similar term contain in any law or governmental regulation.
Article 16. Mortgage, Subordination, and Attornment.
16.1 This Lease and the term and estate hereby granted are and shall
be subject and subordinate to the lien of each mortgage that may now or at any
time hereafter affect the Building, the Land, or Landlord's interest therein and
to all renewals, modifications, consolidations, replacements and extensions
thereof (each, an "Underlying Mortgage") and any underlying lease that may now
or at any time hereafter affect the Land or Building and to all renewals,
modifications, consolidations, replacements and extensions thereof (each, an
"Underlying Lease"). The foregoing provision for the subordination of this Lease
and the term and estate hereby granted shall be self-operative and no further
instrument shall be required to effect the subordination. Nevertheless, Tenant
shall, upon request by Landlord, at any time or times, execute and deliver any
and all instruments that may be necessary or proper to effect, confirm or
evidence the subordination.
16.2 If Landlord's interest in the Building or the Land shall be
sold or conveyed to any person, firm or corporation upon the exercise of any
remedy provided for
65
77
in any Underlying Mortgage or by law or equity, the person, firm or corporation
and each person, firm or corporation thereafter succeeding to its interest in
the Building or the Land shall not be
(A) liable to pay damages to Tenant caused by any
breach, act, omission or negligence of any prior landlord (including
the then defaulting landlord), but (except for the holder of any
Existing Mortgage) shall nonetheless remain subject to any and all
abatements, deductions, offsets, claims, counterclaims and/or
defenses which shall have accrued to Tenant against any prior
landlord (including the then defaulting landlord) prior to the date
that such person, firm or corporation shall have succeeded to the
rights of the landlord under the Lease, but in any case, provided,
however, such non-liability for damages shall neither diminish such
person, firm or corporation's liability for continuing obligations
of the landlord under the Lease nor diminish Tenant's right under
the Lease with respect to the continuing failure of such person,
firm or corporation to perform the obligations of the landlord under
the Lease after the date that such person, firm or corporation
succeeds to the interest of the landlord under the Lease;
(B) bound by any rent, additional rent or other items of
rental under the Lease which Tenant might have paid for more than
the current month to any prior Landlord (including the then
defaulting Landlord); or
(C) bound by the terms of any agreement amending,
modifying, supplementing or terminating the Lease (except as
contemplated by this Lease) made without the written consent of the
holder of such Underlying Mortgage, unless such consent shall have
been unreasonably withheld.
16.3 Notwithstanding the provisions of Section 16.1,
(i) the subordination of this Lease to (x) the Modified,
Amended and Restated Mortgage, Spreader and Consolidation Agreement,
dated as of January 9, 1989 and recorded on March 22, 1990 in Reel
1677 page 2057 in the Office of the Register of New York County (the
"Register's Office") in favor of the State of California - Public
Employees Retirement System and State of California - State
Teacher's Retirement System as in effect on the date hereof (the
"Existing First Mortgage") and (y) the Modified, Amended and
Restated Mortgage, Spreader and Consolidation Agreement, dated as of
January 9, 1989 and recorded on March 22, 1990 in Reel 1678 page
1918 in the Register's Office, as the same has been assigned, in
favor of First Bank National Association, (successor to the Trustees
of General Electric Pension Trust) as in effect on the date hereof
(the "Existing Second Mortgage" and,
66
78
together with the Existing First Mortgage, the "Existing Mortgages")
shall be upon the terms and conditions set forth in Section 3.06 of
each of the Existing Mortgages and
(ii) the subordination of this Lease (x) to any Underlying
Mortgage other than the Existing Mortgages, (y) to any renewal,
modification, consolidation, replacement or extension of any of the
Existing Mortgages, or (z) to any Underlying Lease shall be subject
to the delivery to Tenant by the mortgagee or lessor, as the case
may be, of a non-disturbance agreement on the form attached hereto
as Exhibit R in any case referred to in clause (x) or (y) above or
an equivalent form in any case referred to in clause (z) above or,
in either case, another form no less favorable to Tenant in any
material respect.
Landlord represents that (a) there are currently no Underlying Mortgages other
than the Existing Mortgages and no Underlying Leases, and (b) Landlord has
repaid the principal of and all interest and prepayment charges on the Existing
First Mortgage (other than any amounts payable under Section 3.05 of the
Existing First Mortgage and Landlord believes that no such amounts are payable).
16.4 Landlord shall, within five (5) days after the full execution
and delivery of this Lease by each party, deliver by certified mail, return
receipt requested, to the mortgagee under each of the Existing Mortgages the
certificate required pursuant to the terms of Section 3.06(b) of each of the
Existing Mortgages, and copies thereof shall be simultaneously delivered to
Tenant. Copies of the signed return receipts from the delivery of the
certificates and all responses received by Landlord from the mortgagees under
the Existing Mortgages shall be immediately delivered to Tenant. If the
mortgagee under either of the Existing Mortgages shall timely reject such
certificate Landlord shall so notify Tenant and Tenant shall have the right, by
notice to Landlord given within thirty (30) days of its receipt of such notice
from Landlord, to terminate this Lease.
Article 17. Conditions of Limitation.
17.1 This Lease and the term and estate hereby granted are subject
to the limitation that:
(a) if Tenant shall default in the payment of any Fixed Rent or
Additional Rent on any date upon which the Fixed Rent or Additional Rent
becomes due and such default shall continue for ten (10) days after
Landlord shall have given to Tenant a notice specifying the default,
provided that Landlord shall not be required to give such notice with
respect to a default in payment of Fixed Rent more than two (2) times in
any twelve (12) month period;
67
79
(b) if Tenant shall default in the due keeping, observance or
performance of any covenant, agreement, term, provision or condition of
this Lease (other than a default of the character referred to in Section
17.1(a)), and if the default shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the default, or, in the case of a default which cannot
with due diligence be cured within the thirty (30) day period, if Tenant
(i) shall not promptly upon the giving of the notice of default give
Landlord notice of Tenant's intention to institute all steps necessary to
remedy the default, (ii) shall not duly institute and thereafter
diligently prosecute to completion all steps necessary to remedy the
default, and (iii) shall not remedy the default within a reasonable time
after the date of the giving of the notice by Landlord; or
(c) in case any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance
of the term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than Tenant, except as
permitted under Article 12 hereof,
then in the event that (a), (b) or (c) occurs, Landlord may give to Tenant a
notice of intention to end the term of this Lease at the expiration of three (3)
days from the date of the giving of the notice, and, in the event the notice is
given, this Lease and the term and estate hereby granted (whether or not the
term shall theretofore have commenced) shall terminate upon the expiration of
the three (3) days with the same effect as if the last of the three (3) days
were the Expiration Date, and Tenant shall remain liable for damages as provided
in this Lease or pursuant to law.
17.2 In addition, this Lease and the term and estate hereby granted
are subject to the limitation that whenever (a) Tenant, or any guarantor of
Tenant's obligations under this Lease (the "Guarantor"), shall commence any
case, proceeding or other action (1) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts; or (2)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or Tenant or the
Guarantor shall make a general assignment for the benefit of its creditors; or
(b) there shall be commenced against Tenant or the Guarantor any case,
proceeding or other action of a nature referred to in clause (a) above that (1)
results in the entry of an order for relief or any adjudication or appointment
or (2) remains undismissed, undischarged or unbonded for a period of sixty (60)
days; or (c) Tenant or the Guarantor shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clauses (a) and (b) above; or (d) Tenant or the Guarantor shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; then Landlord may give Tenant a notice of
intention to end the term of this Lease at the expiration often (10) days from
the date of service of the notice of intention, and upon the
68
80
expiration of the ten (10) day period this Lease and the term and estate hereby
granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in this Lease or pursuant to
law.
Article 18. Re-entry by Landlord.
18.1 If this Lease shall terminate as provided in Article 17 hereof,
Landlord or Landlord's agents and servants may immediately or at any time
thereafter re-enter the Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, without
being liable to indictment, prosecution or damages therefor, and may repossess
the Premises or any part thereof, and may remove any persons therefrom, to the
end that Landlord may have, hold and enjoy the Premises again as and of its
first estate and interest therein. The words "re-enter", "re-entry" and
"re-entering" as used in this Lease are not restricted to their technical legal
meanings.
18.2 In the event of any termination of this Lease under the
provisions of Article 17 hereof or in the event of the termination of this Lease
by or under any summary dispossess or other proceeding or action or other
measure undertaken by Landlord for the enforcement of its right of re-entry
(herein called a "Default Termination"), Tenant shall thereupon pay to Landlord
the Fixed Rent and Additional Rent up to the time of the Default Termination and
shall pay to Landlord any and all damages that, by reason of the Default
Termination, shall be payable by Tenant under this Lease or pursuant to law. In
the event of a Default Termination, Landlord also shall be entitled to retain
all money, if any, paid by Tenant to Landlord, whether as advance rent or as
security for rent, but the money shall be credited by Landlord against any Fixed
Rent and Additional Rent due from Tenant at the time of the Default Termination
or, at Landlord's option, against any damages payable by Tenant under this Lease
or pursuant to law.
18.3 Tenant, for Tenant, and on behalf of any and all persons, firms
and corporations claiming through or under Tenant, including creditors of all
kinds, does hereby waive and surrender all right and privilege that they or any
of them might have under or by reason of any present or future law to redeem the
Premises or to have a continuance of this Lease for the term hereby demised
after Tenant is dispossessed or ejected therefrom by process of law or under the
terms of this Lease or after the expiration or termination of this Lease as
provided herein or pursuant to law. Tenant also waives (a) the right of Tenant
to trial by jury in any summary dispossess or other proceeding that may
hereafter be instituted by Landlord against Tenant in respect of the Premises or
in any action that may be brought to recover rent, damages or other sums payable
hereunder, and (b) the provisions of any law relating to notice or delay in levy
of execution in case of an eviction or dispossess of a tenant for nonpayment of
rent, and of any other law of like import, now or hereafter in effect. If
Landlord commences any summary dispossess proceeding, Tenant will not interpose
any counterclaim of any nature or description in the proceeding unless Tenant
would by its failure to interpose such counterclaim lose the right to assert
such counterclaim. Landlord
69
81
waives the right of Landlord to trial by jury in any action or proceeding
arising under this Lease.
Article 19. Damages.
19.1 In the event of a Default Termination of this Lease, Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum that, at the time of the Default Termination, represents
the value of the excess, if any, of (i) the present value (using a
discount rate equal to the then current prime rate established by
Citibank, N.A. (the "Prime Rate")) of the aggregate of the Fixed Rent and
the Additional Rent that, had this Lease not terminated, would have been
payable by Tenant for the period commencing with the day following the
date of the Default Termination and ending with the Expiration Date over
(ii) the present value (using a discount rate equal to the then current
Prime Rate) of the aggregate fair market rent of the Premises for the same
period, or
(b) sums equal to the aggregate of the Fixed Rent and the Additional
Rent that would have been payable by Tenant had this Lease not terminated,
payable upon the due dates therefor specified herein following the date of
the Default Termination and ending with the Expiration Date; provided,
however, that if Landlord shall re-let the Premises during said period,
although Landlord shall have no obligation to do so, Landlord shall credit
Tenant with the net rents received by Landlord from such re-letting, such
net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such re-letting the reasonable expenses
incurred or paid by Landlord in terminating this Lease or of re-entering
the Premises and of securing possession thereof, including, without
limitation, reasonable attorneys' fees and costs of removal and storage of
Tenant's property, as well as the reasonable expenses of re-letting,
including repairing, restoring, altering, decorating and preparing the
Premises for new tenants, "buy-out" costs paid by on account of a new
tenant's existing rent in other premises, brokers' commissions,
advertising costs, and all other similar or dissimilar reasonable expenses
chargeable against the Premises and the rental therefrom in connection
with such re-letting, it being understood that any such re-letting may be
for a period equal to or shorter or longer than the remaining term of this
Lease; provided, further, that (i) in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder, (ii) in no event shall Tenant be entitled in any suit
for the collection of damages pursuant to this Section 19.1(b) to a credit
in respect of any net rents from a re-letting except to the extent such
net rents are actually received by Landlord, and (iii) if the Premises or
part thereof should be re-let in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
70
82
19.2 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 be deemed to require
Landlord to postpone suit until the date when the term of this Lease would have
expired but for a Default Termination. Nothing herein 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.
Article 20. Curing Tenant's Defaults - Additional Rent.
20.1 If Tenant shall default in the keeping, observance or
performance of any covenant, agreement, term, provision or condition herein
contained, Landlord, without thereby waiving the default, may perform the same
for the account and at the expense of Tenant
(a) immediately or at any time thereafter and without prior
notice (but with notice promptly after commencing such performance)
in the case of emergency or in case the default unreasonably
interferes with the use of the Building by any other tenant of any
space in the Building or with the efficient operation of the
Building or will result in a violation of law or cancellation of an
insurance policy maintained by Landlord,
(b) without further notice or lapse of time, in case of any
failure to procure and place any insurance required by this Lease
which has continued after the giving of notice and lapse of time
referred to in Section 22.5, and
(c) in any other case if the default continues after fifteen
(15) days from the date of the giving by Landlord to Tenant of
notice of Landlord's intention to perform the same; provided,
however, that in any case under this clause (c) relative to a
default the curing of which requires in excess of fifteen (15) days,
if within such fifteen (15) days Tenant shall commence such cure and
notify Landlord that it intends to prosecute the same to completion,
such fifteen (15) day period shall be extended so long as Tenant is
prosecuting such remedy continuously and with all due diligence.
20.2 All costs and expenses incurred by Landlord in connection with
any performance by it for the account of Tenant shall be paid by Tenant to
Landlord within twenty (20) days after demand therefor accompanied by
appropriate supporting documentation. If any such cost or expense is not paid
when due and payable above, the same shall become due and payable by Tenant as
Additional Rent hereunder. If any Fixed Rent, Additional Rent or damages payable
hereunder by Tenant to Landlord is not paid when due as provided in this Lease,
the same shall bear interest at the Interest Rate from the due date thereof
until paid and the amount of interest shall be deemed Additional Rent hereunder.
71
83
This late payment charge will constitute liquidated damages and is intended to
compensate Landlord for its administrative costs resulting from Tenant's failure
to pay, and has been agreed upon by Landlord and Tenant, as a reasonable
estimate of the additional administrative costs. The actual cost in each
instance is extremely difficult, if not impossible, to determine.
20.3 In the event of nonpayment by Tenant of any Additional Rent
becoming due hereunder, Landlord, in addition to any other right or remedy,
shall have the same rights and remedies as in the case of default by Tenant in
the payment of the Fixed Rent. Landlord reserves the right, without liability to
Tenant and without constituting any claim of constructive eviction, to suspend
furnishing or rendering to Tenant any property, material, labor, utility or
other service, wherever Landlord is obligated to furnish or render the same at
the expense of Tenant, in the event that (but only as long as) Tenant is in
arrears in paying Landlord therefor at the expiration often (10) days after
Landlord shall have given to Tenant notice demanding the payment of the arrears
and stating that in the absence of such payment Landlord will suspend the
furnishing or rendering of such property, material, labor, utility or other
service.
Article 21. Consents.
Wherever in this Lease either party's consent or approval is
required and such party has expressly agreed in this Lease that its consent or
approval shall not be unreasonably withheld, if such party shall withhold its
consent or approval, the other party shall in no event be entitled to and shall
not make any claim, and such other party hereby waives any claim, for money
damages (including a claim for money damages by way of set-off, counterclaim or
defense) based upon any assertion by such other party that the first party
unreasonably withheld or unreasonably delayed its consent or approval. Such
other party's sole remedies in such circumstance shall be either (i) an action
or proceeding to enforce the provision by way of specific performance,
injunction or declaratory judgment or (ii) an arbitration proceeding in
accordance with Article 35 hereof. Notwithstanding the foregoing (i) Tenant
shall have the right to claim money damages in the event Landlord is found by a
court of competent jurisdiction to have acted in bad faith in withholding its
consent or approval under any provision of this Lease which requires Landlord
not unreasonably to withhold the same (and such finding becomes final subject to
no further appeal), and (ii) Landlord shall have the right to claim money
damages in the event Tenant is found by a court of competent jurisdiction to
have acted in bad faith in withholding its consent or approval under any
provision of this Lease which requires Tenant not unreasonably to withhold the
same (and such finding becomes final subject to no further appeal). Unless
otherwise expressly set forth in this Lease, it is the express intent of the
parties that any consent of either party under this Lease shall be given or
required only in the sole, absolute and unfettered discretion of such party, and
may be withheld for any reason whatsoever. In any instance in which either party
has agreed to not unreasonably withhold its consent or approval:
72
84
(a) if no time period is specified such consent or approval
shall be given or withheld within ten days, and
(b) if such party fails to give or withhold consent or
approval within the time period specified in the applicable time
period (as specified in clause (a) or elsewhere in this Lease as the
case may be), the consent or approval of such party shall be deemed
to have been given.
Article 22. Insurance.
22.1 Tenant shall not violate, or permit the violation of, any
condition imposed by the standard property insurance policy then issued for
office buildings in the City of New York, and shall not do, suffer or permit
anything to be done, or keep, suffer or permit anything to be kept in the
Premises that would increase the property or other casualty insurance rate on
the Building or the property therein over the rate that would otherwise then be
in effect (unless Tenant pays the resulting increased amount of premium as
provided below) or that would result in insurance companies of good standing
refusing to insure the Building or any of the property therein in amounts
reasonably satisfactory to Landlord, provided, however, that Tenant shall not be
subject to any liability or obligation under this paragraph by reason of the
proper use of the Premises for the purposes permitted by Article 5.
22.2 If, by reason of any failure of Tenant to comply with the
provisions of this Lease, the rate of property insurance on the Building or
equipment or other property of Landlord or other tenants shall be higher than it
otherwise would be, Tenant shall reimburse Landlord for that part of the
premiums for property insurance paid by Landlord because of the act or omission
on the part of Tenant, which sum shall be deemed to be Additional Rent due
twenty (20) days after demand therefor accompanied by appropriate supporting
documentation, provided, however, that Tenant shall not be subject to any
liability or obligation under this paragraph by reason of the proper use of the
Premises for the purposes permitted by Article 5.
22.3 In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or make up of rates for the
Building or the Premises, as the case may be, issued by Insurance Service
Office, Inc. or other similar body making rates for property insurance for the
Building or the Premises, shall be presumptive evidence of the facts therein
stated and of the several items and charges in the property insurance rates then
applicable to the Building or the Premises.
22.4 Tenant shall obtain and keep in full force and effect during
the term of this Lease at its own cost and expense the following insurance
coverages:
(a) for the benefit of Tenant as insured and Landlord as an
additional insured a commercial general liability insurance policy, in a
broad form policy, affording
73
85
protection in an amount of not less than $10,000,000 combined single limit
coverage on a per occurrence basis, in respect of any and all claims for
personal injury, death or property damage occurring in, upon, adjacent to,
or connected with the Premises and any part thereof, and
(b) fire and extended coverage in an amount adequate to cover the
replacement of all personal property, fixtures, furnishings, equipment,
improvements and installations, located in the Premises.
The commercial general liability insurance policy required by this Lease to be
maintained by Tenant shall name Landlord, CNA Financial Corporation, The
Continental Corporation and their subsidiaries as additional insureds during the
term of this Lease.
22.5 Each insurance policy required by this Lease to be maintained
by Tenant shall provide that it will not be canceled, except upon thirty (30)
days advance written notice to Landlord. Each such policy shall be written by
insurance companies having a Best's rating of A or better that are admitted to
do business in the State of New York. The original insurance policies or
appropriate certificates evidencing compliance with Section 22.4 shall be
deposited with Landlord upon execution of this Lease and prior to each policy
expiration. In the event Tenant shall fail to procure and place any insurance
required by this Lease, and such failure shall continue for fifteen (15) days
after Landlord shall have given to Tenant a notice specifying such failure,
Landlord may, but shall not be obligated to, procure and place the same, in
which event the amount of the premium paid shall be reimbursed by Tenant to
Landlord upon demand and shall in each instance be collectible on the first day
of the month or any subsequent month following the date of payment by Landlord,
in the same manner as though the sums were additional rent reserved hereunder.
22.6 Each party shall use commercially reasonable efforts to secure
an appropriate clause in, or an endorsement upon, each fire or extended coverage
or all-risk policy carried by it (including any business interruption or rental
loss insurance), pursuant to which the insurance company waives subrogation or
permits the insured, prior to any loss, to agree with a third party to waive any
claim it might have against that third party. If and to the extent that for any
policy period either party (the "procuring party") (i) is unable to secure the
aforesaid waiver or permission, or (ii) can secure the aforesaid waiver or
permission only upon payment of an additional charge, the procuring party shall
notify the other party (including, in any case under clause (ii) above, the
amount of such additional charge). In any case under clause (ii) above, if,
within fifteen (15) days of its receipt of such notice, the other party shall
agree pay the charge the procuring party shall obtain the aforesaid waiver or
permission for such policy period. Within ten (10) days request by either party,
the other party shall confirm to the requesting party whether the fire or
extended coverage or all-risk policy maintained by such other party includes the
waiver or permission referred to in this paragraph.
74
86
Insofar as the insurance policies carried by it include the waiver
or permission referred to above, each party hereby releases the other party and
the agents and employees of the other party from any claim (including a claim
for negligence or a claim under any provision of this Lease) that such party
might otherwise have against the other party or the agents and employees of the
other party for any injury or damage covered by such policies to the Building or
the Premises or any property therein (or for the repair of or the costs of
repairing any such damage) or for any loss of rents or business interruption
covered by such policies.
If either party shall fail to maintain insurance as required by this
Lease to be maintained by it, the aforesaid release shall also include any
injury or damage which would have been covered if such party had maintained
insurance as required by this Lease.
The release set forth in this Section benefitting Tenant and its
agents and employees shall also benefit any subtenant and its agents and
employees provided that such subtenant shall grant to Landlord an equivalent
release.
The release set forth in this Section shall not cover the deductible
portion of any loss; provided, however, that if the deductible limit of the
party suffering such loss exceeds $100,000 then such release shall cover the
portion of such deductible in excess of $100,000.
22.7 Landlord shall obtain and keep in full force and effect during
the term of this Lease the following insurance coverages:
(i) all-risk property insurance insuring the Building and the core
and shell portions of the Premises for an amount equal to at least the
full replacement cost value of the Building (excluding foundation and
excavation costs) and the core and shell portions of the Premises against
loss or damage due to fire and other casualties; and
(ii) for the benefit of Landlord as insured and Tenant as additional
insured a commercial general liability insurance, in a broad form policy,
affording protection in an amount of not less than $10,000,000 combined
single limit coverage on a per occurrence basis, in respect of any and all
claims for personal injury, death or property damage occurring in, upon,
adjacent to, or connected with the Building or any part thereof.
The commercial general liability insurance policy required by this Lease to be
maintained by Landlord shall name Tenant as additional insureds during the term
of this Lease.
22.8 Each insurance policy required by this Lease to be maintained
by Landlord shall provide that it will not be canceled, except upon thirty (30)
days advance written notice to Tenant. Each such policy shall be written by
insurance companies having
75
87
a Best's rating of A or better that are admitted to do business in the State of
New York. Appropriate certificates evidencing compliance with Section 22.7 shall
be deposited with Tenant upon execution of this Lease and prior to each policy
expiration.
22.9 All proceeds of the all-risk insurance required by this Lease
to be maintained by Landlord
(i) shall be applied to the performance of Landlord's repair
and restoration obligations pursuant to Section 13.1, or
(ii) pending such application, shall be held by the holder of
any Underlying Mortgage who shall have entered into with Tenant a
non-disturbance agreement in accordance with clause (ii) of Section
16.3 (or, if there shall be no such holder, by a depositary
acceptable to Tenant) and no such proceeds shall be commingled with
any other funds or applied to any other purpose until such repair
and restoration obligations have been fully performed.
Article 23. Brokerage Commission.
Tenant represents and warrants that neither it nor any of its
partners, officers, employees or agents has dealt with any brokers in connection
with this Lease other than (i) Goldman, Sachs & Co. and The Georgetown Company
(collectively, the "Broker"), (ii) Cushman & Wakefield, Inc. ("C&W") and (iii)
Newmark & Company Real Estate, Inc. ("Newmark").
Landlord shall be responsible for the payment of the commission due
to the Broker in connection with this Lease, specifically including the
commission due under that certain agreement of even date between Landlord and
Goldman, Sachs & Co. ("GS") and, if Landlord shall fail timely to pay any amount
due to GS thereunder, the provisions of Section 39.2 shall be applicable,
mutatis mutandis.
Landlord agrees to indemnify, defend and hold the Tenant Indemnitees
harmless from and against any Claims for a brokerage, finder or other commission
or fee in connection with this Lease asserted against any Tenant Indemnitee by
Broker or C&W.
Tenant represents and warrants that Newmark has waived all rights to
a commission payable by Landlord in connection with this Lease and any renewal,
extension, expansion or termination hereof. Tenant agrees to indemnify, defend
and hold the Landlord Indemnitees harmless from and against any Claims for a
brokerage, finder or other commission or fee in connection with this Lease
asserted against any Landlord Indemnitee by any broker, agent or finder (other
than Broker and C&W) with whom Tenant has dealt in connection with this Lease,
including Newmark.
76
88
Article 24. Satisfaction of Tenant's Remedies.
Tenant shall look only to Landlord's interest and property in the
Building and Land (or the proceeds thereof, including insurance proceeds to
which recourse is available, subject to the rights of the holder of any
Underlying Mortgage or Underlying Lease) for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of Landlord or its partners or
principals, 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, the relationship of Landlord and Tenant hereunder or
Tenant's use and occupancy of the Premises.
Article 25. Landlord's Payments to Tenant.
25.1 Landlord shall pay to Tenant with respect to each portion of
the Premises the amounts provided for herein (the "Landlord Monthly Payments").
With respect to each Applicable Portion, a monthly amount, computed
at the following per annum rates: (a) during the initial Term of this Lease,
$1.65 per annum per square foot of rentable area (subject to the provisions of
the next sentence), (b) during the First Renewal Term of this Lease, an amount
per annum per square foot of rentable area equal to the Renewal Term Initial
Cleaning Cost determined pursuant to Article 27 with respect to the First
Renewal Term, and (c) during the Second Renewal Term of this Lease, an amount
per annum per square foot of rentable area equal to the Renewal Term Initial
Cleaning Cost determined pursuant to Article 27 with respect to the Second
Renewal Term. No such payments under clause (a) of this paragraph shall be
required with respect to any Applicable Portion in respect of any period prior
to the Rent Commencement Date with respect to such Applicable Portion.
With respect to each Accepted Offer Space becoming a part of the
Premises during the initial Term of this Lease, a monthly amount, computed at
the following per annum rates: (a) during the balance of such initial Term, an
amount per annum per square foot of rentable area equal to the Offer Space
Initial Cleaning Cost determined pursuant to Article 26 with respect to such
Accepted Offer Space, and (b) during the First Renewal Term of this Lease, an
amount per annum per square foot of rentable area equal to the Renewal Term
Initial Cleaning Cost determined pursuant to Article 27 with respect to the
First Renewal Term, and (c) during the Second Renewal Term of this Lease, an
amount per annum per square foot of rentable area equal to the Renewal Term
Initial Cleaning Cost determined pursuant to Article 27 with respect to the
Second Renewal Term.
With respect to each Accepted Offer Space becoming a part of the
Premises during the First Renewal Term of this Lease, a monthly amount, computed
at the following per annum rates: (a) during the balance of such First Renewal
Term, an amount per annum per square foot of rentable area equal to the Offer
Space Initial Cleaning Cost determined
77
89
pursuant to Article 26 with respect to such Accepted Offer Space, and (b) during
the Second Renewal Term of this Lease, an amount per annum per square foot of
rentable area equal to the Renewal Term Initial Cleaning Cost determined
pursuant to Article 27 with respect to the Second Renewal Term.
With respect to each Accepted Offer Space becoming a part of the
Premises during the Second Renewal Term of this Lease, a monthly amount,
computed at the following per annum rate: during the balance of such Second
Renewal Term, an amount per annum per square foot of rentable area equal to the
Offer Space Initial Cleaning Cost determined pursuant to Article 26 with respect
to such Accepted Offer Space.
25.2 The Landlord Monthly Payments shall be due on the first day of
each month; provided, however, that (a) if the Rent Commencement Date with
respect to any Applicable Portion shall be on other than the first day of a
month, the initial Landlord Monthly Payment with respect to such Applicable
Portion shall be computed on a pro-rata basis and shall be due on such Rent
Commencement Date, and (b) if any Accepted Offer Space shall become a part of
the Premises on other than the first day of a month, the initial Landlord
Monthly Payment with respect to such Accepted Offer Space shall be computed on a
pro-rata basis and shall be due on the day on which such Accepted Offer Space
becomes a part of the Premises.
Landlord shall pay the Landlord Monthly Payment as and when the same
shall become due and payable to Tenant at its office in the United States of
America, or any other place or places in the United States of America as Tenant
shall designate to Landlord, in cash or by check, payable to Tenant in United
States currency, without demand therefor and without any setoff or deduction
whatsoever.
If any Landlord Monthly Payment is not paid when due as provided in
this Lease, (a) the same shall bear interest at the Interest Rate from the due
date thereof until paid, and (b) Tenant shall have the right to set-off the
amount thereof, and such interest, against the Fixed Rent under this Lease.
Article 26. Tenant's Right to Lease Additional Space.
26.1 Landlord shall not hereafter lease any space in the Building
(including by way of renewal, extension or expansion of any lease), other than:
(a) pursuant to the exercise by the tenant under any lease in
effect on the date of this Lease of any renewal, extension or
expansion right or option contained in such lease as of the date of
this Lease;
(b) pursuant to the exercise by the tenant under any lease
subsequently entered into by Landlord of any renewal or extension
right or
78
90
option contained in such lease as of the date of the original
entering into of such lease; or
(c) pursuant to Section 26.4 below.
As used in this Article 26, the term "lease" shall include (i) a license or
other agreement providing for occupancy, and (ii) occupancy by Landlord or any
other person without such a lease, license or other agreement. Landlord
represents and warrants to Tenant that attached hereto as Exhibit S is a true
and accurate schedule of each lease in effect on the date of this Lease, the
premises demised thereby, the expiration date thereof, and all renewal,
extension or expansion rights or options contained therein as of the date of
this Lease.
26.2 Landlord may give one or more Offer Notices (as hereinafter
defined) to Tenant at any time. The term "Offer Notice" as used herein shall
mean a notice (a) referring to this Article 26, (b) describing the premises to
which it relates (the "Offer Space") and, if the Offer Space includes a portion
less than all of the rentable area on any floor, including an outline floor plan
of the Offer Space and a statement of the rentable area thereof in accordance
with Section 26.11, and (c) setting forth the date (which shall be (i) no
earlier than the last day on which, pursuant to Section 26.3, Tenant is entitled
to give an Acceptance Notice (as hereinafter defined) in response to such Offer
Notice and (ii) no later than 270 days after the date of the Offer Notice) on
which, if Tenant exercise its right pursuant to Section 26.3 to lease such Offer
Space, Landlord reasonably believes (on the basis of written agreements then in
effect) it will be able to deliver to Tenant vacant possession thereof (the
"Scheduled Offer Space Delivery Date"). Landlord shall give an Offer Notice with
respect to each portion of the Building no later than 30 days after the date on
which Landlord becomes entitled to do so. If pursuant to the provisions of any
other lease (a "Recapture Provision") Landlord shall become entitled to
recapture any space in the Building in connection with a proposed assignment or
sublease, Landlord shall, within three (3) business days of its receipt of the
notice from the other tenant entitling Landlord to recapture, give to Tenant an
Offer Notice with respect to such space; such Offer Notice shall, in addition to
the information required by the preceding sentence to be included therein,
indicate (a) that it relates to space which Landlord is entitled to recapture
and (b) the last day on which Landlord is permitted by the terms of the
applicable lease to exercise its recapture right (the "Landlord's Exercise
Deadline Date"). Landlord shall not waive or amend any lease so as to eliminate
any Recapture Provision. Each Offer Notice shall constitute (a) an offer by
Landlord to lease the Offer Space covered thereby to Tenant on the terms set
forth in this Article 26, and (b) a representation by Landlord that all leases
covering any of such Offer Space have expired or been terminated or, pursuant to
the terms thereof or other written agreements then in effect, will expire or
terminate on or prior to the Scheduled Offer Space Delivery Date set forth in
such Offer Notice.
26.3 Tenant shall have the right, by notice to Landlord given within
twenty (20) business days of its receipt of any Offer Notice (an "Acceptance
Notice"), to lease all or any portion of the Offer Space covered by such Offer
Notice; provided, however, that
79
91
(a) if Tenant elects to lease and include in its Acceptance
Notice any of such Offer Space on any floor of the Building it shall
elect to lease and include in its Acceptance Notice all of such
Offer Space on such floor of the Building;
(b) if the Offer Space shall include all of three or more full
floors contiguous to one another (a "Multi-Full-Floor Contiguous
Block") and Tenant elects to lease and include in its Acceptance
Notice a portion less than all of such Multi-Full-Floor Contiguous
Block the balance thereof not so leased and included shall be either
(i) one such full floor, or (ii) two or more full floors contiguous
to one another; and
(c) in the case of any Offer Notice given under the second
sentence of Section 26.2, the Acceptance Notice must be given, if at
all, no later than the earlier of (i) the date provided for above in
this Section 26.3 and (ii) the second business day prior to
Landlord's Exercise Deadline Date set forth in the Offer Notice.
Time shall be of the essence with respect to the giving of any Acceptance
Notice. The space as to which Tenant gives a timely Acceptance Notice conforming
to the provisions of this Section 26.3 is herein called an "Accepted Offer
Space".
26.4 If in response to any Offer Notice Tenant shall fail timely to
give an Acceptance Notice then Landlord shall be permitted to lease all or any
portion of the Offer Space covered by such Offer Notice to any person or persons
for delivery no earlier than the Scheduled Offer Space Delivery Date set forth
in such Offer Notice; provided, however, that immediately subsequent to the
original entering into of any such lease the space covered thereby shall again
become subject to this Article 26 such that Landlord shall not (except as
permitted by clause (b) of Section 26.1) subsequently lease such space except
pursuant to the operation of this Section 26.4 with respect to a subsequent
Offer Notice given to Tenant with respect thereto. If in response to any Offer
Notice Tenant shall timely give an Acceptance Notice with respect to less than
all of the Offer Space covered by such Offer Notice then Landlord shall be
permitted to lease all or any portion of the balance of such Offer Space covered
by such Offer Notice to any person or persons for delivery no earlier than the
Scheduled Offer Space Delivery Date set forth in such Offer Notice; provided,
however, that immediately subsequent to the original entering into of any such
lease the space covered thereby shall again become subject to this Article 26
such that Landlord shall not (except as permitted by clause (b) of Section 26.1)
subsequently lease such space except pursuant to the operation of this Section
26.4 with respect to a subsequent Offer Notice given to Tenant with respect
thereto.
26.5 Tenant may only exercise its right to lease any Offer Space,
and an exercise thereof shall only be effective, if at the time of Tenant's
exercise of its right and on the applicable Scheduled Offer Space Delivery Date,
the following conditions are satisfied:
80
92
(i) this Lease is in full force and effect, (ii) no monetary or material
non-monetary default on the part of Tenant continuing beyond any applicable
notice or cure period then exists under this Lease, and (iii) the rentable area
of the Premises then subject to this Lease and not then subject to any sublease
(excluding subleases made under Section 12.7 and 12.8) shall be at least 250,000
square feet of rentable area.
26.6 If Tenant shall timely give an Acceptance Notice then on the
applicable Scheduled Offer Space Delivery Date Landlord shall deliver vacant
possession of the Accepted Offer Space to Tenant and effective upon the later of
(i) such Scheduled Offer Space Delivery Date or (ii) the date of such delivery
(such later date being herein called the "Offer Space Commencement Date") the
Accepted Offer Space shall be included in the Premises, subject to all of the
terms, conditions and provisions of this Lease (including expiration date and
renewal options) except that:
(a) the Fixed Rent for such Accepted Offer Space shall be as
provided in Section 26.9;
(b) Such Accepted Offer Space shall be leased to Tenant in its then
"as is" condition;
(c) The number of rentable square feet of the Accepted Offer Space
shall be determined as provided for in Section 26.11; and
(d) Tenant's liability under Section 4.2(a) and 4.2(b) with respect
to such Accepted Offer Space shall be computed separately and, for
purposes thereof, the Base Year shall be deemed to be the calendar year in
which the Offer Space Commencement Date shall occur.
Within thirty (30) days after the Offer Space Commencement Date, if requested by
either party hereto, Landlord and Tenant shall enter into a written instrument
confirming the terms, conditions and provisions applicable to the lease of the
Accepted Offer Space as determined in accordance with this Article; provided,
however, that the failure of either party to execute such instrument shall not
affect the rights and duties of the parties hereunder.
26.7 If Landlord shall deliver vacant possession of a portion of any
Accepted Offer Space less than all thereof then Tenant shall have the right, by
notice to Landlord given no later than the later of (i) the Scheduled Offer
Space Delivery Date, or (ii) the tenth (10th) day after the day of such delivery
and notice thereof from Landlord to Tenant, to
(a) accept all of such portion or all of such portion on any
one or more floors of the Building (the space which Tenant so
accepts being herein called a "Partial Accepted Offer Space") and
reject the balance of such portion; or
81
93
(b) reject all of such portion.
If Tenant shall give notice under clause (a) above then
(i) Section 26.6 shall be applicable to the Partial Accepted
Offer Space as of the later of (x) the Scheduled Offer Space
Delivery Date, or (y) the day of such delivery, and
(ii) Landlord shall remain obligated to deliver vacant
possession of the balance of such Accepted Offer Space in accordance
with Section 26.6 as soon as Landlord is able to do so (and Section
26.6 shall be separately applicable thereto), subject to Section
26.8 and, in the case of a subsequent delivery of only a portion of
such balance, this Section 26.7.
If Tenant shall give notice under clause (b) above then Landlord
shall remain obligated to deliver vacant possession of such Accepted Offer Space
in accordance with Section 26.6 as soon as Landlord is able to do so (and
Section 26.6 shall be applicable thereto), subject to Section 26.8 and, in the
case of a subsequent delivery of only a portion of such Accepted Offer Space,
this Section 26.7.
26.8 Landlord shall not be subject to any liability for failure to
deliver possession of all or any portion of any Accepted Offer Space in the
event that Landlord is unable to deliver to Tenant possession thereof on the
applicable Scheduled Offer Space Delivery Date by reason of the holding over in
the space by a prior tenant thereof, but Landlord shall use commercially
reasonable efforts, including prosecution of an eviction action, to obtain
possession of the Accepted Offer Space; nor shall such failure affect either the
validity of this Lease or the obligations of Landlord or Tenant hereunder.
Notwithstanding the foregoing, if for any reason Landlord shall fail
to deliver vacant possession of any portion of any Accepted Offer Space on or
before the 60th day following the applicable Scheduled Offer Space Delivery Date
then Tenant shall have the right, by notice to Landlord given at any time prior
to delivery of vacant possession of all of such Accepted Offer Space, to rescind
its Acceptance Notice as to all of such Accepted Offer Space (excluding any
Partial Accepted Offer Space theretofore accepted by Tenant) or as to all of
such Accepted Offer Space (excluding any Partial Accepted Offer Space
theretofore accepted by Tenant) on any one or more floors of the Building.
26.9 The annual Fixed Rent per square foot of rentable area for any
Accepted Offer Space shall be an amount equal to the annual fair market rental
value of such Accepted Offer Space per square foot of rentable area for a term
commencing on the Scheduled Offer Space Delivery Date and ending as provided in
this Article 26 and otherwise on the terms and conditions provided for in
Section 26.6 (the "Offer Space Fair Market Rent"), multiplied by ninety-five
percent (95%).
82
94
The Offer Space Fair Market Rent shall be determined on the basis of
the use of the Accepted Offer Space as offices (in the case of Accepted Offer
Space on or above the mezzanine level) or as lobby or basement space (in the
case of Accepted Offer Space below the mezzanine level) assuming that (i) the
Accepted Offer Space is free and clear of all leases and tenancies, (ii) the
Accepted Offer Space is available in the then rental market for comparable
first-class office buildings in Manhattan, (iii) Landlord has had a reasonable
time to locate a tenant who rents with the knowledge of the uses to which the
Accepted Offer Space can be adapted, (iv) neither Landlord nor the prospective
tenant is under any compulsion to rent and (v) the prospective tenant has the
creditworthiness of Tenant.
If and to the extent that any lease used as a reference (or
"comparable") by the persons determining the Offer Space Fair Market Rent
provides for any payments, costs and concessions by the landlord thereunder
(including by way of example, brokerage commissions, takeover costs,
construction costs, tenant construction allowances and rent abatements), such
persons shall, in determining such Offer Space Fair Market Rent, adjust the base
rent provided for in such lease downward to reflect that in connection with the
leasing of the Offer Space to Tenant the Landlord will incur no such payments,
costs or concessions.
The persons determining the Offer Space Fair Market Rent shall (A)
assume that this Lease (i) requires Landlord to provide office cleaning to the
Accepted Offer Space, and (ii) requires Tenant to bear only the escalation in
the costs thereof in excess of the costs thereof during the calendar year in
which the Offer Space Commencement Date occurs, and (B) also determine the
estimated cost of providing office cleaning to the Accepted Offer Space during
the calendar year in which the Offer Space Commencement Date occurs (the "Offer
Space Initial Cleaning Cost").
26.10 For purposes of determining the Offer Space Fair Market Rent,
the following procedure shall apply:
(a) Landlord and Tenant shall, at the location in the County of New
York and the time on the 20th business day after the day of the Acceptance
Notice specified by Landlord reasonably in advance, exchange their
respective written determinations of (i) the Offer Space Fair Market Rent,
and (ii) the Offer Space Initial Cleaning Cost, each of which shall be
stated as a dollar amount per square foot of rentable area (Landlord's
determination of the Offer Space Fair Market Rent and the Offer Space
Initial Cleaning Cost is referred to as "Landlord's Determination" and
Tenant's determination of the Offer Space Fair Market Rent and the Offer
Space Initial Cleaning Cost is referred to as "Tenant's Determination").
If either party shall fail to tender delivery of its determination on the
date and at the time and location provided for above (or if Landlord shall
fail to so specify such time and location as provided for above), the
other party may withhold its determination and, by notice to the failing
party, may specify a new date, time and location in the County of New York
for such exchange and, if such failing party shall again fail to tender
delivery
83
95
of its determination on such new date and at such new time and location,
then the determination of such other party shall constitute the Offer
Space Fair Market Rent and the Offer Space Initial Cleaning Cost.
(b) If the parties shall have exchanged determinations in accordance
with the foregoing, they shall attempt to agree upon the Offer Space Fair
Market Rent and the Offer Space Initial Cleaning Cost. If, within ten (10)
days after the date of such exchange, they have not so agreed they shall
attempt to agree upon an independent real estate appraiser to act
hereunder. If, within twenty (20) days after the date of such exchange,
they have not so agreed upon such an independent real estate appraiser,
such independent real estate appraiser shall be appointed by the American
Arbitration Association. The independent real estate appraiser so agreed
upon by the parties or so appointed is herein called the "Offer Space
Appraiser". The fee of the Offer Space Appraiser and of the American
Arbitration Association shall be borne equally by Landlord and Tenant.
Each party shall pay its own counsel fees and expenses, if any, in
connection with any determination under this Article.
(c) The Offer Space Appraiser shall conduct such hearings and
investigations as he or she may deem appropriate and shall, within thirty
(30) days of the date of his or her designation, choose
(i) either Landlord's Determination of the Offer Space Fair
Market Rent or Tenant's Determination of the Offer Space Fair Market
Rent, and
(ii) either Landlord's Determination of the Offer Space
Initial Cleaning Cost or Tenant's Determination of the Offer Space
Initial Cleaning Cost
(it being understood that the Offer Space Appraiser may choose Landlord's
Determination of one and Tenant's Determination of the other) and the
choice by the Appraiser shall be conclusive and binding upon Landlord and
Tenant.
(d) The Offer Space Appraiser appointed pursuant to this Article
shall be an independent real estate appraiser with at least ten (10)
years' experience in valuation of properties that are similar in character
to the Building, and a member of the Appraisal Institute (or its
successor). The Offer Space Appraiser shall not have the power to add to,
modify or change any of the provisions of this Lease.
(e) It is expressly understood that any determination of the Offer
Space Fair Market Rent and the Offer Space Initial Cleaning Cost pursuant
to this Article shall be based on the criteria stated in this Article.
26.11 The number of square feet of rentable area of any floor shall
be as set forth on Exhibit B. The number of square feet of rentable area of any
portion of any floor
84
96
less than all thereof shall be determined by allocating of the number of square
feet of rentable area of such floor to the respective usable portions thereof,
so that the aggregate number of square feet of rentable area of all such usable
portions shall equal the number of square feet of rentable area of such floor as
set forth on Exhibit B. Any dispute with respect to the number of square feet of
rentable area of any such portion shall be subject to arbitration pursuant to
Article 35.
26.12 After a determination has been made of the Offer Space Fair
Market Rent and the Offer Space Initial Cleaning Cost for any Accepted Offer
Space, the parties shall execute and deliver to each other an instrument
setting forth the Offer Space Fair Market Rent, the Offer Space Initial Cleaning
Cost and the Offer Space Fixed Rent for such Accepted Offer space as determined
pursuant to this Article; provided however, that failure of either party to
execute a written supplement shall not affect the rights and duties of the
parties hereunder.
26.13 If the final determination of the Offer Space Fair Market Rent
and the Offer Space Initial Cleaning Cost with respect to any Accepted Offer
Space shall not be made on or before the Offer Space Commencement Date with
respect thereto, then pending such determination (and subject to retroactive
adjustment as provided below), payments of Fixed Rent and Landlord Monthly
Payment with respect to the Accepted Offer Space shall be made based upon the
assumption that the Office Space Arbitrator will choose Landlord's Determination
of the Offer Space Fair Market Rent and of the Offer Space Initial Cleaning
Cost. If the Offer Space Arbitrator chooses Tenant's Determination of the Offer
Space Fair Market Rent or the Offer Space Initial Cleaning Cost (or if the Offer
Space Fair Market Rent or Offer Space Initial Cleaning Cost as finally
determined is otherwise different from Landlord's Determination thereof), Tenant
shall be entitled to a credit against the Rent equal to the amount of Tenant's
overpayment of Fixed Rent or Landlord's underpayment of Landlord Monthly
Payment, computed retroactively to the Offer Space Commencement Date. If the
amount of such credit shall exceed $100,000 Landlord shall, if Tenant shall so
request, pay such amount to Tenant with twenty (20) days of such request.
26.14 Tenant shall have the right, upon reasonable notice to
Landlord, to enter any Offer Space at reasonable times for purposes of
inspection and measurement from time to time during the period beginning on the
date of any Offer Notice and ending on the last day on which Tenant is entitled
to give an Acceptance Notice with respect thereto; provided, however, that if
Tenant shall timely give an Acceptance Notice such right shall continue until
the Offer Space Commencement Date. Landlord may accompany Tenant during any such
entry.
Article 27. Renewal Term.
27.1 Tenant shall have the option (the "Renewal Option") to extend
the term of this Lease for two (2) additional periods of five (5) years each
(each a "Renewal Term").
85
97
The first Renewal Term (the "First Renewal Term") shall commence on the date
immediately succeeding the Initial Term Expiration Date and shall end on the
fifth (5th) anniversary of the Initial Term Expiration Date.
The second Renewal Term (the "Second Renewal Term") shall commence
on the date immediately succeeding the fifth (5th) anniversary of the Initial
Term Expiration Date and shall end on the tenth (10th) anniversary of the
Initial Term Expiration Date
Each Renewal Option may be exercised with respect to:
(i) the entire Premises then subject to this Lease; or
(ii) the Base Premises only, if the Base Premises are then
subject to this Lease (whether or not other premises are also then
subject to this Lease); or
(iii) the Base Premises and the Special Purpose Areas then
subject to this Lease only, if the Base Premises and any or all of
the Special Purposes Areas are then subject to this Lease (whether
or not other premises are also then subject to this Lease);
provided, however, that if any Renewal Option is exercised with respect to
either (X) the premises referred to in clause (ii) above or (Y) the premises
referred to in clause (iii) above, then such Renewal Option may also be
exercised with respect to such other portions of the Premises then subject to
this Lease as Tenant shall elect, except that in making its election under this
proviso Tenant shall not exclude from the Renewal Premises any Full Premises
Floor if both the floor immediately above such Full Premises Floor and the floor
immediately below such Full Premises Floor are Full Premises Floors and are
included in such Renewal Premises.
The premises as to which Tenant exercises a Renewal Option are
herein called the "Renewal Premises" with respect to such Renewal Option.
Each Renewal Option shall be exercisable by Tenant delivering to
Landlord notice of Tenant's exercise thereof (a "Renewal Notice"), identifying
the Renewal Premises, at least 18 months prior to the first day of the Renewal
Term in question. Time is of the essence with respect to the giving of the
Renewal Notice. Upon the giving of the Renewal Notice with respect to the Second
Renewal Term, Tenant shall have no further right or option to extend or renew
the term of this Lease or any Renewal Term.
Notwithstanding the foregoing, Tenant may only exercise a Renewal
Option, and an exercise thereof shall only be effective, if at the time of
Tenant's exercise of such Renewal Option and on the day preceding the
commencement of the Renewal Term in question, the following conditions are
satisfied, (i) this Lease is in full force and effect and
86
98
(ii) no monetary or material non-monetary default on the part of Tenant
continuing beyond any applicable notice or cure period then exists under this
Lease.
27.2 If Tenant exercises a Renewal Option, the Renewal Term shall be
upon the same terms, covenants and conditions as those contained in this Lease,
except that
(i) the Fixed Rent with respect to the Office Area being a
part of the Renewal Premises shall be the Office Area Renewal Fixed
Rent as determined pursuant to this Article 27,
(ii) the Fixed Rent with respect to the Special Purpose Areas
being a part of the Renewal Premises shall be 53% percent of the
Office Area Renewal Fixed Rent as determined pursuant to this
Article 27,
(iii) the Fixed Rent with respect to the Non-Office Areas
being a part of the Renewal Premises shall be 50% percent of the
Office Area Renewal Fixed Rent as determined pursuant to this
Article 27,
(iv) the Base Year shall be the calendar year in which the
first day of the Renewal Term occurs, and
(v) the provisions of this Article relative to Tenant's right
to renew the term of this Lease (x) shall be limited during the
First Renewal Term to the right to exercise the Renewal Option with
respect to the Second Renewal Term and (y) shall not be applicable
during the Second Renewal Term.
27.3 For annual Fixed Rent per square foot of rentable area of
Office Area for any Renewal Term (the "Office Area Renewal Fixed Rent") shall be
an amount equal the annual fair market rental value of the Office Area for a
five-year term commencing on the first day of the Renewal Term in question and
otherwise on the terms and conditions applicable to the Office Area provided for
in this Article 27 (the "Renewal Term Fair Market Rent"), multiplied by
ninety-five (95%).
The Renewal Term Fair Market Rent shall be determined on the basis
of the use of the Office Area as offices assuming that (i) the Office Area is
free and clear of all leases and tenancies (including this Lease), (ii) the
Office Area is available in the then rental market for comparable first-class
office buildings in Manhattan, (iii) Landlord has had a reasonable time to
locate a tenant who rents with the knowledge of the uses to which the Office
Area can be adapted, and (iv) neither Landlord nor the prospective tenant is
under any compulsion to rent, and (v) the prospective tenant has the
creditworthiness of Tenant.
If and to the extent that any lease used as a reference (or
"comparable") by the persons determining the Renewal Term Fair Market Rent
provides for any payments, costs and concessions by the landlord thereunder
(including by way of example, brokerage
87
99
commissions, takeover costs, construction costs, tenant construction allowances
and rent abatements), such persons shall, in determining such Renewal Term Fair
Market Rent, adjust the base rent provided for in such lease downward to reflect
that in connection with the renewal of this Lease the Landlord will incur no
such payments, costs or concessions.
The persons determining the Renewal Term Fair Market Rent shall (A)
assume that this Lease (i) requires Landlord to provide office cleaning to the
Premises, and (ii) requires Tenant to bear only the escalation in the costs
thereof in excess of the costs thereof during the calendar year in which the
Renewal Term commences, and (B) also determine the estimated cost of providing
office cleaning to the Premises during the calendar year in which the Renewal
Term commences (the "Renewal Term Initial Cleaning Cost").
27.4 For purposes of determining the Renewal Term Fair Market Rent,
the following procedure shall apply:
(a) Landlord and Tenant shall, at the location in the County of New
York, at the time and on a business day not earlier than 20 months prior
to the first day of the Renewal Term in question and not later than 19
months prior to the first day of the Renewal Term in question specified by
Landlord (by notice to Tenant given at least thirty (30) days prior to the
date set forth therein), exchange their respective written initial
determinations of the Renewal Term Fair Market Rent and the Renewal Term
Initial Cleaning Cost, each of which shall be stated as a dollar amount
per square foot of rentable area of Office Area (Landlord's initial
determination of the Renewal Term Fair Market Rent and the Renewal Term
Initial Cleaning Cost is referred to as "Landlord's Initial Determination"
and Tenant's determination of the Renewal Term Fair Market Rent and the
Renewal Term Initial Cleaning Cost is referred to as "Tenant's Initial
Determination"). If either party shall fail to tender delivery of its
determination on the date and at the time and location provided for above
(or if Landlord shall fail to so specify such date, time and location as
provided for above), the other party may withhold its determination and,
by notice to the other party given at least five (5) days prior to the
date set forth therein, may specify a new date, time and location in the
County of New York for such exchange and, if such failing party shall
again fail to tender delivery of its determination on such new date and at
such new time and location, then the determination of such other party
shall constitute the Renewal Term Fair Market Rent and the Renewal Term
Initial Cleaning Cost.
(b) If the parties shall have exchanged determinations in accordance
with the foregoing, they shall attempt to agree upon the Renewal Term Fair
Market Rent and the Renewal Term Initial Cleaning Cost. If, within ten
(10) days after the date of such exchange, they have not so agreed they
shall attempt to agree upon an independent real estate appraiser to act
hereunder. If, within twenty (20) days after the date of such exchange,
they have not so agreed upon such an independent real estate appraiser,
such independent real estate appraiser shall be appointed by the American
Arbitration Association. The independent real estate appraiser so agreed
88
100
upon by the parties or so appointed is herein called the "Renewal Term
Appraiser". The fee of the Renewal Term Appraiser and of the American
Arbitration Association shall be borne equally by Landlord and Tenant.
Each party shall pay its own counsel fees and expenses, if any, in
connection with any determination under this Article.
(c) The Renewal Term Appraiser, by notice to the parties, shall
establish a date, time and location in the County of New York, no earlier
than 10 days after the date of such notice, at which either party may, if
it elects, deliver to the Renewal Term Appraiser a revised written
determination of the Renewal Term Fair Market Rent and/or the Renewal Term
Initial Cleaning Cost (stated as a dollar amount per square foot of
rentable area of Office Area); provided, however, that
(a) Landlord's revised determination of the Renewal Term Fair
Market Rent shall be no higher than Landlord's Initial Determination
thereof and no lower than 95% of Landlord's Initial Determination
thereof,
(b) Landlord's revised determination of the Renewal Term
Initial Cleaning Cost shall be no lower than Landlord's Initial
Determination thereof and no higher 105% of Landlord's Initial
Determination thereof,
(c) Tenant's revised determination of the Renewal Term Fair
Market Rent shall no lower than Tenant's Initial Determination
thereof and no higher than 105% of Tenant's Initial Determination
thereof
(d) Tenant's revised determination of the Renewal Term Initial
Cleaning Cost shall be no higher than Tenant's Initial Determination
thereof and no lower than 95% of Tenant's Initial Determination
thereof.
If both parties elect to deliver revised determination, they shall do so
simultaneously. The Renewal Term Appraiser shall furnish each party with a
copy of any revised determination delivered by the other. As used herein
the term "Landlord's Final Determination" shall mean (i) if Landlord shall
have delivered a revised determination in accordance with this Section
27.4.3, such revised determination, or (ii) otherwise, Landlord's Initial
Determination. As used herein the term "Tenant's Final Determination"
shall mean (i) if Tenant shall have delivered a revised determination in
accordance with this Section 27.4.3, such revised determination, or (ii)
otherwise, Tenant's Initial Determination.
(d) The Renewal Term Appraiser shall conduct such hearings and
investigations as he or she may deem appropriate and shall, within thirty
(30) days of the date of his or her designation, choose
89
101
(i) either Landlord's Final Determination of the Renewal Term
Fair Market Rent or Tenant's Final Determination of the Renewal
Term. Fair Market Rent and
(ii) either Landlord's Final Determination of the Renewal Term
Initial Cleaning Cost or Tenant's Final Determination of the Renewal
Term Initial Cleaning Cost
(it being understood tat the Renewal Term Appraiser may choose Landlord's
Final Determination of one and Tenant's Final Determination of the other)
and the choice by the Appraiser shall be conclusive and binding upon
Landlord and Tenant.
(e) The Renewal Term Appraiser appointed pursuant to this Article
shall be an independent real estate appraiser with at least ten (10)
years' experience in valuation of properties that are similar in character
to the Building, and a member of the Appraisal Institute (or its
successor). The Renewal Term Appraiser shall not have the power to add to,
modify or change any of the provisions of this Lease.
(f) It is expressly understood that any determination of the Renewal
Term Fair Market Rent and the Renewal Term Initial Cleaning Cost pursuant
to this Article shall be based on the criteria stated in this Article.
27.5 After a determination has been made of the Renewal Term Fair
Market Rent and the Renewal Term Initial Cleaning Cost for any Renewal Term, the
parties shall execute and deliver to each other an instrument setting forth the
Renewal Term Fair Market Rent, the Renewal Term Initial Cleaning Cost and the
Office Area Renewal Fixed Rent for the Renewal Term as determined pursuant to
this Article and, if applicable, the Fixed Rent for the Renewal Term with
respect to the Special Purpose Areas and the Non-Office Areas; provided however,
that failure of either party to execute a written supplement shall not affect
the rights and duties of the parties hereunder.
27.6 If the final determination of the Renewal Term Fair Market Rent
and the Renewal Term Initial Cleaning Cost with respect to any Renewal Term
shall not be made on or before the first day of such Renewal Term, then pending
such final determination (and subject to retroactive adjustment as provided
below), payments of Fixed Rent and Landlord Monthly Payment during the Renewal
Term shall be made based upon the assumption that the Renewal Term Appraiser
will choose Landlord's Determination of the Renewal Term Fair Market Rent and of
the Renewal Term Initial Cleaning Cost. If the Renewal Term Appraiser chooses
Tenant's Determination of the Offer Space Fair Market Rent or of the Renewal
Term Initial Cleaning Cost (or if the Renewal Term Fair Market Rent of Renewal
Term Initial Cleaning Cost as finally determined is otherwise different from
Landlord's Determination thereof), Tenant shall be entitled to a credit against
the Rent equal to the amount of Tenant's overpayment of Fixed Rent or Landlord's
underpayment of Landlord Monthly Payment, computed retroactively to the first
day of such Rental Term. It the
90
102
amount of such credit shall exceed $100,000 Landlord shall, if Tenant shall so
request, refund the same within ten (10) days of such request.
Article 28. Notices.
All notices, demands, requests or other communications provided for
or permitted to be given pursuant to this Lease shall be in writing and shall be
deemed to have been properly given or sewed when sent to the other party at all
required addresses for such party set forth in Article 1 (or, if changed
pursuant to this Article 28, as so changed) by (a) hand delivery or (b)
overnight commercial courier service. Rejection or refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of the notice, demand, request or other
communication sent. Any method of giving notices, demands, requests or other
communications other than that specifically provided for herein is hereby
precluded. By giving at least thirty (30) days written notice thereof, either
party shall have the right from time to time and at any time during the term of
this Lease to change either or both its respective addresses.
Article 29. Quiet Enjoyment.
If, and as long as, this Lease shall not have been terminated
pursuant to Article 17 or any other provision of this Lease providing for such
termination, Tenant shall quietly enjoy the Premises without hindrance or
molestation by Landlord or by any other person claiming the Premises, subject,
however, to the covenants, agreements, terms, provisions and conditions of this
Lease.
Article 30. Binding Authority.
Each party represents that it has full power and authority to
execute, deliver and perform this Lease. Each party agrees that it has taken all
necessary action required to authorize the execution, delivery and performance
of this Lease by such party, and this Lease has been duly authorized, executed
and delivered by such party and constitutes the legal, valid and binding
agreement of such party, enforceable against such party in accordance with its
terms.
Article 31. Governing Law; Severability.
Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the State of
New York. If any provision of this Lease or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that provision
to other persons or circumstances shall not be affected.
91
103
Article 32. Lease Contains All Agreements - No Waivers.
32.1 This Lease and the Initial Improvements Agreement contains all
of the covenants, agreements, terms, provisions, conditions and understandings
relating to the leasing of the Premises hereunder and Landlord's and Tenant's
obligations in connection therewith and neither party (nor its any agents or
representatives) has made or is making, and the other party in executing and
delivering this Lease is not relying upon, any warranties, representations,
promises or statements whatsoever, except to the extent expressly set forth in
this Lease. All prior understandings and agreements, if any, between the parties
are merged in this Lease, which alone fully and completely expresses the
agreement of the parties.
32.2 The failure of either party to insist in any instance upon the
strict keeping, observance or performance of any covenant, agreement, term,
provision or condition of this Lease or to exercise any election herein
contained shall not be construed as a waiver or relinquishment for the future of
any covenant, agreement, term, provision, condition or election, all of which
shall continue and remain in full force and effect. No waiver or modification by
a party of any covenant, agreement, term, provision or condition of this Lease
shall be deemed to have been made unless expressed in writing and signed by such
party. No surrender of possession of the Premises or of any part thereof or of
any remainder of the term of this Lease shall release Tenant from any of its
obligations hereunder unless accepted by Landlord in writing. The receipt and
retention by Landlord of Fixed Rent or Additional Rent from anyone other than
Tenant shall not be deemed a waiver of the breach by Tenant of any covenant,
agreement, term, provision or condition herein contained, or the acceptance of
any other person as a tenant, or a release of Tenant from further keeping,
observance or performance by Tenant of the covenants, agreements, terms,
provisions and conditions herein contained. The receipt and retention by a party
of any amount payable to such party hereunder by the other party with knowledge
of the breach of any covenant, agreement, term, provision or condition herein
contained by the other party shall not be deemed a waiver of the breach by such
party.
Article 33. Parties Bound.
The covenants, agreements, terms, provisions and conditions of this
Lease shall bind and benefit the respective successors, assigns and legal
representatives of the parties hereto with the same effect as if mentioned in
each instance where a party hereto is named or referred to, except that no
violation of the provisions of Article 12 hereof shall operate to vest any
rights in any successor, assignee or legal representative of Tenant and the
provisions of this Article shall not be construed as modifying the conditions of
limitation contained in Article 17 hereof.
Landlord agrees that none of the partners of Tenant shall have any
personal liability for the obligations of Tenant hereunder.
92
104
The covenants and obligations on the part of Landlord under this
Lease shall not, however, be binding upon any entity now or hereafter having an
ownership interest in the Land or the Building with respect to the period
subsequent to the transfer by such entity of its such interest (the granting of
a lease with an expiration date after the expiration date of the final renewal
term of this Lease shall be deemed such a transfer but only if the lessor
thereunder shall execute and deliver to Tenant a non-disturbance agreement
conform to the requirements of clause (ii) of Section 16.3), and in the event of
such a transfer the covenants and obligations theretofore binding on the
transferor shall thereafter be binding upon the transferee until the next
transfer of the interest.
Article 34. Special Purpose Areas; 16th floor.
34.1 Special Purpose Areas -- General. Each of the following shall
constitute a "Special Purpose Area":
(i) the portion of the 41st floor of the Building now used or
occupied by Continental Club generally as shown on the 4lst floor
plan included in Exhibit D hereto (the "41st Floor Special Purpose
Area");,
(ii) the third floor of the Building and the portion of the
4th floor of the Building now used or occupied as a cafe/kitchen
generally as shown as space C on the 4th floor plan included in
Exhibit D hereto (together "3rd/4th Floor Special Purpose Area");
(iii) the portion of the mezzanine level of the Building now
used or occupied as the Ricker Auditorium or for meeting or
conference facilities generally as shown on the 2nd floor plan
included in Exhibit D hereto (the "2nd Floor Special Purpose Area");
and
(iv) the portion of the basement of the Building now used or
occupied for health and exercise facilities generally as shown as
spaces J and K on the basement plan included in Exhibit D hereto
(the "Basement Special Purpose Area").
Landlord or other persons are now operating in some or all of the Special
Purpose Areas facilities which are available to or used by some or all of the
tenants of the Building.
Landlord represents, warrants, and covenants to Tenant
(a) that no tenant or other person has any right, title or
interest in or to any of the Special Purpose Areas or any portion
thereof or any of the facilities therein, or any right to use or to
require the continued operation of such Special Purpose Area or any
portion thereof or any of the facilities therein (any such right,
title or interest or right to use or to required the
93
105
continued operation being herein called a "Special Purpose Area
Right"), except for
(i) Stroock & Stroock & Lavan LLP ("SSL"),
(ii) the other tenants (excluding MCI and Teleport)
listed on Exhibit S hereto (the "Other Tenants"); and
(iii) any memberships granted to non-tenants in the
facilities located in 41st Floor Special Purpose Area, the
3rd/4th Floor Special Purpose Areas and/or the Basement
Special Purpose Areas all of which are terminable prior to
December 31, 1998;
(b) that SSL's Special Purpose Area Rights are only those set
forth in Article Thirty-Ninth of SSL's lease as in effect on the
date hereof a copy of which is attached hereto as Exhibit CCC (the
"SSL Special Purpose Area Lease Provision"); and
(c) that the Special Purpose Area Rights of the Other Tenants
are only those set forth in the provisions of their respective
leases is in effect on the date hereof copies of which are attached
hereto as Exhibit DDD (each respectively a "Other Special Purpose
Area Lease Provision") and that MCI and Teleport have no Special
Purpose Area Rights.
Prior to the delivery to Tenant of any Special Purpose Area,
Landlord shall
(a) terminate all leases, licenses and other agreements or
arrangements covering such Special Purpose Area and shall, and shall
cause all other persons to, vacate such Special Purpose Area and
shutdown and discontinue the operation of all facilities in such
Special Purpose Area, and
(b) terminate (or, in the case of any memberships referred to
above, cause the termination of) all of the Special Purpose Area
Rights, excluding (i) the Special Purpose Area Rights of SSL under
the SSL Special Purpose Lease Provision with respect to all of the
Special Purpose Areas, (ii) the Special Purpose Area Rights under
the Other Special Purpose Area Lease Provision relative to any
Special Purpose Area of any Other Tenant who shall not have
delivered to Landlord a Waiver with respect to such Special Purpose
Area., and (iii) the Special Purpose Area Rights under any lease
finally expiring on or before January 31, 1999 (the tenant under any
such lease referred to in this clause (iii) being herein called a
"30 Day Tenant").
Landlord represents, warrants and covenants to Tenant that the
leasing of the Special Purpose Areas to Tenant is and shall be free of all
Special Purpose Area Rights
94
106
(other than those referred to in clauses (i), (ii) and (iii) of subparagraph (b)
of the preceding paragraph). Landlord shall indemnify and save harmless the
Tenant Indemnitees from and against any loss, cost, damage or expense arising
out of any tenant or other person having or claiming to have any right, title or
interest in or to any Special Purposes Area or any portion thereof or any of the
facilities therein, or having or claiming to have any right to use or to require
the continued operation of any Special Purpose Area or any portion thereof or
any of the facilities therein, including legal fees and expenses incurred by any
Tenant Indemnitee in the defense of any such claim, other than
(i) any claim under the SSL Special Purpose Area Lease
asserted by SSL, or
(ii) any claim under an Other Special Purpose Area Lease
Provision relative to a Special Purpose Area asserted by any Other
Tenant who shall not have delivered a Waiver with respect to such
Special Purpose Area.
This paragraph shall be applicable whether or not Tenant permits SSL, the
claimant or any other tenant or person to use any Special Purpose Area or any
portion thereof or any of the facilities therein.
Commencing promptly after the execution of this Lease, Landlord
shall endeavor to obtain from each of the Other Tenants (other than the 30 Day
Tenants) a full, complete, unqualified and unconditional waiver and surrender of
all of such Other Tenant's Special Purpose Area Rights (any such full, complete,
unqualified and unconditional waiver and surrender with respect to one or more
of the Special Purpose Areas being herein called "Waiver") and, promptly upon
receiving any such Waiver from any Other Tenant, Landlord shall furnish Tenant
with a copy thereof.
If on December 31, 1998, Landlord shall have obtained and furnished
to Tenant Waivers from fewer than all of (or from none of) the Other Tenants
(other than the 30 Day Tenants) with respect to any Special Purpose Area then
(i) the Scheduled Delivery Date with respect to such Special
Purpose Area shall be postponed until January 31, 1999, and
(ii) Tenant, by notice to Landlord given prior to January 31,
1999, shall have the right to eliminate from the Premises such
Special Purpose Area.
Notwithstanding the provisions of Section 2.3, Landlord shall not have the right
to accelerate the Delivery Date of any Special Purpose Area unless Landlord's
notice under Section 2.3 shall be given on or before November 1, 1998 and shall
be accompanied by Waivers from all of the Other Tenants (including the 30 Day
Tenants whose terms will not have expired by the accelerated Delivery Date).
95
107
If Tenant shall so eliminate such Special Purpose Area from the
Premises then the provisions of Section 34.2, 34.3, 34.4 or 34.5, as the case
may be, shall be applicable.
If Tenant does not so eliminate such Special Purpose Area from the
Premises then the Fixed Rent payable with respect to such Special Purpose Area
shall be reduced to fifty (50%) of the Fixed Rent which would otherwise be
payable with respect thereto as provided for in this Lease; provided, however,
that if Landlord shall subsequently obtain and furnish to Tenant Waivers with
respect to such Special Purpose Area from all of the Other Tenants (other than
the 30 Day Tenants) then (a) the Fixed Rent reduction provided for in this
paragraph shall stop and thereafter the Fixed Rent payable with respect to such
Special Purpose Area shall be such amount as shall be otherwise provided for in
this Lease, and (b) if the stoppage of such reduction shall occur prior to the
Early Termination Date Landlord shall pay to Tenant, an amount equal to the
product of (i) the rentable area of the Special Purpose Area, multiplied by (ii)
$11.25, multiplied by (iii) the fraction the numerator of which is the number of
months from the date of such stoppage to the Early Termination Date and the
denominator of which is 120.
34.2 Continued Operation of 4lst Floor Special Purpose Area. If
pursuant to Section 34.1 or otherwise the Premises shall cease to include or
shall not include the 41st Floor Special Purpose Area then the provisions of
this Section 34.2 shall be effective for the balance of the term of this Lease,
including any renewal terms, subject to Landlord's right to terminate the
operation of and close the dining facility as provided for in the final
paragraph of this Section 34.2.
Landlord shall operate, or cause to be operated, the 41st Floor
Special Purpose Area as a dining facility appropriate for a class A downtown
Manhattan office building. Neither the size nor the operating hours or services
shall hereafter be reduced below the size, operating hours or services in effect
on the date hereof. In no event shall Tenant's rights in, to and with respect to
the dining facility be less, in any respect, than the rights of any other tenant
or other person. Tenant (and, if and to the extent that Tenant so elects, its
subtenants) and their respective employees and guests shall be entitled to use
such dining facility on a non-exclusive basis. Tenant shall be entitled to
separate reserved exclusive rooms and seating areas up to Tenant's Proportionate
Share of the capacity of the dining facility. At Tenant's request, Landlord
shall consult with Tenant with respect all aspects of the dining facility
operation, including menus, quality, service levels, pricing, upkeep and decor
of the facilities. Landlord shall furnish Tenant with copies of, and shall meet
with Tenant to discuss, monthly financial statements, quarterly operational
reviews, periodic (at least quarterly) sanitation reviews and all other
documentation commonly created in connection with the operation of a dining
facility appropriate for a class A office building. Landlord shall comply with
Tenant's directions and requests from time to time with respect to the dining
facility and its operations, and, if Tenant shall so request from time to time,
Landlord shall replace the operator of the dining facility with an operator
acceptable to Tenant provided, however, that (a) Tenant shall not have the right
to require Landlord to replace the operator of the dining facility within one
year of such the operator's having been previously
96
108
replaced at Tenant request, and (b) if any such direction or request or
replacement operator would result in a net increase in Landlord's costs of
operating the dining facility, Landlord shall not be required to comply with
such direction or request or so to replace the operator of the dining facility
unless Tenant agrees to pay such net increase in costs.
Landlord shall have the right, upon not less than 120 days notice to
Tenant, to terminate the operation of and close the dining facility; provided,
however, that Tenant, by notice to Landlord given within sixty (60) days of its
receipt of Landlord's notice, shall have the right to lease the 41st Floor
Special Purpose Area commencing on the day after the closure date set forth in
Landlord's notice subject to all of the terms and conditions provided for in
Section 34.1 with the same force and effect as if Tenant had not excluded the
41st Floor Special Purpose Area from the Premises.
34.3 Continued Operation of 3rd/4th Floor Special Purpose Area. If
pursuant to Section 34.1 or otherwise the Premises shall cease to include or
shall not include the 3rd/4th Floor Special Purpose Area then the provisions of
this Section 34.4 shall be effective for the balance of the term of this Lease,
including any renewal terms, subject to Landlord's right to terminate the
operation of and close the cafeteria as provided for in the final paragraph of
this Section 34.3.
Landlord shall operate, or cause to be operated, the 3rd/4th Floor
Special Purpose Area as a cafeteria appropriate for a class A downtown Manhattan
office building. Neither the size nor the operating hours or services shall
hereafter be reduced below the size, operating hours or services in effect on
the date hereof. Tenant (and, if and to the extent that Tenant so elects, its
subtenants) and their respective employees and guests shall be entitled to use
such cafeteria on a non-exclusive basis. Tenant shall be entitled to separate
reserved exclusive rooms and seating areas up to Tenant's Proportionate Share of
the capacity of the cafeteria. At Tenant's request, Landlord shall consult with
Tenant with respect all aspects of the cafeteria operation, including menus,
quality, service levels, pricing, upkeep and decor of the facilities. Landlord
shall furnish Tenant with copies of, and shall meet with Tenant to discuss,
monthly financial statements, quarterly operational reviews, periodic (at least
quarterly) sanitation reviews and all other documentation commonly created in
connection with the operation of a cafeteria appropriate for a class A office
building. Landlord shall comply with Tenant's directions and requests from time
to time with respect to the dining facility and its operations, and, if Tenant
shall so request from time to time, Landlord shall replace the operator of the
dining facility with an operator acceptable to Tenant; provided, however, that
(a) Tenant shall not have the right to require Landlord to replace the operator
of the dining facility within one year of such the operator's having been
previously replaced at Tenant request, and (b) if any such direction or request
or replacement operator would result in a net increase in Landlord's costs of
operating the cafeteria, Landlord shall not be required to comply with such
direction or request or so to replace the operator of the cafeteria unless
Tenant agrees to pay such net increase in costs.
97
109
Landlord shall have the right, upon not less than 120 days notice to
Tenant, to terminate the operation of and close the cafeteria; provided,
however, that Tenant, by notice to Landlord given within sixty (60) Clays of its
receipt of Landlord's notice, shall have the right to lease the 3rd/4th Floor
Special Purpose Area commencing on the day after the closure date set forth in
Landlord's notice subject to all of the terms and conditions provided for in
Section 34.1 with the same force and effect as if Tenant had not excluded the
3rd/4th Floor Special Purpose Area from the Premises pursuant to Section 34.1.
34.4 Continued Operation of 2nd Floor Special Purpose Area. If
pursuant to Section 34.2 or otherwise the Premises shall cease to include or
shall not include the 2nd Floor Special Purpose Area then the provisions of this
Section 34.4 shall be effective for balance of the term of this Lease, including
any renewal terms, including any renewal terms, subject to Landlord's right to
terminate the operation of and close the conference center as provided for in
the final paragraph of this Section 34.4.
Landlord shall operate, or cause to be operated, the 2nd Floor
Special Purpose Area as a conference center (including the Ricker auditorium)
appropriate for a class A downtown Manhattan office building. Neither the size
nor the operating hours or services shall hereafter be reduced below the size,
operating hours or services in effect on the date hereof. In no event shall
Tenant's rights in, to and with respect to the conference center be less, in any
respect, than the rights of any other tenant or other person. Tenant (and, if
and to the extent that Tenant so elects, its subtenants) and their respective
employees and guests shall be entitled to use such conference center on a
non-exclusive basis. At Tenant's request, Landlord shall consult with Tenant
with respect all aspects of the conference center operation. The facilities of
the conference center shall be subject to reservation by tenants of the Building
on a "first-reserved, first-served" basis; provided, however, that
(i) except for Tenant and SSL no tenant of the Building or
other person shall be permitted to reserve any room or facility
prior to 30 days in advance, and
(ii) Tenant and SSL shall be entitled to reserve any room or
facility as far in advance as either desires.
Landlord shall comply with Tenant's directions and requests from time to time
with respect to the conference center and its operations, and, if Tenant shall
so request from time to time, Landlord shall replace the operator of the
conference center with an operator acceptable to Tenant; provided, however, that
(a) Tenant shall not have the right to require Landlord to replace the operator
of the conference center within one year of such the operator's having been
previously replaced at Tenant request, and (b) if any such direction or request
or replacement operator would result in a net increase in Landlord's costs of
operating the conference center, Landlord shall not be required to comply with
such direction or request or replace the operator of the conference unless
Tenant agrees to pay such net increase in costs.
98
110
Landlord shall have the right, upon not less than 120 days notice to
Tenant, to terminate the operation of and close the conference center; provided,
however, that Tenant, by notice to Landlord given within sixty (60) days of its
receipt of Landlord's notice, shall have the right to lease the 2nd Floor
Special Purpose Area subject to all of the terms and conditions provided for in
Section 34.1 with the same force and effect as if Tenant had not excluded the
2nd Floor Special Purpose Area from the Premises pursuant to Section 34.1.
34.5 Continued Operation of Basement Special Purpose Area. If
pursuant to Section 34.1 or otherwise the Premises shall cease to include or
shall not include the Basement Special Purpose Area then the provisions of this
Section 34.5 shall be effective for the balance of the term of this Lease,
including any renewal terms, including any renewal terms, subject to Landlord's
right to terminate the operation of and close the health and exercise facility
as provided for in the final paragraph of this Section 34.3..
Landlord shall operate, or cause to be operated, the Basement
Special Purpose Area as a health and exercise facility appropriate for a class A
downtown Manhattan office building. Neither the size nor the operating hours or
services shall hereafter be reduced below the size, operating hours or services
in effect on the date hereof. In no event shall Tenant's rights in, to and with
respect to the health and exercise facility be less, in any respect, than the
rights of any other tenant or other person. Tenant (and, if and to the extent
that Tenant so elects, its subtenants) and their respective employees and guests
shall be entitled to use such health and exercise facility on a non-exclusive
basis. At Tenant's request, Landlord shall consult with Tenant with respect all
aspects of the health and exercise facility operation. Landlord shall furnish
Tenant with copies of, and shall meet with Tenant to discuss, monthly financial
statements, quarterly operational reviews, periodic (at least quarterly)
sanitation reviews and all other documentation commonly created in connection
with the operation of a health and exercise facility appropriate for a class A
office building. Landlord shall comply with Tenant's directions and requests
from time to time with respect to the dining facility and its operations, and,
if Tenant shall so request from time to time, Landlord shall replace the
operator of the health and exercise facility with an operator acceptable to
Tenant; provided, however, that (a) Tenant shall not have the right to require
Landlord to replace the operator of the health and exercise facility within one
year of such the operator's having been previously replaced at Tenant request,
and (b) if any such direction or request or replacement operator would result in
a net increase in Landlord's costs of operating the health and exercise
facility, Landlord shall not be required to comply with such direction or
request or so to replace the operator of the health and exercise facility unless
Tenant agrees to pay such net increase in costs.
Landlord shall have the right, upon not less than 120 days notice to
Tenant, to terminate the operation of and close the health and exercise
facility; provided, however, that Tenant, by notice to Landlord given within
sixty (60) days of its receipt of Landlord's notice, shall have the right to
lease the Basement Special Purpose Area subject to all of the terms and
conditions provided for in Section 34.1 with the same force and effect as if
Tenant
99
111
had not excluded the Basement Special Purpose Area from the Premises pursuant
to Section 34.1.
34.6 16th Floor - General. Landlord represents, warrants, and
covenants to Tenant that
(a) no tenant or other person has any right, title or
interest in or to the 16th floor of the Building or any
portion thereof or any of the facilities therein, or any right
to use or to require the continued operation of the 16th floor
of the Building or any portion thereof or any of the
facilities therein (any such right, title or interest or right
to use or to required the continued operation being herein
called a "16th Floor Right"), except for SSL and the Other
Tenants;
(b) that SSL has agreed that Landlord may transfer SSL's
16th Floor Right to any other premises in the Building; and
(c) that Landlord has the right, in connection with the
leasing of the 16th floor to Tenant or otherwise, to terminate
all of the 16th Floor Rights of the Other Tenants.
Prior to the delivery to Tenant of the 16th floor, Landlord shall
(a) terminate all leases, licenses and other agreements or arrangements covering
the 16th floor and shall, and shall cause all other persons to, vacate such 16th
floor and shutdown and discontinue the operation of all facilities on such 16th
floor, (b) terminate all 16th Floor Rights, and (c) demolish all facilities,
improvements, alterations, additions and installations in, to or upon the 16th
floor.
Landlord represents, warrants and covenants to Tenant that the
leasing of the 16th floor to Tenant is and shall be free of all 16th Floor
Rights. Landlord shall indemnify and save harmless the Tenant Indemnitees from
and against any loss, cost, damage or expense arising out of any tenant or other
person (including SSL and any of the Other Tenants) having or claiming to have
any right, title or interest in or to the 16th floor or any portion thereof or
any of the facilities therein, or having or claiming to have any right to use or
to require the continued operation of the 16th floor or any portion thereof or
any of the facilities therein, including legal fees and expenses incurred by any
Tenant Indemnitee in the defense of any such claim. This paragraph shall be
applicable regardless of the use to which Tenant's puts the 16th floor and
regardless of whether Tenant permits the claimant or any other tenant or person
to use the 16th floor or any portion thereof or any of the facilities therein.
Landlord shall perform and satisfy all of the obligations to SSL
under the agreement referred to in clause (b) of the first paragraph of this
Section; provided, however, that if and for so long as the 3rd/4th Floor Special
Purpose Area is part of the Premises,
100
112
Tenant shall permit SSL to use conference facilities therein, or in any other
portion of the Premises designated by Tenant
34.7 Miscellaneous. The rights and remedies specifically provided to
Tenant by this Article are in addition to any rights and remedies available to
Tenant under any other provision of this Lease or under applicable law. Landlord
shall not hereafter grant any Special Purpose Area Rights or any 16th Floor
Rights. Notwithstanding any other provision of this Lease to the contrary,
Tenant shall be entitled to permit any or all of the tenants or occupants of the
Building to use any or all of the Special Purpose Areas.
34.8 Miscellaneous. If Tenant shall lease any Special Purpose Area
pursuant to Section 34.2 through 34.5 prior to the Early Termination Date
Landlord shall pay to Tenant on the date of such leasing an amount equal to the
product of (i) the rentable area of the Special Purpose Area, multiplied by (ii)
$22.50 or $11.25, as applicable, multiplied by (iii) the fraction the numerator
of which is the number of months from the date of such leasing to the Early
Termination Date and the denominator of which is 120.
Article 35. Arbitration.
35.1 No dispute under this Lease shall be subject to arbitration
unless specifically so provided in this Lease. Whenever this Lease shall provide
that a dispute is subject to arbitration, it shall be subject to arbitration in
accordance with the provisions contained in this Article 35. Except to the
extent inconsistent with the provisions of this Article 35, the arbitration
shall be governed by the Commercial Arbitration Rules of the American
Arbitration Association ("AAA").
35.2 The party desiring arbitration shall give notice to the other
party. If the parties shall not have agreed on a choice of an arbitrator within
fifteen (15) days after the service of such notice, either party, on behalf of
both, may request that the New York office of the AAA appoint an arbitrator to
render a resolution of said dispute or to made the determination in question. In
the absence, failure, refusal or inability of AAA to act within twenty (20)
days, then either party, on behalf of both, may apply to a Justice of the
Supreme Court of New York, New York County, for the appointment of an
arbitrator, and the other party shall not raise any question as to the court's
full power and jurisdiction to entertain the application and make the
appointment. In the event of the absence, failure, refusal or inability of an
arbitrator to act, a successor shall be appointed within ten (10) days as herein
before provided. Any arbitrator acting under this Article 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 ten (10) years before
the date of the arbitrator's appointment as arbitrator hereunder.
35.3 All arbitrators chosen or appointed pursuant to this Article
shall (i) be sworn fairly and impartially to perform their respective duties as
such arbitrator, and (ii) not
101
113
be (a) an employee or past employee of Landlord or Tenant or of any other
person, partnership, corporation or other form of business or legal association
or entity that controls, is controlled by or is under common control with
Landlord or Tenant nor (b) anyone that has or has had a business relationship
with Landlord or Tenant Within sixty (60) days after the appointment of an
arbitrator, the arbitrator shall determine the matter in dispute and shall issue
a written decision. The decision of the arbitrator shall be conclusively binding
upon the parties, and judgment upon the decision may be entered in any court
having jurisdiction.
35.4 The arbitrators shall be bound by the provisions of this Lease,
and shall not add to, subtract from or otherwise modify such provisions.
Article 36. Other Installations By Tenant
36.1 Tenant's Generator Plant and Tenant's Cooling Plant. Subject to
the terms and conditions of this Article and Article 6, Tenant shall have the
right to:
(a) construct a new bulkhead enclosure (the "New Bulkhead
Enclosure") above the roof of the existing bulkhead enclosure which
currently houses certain telecommunications equipment (the "Existing
Bulkhead Enclosure");
(b) relocate the Building's three existing emergency
generators and ancillary equipment (the "Existing Building
Generators") from the machine room on the 41st floor (the "41st
Floor Machine Room") to the New Bulkhead Enclosure and remove from
the 41st Floor Machine Room (and dispose of without accountability
to Landlord or any other person) such of the other equipment now
located therein as Tenant shall desire; provided, however, that (i)
in lieu of relocating one or more of the Existing Building
Generators Tenant may replace the same with a new generator of
comparable capacity (including a single generator in replacement for
two or three of the Existing Building Generator provided that such
single generator has a capacity comparable to the two or three
Existing Building Generators being replaced), (ii) Tenant may remove
from the 41st Floor Machine Room (and dispose of without
accountability to Landlord or any other person) any of the Existing
Building Generators so replaced, (iii) if Tenant relocates or
replaces any of the Existing Building Generators (such relocated
Existing Building Generators or replacements therefor being herein
called the "Building Generators") shall extend the Building's fuel
risers to the Building Generators;
(c) install in the New Bulkhead Enclosure additional emergency
generators and ancillary equipment ("Tenant's Generators");
102
114
(d) remove from the Existing Bulkhead Enclosures (and dispose
of without accountability to Landlord or any other person) such of
the equipment now located therein as Tenant shall desire and
install in the Existing Bulkhead Enclosure electrical switches and
switchgear, electrical distribution panels and other electrical
equipment ("Tenant's Electrical Equipment");
(e) install on the roof of the Building a cooling tower
("Tenant's Cooling Tower") and on the roof of the Building a
loadbank ("Tenant's Loadbank");
(f) install in the 41st floor Machine Room chillers and other
mechanical equipment and ancillary equipment ("Tenant's Mechanical
Equipment"); and
(g) to relocate the Building's emergency power distribution
equipment and life safety panel;
all substantially as shown on the plans therefor attached as Exhibits AA, BB,
CC, DD, EE and LL and to install in the Building all ancillary equipment and
appurtenances necessary or appropriate in connection therewith. Tenant shall
dispose of any property removed by pursuant to subparagraph (b) above pursuant
to Applicable Law.
As used in this Lease, the term "Tenant's Generator Plant" shall mean and
refer to Tenant's Generators, Tenant's Electrical Equipment, Tenant's Loadbank,
Tenant's Fuel Tank and all ancillary equipment appurtenances installed by Tenant
pursuant to this Article or pursuant to Article 42.
As used in this Lease, the term "Tenant's Cooling Plant" shall mean and
refer to Tenant's Cooling Tower, Tenant's Mechanical Equipment and all ancillary
or other equipment installed by Tenant pursuant to this Article or pursuant to
Article 42.
Tenant's Generator Plant and Tenants Cooling Plant shall be deemed part of
the Premises for all purposes of this Lease, except for those provisions which
are inappropriate or inapplicable, including, without limitation, Articles 3 and
4 and Sections 11.4, 11.5 and 11.6.
Tenant shall comply with all Applicable Laws at any time duly issued and
in force applicable to, and obtain all permits, licenses and approvals necessary
for, the existence, use, operation or maintenance of the Tenant's Generator
Plant and Tenant's Cooling Plant Landlord shall, within two (2) business days of
Tenant's request, execute any permit, license or approval application or any
similar document required to be executed by Landlord in connection with Tenant's
obtaining any such permit, license or approval.
103
115
If any work by Tenant pursuant to this Section shall invalidate Landlord's
roof warranty (a copy of which is attached hereto as Exhibit T), Tenant shall
take such corrective actions as shall be required to reinstate such roof
warranty or provide equivalent protection to Landlord.
Tenant have the exclusive right, but shall not be obligated, to operate,
maintain, repair and replace Tenant's Generator Plant and Tenant's Cooling
Plant, and Tenant may discontinue operation thereof at any time. Notwithstanding
the foregoing, whether or not Tenant operates or continues to operate Tenant's
Generator Plant or Tenant's Cooling Plant, Tenant shall keep the same in such
condition as shall be required to prevent damage or injury to the Building,
subject nonetheless to the release provisions of Section 22.6.
Landlord shall not take, or suffer or permit to be taken, any action which
will interfere with the proper and efficient operation, maintenance, repair and
replacement by Tenant of Tenant's Generator Plant or Tenant's Cooling Plant.
Tenant shall be permitted continuous access to all portions of Tenant's
Generator Plant and Tenant's Cooling Plant.
Tenant shall be entitled to the entire output of Tenant's Generator Plant
and Tenant's Cooling Plant. Tenant may elect to connect Tenant's Generator Plant
to the Building's electrical distribution system in such a manner that Tenant's
Generator Plant when operating furnishes backup electricity to the entire
Building, including Building systems and portions of the Building not leased to
Tenant. Any backup electricity furnished by Tenant's Generator Plant to Building
systems or portions of the Building not leased to Tenant shall be deemed
furnished solely as an accommodation by Tenant and Tenant shall have no
liability or responsibility to Landlord or any other person or entity for the
quantity or character or reliability of such electricity, or any interruption,
diminution or discontinuation thereof (whether voluntary or otherwise), or for
any notice or warning given or not given in connection therewith, all such
liability and responsibility, including any arising out of Tenant's negligence,
being hereby expressly waived. If Tenant elects to connect Tenant's Generator
Plant to the Building's electrical distribution system in the aforesaid manner
Landlord shall nonetheless remain obligated, as provided by Applicable Law or
the terms of any lease or other contractual obligation to which it is subject,
to provide emergency power to the Building's elevator, exit lighting and fire
life safety systems (and to any other area, system, equipment or facility to
which Landlord is required by Applicable Law or lease or other contractual
obligation to furnish backup electricity), and to operate, maintain, repair and
replace the Building's Generators and ancillary equipment so that upon any
interruption, diminution or discontinuation of electricity being furnished to
the Building's elevators, exit lighting and fire life safety systems by Tenant's
Generators (or to any such area, system, equipment or facility) the Building's
Generators shall furnish backup electricity thereto without interruption and
without any notice from Tenant.
104
116
Tenant shall not sell or otherwise dispose of Tenant's Generator
Plant or Tenant's Cooling Plant other than in connection with an assignment of
this Lease, but this paragraph shall not be deemed to restrict the sale or
otherwise dispose of the output of Tenant's Generator Plant or Tenant's Cooling
Plant.
36.2 Tenant's Antenna Equipment. Subject to the terms and conditions
of this Article, Tenant shall have the right to install dishes and other
antennas, masts and related facilities and equipment (the "Tenant's Antennas")
in the locations and areas shown on Exhibits KK and MM hereto and to install in
the Building all ancillary equipment and appurtenances necessary or appropriate
in connection therewith. Landlord agrees that it shall no place or install, or
suffer or permit the placement or installation of, any equipment or improvements
on the portion of the roof between the two areas shaded on Exhibit KK. The
references in Exhibits KK and MM to "dish antennas" shall not restrict Tenant to
antennas of that type.
As used in this Lease, the term "Tenant's Antenna Equipment" shall mean
and refer to Tenant's Antennas and all ancillary equipment appurtenances
installed by Tenant pursuant to this Article or pursuant to Article 42.
Tenant shall comply with all Applicable Laws at any time duly issued and
in force applicable to, and obtain all permits, licenses and approvals necessary
for, the existence, use, operation or maintenance of the Tenant's Antenna
Equipment. Landlord shall, within two (2) business days of Tenant's request,
execute any permit, license or approval application or any similar document
required to be executed by Landlord in connection with Tenant's obtaining any
such permit, license or approval.
If any work by Tenant pursuant to this Section shall invalidate Landlord's
roof warranty, Tenant shall take such corrective actions as shall be required to
reinstate such roof warranty or provide equivalent protection to Landlord.
Tenant have the exclusive right, but shall not be obligated, to operate,
maintain, repair and replace Tenant's Antenna Equipment, and Tenant may
discontinue operation thereof at any time. Notwithstanding the foregoing,
whether or not Tenant operates or continues to operate Tenant's Antenna
Equipment, Tenant shall keep the same in such condition as shall be required to
prevent damage or injury to the Building, subject nonetheless to the release
provisions of Section 22.6.
Landlord shall not take, or suffer or permit to be taken, any action which
will interfere with the proper and efficient operation, maintenance, repair and
replacement by Tenant of Tenant's Antenna Equipment.
Tenant shall be permitted continuous access to all portions of Tenant's
Antenna Equipment.
105
117
36.3 Tenant's Closed Circuit Television Cameras. Subject to the
terms and conditions of this Article, Tenant shall have the right to install
closed circuit television cameras in (i) such locations as shall be necessary or
appropriate to observe any or all of Tenant's installations pursuant to Article
42, Section 36.1 or Section 36.2, (i) any or all of the elevators of the
Building (unless, with respect to any of the low-rise or mid-rise passenger
elevators, any of the tenants served thereby shall object thereto in which case
Tenant shall not install the same), (iii) the loading dock, and (iv) such other
areas of the Building as Landlord shall approve (such approval not to be
unreasonably withheld) and to install in the Building all ancillary equipment
and appurtenances necessary or appropriate in connection therewith.
As used in this Lease, the term "Tenant's CCTV Equipment" shall mean and
refer to Tenant's closed circuit television cameras and all ancillary equipment
appurtenances installed by Tenant pursuant to this Article or pursuant to
Article 42.
Tenant shall comply with all Applicable Laws at any time duly issued and
in force applicable to, and obtain all permits, licenses and approvals necessary
for, the existence, use, operation or maintenance of the Tenant's Antennas.
Tenant have the exclusive right, but shall not be obligated, to operate,
maintain, repair and replace Tenant's CCTV Equipment, and Tenant may discontinue
operation thereof at anytime. In no event, even if Tenant's CCTV Equipment is in
operation, shall Tenant be obligated to provide security service to or for the
benefit of any tenant or occupant of the Building or any other person. Landlord
specifically acknowledges that Tenant may elect not to monitor or record the
output of Tenant's closed circuit television cameras or if such output is
recorded to destroy the tapes or other records without reviewing them.
Landlord shall not take, or suffer or permit to be taken, any action which
will interfere with the proper and efficient operation, maintenance, repair and
replacement by Tenant of Tenant's CCTV Equipment.
36.4 Window Film and Window Treatment. Neither Landlord nor Tenant
shall apply any film or other substance to the inside or outside of any of the
window glass of the Premises without the consent of the other. Landlord shall
not unreasonably withhold consent to any such film Tenant proposes to install
for purposes of increasing safety.
Tenant shall have the right to install such blinds or other window
treatments on or in the windows of the Premises as it shall elect, subject to
compliance with the preceding paragraph.
36.5 Use of Fire Stairs. Tenant shall have the right to use for
routine access amongst the floors on which the Premises are located either or
both of the fire stairs of the Building and, incident thereto, shall have the
right to install either or both a card-key access system and an alarm system
with respect to the doors providing access between the Premises
106
118
on the fire stairs; provided, however, Tenant's right to use the fire stairs, or
to install any card-key or alarm system, shall be subject to the same being in
compliance with all laws and requirements of public authorities.
36.6 Tenant's Messenger Center. Landlord hereby leases to Tenant,
and Tenant hereby accepts from Landlord, the area labeled "GS&CO." on the plan
attached hereto as Exhibit U ("Tenant's Loading Dock Area") for the purpose of
installing and maintaining a messenger center or other suitable use. Tenant's
Loading Dock Area shall constitute a part of the Premises and shall be subject
to all of the terms and provisions of this Lease applicable to the balance of
the Premises, except for purposes of Articles 3 and 4. Tenant shall perform the
work shown on Exhibit U necessary to constitute Tenant's Loading Dock Area a
separately demised area. The provisions of this Section 36.6 shall continue in
effect during any Renewal Term regardless of whether Tenant refers to Tenant's
Loading Dock Area in its Renewal Notice. Tenant shall be entitled to install
appropriate signage to direct messengers to Tenant's Loading Dock Area, subject
to Landlord's approval not to be unreasonably withheld. Tenant shall have the
right to run voice, data and/or electrical conduits from Tenant's Shafts to
Tenant's Loading Dock Area.
Article 37. Tenant's Right of First Offer to Purchase.
37.1 If, at any time during the term of this Lease, Landlord either
(i) receives an offer from a third party to purchase the Land and/or the
Building that it desires to accept or (ii) desires to offer the Land and/or the
Building for sale by listing with one or more real estate brokers or directly
offering it for sale in writing to one or more principals (each, an "Offer"),
then, in either such instance, provided that Tenant is not in default under this
Lease (after expiration of applicable notice and grace periods, if any),
Landlord shall notify Tenant thereof and furnish Tenant with a copy of the
Offer (the "Landlord's Offer Notice") and shall deliver to Tenant, subject to
the provisions of Section 37.5, material containing such information as is
customarily made available to solicit offers to purchase large Manhattan office
buildings, including, at a minimum the following (the "Property Information"):
(i) complete copies of all leases, license agreements, subleases and
other occupancy agreements,
(ii) audited financial statements for the property for the preceding
three (3) years and, to the extent available, audited or unaudited
financial statements for the portion of the year then elapsed, including
income and expense statements, balance sheets, and source and application
of funds, and
(iii) statements of taxes and operating expenses under tenant leases
for the preceding two (2) years for which annual statements have been
furnished to tenants, including copies of annual escalation billing and
reconciliation for all such tenants for all such years.
107
119
Tenant shall have a period of thirty (30) days from the date it
receives Landlord's Offer Notice and the Property Information within which to
notify Landlord that it desires to purchase the Land and/or Building, as
applicable (such Land and/or Building, the "Property"), at the Offer Price (the
"Tenant's Acceptance"). During such thirty (30) day period Tenant shall have the
right, subject to the terms and conditions of Section 37.5, to examine and copy
all pertinent books and records of Landlord and its managing agent relating to
the Property ("Books and Records").
If Tenant provides Tenant's Acceptance to Landlord, then Landlord
shall sell, and Tenant shall purchase, the Property at the price set forth in
the Offer (the "Offer Price") and otherwise on terms and conditions customary
for sales of large Manhattan office buildings. During the forty-five (45) days
after the date of this Lease, the parties shall endeavor to agree upon and
confirm in writing such terms and conditions, but the failure of the parties so
to agree shall not affect their rights and obligations under this Article 37.
After providing Tenant's Acceptance. Tenant shall have the right to
assign its right to purchase to a wholly-owned affiliate and, in such instance,
Landlord shall convey title to the assignee. If Tenant (or such wholly-owned
affiliate) shall acquire the Land or Building pursuant to this Article 37, it
shall retain title thereto for at least one year after the closing of such
acquisition.
37.2 If Tenant shall fail to give Tenant's Acceptance pursuant to
the terms set forth above, Tenant shall, subject to the last sentence of this
Section 37.2, be deemed to have conclusively waived its right to purchase the
Property at the Offer Price and Landlord shall have the right within one (1)
year of the Offer Notice to sell the Property at a price (considering the value
of other terms and conditions) which is no less favorable to the purchaser than
a sale of the Property for a cash purchase price equal to 92.5 percent of the
Offer Price on the terms and conditions provided for herein (the "Minimum
Price"); provided, however, that
(i) if the Property shall be the Land or the Building, not the
Land and the Building, than such waiver shall not be applicable to
the Building or the Land, whichever shall not be the Property, and
Tenant's rights with respect thereto shall continue in full force
and effect; and
(ii) if Landlord shall desire or propose to sell the Property
at a price (considering the value of other terms and conditions)
more favorable to the purchaser than a sale of the Property for a
cash purchase price equal to the Minimum Price, or shall desire or
propose to sell the Property after such one (1) year period,
Landlord shall be obligated to re-offer the Property to Tenant by
giving to Tenant a new Offer Notice in accordance with Section 37.1
above and to furnish then current Property Information.
108
120
Any such new Offer Notice shall be given effect under Section 37.1 except that
if such new Offer Notice shall be given less than 90 days after the initial
Offer Notice the thirty (30) day period referred to in Section 37.1 shall be
shortened to fifteen (15) days from Tenant's receipt of the new Offer Notice and
the then current Property Information.
37.3 If Tenant provides Tenant's Acceptance to Landlord, Tenant
agrees that it shall concurrently therewith deliver to Landlord a deposit of
five percent of the Offer Price which shall be liquidated damages and,
notwithstanding any other provision of this Lease to the contrary, shall be
Landlord's sole remedy in the case of any default by Tenant under this Article
37 (exclusive of its obligation, having acquired the Property pursuant to this
Article 37, to retain title thereto for one year) or under any obligation to
purchase arising under this Article 37. The closing of such purchase shall be
the first business day which is 60 or more days after the date of Tenant's
Acceptance. Landlord and Tenant agree that closing costs will be paid in
accordance with New York custom.
37.4 Tenant agrees that it shall not disclose any documents and
information regarding the Property which Tenant's receives under this Article 37
except to those assisting Tenant with the analysis of the Property, or Tenant's
lender, if any, and then only upon making such person aware of the obligations
contained in this Section 37.4 and procuring the agreement of such person to
abide by such obligations. In the event Tenant does not purchase the Property
for any reason whatsoever, Tenant shall return to Landlord, or cause to be
returned to Landlord, all such documents and information.
Article 38. Tenant's Termination Right.
Provided that Tenant is not in monetary default under this Lease
beyond any applicable notice or grace period on the date that the Termination
Notice (as defined below) is given, Tenant shall have a one-time option
("Tenant's Termination Option") to terminate this Lease as of the last day of
the calendar month in which shall occur the tenth (10th) anniversary of the day
preceding the Rent Commencement Date of the last to be delivered of the Base
Premises (the "Early Termination Date") with respect to all portions of the
Premises then leased by Tenant other than each Accepted Offer Space leased
pursuant to Article 26 the Scheduled Offer Space Delivery Date of which was
later than the day five (5) years prior to the Early Termination Date (such
excluded portions of the Premises being herein called the "Continuing
Premises")), provided that Tenant shall
(i) give irrevocable notice (the "Termination Notice") to
Landlord of such termination at least eighteen (18) months prior to
the Early Termination Date, and
(ii) pay to Landlord on or before the date thirty (30) days
prior to the Early Termination Date an amount equal to nine (9)
times the excess of (a) the monthly Fixed Rent then payable under
this Lease with respect to the Early Termination Premises (as
defined below) over (b) the Landlord's
109
121
Monthly Payment then payable under this Lease with respect to the
Early Termination Premises (the "Termination Fee").
Notwithstanding the foregoing, if Tenant shall fail to pay the
Termination Fee on or before the date that is thirty (30) days prior to the
Early Termination Date or if on the date thirty (30) days prior to the Early
Termination Date Tenant is otherwise in monetary default under this Lease beyond
any applicable notice or grace period then, at the option of Landlord to be
exercised by notice to Tenant given on or before the date twenty (20) days prior
to the Early Termination Date, the Termination Notice shall be ineffective and
Tenant's option to terminate this Lease under this Article 38 shall thereupon
forever terminate.
Subject to the preceding paragraph, if Tenant shall timely exercise
Tenant's Termination Option and timely pay the Termination Fee then the term of
this Lease with respect to all portions of the Premises other than the
Continuing Premises (the "Early Termination Premises") shall end on the Early
Termination Date with the same force and effect as if such Early Termination
Date were the Expiration Date (and, with respect to the Early Termination
Premises, the parties shall have the same rights and obligations as they would
have had with respect to the Premises upon expiration of this Lease on the
Expiration Date). No such termination shall affect the Continuing Premises and
this Lease shall continue with respect to the Continuing Premises as if Tenant
had not exercised Tenant's Termination Option.
Tenant's failure to comply with the notice provision above shall be
deemed a waiver of all of Tenant's rights under this Article 38 and Tenant's
option to terminate this Lease with respect to the Early Termination Premises
shall thereupon forever terminate.
Article 39. Landlord Defaults - Tenant Right to Cure.
39.1 If
(i) Landlord shall fail to perform any of its obligations
under Article 10,11 or 15,
(ii) Landlord shall fail to make any repairs or alterations
that the Landlord is required to make pursuant to the terms of this
Lease, or
(iii) Landlord shall make any repairs or alterations in or
about the Premises or the Building, and as a result of such repairs
or alterations made by Landlord, it becomes impractical for Tenant
to (and the Tenant does not) conduct its business operations in any
portion of the Premises in substantially the same manner as
theretofore conducted
(any or all of the foregoing hereinafter sometimes referred to as a "Landlord
Failure") and, after notice thereof by Tenant to Landlord (a "Notice of Landlord
Failure"), Landlord does
110
122
not with due diligence commence action promptly (immediately, in the case of
emergency) to remedy such Landlord Failure, or if so commenced, does not remedy
such failure within fifteen (15) days from the date of Tenant's notice or such
longer period as may be provided by the last sentence of this paragraph, then,
provided that at least 50% of the Premises then subject to this Lease shall not
then be subject to any sublease (other than any sublease entered into pursuant
to Section 12.7 or 12.8), Tenant shall have the right (the "Tenant's Self-Help
Right"), upon the giving of five (5) days' written notice to Landlord (or, in
the case of emergency, upon the giving of such notice, oral or written, as may
be reasonable under the circumstances) (the "Tenant's Self-Help Notice"), to
remedy or endeavor to remedy such Landlord Failure and, Landlord shall, within
twenty (20) days after Tenant's submission to Landlord of Tenant's bills
therefor accompanied by copies of the invoices paid by Tenant, reimburse Tenant
for the actual costs incurred by Tenant in so remedying or endeavoring to remedy
such Landlord Failure (plus interest at two percent (2%) above the Prime Rate
from the date(s) such costs were incurred until the date(s) that such costs are
finally reimbursed). Tenant agrees to use due care and good workerlike
procedures in the performance of self-help which affects any portion of the
Building outside of the Premises. With respect to any Landlord Failure the
curing of which requires in excess of fifteen (15) days, if within such fifteen
(15) days Landlord shall commence such cure and notify Tenant that it intends to
prosecute the same to completion, such fifteen (15) day period shall be extended
so long as Landlord is prosecuting such remedy continuously and with all due
diligence.
Except as provided in the next sentence, any bill rendered by Tenant
shall be deemed valid and due and owing and if not paid within the aforesaid
twenty (20) days Tenant shall have the right to set-off the amount thereof
against the Fixed Rent and Additional Rent payable under this Lease. If, by
notice to Tenant within twenty (20) days after Tenant's submission of any bill
to Landlord, Landlord shall dispute Tenant's entitlement to reimbursement
therefor, in whole or in part, then (i) pending resolution of such dispute
Tenant shall not set-off the amount in dispute, and (ii) if the such dispute is
not settled by the parties within ten (10) days of Landlord's notice of dispute,
the same shall be subject to arbitration in accordance with the provisions of
Article 35. If in arbitration it shall be determined that Tenant was not
entitled to exercise Tenant's Self Help Right, (i) Landlord shall not be require
to make any such reimbursement except to the extent of any costs which by virtue
of Tenant's activities under this Article Landlord shall have avoided, and (ii)
if and to the extent that Tenant shall have removed any repair or alteration it
was not entitled to remove, Tenant shall promptly restore the same.
Concurrently with Tenant's giving any Notice of Landlord Failure or
Tenant's SelfHelp Notice, Tenant shall give a copy thereof to the holder of any
Underlying Mortgage or the lessor of any Underlying Lease to whom Landlord has
instructed Tenant to give copies (provided that Tenant shall have been furnished
with the then current address of such holder or lessor). Such holder or lessor
shall have the same rights (but only within the same time limits and subject to
the same obligations) as Landlord to remedy the Landlord Failure to which such
notice relates.
111
123
39.2 Landlord's Failure to Pay Costs of Initial Improvements
(a) If Tenant believes that Landlord has failed timely to pay to the
appropriate party any amount which Landlord is required by Section 4 of the
Initial Improvements Agreement to pay, then (i) Tenant may give Landlord a
notice (a "Section 39.2 Demand Notice") specifying and identifying such amount
(a "Section 39.2 Demand Amount") and containing the following statement in block
capital letters: "THIS NOTICE IS BEING GIVEN UNDER Section 39.2 OF OUR LEASE.
YOUR FAILURE TIMELY TO PAY THE COSTS HEREIN SPECIFIED AND FURNISH EVIDENCE
THEREOF TO TENANT WILL RESULT IN TENANT HAVING THE RIGHT TO PAY SUCH COSTS AND
OFFSET THE AMOUNT SO PAID AGAINST RENT DUE UNDER THE LEASE" and (ii) at any time
on or after the 10th day after the giving of such Section 39.2 Demand Notice
Tenant may pay the Section 39.2 Demand Amount or any portion thereof to the
appropriate party (together with all interest, penalties, late charges and
similar fees thereon or with respect thereto) provided, that if within 10 days
after the giving of the Section 39.2 Demand Notice Landlord notifies Tenant that
Landlord has paid all of such Section 39.2 Demand Amount to the appropriate
party (together with all interest, penalties, late charges and similar fees
thereon or with respect thereto) (which notice shall include evidence of such
payment) and Landlord has actually done so Tenant shall not be entitled to make
payment of the Section 39.2 Demand Amount or any portion thereof and if within
10 days after the giving of such Section 39.2 Demand Notice Landlord notifies
Tenant that Landlord has paid a portion identified and specified in such notice
of the Section 39.2 Demand Amount to the appropriate party (together with all
interest, penalties, late charges and similar fees thereon or with respect
thereto) (which notice shall include evidence of such payment) and Landlord has
actually done so Tenant may pay only the balance of such Section 39.2 Demand
Amount not so paid by Landlord or any portion of such balance to the
appropriate party (together with all interest, penalties, late charges and
similar fees thereon or with respect thereto). The amount paid by Tenant
pursuant to this Section 39.2(a) is called an "Section 39.2 Advance").
(b) If Tenant makes an Section 39.2 Advance in accordance with
Section 39.2(a) then, except as otherwise provided in Section 39.2(c), (i)
Landlord shall reimburse to Tenant within 15 days after Tenant's demand therefor
the amount of the Section 39.2 Advance, together with interest thereon at the
Interest Rate from the date of payment by Tenant to the date on which Landlord
so reimburses Tenant, (ii) if Landlord shall fail timely to make such
reimbursement, Tenant shall have the right to setoff the amount of the Section
39.2 Advance together with such interest thereon against the Rent under this
Lease, and (iii) Landlord shall be deemed to have waived its right to claim that
such setoff was improper or constitutes a failure to pay rent or other default
under this Lease and its right to bring and maintain a separate action against
Tenant to recover all or any portion of the Section 39.2 Demand Amount.
(c) If within l0 days after the giving of the Section 39.2 Demand
Notice, Landlord notifies Tenant (an "Section 39.2 Dispute Notice") that
Landlord believes that all or a portion identified and specified in such Section
39.2 Dispute Notice of the Section 39.2
112
124
Demand Amount is not required by Section 4 of the Initial Improvements Agreement
to be paid by Landlord or is not overdue (in either case all or such identified
and specified portion being herein called the "Disputed Section 39.2 Amount"),
then Landlord shall not be required to reimburse Tenant and Tenant shall not
have a right of set-off with respect to the Disputed Section 39.2 Amount except
to the extent that the dispute with respect thereto is resolved in Tenant's
favor in accordance with the next sentence. Tenant shall have the right, with
respect to any such dispute, to elect by notice to Landlord that such dispute be
resolved by litigation or arbitration pursuant to Article 35, but any such
election shall be irrevocable with respect to the dispute in question.
(d) Each Section 39.2 Advance shall constitute a loan from Tenant to
Landlord and notwithstanding Tenant's having made such Section 39.2 Advance the
Initial Improvements Work to which such Section 39.2 Advance shall relate, shall
nonetheless constitute the property of Landlord, a part of the Premises and
subject to the Lease.
39.3 Successor Liability Notwithstanding the provisions of Article
31, Tenant's rights under this Article 39 shall survive any transfer of any
interest in the Land and/or the Building and after any thereof shall also be
enforceable against the transferee and its transferees (other than the holder of
any Existing Mortgage), notwithstanding that the obligations or amounts to which
such rights relate were originally required to be performed or paid by the
transferor.
Article 40. Miscellaneous.
40.1 If either party shall commence an action or proceeding to
enforce this Lease or any provision thereof, then (except as otherwise
specifically provided elsewhere in this Lease) the prevailing party shall be
reimbursed by the losing party within thirty (30) days after rendering to the
losing party a bill for the reasonable counsel fees and disbursements and court
costs incurred by the prevailing party in such action or proceeding.
40.2 In the event of a breach or threatened breach on the part of
either party hereunder with respect to any of the covenants, agreements, terms,
provisions or conditions on the part of, or on behalf of, such party to be kept,
observed or performed, the other party shall also have the right of injunction.
The specified remedies to which a party may resort hereunder are cumulative and
are not intended to be exclusive of any other remedies or means of redress to
which a party may lawfully be entitled at any time, and a party may invoke any
remedy allowed at law or in equity as if specific remedies were not provided for
herein.
40.3 Whenever any right of Tenant provided for in this Lease is
subject to the condition that the area of the Premises not sublet (other than
under Section 12.7 or 12.8) shall then exceed 250,000 rentable square feet (or
other amount) (e.g. Section 7.1(b), 26.5), (or any similar condition) then for
purposes of determining whether such condition is satisfied all of the space
referred to in Exhibit C of this Lease shall be deemed leased to
113
125
Tenant and included in the Premises on and after the Effective Date of this
Lease, notwithstanding that the Delivery Date may not have commenced with
respect to one or more Applicable Portions.
40.4 Any reference in this Lease to Tenant not being in default
beyond applicable notice and/or cure periods (or any similar reference) shall
refer to applicable notice and/or cure periods provided for in Article 17.
40.5 Whenever this Lease requires either party to pay any amount to
the other, if no other time period is specified, such amount shall be due within
ten (10) days of the other party's demand therefor accompanied by any
documentation required by the terms of this Lease. If any amount due to either
party shall not be paid when due, the same shall bear interest at the Interest
Rate from the due date until paid.
40.6 Whenever, by operation of Article 26 or otherwise, Tenant shall
lease the last usable portion of any Partial Premises Floor such floor shall be
come a Full Premises Floor and there shall be deemed included in the Premises
and leased to Tenant all common and other areas of such floor as shown on the
typical floor plan included in Exhibit B and any other comparable areas not
shown on such plan because of differences between the floor in question and the
typical floor upon which the typical floor plan is based, but the operation of
this Section 40.6 shall not result in any increase in the rentable area of the
Premises.
40.7 Landlord shall consent to any sublease to Tenant of, or any
assignment to Tenant of any lease covering, any space in the Building proposed
to be made by any tenant of any space in the Building, notwithstanding any
prohibition of such sublease or assignment contained in such other tenant's
lease and notwithstanding any provision of such lease entitling Landlord to
withhold consent.
40.8 Each party agrees that it shall not refer to the other party
hereto in any press release, publicity, advertisement or other promotional
material relative to the entering into of this Lease or the Building nor shall
it permit any broker representing it to so refer to the other party.
40.9 The headings of the Articles of this Lease are for convenience
only and are not to be considered in construing the Articles.
40.10 This Lease may be executed in any number of counterparts, and
each counterpart hereof shall be deemed to be an original instrument, but all
counterparts together shall constitute but one agreement.
Article 41. ICIP & LMEP Program
41.1 The Project: the Benefits. The parties agree that, in
connection with any work to be done either by Landlord or Tenant in the Premises
or in the Building in
114
126
connection with Tenant's use and occupancy of the Premises (all such work,
including any Special Installations installed by Tenant, the "Project"), Tenant
intends to avail itself of, and Landlord shall use commercially reasonable
efforts to permit Tenant to avail itself of, the benefits and entitlements
provided by (x) Section 489-bbbb, Subdivision #5 of the Industrial and
Commercial Incentive Program (together with the regulations and requirements of
Sections 11-256 through 11-267 of the Administrative Code of the City of New
York, authorized by Title 2-D of Article 4 of the New York Real Property Tax Law
and all rules and regulations promulgated thereunder, the "ICIP Program"), and
(y) Section 25-bb(a), Subdivision 1 of the Lower Manhattan Energy Program
(together with the regulations and requirements of Article 2-I of the General
City Law and all rules and regulations promulgated thereunder, the "LMEP
Program"). Landlord agrees to use commercially reasonable efforts to comply with
all applicable provisions of the ICIP Program and the LMEP Program with the goal
that the Building will receive the benefits and entitlements provided by both
the ICIP Program (such benefits, the "ICIP Benefits") and the LMEP Program (such
benefits, the "LMEP Benefits"; the ICIP Benefits and the LMEP Benefits being
herein sometimes collectively referred to as the "ICIP/LMEP Benefits").
41.2. Requirements to Obtain Benefits. In accordance with the
requirements of the ICIP Program and the LMEP Program, Landlord and Tenant agree
as follows:
(a) Landlord and Tenant will complete and execute, and Landlord will
file, a preliminary application for the Building (the "Preliminary ICIP
Application") for the ICIP Benefits that may be available in connection with the
Project, as and within the time periods required by the ICIP Program, and prior
to the issuance of a building permit for, or the award of construction contracts
for, or the commencement of, any work comprising part of the Project (the "ICIP
Work").
(b) Landlord and Tenant will complete and execute, and Landlord will
file, a final application for the Building (the "Final ICIP Application") for
the ICIP Benefits that may be available in connection with the Project, as and
within the time periods required by the ICIP Program.
(c) Landlord will complete, execute and file an application for the
Building (the "LMEP Application") for the LMEP Benefits that may be available in
connection with the Project, as required by the LMEP Program, concurrently with
or after the filing of the Preliminary ICIP Application and prior to the
issuance of a building permit for, or the award of construction contracts for,
or the commencement of, any ICIP Work.
(d) Landlord and Tenant will submit any proofs of expenditure,
plans, reports, certificates of continuing use and other submissions that may be
required to qualify for the ICIP/LMEP Benefits that may be available in
connection with the Project (the "ICIP/LMEP Submissions") as and within the time
periods required by the applicable rules and regulations of the City of New York
and as more particularly hereinafter set forth, including without limitation any
ICIP/LMEP Submissions required to be made to the New
115
127
York City Department of Finance ("DOF"), the New York City Department of
Business Services ("DBS") or the New York City Office of Labor Services ("OLS"),
and will attend any meetings required by DOF, DBS or OLS or any other
governmental agency charged with administration or enforcement of the ICIP
Program or LMEP Program.
(e) Landlord shall pay the filing fees imposed in connection with
the filing of the ICIP Preliminary and Final Applications and the LMEP
Application, and any filing fees which may be imposed in connection with any
ICIP/LMEP Submissions the obligation for which is imposed on Landlord, and all
costs incurred by Landlord in connection therewith.
41.3 Requirements in Respect of Contractors. (a) Landlord and Tenant
acknowledge that the ICIP Program imposes certain requirements with respect to
the hiring and training practices, among other matters, of construction
managers, contractors and subcontractors (collectively herein called
"Contractors") engaged to perform work in connection with the Project
Accordingly, in order to reduce the likelihood that actions taken by Contractors
of Landlord or Tenant will cause the Building to fail to qualify for or to lose
the ICIP/LMEP Benefits, Landlord and Tenant, to the extent required by the ICIP
Program, shall use only such Contractors that qualify under the applicable
requirements of the ICIP Program for performance of work comprising part of the
Project.
(b) (1) To the extent required by the ICIP Program, all of the
Contractors of Landlord and Tenant employed in connection with the Project shall
be contractually required by Landlord or Tenant, as the case may be, to comply
with the provisions of the ICIP Program, including without limitation the OLS
requirements applicable to construction projects benefiting from the ICIP
Program. Such compliance, as of the date hereof, includes without limitation the
following: the submission and approval of Construction Employment Report(s), and
other periodic reports, attendance at a pre-construction conference and other
conferences with representatives of the OLS and adherence to the provisions of
Article 22 of the ICIP Rules and Regulations, the provisions of New York City
Charter Chapter 13-B and the provisions of Executive Order No. 50 (1980) and the
regulations promulgated thereunder. If Landlord or Tenant is notified of any
violation of the ICIP Program by the other party's Contractors, such party shall
promptly advise the other party (the "NonCompliant Party") and send a copy of
such notice to the Non-Compliant Party. The Non-Compliant Party will use
commercially reasonable efforts to have violations by its Contractors cured by
its Contractors, and the Non-Compliant Party (x) will have the right to promptly
take all necessary actions to cure such violations, and (y) shall have the right
to contest the determination of non-compliance and/or issuance of a penalty by
the DOF and/or the OLS. At the Non-Compliant Party's request, the other party
shall cooperate with the Non-Compliant Party in any such contest, provided that
the other party shall incur no expense or liability with respect to such
cooperation, unless the Non-Compliant Party agrees to reimburse the other party
for such costs and indemnify, defend and hold harmless the other party from and
against any such liability.
116
128
(2) At Landlord's request, to the extent required to enable Landlord
to file annual certificates of continuing use as required by the ICIP Program
and/or to continue to receive the benefits under the ICIP Program and/or the
LMEP Program, Tenant shall (i) report to Landlord the use of the Premises, the
number of workers permanently engaged in employment in the Premises and the
number of such workers who reside in New York City, (ii) provide access to the
Premises by employees and agents of any governmental agency enforcing the ICIP
Program (including, without limitation, the DOF) at all reasonable times, upon
reasonable notice when requested by Landlord (and, if requested by Tenant, such
employees and agents shall be accompanied by a Tenant representative during such
access) and (iii) enforce the contractual obligations of Tenant's Contractors to
comply with the OLS requirements.
(3) To the extent required to enable Landlord to file annual
certificates of continuing use as required by the ICIP Program and/or to
continue to receive the benefits under the ICIP Program and/or the LMEP Program,
Landlord shall use commercially reasonable efforts to require other tenants in
the Building to (i) report to Landlord the use of the premises demised to such
other tenants, the number of workers permanently engaged in employment in the
premises demised to such other tenants and the number of such workers who reside
in New York City and (ii) provide access to the premises demised to such other
tenants by employees and agents of any governmental agency enforcing the ICIP
Program (including, without limitation, the DOF) at all reasonable times, upon
reasonable notice when requested by Landlord. Landlord shall also include
provisions in any lease renewal or amendment (with an existing tenant) or in any
new lease provisions requiring the tenant to provide to Landlord such materials
and information (generally as described in subparagraph (2) above) as shall be
required in order for Landlord to comply with its requirements under the ICIP
and LMEP Programs.
41.4 Submetering. The parties acknowledge that the LMEP program
requires that all tenants in excess of 10,000 sq. ft., and all full floor
tenants regardless of size, must be submetered. Landlord represents that all of
such tenants are submetered.
41.5 Tenant's Obtaining Direct Electric Service. In the event that
Tenant shall hereafter discontinue obtaining electric energy from Landlord and
shall instead obtain electric energy directly from the public utility furnishing
electric service to the Building or any other supplier for any reason: (i)
Tenant shall at all times have the right, in its sole and absolute discretion,
to determine the source of supply of electricity provided to the Premises, even
if such a determination made by Tenant might eliminate or diminish the LMEP
Benefits available to the Building or the Premises and (ii) Landlord shall
cooperate with Tenant, at no cost or expense to Landlord that is not reimbursed
by Tenant, to transfer to Tenant, if and to the extent then permitted by the
LMEP Program or by agreement with the City of New York, Tenant's Proportionate
Share of the LMEP Benefits then being received by the Building.
Article 42. Tenant's Shafts and Other Areas
117
129
42.1 General. Landlord hereby grants to Tenant the right to use and
install property (including pipes, ducts, risers, conduits and associated
improvements, equipment and facilities) in
(a) the spaces cross-hatched on the plans attached
hereto as Exhibits FF, G6, HH, II and JJ, and
(b) subject to the provisions of Section 42.9 below, the
space not cross-hatched but marked "existing kitchen exhaust
flues" on the plan attached hereto as Exhibit II, including
the space between the existing duct and the core wall (the
"Existing Kitchen Exhaust Space") adjacent to the space
cross-hatched and marked "existing kitchen exhaust flues" on
the plan attached hereto as Exhibit II,
in each case, from the lowest level of the Building to the roof of the Building
(such spaces being herein called "Tenant's Shafts"), and the right to enclose
Tenant's Shafts wherever not now enclosed, the right to core or remove floor
slabs as required and the right to maintain, repair, replace, modify, alter and
remove such installations and enclosures, and the right to enter each floor of
the Building in order to access such spaces. The labels of and notations on the
plans attached hereto as Exhibits FF, GG, HH, II and JJ shall not limit the
types of installations for which Tenant may use any of Tenant's Shafts. Tenant's
right to install property in Tenant's Shafts shall be subject to compliance by
Tenant with the provisions of Article 6.
Landlord represents to Tenant that
(a) attached hereto as Exhibit AAA are the provisions of each
lease of space in the Building pertaining to Landlord's right to
enter the premises demised thereby (the "Entry Provisions");
(b) attached hereto as Exhibit BBB are the provisions of each
lease of space in the Building pertaining to Landlord's rights to
make changes or perform work (including the erection of pipes, ducts
and conduits) in the premises demised thereby (the "Pipe Erection
and Other Work Provisions");
(c) no part of the Cartlift Room (as hereinafter defined) on
any floor is leased to any tenant except on floors 36, 35, 34, 33,
32, 28, 27, 26, 21, 19 and 18 (such floors being herein called the
"Cartlift Room Leased Floors" and the applicable leases being herein
called the "Cartlift Room Leases"); and
118
130
(d) no part of the freight elevator lobby is leased to any
tenant except on floors 36, 35, 34, 33, 32, 27, 18 and 17 (such
floors being herein called the "Freight Elevator Lobby Leased
Floors" and the applicable leases being herein called the "Freight
Elevator Lobby Leases").
42.2 CNA Closet. Tenant's right to use and install property in the
former CNA communications closet shown crosshatched on Exhibit FF (such closet
being herein called the "CNA Closet") shall be exclusive (and Tenant shall have
the right to remove and dispose of without accountability or liability to
Landlord or any other person any installations in the CNA Closet) except that:
(i) unless and until Tenant shall have relocated the
base building fire alarm riser and BMS equipment (the "Base
Building Closet Installations") from the CNA Closet, Tenant's
right to use and install property in the CNA Closet shall be
subject to the continued presence in the CNA Closet of the
Base Building Closet Installations; and
(ii) until the Last Delivery Date, Tenant's right to use
and install property in the CNA Closet shall be subject to the
continued presence in the CNA Closet of installations serving
Landlord as occupant of the Building (the "CNA Closet
Installations").
Tenant shall have the right to
(i) rearrange within the CNA Closet any or all of the
Base Building Closet Installations, or
(ii) relocate any or all of the Base Building Closet
Installations from the CNA Closet to either of the other
communications closets in the Building and to rearrange within
such other closets the existing installations in such other
closets in order to accommodate such relocation;
provided, however, that Tenant shall not, in connection with such rearrangement
or relocation, adversely affect the operation of the installations being
rearranged or relocated.
Until the Last Delivery Date, Tenant shall share use of, and access
to, the CNA Closet with Landlord as occupant of the Building and Landlord and
Tenant agree to cooperate and coordinate their use of and access to the CNA
Closet. During the period of such shared use and access, Tenant shall have the
right
119
131
(i) to rearrange within the CNA Closet any or all of the
installations in the CNA Closet serving Landlord as occupant
of the Building, or
(ii) relocate any or all of the installations in the CNA
Closet serving Landlord as occupant of the Building to either
of the other communications closets in the Building and to
rearrange within such other closets the existing installations
in such other closets in order to accommodate such relocation;
provided, however, that Tenant shall not, in connection with such rearrangement
or relocation, adversely affect the operation of the installations being
rearranged or relocated.
Tenant shall have the right to access and enter the CNA Closet
through the door thereto on each floor of the Building; provided, however, that
Tenant's right to enter floors 39, 38, 36, 35, 34, 33, 32, 27, 25, 24, 23, 18
and 17 (the "Single Tenant Floors") for such purpose shall be subject to
compliance with the applicable Entry Provisions.
Tenant shall have the right to control access and entry to the CNA
Closet (and, in that connection, to install and/or change locks and/or
monitoring devices); provided, however, that (a) unless and until Tenant shall
have relocated the Base Building Closet Installations, Tenant shall, upon
Landlord's request, provide Landlord with reasonable access and entry to the CNA
Closet for purposes related to the Base Building Closet Installations, and (b)
until the Last Delivery Date Tenant shall, upon Landlord's request, provide
Landlord with reasonable access and entry to the CNA Closet for purposes related
to the installations therein serving Landlord as occupant of the Building.
42.3 Freight Elevator Lobby Space. Tenant's right to use and install
property in the freight elevator lobby space shown crosshatched on Exhibit FF
(such space being herein called the "Freight Elevator Lobby Space") shall be
exclusive (and Tenant shall have the right to remove and dispose of without
accountability or liability to Landlord or any other person any equipment or
installations in the Freight Elevator Lobby Space) except that Tenant's right to
use and install property in the Freight Elevator Lobby Space on any Freight
Elevator Lobby Leased Floor shall, if and for so long as such Freight Elevator
Lobby Space shall be leased under such Freight Elevator Lobby Lease (unless the
tenant under the Freight Elevator Lobby Lease shall otherwise agree), be limited
to Landlord's rights under the Pipe Erection and Other Work Provisions and the
Entry Provisions of such Freight Elevator Lobby Lease.
Landlord shall cooperate with Tenant's efforts to obtain, and shall
accept without charge, (i) the surrender of the Freight Elevator Lobby Space or
the freight elevator lobby by the tenant under any Freight Elevator Lobby Lease,
or (ii) any other agreement with the tenant under any Freight Elevator Lobby
Lease pursuant to which such tenant's rights in and to the Freight Elevator
Lobby Space or the freight elevator lobby are restricted or
120
132
reduced or Tenant's rights in and to the Freight Elevator Lobby Space are
expanded or increased.
Landlord shall not hereafter lease (including by way of renewal,
extension or expansion of any lease) the Freight Elevator Lobby Space or the
freight elevator lobby on any floor, and shall not modify, expand, amend, renew
or extend any Freight Elevator Lobby Lease unless such modification, expansion,
amendment, renewal or extension provides for the surrender of the Freight
Elevator Lobby Space; provided, however, that this paragraph shall not be deemed
to prohibit the exercise by any tenant of any renewal or extension option now
contained in such tenant's lease.
Tenant shall have the right to access and enter the Freight Elevator
Lobby Space from the freight elevator lobby on each floor of the Building;
provided, however, that Tenant's right to enter the Single Tenant Floors and the
Freight Elevator Lobby Leased Floors for such purposes shall be subject to
compliance with the applicable Entry Provisions. Tenant shall have the right to
install in the wall facing the freight elevator lobby a door to the Freight
Elevator Lobby Space on each floor of the Building extending for substantially
all of the height and width of the Freight Elevator Lobby Space (or smaller if
Tenant shall so elect).
Tenant shall have the right to control access and entry to the
Freight Elevator Lobby Space (and, in that connection, to install and/or change
locks and/or monitor devices).
42.4 Cartlift Room. Tenant's right to use and install property in
the cartlift room (excluding the shaft now used for the cartlift conveyor
referred to in Section 41.4) shown crosshatched on Exhibit GG (such room,
excluding such shaft, being herein called the "Cartlift Room") shall be
exclusive (and Tenant shall have the right to remove and dispose of without
accountability or liability to Landlord or any other person any equipment or
installations in the Cartlift Room) except that Tenant's right to use and
install property in the Cartlift Room on any Cartlift Room Leased Floor shall,
if and for so long as such Cartlift Room shall be leased under such Cartlift
Room Lease (unless the tenant under the Cartlift Room Lease shall otherwise
agree), be limited to Landlord's rights under the Pipe Erection and Other Work
Provisions and the Entry Provisions of such Cartlift Room Lease.
Landlord shall cooperate with Tenant's efforts to obtain, and shall
accept without charge, (i) the surrender of any Cartlift Room by the tenant
under any Cartlift Room Lease, or (ii) any other agreement with the tenant under
any Cartlift Room Lease pursuant to which such tenant's rights in and to the
Cartlift Room are restricted or reduced or Tenant's rights in and to the
Cartlift Room are expanded or increased.
Landlord shall not hereafter lease (including by way of renewal,
extension or expansion of any lease) the Cartlift Room on any floor, and shall
not modify, expand, amend, renew or extend any Cartlift Room Lease unless such
modification, expansion, amendment,
121
133
renewal or extension provides for the surrender of the Cartlift Room; provided,
however, that this paragraph shall not be deemed to prohibit the exercise by any
tenant of any renewal or extension option now contained in such tenant's lease.
Tenant shall have the right to access and enter the Cartlift Room
from the freight elevator lobby on each floor of the Building; provided,
however, that Tenant's right to enter the Single Tenant Floors and the Cartlift
Room Leased Floors for such purposes shall be subject to compliance with the
applicable Entry Provisions.
Tenant shall have the right to control access and entry to the
Cartlift Room (and, in that connection, to install and/or change locks and/or
monitoring devices); provided, however, that Tenant shall not have the right to
control access or entry to the Cartlift Room on any Cartlift Room Leased Floor
so long as such Cartlift Room Lease shall remain in effect and cover the
Cartlift Room, unless the tenant under the Cartlift Room Lease shall otherwise
agree.
42.5 Cartlift Conveyor Shaft. Tenant's right to use and install
property in the shaft now used for the cartlift conveyor located within the
Cartlift Room shown crosshatched on Exhibit GG (such shaft being herein called
the "Cartlift Conveyor Shaft") shall be exclusive (and Tenant shall have the
right to remove and dispose of without accountability or liability to Landlord
or any other person any equipment or installations in the Cartlift Conveyor
Shaft).
Tenant shall have the right to access and enter the Cartlift
Conveyor Shaft from the Cartlift Room on each floor of the Building; provided,
however, that Tenant's right to enter the Single Tenant Floors and the Cartlift
Room Leased Floors for such purpose shall be subject to compliance with the
applicable Entry Provisions.
Tenant shall have the right to control access and entry to the
Cartlift Conveyor Shaft (and, in that connection, to install and/or change locks
and/or monitoring devices).
42.6 Fuel Oil Riser Shaft. Tenant's right to use and install
property in the shafts shown crosshatched on Exhibit HH (such shafts being
herein called the "Fuel Oil Riser Shaft") shall be exclusive (and Tenant shall
have the right to remove and dispose of without accountability or liability to
Landlord or any other person any equipment or installations in the Fuel Oil
Riser Shaft) except that Tenant's right to use and install property in the Fuel
Oil Riser Shaft shall be subject to the continued presence of the base building
fuel oil risers.
Tenant shall have the right to access and enter the Fuel Oil Riser
Shaft from the Cartlift Room on each floor of the Building; provided, however,
that Tenant's right to enter the Single Tenant Floors and the Cartlift Room
Leased Floors for such purpose shall be subject to compliance with the
applicable Entry Provisions.
122
134
Tenant shall have the right to control access and entry to the Fuel
Oil Riser Shaft (and, in that connection, to install and/or change locks and/or
monitor devices); provided, however, that Tenant shall, union Landlord's
request, provide Landlord with reasonable access and entry to the Fuel Oil Riser
Shaft for purposes related to the base building fuel oil risers.
42.7 Pine Space. Tenant's right to use and install property in the
shaft adjacent to SE#2 shown crosshatched on Exhibit II (such shaft being herein
called the "Pipe Space") shall be exclusive (and Tenant shall have the right to
remove and dispose of without accountability or liability to Landlord or any
other person any equipment or installations in the Pipe Space) except that
unless and until Tenant shall have relocated the base building pipes (the "Base
Building Pipes") from the Pipe Space, Tenant's right to use and install property
in the Pipe Space shall be subject to the continued presence of the Base
Building Pipes.
Tenant shall have the right to
(i) rearrange within the Pipe Space any or all of the
Base Building Pipes, or
(ii) relocate any or all of the Base Building Pipes from
the Pipe Space either to (a) any other location within
Tenant's Shafts or (b) subject to Landlord's approval not to
be unreasonably withheld, any other location in the Building's
core.
Tenant shall have the right to access and enter the Pipe Space
through either (as Tenant shall so elect) the long wall (opposite SE#2) or the
short wall (adjacent to the freight elevator lobby); provided, however, that
Tenant's right to enter the Single Tenant Floors and the Freight Elevator Lobby
Leased Floors for such purpose shall be subject to compliance with the
applicable Entry Provisions. Tenant shall have the right to install in either
(as Tenant shall so elect) the long wall (opposite SE#2) or the short wall
(adjacent to the freight elevator lobby) a door to the Pipe Space on each floor
of the Building extending for substantially all of the height and width of the
Pipe Space (or smaller if Tenant shall so elect).
Tenant shall have the right to control access and entry to the Pipe
Space (and, in that connection, to install and/or change locks and/or monitoring
devices); provided, however, that unless and until Tenant shall have relocated
the Base Building Pipes, Tenant shall, upon Landlord's request, provide
Landlord with reasonable access and entry to the Pipe Space for purposes related
to the Base Building Pipes.
42.8 Unused Exhaust Space. Tenant's right to use and install
property in the shaft adjacent to the Cartlift Room shown crosshatched on
Exhibit II (such shaft being herein called the "Unused Exhaust Space") shall be
exclusive (and Tenant shall have the
123
135
right to remove and dispose of without accountability or liability to Landlord
or any other person any equipment or installations in the Unused Exhaust Shaft).
Tenant shall have the right to access and enter the Unused Exhaust
Shaft through (as Tenant shall so elect) any of the walls thereto (except for
the wall bounding the Existing Kitchen Exhaust Space unless Tenant shall have
the right to use the same pursuant to Section 42.9); provided, however, that
Tenant's right to enter the Single Tenant Floors, the Cartlift Room Leased
Floors and the Freight Elevator Lobby Leased Floors for such purpose shall be
subject to compliance with the applicable Entry Provisions. Tenant shall have
the right to install in any such wall (as Tenant shall so elect) (except as
aforesaid) a door to the Unused Exhaust Space on each floor of the Building
extending for substantially all of the height and width of the Unused Exhaust
Shaft (or smaller if Tenant shall so elect).
Tenant shall have the right to control access and entry to the
Unused Exhaust Space (and, in that connection, to install and/or change locks
and/or monitoring devices).
42.9 Existing Kitchen Exhaust Space. Tenant's right to use and
install property in the Existing Kitchen Exhaust Space shall not become
effective unless and until Tenant shall have either (i) relocated the existing
kitchen exhaust from the Existing Kitchen Exhaust Space to any other location
within Tenant's Shafts or otherwise in the Building's core, or (ii) ceased
operation of the kitchen facilities requiring such exhaust. Tenant shall have
right to relocate the existing kitchen exhaust from the Existing Kitchen Exhaust
Space to any other location within Tenant's Shafts or, subject to Landlord's
approval not to be unreasonably withheld, any other location in the Building's
core; provided, however, that Tenant shall not effect such relocation into the
Cartlift Room unless and until, with respect to each Cartlift Room Leased Floor,
either the tenant under the Cartlift Room Lease shall have consented thereto or
the Cartlift Room Lease shall have expired or been terminated.
From and after the effectiveness of Tenant's right to use and
install property in the Existing Kitchen Exhaust Space:
Tenant's right to use and install property in the Existing
Kitchen Exhaust Space shall be exclusive (and Tenant shall have the
right to remove and dispose of without accountability or liability
to Landlord or any other person any equipment or installations in
the Unused Exhaust Shaft).
Tenant shall have the right to access and enter the Existing
Kitchen Exhaust Shaft through either (as Tenant shall so elect) any
of the walls thereto; provided, however, that Tenant's right to
enter the Single Tenant Floors, the Cartlift Room Lease Floors and
the Freight Elevator Lobby Leased Floors for such purpose shall be
subject to compliance with the applicable Entry Provisions. Landlord
grants to Tenant the right to install in any such wall (as Tenant
shall so elect) a door to the Existing Kitchen Exhaust Space on each
floor of the Building extending for substantially all
124
136
of the height and width of the Existing Kitchen Exhaust Space (or
smaller if Tenant shall so elect).
Tenant shall have the right to control access and entry to the
Existing Kitchen Exhaust Space (and, in that connection, to install
and/or change locks and/or monitoring devices).
42.10 Fire Stair Riser Space. Tenant's right to use and install
property in the shafts shown on Exhibit HH (such shafts being herein called the
"Fire Stair Riser Space") shall be exclusive (and Tenant shall have the right to
remove and dispose of without accountability or liability to Landlord or any
other person any equipment or installations in the Fire Stair Riser Shaft).
Tenant shall have the right to access and enter the Fire Stair Riser
Space through the fire stairs.
Tenant shall have the right to control access and entry to the Fire
Stair Riser Space (and, in that connection, to install and/or change locks
and/or monitoring devices).
42.11 Relocations by Tenant. Whenever pursuant to the foregoing
provisions of this Article 42, Tenant is authorized to make any relocation
Tenant shall have the right to enter the floors of the Building for such
purpose, subject to Tenant's compliance with the applicable Entry Provisions.
42.12 Other Provisions. Landlord represents to Tenant that Landlord
has the right, power and authority to grant to Tenant the rights provided for
above in this Article 42, subject to compliance by Tenant with the applicable
Entry Provisions and Pipe Erection and Other Work Provisions as provided above.
Landlord shall, within two (2) business days of Tenant's request,
give such notices and take such other actions as Tenant shall from time to time
request in order to confirm, perfect and provided for Tenant's exercise and
enjoyment of the rights provided for above in this Article 42.
Without limiting the foregoing, if Tenant shall so request,
Landlord, within two (2) business days of Tenant's request shall exercise the
rights reserved to Landlord under the Entry Provisions and/or the Pipe Erection
and Other Work Provisions as Tenant shall from time to time request, including,
if Tenant shall so request, retaining any contractors designated by Tenant to
perform any work designated by Tenant, at Tenant's cost and expense (subject to
compliance with the provisions of this Article and Article 6).
Landlord shall be entitled to a key to Tenant's Shafts for emergency
access thereto.
125
137
If due to limitations in the Entry Provisions or the Pipe Entry or
Other Work Provisions or other reasons Tenant's rights under this Article are
insufficient for Tenant's needs, Landlord shall cooperate with Tenant's in
identifying and providing additional riser space for Tenant, in the manner
most-cost effective to Tenant.
42.13 Telecommunications Points of Entry. Landlord hereby grants to
Tenant the right (i) to create, in the locations shown on Exhibit EE, two (2)
new communication points of entry in the lower level of the Building, and (ii)
to install conduits in such lower level from such points of entry to Tenant's
Shafts, and the right to maintain, repair, replace, modify, alter and remove
such installations, and the right to enter the basement and other areas of the
Building in order to access such installations.
42.14 Tenant's Fuel Tank. Landlord hereby grants to Tenant the right
(i) to install a fuel tank or tanks (up to the maximum size permitted by
applicable law) and associated improvements, equipment and facilities in any
part of the basement of the Building included in the Premises, and (ii) to
install supply and return pipes and conduits from such tank to Tenant's Shafts
and feed and vent pipes from such tank to the street or other fuel supply point,
and the right to maintain, repair, replace, modify, alter and remove such
installations, and the right to enter the basement and other areas of the
Building in order to access such installations. Whether or not Tenant operates
or continues to operate Tenant's Generator Plant, Tenant shall keep any fuel
tank installed by it in such condition as shall be required to prevent damage or
injury to the Building, subject nonetheless to the release provisions of Section
22.6.
126
138
IN WITNESS WHEREOF Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
LANDLORD:
TCC ACQUISITION CORP.,
AS AGENT
By: /s/ [signature]
----------------------------------------
Name: [name]
Title: Group Vice President
TENANT:
THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Edward F. Markiewicz
----------------------------------------
Name: Edward F. Markiewicz
Title: Attorney in Fact
127
139
Exhibit A
Landlord
--------
BOSTON OLD COLONY INSURANCE COMPANY
THE BUCKEYE UNION INSURANCE COMPANY
COMMERCIAL INSURANCE COMPANY OF NEWARK, N.J.
THE CONTINENTAL INSURANCE COMPANY
THE CONTINENTAL INSURANCE COMPANY OF NEWARK, NEW JERSEY
THE FIDELITY AND CASUALTY COMPANY OF NEW YORK
FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY
THE GLENS FALLS INSURANCE COMPANY
KANSAS CITY FIRE AND MARINE INSURANCE COMPANY
THE MAYFLOWER INSURANCE COMPANY, LTD.
NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF ILLINOIS
NIAGARA FIRE INSURANCE COMPANY
140
Exhibit C
Premises
--------
141
EXHIBIT "C"
Scheduled
Portion Floor Area RSF Delivery Date
- -----------------------------------------------------------------------------------
Part 41st Floor 22,233 1/1/99
Entire 40th Floor 28,821 11/1/98
Entire 37th Floor 29,040 1/1/99
Entire 31st Floor 29,011 10/1/98
Entire 30th Floor 29.011 10/1/98
Entire 29th Floor 27,846 {15,616} Immediate
{1,208} 9/1/98
"B" {11,022} 1/1/99
Part 28th Floor "D" 6,212 9/1/98
"C" 1,208 Immediate
Part 26th Floor "C" 8,809 3/1/99
"A" 1,219 Immediate
Entire 22nd Floor 27,725 9/1/98 (1)
Part 21st Floor "E" 4,684 7/1/98 (1)
"B" 3,035 1/1/99
"D" 355 Immediate
Part 21St Floor "A" 19,368 7/1/00
"C" 338 7/1/00
Entire 20th Floor 27,780 2/1/99
Part 19th Floor "A" 17,512 {17,094} Immediate
"D" {418} 1/1/99
Entire 16th Floor 27,169 3/1/99
Entire 6-15th Floor 26,959 ea(2) 3/1/99 (3)
Entire 4th Floor "A" "B" 15,437 3/1/99
"C" 10,721 1/1199
Entire 3rd Floor 27,078 1/1/99
Part Mezzanine 8,111 1/1/99
Part Basement "I" 10,751 3/1/99
Part Basement "G" 1,406 10/1/98
Part Basement "M" 1,394 Immediate
Basement "K" 10,028 1/1/99
"J" 517 1/1/99
- -----------------------------------------------------------------------------------
TOTAL 666,409 Rentable sq. ft.
(1) Subject to lease termination/buyout
(2) The RSF is for each of floors 6-15
(3) The Scheduled Delivery Date for floors 10 and 12 is Immediate
142
Exhibit I
Building Rules and Regulations
1. The rights of Tenant in the sidewalks, entrances, corridors,
elevators and escalators of the Building are limited to ingress in and egress
from the Premises for Tenant and its employees, licensees and invitees and
Tenant shall not use or permit the use of said sidewalks, entrances, corridors,
elevators or escalators for any other purpose. Tenant shall not invite to the
Premises or permit the visit thereto by persons in such numbers or under such
conditions as to interfere with the use and enjoyment by others of the
sidewalks, entrances, corridors, elevators, escalators or any other facilities
of the Building. Fire exits and stairways are for emergency use only and they
shall not be used for any other purpose by Tenant, its employees, licensees or
invitees. Landlord shall have the right to regulate the use of and operate the
public portions of the Building as well as portions furnished for the common use
of Tenants in such manner as it deems best for the benefit of Tenants generally.
2. Outside of ordinary business hours, Landlord may refuse admission
to the Building to any person not having a pass issued or approved by Landlord
or not accompanied by a person presenting such a pass or not properly identified
and may require all persons admitted to or leaving the Building outside of
ordinary business hours to register. Tenant shall be responsible for all persons
for whom a pass shall be issued or approved at the request of Tenant and shall
be liable for all acts of such persons. Anything to the contrary
notwithstanding, any person whose presence in the Building at any time shall, in
the judgment of Landlord be prejudicial to the safety, character, reputation and
interests of the Building or of its tenants may be denied access to the Building
or may be ejected therefrom. In case of emergency, invasion, public excitement
or other commotion Landlord may prohibit all access to the Building during the
continuance of the same, by closing doors or otherwise, for the safety of
Tenants or protection of property in the Building. Landlord may require any
person leaving the Building with any package or other object to exhibit a pass
from the Tenant from whose Premises the package or object is being removed, but
the establishment or enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of Tenant against the removal of
property from the Premises of Tenant.
3. Except in the case of a shop, no lettering, sign, advertisement,
trademark, emblem, notice or object shall be displayed in or on the windows or
doors, or on the outside of the Premises, or at any point inside the Premises
where the same might be visible outside the Premises (other than from the
elevators on the floors of the Premises) except that, on any divided floor, the
name and/or symbol of Tenant may be displayed on or adjacent to the entrance
door of the Premises and/or in or so as to be visible from the common areas on
such floor, subject to the approval of Landlord as to the locations, size, color
and style of such display (which approval shall not be unreasonably withheld).
1
143
4. No awnings or other projections of any kind over or around the
outside of the windows or entrances of the Premises shall be installed by Tenant
and only such window blinds and shades as are approved or supplied by Landlord
shall be used in the Premises.
5. Tenant's right to install safes and other objects of excessive
weight in the Premises shall be conditioned upon Tenant's either (i)
distributing the concentrated weight of the safe or other heavy object or (ii)
reinforcing the floor, subject to prior notice to and consent of Landlord, in
either case (which consent shall not unreasonably be withheld). No safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon the Premises other than in accordance
with the preceding sentence. If it is necessary to distribute the concentrated
weight of any safe or heavy object or reinforce the floor, the work involved in
such work shall be done by Tenant at its expense in such manner as Landlord
shall approve (such approval not to be unreasonably withheld). No machines,
machinery or electrical or electronic equipment or appliances of any kind shall
be placed or operated so as to disturb other tenants.
6. No noise, including the playing of any musical instrument, radio
or television which, in the judgment of Landlord, might disturb other tenants in
the Building shall be made or permitted by Tenant. No animal shall be brought on
the Premises, except seeing eye dogs. No dangerous, inflammable, combustible or
explosive object or material shall be brought into or kept in the Building by
Tenant or with the permission of Tenant, except as permitted by law and the
insurance companies insuring the Building or the property therein or except as
is necessary or appropriate for or in connection with Tenant's permitted
activities in the Building. Any cuspidors or containers or receptacles used as
such in the Premises or for garbage or similar refuse shall be emptied, cared
for and cleaned by Tenant.
7. All entrance doors in the Premises shall be kept locked by Tenant
when the Premises are not in use.
2