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EXHIBIT 10.35
LEASE
between
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
"Landlord"
and
MCCARTHY, CRISTANI & MAFFEI, INC.
"Tenant"
As of December 7, 1993
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Lease
TABLE OF CONTENTS
ARTICLE 1 Premises, Term and Fixed Rent...............................-1-
ARTICLE 2 Use of Premises.............................................-3-
ARTICLE 3 Escalations.................................................-5-
ARTICLE 4 Delivery of Premises; Landlord's Work......................-18-
ARTICLE 5 Subordination..............................................-19-
ARTICLE 6 Quiet Enjoyment............................................-23-
ARTICLE 7 Assignment, Subletting and Mortgaging......................-23-
ARTICLE 8 Compliance with Laws.......................................-43-
ARTICLE 9 Insurance..................................................-46-
ARTICLE 10 Rules and Regulations......................................-49-
ARTICLE 11 Alterations................................................-49-
ARTICLE 12 Tenant's Improvements and Tenant's Property................-56-
ARTICLE 13 Repairs and Maintenance....................................-58-
ARTICLE 14 Electric Energy............................................-60-
ARTICLE 15 Landlord's Services........................................-66-
ARTICLE 16 Access and Name of Building................................-70-
ARTICLE 17 Notice of Occurrences......................................-73-
ARTICLE 18 Non-Liability and Indemnification..........................-73-
ARTICLE 19 Damage or Destruction......................................-75-
ARTICLE 20 Eminent Domain.............................................-81-
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ARTICLE 21 Surrender..................................................-82-
ARTICLE 22 Conditions of Limitation...................................-82-
ARTICLE 23 Reentry by Landlord........................................-85-
ARTICLE 24 Damages....................................................-86-
ARTICLE 25 Affirmative Waivers........................................-88-
ARTICLE 26 No Waivers.................................................-89-
ARTICLE 27 Curing Tenant's Defaults...................................-89-
ARTICLE 28 Broker.....................................................-89-
ARTICLE 29 Notices....................................................-90-
ARTICLE 30 Estoppel Certificates......................................-91-
ARTICLE 31 Definitions................................................-91-
ARTICLE 32 No Representations by Landlord.............................-95-
ARTICLE 33 Tenant's Termination Rights................................-96-
ARTICLE 34 Holdover...................................................-96-
ARTICLE 35 Miscellaneous Provisions and Definitions...................-97-
ARTICLE 36 Landlord's Contribution...................................-101-
ARTICLE 37 Option Space..............................................-103-
ARTICLE 38 Preferential Right to Lease...............................-108-
ARTICLE 39 Untenantability...........................................-115-
ARTICLE 40 Arbitration...............................................-115-
ARTICLE 41 Effective Date of Lease...................................-117-
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SCHEDULES AND EXHIBITS
Schedule A Fixed Rent
Schedule B Certificate of Occupancy
Schedule C Landlord's Work
Schedule D Contractors Approved For Initial Alterations
Schedule E HVAC Specifications
Exhibit A Land
Exhibit B Floor Plan of Premises
Exhibit C Rules and Regulations
Exhibit D Alteration Rules and Regulations
Exhibit E Cleaning Specifications
Exhibit F-l Form of Non-Disturbance Agreement for Underlying Leases
Exhibit F-2 Form of Non-Disturbance Agreement for Mortgages
Exhibit G Primary Landlord Conduit Areas
Exhibit H Passenger Elevator Bank D
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LEASE, dated as of December 7, 1993, between THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), incorporated under the laws of the United States of
America, having an office at 4 Chase MetroTech Center, 17th Floor, Brooklyn, New
York 11245, Attention: Vice President (herein called "LANDLORD") and McCARTHY,
CRISTANI & MAFFEl, INC., a New York corporation, having an office at 1 Parkview
Plaza, Oakbrook Terrace, Illinois 60181 (herein called "TENANT").
W I T N E S S E T H:
ARTICLE 1
Premises, Term and Fixed Rent
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this lease, the premises described in Section 1.02, which premises are located
in the building known as One Chase Manhattan Plaza in the City, County and State
of New York (herein called the "BUILDING"), which Building is located on the
land described in Exhibit A attached hereto and made a part hereof (herein
called the "LAND").
1.02. The premises leased to Tenant hereunder (herein called the
"PREMISES") consist of those portions of the thirty-seventh (37th) floor of the
Building that are shown hatched on the floor plan attached hereto as Exhibit B.
1.03. The term of this lease (a) shall commence on the date hereof (the
"COMMENCEMENT DATE"), and (b) shall end at 11:59 p.m. on November 30, 2009 (such
date being herein called the "EXPIRATION DATE"), or on such earlier date upon
which the term of this lease shall expire or be cancelled or terminated pursuant
to any of the conditions or covenants of this lease or pursuant to law.
1.04. The rents shall be and consist of (1) fixed rent (herein called
"FIXED RENT"), which shall be payable for the Premises at the per annum rates
therefor set forth on Schedule A annexed hereto, and which, subject to the
provisions of Section 1.05 below, shall be payable commencing on the
Commencement Date and thereafter in equal monthly installments in advance on the
first day of each and every calendar month during the term of this lease (except
that Tenant shall pay, upon the execution and delivery of this lease by Tenant,
the sum of Seventy Six Thousand Four Hundred Nine and 66/100 ($76,409.66)
Dollars, to be applied against the first full monthly installment of Fixed
Rent), and (2) additional rent (herein called "ADDITIONAL CHARGES") consisting
of Tax Payments (as hereinafter defined), Operating Payments (as hereinafter
defined) and all other sums of money as shall become due from and payable by
Tenant to Landlord hereunder; all to be paid in lawful money of the United
States to Landlord at its office, or such other place, or to Landlord's agent
and at such other place, as Landlord shall designate by written notice to
Tenant.
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1.05. The "RENT COMMENCEMENT DATE" shall be December 1, 1994.
Notwithstanding anything to the contrary contained in Section 1.04 above, (i)
there shall be a complete abatement of Fixed Rent for the period commencing on
the Commencement Date and ending on the day preceding the Rent Commencement
Date, both days inclusive, and (ii) Fixed Rent for the month in which the Rent
Commencement Date occurs shall be a pro-rated amount, determined on a per diem
basis, and shall be payable on the Rent Commencement Date.
1.06. Tenant covenants and agrees to pay Fixed Rent and Additional Charges
as follows: Tenant shall pay Fixed Rent and Recurring Additional Charges (as
hereinafter defined) without notice or demand therefor. Tenant shall pay all
other Additional Charges at such time or times as may be provided for herein,
or, if no due date is specified, within thirty (30) days of notice or demand
therefor. Tenant shall pay Fixed Rent and all Additional Charges without any
abatement, deduction or setoff for any reason whatsoever, except as may be
expressly provided in this lease. Unless otherwise instructed by Landlord, Fixed
Rent and Recurring Additional Charges shall be paid by wire transfer of
immediately available federal funds to Landlord or its designee, to such
account(s) as may be designated in written directions delivered by Landlord to
Tenant from time to time, and in the absence of any such instructions, in the
same manner as hereinafter provided for other Additional Charges. All other
Additional Charges shall be paid by good and sufficient check (subject to
collection) drawn on a bank which is a member of the Federal Reserve system or a
successor thereto. As used herein, the term "RECURRING ADDITIONAL CHARGES" shall
mean (i) those Additional Charges payable periodically by Tenant in accordance
with the provisions of Section 3.02(b) hereof and (ii) those Additional Charges
payable monthly by Tenant in accordance with the provisions of Section 3.03(b)
hereof.
1.08. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this lease or at law provided.
1.09. If any of the Fixed Rent or Additional Charges payable under the
terms and provisions of this lease shall be or become uncollectible, reduced or
required to be refunded because of any legal rent restrictions enacted by a
governmental authority, Tenant (without any additional expense to Tenant, other
than expense which is de minimis or which Landlord has agreed to pay) shall
enter into such agreement(s) and take such other steps as Landlord may request
and as may be legally permissible to permit Landlord to collect the maximum
rents which from time to time during the continuance of such legal rent
restriction may be legally
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permissible (but not in excess of the amounts nor earlier than the due dates
reserved therefor under this lease). Upon the termination of such legal rent
restriction, (a) the Fixed Rent and/or Additional Charges shall become and
thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination, and (b) Tenant shall pay to Landlord within
thirty (30) days after being billed, to the maximum extent legally permissible,
an amount equal to (i) the Fixed Rent and/or Additional Charges which would have
been paid pursuant to this lease but for such legal rent restriction less (ii)
the rents paid by Tenant during the period such legal rent restriction was in
effect. The rights and obligations set forth in this Section 1.09 shall survive
the expiration or termination of this lease for a period of three (3) years
following such expiration or termination.
1.10. Additional Charges shall be deemed to be rent and Tenant's failure
to pay Additional Charges shall be considered a failure to pay rent hereunder
and Landlord shall be entitled to all rights and remedies provided herein or by
law in connection therewith.
ARTICLE 2
Use of Premises
2.01. Tenant shall have the right to use and occupy the Premises only as
follows: (I) primarily, for general and executive office use, and, to the extent
incidental to such general and executive office use, for computer and data
processing, photocopying, kitchenette (including microwave and dishwasher),
pantry and vending machine areas (the uses described in this clause (i) being
herein called the "PRIMARY USE"); and (ii) secondarily, for (x) printing, and
(y) other uses incidental to the Primary Use which are consistent with a
first-class office building (the uses described in this clause (ii) being herein
called the "SECONDARY USES").
2.02. (a) Landlord, throughout the term of this lease, shall maintain in
effect a Certificate of Occupancy for the Building (either temporary or
permanent) which, subject to the completion by Tenant of its Initial Alterations
(as such term is defined in Article 11 hereof) in accordance with this lease,
will (I) permit the use of the Premises by Tenant for the Primary Use at
occupancy levels, for each portion thereof, which are not less than the
occupancy levels therefor set forth in the Certificate of Occupancy for the
Building which is attached hereto as Schedule B (herein called the "ATTACHED
CERTIFICATE OF OCCUPANCY"), and (II) permit the floors of the Premises to be
loaded with a load at least equal to the permitted floor load set forth on the
Attached Certificate of Occupancy; provided, however that Landlord shall have no
liability for a breach of the foregoing if such breach results from any act or
omission of Tenant or any Tenant Party (as hereinafter defined), which act or
omission violates any provision of this lease. Landlord makes no representation
that
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the Attached Certificate of Occupancy is currently the existing Certificate of
Occupancy which is actually in effect for the Building.
(b) If any governmental license or permit (other than a Certificate
of Occupancy for the Building permitting the Premises to be used for the Primary
Use at the occupancy levels and with the floor loads referred to in Section
2.02(a) above) shall be required for the proper and lawful conduct of business
in the Premises or any part thereof and if the failure to have such license or
permit would affect the Real Property, Landlord or any occupant of the Building,
then Tenant, at its expense, shall duly procure and thereafter maintain such
license or permit and, upon request, deliver a copy thereof to Landlord.
Additionally, if Tenant shall desire to use the Premises, or any portion
thereof, for a use other than the Primary Use at the occupancy levels and with
the floor loads referred to in Section 2.02(a) above) and such use shall require
a modification or amendment of the then existing Certificate of Occupancy for
the Building, then, prior to so using the Premises or such portion thereof,
Tenant, at its expense, shall procure any such required modification or
amendment. The foregoing provisions are not intended to be deemed Landlord's
consent to any Alterations or to a use of the Premises not otherwise permitted
hereunder. Landlord shall execute (and provide any readily accessible
information known by Landlord for) any applications and similar documents
reasonably required in connection with obtaining any licenses or permits or any
amendments or modifications of any Certificate of Occupancy for the Building
required by the foregoing provisions of this Section 2.02(b), provided that such
documents are in proper form. Tenant hereby agrees that it shall (i) reimburse
Landlord all Landlord's out-of-pocket expenses incurred in connection with
Tenant's obtaining of any such license, permit, amendment or modification
(including without limitation those incurred in connection with Landlord's
execution of any applications and similar documents, or its provision of
information, as provided in the preceding sentence), and (ii) indemnify and hold
harmless Landlord against any and all liabilities which Landlord may incur by
reason of its execution of any applications and similar documents, or its
provision of information, as provided in the preceding sentence; provided,
however, that neither such reimbursement nor such indemnity shall include any
such expenses or liabilities to the extent that (A) the same would be, or would
have been, discharged, satisfied or avoided by Landlord's performance of its
obligations under this lease (including without limitation its obligations under
Articles 8 and 13 hereof), or (B) the same arises out of any inaccuracy in any
information provided by Landlord.
(c) In connection with the initial Alterations, Landlord, promptly
after its approval of such Initial Alterations in accordance with the provisions
of Article 11 hereof, shall deliver to Tenant a Form ACP-5 executed by
Landlord's hygienist with respect to Premises. In connection with any
Alterations made subsequent to the Initial Alterations, Landlord, reasonably
promptly after a request therefor and its approval of such Alterations in
accordance with the provisions of
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Article 11, shall deliver to Tenant, with respect to each portion of the
Premises in respect of which such Alterations shall be performed, a Form ACP-5
executed by Landlord's hygienist and/or any other form or documentation which
evidences or confirms the absence of asbestos from such portion(s) of the
Premises, provided that (i) such other form or documentation is then required by
any governmental agency as a condition to the performance of such Alterations,
and (ii) the matters evidenced or confirmed by such other form or documentation
are not greater in scope then the matters evidenced or confirmed by the initial
Form ACP-5 delivered by Landlord with respect to such portion(s) of the
Premises. In no event shall the provisions of this Section 2.02(c) require
Landlord to perform any work in the Premises or otherwise.
2.03. Tenant shall not at any time use or occupy the Premises or the
Building, or suffer or permit anyone to use or occupy the Premises, in any
manner, or do anything in the Premises or the Building, or suffer or permit
anything to be done in, brought into or kept on the Premises, which (a) violates
the Certificate of Occupancy for the Building (except to the extent such
violation is attributable to Landlord's failure to comply with its obligations
under Section 2.02), (b) impairs the proper and economic maintenance, operation
and repair of the Building and/or its equipment, facilities or systems (except
to the extent that such impairment arises out of the use of the Premises for the
Primary Use), (c) constitutes a nuisance, public or private, (d) makes
unobtainable from reputable insurance companies authorized to do business in New
York State all risk property insurance, or liability, elevator, boiler or other
insurance at standard rates, or (e) discharges objectionable fumes, vapors or
odors into the Building's flues or vents or otherwise, except to the extent such
fumes, vapors or odors are discharged into flues or vents designed for such
purposes and which Tenant, pursuant to the terms of this lease, is permitted to
use.
2.04. Tenant shall not use, or suffer or permit anyone to use, the
Premises or any part thereof, by or for (i) an agency, department or bureau of
the United States Government, (ii) any state or municipality within the United
States or any foreign government, or any political subdivision of any of them,
(iii) an employment or travel agency (other than an executive search firm and
other than an employment or travel agency primarily serving Tenant's employees),
(iv) any charitable or religious organization or union (it being agreed that
this clause shall not prohibit such an organization from using discrete portions
of the Premises on a short-term basis and for discrete purposes, provided that
Tenant receives no consideration therefor), (v) a school or classroom (it being
agreed that this clause shall not prohibit Tenant from occasionally, temporarily
or permanently using conference rooms or other areas of the Premises for
training purposes and lectures in connection with and incidental to Tenant's
business, it being understood that all such uses shall be considered secondary
Uses and, accordingly, that Tenant shall be responsible for obtaining any
permits or licenses required in connection therewith), (vi) medical or
psychiatric offices (it being agreed that this clause shall not prohibit Tenant
from employing
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doctors and/or nurses at the Premises for Tenant's employees), (vii) conduct of
an auction (other than in the ordinary course of Tenant's business), (viii)
gambling activities, (ix) the conduct of obscene, pornographic or similarly
disreputable activities, (x) an automated teller machine or similar facility,
(xi) a restaurant and/or bar and/or the sale of confectionery and/or soda and/or
beverages and/or sandwiches and/or ice cream and/or baked goods (the foregoing
shall not prohibit the use of portions of the Premises for kitchenette, pantry
and vending machine areas in accordance with Section 2.01(i) above), (xii) the
business of photographic reproductions and/or offset printing (except that
Tenant may use portions of the Premises for photographic reproductions and/or
offset printing in connection with, either directly or indirectly, its own
business and/or activities), (xiii) the retail offices or the retail activities
of a bank, trust company, safe deposit business, savings and loan association,
or a loan company, (xiv) the sale of traveler's checks or foreign exchange, or
(xv) a retail stock or securities brokerage office or for retail stock or
securities brokerage purposes. For purposes of this Section 2.04, the term
"RETAIL" shall refer to a business whose primary patronage are customers
visiting its offices in person.
ARTICLE 3
Escalations
3.01. The terms defined below shall for the purposes of this lease have the
meanings herein specified:
(a) "OPERATING STATEMENT" shall mean, with respect to any Operating
Year, a document containing (i) a reasonably itemized statement of Operating
Expenses for such Operating Year prepared by an independent certified public
accountant, and (ii) with respect to any Operating Year after the Base Operating
Year, a statement, in reasonable detail, of the Operating Payment payable by
Tenant for such Operating Year.
(b) "TAX STATEMENT" shall mean a document setting forth, in
reasonable detail, the Tax Payment payable by Tenant for a specified Tax Year
pursuant to this Article 3.
(c) "OPERATING EXPENSES" shall mean, without duplication, all
expenses paid or incurred by, or on behalf of, Landlord in respect of the
repair, replacement, maintenance, operation and/or security of the Real Property
(as hereinafter defined), determined on an accrual basis, including, without
limitation, the following:
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(A) salaries, wages, medical, surgical, insurance (including,
without limitation, group life and disability insurance), union and general
welfare benefits, pension payments, severance payments, sick day payments and
other fringe benefits of, and payroll taxes, worker's compensation, uniforms and
similar related expenses (whether direct or indirect) for, employees engaged in
such repair, replacement, maintenance, operation and/or security (all of the
foregoing being herein called "LABOR COSTS"); provided, however, that if any
such employees are not engaged exclusively in such repair, replacement,
maintenance, operation and/or security, then the Labor Costs of or for such
employees shall be included in Operating Expenses on a pro-rated basis, based
upon the proportion of such employees' total work time that is spent engaged in
such repair, replacement, maintenance, operation and/or security;
(B) the cost of fuel, gas, steam, electricity, heat,
ventilation, air-conditioning and chilled or condenser water, water, sewer and
other utilities, together with any taxes and surcharges on, and fees paid to
third parties in connection with the calculation and billing of, such utilities;
(C) the cost of painting and/or decorating all areas of the
Real Property, excluding, however, any leasable areas of the Building (the
phrase "LEASABLE AREAS" of the Building shall, at any time, mean all areas of
the Building that are then leased or available for lease to tenants, whether or
not the same are then being marketed, and shall include any space occupied or
held for occupancy by Landlord or any Affiliate of Landlord, other than as
Building Offices (as hereinafter defined));
(D) the cost of casualty, liability, fidelity, rent and all
other insurance regarding the Real Property and the repair, replacement,
maintenance, operation and/or security thereof, to the extent the such types of
insurance are customarily carried in respect of Similar Buildings (as defined in
Article 31 hereof);
(E) the cost of all supplies, tools, materials and equipment,
whether by purchase or rental, used in the repair, replacement, maintenance,
operation and/or security of the Real Property, and any sales and other taxes
thereon;
(F) (i) the fair market rental value of any Building office or
other premises in the Real Property utilized by employees and/or contractors
engaged in the repair, replacement, maintenance, operation and/or security of
the Real Property (collectively, "BUILDING OFFICES") (but Operating Expenses
shall include such fair market rental value only to the extent that the
aggregate area of such Building Offices do not exceed the lesser of 750 rentable
square feet or the size of such Building Offices during the Base Operating
Years), and (ii) all office expenses, such as telephone, utility, stationery and
similar expenses incurred in connection with all Building Offices;
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(G) the cost of cleaning, janitorial and security services,
including, without limitation, glass cleaning, snow and ice removal and garbage
and waste collection and/or disposal;
(H) the cost of maintaining all existing interior and exterior
landscaping, but excluding the initial cost of any additional landscaping;
(I) the cost of alterations, additions, improvements,
replacements and repairs made with respect to the Real Property and of tools and
equipment acquired for use in the operation, maintenance or repair of the Real
Property; provided, however, that (i) no Capital Costs (as hereinafter defined)
incurred in or prior to either of the Base Operating Years shall be included in
Operating Expenses for the year of incurrence or any subsequent year, and (ii)
Capital Costs incurred subsequent to both Base Operating Years shall be included
in Operating Expenses only:
(1) if, and to the extent that, the alteration,
addition, improvement, replacement, repair, equipment or tool in question
(a) is required to be made by a Subsequent Legal Requirement (as
hereinafter defined) (it being agreed that an alteration, addition,
improvement, replacement, repair, equipment or tool shall not be deemed
required to be made by a Subsequent Legal Requirement to the extent that
such alteration, addition, improvement, replacement, repair, equipment or
tool is also required to be made by an Existing Legal Requirement (as
hereinafter defined)), and (b) if made to any leasable area of the
Building, would not, if such leasable areas were demised by this lease, be
the responsibility of Tenant under Article 8 hereof; and, in such event,
for each month during the useful life of the alteration, addition,
improvement, replacement, repair, equipment or tool in question there
shall be included in Operating Expenses an amount equal to the combined
constant monthly principal and interest payment which would be payable on
a loan (i) having an original principal amount equal to the Capital Costs
of such alteration, addition, improvement, replacement, repair, equipment
or tool, (ii) bearing interest at the Capital Cost Rate (as hereinafter
defined) applicable to such Capital Costs, and (iii) providing for a
combined constant monthly payment of principal and interest sufficient to
fully-liquidate such loan over a period of time equal in length to the
length of such useful life (except, that (x) if such useful life shall not
commence on the first day of a month, then the amount so included in the
month in which such useful life shall commence shall be computed on a
prorata basis, and (y) if such useful life shall not end on the last day
of a month, then the amount so included in the month in which such useful
life shall end shall be computed on a prorata basis); or
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(2) if the alteration, addition, improvement,
replacement, repair, equipment or tool in question is such that, at the
time made, Landlord reasonably estimates that the same will result in an
avoidance of or savings in Operating Expenses over the useful life of such
alteration, addition, improvement, replacement, repair, equipment or tool;
and, in such event, there shall be included in Operating Expenses for each
month during the useful life of such alteration, addition, improvement,
replacement, repair, equipment or tool an amount equal to the combined
constant monthly principal and interest payment which would be payable on
a loan (i) having an original principal amount equal to the Capital Costs
of such alteration, addition, improvement, replacement, repair, equipment
or tool, (ii) bearing interest at the Capital Cost Rate (as hereinafter
defined) applicable to such Capital Costs, and (iii) providing for a
combined constant monthly payment of principal and interest sufficient to
fully liquidate such loan over a period of time equal in length to the
length of such useful life (except, that (x) if such useful life shall not
commence on the first day of a month, then the amount so included in the
month in which such useful life shall commence shall be computed on a
prorata basis, and (y) if such useful life shall not end on the last day
of a month, then the amount so included in the month in which such useful
life shall end shall be computed on a prorata basis); provided, however,
that the aggregate amount which is included in Operating Expenses for any
Operating Year under this Section 3.01(c)(I)(2) with respect to any such
alteration, addition, improvement, replacement, repair, equipment or tool,
shall not exceed an amount equal to Landlord's reasonable estimate of the
Operating Expenses avoided or saved for such Operating Year as a result of
such alteration, addition, improvement, replacement, repair, equipment or
tool;
it being agreed that, as used herein, (A) the term "CAPITAL COSTS" shall mean
the costs of any alteration, addition, improvement, replacement, repair,
equipment or tool the costs of which, under generally accepted accounting
principles consistently applied, are required to be capitalized, (B) the term
"SUBSEQUENT LEGAL REQUIREMENT" shall mean (i) any statute or governmental rule
or regulation in implementation thereof which is adopted after the date hereof
or (ii) any amendment to or modification of a statute or governmental rule or
regulation in implementation thereof, which amendment or modification is adopted
after the date hereof (and, without limiting the generality of the foregoing,
such term shall exclude any Existing Legal Requirement taking effect after the
date hereof), (C) the term "EXISTING LEGAL REQUIREMENT" shall mean any statute
or governmental rule or regulation in implementation thereof which is adopted on
or prior to the date hereof or (ii) any amendment to or modification of a
statute or governmental rule or regulation in implementation thereof, which
amendment or modification is adopted prior to the date hereof, and (D) the term
"USEFUL LIFE", of any alteration, addition, improvement, replacement, repair,
equipment or tool, shall mean the useful life thereof determined in accordance
with generally accepted accounting principles;
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(J) management fees; or, if no managing agent is employed in
respect of the Real Property, then a sum in lieu thereof equal to a standard and
customary management fee for a Similar Building, but in no event an amount in
excess of two and one-half percent (2-1/2%) of the gross rents payable in
respect of the Real Property (it being agreed that if no managing agent is
employed with respect to the Real Property and there is included in Operating
Expenses the aforesaid "in lieu of" fee, then Operating Expenses shall not
include any cost in respect of services customarily provided by a managing agent
as part of its standard and customary management fee (i.e., without separate or
additional charge), such as, by way of example, bookkeeping);
(K) all reasonable costs and expenses of legal, accounting and
other professional services incurred with respect to the repair, replacement,
maintenance, operation and/or security of the Real Property; and
(L) vault taxes, sewer rents, water frontage charges.
Notwithstanding anything to the contrary contained in the foregoing
provisions of this subsection (c), the term "OPERATING EXPENSES" shall not
include the following items:
(1) depreciation and amortization (except as provided above in
this subsection (c));
(2) interest on and amortization of debts (except as provided
above in this subsection (c));
(3) the cost of tenant improvements, installations and
decorations made in connection with preparing space for tenant(s) or renovating
space for an existing tenant, including any permit, license and inspection fees
and any contribution by Landlord to the cost of tenant improvements,
installations and decorations;
(4) leasing and brokerage commissions and similar fees;
(5) financing or refinancing costs;
(6) the cost of any work or service (or level or amount
thereof) provided to any tenant(s) 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, and overtime freight elevator service);
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(7) the cost of any electricity consumed in the Premises or
any other leasable areas of the Building (together with any taxes and surcharges
on, and fees paid to third parties in connection with the calculation and
billing of such electricity);
(8) Taxes, as well as franchise, gains, transfer, inheritance,
estate and income taxes, excess profit taxes and capital stock taxes;
(9) interest, fines or penalties resulting from the violation
by Landlord or any tenant of the Building of any laws or requirements of public
authorities;
(10) costs and expenses incurred in connection with procuring
tenants, including lease concessions, landlord contributions and allowances,
lease takeover or rental assumption obligations;
(11) damages and attorneys' fees and disbursements and other
costs in connection with any judgment, settlement or arbitration award resulting
from any liability of Landlord; provided, however, that any portion of such
damages, fees, disbursements and costs (other than any thereof which awarded as
compensation for bodily or personal injury) which by its nature would otherwise
be included in and not excluded from Operating Expense pursuant to this Section
3.01(c), irrespective of such liability, shall notwithstanding the foregoing,
constitute an Operating Expense;
(12) Labor Costs for personnel above the grade of building
manager;
(13) rent and all other amounts payable under any ground,
overriding or underlying lease of all or any portion of the Real Property;
provided, however, that any sums paid under any such lease in respect of
expenses which would otherwise be included in and not excluded from Operating
Expenses pursuant to this Section 3.01(c) shall not be excluded from Operating
Expenses even though denominated as "rent" under any such lease;
(14) costs incurred for the repair and restoration of the
Building the need for which results from a casualty; provided, however, that
Operating Expenses shall include such costs to the extent of any commercially
reasonable deductible under the applicable insurance policy(ies), it being
agreed that (i) the costs so included in Operating Expenses shall be attributed
to the item(s) of the Landlord Restoration Work (as hereinafter defined) which
have the longest useful life(s) (such useful life(s) being determined in
accordance with generally accepted accounting principles), and (ii) in respect
of each such item, for each month of the useful life of such item (as so
determined) there shall be included in Operating Expenses an amount equal to the
combined constant monthly principal and interest payment
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which would be payable on a loan (i) having an original principal amount equal
to the cost of such item, (ii) bearing interest at the Capital Cost Rate (as
hereinafter defined) applicable to such cost, and (iii) providing for a combined
constant monthly payment of principal and interest sufficient to fully-liquidate
such loan over a period of time equal in length to the length of such useful
life (except, that (x) if such useful life shall not commence on the first day
of a month, the amount so included in the month in which such useful life shall
commence shall be computed on a prorata basis, and (y) if such useful life shall
not end on the last day of a month, the amount so included in the month in which
such useful life shall end shall be computed on a prorata basis);
(15) the excess, if any, of (i) any sums paid or incurred
between affiliated parties for goods, services or other items the costs of which
are includable in Operating Expenses 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 basis;
(16) any compensation paid to clerks, attendants or other
persons in commercial concessions;
(17) advertising and promotional expenditures;
(18) all costs which under generally accepted accounting
principles consistently applied are required to be capitalized, except for (i)
Capital Costs includable in Operating Expenses pursuant to Section 3.01(c) (I)
above, (ii) costs includable in Operating Expenses pursuant to Section
3.01(c)(14) above, and (iii) costs which under generally accepted accounting
principles consistently applied would qualify as deferred expenses (e.g.,
prepaid charges) (which deferred expenses shall be includable as and when
chargeable in accordance with generally accepted accounting principles
consistently applied); except, in any case pursuant to this clause (18), if and
to the extent otherwise excluded from Operating Expenses by any other provision
of this Section 3.01(c);
(19) any charges or penalties resulting from a late payment of
any item of Operating Expenses;
(20) costs incurred in the removal, encapsulation, handling or
other treatment of asbestos;
(21) the costs of purchasing sculptures, paintings and other
works of fine art located within or outside the Building;
(22) any costs related to the portion of the concourse level
of the Building currently occupied by a retail branch of The Chase Manhattan
Bank,
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N.A. (provided, however, that Operating Expenses shall include costs incurred in
connection the portions of the Real Property (other than the leasable areas of
the Building) that serve both such part of the concourse and other parts of the
Building to the extent the same are otherwise includable in Operating Expenses);
(23) costs incurred for the repair and restoration of the
Building the need for which results from a condemnation;
(24) costs incurred with respect to a sale of all or any
portion of the Real Property;
(25) legal fees, expenses and disbursements relating (A) to
the enforcement of leases, recovery of possession, collection of rent, (B) to
disputes with tenants or prospective tenants of the Building or real estate
brokers, or (C) to disputes with purchasers or mortgagees or underlying lessors
of the Real Property, (C) to negotiations of leases, contracts of sale or
mortgages or sale or finance documents, or (D) to the defense of any claims for
bodily or personal injury or for any other damages the payment of which would
not constitute Operating Expenses;
(26) costs incurred in the operation and maintenance of any
parking garage now or hereafter located in the Building;
(27) costs relating to withdrawal liability or unfunded
pension liability under the Multi-Employer Pension Plan Act or similar law;
(28) the cost of installing, operating and maintaining any
specialty facility, such as an observatory, broadcasting facilities, luncheon
club, athletic or recreational club, cafeteria or dining facility; provided,
however, that Operating Expenses shall include costs incurred in connection with
common areas of the Real Property that serve both any such specialty facility
and other parts of the Building to the extent the same are otherwise includable
in Operating Expenses; and
(29) Landlord's general overhead not related to the Building.
As used in this Section 3.01(c) the term "tenant" shall
include Landlord, and any Affiliate of Landlord, as occupant of any leasable
space in the Building.
If during any relevant period (i) any leasable area of the
Building shall be vacant or unoccupied, and/or (ii) the tenant or occupant of
any space in the Building shall undertake to perform work or services therein,
the cost of which would otherwise have been included in Operating Expenses,
then, in any such event(s), the operating Expenses for such period shall be
adjusted to reflect the Operating Expenses that would have been paid or incurred
if one-hundred (100%)
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percent of the leasable areas of the Building had been occupied or if the costs
of all such work or services were paid or incurred as Operating Expenses, as the
case may be.
(d) "OPERATING YEAR" shall mean each calendar year in which occurs
any part of the term of this lease.
(e) "BASE OPERATING YEARS" shall mean the calendar years commencing
on January 1, 1993 and January 1, 1994.
(f) "BASE OPERATING AMOUNT" shall mean the sum of (i) one-half (1/2)
of the Operating Expenses for the Base Operating Year commencing January 1,
1993, plus (ii) one-half (1/2) of the Operating Expenses for the Base Operating
Year commencing January 1, 1994.
(g) "CAPITAL COST RATE", in respect of any costs, shall mean a per
annum rate equal to the Base Rate (as defined in Article 31 hereof) in effect as
of December 31st of the Operating Year in which such costs are incurred.
(h) "REAL PROPERTY" shall mean, collectively, the Building and all
fixtures, machinery and equipment installed therein or used in the operation
thereof (including, without limitation, the entire Base Building (as hereinafter
defined) and all improvements and betterments of the Building's tenants (whether
or not owned by Landlord), including, but not limited to, all cables, fans,
pumps, boilers, heating and cooling equipment, wiring and electrical fixtures
and metering, control and distribution equipment, component parts of the HVAC,
electrical, plumbing, elevator and any life or property protection systems
(including, without limitation, sprinkler systems), window washing equipment and
snow removal equipment, the Land, the curbs, sidewalks and plazas on the Land,
and all easements and other appurtenances to the Building and/or the Land.
(k) "TAXES" shall mean all (A) the real estate taxes and assessments
(special or otherwise), rates, charges and any other levies, impositions or
charges of a similar or dissimilar nature, whether general, special, ordinary or
extraordinary, foreseen or unforeseen, which may be levied, assessed or imposed
upon or with respect to the Real Property at any time by any federal, state,
municipal or other governments or governmental bodies or authorities, and (B)
expenses incurred in contesting taxes or assessments and/or the assessed value
of the Real Property, which expenses shall be allocated to the Tax Year to which
such expenses relate. If at any time during the term of this lease the methods
of taxation prevailing on the date hereof shall be altered so that in lieu of,
or as an addition to or as a substitute for, the whole or any part of such real
estate taxes or assessments (special or otherwise) now imposed on real estate,
there shall be levied, assessed or imposed (x) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy
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or otherwise on the rents received therefrom, or (y) a tax, charge or
assessment, special or otherwise, intended to serve as a real estate tax or to
fulfill substantially the same function as existing real estate taxes, then the
same shall be deemed to be included within the term "Taxes" for the purposes
hereof; provided, however, that, for purposes of such inclusion, the amounts
described in clause (x) above shall be computed as if the Real Property was the
only real estate owned by Landlord. For the purposes hereof, assessments
included within Taxes shall, regardless of how actually paid, be deemed to be
paid in the maximum number of installments permitted by the taxing authority
imposing any such assessment, together with interest calculated at a rate equal
to the rate then being charged by the taxing authority imposing such assessment.
(l) "TAX YEAR" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease, or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(m) "BASE TAX AMOUNT" shall mean the sum of Taxes for the Tax Year
commencing on July 1, 1993 and ending on the June 30, 1994.
(n) "TENANT'S OPERATING SHARE", during any period, shall mean a
fraction (expressed as a percentage rounded to the nearest one hundredth of one
percent), (i) the numerator of which is the then aggregate rentable area of the
Premises, and (ii) the denominator of which is equal to Tenant's Operating Share
Denominator (as defined below). The term "TENANT'S OPERATING SHARE DENOMINATOR"
shall be deemed to mean 1,897,835; provided, however, in no event shall such
number constitute or imply any representation or warranty by Landlord
whatsoever, as to the actual size of the Building or any portion thereof. As of
the date hereof, Tenant's Operating Share is 1.725%. If, for any Operating Year,
Tenant's Operating Share shall not remain a constant percentage throughout the
entirety of such Operating Year, then Tenant's Operating Share for such
Operating Year shall be that percentage which represents the weighted average
(computed on a per diem basis) of all the percentages constituting Tenant's
Operating Share during such Operating Year.
(o) "TENANT'S TAX SHARE", during any period, shall mean a fraction
(expressed as a percentage rounded to the nearest one hundredth of one percent),
(i) the numerator of which is the then aggregate rentable area of the Premises,
and (ii) the denominator of which is equal to Tenant's Tax Share Denominator (as
defined below). The term "TENANT'S TAX SHARE DENOMINATOR" shall be deemed to
mean 1,683,497; provided, however, in no event shall such number constitute or
imply any representation or warranty by Landlord whatsoever, as to the actual
size of the Building or any portion thereof. As of the date hereof, Tenant's Tax
Share is 1.945%.
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If, for any Tax Year, Tenant's Tax Share shall not remain a constant percentage
throughout the entirety of such Tax Year, then Tenant's Tax Share for such Tax
Year shall be that percentage which represents the weighted average (computed on
a per diem basis) of all the percentages constituting Tenant's Tax Share during
such Tax Year.
3.02. (a) Tenant, for each Tax Year occurring after the Tax Year ending
June 30, 1994, shall pay to Landlord as Additional Charges an amount (herein
called the "TAX PAYMENT") equal to Tenant's Tax Share of the excess of (i) the
Taxes for such Tax Year, over (ii) the Base Tax Amount; provided, however, that
the Tax Payment for the Tax Year in which the term of this lease shall end shall
be computed on a pro-rata basis, according to the portion of such Tax Year
falling within the term of this lease.
(b) Landlord, at anytime prior to, during, or after the end of, any
Tax Year, may deliver to Tenant a Tax Statement(s) for such Tax Year. Tenant,
for each Tax Year, shall pay to Landlord the Tax Payment set forth on the Tax
Statement(s) for such Tax Year in the same number of installments as Taxes are
required to be paid to the City of New York for such Tax Year, with each such
installment being due on the later to occur of (x) the date that is thirty (30)
days prior to the due date of the corresponding installment of Taxes and (y) the
date that is ten (10) Business Days after the date that Tenant receives the
initial Tax Statement for such Tax Year.
(c) If, at any time after the delivery of the initial Tax Statement
for any Tax Year, it is determined that, the Tax Payment for such Tax Year is
greater or less than the amount set forth on the then most recent Tax
Statement(s) (for any reason including without limitation (i) any increase in
Taxes for such Tax Year, whether before, during or after such Tax Year, (ii) any
decrease in the Taxes for any Tax Year, whether or before, during or after such
Tax Year, including without limitation any such decrease resulting from any
refund of Taxes for such Tax Year, or (iii) any decrease in Taxes comprising the
whole or any part of the Base Tax Amount, including without limitation any such
decrease resulting from any refund of Taxes for the 1993/94 Tax Year), then, in
any case that the Tax Payment is greater, Landlord may, or, in any case that the
Tax Payment is less, Landlord shall, furnish to Tenant a revised Tax
Statement(s) for such Tax Year. If any revised Tax Statement shall set forth a
Tax Payment that is greater than that set forth on the previous Tax Statement,
then Tenant shall pay to Landlord such additional amount within thirty (30) days
after Tenant's receipt of such revised Tax Statement. If any revised Tax
Statement shall set forth a Tax Payment that is less than that set forth on the
previous Tax Statement, then Landlord, within thirty (30) days after Tenant's
receipt of such revised Tax Statement, shall pay to Tenant the difference
between the Tax Payment, as set forth on the revised Tax Statement, and the Tax
Payment set forth on the previous Tax Statement.
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(d) Nothing contained in this lease shall require the filing of any
application, or the institution of any proceeding, seeking a reduction in Taxes
or assessed valuation. Tenant, for itself and its immediate and remote
subtenants and successors in interest hereunder, hereby waives, to the extent
permitted by law, any right Tenant may now or in the future have to protest or
contest any Taxes or to bring any application or proceeding seeking a reduction
in Taxes or assessed valuation or otherwise challenging the determination
thereof.
(e) Landlord represents that, as of the date hereof, the Real
Property is not subject to any tax deferral or abatement program which has
affected, or may hereafter affect, Taxes for the Tax Year commencing July 1,
1993 and ending June 30, 1994, or any subsequent Tax Year.
3.03. (a) Tenant, for each Operating Year subsequent to the Base Operating
Years, shall pay to Landlord, as Additional Charges for such Operating Year, an
amount (herein called the "OPERATING PAYMENT") equal to Tenant's Operating Share
of the excess of (i) Operating Expenses for such Operating Year, over (ii) the
Base Operating Amount; provided, however, that the Operating Payment for the
Operating Year in which the term of this lease shall end shall be computed on a
pro-rata basis, according to the portion of such Operating Year falling within
the term of this lease.
(b) Landlord may furnish to Tenant, prior to the commencement of
each Operating Year subsequent to the Base Operating Years, a written statement
setting forth Landlord's reasonable estimate of the Operating Payment for such
Operating Year (such estimate, as the same may be revised as hereinafter
provided, the "LANDLORD'S ESTIMATED OPERATING PAYMENT"). Tenant shall pay to
Landlord on the first day of each month during the Operating Year for which the
Operating Payment will be due, an amount equal to one-twelfth (1/12th) of the
Landlord's Estimated Operating Payment for such Operating Year. If, however,
Landlord shall not furnish any such estimate for an Operating Year or if
Landlord shall furnish any such estimate for an Operating Year subsequent to the
commencement thereof, then (i) until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section 3.03 for the last month of the
preceding Operating Year, (ii) after such estimate is furnished to Tenant,
Landlord shall give notice to Tenant stating whether the installments of the
Operating Payment previously made for such Operating Year were greater or less
than the installments of the Operating Payment which should have been previously
made for such Operating Year in accordance with such estimate, and (A) if there
shall be a deficiency, Tenant shall pay the amount thereof within thirty (30)
days after Tenant's receipt of such notice, or (B) if there shall have been an
overpayment, Landlord shall, within thirty (30) days from the giving of such
notice, refund to Tenant the amount thereof, together with interest on the
amount
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thereof at the Base Rate for the period from the date(s) of such overpayment to
the date such payment is made, and (iii) on the first day of the month following
the month in which such estimate is furnished to Tenant, and on the first day of
each month thereafter throughout the remainder of such Operating Year, Tenant
shall pay to Landlord an amount equal to one-twelfth (1/12th) of the Landlord's
Estimated Operating Payment set forth on such estimate. Landlord may, during
each Operating Year (but not more than twice during any Operating Year), furnish
to Tenant a revised statement of Landlord's Estimated Operating Payment for such
Operating Year, and in such case, the Landlord's Estimated Operating Payment for
such Operating Year shall be adjusted and paid or refunded, as the case may be,
substantially in the same manner as provided in the preceding sentence.
(c) Landlord, after the end of each Operating Year subsequent to the
Base Operating Years, shall furnish to Tenant an Operating Statement for such
Operating Year. Landlord, prior to or together with the delivery of the initial
Operating Statement for the first Operating Year after the Base Operating Years,
shall furnish to Tenant an Operating Statement for each of the Base Operating
Years (the "BASE YEAR OPERATING STATEMENTS"). If, for any Operating Year after
the Base Operating Years, the Operating Statement shall show that the sums paid
by Tenant, if any, under Section 3.03(b) exceeded the Operating Payment to be
paid by Tenant for such Operating Year (such excess for any Operating Year being
herein called the "OPERATING OVERPAYMENT"), then Landlord, within thirty (30)
days after delivery of such Operating Statement, shall refund to Tenant the
amount of such Operating Overpayment, together with interest on the amount
thereof at the Base Rate for the period commencing on the last day of the
Operating Year in question and ending on the date the appropriate refund is
made. If the Operating Statement for such Operating Year shall show that the
sums so paid by Tenant were less than the Operating Payment to be paid by Tenant
for such Operating Year (such deficiency for any Operating Year being herein
called the "OPERATING DEFICIENCY"), Tenant shall pay the amount of such
Operating Deficiency within thirty (30) days after Tenant's receipt of the
Operating Statement.
(d) (1) Tenant, upon notice given no later than the applicable Audit
Notice Deadline Date (as hereinafter defined) with respect to any Operating
Statement, may elect to have Tenant's employees, accountants or other agents
examine, at reasonable times and at such location(s) in the City of New York as
Landlord may reasonably designate, the Operating Expense Records (as hereinafter
defined) with respect to such Operating Statement; if Tenant shall not timely
give such notice, then the Operating Statement in question shall be conclusive
and binding upon Tenant (it being agreed that the foregoing shall not be
construed to prejudice Tenant's rights with respect to items constituting
revisions or corrections to such Operating Statement which are set forth in a
subsequently delivered revised or corrected Operating Statement for the same
Operating Year). As used herein, the "AUDIT NOTICE DEADLINE DATE", with respect
to any Operating Statement shall refer to
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the date one hundred eighty (180) days after the date of Tenant's receipt
thereof; provided, however, that with respect to the initial Base Year Operating
Statements, the initial Operating Statement for the first Operating Year after
the Base Operating Years and the initial Operating Statement for the second
Operating Year after the Base Operating Years (such four Operating Statements
being herein collectively called the "THRESHOLD OPERATING STATEMENTS"), the term
"Audit Notice Deadline Date" shall refer to the date (herein called the "INITIAL
AUDIT NOTICE DEADLINE DATE") that is one hundred eighty (180) days after the
first date that all of the Threshold Operating Statements shall have been
furnished to Tenant. As used herein, "OPERATING EXPENSE RECORDS", with respect
to any Operating Statement, shall mean such books and records as are relevant to
the Operating Expenses incurred in the Operating Year for which such Operating
Statement is furnished. In connection with any examination by Tenant of the
Operating Expense Records, Tenant agrees to treat, and to instruct its
employees, accountants, attorneys and agents to treat, all information as
confidential and not disclose it to any other person except Tenant's
accountants, employees, attorneys and agents, except as may be required by law
or may be necessary or appropriate in connection with the prosecution of any
claim by Tenant hereunder.
(2) If Tenant shall, in good-faith, disagree with any
Operating Statement, then Tenant, no later than the Audit Notice Deadline Date,
may send a written notice ("TENANT'S STATEMENT") to Landlord, setting forth such
disagreement and specifying in reasonable detail the basis for such disagreement
and Tenant's determination of the Operating Expenses for such Operating Year. If
Tenant shall not timely give such Tenant's Statement, then the Operating
Statement in question shall be conclusive and binding upon Tenant. If Tenant
shall timely give such Tenant's Statement, then Landlord and Tenant shall
attempt to adjust such disagreement. If they are unable to do so, Landlord and
Tenant shall designate a certified public accountant (the "ARBITER") whose
determination made in accordance with this Section 3.03(d)(2) shall be binding
upon the parties. The Arbiter shall be a member of an independent certified
public accounting firm having at least twenty (20) accounting professionals and
shall have practiced as a certified public accountant for at least ten (10)
years. In the event that Landlord and Tenant shall be unable to agree upon the
designation of the Arbiter within thirty (30) days after receipt of notice from
the other party requesting agreement as to the designation of the Arbiter, which
notice shall contain the names and addresses of two or more certified public
accountants who are acceptable to the party sending such notice (any one of
whom, if acceptable to the party receiving such notice as shall be evidenced by
notice given by the receiving party to the other party within such thirty (30)
day period, shall be the agreed upon Arbiter), then either party shall have the
right to request the American Arbitration Association (the "AAA") (or any
organization which is the successor thereto) to designate as the Arbiter a
certified public accountant whose determination made in accordance with this
Section 3.03(d)(2) shall be conclusive and binding upon the parties, and the
cost of the Arbiter designated by the AAA (or any organization which is the
successor thereto), shall be borne as hereinbefore provided in the case of
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the Arbiter designated by the Landlord and Tenant. Landlord and Tenant hereby
agree that (A) except with respect to the Base Operating Years, any
determination of Operating Expenses made by an Arbiter designated pursuant to
this Section 3.03(d)(2) shall neither exceed the determination of Landlord set
forth in the Operating Statement nor be less the determination of Tenant set
forth in Tenant's Statement, (B) with respect to the Base Operating Years, any
determination of Operating Expenses made by an Arbiter designated pursuant to
this Section 3.03(d)(2) shall neither exceed the determination of Tenant set
forth in Tenant's Statement, nor be less than the determination of Landlord set
forth in the Operating Statement, and (C) that any determination which does not
comply with the foregoing shall be deemed increased or decreased, as the case
may be, to cure such noncompliance. In rendering such determination the Arbiter
shall not add to, subtract from or otherwise modify the provisions of this
lease, including the immediately preceding sentence. Notwithstanding the
foregoing provisions of this Section 3.03(d), Tenant, pending the resolution of
any contest pursuant to the terms hereof shall continue to pay in the manner
provided for in this Section 3.03 all sums as determined to be due based upon
the Operating Statement. If, and to the extent that, Tenant shall prevail, then
within thirty (30) days after the resolution of such contest (i.e., the
Arbiter's determination), Landlord shall make an appropriate refund to Tenant,
together with interest on the amount thereof at the Interest Rate (as defined in
Article 31 hereof) for the period commencing on the last day of the Operating
Year to which such refund relates and ending on the date such appropriate refund
is made; if such determination shall relate to the Base Operating Years, any
applicable refund shall be made with respect to all subsequent Operating Years
with respect to which an initial Operating Statement shall have been furnished
to Tenant. With respect to any Operating Year other than the Base Operating
Years, (i) if the Operating Expenses set forth in the Operating Statement shall,
in the aggregate, exceed 105% of the Arbiter's determination thereof, the costs
of the Arbiter shall be borne by Landlord, (ii) if the Operating Expenses set
forth in Tenant's Statement shall, in the aggregate, be less than 95% of the
Arbiter's determination thereof, the costs of the Arbiter shall be borne by
Tenant, and (iii) otherwise, the costs of the Arbiter shall be shared equally.
With respect to the Base Operating Years, (x) if the Operating Expenses set
forth in Tenant's Statement shall, in the aggregate, exceed 105% of the
Arbiter's determination thereof, the costs of the Arbiter shall be borne by
Tenant, (y) if the Operating Expenses set forth in the Operating Statement
shall, in the aggregate be less than 95% of the Arbiter's determination thereof,
the costs of the Arbiter shall be borne by Landlord, and (z) otherwise, the
costs of the Arbiter shall be shared equally.
3.04. (a) In any case provided in this Article 3 in which Tenant is
entitled to a payment from Landlord pursuant to the terms of this Article 3,
Landlord, in lieu of making such payment, may credit the amount thereof against
the immediately following future installments of Fixed Rent and Additional
Charges; provided, however, that if such a credit would exceed Tenant's next
installment of Fixed Rent and Recurring Additional Charges, then the uncredited
portion of such excess shall
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bear interest at the Base Rate from the date due until the date credited.
Nothing in this Article 3 shall be construed so as to result in a decrease in
the Fixed Rent hereunder. If this lease shall expire before any such credit
shall have been fully applied, then Landlord, within thirty (30) days after the
expiration hereof, shall refund to Tenant the unapplied balance of such credit,
but if Tenant is in monetary default hereunder Landlord may, in lieu thereof,
credit the same against the amount of such default or withhold the same until
such default is cured.
(b) The expiration or termination of this lease during any Tax Year
or Operating Year (for any part or all of which there is a Tax Payment or
Operating Payment under this Article) shall not affect the rights or obligations
of the parties hereto respecting such payment and any Operating Statement or Tax
Statement, as the case may be, relating to such payment may be sent to Tenant
subsequent to, and all such rights and obligations of Landlord and Tenant with
respect thereto shall survive, any such expiration or termination. Any payments
due under such Operating Statement and Tax Statement, as the case may be, shall
be payable within thirty (30) days after such statement or bill is sent to
Tenant.
3.05. (a) (1) Landlord's failure to render, or delay in rendering, a Tax
Statement, or a revised or corrected Tax Statement, for any Tax Year shall not
prejudice Landlord's right to thereafter render a Tax Statement, or a revised or
corrected Tax Statement, for such Tax Year or any other Tax Year, nor shall the
rendering of a revised or corrected Tax Statement for any Tax Year prejudice
Landlord's right to thereafter render a further revised or corrected Tax
Statement for such Tax Year.
(2) Notwithstanding the provisions of Section 3.05(a)(1)
above or anything hereinabove contained to the contrary, if Landlord shall not
have rendered an initial Tax Statement for any Tax Year on or prior to the date
that is two (2) years after the end of such Tax Year, then Tenant may deliver to
Landlord a notice setting forth such failure, which notice shall expressly refer
to this Section 3.05(a)(2), and, in such event, if Landlord's failure to deliver
an initial Tax Statement for such Tax Year shall continue for a further period
of three (3) months after Landlord's receipt of such notice, then Landlord shall
no longer have the right to deliver a Tax Statement for such Tax Year and Tenant
shall not be obligated to make any Tax Payment for such Tax Year (it being
understood that the provisions of this Section 3.05(a)(2) however, shall not
affect, in any way, Landlord's right to deliver a Tax Statement for any other
Tax Year or to collect from Tenant any Tax Payment for such other Tax Year).
(3) Notwithstanding the provisions of Section 3.05(a)(1)
above or anything hereinabove contained to the contrary, Landlord shall not have
the right later than two (2) years after rendering the initial Tax Statement for
any Tax Year to render a revised or corrected Tax Statement with respect to such
Tax Year; provided,
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however, that Landlord shall always be (a) entitled and required to render a
revised Tax Statement based upon a decrease in Taxes or increase in the Base Tax
Amount pursuant to any tax reduction proceeding or other tax litigation, and (b)
entitled to render a revised Tax Statement based upon an increase in Taxes or
decrease in the Base Tax Amount pursuant to any tax reduction proceeding or
other tax litigation.
(b) (1) Landlord's failure to render, or delay in rendering, an
Operating Statement with respect to any Operating Year shall not prejudice
Landlord's right to thereafter render an Operating Statement for such Operating
Year or any other Operating Year, nor shall the rendering of an Operating
Statement (or a revised or corrected Operating Statement) for any Operating Year
prejudice Landlord's right to thereafter render one or more revised or corrected
Operating Statements for such Operating Year.
(2) Notwithstanding the provisions of Section 3.05(b)(1)
above or anything hereinabove contained to the contrary, if Landlord shall not
have rendered an initial Operating Statement for any operating year prior to the
date that is two (2) years after the end of such operating Year, then Tenant may
deliver to Landlord a notice setting forth such failure, which notice shall
expressly refer to this Section 3.05(b)(2), and, in such event, if Landlord's
failure to deliver an initial Operating Statement for such Operating Year shall
continue for a further period of three (3) months after Landlord's receipt of
such notice, then (i) Landlord shall still be obligated to deliver an Operating
Statement for such Operating Year and Tenant may suspend payment of any sums
which would otherwise come due under Section 3.03(b) until such Operating
Statement is furnished, (ii) Tenant shall not be obligated to pay any operating
Deficiency for such Operating Year, and (iii) Landlord, within thirty (30) days
from delivery of such an Operating Statement for such Operating Year, shall
refund to Tenant the amount of such Operating Overpayment, together with
interest on the amount thereof at the Interest Rate (rather than at the Base
Rate as provided in Section 3.03(c) above) for the period commencing on the last
day of the Operating Year in question and ending on the date the appropriate
refund is made (it being understood that the provisions of this Section
3.05(b)(2), however, shall not affect, in any way, Landlord's right to deliver
an Operating Statement for any other Operating Year or to collect from Tenant
any Operating Deficiency for such other Operating Year). The provisions of this
Section 3.05(b)(2) shall not apply to the Base Year Operating statements;
provided, however, that Landlord shall not be deemed to have delivered an
Operating Statement for any Operating Year subsequent to the Base Operating
Years unless and until it shall have furnished both of the Base Year Operating
Statements.
(3) Notwithstanding the provisions of Section 3.05(b)(1)
above or anything hereinabove contained to the contrary, (I) with respect to any
Operating Year in respect of which one of the Threshold Operating Statements was
rendered, Landlord shall not have the right later than one (1) year after the
Initial Audit Notice
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Deadline Date to render a revised or corrected Operating Statement with respect
to such Operating Year, and (II) with respect to each Operating Year occurring
after the Operating Years in respect of which the Threshold Operating Statements
were rendered, Landlord shall not have the right later than one (1) year after
rendering the initial Operating Statement with respect to such Operating Year to
render a revised or corrected Operating Statement with respect to such Operating
Year.
ARTICLE 4
Delivery of Premises; Landlord's Work
4.01. Tenant acknowledges that it has inspected the Premises and is fully
familiar with the condition of the Premises. Tenant hereby accepts the Premises
"as is" on the date hereof. Except for Landlord's Work (as hereinafter defined),
Landlord shall have no obligation to perform any work in readying the Premises
for Tenant's occupancy. No provision of this Article 4 shall release Landlord
from the performance of any of its obligations under any other Article of this
lease.
4.02. Landlord, after its receipt of Tenant's Article 4 Notice (as
hereinafter defined), shall, at its expense, promptly commence, and thereafter
diligently prosecute to completion, Landlord's Work, subject to one or more
Events of Force Majeure (as hereinafter defined). Landlord's Work shall be
prosecuted in a good and workmanlike manner in accordance with all applicable
laws and requirements of public authorities having jurisdiction thereover, and
sound construction practice. As used herein, (I) "LANDLORD'S WORK" shall mean
the work described on Schedule C attached hereto and made a part hereof, and
(II) "TENANT'S ARTICLE 4 NOTICE" shall mean a notice from Tenant to Landlord
referring to this Section 4.02, indicating that Tenant has substantially
completed the Initial Alterations (as hereinafter defined) and that requesting
that Landlord perform Landlord's Work.
ARTICLE 5
Subordination
5.01. For purposes of this lease, the following terms shall have the
following meanings:
(a) "UNDERLYING LEASE" shall mean any ground lease, overriding lease
or underlying lease of the Land and/or any portion of the Building of which the
Premises are a part (but excluding any such lease of any portion of the Building
of which the Premises are not a part), now or hereafter existing, and all
renewals, modifications, replacements and extensions of any such lease; and the
lessor of an
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Underlying Lease or its successor in interest, at the time referred in question,
is herein called an "UNDERLYING LESSOR".
(b) "MORTGAGE" shall mean any mortgage which may now or hereafter
affect the Land and/or any portion of the Building of which the premises are a
part and/or any Underlying Lease, whether or not any such mortgage shall also
cover other lands and/or buildings and/or leases, including each and every
advance made or hereafter to be made under any such mortgage, and to all
modifications, replacements and extensions, spreaders and consolidations of any
such mortgage; and the holder of a Mortgage is herein called a "MORTGAGEE".
(c) "NON-DISTURBANCE AGREEMENT" shall mean (1) in the case of an
Underlying Lease, an agreement between the Underlying Lessor under such
Underlying Lease and Tenant, either in the form annexed hereto as Exhibit F-l or
in such other form as shall be proposed by such Underlying Lessor so long as
such other form, as compared to the form annexed as Exhibit F-l, does not, in
any material respect, increase the obligations or liabilities of Tenant or
decrease the rights or remedies of Tenant, and, in all cases, in recordable
form, providing in substance that (A) such Underlying Lessor will not name or
join Tenant as a party defendant or otherwise in any suit, action or proceeding
to enforce any rights granted to such Underlying Lessor under its Underlying
Lease (unless required by law), and (B) that if such Underlying Lease shall
terminate or be terminated, the Underlying Lessor will recognize Tenant as the
direct tenant of such Underlying Lessor on the same terms and conditions as are
contained in this Lease, and (2) in the case of a Mortgage, an agreement between
the Mortgagee under such Mortgage and Tenant, either in the form annexed hereto
as Exhibit F-2 or in such other form as shall be proposed by such Mortgagee so
long as such other form, as compared to the form annexed as Exhibit F-2, does
not, in any material respect, increase the obligations or liabilities of Tenant
or decrease the rights or remedies of Tenant, and, in all cases, in recordable
form, providing in substance that (A) Tenant shall not be named or joined as a
party defendant or otherwise in any suit, action or proceeding to enforce any
rights granted to such Mortgagee under its Mortgage (unless required by law),
and (B) the possession of Tenant shall not be disturbed or evicted and this
lease, Tenant's leasehold estate and Tenant's rights hereunder shall not be
terminated or otherwise adversely affected as a result of any foreclosure of any
such Mortgage, and any sale pursuant to any such foreclosure or the delivery of
a deed in lieu of foreclosure, or other acquisition of Landlord's interest in
the Land and/or Building pursuant to the enforcement of the Mortgagee's
remedies; provided, however, that (i) any such provisions of any Non-Disturbance
Agreement may be conditioned upon this lease being in full force and effect and
no Event of Default having occurred and being continuing, and may be further
conditioned upon and made subject to Tenant's compliance with the provisions of
Section 5.04 hereof (pursuant to the same or separate agreement), and (ii) any
Non-Disturbance Agreement may contain the substance of Section 5.03 hereof and
subclauses (a) through (f) of Section 5.04 hereof.
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5.02. Subject to Section 5.05 hereof, this lease, and all rights of Tenant
hereunder, are and shall be subject and subordinate to each and every Underlying
Lease and to each and every Mortgage. In confirmation of such subordination,
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, any underlying Lessor or any Mortgagee, or any of their respective
successors in interest, may reasonably request to evidence such subordination.
Landlord represents that, as of the date hereof, there are no Mortgages or
Underlying Leases.
5.03. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
lease, or to abate or offset against the payment of rent or to claim a partial
or total eviction, Tenant shall not exercise such right (a) until it has given
written notice of such act or omission to Landlord and each Mortgagee and each
Underlying Lessor whose name and address shall previously have been furnished to
Tenant, and (b) until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice which shall include a
reasonable period of time for such Mortgagee or Underlying Lessor to have become
entitled under such Mortgage or Underlying Lease, as the case may be, to remedy
the same (which latter reasonable period shall in no event be less than the
period to which Landlord would be entitled under this lease or otherwise, after
similar notice, to effect such remedy plus thirty (30) days), provided that such
Mortgagee or Underlying Lessor shall within thirty (30) days after its receipt
of Tenant's notice given in accordance herewith, give Tenant notice of its
intention to remedy such act or omission, with diligence and continuity,
promptly after becoming entitled to do so. This Section 5.03 shall not be
applicable to any situation governed by Article 19, 20, 33, 36 (including
Article 36 as made applicable to (x) the Option Space or any Offer Space by
virtue of the provisions of Article 37 or 38, or (y) any Deposited Proceeds by
virtue of the provisions of Section 19.08 hereof) or 39.
5.04. If any Underlying Lessor or Mortgagee, any designee of any
Underlying Lessor or Mortgagee, or any other person shall succeed to the rights
of Landlord under this lease, whether through possession or foreclosure action
or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called "SUCCESSOR LANDLORD"), Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this lease and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this lease, except that a Successor Landlord shall
not be:
(a) liable for any previous act or omission of Landlord (or its
predecessors in interest); it being understood that the foregoing is not
intended
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to relieve Successor Landlord of any liability arising by reason of its
acts or omissions from and after the date of such attornment, including a
continuation of the failure of the prior Landlord to perform its
obligations under this lease, in which case Successor Landlord upon
receipt of notice of such continuation from Tenant shall have a reasonable
period of time to remedy same (which period shall not exceed the time
period granted Landlord for such remedy pursuant to the terms of this
lease);
(b) responsible for any monies owing by Landlord to the credit of
Tenant;
(c) subject to any offsets, claims, counterclaims, demands or
defenses which Tenant may have against Landlord (or its predecessors in
interest);
(d) bound by any payments of rent which Tenant might have made for
more than one (1) month in advance to Landlord (or its predecessors in
interest);
(e) required to account for any security deposit other than any
security deposit actually delivered to the Successor Landlord; and
(f) bound by any modification of this lease, which is made after the
date Tenant has actual notice of the existence of such Successor
Landlord's Mortgage or Underlying Lease, and which is made without the
written consent of the Mortgagee or Underlying Lessor.
Notwithstanding the foregoing provisions of this Section 5.04, such Successor
Landlord shall be liable for Landlord's obligations to make payments to Tenant
in respect of Landlord's Contribution (as set forth in Article 36 hereof),
Landlord's Option Space Contribution (as set forth in Article 37 hereof), any
Landlord's Offer Space Contribution (as set forth in Article 38 hereof), and any
Deposited Proceeds (as set forth in Section 19.08 hereof) regardless of whether
the payment thereof was due hereunder prior to or after such Successor Landlord
becomes Successor Landlord, and, with respect thereto, Tenant may exercise
against such Successor Landlord Tenant's right of set-off as set forth in
Section 36.04 hereof (including Section 36.04 as made applicable to (x) the
Option Space or any Offer Space by virtue of the provisions of Article 37 or 38,
or (y) any Deposited Proceeds by virtue of the provisions of Section 19.08
hereof).
5.05. (a) Landlord, with respect to any Mortgage or Underlying Lease
executed after the date hereof, shall deliver to Tenant a Non-Disturbance
Agreement from the Mortgagee or Underlying Lessor thereunder; provided, however,
that if an Event of Default has occurred and is continuing, then Landlord shall
have no obligation to deliver a Non-Disturbance Agreement to Tenant with respect
to any
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such future Mortgage or future Underlying Lease until such time as such Event of
Default shall have ceased to continue, and, during the continuance of such Event
of Default, this lease shall be subject and subordinate to such Underlying Lease
or Mortgage notwithstanding that a Non-Disturbance Agreement has not been
delivered to Tenant.
(b) If, in any instance, (i) Landlord shall have delivered to Tenant
a form of Non-Disturbance Agreement for execution by Tenant (whether or not such
form of Non-Disturbance Agreement shall have theretofore been executed by the
applicable Underlying Lessor or Mortgagee) together with a request, referring to
this clause (i) of this Section 5.05(b) and conforming to the last sentence of
this Section 5.05(b), that Tenant execute the same, (ii) Tenant shall fail or
refuse to execute and deliver same within fifteen (15) Business Days after such
delivery (or, in any case that the form of Non-Disturbance Agreement is either
(x) a form proposed by the applicable Underlying Lessor which differs from the
form annexed hereto as Exhibit F-1, or (y) a form proposed by the applicable
Mortgagee which differs from the form annexed hereto as Exhibit F-2, within
twenty (20) Business Days after such delivery), (iii) following the expiration
of such fifteen (15) Business Day period (or, as the case may be, twenty (20)
Business Day period), Landlord delivers to Tenant a notice setting forth such
failure or refusal and referring to this clause (iii) of this Section 5.05(b)
and conforming to the last sentence of this Section 5.05(b), and (iv) Tenant's
failure or refusal shall continue for a period of five (5) Business Days after
Tenant's receipt of the notice described in clause (iii) above (the last day of
such five (5) Business Day period being herein called, with respect to such
Underlying Lease or Mortgage, the "NDA EXECUTION DEADLINE DATE"), then Landlord
shall have no further obligation pursuant to this Section 5.05 with respect to
such Underlying Lease or Mortgage, all of Landlord's obligations being deemed
satisfied, and this lease and all rights of Tenant hereunder shall remain
subject and subordinate to such Underlying Lease or Mortgage without any need to
deliver to Tenant a Non-Disturbance Agreement, and no further instrument of
subordination shall be required. Any notice from Landlord under this Section
5.05(b) shall include, on the first page thereof, in capital letters the
following legend: AS MORE FULLY SET FORTH IN SECTION 5.05(b) OF THE LEASE, YOUR
FAILURE TIMELY TO RESPOND TO THIS NOTICE MAY RESULT IN THE LEASE BEING SUBJECT
AND SUBORDINATE TO AN UNDERLYING LEASE OR MORTGAGE WITHOUT NON-DISTURBANCE
PROTECTION.
(c) If, in any instance, (i) Landlord shall deliver to Tenant a form
of Non-Disturbance Agreement for execution by Tenant which has not theretofore
been executed by the applicable Underlying Lessor or Mortgagee, as the case may
be, and (ii) Tenant executes such form of Non-Disturbance Agreement and delivers
the same to Landlord on or prior to the applicable NDA Execution Deadline Date,
then Landlord shall, within fifteen (15) Business Days after Tenant's execution
thereof, cause the same to be executed by such Underlying Lessor or Mortgagee,
as the case
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may be, and delivered to Tenant and, until such time as the Non-Disturbance
Agreement is so delivered to Tenant, this lease shall be superior to such
Underlying Lease or Mortgage, as the case may be.
(d) If, with respect to any Mortgage or Underlying Lease executed
after the date hereof, Landlord shall not deliver to Tenant a Non-Disturbance
Agreement from the Mortgagee or Underlying Lessor thereunder as required by the
foregoing provisions of this Section 5.05, then, unless and until the same is
delivered, this lease shall be superior to such Underlying Lease or Mortgage
(and Landlord shall have no liability by reason of such not having delivered the
Non-Disturbance Agreement with respect to such Underlying Lease or Mortgage).
(e) Tenant shall have the right to record any Non-Disturbance
Agreement, provided that Tenant shall pay for all costs, taxes and/or expenses
necessary for the recordation of such Non-Disturbance Agreement. Upon the
expiration or earlier termination of this lease (or the expiration or
termination of the applicable Mortgage or Underlying Lease, as the case may be),
Tenant agrees to promptly execute, acknowledge and deliver to Landlord all
necessary instrument(s) prepared by Landlord in recordable form and otherwise in
form reasonably satisfactory to Tenant, evidencing such expiration or
termination of this lease and sufficient to discharge of record any
Non-Disturbance Agreements (or, in the case of the expiration or termination of
the applicable Mortgage or Underlying Lease, to promptly execute, acknowledge
and deliver to Landlord all necessary instrument(s) prepared by Landlord (or by
the applicable Underlying Lessor or Mortgagee) in recordable form and otherwise
in form reasonably satisfactory to Tenant, sufficient to discharge of record any
Non-Disturbance Agreements delivered to Tenant by the holder of any such expired
or terminated Mortgage or Underlying Lease, as the case may be), and, in all
cases, Tenant shall pay for all costs, taxes and/or expenses necessary to effect
the recordation of such instrument(s). In the event that Tenant shall fail to
comply with the foregoing sentence, Tenant shall be liable for all Landlord's
damages, costs and other liability occasioned by such failure.
ARTICLE 6
Quiet Enjoyment
6.01. So long as no Event of Default has occurred and is continuing,
Tenant shall peaceably and quietly have, hold and enjoy the Premises without
hindrance, ejection or molestation by Landlord or any person lawfully claiming
through or under Landlord, subject, nevertheless, to the provisions of this
lease. This covenant shall be construed as a covenant running with the Land, and
is not, nor shall it be construed as, a personal covenant of Landlord, except to
the extent of Landlord's interest in the Real Property and only so long as such
interest shall continue, and
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thereafter, with respect to the period commencing on the date Landlord has no
interest in the Real Property and ending on the date Landlord reacquires an
interest therein, Landlord shall be relieved of all liability hereunder and this
covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest.
ARTICLE 7
Assignment, Subletting and Mortgaging
7.01. Except as may be expressly permitted herein, Tenant shall not,
whether voluntarily, involuntarily, or by operation of law or otherwise, without
in each instance obtaining the prior written consent of Landlord: (a) assign in
whole or in part or otherwise transfer in whole or in part this lease or the
term and estate hereby granted, (b) sublet the Premises or any part thereof, or
allow the same to be used, occupied or utilized by anyone other than Tenant, (c)
mortgage, pledge, encumber or otherwise hypothecate this lease or the Premises
or any part thereof or any Tenant's Improvements in any manner whatsoever, other
than as specifically set forth in Section 11.10, or (d) permit the Premises or
any part thereof to be occupied or used for desk space or mailing privileges by
any person other than Tenant.
7.02. (a) If Tenant is a corporation, then a transfer of stock (by a
single transfer or by multiple transfers effected pursuant to a common plan) or
any other transaction (such as, by way of example, the issuance of additional
stock, the redemption of stock, a stock voting agreement, a change in classes of
stock or a merger or consolidation involving Tenant) which transfer or other
transaction results in a change of control of Tenant (or, in the event of a
merger or consolidation involving Tenant, a change of control of the resulting
corporation), shall be deemed, for all purposes of this Article 7, an assignment
of this lease, and if Tenant is a partnership, joint venture or other
non-corporate entity, then a transfer of an interest in the distributions of
profits and losses of such partnership, joint venture or other non-corporate
entity (by a single transfer or by multiple transfers effected pursuant to a
common plan) or any other transaction (such as, by way of example, the creation
of partnership interests) which transfer or other transaction results in a
change of control of such partnership, joint venture or other non-corporate
entity, shall be deemed, for all purposes of this Article 7, an assignment of
this lease. As used above in this Section 7.02(a), the term "TRANSFER" shall not
include sales effected through the "over-the-counter market" or through any
recognized stock exchange, unless such sales are effected by persons deemed
"insiders" within the meaning of the Securities Exchange Act of 1934, as
amended. As used herein, the term "CONTROL" shall have the meaning ascribed
thereto in Article 31 hereof.
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(b) (1) Notwithstanding the provisions of Section 7.02(a) above, the
transfers and other transactions which, pursuant to the aforesaid provisions,
constitute deemed assignments of this lease, shall nevertheless be permitted
hereunder (without the consent of Landlord) if (i) immediately after such deemed
assignment, Tenant (which, in the event of a merger or consolidation involving
Tenant, is the resulting corporation), together with the Guarantor (as
hereinafter defined), has a net worth computed in accordance with generally
accepted accounting principles consistently applied which is not less than the
Minimum Net Worth (as hereinafter defined), and (ii) such transfer or other
transaction is effected for legitimate business purposes, and not primarily for
the purpose of transferring this lease.
(2) Tenant shall have the right, without the consent of
Landlord, to assign its interest in this lease to a person acquiring, by
purchase or other transfer, all or substantially all of Tenant's assets provided
that (i) such purchase or other transfer is effected for legitimate business
purposes, and not primarily for the purpose of transferring this lease and (ii)
immediately after such assignment, the purchaser or other transferee, as the
case may be, together with the Guarantor, has a net worth computed in accordance
with generally accepted accounting principles consistently applied which is not
less the Minimum Net Worth.
(3) Within ten (10) after any deemed assignment or assignment
permitted by this Section 7.02(b) without Landlord's consent, Tenant (which, in
the event of a merger or consolidation involving Tenant, is the resulting
corporation, and, in the event of an assignment pursuant to Section 7.02, is the
purchaser or other transferee) shall furnish Landlord with (i) proof reasonably
satisfactory to Landlord that its net worth, together with the net worth of the
Guarantor, exceeds the Minimum Net Worth, and (ii) a written description of the
transaction and a duplicate original instrument of the assignment, or equivalent
instrument, effecting the assignment, or deemed assignment, of this lease, as
the case may be.
(4) The term "MINIMUM NET WORTH" shall mean (i) with respect
to any deemed assignment or assignment made during the initial term of this
lease, a net worth, computed in accordance with generally accepted accounting
principles, equal to eighteen (18) times the sum of the aggregate of the Fixed
Rent due and payable over the last twelve (12) months of the initial term of
this lease (computed without regard to any abatements, credits or offsets
applicable thereto and without regard to any expansion rights unexercised as of
the date of such assignment or deemed assignment), or (ii) with respect to any
deemed assignment or assignment made during any Renewal Term (as hereinafter
defined), a net worth, computed in accordance with generally accepted accounting
principles, equal to eighteen (18) times the sum of the aggregate of the Fixed
Rent due and payable over the last twelve (12) months of such Renewal Term
(computed without regard to any abatements, credits
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or offsets applicable thereto and without regard to any expansion rights
unexercised as of the date of such assignment or deemed assignment).
(c) (1) Notwithstanding anything to the contrary contained herein,
Tenant, without any need to obtain Landlord's consent, may sublet the whole or
any portion of the Premises to any person that, at the time of the making of
such sublease, is an Affiliate of Tenant, provided, that, at the time such
sublease is made, Tenant has no intention of effecting or permitting a transfer
of control of such Affiliate. Within ten (10) days of the commencement date of
any such sublease, Tenant shall furnish Landlord with a duplicate original
instrument thereof duly executed by Tenant and the subtenant.
(2) Notwithstanding anything to the contrary contained herein,
if any person purchases or otherwise acquires a VKM Business Unit (as
hereinafter defined), then Original Tenant, without any need to obtain
Landlord's consent, may sublet to such person all or any portion of the Premises
which, prior to such purchase or acquisition, was occupied, exclusively or
primarily, by such VKM Business Unit, provided, that (i) such VKM Business Unit
shall have been occupying space in the Premises for a period of at least one (1)
year prior to such purchase or other acquisition, (ii) such sublease shall be
made together with such purchase or other acquisition, and (iii) immediately
after such purchase or other acquisition, Original Tenant, together with the
Guarantor, shall have a net worth computed in accordance with generally accepted
accounting principles consistently applied which is not less the Minimum Net
Worth. The term "VKM BUSINESS UNIT" shall mean any discernable and on-going part
of the business which Original Tenant and/or Affiliates of Original Tenant
conduct at the Premises (whether or not organized as a separate legal entity). A
person shall be deemed to have purchased or otherwise acquired a VKM Business
Unit only if such person shall purchase or otherwise acquire all or
substantially all of the Tenant's Property used by such VKM Business Unit
immediately prior to such purchase or other acquisition and, immediately after
such purchase or other acquisition, shall employ, or seek to employ, all or
substantially all of the employees of such VKM Business Unit immediately prior
to such purchase or other acquisition. For purposes of this Section 7.02(c)(2),
a person which "purchases or otherwise acquires a VKM Business Unit" shall
include, without limitation, an Affiliate of Original Tenant (whether
pre-existing or newly formed) which acquires a VKM Business Unit, even in a case
where Original Tenant has an intention of effecting or permitting a transfer of
control of such Affiliate immediately after such acquisition. Within ten (10)
days of the commencement date of any such sublease, Original Tenant shall
furnish Landlord with a duplicate original instrument thereof duly executed by
Original Tenant and the subtenant.
(d) (1) The terms and provisions of Section 7.02(a) shall be deemed
to apply, mutatis mutandis, to any permitted subtenant of Tenant with respect to
the assignment or deemed assignment of such subtenant's sublease.
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(2) The terms and provisions or section 7.02(b) hereof shall
be deemed to apply, mutatis mutandis, to any permitted subtenant of Tenant with
respect to the assignment or deemed assignment of such subtenant's sublease,
except that the subtenant's assignee or deemed assignee need not comply with the
provisions thereof relating to net worth; provided, however, that such terms and
provisions shall not apply to permit any such assignment or deemed assignment,
if, immediately prior to such assignment or deemed assignment, the subtenant is
an Affiliate of Tenant, unless, immediately after such assignment or deemed
assignment, Tenant, together with the Guarantor, has a net worth computed in
accordance with generally accepted accounting principles consistently applied
which is not less the Minimum Net Worth.
(3) The terms and provisions of Section 7.02(c)(1) hereof shall apply,
mutatis mutandis, to any permitted subtenant of Tenant with respect to the
undersubletting of all or any part of the sublease premises to Affiliates of
such subtenant; provided, however, that such terms and provisions shall not
apply to any undersubletting by a subtenant that, at the time of the making of
such undersubletting, is an Affiliate of Tenant.
7.03. If this lease shall be assigned, whether or not in violation of the
provisions of this lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord shall apply the
net amount collected to the Fixed Rent and Additional Charges herein reserved,
but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of any of the provisions of Section 7.01, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
performance by Tenant of Tenant's obligations under this lease. The consent by
Landlord to a particular assignment, mortgaging, subletting or use or occupancy
by others shall not in any way be considered a consent by Landlord to any other
or further assignment, mortgaging or subletting or use or occupancy by others
not expressly permitted by this Article. References in this lease to use or
occupancy by others (that is, anyone other than Tenant) shall not be construed
as limited to subtenants and those claiming under or through subtenants but
shall also include licensees and others claiming under or through Tenant,
immediately or remotely.
7.04. Any assignment or transfer, whether made with Landlord's consent
pursuant to the provisions of this Article 7, or without the need of Landlord's
consent pursuant to this Article 7, shall be made only if, and shall not be
effective until, the assignee (which shall include any entity holding the
Tenant's interest following an event being treated as an assignment) shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord
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whereby the assignee shall assume the obligations of this lease on the part of
Tenant to be performed or observed (as of the effective date of the assignment
(or deemed assignment), or, in the case of an assignment (or deemed assignment)
permitted by Section 7.02 to be effected without the need of Landlord's consent,
as of the Commencement Date) and whereby the assignee shall agree that the
provisions in Article 7 shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers. Tenant covenants that, notwithstanding any assignment or transfer,
whether or not in violation of the provisions of this lease, and notwithstanding
the acceptance of Fixed Rent and/or Additional Charges by Landlord from an
assignee, transferee, or any other party, Tenant shall remain fully liable for
the payment of the Fixed Rent and Additional Charges and for the performance and
observance of other obligations of this lease on the part of Tenant to be
performed or observed.
7.05. The joint and several liability of Tenant and any 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.
Notwithstanding the foregoing, if this lease shall be assigned, then the
assignor Tenant shall not thereafter be liable with respect to any obligations
of Tenant that arise solely out of any modification of this lease effected after
the effective date of such assignment.
7.06. The listing of any name other than that of Tenant, whether on the
doors of the Premises or the Building directory, or otherwise, shall not operate
to vest any right or interest in this lease or in the Premises, nor shall it be
deemed to be the consent of Landlord to any assignment or deemed assignment of
this lease or to any sublease of the Premises or to the use or occupancy thereof
by others.
7.07. (a) Notwithstanding anything to the contrary contained in this
Article, if Tenant shall at any time or times during the term of this lease
desire to assign this lease or sublet all or part of the Premises (other than
(i) an assignment, or deemed assignment, pursuant to Section 7.02(b) for which
Landlord's consent is not required, (ii) a sublease pursuant to Section 7.02(c)
for which Landlord's consent is not required, or (iii) a Short-Term Sublease (as
hereinafter defined)), Tenant shall give notice thereof to Landlord, which
notice ("TENANT'S INITIAL NOTICE") shall contain all of the following terms and
conditions:
(1) in the case of a desired assignment, (i) the desired
effective date thereof (which shall not be not more than twelve (12)
months, after the date Landlord receives Tenant's Initial Notice), (ii)
the total amount of all sums
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and other consideration, if any, that Tenant in good faith, contemplates
receiving from a prospective third party assignee in consideration of such
assignment (assuming there will be no Excess Tenant Property Payments (as
hereinafter defined) in connection with such assignment), (iii) the nature
and amount of all tenant inducements (such as, by way of example only,
direct payments, work allowances and workletters), if any, that Tenant, in
good faith, contemplates being required to grant a prospective third party
assignee, and (iv) Tenant's reasonably detailed computation of the Net
Effective Assignment Price (as hereinafter defined) or the Net Effective
Assignment Payment (as hereinafter defined), as the case may be, for the
desired assignment set forth in such Tenant's Initial Notice; and
(2) in the case of a desired sublease, (i) the desired
commencement date of such desired sublease (it being agreed that such
desired commencement date shall not be more than twelve (12) months after
the date Landlord receives Tenant's Initial Notice), and the desired
expiration date of such desired sublease (it being agreed that no Tenant's
Initial Notice shall set forth or contemplate any renewal, extension,
termination or other options whereby the term of the desired sublease
could be shortened or lengthened), (ii) a description of the portion of
the Premises that Tenant desires to sublease, including a floor plan
delineating the same (it being agreed that no Tenant's Initial Notice
shall set forth or contemplate any expansion, contraction or other option
or provision whereby the space to be demised under the desired sublease
will or could be enlarged or reduced at anytime during the term of the
desired sublease), (iii) all rent, additional rent and other consideration
(including without limitation all rent and additional rent payable with
respect to taxes, operating expenses and other "pass-through" expenses,
including, if applicable, information as to base years or amounts, and
rent concessions) which Tenant, in good faith, contemplates receiving from
a prospective third party subtenant in respect of the desired sublease
(assuming there will be no Excess Tenant Property Payments in connection
with such desired sublease) (it being agreed that each Tenant's Initial
Notice shall set forth a fixed rent which is payable in equal monthly
amounts throughout the term of the desired sublease, except that, at
Tenant's option, a Tenant's Initial Notice may set forth a period, prior
to the first such monthly payment, during which such fixed rent would
abate), (iv) the nature and amount of all tenant inducements (such as, by
way of example only, direct payments, work allowances and workletters), if
any, that Tenant, in good faith, contemplates being required to offer a
prospective third party subtenant in respect of the desired sublease, and
(v) Tenant's reasonably detailed computation of the Net Effective Sublease
Rental (as hereinafter defined) for the desired sublease set forth in such
Tenant's Initial Notice (together, if applicable, with a statement setting
forth any assumptions made by Tenant in computing such Net Effective
Sublease Rental, including without limitation any assumptions made
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with respect to future taxes, operating expenses and other "pass-through"
expenses, all of which assumptions shall be reasonable).
As used herein, the following terms shall have the following meanings:
(A) The term "NET EFFECTIVE ASSIGNMENT PRICE" shall
mean, with respect to any desired assignment set forth in a Tenant's Initial
Notice or any proposed assignment set forth in a Tenant's Proposal Notice (as
hereinafter defined), the excess, if any, of (I) the net present value,
determined as of the effective date of the desired or proposed assignment using
a discount rate of 10% per annum, of all sums and other consideration to be paid
by the assignee in respect of the desired or proposed assignment (as well as, in
the case of any proposed assignment, any Excess Tenant Property Payments in
connection therewith), discounted from the date that any such payment(s) are to
be made under the desired or proposed assignment to the effective date of such
desired or proposed assignment, over (II) the net present value, determined as
of the effective date of the desired or proposed assignment using a discount
rate of 10% per annum, of all tenant inducements (such as, by way of example
only, direct payments, work allowances and workletters) to be paid or incurred
by assignor to assignee in respect of such desired or proposed assignment,
discounted from the date that such tenant inducements are to be paid or incurred
under the desired or proposed assignment to the effective date of such desired
or proposed assignment.
(B) The term "NET EFFECTIVE ASSIGNMENT PAYMENT" shall
mean, with respect to any desired assignment set forth in a Tenant's Initial
Notice or any proposed assignment set forth in a Tenant's Proposal Notice, the
excess, if any, of (I) the net present value, determined as of the effective
date of the desired or proposed assignment using a discount rate of 10% per
annum, of all tenant inducements (such as, by way of example only, direct
payments, work allowances and workletters) to be paid or incurred by assignor to
assignee in respect of such desired or proposed assignment, discounted from the
date that such tenant inducements are to be paid or incurred under the desired
or proposed assignment to the effective date of such desired or proposed
assignment, over (II) the net present value, determined as of the effective date
of the desired or proposed assignment using a discount rate of 10% per annum, of
the aggregate of all sums and other consideration to be paid by the assignee in
respect of the desired or proposed assignment (as well as, in the case of any
proposed assignment, any Excess Tenant Property Payments in connection
therewith), discounted from the date that any such payment(s) are to be made
under the desired or proposed assignment to the effective date of such desired
or proposed assignment.
(C) The term "NET EFFECTIVE SUBLEASE RENTAL" shall mean,
with respect to any desired sublease set forth in a Tenant's Initial Notice or
proposed sublease set forth in a Tenant's Proposal Notice, the monthly amount
per
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rentable square foot, equal to the quotient obtained by dividing (I) the
quotient obtained by dividing (i) the excess of (x) the net present value,
determined as of the commencement date of the desired or proposed sublease using
a discount rate of 10% per annum, of the aggregate of all rent, additional rent
and other consideration payable under the desired or proposed sublease (as well
as, in the case of a proposed sublease, any Excess Tenant Property Payments in
connection therewith), discounted from the dates that such payments are to be
made under the desired or proposed sublease to the commencement date of such
desired or proposed sublease, over (y) the net present value of all tenant
inducements (such as, by way of example only, direct payments, work allowances
and workletters) to be paid or incurred to the subtenant under the desired or
proposed sublease, discounted, using a discount rate of 10% per annum, from the
date that such tenant inducements are to be paid or incurred under the desired
or proposed sublease to the commencement date of such desired or proposed
sublease, by (ii) the number of calendar months (rounded to the nearest one-half
month) within the term of such desired or proposed sublease, by (II) the number
of rentable square feet in the area to be demised by such desired or proposed
sublease.
(b) Each Tenant's Initial Notice shall be deemed an offer from
Tenant to Landlord, whereby Landlord may, at its option, (i) terminate this
lease, in the case of (x) a desired assignment or (y) a desired sublease of an
area comprising 90% or more of the rentable area of the Premises, or (ii)
terminate this lease with respect to the desired sublease area, in the case of a
desired sublease. Said option(s) ("LANDLORD'S RECAPTURE OPTIONS") may be
exercised by Landlord by giving notice to Tenant at any time within the period
(the "OPTION PERIOD") of thirty (30) days after Landlord's receipt of Tenant's
Initial Notice.
(c) No Tenant's Initial Notice (or series of Tenant's Initial
Notices) shall contemplate a sublease (or series of subleases) which is (or are)
intentionally structured in a manner which is designed to frustrate Landlord's
rights hereunder with respect to its Recapture Options. Without limiting the
generality of the foregoing, if any Tenant's Initial Notice shall set forth a
desired sublease of less than all of the Premises located on any floor of the
Building, then each of the desired sublease premises and the remaining balance
of the Premises located on such floor shall consist solely of one or more
Rentable Blocks. The term "RENTABLE BLOCK" shall mean any contiguous block of
not less than 6,000 rentable square feet which, taking into account its size,
location and configuration, can be leased as office space to willing office
tenants in accordance with applicable laws and requirements of public
authorities.
(d) If, at the time it delivers Tenant's Initial Notice, Tenant is
then negotiating with any specific potential assignees or subtenants, then
Tenant shall set forth in Tenant's Initial Notice (A) the name and address of
each such potential assignee or subtenant, and (B) a reasonably detailed
description of the nature and
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character of the business of each such potential assignee or subtenant. In
addition, if a sublease, letter of intent or similar writing has theretofore
been executed (all of which writings must be conditioned upon both Landlord not
exercising any of its applicable Recapture Options and Landlord granting its
consent hereunder), then Tenant shall deliver a copy of the same to Landlord
with the Tenant's Initial Notice; and, if such a sublease, letter or similar
writing is thereafter executed prior to the end of the Option period, then
Tenant shall deliver a copy of the same to Landlord promptly after the same is
executed.
7.08. (a) If Landlord exercises Landlord's Recapture Option set forth in
Section 7.07(b)(i) to terminate this lease, then, this lease shall end and
expire on (i) in the case of desired assignment, the later to occur of (x) the
date which is six (6) months after the date that Landlord received the Tenant's
Initial Notice setting forth such desired assignment, and (y) the effective date
of the desired assignment set forth in such Tenant's Initial Notice, or (ii) in
the case of a desired sublease, the later to occur of (A) the date which is six
(6) months after the date that Landlord received the Tenant's Initial Notice
setting forth such desired sublease, and (B) the commencement date of the
desired sublease set forth in such Tenant's Initial Notice; and, in each such
case, the Fixed Rent and Additional Charges shall be paid and apportioned to the
date of such termination.
(b) If Landlord exercises its Recapture Option set forth in Section
7.07(b)(ii) to terminate this lease with respect to the desired sublease area
set forth in a Tenant's Initial Notice, then (i) this lease shall end and expire
with respect to such desired sublease area on the later to occur of (A) the date
which is six (6) months after the date that Landlord received such Tenant's
Initial Notice, and (B) the commencement date of the desired sublease as set
forth in such Tenant's Initial Notice (any such area being hereinafter referred
to as "RECAPTURED SPACE"), (ii) from and after such date the Fixed Rent and
Additional Charges shall be adjusted, based upon the proportion that the
rentable area of the Premises remaining after the deletion of the Recaptured
Space bears to the total rentable area of the Premises prior to the deletion of
the Recaptured Space, and (iii) Landlord shall physically separate the
Recaptured Space from the balance of the Premises and in comply with any laws
and requirements of any public authorities relating to such separation, and
Tenant, thereafter upon demand, shall pay to Landlord, as Additional Charges
hereunder, an amount equal to one-half (1/2) the actual out-of-pocket costs
incurred by Landlord in physically separating such Recaptured Space from the
balance of the Premises, and in complying with any laws and requirements of any
public authorities relating to such separation.
(c) If (i) any Recaptured Space constitutes less than the entire
rentable area on any floor of the Building, and portions of the Premises remain
on such floor, and (ii) Landlord thereafter leases such Recaptured Space to one
or more tenants, then Tenant, as applicable, shall (x) in any case where the
Recaptured Space
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is not appurtenant to the Building's passenger elevator lobby located on such
floor or the Building's freight elevator lobby located on such floor, provide
such tenants of Landlord with ingress and egress to and from such passenger and
freight elevator lobbies, and (y) in all cases, provide such tenants with
ingress and egress to and from, and with the use of, the Core Lavatories located
on such floor.
7.09. (a) If, in any case that Landlord has received a Tenant's Initial
Notice and Landlord has not exercised any of its Recapture Options within the
Option Period, Tenant, thereafter, continues to desire to assign this lease or
to sublease all or a portion of the Premises as set forth in such Tenant's
Initial Notice, then Tenant, no later than the Post-Option Submission Deadline
Date (as hereinafter defined) with respect to such Tenant's Initial Notice, may
submit to Landlord one or more Tenant's Proposal Notices (as hereinafter
defined), each describing either a proposed assignment (in any case that the
Tenant's Initial Notice set forth a desired assignment) or a proposed sublease
(in any case that the Tenant's Initial Notice set forth a desired sublease). As
used herein, the term "POST-OPTION SUBMISSION DEADLINE DATE", with respect to
any Tenant's Initial Notice, shall be the date that is one hundred twenty (120)
days after the effective date of the desired assignment set forth in such
Tenant's Initial Notice or the commencement date of the desired sublease set
forth in such Tenant's Initial Notice, as the case may be.
(b) In any case that Tenant desires to enter into a Short-Term
Sublease (and, accordingly, Tenant is not obligated under Section 7.07 hereof to
submit a Tenant's Initial Notice), Tenant (without first submitting a Tenant's
Initial Notice) may submit to Landlord a Tenant's Proposal Notice describing a
proposed Short-Term Sublease. The term "SHORT-TERM SUBLEASE" shall mean a
sublease which will expire prior to the date that is thirty-six (36) months
prior to the Expiration Date (as of the execution of such sublease); it being
understood that a Short-Term Sublease may include one or more renewal or
extension options, provided, that, in the event that all such renewal and
extension options are exercised, such sublease will still expire prior to the
date that is thirty-six (36) months prior to the Expiration Date (as of the
execution of such sublease).
(c) A "TENANT'S PROPOSAL NOTICE" shall be a notice from Tenant to
Landlord setting forth a proposed assignment or sublease and requesting
Landlord's consent thereto, which notice shall have rendered pursuant to either
Section 7.09(a) or Section 7.09(b) above, and shall comply with all the
provisions of this Section 7.09. Each Tenant's Proposal Notice shall set forth
(i) the name and address of the proposed assignee or subtenant, (ii) the
effective date of the proposed assignment or the commencement date and
expiration date of the proposed sublease (it being agreed that no proposed
sublease, other than a proposed Short-Term Sublease, set forth in a Tenant's
Proposal Notice shall set forth or contemplate any renewal, extension,
termination or other option whereby the term of the proposed sublease could be
shortened or lengthened), (iii) in the case of a proposed sublease, a
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description of the portion of the Premises to be sublet (including a floor plan)
and its proposed use (it being agreed that no proposed sublease, other than a
proposed Short-Term Sublease, set forth in a Tenant's Proposal Notice shall set
forth or contemplate any expansion, contraction or other option or provision
whereby the space to be demised under the proposed sublease will or could be
enlarged or reduced at anytime during the term of the proposed sublease), (iv)
the economic terms of the proposed assignment or sublease, which shall include
(x) in the case of a proposed assignment, the sums and other consideration, if
any, payable to Tenant in respect of the assignment, and the nature and amount
of all tenant inducements to be paid or incurred to the proposed assignee (and,
if applicable, any Excess Tenant Property Payments payable in connection with
such proposed assignment), and (y) in the case of a proposed sublease, all rent,
additional rent and other consideration (including without limitation all rent
and additional rent with respect to taxes, operating expenses and other
"pass-through" expenses, including, if applicable, information as to base years
or amounts and rent concessions) payable to Tenant under the proposed sublease,
and the nature and amount of all tenant inducements to be paid or incurred to
the proposed subtenant (and, if applicable, any Excess Tenant Property Payments
payable in connection with such proposed sublease). Each Tenant's Proposal
Notice shall be accompanied by (A) a conformed or photostatic executed copy of
the proposed assignment or sublease (the effectiveness or commencement of which
shall be expressly conditioned upon Landlord granting its consent to the
proposed assignment or sublease in accordance with this Article 7 (which express
condition of Landlord's consent, with respect to any proposed assignment or
sublease, is herein called the "CONSENT CONDITION")), (B) a reasonably detailed
description of the nature and character of the business of the proposed
subtenant or assignee, and reasonably detailed character references for such
proposed assignee or subtenant, and (C) with respect to any assignment,
reasonably detailed financial references with respect to the proposed assignee
and current financial information with respect to the proposed assignee,
including, without limitation, its most recent balance sheet and income
statements certified by its chief financial officer, or, if available, a
certified public accountant, to the extent available to Tenant. Each Tenant's
Proposal Notice shall expressly request Landlord's consent to the proposed
assignment or sublease set forth therein and shall include, on the first page
thereof, in capital letters the following legend: AS MORE FULLY SET FORTH IN
SECTION 7.10 OF THE LEASE, LANDLORD'S FAILURE TO RESPOND TO THIS NOTICE WITHIN
FIFTEEN (15) BUSINESS DAYS OF ITS SUBMISSION TO LANDLORD MAY RESULT IN LANDLORD
BEING DEEMED TO HAVE CONSENTED TO THE PROPOSED ASSIGNMENT OR SUBLEASE DESCRIBED
HEREIN.
(d) Each Tenant's Proposal Notice that is submitted pursuant to
Section 7.09(a) prior to the Post-Option Submission Deadline Date, shall also
include Tenant's reasonably detailed computation of the Net Effective Assignment
Price or Net Effective Assignment Payment, as applicable, with respect to the
proposed
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assignment set forth in such Tenant's Proposal Notice, or the Net Effective
Sublease Rental with respect to the proposed sublease set forth in such Tenant's
Proposal Notice (which Net Effective Sublease Rental shall be computed using the
same assumptions as were reasonably set forth in the applicable Tenant's Initial
Notice with respect to the desired sublease set forth therein). It shall be
condition precedent to Tenant's right to proceed with the proposed assignment or
proposed sublease set forth in any such Tenant's Proposal Notice that such
proposed assignment or sublease satisfy the following conditions:
(i) (x) the effective date of any such proposed assignment (it
being agreed that, for purposes of determining such effective date, the
Consent Condition with respect to such assignment shall be deemed
satisfied on the date Landlord receives Tenant's Proposal Notice) shall be
no more than one hundred twenty (120) days before or after the effective
date of the desired assignment set forth in the applicable Tenant's
Initial Notice, and (y) the commencement date of any proposed sublease (it
being agreed that, for purposes of determining such commencement date, the
Consent Condition with respect to such sublease shall be deemed satisfied
on the date Landlord receives Tenant's Proposal Notice) shall be no more
than one hundred twenty (120) days before or after the commencement date
of the desired sublease set forth in the applicable Tenant's Initial
Notice;
(ii) in the case of a proposed sublease, the space proposed to
be sublet shall not be materially different in size (i.e., larger or
smaller by more than 5%), and, except for the foregoing size differential,
shall not be in a different location, than the desired sublease area set
forth in the applicable Tenant's Initial Notice;
(iii) in the case of a proposed sublease, the expiration date
of the sublease term shall not be materially earlier or later (i.e.,
earlier or later by more than (x) three (3) months, if the sublease term
of such proposed sublease is five (5) years or less, or (y) six (6)
months, if the sublease term of such proposed sublease is longer than five
(5) years) than the desired expiration date set forth in the applicable
Tenant's Initial Notice; and
(iv) (x) in the case of a proposed sublease, the Net Effective
Sublease Rental of the proposed sublease shall be equal to or greater than
95% of the Net Effective Sublease Rental of the desired sublease set forth
in the Tenant's Initial Notice, or (y) in the case of a proposed
assignment, either (1) both such proposed assignment and the desired
assignment set forth in the applicable Tenant's initial Notice shall
reflect a Net Effective Assignment Price and the Net Effective Assignment
Price of such proposed assignment shall be equal to or greater than 95% of
the Net Effective Assignment Price of such desired assignment, or (2) both
such proposed assignment and the desired
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assignment set forth in the applicable Tenant's initial Notice shall
reflect a Net Effective Assignment Payment and the Net Effective
Assignment Payment of such proposed assignment shall be equal to or less
than 105% of the Net Effective Assignment Payment of such desired
assignment, or (3) neither such proposed assignment nor the desired
assignment set forth in the applicable Tenant's Initial Notice shall
reflect a Net Effective Assignment Price or a Net Effective Assignment
Payment.
In any case that a proposed assignment or sublease does not meet the foregoing
conditions, Tenant shall not have the right to render a Tenant's Proposal Notice
with respect thereto, and any purported Tenant's Proposal Notice rendered
pursuant thereto shall be null and void and Landlord need not consider the same.
(e) If, in any case where a Tenant's Initial Notice is required
under Section 7.07 and delivered in accordance therewith, (i) Landlord fails to
exercise any of its Recapture Options under Section 7.07, and (ii) Tenant fails
to submit a complying Tenant's Proposal Notice on or before the Post-Option
Submission Deadline Date, then Tenant shall again comply with all of the
provisions and conditions of Section 7.07, if applicable, before assigning this
lease or subletting all or part of the Premises.
7.10. If Tenant shall have complied with the provisions of Sections 7.07,
if applicable, and Tenant shall have submitted a Tenant's Proposal Notice in
accordance, and shall have otherwise complied, with Section 7.09, then
Landlord's consent to the proposed assignment or sublease set forth in a
Tenant's Proposal Notice shall not be unreasonably withheld, provided and upon
condition that:
(a) the proposed assignee or subtenant is engaged in a business
which is in keeping with the then standards of the Building;
(b) the proposed assignee or subtenant is a reputable person or
entity in keeping with the then standards of the Building;
(c) the proposed assignee or subtenant (or any person or entity
which, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or subtenant) shall not then be
an occupant of any part of the Building; provided, however, that this
clause (c) shall not apply to a proposed subtenant that, at the time
Landlord receives the Tenant's Proposal Notice, is an existing subtenant
of Tenant and is not an existing direct tenant of Landlord;
(d) the proposed assignee or subtenant (or any person or entity
which, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or subtenant) shall not be a
person or
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entity with whom Landlord has, within the six (6) month period prior to
Landlord's receipt of Tenant's Proposal Notice, been actively negotiating
to lease space in the Building (as used herein the term "ACTIVELY
NEGOTIATING" shall mean Landlord has either sent to a specific prospective
subtenant (or its designated agent), or received from a specific subtenant
(or its designated agent), a written proposal to lease space in the
Building, which proposal shall contain the financial terms of the proposed
lease and indicate the approximate square footage of the space to be
demised by such proposed lease);
(e) in the case of a proposed assignment, the proposed assignee
shall have a net worth computed in accordance with generally accepted
accounting principles equal to or greater than the Minimum Net Worth;
(f) there shall not be more than five (5) Premises Occupants (as
hereinafter defined) on any floor of the Building on which the Premises
are located (which number "five (5)" shall be pro-rated on a rentable
square foot basis, and rounded to the nearest whole number, for floors on
which the Premises do consist of the entire leasable area on such floor
(as used herein, the term "PREMISES OCCUPANT" shall mean any occupant of
the Premises, including Tenant, any subtenant and any undersubtenant (but
excluding (i) the In-House Computer Contractor (as hereinafter defined) if
such contractor only subleases space in the Premises not separated by
demising walls from the balance of the Premises, and (ii) any Affiliate of
Tenant which only subleases space in the Premises that is not separated by
demising walls from the balance of the Premises));
(g) in the case of a proposed sublease, if the area to be demised
thereby consists of less than the entire rentable area of a floor of the
Building, then each of such area and the remaining balance of the Premises
on such floor shall consist of one or more Rentable Blocks; and
(h) Tenant shall reimburse Landlord on demand for any out-of-pocket
costs incurred by Landlord in connection with said assignment or sublease,
including, without limitation, the costs of making investigations as to
the acceptability of the proposed assignee or subtenant, and reasonable
legal costs incurred in connection with the granting of any requested
consent; and
(i) Tenant shall have complied with all the provisions of this
Article 7 (including without limitation Article 7.11), and no Event of
Default shall then exist hereunder.
Provided Tenant shall have complied with the provisions of Section 7.07, if
applicable and shall have submitted a Tenant's Proposal Notice in accordance
with, and shall have otherwise complied with, Section 7.09, Landlord shall give
(or withhold) its
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consent to a proposed assignment or sublease within fifteen (15) Business Days
after the submission to Landlord of the Tenant's Proposal Notice setting forth
the same (if such consent is not given or withheld within such fifteen (15)
Business Day period, the same shall be deemed given).
7.11. (a) For purposes of this Section 7.11 and Section 7.12, the
following definitions shall apply:
(1) "ASSIGNMENT CONSIDERATION", with respect to any
assignment, shall mean the sum of (i) any and all sums and other consideration
actually paid to Assignor (whether before, upon or after the assignment) by the
Assignee for or by reason of such assignment (including without limitation any
amounts paid in respect of the sale or transfer of any Tenant's Improvements),
and (ii) any Excess Tenant Property Payments in connection with such assignment.
"ASSIGNOR" shall mean the Tenant prior to the assignment.
(2) "SUBLEASE CONSIDERATION", with respect to any sublease for
any calendar year, shall mean the sum of (i) any and all rents, additional
charges or other consideration actually paid to Tenant by the subtenant pursuant
to such sublease or in respect thereof (including without limitation any amounts
paid for the sale or other transfer of any Tenant's Improvements) during such
calendar year, and (ii) any Excess Tenant Property Payments in connection with
such sublease for such calendar year.
(3) "SUBLEASE PROFIT", with respect to any sublease for any
calendar year, shall mean the positive excess, if any, of (i) the Sublease
Consideration with respect to such sublease for such calendar year, over (ii)
the Fixed Rent and Additional Charges accruing hereunder during such calendar
year (or, if applicable, the portion of such calendar year which is within the
term of such sublease) in respect of the sublease premises (determined on a
pro-rated rentable square foot basis) pursuant to the terms hereof.
(4) "SUBLEASE LOSS", with respect to any sublease for any
calendar year, shall mean the positive excess, if any, of (i) the Fixed Rent and
Additional Charges accruing hereunder during such calendar year (or, if
applicable, the portion of such calendar year which is within the term of such
sublease) in respect of the sublease premises (determined on a pro-rated
rentable square foot basis) pursuant to the terms hereof, over (ii) the Sublease
Consideration with respect to such sublease for such calendar year.
(5) "TRANSACTION EXPENSES", with respect to any assignment or
sublease, shall mean the sum of the customary brokerage commissions actually
paid or incurred by Assignor or Tenant in connection therewith, as well as any
amount paid to Landlord pursuant to Section 7.10(h) hereof.
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(6) "TENANT INDUCEMENTS", with respect to any assignment or
sublease, shall mean the sum of all tenant inducements (by way of example only,
direct payments, work allowances and workletters) paid or incurred to the
assignee or the subtenant in connection therewith (and, in the case of any such
tenant inducement not paid in cash, shall refer to the dollar value thereof).
(7) "EXCESS TENANT PROPERTY PAYMENTS", shall mean (i) in
connection with any assignment (or, if applicable, any desired or proposed
assignment), the positive excess, if any, of (A) the aggregate of all sums paid
for the sale or rental of Tenant's Property by the assignee under such
assignment (or, if applicable, such desired or proposed assignment), over (B)
the then (as of the date of the assignment) net unamortized or undepreciated
cost thereof (as set forth on Tenant's federal income tax return for the year of
the assignment), or (ii) in connection with any sublease (or, if applicable, any
desired or proposed sublease) for any calendar year, shall mean the positive
excess, if any, of (A) the aggregate of all sums paid for the sale or rental of
Tenant's Property during such calendar year by the subtenant under such sublease
(or, if applicable, such desired or proposed sublease), over (B) the portion of
the cost thereof amortized or depreciated during such calendar year (as set
forth on Tenant's federal income tax return for such calendar year), or, for any
calendar year that is partly within and partly without the term of the sublease,
a pro-rated portion thereof.
(8) "COLLECTION EXPENSES", with respect to any assignment or
sublease, shall mean the costs paid or incurred by Tenant or Assignor with
respect to such assignment or sublease, as the case may be, pursuant to the
provisions of Section 7.11(d)(1) hereof.
(b) If Landlord shall consent to any assignment of this lease, then,
in consideration therefor, Assignor, within ten (10) days after Assignor's
receipt of any Assignment Consideration, shall (i) deliver to Landlord a written
statement, certified by an officer of Assignor, setting forth, in reasonable
detail, the Assignment Consideration theretofore received and the Tenant
Inducements and Transaction Expenses theretofore paid or incurred by Assignor
with respect to such assignment, and (ii) retain such Assignment Consideration
or pay the same to Landlord in accordance with the following:
first, such Assignment Consideration shall be retained by Assignor
to the extent of the sum of (x) all Tenant Inducements theretofore paid or
incurred by Assignor with respect to such assignment, plus (y) all
Transaction Expenses theretofore paid or incurred by Assignor with respect
to such assignment, plus (z) all Collection Expenses theretofore paid or
incurred by Assignor with respect to such assignment (except to the extent
that amounts were previously retained by Assignor pursuant to this clause
first with respect to such assignment); and
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second, with respect to the balance of such Assignment
Consideration, (x) fifty percent (50%) shall be retained by Assignor, and
(y) fifty percent (50%) shall be paid to Landlord.
Tenant and Assignor shall be and remain jointly and severally liable for all
amounts due under this Section 7.11(b), and, in the case of Tenant, the all such
amounts due shall be due as Additional Charges hereunder.
(c) If Landlord shall consent to any sublease of all or any portion
of the Premises, then, in consideration therefor, Tenant, within thirty (30)
days after the close of each calendar year during the term of this lease in
which such sublease is in effect, shall (i) deliver to Landlord a written
statement, certified by an officer of Tenant, setting forth, in reasonable
detail, the Sublease Consideration and the Sublease Profit, if any, with respect
to such sublease for such calendar year, and the Tenant Inducements and
Transaction Expenses with respect to such sublease, and (ii) retain such
Sublease Profit or pay the same to Landlord in accordance with the following:
first, such Sublease Profit shall be retained by Tenant to the
extent of the sum of (w) all Tenant Inducements theretofore paid or
incurred by Tenant with respect to such sublease, plus (x) all Transaction
Expenses theretofore paid or incurred by Tenant with respect to such
sublease, plus (y) all Collection Expenses theretofore paid or incurred by
Tenant with respect to such sublease, plus (z) any Sublease Losses for
prior calendar years with respect to such sublease (except to the extent
that amounts were retained by Tenant for previous calendar years pursuant
to this clause first with respect to such sublease); and
second, with respect to the balance of such Sublease Profit, (x)
fifty percent (50%) shall be retained by Tenant, and (y) fifty percent
(50%) shall be paid to Landlord.
(d) (1) Tenant covenants to make all commercially reasonable efforts
to collect from its assignee or subtenants, as the case may be, any amounts
which would comprise Assignment Consideration or Sublease Consideration,
respectively; provided, however, that (i) Tenant may compromise or settle any
claim in good faith, (ii) Tenant shall not be required to commence or continue
such efforts if Tenant reasonably believes that the amount and likelihood of
recovery does not justify the costs and risks of commencing or continuing such
efforts, and (iii) this Section 7.11(d) (1) shall not be deemed to restrict
Tenant's rights to terminate a sublease, in whole or in part, as set forth in
Section 7.14 hereof.
(2) Tenant, from time to time within forty-five (45) days of a
request therefor by Landlord, shall (i) provide Landlord with an accounting of
all
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such sums paid or payable to it as either Assignment Consideration or Sublease
Consideration (which accounting shall set forth any past-due amounts), as well
as any amounts paid or payable by it as Tenant Inducements or Transaction
Expenses, and (ii) permit Landlord, at reasonable times during Business Hours,
to inspect Tenant's books and records in respect of Assignment Consideration,
Sublease Consideration, Tenant Inducements, Transaction Expenses and Collection
Expenses.
7.12. (a) For purposes of this Section 7.12, the following definitions
shall apply:
(1) "CONTEMPLATED ASSIGNMENT" shall mean any desired
assignment set forth in a Tenant's Initial Notice, if, with respect to such
desired assignment and Tenant's Initial Notice, Landlord exercises its Recapture
Option set forth in Section 7.07(b) (i).
(2) "CONTEMPLATED ASSIGNMENT CONSIDERATION PV AMOUNT", with
respect to any Contemplated Assignment, shall mean the present value, determined
as of the effective date of such Contemplated Assignment using a discount rate
of 10% per annum, of all Assignment Consideration that would have been paid
pursuant to such Contemplated Assignment; assuming that (i) the Contemplated
Assignment had been consummated as contemplated in the applicable Tenant's
Initial Notice, and (ii) all such Assignment Consideration that would have been
payable thereunder had been paid as and when due (except that any such
Assignment Consideration that would have been payable prior to the effective
date of the Contemplated Assignment shall be deemed payable on such effective
date).
(3) "CONTEMPLATED SUBLEASE" shall mean any desired sublease
set forth in a Tenant's Initial Notice (but only as to the initial term
thereof), if, with respect to such desired sublease and Tenant's Initial Notice,
Landlord exercises any of its Recapture Options set forth in Section 7.07(b).
(4) "CONTEMPLATED SUBLEASE CONSIDERATION PV AMOUNT", with
respect to any Contemplated Sublease, shall mean the present value, determined
as of the commencement date of such Contemplated Sublease using a discount rate
of 10% per annum, of all the Sublease Consideration that would have been paid
pursuant to such Contemplated Sublease for the entire term of such Contemplated
Sublease; assuming that (i) such Contemplated Sublease had been consummated as
contemplated in the applicable Tenant's Initial Notice and that all such
Sublease Consideration that would have been payable thereunder had been paid as
and when contemplated (except that any such Sublease Consideration that would
have been payable prior to the commencement date of the Contemplated Sublease
shall be deemed payable on such commencement date), and (ii) Taxes for the Tax
Year in which the commencement date of the Contemplated Sublease occurs and each
Tax Year thereafter shall be an amount equal to the Taxes as reflected on the
then most
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recent real estate tax bill(s) for the Real Property, and (iii) Operating
Expenses for the Operating Year in which the commencement date of the
Contemplated Sublease occurs and each Operating Year thereafter shall be an
amount equal to Operating Expenses as reflected in last Operating Statement
issued by Landlord.
(5) "CONTEMPLATED LEASE RENT PV AMOUNT", with respect to any
Contemplated Sublease, shall mean the present value, determined as of the
commencement date of such Contemplated Sublease using a discount rate of 10% per
annum, of all the Fixed Rent and Additional Charges which, but for the
termination of this lease in respect of the premises contemplated to be demised
by such Contemplated Sublease, would have accrued and payable hereunder during
entire term of the Contemplated Sublease in respect of the premises contemplated
to be demised by the Contemplated Sublease (determined on a pro-rated rentable
square foot basis); assuming that (i) all such Fixed Rent and Additional Charges
would have been payable as and when herein provided, and (ii) Taxes for the Tax
Year in which the commencement date of the Contemplated Sublease occurs and each
Tax Year thereafter shall be an amount equal to the Taxes as reflected on the
then most recent real estate tax bill(s) for the Real Property, and (iii)
Operating Expenses for the Operating Year in which the commencement date of the
Contemplated Sublease occurs and each Operating Year thereafter shall be an
amount equal to Operating Expenses as reflected in last Operating Statement
issued by Landlord.
(6) "CONTEMPLATED TENANT INDUCEMENT PV AMOUNT", with respect
to any Contemplated Assignment or Contemplated Sublease, shall mean the present
value, determined as of the effective date of such Contemplated Assignment using
a discount rate of 10% per annum, of all Tenant Inducements which would have
been paid or incurred to the assignee or the subtenant in connection therewith;
assuming that the Contemplated Assignment or Contemplated Sublease had been
consummated as contemplated in the applicable Tenant's Initial Notice and that
all such Tenant Inducements that would have been payable or incurrable
thereunder had been paid or incurred as and when due.
(7) "CONTEMPLATED BROKERAGE EXPENSES", with respect to any
Contemplated Assignment or Contemplated Sublease, shall mean the customary
brokerage commissions which would have been payable by Tenant in connection
therewith (assuming that the Contemplated Assignment or Contemplated Sublease
was consummated as provided in the applicable Tenant's Initial Notice); it being
further agreed that, for purposes of this Section 7.12, the Contemplated
Brokerage Expenses for any Contemplated Assignment or Contemplated Sublease, as
the case may be, shall be deemed incurred on effective date of the Contemplated
Assignment or the commencement date of the Contemplated Sublease, as the case
may be.
(b) If Landlord shall exercise its Recapture Option set forth in
Section 7.07(b)(i) hereof in respect of a desired assignment set forth in any
Tenant's Initial
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Notice, and, as a result thereof, this lease shall be terminated as provided in
Section 7.08(a) hereof, then, with respect to the Contemplated Assignment
resulting from such exercise, Tenant, on or prior to the date of such
termination, shall pay to Landlord an amount equal to the positive excess, if
any, of (1) the sum of (i) an amount equal to the Contemplated Brokerage
Expenses with respect to such Contemplated Assignment, plus (ii) an amount equal
to the Contemplated Tenant Inducement PV Amount with respect to such
Contemplated Assignment, over (2) an amount equal to the Contemplated Assignment
Consideration PV Amount with respect to such Contemplated Assignment.
(c) If either (i) Landlord shall exercise its Recapture Option set
forth in Section 7.07(b)(i) hereof in respect of a desired sublease set forth in
any Tenant's Notice, and, as a result thereof, this lease shall be terminated
pursuant to Section 7.08(a) hereof, or (ii) Landlord shall exercise its
Recapture Option set forth in Section 7.07(b)(ii) hereof in respect of a desired
sublease set forth in any Tenant's Notice, and, as a result thereof, this lease
shall be terminated with respect to Recaptured Space pursuant to the provisions
of Section 7.08(b) hereof, then, with respect to the contemplated Sublease
resulting from each such termination, Tenant, on or prior to the date of such
termination, shall pay to Landlord an amount equal to the positive excess, if
any, of (1) the sum of (x) an amount equal to the Contemplated Brokerage
Expenses with respect to such Contemplated Sublease, plus (y) an amount equal to
the Contemplated Tenant Inducement PV Amount with respect to such Contemplated
Sublease, plus (z) an amount equal to the Contemplated Lease Rent PV Amount with
respect to such Contemplated Sublease, over (2) an amount equal to the
Contemplated Sublease Consideration PV Amount with respect to such Contemplated
Sublease.
(d) The payment of obligations of Tenant under this Section 7.12
shall survive the termination of this lease (in whole or in part).
7.13. With respect to each and every sublease or subletting under this
lease (including any sublease to which Landlord has consented and any sublease
entered into pursuant to Section 7.02(c) hereof), it is further agreed as
follows:
(a) No subletting shall be for a sublease term ending later than one
day prior to the Expiration Date.
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
such sublease has been delivered to Landlord.
(c) Each sublease shall provide that it is subject and subordinate
to this lease and to any matters to which this lease is or shall be subordinate,
and that in the event of termination, reentry or dispossess by Landlord under
this lease
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Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that Landlord shall not be (1) liable for any previous
act or omission of Tenant under such sublease, (2) subject to any credit,
offset, claim, counterclaim, demand or defense which such subtenant may have
against Tenant, (3) bound by any previous prepayment of more than one (1)
month's rent, (4) required to account for any security deposit of the subtenant
other than any security deposit actually delivered to Landlord by Tenant, or (5)
required to remove any person occupying the Premises or any part thereof.
(d) (1) Each sublease shall provide that, except as may be
contemplated in subsections (2) and (3) of this Section 7.13(d), the subtenant
may not assign its rights thereunder or undersublet the space demised under the
sublease, in whole or in part, without Landlord's consent, and shall set forth
the terms and provisions of Section 7.02(a) hereof, mutatis mutandis, with
respect to the assignment or deemed assignment of such sublease.
(2) Each sublease may set forth the terms and provisions of
Section 7.02(b) hereof, mutatis mutandis, with respect to the assignment or
deemed assignment of such sublease, except that the subtenant's assignee or
deemed assignee need not comply with the provisions thereof relating to net
worth; provided, however, that each such sublease shall expressly provide that
such terms and provisions shall not apply to permit any such assignment or
deemed assignment, if, immediately prior to such assignment or deemed
assignment, the subtenant is an Affiliate of Tenant, unless, immediately after
such assignment or deemed assignment, Tenant has a net worth computed in
accordance with generally accepted accounting principles consistently applied
which is not less the Minimum Net Worth.
(3) Each sublease may set forth the terms and provisions of
Section 7.02(c)(1) hereof, mutatis mutandis, with respect to the undersubletting
by the subtenant of all or any part of the sublease premises to Affiliates of
such subtenant; provided, however, that each such sublease shall expressly
provide that such terms and provisions shall not apply to any undersubletting by
a subtenant that, at the time of the making of such undersubletting, is an
Affiliate of Tenant.
7.14. Tenant, without Landlord's consent (and without submitting any
Tenant's Initial Notice or Tenant's Proposal Notice), may modify, amend or
terminate, in whole or in part, any sublease; provided, however, that (a) no
such modification or amendment of any sublease (other than a sublease which, at
the time of such modification or amendment, is to an Affiliate of Tenant), shall
either (i) extend the term of the sublease (other than an extension of the term
of a Short-Term Sublease pursuant to any option or other provision set forth in
the original form of such sublease, it being understood that such provision need
not be implemented
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precisely in accordance with its terms, so long as the commencement and
expiration of the pertinent renewal term and the rent payable during such
renewal term are the same as each would have been had such provision been
implemented precisely in accordance with its terms), (ii) expand the premises
demised by the sublease (other than an expansion of the premises demised by a
Short-Term Sublease pursuant to any option or other provision set forth in the
original form of such sublease, it being understood that such provision need not
be implemented precisely in accordance with its terms, so long as the space
added to the premises demised by such sublease is the same and the per annum
rent payable therefor are the same as each would have been had such provision
been implemented precisely in accordance with its terms), or (iii) decrease the
rent payable under the sublease (other than a proportional decrease in rent
resulting from a partial termination of the sublease), (b) no such modification
or amendment of any sublease shall cause the sublease not to comply with any of
the provisions of Sections 7.13, 7.15 and 7.16 hereof, and (c) no such
modification, amendment or termination shall be valid until an executed
counterpart thereof has been delivered to Landlord, together with, in the case
of a termination, a certificate, signed by an officer of Tenant at or above the
level of Vice President (or, if Tenant is then a partnership, a partner of
Tenant), indicating that the termination was not contemplated at the time the
sublease was executed.
7.15. Each subletting shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this lease.
Notwithstanding any subletting to any subtenant and/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 Charges due and to
become due hereunder and for the performance of all 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 licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this lease, and any such violation shall be deemed to
be a violation by Tenant.
7.16. (a) Tenant agrees that, notwithstanding any subletting by Tenant
pursuant to this Article 7, (i) no other subletting of the Premises (or any
portion thereof) shall be made by Tenant, except in accordance with this Article
7, and (ii) except as contemplated by subsections (2) and (3) of Section
7.13(d), no undersubletting of any part of the Premises shall be made by any
subtenant, and no subtenant shall assign its sublease, without Landlord's
consent.
(b) (1) If Tenant, on behalf of any subtenant under a Qualified
Sublease (as hereinafter defined), other than a subtenant that, at the time of
the request pursuant to this Section 7.16(b), is an Affiliate of Tenant, shall
request Landlord's consent to any proposed assignment of such sublease or to a
proposed undersubletting of all or a portion of the sublease premises demised
thereby, then, provided that Tenant and such subtenant shall have previously
complied with the
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provisions of such sublease described in Section 7.16(b)(3)(C) below and
provided that such request is made pursuant to a notice substantially in the
form of a Tenant's Proposal Notice as described in Section 7.09, Landlord's
consent, subject to the conditions set forth in Section 7.10, applied mutatis
mutandis, shall not be unreasonably withheld. The provisions of Sections 7.07,
7.08, 7.09 (other than subsection (c) thereof), 7.11 (except as provided below)
and 7.12 shall not apply to any such assignment of a sublease or to any such
undersubletting.
(2) With respect to (i) any sublease other than a Qualified
Sublease, and (ii) any sublease to an Affiliate of Tenant, Landlord,
notwithstanding anything herein to the contrary, shall have no obligation to
consent to any assignment of any such sublease or to any undersubletting of the
sublease premises demised thereby, or to be reasonable in any such regard.
(3) As used herein, the term "QUALIFIED SUBLEASE" shall mean
any sublease which (A) demises an area in excess of 16,350 rentable square feet,
(B) has an initial term of five (5) years or more (it being agreed that, for
purposes of this clause (B) only, the "initial term" of a sublease shall be the
initial term thereof, excluding any period within such initial term during which
the subtenant under such sublease is an Affiliate of Tenant), (C) provides that
if the subtenant under such sublease shall desire to assign its sublease or
undersublease the whole or any portion of its sublease premises (other than as
contemplated in subsections (2) and (3) of Section 7.13(d)), then Tenant and the
subtenant shall jointly notify Landlord of the subtenant's desire, which
notification shall be given prior to the subtenant either marketing its sublease
for assignment or its sublease premises or any part thereof for undersubletting,
or otherwise considering offers therefor, (D) sets forth the provisions of
Section 7.11 hereof, mutatis mutandis, with respect to the assignment of the
sublease (other than an assignment or deemed assignment contemplated by the
provisions described in Section 7.13(d)(2) hereof) and the undersubletting of
all or a part of the sublease premises (other than an undersubletting
contemplated by the provisions described in Section 7.13(d)(3) hereof), such
that Tenant shall be entitled to receive from the subtenant (I) the same portion
of the consideration paid to the subtenant on account of an assignment of the
sublease that Landlord is entitled to receive under Section 7.11(b) hereof from
Tenant on account of an assignment of this lease, and (II) the same portion of
the rent and other consideration paid to the subtenant on account of an
undersubletting that Landlord is entitled to receive under Section 7.11(c)
hereof from Tenant on account of a sublease of all or a part of the Premises,
and (E) provides that any and all of the rights of Tenant, as sublandlord, under
the provisions of the sublease described in clause (D) above shall be assignable
by Tenant to Landlord at any time and from time to time.
(c) (1) As used herein, the following terms shall have the following
meanings: (i) "SUBLEASE-LEVEL PROFIT PROVISIONS", of any sublease, shall mean
the provisions of such sublease described in Section 7.16(b)(3)(D) above; (ii)
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"ASSIGNMENT OF SUBLEASE PROFIT", with respect to the assignment of any sublease,
shall mean the amounts which Tenant is entitled to receive pursuant to the
Sublease-Level Profit Provisions of such sublease from the subtenant thereunder
on account of such assignment of such sublease; and (iii) "UNDERSUBLETTING
PROFIT", with respect to any undersubletting, shall mean the amounts which
Tenant is entitled to receive pursuant to the Sublease-Level Profit Provisions
of such sublease from the subtenant thereunder on account of such
undersubletting.
(2) Tenant, as and when it receives the same pursuant to the
Sublease-Level Profit Provisions of any sublease, shall pay to Landlord, as
Additional Charges hereunder, the entire amount of any Assignment of Sublease
Profit and Undersubletting Profit. Such amounts received by Tenant and paid to
Landlord shall not be considered "Assignment Consideration" or "Sublease
Consideration" for purposes of Section 7.11 hereof.
(3) Tenant, from time to time within forty-five (45) days of a
request therefor by Landlord, shall provide Landlord with an accounting of all
such sums paid or payable to Tenant as either Assignment of Sublease Profit or
Undersubletting Profit (which accounting shall set forth any past-due amounts).
(4) Tenant covenants to make all commercially reasonable
efforts to enforce the Sublease-Level Profit Provisions in each of its subleases
and collect from its subtenants (or former subtenants) any Assignment of
Sublease Profit or Undersubletting Profit due thereunder; provided, however,
that (i) Tenant may compromise or settle any claim in good faith (provided that
Tenant shall not compromise or settle any claim until after it shall have given
Landlord thirty (30) days written notice of its intention to do so, it being
understood that Landlord may exercise its rights set forth in the last sentence
of this Section 7.16(c)(4) with respect to any such claim during such 30-day
period), (ii) Tenant shall not be required to commence or continue such efforts
if Tenant reasonably believes that the amount and likelihood of recovery does
not justify the costs and risks of commencing or continuing such efforts, and
(iii) this Section 7.16(c)(3) shall not be deemed to restrict Tenant's rights to
terminate a sublease, in whole or in part, as set forth in Section 7.14 hereof.
Tenant, upon demand, shall assign to Landlord any or all of its rights under the
Sublease-Level Profit Provisions of any sublease (including without limitation
the right thereunder to receive Assignment of Sublease Profit or Undersubletting
Profit and the rights thereunder to receive accountings and inspect books and
records).
7.17. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its Recapture
Options, Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or
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sublessee, or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease.
7.18. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually and/or as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually and/or as co-partners of a partnership) pursuant to this
article (any such partnership and such persons are referred to in this section
as "PARTNERSHIP TENANT"), the following provisions of this section shall apply
to such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant (other than limited Partners) shall be joint and several, (b)
each of the parties comprising Partnership Tenant hereby consents in advance to,
and agrees to be bound by, any written instrument which may hereafter be
executed, changing, modifying or discharging this lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord or renewing or
extending this lease and by any notices, demands, requests or other
communications which may hereafter be given, by Partnership Tenant or by any of
the parties comprising Partnership Tenant, (c) any bills, statements, notices,
demands requests or other communications given or rendered to Partnership Tenant
or to any of the parties comprising Partnership Tenant shall be deemed given or
rendered to Partnership Tenant and to all such parties and shall be binding upon
Partnership Tenant and all such parties, (d) if Partnership Tenant shall admit
new general partners, all of such new general partners shall, by their admission
to Partnership Tenant, be deemed to have assumed performance of all of the
terms, covenants and conditions of this lease on Tenant's part to be observed
and performed, (e) Partnership Tenant shall give prompt notice to Landlord of
the admission of any partner or partners, and upon demand of Landlord, shall
cause each such general partner to execute and deliver to Landlord an agreement
in form reasonably satisfactory to Landlord, wherein each such new general
partner shall assume performance of all of the terms, covenants and conditions
of this lease on Tenant's part to be observed and performed (but neither
Landlord's failure to request any such agreement nor the failure of any such new
partner to execute or deliver any such agreement to Landlord shall vitiate the
provisions of subdivision (d) of this section) and (f) on each anniversary of
the Commencement Date, Partnership Tenant shall deliver to Landlord a list of
all partners together with their current residential addresses.
7.19. Notwithstanding anything to the contrary contained herein, without
Landlord's consent, Tenant may sublease space in the Premises to an In-House
Computer Contractor (as hereinafter defined), without being subject to the
attornment provisions of Section 7.13(c) hereof or any provisions of Sections
7.13(d) or 7.16 hereof, provided, that (i) the space so sublet shall not exceed
2,000 rentable square feet, (ii) there shall be no more than one such sublease
to an In-House Computer Contractor at any time, (iii) the In-House Computer
Contractor shall utilize the space so sublet primarily for the operation and
maintenance of some or all of the computer
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systems in Premises and, secondarily, for its other business, and (iv) Tenant
shall not receive any rent or other payment for such sublease. Within ten (10)
days after the execution of such sublease, Tenant shall deliver to Landlord a
fully executed copy of the same. As used herein, an "In-House Computer
Contractor" shall mean any person with whom Tenant, Guarantor, VKM (as defined
in Article 31) or any other subtenant of Tenant which is then an Affiliate of
Tenant, contracts to operate and maintain a substantial part of the computer
systems located in the Premises.
ARTICLE 8
Compliance with Laws
8.01. (a) Tenant shall give prompt notice to Landlord of any written
notice of any violation of any law or requirement of any public authority with
respect to the Premises or the use or occupation thereof which Tenant receives
from any governmental authority.
(b) Tenant, at its expense, shall comply with all present and future
laws and requirements of any public authorities to the extent that the same
require compliance in, to or upon the Premises or the Base Building Premises
Components (including without limitation compliance requiring the performance of
alterations, additions, improvements, replacements or repairs, whether the same
are structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen); provided, however, that Tenant shall not be required to make any
alterations, additions, improvements, replacements or repairs to the Base
Building Premises Components (other than as provided in Section 8.03 hereof) in
order to comply with any such law or requirement of public authorities, except
to the extent that the need for such compliance arises by reason of (i) Tenant's
use and occupancy of the Premises for the Primary Use, but Only if (x) the need
for such compliance arises by reason of Tenant's particular manner of using the
Premises for the Primary Use (including, without limitation, the layout and type
of Tenant's Improvements and Tenant's Property and the density of personnel),
and (y) such particular manner of use is untypical among tenants of Similar
Buildings which use space for the Primary Use or an equivalent use, (ii)
Tenant's use and occupancy of the Premises for any Secondary Use, (iii) Tenant's
performance of any Alterations (whether within or outside the Premises), (iv)
the presence or operation of any Tenant's Improvements located outside the
Premises, or (v) a violation by Tenant of the provisions of this lease.
(c) Tenant, in addition, shall be responsible for the cost of
compliance with all present and future laws and requirements of any public
authorities to the extent that the same require compliance in, to or upon the
Real Property outside the Premises and the Base Building Premises Components
(including without limitation compliance requiring the performance of
alterations,
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additions, improvements, replacements or repairs whether the same are structural
or non-structural, ordinary or extraordinary, foreseen or unforeseen), but only
to the extent that the need for compliance therewith arises by reason of (i)
Tenant's use and occupancy of the Premises for any Secondary Use, (ii) Tenant's
performance of Alterations outside of the Premises, (iii) the presence or
operation of any Tenant's Improvements located outside the Premises, or (iv) any
violation by Tenant of the provisions of this lease.
(d) In addition to the foregoing, Tenant, within thirty (30) days
after its receipt of a demand therefor, shall pay all expenses, fines and
penalties which may be imposed upon Landlord or any Landlord Party (as
hereinafter defined) by reason of or arising out of Tenant's failure to fully
and Promptly comply with and observe the provisions of this Article 8 after
Tenant has notice of the need for such compliance.
(e) Whenever, pursuant to the provisions of this Section 8.01,
Tenant shall be required to comply, or to be responsible for the costs of
compliance with, any law or requirement of any public authority, Tenant may, in
lieu thereof, as the case may be, (i) cease or alter its use giving rise to such
requirement of compliance, or (ii) cease or alter its performance of Alterations
giving rise to such requirement of compliance, or (iii) remove or alter the
Tenant's Improvements (or cease or alter the operation thereof) giving rise to
such requirement of compliance, or (iv) cure the violation of this lease giving
rise to such requirement of compliance, such that after such cessation,
alteration, removal or cure, such compliance is no longer required Furthermore,
notwithstanding the foregoing provisions of this Section 8.01, Tenant need not
comply with any law or requirement of any public authority referred to in
Section 8.01(b) above, and Tenant shall not be responsible for the costs of
compliance with any law or requirement of any public authority referred to in
Section 8.01(c) above, in either case, so long as Tenant shall be contesting the
validity thereof, or the applicability thereof, in accordance with Section 8.02.
(f) The parties agree that nothing in this Section 8.01 is intended
to, or shall be deemed to, impose any liability or obligation upon Tenant with
respect to any violations of law or requirements of public authorities affecting
the Premises on the date of this lease.
8.02. Tenant, at its expense, after notice to Landlord, may contest, by
appropriate proceedings prosecuted diligently and in good faith, the validity or
applicability of any law or requirement of any public authority, provided that
(a) Tenant shall be obligated to comply with the same pursuant to Section
8.01(b) above or responsible for the cost of complying with the same pursuant to
Section 8.01(c) above, (b) no Event of Default shall have occurred and be
continuing, (c) neither Landlord nor any Landlord Party shall be subject to
criminal penalty or to prosecution for a crime, or any other fine or charge
(unless Tenant pays such other
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fine or charge), nor shall the Premises or any part thereof or the Real Property
or any part thereof, be subject to being condemned or vacated, nor shall the
Real Property or any part thereof, be subjected to any lien or encumbrance, by
reason of non-compliance or otherwise by reason of such contest, unless such
lien or encumbrance shall be bonded, discharged or otherwise removed of record
within thirty (30) days after the creation of such lien or encumbrance, (d) if
any Underlying Lease and/or any Mortgage shall permit such noncompliance or
contest on condition of the furnishing of security by Landlord or any Landlord
Party, such security shall be furnished at the expense of Tenant, (e) such
non-compliance or contest shall not prevent Landlord from obtaining any and all
permits and licenses in connection with the operation of the Real Property, and
(f) Tenant, upon request, shall keep Landlord advised as to the status of such
proceedings; in addition, Tenant shall indemnify Landlord against any loss,
cost, damage or expense (including reasonably attorneys, fees, but excluding
consequential damages) incurred by Landlord by reason of any such contest or any
such deferral of compliance. Without limiting the application of the above, a
party shall be deemed subject to prosecution for a crime if such party, as an
individual, is charged with a crime of any kind or degree whatever, whether by
service of a summons or otherwise, unless such charge is withdrawn before such
party is required to plead or answer thereto.
8.03. Notwithstanding anything to the contrary contained herein, as part
of the Initial Alterations, Tenant shall perform all work and make all
installations necessary in order to fully sprinkler the Premises in compliance
with the provisions of Local Law 5 of the New York City Administrative Code, as
approved January 18, 1973, as amended and as may be hereafter amended from time
to time through the completion of the Initial Alterations.
8.04. (a) Landlord, at its expense, shall comply with all present and
future laws and requirements of any public authorities to the extent that the
same require the performance of alterations, additions, improvements,
replacements or repairs, whether the same are structural or non-structural,
ordinary or extraordinary, foreseen or unforeseen) in, to or upon the Base
Building Premises Components, except to the extent that Tenant is obligated to
comply therewith pursuant to the provisions of Section 8.01(b) or Section 8.03
hereof.
(b) Landlord, at its expense (except as otherwise provided below),
shall comply with all present and future laws and requirements of public
authorities to the extent that the same require compliance in, to or upon the
Base Building other than the Base Building Premises Components (including
without limitation compliance requiring the performance of alterations,
additions, improvements, replacements and repairs whether the same are
structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen), but only to the extent that the failure to effect such compliance
would subject Tenant to liability or adversely affect, other than to a de
minimis extent, (i) Tenant's use or occupancy of the Premises, (ii) access
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to the Premises, (iii) the provision of Building Services to the Premises, or
(iv) Tenant's right and ability to perform Alterations which would otherwise be
permitted hereunder; provided, however, that such compliance shall be at
Tenant's expense to the extent Tenant is responsible for the cost of such
compliance pursuant to Section 8.01(c) hereof; provided, further, however, that
(I) if Tenant is validly exercising its rights under Section 8.02 hereof to
contest the applicability of the law or requirement of public authority
requiring such compliance, then, during the pendency of such contest, (x)
Landlord shall have no obligation under this Section 8.04 to effect such
compliance, and (y) in the event that Landlord elects to effect such compliance,
the same shall be at Landlord's expense (as opposed to Tenant's expense),
provided that, in such event, Tenant shall reimburse Landlord the cost of such
compliance to the extent that Landlord can demonstrate that such law or
requirement of public authority was valid and applicable, and (II) except in
cases of emergency (in which cases no such notice or opportunity need by
furnished or afforded), it shall be a condition precedent to Tenant's obligation
to pay the costs of such compliance that Landlord shall have (A) furnished
Tenant with reasonable prior notice of Landlord's intention to effect such
compliance at Tenant's expense and (B) afforded Tenant a reasonable opportunity
to exercise its rights under the first sentence of Section 8.01(e) hereof such
that, after the exercise thereof, such compliance is no longer required.
(c) Notwithstanding the foregoing provisions of this Section 8.04,
Landlord may defer compliance with any law or requirements of public authorities
with which it is obligated to comply hereunder, so long as Landlord shall be
contesting the validity or applicability thereof in good faith by appropriate
proceedings, provided that (i) Tenant shall not be subject to criminal penalty
or to prosecution for a crime, or any other fine or charge (unless Landlord pays
such other fine or charge), (ii) neither the Premises (or any part thereof) nor
any part of the Real Property which affects the Premises or Tenant's use and
occupancy thereof, shall be subject to being condemned or vacated, by reason of
non-compliance or otherwise by reason of such contest, (iii) such non-compliance
or contest shall not prevent Tenant from lawfully occupying the Premises and
obtaining any and all permits and licenses required to be obtained by it in
connection therewith, and (iv) Landlord, after request, shall use reasonable
efforts to keep Tenant advised as to the status of such proceedings; in
addition, Landlord shall indemnify Tenant against any loss, cost, damage or
expense (including reasonably attorneys fees) incurred by Tenant by reason of
any such contest or any such deferral of compliance.
ARTICLE 9
Insurance
9.01. Tenant shall not violate, or permit the violation of, any condition
imposed by any insurance policy then issued to Landlord, any Mortgagee or any
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receiver in possession in respect of the Real Property and shall not do, or
permit anything to be done, or keep or permit anything to be kept in the
Premises which would (i) increase any insurance rate in respect of the Real
Property over the rate which would otherwise then be in effect, (ii) result in
insurance companies of good standing refusing to insure the Real Property in
amounts reasonably satisfactory to Landlord, or (iii) result in the cancellation
(in whole or in part) of, or give rise to any defense by the insurer to claims
under, any policy of insurance in respect of the Real Property. Tenant's use of
the Premises for the Primary Use in accordance with the provisions of this lease
shall not, in and of itself, violate the provisions of this Section 9.01. Tenant
shall not be deemed in violation of the provisions of this Section 9.01 unless
and until Tenant receives notice thereof from Landlord.
9.02. If, by reason of any failure of Tenant to comply with the provisions
of this lease, the premiums on any insurance of Landlord on the Real Property
shall be higher than they otherwise would be, then Tenant shall reimburse
Landlord, on demand and as Additional Charges, for that part of such premiums
attributable to such failure on the part of Tenant. A schedule or "make up" of
rates for the Real Property or the Premises, as the case may be, issued by the
New York Fire Insurance Rating Organization or other similar body making rates
for insurance for the Real Property or the Premises, as the case may be, shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the insurance rate then applicable to the Real Property or the
Premises, as the case may be.
9.03. Tenant, at its expense, shall maintain at all times during the term
of this lease (a) "all risk" property insurance covering Tenant's Improvements
and all Tenant's Property to a limit of not less than the full replacement cost
thereof with a deductible of not more than $10,000), (b) commercial general
liability insurance (including a contractual liability endorsement and an
endorsement specifying that such insurance is primary and does not require
contribution by any insurance policy maintained by Landlord or any other person
or entity), and personal injury liability coverage, in respect of the Premises
and the conduct or operation of business therein, with Landlord, the Building's
managing agent, if any, and each Underlying Lessor and Mortgagee whose name and
address shall previously have been furnished to Tenant, as additional insureds,
with limits for bodily injury and death of not less than Five Million
($5,000,000) Dollars for any occurrence involving one person, Ten Million
($10,000,000) Dollars for any occurrence involving two or more persons and not
less than Five Million ($5,000,000) Dollars for property damage liability in any
one occurrence, (c) steam boiler, air conditioning or machinery insurance, if
there is a boiler or pressure object or similar equipment in the Premises and
installed by Tenant, with Landlord, the Building's managing agent, if any, and
each Underlying Lessor and Mortgagee whose name and address shall previously
have been furnished to Tenant, as additional insureds, with limits of not less
than Five Million ($5,000,000) Dollars, (d) Workers' Compensation Insurance with
coverage applicable in New York State with limits in accordance with the
statutory requirements of New York State,
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which insurance shall contain provisions waiving underwriters' rights of
subrogation against Landlord, (e) Coverage B -- Employer's Liability Coverage,
including occupational disease with a limit of not less than $1,000,000 per
accident, which insurance shall contain provisions waiving underwriters' rights
of subrogation against Landlord, and (f) when Alterations are in progress, the
insurance specified in Section 11.06 hereof and/or in the Alterations Rules and
Regulations (as hereinafter defined). The limits of such insurance shall not
limit the liability of Tenant. Tenant shall deliver to Landlord and any
additional insureds, on or prior to the Commencement Date, such fully paid-for
policies or certificates of insurance, in form reasonably satisfactory to
Landlord, issued by the insurance company or its authorized agent. Tenant shall
procure and pay for renewals of such insurance from time to time before the
expiration thereof, and Tenant shall deliver to Landlord and any additional
insureds such renewal policy or a certificate thereof at least thirty (30) days
before the expiration of any existing policy. All such policies shall be issued
by companies of recognized responsibility licensed to do business in New York
State and rated by Best's Insurance Reports or any successor publication of
comparable standing and carrying a rating of "A" or better (or the then
equivalent of such rating) with a financial size category of VIII or better (or
the then equivalent of such financial size), and all such policies shall contain
a provision whereby the same cannot be cancelled or modified unless Landlord and
any additional insureds are given at least thirty (30) days' prior written
notice of such cancellation or modification. Tenant shall have the right to
insure and maintain the insurance coverages set forth in this Section under
blanket insurance policies covering other premises occupied or owned by Tenant
and Affiliates of Tenant so long as such blanket policies comply as to terms and
amounts with the insurance provisions set forth in this lease without
co-insurance; provided that upon request, Tenant shall deliver to Landlord a
certificate of Tenant's insurer evidencing the portion of such blanket insurance
allocated to the Premises.
9.04. (a) During the term of this lease, Tenant shall include in each of
its insurance policies insuring Tenant's Improvements and Tenant's Property and
the use thereof against loss, damage or destruction by fire or other casualty, a
waiver of the insurer's right of subrogation against Landlord and the Building's
managing agent or, if such waiver should be unobtainable or unenforceable, (i)
an express agreement that such policy shall not be invalidated if the insured
party waives the right of recovery against the person responsible for a casualty
covered by the policy before the casualty or (ii) any other form of permission
for the release of Landlord and the Building's managing agent. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable from
Tenant's then current insurance company, then Tenant shall so notify Landlord
promptly after learning thereof, and shall use its best efforts to obtain the
same from another insurance company described in Section 9.03 hereof. Tenant
hereby releases Landlord and the Building's managing agent, with respect to any
claim (including a claim for negligence) which it might otherwise have against
Landlord and/or the Building's agent, for loss, damage or destruction of or to
any Tenant's Property, or the use thereof, to the extent to which it is, or is
required to be,
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insured under a policy or policies containing a waiver of subrogation or
permission to release liability, as provided in this Section 9.04(a).
(b) Landlord shall include in each of its insurance policies
insuring the Building and all Landlord's Property and interest therein and the
rents therefrom against loss, damage or destruction by fire or other casualty, a
waiver of the insurer's right of subrogation against Tenant and any subtenant of
the Premises during the term of this lease or, if such waiver should be
unobtainable or unenforceable, (i) an express agreement that such policy shall
not be invalidated if the insured party waives the right of recovery against the
person responsible for a casualty covered by the policy before the casualty or
(ii) any other form of permission for the release of Tenant and any subtenant of
the Premises. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from the then current insurance company of Landlord,
then Landlord shall so notify Tenant promptly after learning thereof, and shall
use its best efforts, to obtain the same from another insurance company
described in Section 9.03 hereof. Landlord hereby releases Tenant and any
subtenant of the Premises, with respect to any claim (including a claim for
negligence) which it might otherwise have against Tenant or any subtenant, for
loss, damage or destruction of or to the Building or the rents therefrom to the
extent to which it is, or is required to be, insured under a policy or policies
containing a waiver of subrogation or permission to release liability, as
provided in this Section 9.04(b).
(c) Nothing contained in this Section 9.04 shall be deemed to
relieve either Landlord or Tenant of any duty imposed elsewhere in this lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this lease.
9.05. Landlord may from time to time require that the amount of the
insurance to be maintained by Tenant under Section 9.03 hereof be increased, so
that the amount thereof is substantially equivalent to the amount generally
required of tenants by prudent landlords of Similar Buildings.
9.06. Landlord, throughout the term of this lease, shall keep and maintain
such insurance with respect to the Building and all Landlord's property and
interests therein and the rents therefrom as is customarily maintained by most
reasonably prudent landlords of Similar Buildings.
ARTICLE 10
Rules and Regulations
10.01. Tenant and its employees and agents shall faithfully observe and
comply with the rules and regulations annexed hereto as Exhibit C, and such
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reasonable changes therein, whether by addition, modification or elimination, as
Landlord at any time or times hereafter may make and communicate in writing to
Tenant, which, in the reasonable judgment of Landlord, shall be necessary for
the reputation, safety, care and appearance of the Real Property, or the
preservation of good order therein, or the operation or maintenance of the Real
Property, and which do not materially affect the conduct of Tenant's business in
the Premises or materially affect Tenant's rights or obligations under this
lease (such rules and regulations as changed from time to time being herein
called "RULES AND REGULATIONS"); provided, however, that in case of any conflict
or inconsistency between the provisions of this lease and any of the Rules and
Regulations, the provisions of this lease shall control.
10.02. Nothing in this lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations against
Tenant or any other tenant or any employees or agents of Tenant or any other
tenant, and Landlord shall not be liable to Tenant for violation of the Rules
and Regulations by another tenant or its employees, agents, invitees or
licensees. Landlord shall not enforce against Tenant, and Tenant shall have no
obligation to comply with, any Rule or Regulation except to the extent that the
same is applicable to, and enforced by Landlord against, all office tenants and
occupants of the Building other than any as to which or against which, on the
basis of reasonable concerns of Landlord relating to the operation and
maintenance of the Building, applied by Landlord in a non-discriminatory manner,
such Rule or Regulation is not applicable or not enforced.
ARTICLE 11
Alterations
11.01. For purposes of this Article 11, the following terms shall have the
following meanings:
(a) "ALTERATIONS" shall mean any alterations, additions,
improvements or changes of any nature which are performed, by or on behalf of
Tenant, in, to or about the Building, including without limitation the Premises
and the Building Systems. "Alterations" shall not include any alterations,
additions, improvements or changes which are performed by or on behalf of
Landlord.
(b) "INITIAL ALTERATIONS" shall mean any and all Alterations
performed by or on behalf of Tenant in order to prepare the Premises (as
initially demised), or any Portion thereof, for Tenant's initial occupancy
thereof (and, unless otherwise expressly provided to the contrary, the term
"Alterations" shall include Initial Alterations).
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(c) "MATERIAL ALTERATIONS" shall mean any Alterations which (i) are
not limited to the interior of the Premises or which affect the exterior of the
Building (it being understood that Alterations within the Premises shall not be
deemed Material Alterations solely by reason of being visible from outside the
Premises) (Material Alterations described in this clause (i) are hereinafter
referred to as "EXTERIOR MATERIAL ALTERATIONS"), (ii) affect the structural
elements of the Building (Material Alterations described in this clause (ii) are
hereinafter referred to as "STRUCTURAL MATERIAL ALTERATIONS"), (iii) affect the
functioning or performance of the Building Systems (as hereinafter defined) in
areas of the Building outside of the Premises, or (iv) are Initial Alterations
or are subsequent Alterations which have a cost which, when aggregated with all
related Alterations undertaken as a single project, is in excess of $250,000.
(d) "MINOR ALTERATIONS" shall mean any Alterations which are not
Material Alterations or Decorating.
(e) "DECORATING" shall mean Alterations (other than Material
Alterations) which involve solely painting, decorating and/or wall covering.
11.02. (a) Tenant, subject to its compliance with the applicable provisions
of this lease, including without limitation the provisions of this Article 11,
may perform Minor Alterations and Decorating without the need to obtain
Landlord's approval. Tenant, not less than ten (10) Business Days prior to
commencing any Decorating for which Tenant has retained a contractor, shall give
Landlord notice thereof, which notice shall include a description of the work to
be performed. Tenant, not less than fifteen (15) Business Days prior to
commencing any Minor Alterations, shall give Landlord notice thereof, which
notice shall include a description of the work to be performed, and which notice
shall be accompanied by reasonably detailed plans and specifications therefor.
(b) Tenant, subject to its compliance with the applicable provisions
of this lease, including without limitation the provisions of this Article 11,
may perform Material Alterations, provided that Tenant shall have first obtained
Landlord's prior written approval of such Material Alterations as set forth on
plans and specifications therefor, which approval, other than with respect to
Exterior Material Alterations and Structural Material Alterations, shall not be
unreasonably withheld or conditioned. Tenant, prior to commencing any Material
Alterations, shall request Landlord's approval thereof by written notice, which
notice shall include a description of the work to be performed, and reasonably
detailed plans and specifications setting forth such Material Alterations. If
Tenant shall request Landlord's approval of any Material Alterations, other than
Exterior Material Alterations or Structural Material Alterations, in accordance
with the preceding sentence, and in such request Tenant shall specifically refer
to this Section 11.02(b) and the time period set forth below for the giving or
withholding of such approval, then Landlord shall either approve or
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disapprove such Material Alterations as set forth on the delivered plans and
specifications therefor within fifteen (15) Business Days after Landlord's
receipt of all reasonably necessary information required by Landlord to make its
decision; it being agreed that if Landlord shall fail to either deny such
approval or request additional reasonably necessary information within such time
period, then Tenant may send Landlord a second notice requesting such approval,
which notice shall specifically state, in capitalized and underscored text,
that, pursuant to this Section 11.02(b) Landlord shall be deemed to have granted
such approval if it does not respond to said notice within five (5) Business
Days thereof, and if Landlord shall fail to either deny such approval or request
additional reasonably necessary information within such 5 Business Day period
after Landlord's receipt of such second notice, then such Material Alterations
as set forth on such plans and specifications shall be deemed approved.
(c) Except as expressly permitted by this Article 11, Tenant shall
not perform any Alterations.
11.03. (a) (1) Tenant, in connection with any Alterations, shall pay to, or
reimburse, Landlord, as Additional Charges, Landlord's actual costs incurred in
connection with or arising out of such Alterations, including without limitation
(i) all reasonable out-of-pocket costs incurred by Landlord on an arms-length
basis to outside parties for reviewing plans and specifications submitted by
Tenant (but not any costs incurred by Landlord for or in connection with the
review thereof by employees of Landlord or any Affiliate of Landlord), (ii) all
reasonable out-of-pocket costs incurred by Landlord on an arms length basis to
outside parties for on-site inspections (but not any costs incurred by Landlord
for or in connection with on site inspections by employees of Landlord or any
Affiliate of Landlord), and (iii) any supervision and coordination costs
incurred pursuant to Section 11.03(c) below, whether the same are incurred to
outside parties or to Landlord's employees.
(2) Tenant, in connection with any Alterations, shall pay to
Landlord, as Additional Charges, Landlord's labor costs incurred in connection
with the performance of such Alterations on an overtime basis (i.e., after
Business Hours on Business Days), including, without limitation, all labor costs
for hoisting and stand-by overtime personnel (including without limitation
operating engineers and stand-by electricians) payable in respect of periods
other than Business Hours on Business Days; provided, however, if any such labor
shall simultaneously be used by Landlord in connection with any work by
Landlord, or by any other tenant or occupant of the Building in connection with
any work by such tenant or occupant, then such labor costs shall be equitably
apportioned among Tenant, Landlord and such other tenants or occupants, as
applicable.
(3) Tenant, in connection with any Alterations, shall pay for
and obtain directly all labor and carting for the cleanup and removal of debris.
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(4) All sums payable by Tenant to Landlord pursuant to this
Section 11.03(a) shall be due thirty (30) days after demand therefor by
Landlord, each of which demands shall set forth with reasonable detail the
manner in which the amount due thereunder was calculated.
(b) Tenant agrees that any review or approval by Landlord of any
plans and/or specifications with respect to any Alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant with respect to the adequacy, correctness or efficiency thereof or
otherwise. No approval of plans or specifications by Landlord or consent by
Landlord allowing Tenant to make Alterations shall in any way be deemed to be an
agreement by Landlord that the contemplated Alterations comply with any laws and
requirements of any public authorities or requirements of insurance bodies or
the certificate of occupancy for the Building nor shall it be deemed to be a
waiver by Landlord of the compliance by Tenant with any of the terms of this
lease (it being the intent of the parties that this sentence shall not be
construed to mean that Landlord may take the position that Tenant failed to
obtain Landlord's approval of the plans and specifications for an Alteration
after Landlord has approved such plans and specifications). Notice is hereby
given that neither Landlord nor any Landlord Party shall be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for such labor or materials shall attach to or affect
any estate or interest of Landlord or any Landlord Party in and to the Premises,
the Building or the Real Property.
(c) To the extent that any Alterations permitted to be made
hereunder, or any portions thereof, require work to be performed outside of the
Premises, such work shall be performed only at such time or times as are
reasonably designated by Landlord, and, at Landlord's option, under the
supervision of Landlord or its designated representative. Landlord shall have
the right to coordinate such work with any of work then being undertaken by
Landlord or by any other tenants of the Building.
11.04. (a) Tenant shall perform Alterations using only contractors that
have either been (i) designated by Landlord pursuant to the provisions of
Section 11.04(b) below with respect to the work described therein, or (ii)
approved by Landlord pursuant to the provisions of Section 11.04(c) below with
respect to all other work.
(b) (1) Tenant shall perform Alterations using only (i) Landlord's
designated system contractor to make connections between the Building's life
safety system and the sensors, strobes, speakers alarms and other terminal
devices installed by Tenant, and (ii) one or more Designated MEP Contractors (as
hereinafter defined) to perform Alterations involving electrical, HVAC or
plumbing work.
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(2) Landlord, upon Tenant's request, shall provide Tenant with
a list of at least four (4) trade contractors in each of the electrical, HVAC,
plumbing and fire protection/sprinkler trades who are then approved by Landlord
to perform electrical, HVAC or plumbing work, respectively, in the Building;
each contractor on any such list shall be deemed a "DESIGNATED MEP CONTRACTOR"
for the trade so listed for a period of one (1) year from the date that Landlord
delivered such list, unless Landlord, upon notice to Tenant, elects to delete
such contractor from such list and, in which event, such deleted contractor,
upon the giving of such notice to Tenant, shall no longer be deemed a Designated
MEP Contractor (except that such deleted contractor shall remain a Designated
MEP Contractor with respect to any contract that Tenant shall have theretofore
entered into with such contractor prior to the giving of such notice).
(c) Tenant, except with respect to the work described in Section
11.04(b) above, shall perform Alterations using only contractors that are first
approved by Landlord with respect to such Alterations, in writing, which
approval shall not be unreasonably withheld, conditioned or delayed. Any
contractor that Landlord hereafter approves in writing in connection with any
Alterations, shall be deemed approved for a period of one (1) year from the date
of Landlord's notice approving such contractor, unless Landlord, upon notice to
Tenant, thereafter elects to revoke its approval of any such contractor, in
which event, such contractor, upon the giving of such notice to Tenant, shall no
longer be deemed approved (except that such contractor shall remain approved
with respect to any contract that Tenant shall have theretofore entered into
with such contractor prior to the giving of such notice).
(d) Without limiting the generality of the foregoing, Landlord
hereby designates and approves with respect to the Initial Alterations, the
contractors listed on Schedule D annexed hereto; the contractors so listed shall
be deemed approved for the duration of the Initial Alterations.
(e) All contractors designated or approved by Landlord pursuant to
this Section 11.04 shall be subject to the provisions of Section 11.07 hereof.
11.05. Tenant shall, and shall cause its contractors to, faithfully observe
and comply with the alteration rules and regulations annexed hereto as Exhibit
D, and such reasonable changes therein (whether by addition, modification or
elimination) as Landlord at any time or times hereafter may make and communicate
in writing to Tenant, which, in the reasonable judgment of Landlord, shall be
necessary for the reputation, safety, care and appearance of the Real Property,
or the preservation of good order therein, or the operation or maintenance of
the Real Property, and which do not materially affect the performance of
Alterations in the Premises or materially affect Tenant's rights or obligations
under this lease (such alteration rules and regulations as changed from time to
time being herein called "ALTERATION RULES AND REGULATIONS"); provided, however,
that In case of any conflict or inconsistency
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between any of the provisions of this Article 11 and any of the provisions of
the Alteration Rules and Regulations, the provisions of this Article 11 shall
control. The provisions of Section 10.02 shall apply, mutatis mutandis, to the
Alteration Rules and Regulations.
11.06. (a) Tenant, at its expense, shall obtain (and furnish true and
complete copies to Landlord of) all necessary governmental permits and
certificates for the commencement and prosecution of Alterations and for final
approval thereof upon completion, and shall cause Alterations to be performed in
compliance therewith, with all applicable laws and requirements of public
authorities, with all applicable requirements of insurance bodies and, if
applicable, with the plans and specifications approved by Landlord. Landlord,
reasonably promptly after a written request from Tenant therefor, shall execute
(and provide any readily accessible information known by Landlord for) any
permit applications and similar documents reasonably required in connection with
obtaining such permits and certificates and any such final approvals, provided
that such applications and documents are in proper form. Tenant hereby agrees
that it shall (i) reimburse Landlord all Landlord's out-of-pocket expenses
incurred in connection with Tenant's obtaining of any such permits, certificates
or approvals (including without limitation those incurred in connection with
Landlord's execution of any permit applications and similar documents, or its
provision of information, as provided in the preceding sentence), and (ii)
Indemnify and hold harmless Landlord against any and all liabilities which
Landlord may incur by reason of its execution of any permit applications and
similar documents, or its provision of information, as provided in the preceding
sentence; provided, however, that neither such reimbursement nor such indemnity
shall include any such expenses or liabilities to the extent that (A) the same
would be, or would have been, discharged, satisfied or avoided by Landlord's
performance of its obligations under this lease (including without limitation
its obligations under Articles 8 and 13 hereof), or (B) the same arise out of
any inaccuracy in any information provided by Landlord.
(b) Alterations shall be diligently performed in a good and
workmanlike manner, using materials at least equal in quality and class to the
then standards for the Building.
(c) Alterations (including the Initial Alterations) shall be
performed in such manner as not to unreasonably interfere with or delay and as
not to impose any additional expense (except to the extent Tenant reimburses
Landlord therefor) upon Landlord in the construction, maintenance, repair or
operation of the Real Property; if the performance of an Alteration will impose
any additional expense upon Landlord, then Landlord shall advise Tenant of the
amount of such additional expense promptly after Landlord becomes aware of such
amount.
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(d) Throughout the performance of Alterations, Tenant, at its
expense, shall carry, or cause to be carried, (i) workers' compensation
insurance in statutory limits, (ii) general liability insurance, with completed
operation endorsement, for any occurrence in or about the Premises (or, if
applicable, any other area of the Real Property in which the Alterations in
question are being performed), under which Landlord and its managing agent, if
any, and any Underlying Lessor and Mortgagee whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, and (iii) "all risk" Builders
Risk coverage, all with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of Alterations and, on request, at
reasonable intervals thereafter during the continuance of Alterations.
11.07. Tenant shall not exercise any of its rights pursuant to the
provisions of this Article 11 in a manner which would violate Landlord's union
contracts affecting the Real Property, or create any work stoppage, picketing,
labor disruption or dispute or any interference (other than de minimis
interference) with the operation of the Building by (or for) Landlord. In
addition, Tenant shall not enter into any service contract in respect of
Tenant's Improvements (as opposed to Tenant's Property) or any cleaning
contract, if any such contract or the performance of work thereunder would
violate Landlord's union contracts affecting the Real Property, or create any
work stoppage, picketing, labor disruption or dispute or any interference (other
than de minimis interference) with the operation of the Building by (or for)
Landlord. Tenant shall immediately stop any work or other activity under this
Article 11 or pursuant to one or more of the aforementioned contracts if
Landlord notifies Tenant that continuing such work or activity would violate
Landlord's union contracts affecting the Real Property, or create any work
stoppage, picketing, labor disruption or dispute or any interference (other than
de minimis interference) with the operation of the Building by (or for)
Landlord, provided such notice sets forth a reasonably detailed explanation of
the circumstances giving rise to the delivery of such notice.
11.08. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, or any person claiming through or
under Tenant, which shall be issued by the Department of Buildings of the City
of New York or any other public authority having or asserting jurisdiction;
provided, however, that Tenant may defer procuring such cancellation or
discharge so long as Tenant is contesting such notice of violation in accordance
with Section 8.02. Tenant shall defend, indemnify and save harmless Landlord
from and against any and all mechanic's and other liens and encumbrances filed
in connection with Alterations, or any other work, labor, services or materials
done for or supplied to Tenant, or any person claiming through or under Tenant,
including, without limitation, security interests in any materials,
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fixtures or articles so installed in and constituting part of the Premises and
against all costs, expenses and liabilities incurred in connection with any such
lien or encumbrance or any action or proceeding brought thereon. Tenant, at its
expense, shall procure the satisfaction or discharge of record by bonding,
payment or otherwise, of all such liens and encumbrances within thirty (30) days
after knowledge or notice thereof.
11.09. Tenant, promptly upon the completion of any Alterations, other than
Decorating, shall deliver to Landlord "as built" drawings of such Alterations,
or, in the event Tenant does not have "as built" drawings prepared, a set of
construction drawings marked to show any change(s) made during construction.
11.10. All Tenant's Improvements shall be fully paid for by Tenant in cash
and shall not be subject to conditional bills of sale, chattel mortgage or other
title retention agreements. Tenant, however, may lease or finance purchases of
Tenant's Property, provided that, in conducting any entry to and removal of
fixtures or equipment from the Premises and/or the Building, any lessor, vendor
or lender shall, (a) prior to entry, provide Landlord upon Landlord's request
with evidence of appropriate liability insurance as reasonably determined by
Landlord, (b) use reasonable care, (c) repair all damage caused by its
activities in or about the Real Property, and (d) comply with applicable law. In
the event of a default by Tenant under this lease, Landlord shall not be
required to notify any such vendor, lessor or lender prior to exercising
Landlord's rights and remedies under this lease. Notice is hereby given that
neither Landlord nor any Landlord Party shall be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanics' or other lien for such labor or materials shall attach to or affect
any estate or interest of Landlord or any Landlord Party in any part of the Real
Property.
11.11. Tenant shall keep records of Tenant's Alterations costing in excess
of $25,000 and of the cost thereof for two (2) years after final payment for any
such Alteration. Tenant, within forty-five (45) days after a request by
Landlord, shall furnish to Landlord copies of all records which Tenant has with
respect to Alterations and the cost thereof, if the same shall be required in
connection with any proceeding to reduce the assessed valuation of the Real
Property, or in connection with any proceeding instituted pursuant to Article 8
hereof or for any other valid business reason or purpose.
11.12. (a) Before proceeding with any Alteration (other than the Initial
Alterations) the cost of which, when aggregated with the cost of all other
Alterations which have not then been completed, will cost more than
one-twentieth (1/20) of the then net worth of Tenant, together with the
Guarantor, computed in accordance with generally accepted accounting principles
consistently applied (exclusive of the costs of Decorating and items
constituting Tenant's Property), as such cost is estimated by a reputable
contractor designated by Landlord, Tenant shall furnish to Landlord one of
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the following (as selected by Tenant): (i) a cash deposit, (ii) an irrevocable,
unconditional, negotiable letter of credit, issued by and drawn on a bank or
trust company which is a member of the New York Clearing House Association
naming Landlord as beneficiary and in a form reasonably satisfactory to Landlord
or (iii) a payment and performance bond issued by a bonding company reasonably
satisfactory to Landlord naming Landlord as beneficiary, and in a form
reasonably satisfactory to Landlord (it being agreed that a bond which requires
any payment as a condition to the bonding company performing its obligations
under the bond shall not be a form reasonably satisfactory to Landlord); each to
be in an amount equal to one hundred twenty-five (125%) percent of the cost of
the Alteration, estimated as set forth above; provided, however, if the security
provided by Tenant is a cash deposit or letter of credit pursuant to subclauses
(i) or (ii) above, the amount thereof shall be the lesser of (x) 125% of the
cost of the Alteration, estimated as set forth above or (y) the amount by which
(1) the sum of the cost of the Alteration in question plus the cost of all other
Alterations which have not then been completed exceeds (2) the amount which is
1/20th of the then net worth of Tenant, together with the Guarantor. Any such
letter of credit shall be for one year and shall be renewed by Tenant each and
every year until the Alteration in question is completed and shall be delivered
to Landlord not less than thirty (30) days prior to the expiration of the then
current letter of credit. Failure to deliver such new letter of credit on or
before said date shall give Landlord the right, inter alia, to present the then
current letter of credit for payment. Upon Landlord's request made in connection
with any Alteration proposed to be made by Tenant which Landlord reasonably
believes might cost in excess of 1/20th of the then net worth of Tenant,
together with the Guarantor, but not, in any case, more often than once in any
calendar year, Tenant shall submit to Landlord a balance sheet of Tenant,
together with the Guarantor, prepared in accordance with generally accepted
accounting principles consistently applied, as of the end of the most recent
calendar year. together with a certification of the Chief Financial Officer of
Tenant certifying that such balance sheet is true and correct and accurately
reflects the net worth of Tenant, together with the Guarantor, as of its date.
(b) Upon (i) the completion of the Alteration in accordance with the
terms of this Article 11 and (ii) the submission to Landlord of proof evidencing
the payment in full for said Alteration, the security deposited with Landlord
(or the balance of the proceeds thereof, if Tenant has furnished cash or a
letter of credit and if Landlord has drawn on the same) shall be returned
promptly to Tenant.
(c) Upon the Tenant's failure to properly perform, complete and
fully pay for all sums due for the said Alteration, Landlord shall be entitled
to draw on the security deposited under this Article 11 to the extent it deems
necessary in connection with the said Alteration, the restoration and/or
protection of the Premises or the Real Property and the payment or satisfaction
of any costs, damages or
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expenses in connection with the foregoing and/or Tenant's obligations under this
Article 11.
ARTICLE 12
Tenant's Improvements and Tenant's Property
12.01. For purposes of this lease, the following terms shall have the
following meanings:
(a) The term "TENANT'S IMPROVEMENTS" shall mean all improvements,
betterments, fixtures (other than trade fixtures), equipment and appurtenances
affixed to, attached to, built into, or otherwise installed in or on, the
Building by or on behalf of Tenant (whether or not at Tenant's expense) during
the term of this lease, inclusive of all Initial Alterations and subsequent
Alterations, including without limitation (i) all installations, systems and
facilities installed in or about the Building by or on behalf of Tenant (whether
wholly within the Premises, wholly without the Premises, or partly within and
partly without the Premises), (ii) Tenant's line and other connections to any
such installations, systems and facilities, (iii) Tenant's line and other
connections to the Building Systems, and (iv) raised floors, and all wiring and
cabling installed below such raised floors, as well as any wiring and cabling
installed within shafts; but excluding, in all cases, Tenant's Property.
(b) The term "TENANT'S PROPERTY" shall mean all articles of movable
personal property owned or leased by Tenant and located in the Premises,
including without limitation office furniture and furnishings, trade fixtures,
business equipment, office machinery, movable partitions, communications
equipment, including without limitation computer and telephone wiring and
cabling (other than wiring or cabling, or the portions thereof, installed below
raised floors and/or installed within shafts).
12.02. (a) All Tenant's Improvements, as they exist upon the expiration or
earlier termination of the term of this lease, shall be and remain a part of the
Building and shall be deemed Landlord's property, and, accordingly, Tenant's
Improvements shall not be removed by Tenant upon the expiration or earlier
termination of this lease; provided, however, that Tenant may remove all or any
portion of Tenant's Improvements during the term of this lease (except that no
such removal shall be effected within the last twelve (12) months of the term,
unless the such removal is effected for a legitimate business purpose and the
same does not leave the Premises in an unsafe or unleasable condition). Any such
removal shall constitute Alterations subject to the provisions of Article 11.
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(b) Notwithstanding the foregoing, Landlord, upon notice to Tenant
given no later than the date which is thirty (30) days prior to the Expiration
Date (or, in the case of an earlier termination of this lease, the date which is
thirty (30) days after the later of (x) the date of such earlier termination and
(y) the date all of Tenant's personnel have vacated the Premises), may require
Tenant, at its expense, to remove all or any portion of Tenant's Improvements;
provided, however, that Tenant shall not be obligated to remove any Tenant's
Improvements (1) that are customary office installations, or (2) that are
non-customary office installations but with respect to which Landlord, pursuant
to Section 12.02(c) below, shall be deemed to have waived its right to require
Tenant to remove. If Landlord, by notice given in accordance herewith, requires
Tenant to remove any Tenant's Improvements, then Tenant, at its expense, shall
remove the same from the Building on or prior to the later to occur of (i) the
Expiration Date (or, in the case of an earlier termination of this lease, the
date of any such earlier termination), and (ii) the date thirty (30) days after
Landlord shall have given such notice. Upon such removal, Tenant, at its
expense, shall repair and restore the applicable portions of the Building to the
condition existing prior to the installation of such Tenant's Improvements
(except that the Premises, as opposed to the Base Building Premises Components,
need only be restored to a safe condition) and repair any other damage to the
Building (including without limitation the Premises) caused by such removal. It
is hereby agreed that the following items, without limitation, do not constitute
customary office installations: raised floors; all wiring and cabling installed
under raised floors; safes; internal stairways connecting floors of the
Premises; high density filing systems; kitchens (excluding kitchenettes or
pantries); any shafts installed by Tenant (together with all cables, wires and
risers located in any such shafts); vaults; and generators and equipment
ancillary thereto.
(c) Tenant may, by written notice to Landlord given simultaneously
with its submission to Landlord of plans and specifications for any Alterations,
request that Landlord identify any portions of such Alterations which are
non-customary office installations and which Landlord reserves the right to
require Tenant to remove at the expiration or earlier termination of the term of
this lease. If Tenant makes such a written request with respect to any
Alterations and such notice specifically refers to this Section 12.02(c) and the
time period set forth below for Landlord's response, then Landlord, within ten
(10) Business Days after its receipt of such notice (or, in the case of Material
Alterations, within five (5) Business Days after the later to occur of (i) ten
(10) Business Days after its receipt of such notice, and (ii) the date upon
which Landlord approves, or is deemed to have approved, such Material
Alterations), shall, by written notice to Tenant, identify those portions of
such Alterations which are non-customary office installations and which Landlord
reserves the right to require Tenant to remove at the expiration or earlier
termination of the term of this lease; it being agreed that Landlord shall be
deemed to have waived its right to require Tenant to remove any portion of such
Alterations except
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for those portions which, by such written notice given within such time period,
are so identified.
12.03. All Tenant's Property shall be and shall remain the property of
Tenant throughout the term of this lease and may be removed by Tenant at any
time during the term of this lease (or, if applicable, within the 15-day period
referred to below). On or prior to the Expiration Date (or within fifteen (15)
days after the earlier termination of this lease), Tenant, at its expense, shall
remove all Tenant's Property from the Premises. Tenant shall repair any damage
to the Building (including without limitation the Premises) caused by such
removal. Any items of Tenant's Property which shall remain in the Premises after
the Expiration Date (or, as the case may be, within fifteen (15) days following
the earlier termination of this lease), may, at the option of Landlord, be
deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall determine and at Tenant's expense.
ARTICLE 13
Repairs and Maintenance
13.01. (a) Tenant, throughout the term of this lease, shall, at its
expense, take good care of and maintain in good order and condition, and shall
be responsible for all repairs and replacements (ordinary and extraordinary,
foreseen and unforeseen) to (i) the Premises (but not the Base Building Premises
Components), and (ii) all Tenant's Improvements. Without limiting the generality
of the foregoing, Tenant, at its expense, shall promptly replace all damaged or
broken doors (including, without limitation, entrance doors) and all interior
glass in and about the Premises. Notwithstanding the foregoing, Tenant shall not
be responsible for any repairs or replacements under this Section 13.01(a) to
the extent that Landlord is responsible for the same under Section 13.02(b)
hereof.
(b) Tenant, in addition, shall be responsible for all repairs and
replacements, interior and exterior, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, in and to (x) the Real Property outside
of the Premises, and (y) the Base Building Premises Components, in each case, to
the extent the need for which arises out of (i) the performance of Alterations,
or the installation, use, operation or existence of any Tenant's Improvements or
Tenant's Property (provided, however, that Tenant shall not be responsible
therefor under this clause (i) to the extent that the repair or replacement in
question would not have been needed but for (x) a violation by Landlord of its
obligations under this lease, or (y) a representation made by Landlord hereunder
being untrue), (ii) the moving by or on behalf of Tenant of any Tenant's
Improvements or Tenant's Property in or out of the
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Building, (iii) the negligence or intentional misconduct of Tenant, any Tenant
Party or any of their agents, contractors or invitees.
(c) The repairs and replacements for which Tenant is responsible
pursuant to the provisions of this Section 13.01 (herein called "TENANT
REPAIRS") shall be performed in accordance with the following provisions:
(1) Tenant shall perform all Tenant Repairs for which Tenant
is responsible pursuant to Section 13.01(a) above (i.e., to the Premises), and
to all Tenant's improvements) promptly, at its expense, and in a manner which
will not interfere (in other than a de minimis manner) with the use of the
Building by others. If, and to the extent that, such Tenant Repairs are to
Tenant's Improvements located outside the Premises or otherwise require work to
be performed outside of the Premises, then (i) such work shall be performed only
at such time or times as are reasonably designated by Landlord, and, at
Landlord's option, under the supervision of Landlord or its designated
representative, (ii) Landlord shall have the right to coordinate such work with
any work then being undertaken by Landlord or by any other tenants of the
Building, and (iii) Tenant, within thirty (30) days after a written demand
therefor, shall reimburse Landlord all supervision and coordination costs
incurred by Landlord pursuant to clauses (i) or (ii) above (whether incurred to
Landlord's employees or outside parties).
(2) Landlord, at its option, may elect to perform Tenant
Repairs for which Tenant is responsible pursuant to Section 13.01(b) above
(i.e., to the Real Property outside of the Premises and to the Base Building
Premises Components) (each, a "TENANT BUILDING REPAIR") at Tenant's expense. If
Tenant notifies Landlord of the need for any Tenant Building Repair, then
Landlord shall promptly notify Tenant as to whether Landlord elects to perform
such Tenant Building Repair, at Tenant's expense, or to have Tenant perform such
repair. In all cases, except in cases of emergency (in which cases Landlord need
not so notify Tenant), Landlord, prior to commencing any Tenant Building Repair,
shall notify Tenant that Landlord has elected to perform the same at Tenant's
expense.
(A) To the extent that Landlord elects to perform any
Tenant Building Repair at Tenant's expense, (i) Landlord shall perform the same
promptly, and the provisions of Section 35.15 shall apply in respect thereof,
and (ii) Tenant, within thirty (30) days after a written demand therefor, shall
reimburse Landlord all of Landlord's out-of-pocket costs incurred in connection
with such Tenant Building Repair. Tenant, at its own expense, shall have the
right to monitor the progress of Tenant Building Repair undertaken by Landlord.
(B) To the extent that Landlord elects to have Tenant
perform any Tenant Building Repair, (i) Tenant shall perform the same promptly,
at its expense, and in a manner which will not interfere (in other than a de
minimis
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manner) with the use of the Building by others, (ii) such work shall be
performed only at such time or times as are reasonably designated by Landlord,
and, at Landlord's option, under the supervision of Landlord or its designated
representative, (iii) Landlord shall have the right to coordinate such work with
any work then being undertaken by Landlord or by any other tenants of the
Building, and (iv) Tenant, within thirty (30) days after a written demand
therefor, shall reimburse Landlord all supervision and coordination costs
incurred by Landlord pursuant to clauses (ii) and (iii) above (whether incurred
to Landlord's employees or outside parties).
13.02. (a) Except to the extent that Tenant shall be responsible for the
same pursuant to the provisions of Section 13.01(a) or (b) above, Landlord, at
its expense, shall make repairs and replacements to, and otherwise keep and
maintain (in a condition befitting a first-class downtown Manhattan office
building), the Base Building, other than those portions of the Base Building
which are not Base Building Premises Components and which do not affect, or
affect only to a de minimis extent, (i) Tenant's use and occupancy of the
Premises, (ii) access to the Premises, (iii) the provision of Building Services
to the Premises, and (iv) Tenant's right or ability to perform Alterations which
would otherwise be permitted hereunder.
(b) Landlord, in addition, shall be responsible for all repairs and
replacements, interior and exterior, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, in and to the Premises, Tenant's
Improvements and Tenant's Property, in each case, to the extent, the need for
which arises out of (i) any performance of any work or the taking of any other
act in the Premises by Landlord, or person authorized by Landlord to enter the
Premises, or any of their respective employees, agents or contractors, (ii) the
conduct of alterations, additions, improvements or changes in the Building by
Landlord or any of its employees, agents or contractors, or (iii) the negligence
or intentional misconduct of Landlord or any of its employees, agents,
contractors or invitees.
13.03. Except as expressly set forth in this lease, Landlord shall have no
liability to Tenant, nor, except as expressly set forth in Section 39.01, shall
Tenant's covenants and obligations under this lease be reduced or abated in any
manner whatsoever, by reason of any inconvenience, annoyance, interruption or
injury arising from Landlord's making any repairs or changes which Landlord is
required or permitted by this lease, or required by law, to make in or to the
Building, including without limitation the Premises. The provisions of this
Section 13.03 shall not absolve Landlord of its obligations to comply with the
provisions of Section 35.15 hereof.
13.04. This Article 13 shall not be applicable, to any extent, to any fire
or other casualty referred to in Article 19, or to any repairs or replacements
of any damage or destruction resulting therefrom; the same shall be governed by
the other applicable provisions of this lease, including Articles 9 and 19.
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ARTICLE 14
Electric Energy
14.01. Tenant agrees to purchase from Landlord or from a meter company
designated by Landlord all electricity used or consumed in the Premises and in
the operation of Tenant's Improvements in accordance with the provisions of this
Article 14. Tenant shall pay for electricity used in the Premises and in the
operation of Tenant's Improvements at the rate(s) set forth In Section 14.03
below and, except as provided below, based upon Tenant's demand for and
consumption of electricity determined, from time to time, by one or more
submeters and related equipment each measuring demand and consumption (such
submeters, together with all related equipment, are herein called "TENANT'S
SUBMETERS"). All of Tenant's Submeters shall be installed and maintained by
Tenant, at its expense, throughout the term of this lease. Initially, Tenant's
electrical demand and consumption shall be measured by two (2) Tenant's
Submeters, one of which shall be located in the Building's core electrical
closet located on the east side of the 37th floor of the Building and the other
of which shall be located in the Building's core electrical closet located on
the west side of the 37th floor of the Building. Such initial Tenant's Submeters
shall be installed by Tenant as part of the Initial Alterations. If, and to the
extent that, Tenant shall so desire from time to time, Tenant, at its expense,
may cause two (2) or more of Tenant's Submeters to measure Tenant's co-incident
electrical demand (among such Tenant's Submeters), and, in which event Tenant
shall notify Landlord thereof. Bills for electricity consumed by Tenant, which
Tenant hereby agrees to pay, shall be rendered by Landlord or the meter company
to Tenant at such time as Landlord may elect, and shall be payable as an
Additional Charge within thirty (30) days after the rendition of any such bill.
14.02. (a) Landlord shall make electricity available to Tenant, for use in
the Premises and in the operation of Tenant's Improvements, at a level
sufficient to accommodate a demand load of six and one-half (6-1/2) watts
multiplied by the number of rentable square feet in the Initially Demised
Premises (as defined in Article 31) (such level being herein called the
"COMMITTED ELECTRICAL SERVICE LEVEL"). Such electricity shall be made available
(for distribution by Tenant within the Premises and to Tenant's Improvements) at
the electrical panels currently located in the Building's core electrical
closets located on the 37th floor of the Building.
(b) Tenant's use of electricity shall not at any time exceed a
demand load equal to the Committed Electrical Service Level or otherwise exceed
the capacity of any of the electrical conductors and equipment in or otherwise
serving the Premises or any Tenant's Improvements; provided that Landlord shall
furnish conductors and equipment sufficient to accommodate the Committed
Electrical Service Level. In order to insure that such load or capacity is not
exceeded, Tenant
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shall not, without Landlord's prior consent in each instance (which shall not be
withheld, conditioned or delayed unless Tenant would violate, and Landlord is
not in violation of, the preceding sentence), connect any fixtures, appliances
or equipment, other than office machines customarily used in connection with the
Primary Use (including, without limitation, communications systems and
equipment), to the Building's electric system.
(c) If, at time during the term of this lease, (i) Tenant shall
require electricity, for the purposes set forth in Section 14.02(a) above, at a
level in excess of the Committed Electrical Service Level, and (ii) Tenant shall
demonstrate such additional electricity requirements to Landlord, to Landlord's
reasonable satisfaction, then Landlord, as soon as practicable thereafter, shall
increase the Committed Electrical Service Level by the amount of such
additionally required electrical service; provided, however, that, in no event,
shall the "Committed Electrical Service Level" be increased pursuant to this
Section 14.02(c), in the aggregate, by an amount greater than one (1) watt
multiplied by the number of rentable square feet in the Initially Demised
Premises (and, accordingly, at no time during the term of this lease shall the
"Committed Electrical Service Level" ever be greater than seven and one-half
(7-1/2) watts multiplied by the number of rentable square feet in the Initially
Demised Premises). As more particularly described in Articles 37 and 38,
respectively, the provisions of this Section 14.02(c) shall apply only to the
Initially Demised Premises, and not to the Option Space or any Offer Space in
connection with the separate application of Section 14.02 to the same as set
forth in Articles 37 and 38, respectively; it being likewise understood that the
provisions of the preceding proviso shall not limit the separate "Committed
Electrical Service Level" for the Option Space or any Offer Space, which, in all
events, shall be as provided for in Articles 37 or 38, respectively.
14.03. The amount to be paid by Tenant to Landlord, for any billing period,
for electricity furnished to the Premises and to Tenant's Improvements (whether
the demand and consumption components thereof are measured by Tenant's Submeters
or determined by survey as herein elsewhere provided), shall be an amount equal
to 103% of the sum of (I) the product of Landlord's Cost per KW (as hereinafter
defined) for such period, multiplied by the number of KWs of Tenant's electrical
demand for such period (which demand shall be measured separately by each
Tenant's Submeter, except if Tenant, pursuant to Section 14.01 above, causes two
or more Tenant's Submeters to measure co-incident demand and so notifies
Landlord, then, for purposes of this clause (I), the portion of Tenant's
electrical demand measured by such Tenant's Submeters shall be such co-incident
demand), plus (II) the product of Landlord's Cost per KWHR (as hereinafter
defined) for such period, multiplied by the number of KWHRs of Tenant's
electrical consumption for such period. In addition, Tenant shall pay, and
Landlord shall remit to the appropriate governmental agency, all sales tax
payable on the amounts payable by Tenant to Landlord pursuant to the preceding
sentence. As used herein, (i) "LANDLORD'S COST
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PER KW", for any period, shall be the cost, exclusive of sales tax, that
Landlord pays to the public utility company furnishing electricity to the
Building (herein called "UTILITY COMPANY") per KW of demand for such period
(which cost shall be determined by averaging in any case where there is not a
single rate in effect for such period for all KWs), and (ii) "LANDLORD'S COST
PER KWHR", for any period, shall be the cost, exclusive of sales tax, that
Landlord pays to the Utility Company per KWHR of consumption for such period
(which cost shall be determined by averaging in any case where there is not a
single rate in effect for such period for all KWHRs). Each electric bill
rendered by Landlord to Tenant shall be accompanied by a copy of the electricity
bill(s) for the Building on which Landlord's Cost per KW and Landlord's Cost per
KWHR for the applicable billing period are based. If Tenant shall occupy the
Premises for business purposes and use electricity prior to the installation and
connection of Tenant's Submeters, then Tenant agrees to pay Landlord the sum of
$2.50 per rentable square foot per annum for electricity for the period
commencing with such occupancy and ending at the time that such Tenant's
Submeters are installed and connected, which amount shall be deemed a payment on
account for such period and shall be retroactively adjusted based upon the
readings of Tenant's Submeters for the first (12) months after the installation
and connection thereof in accordance with the provisions of Section 14.05
hereof. During the period of Tenant's construction occurring prior to the
installation and connection of the Tenant's Submeters, Tenant will pay to
Landlord a flat charge of $1.50 per rentable square foot per annum.
14.04. In the event that the "submetering" of electricity in the Building
is hereafter prohibited by any law hereafter enacted, or by any order or ruling
hereafter issued by the Public Service Commission of the State of New York, or
by any final judicial decision hereafter issued by any appropriate court, then,
at the request of Landlord, Tenant shall, unless Tenant elects to require
Landlord to provide electricity pursuant to Section 14.05 hereof, promptly apply
to the appropriate Utility Company for direct electric service and bear all
costs and expenses necessary to comply with all rules and regulations of the
Utility Company pertinent thereto, and, upon the commencement of such direct
service, Landlord shall be relieved of any further obligation to furnish
electricity to Tenant pursuant to this Article 14, except that Landlord shall
permit its wires, conduits and electrical equipment, to the extent available and
safely capable, to be used for such purpose. If any additional feeder, riser or
other equipment is necessary to supply such direct service, Landlord shall, at
the sole cost and expense of Tenant, install the same at reasonably competitive
rates, if in Landlord's reasonable judgment the same are so necessary and will
not cause damage or injury to the Building or the Premises or cause or create a
dangerous or hazardous condition (other than one which is temporary) or
unreasonably interfere with or disturb other tenants or occupants (other than on
a temporary basis).
14.05. (a) If submetering of electricity is prohibited as described in
Section 14.04 above and Tenant does not elect to obtain direct electric service
from the Utility
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Company, then the demand (KW) and consumption (KWHR) components of Tenant's
electricity shall be determined from time to time by electric survey made from
time to time in accordance with the provisions of this Section 14.05, Section
14.06 and Section 14.07. Pending an initial survey made by Landlord's utility
consultant, effective as of the date (the "INITIAL SURVEY EFFECTIVE DATE") when
Landlord has commenced furnishing electricity to Tenant pursuant to this Section
14.05 (with suitable proration for any period of less than a full calendar
month), the Fixed Rent specified in Section 1.04 shall be increased by an amount
(the "INITIAL CHARGE") which shall be at the rate of $2.50 per rentable square
foot per annum, or if there has been twelve (12) months' charges of submetered
electric, an amount equal to the average of the prior twelve (12) months'
charges for submetered electric. After completion of an electrical survey made
by Landlord's utility consultant of Tenant's demand (KW) and consumption (KWHR)
of electricity, said consultant shall apply the rates set forth in Section 14.03
hereof to arrive at an amount (the "ACTUAL CHARGE"), and the Fixed Rent shall be
appropriately adjusted retroactively to the initial Survey Effective Date to
reflect any amount by which the Actual Charge differs from the Initial Charge.
If the Actual Charge is greater than the Initial Charge, Tenant shall pay
resulting deficiency within ten (10) days after being billed therefor. If the
Actual Charge is less than the Initial Charge, Landlord shall refund the
resulting overpayment within ten (10) days after the determination of the Actual
Charge. Landlord shall cause its utility consultant to complete the aforesaid
survey and computation, and to notify the parties thereof, no later than sixty
(60) days after the Initial Survey Effective Date. Thereafter and from time to
time during the term of this lease, Landlord may, and whenever Tenant shall so
request, Landlord shall promptly, cause additional surveys of Tenant's electric
demand and consumption to be made by Landlord's utility consultant. Whenever
Tenant shall so request, the fees of Landlord's utility consultant shall be paid
by Tenant. In the event any of the foregoing surveys shall determine that there
has been an increase or decrease in Tenant's demand or consumption, then
effective retroactively to the date of such increase or decrease (except as
otherwise provided below) the then current Actual Charge, as same may have been
previously increased or decreased pursuant to the terms hereof, shall be
increased or decreased in accordance with such survey determination. If the
Actual Charge is thus increased, Tenant shall pay resulting deficiency within
ten (10) days after being billed therefor. If the Actual Charge is thus
decreased, Landlord shall refund the resulting overpayment within ten (10) days
after such determination. Notwithstanding the foregoing provisions of this
Section 14.06, (i) no increase resulting from any survey made after the initial
survey shall be retroactive to any date more than 30 days prior to the date of
such survey, (ii) no decrease resulting from any survey made after the initial
survey at Tenant's request shall be retroactive to any date more than 30 days
prior to the date of Tenant's request, and (iii) no decrease resulting from any
survey made after the initial survey without Tenant's request shall be
retroactive to any date more than 30 days prior to the date of such survey. Each
survey after the initial survey shall include a statement of the date,
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determined in accordance with this Section 14.05(a), to which it is to be given
retroactive effect.
(b) In the event from time to time after the initial survey or a
subsequent survey any additional electrically operated equipment is installed in
the Premises by Tenant or connected or any electrically operated equipment is
removed from the Premises or disconnected, or if Tenant shall increase or
decrease its hours of operation, or if the charges by the Utility Company are
increased or decreased, then and in any of such events the Actual Charge shall
be increased or decreased accordingly. The amount of such increase or decrease
in the Actual Charge shall be determined in the first instance by Landlord's
utility consultant. At any time after any such event shall occur, Landlord may,
and if Tenant shall so request, Landlord shall promptly, cause the amount of
such increase or decrease to be so determined. Whenever Tenant shall so request,
the fees of Landlord's utility consultant shall be paid by Tenant. In addition,
the Actual Charge will be increased or decreased quarterly in accordance with
calculations by Landlord's utility consultant to reflect changes in the fuel
adjustment component of the Utility Company's charge. Any increase or decrease
pursuant to this Section 14.05(b) in the amount charged Tenant for electricity
shall be retroactive to the date on which the fact or condition giving rise
thereto occurred; provided, however, that (i) no increase shall be retroactive
to any date more than 30 days prior to the date on which Tenant is notified
thereof, (ii) no decrease resulting from any determination made at Tenant's
request shall be retroactive to any date more than thirty (30) days prior to the
date of Tenant's request, and (iii) no decrease resulting from any determination
made without Tenant's request shall be retroactive to any date prior to the date
on which Tenant is notified thereof. Each determination shall include a
statement of the date, determined in accordance with this Section 14.05(b), to
which it is to be given retroactive effect.
14.06. Surveys made of Tenant's electrical demand and consumption shall be
based upon the use of electricity between the hours of 8:00 a.m. to 6:00 p.m.,
Mondays through Fridays, and such other days and hours as Tenant (together with
all Tenant Parties) uses electricity for lighting and for the conduct of its
business in the Premises (if Tenant uses electricity during certain hours in
portions of the Premises but not all of the Premises, such fact shall be taken
into account); and if cleaning services are provided by Landlord, such survey
shall include (i) during Landlord's normal cleaning hours of five (5) hours per
day (which shall not be subject to reduction), lighting within the Premises, and
(ii) during such portion of such five (5) hours as such equipment is ordinarily
so used, the use of the electrical equipment normally used for such cleaning.
The electric demand and consumption of any light or device shall not be deemed
to be constant or continuous (unless so by its nature) and the utility
consultant shall reasonably estimate the actual demand and consumption of each
light or device, and, for purposes of determining Tenant's total
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demand, the utility consultant shall also reasonably estimate the diversity
factor to be applied to the demand of each such light or device.
14.07. All survey determinations made in accordance with Section 14.05(a)
and all other determinations made in accordance with Section 14.05(b), in each
case including the date, determined in accordance with Section 14.05, to which
the same shall be given retroactive effect, shall be accompanied by full
documentation and shall be subject to contest by Tenant as provided in this
Section 14.07. In the event electricity shall be furnished to Tenant as
contemplated in Section 14.05 hereof, then Tenant, within sixty (60) days after
notification from Landlord of any determination of Landlord's utility consultant
in accordance with the provisions of Section 14.05(a) or (b), shall have the
right to contest, at Tenant's cost and expense, such determination, in each case
including the aforesaid date, by submitting to Landlord a like determination
prepared by a utility consultant of Tenant's selection which will highlight the
differences between Landlord's determination and Tenant's determination. If
Landlord's utility consultant and Tenant's utility consultant shall be unable to
reach agreement within thirty (30) days, then such two consultants shall
designate a third utility consultant to make the determination, and the
determination of such third consultant shall be binding and conclusive on both
Landlord and Tenant. If the determination of such third consultant shall
substantially confirm the finding of Landlord's utility consultant (i.e., within
ten percent (10%)), then Tenant shall pay the cost of such third consultant. If
such third consultant shall substantially confirm the determination of Tenant's
consultant (i.e., within ten percent (10%)), then Landlord shall pay the cost of
such third consultant. If such third consultant shall make a determination
substantially different from that of both Landlord's and Tenant's utility
consultants (or is within ten percent (10%) of both such determinations), then
the cost of such third consultant shall be borne equally by Landlord and Tenant.
In the event that Landlord's utility consultant and Tenant's utility consultant
shall be unable to agree upon the designation of a third utility consultant
within thirty (30) days after Tenant's utility consultant shall have made its
determination (different from that of Landlord's utility consultant) then either
party shall have the right to request the American Arbitration Association in
the City of New York to designate a third utility consultant whose decision
shall be conclusive and binding upon the parties, and the costs of such third
consultant shall be borne as hereinbefore provided in the case of a third
consultant designated by Landlord's and Tenant's utility consultants. Pending
the resolution of any contest pursuant to the terms hereof, Tenant shall pay the
Actual Charge determined by Landlord's utility consultant, and upon the
resolution of such contest, appropriate adjustment in accordance with such
resolution of such Actual Charge shall be made retroactive to (i) the date to
which the contested determination was given retroactive effect or (ii) if Tenant
shall have contested such date, to the date determined in such contest.
14.08. Landlord shall not be liable in any event to Tenant for any
failure, interruption or defect in the supply or character of electric energy
furnished to the
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Premises by reason of any act or omission of the public utility serving the
Building with electricity or for any other reason not attributable to Landlord's
willful misconduct or negligence (but in no event shall Landlord be responsible
for any consequential damages).
14.09. If pursuant to any law, ruling, order or regulation, the charges
under which Tenant is purchasing electricity from Landlord pursuant to this
Article shall be reduced below that which Landlord is otherwise entitled
hereunder, then Tenant shall pay said deficiency to Landlord as an Additional
Charge within thirty (30) days after being billed therefor by Landlord, as
compensation for the use and maintenance of the Building's electric distribution
system.
14.10. Landlord shall furnish and install all replacement lighting, tubes,
lamps, bulbs and ballasts required in the Premises; and in such event, Tenant
shall pay to Landlord or its designated contractor upon demand the then
established reasonable charges therefor of Landlord or its designated
contractor, as the case may be, but only to the extent such charges are
competitive with similar charges in Similar Buildings. Notwithstanding the
above, Tenant shall have the right from time to time to elect to have its own
employees, or a vendor or contractor selected by Tenant (subject to Landlord's
approval not to be unreasonably withheld), provide the aforesaid items.
14.11. Notwithstanding anything contained herein to the contrary, Tenant
hereby waives any claim to any rebates or similar amounts which Landlord
receives from the Utility Company based upon any of Tenant's lighting fixtures
installed during the term of this lease.
ARTICLE 15
Landlord's Services
15.01. For the purposes of this Article 15, the following terms shall have
the following meanings:
(a) "BUSINESS OCCUPANCY DATE" shall mean the date on which Tenant
takes occupancy of the Premises for the conduct of its usual business. Tenant
shall give Landlord notice of the Business Occupancy Date at least five (5)
Business Days prior to the occurrence thereof.
(b) "BUSINESS HOURS" shall mean the hours between 7:00 a.m. and 7:00
p.m. on Business Days.
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(c) "BUSINESS DAYS" shall mean all days, except Saturdays, Sundays
and Holidays.
(d) "HOLIDAYS" shall mean New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Thanksgiving, the day following
Thanksgiving, Christmas and any other days which shall be either (i) observed by
the federal or the state governments as legal holidays or (ii) designated as a
holiday by the applicable Building Service Union Employee Service contract or by
the applicable Operating Engineers contract.
15.02. (a) Landlord shall furnish cold water to the sprinklers on floor(s)
on which the Premises are located to the extent required for sprinkler purposes
only, and hot and cold water to the Core Lavatories on the floor(s) on which the
Premises are located to the extent required for normal core lavatory, drinking
and cleaning purposes only.
(b) If Tenant shall require water for any purposes other than those
set forth in Section 15.02(a) above (including without limitation (i) for any
pantries or kitchenettes, inclusive of any sinks, dishwashers or coffee machines
therein, or (ii) any private lavatories installed by Tenant), then Landlord need
only furnish additional cold water for such other purposes, which additional
cold water shall be furnished through the Building's core riser to a point in
the Building's core located on the relevant floor(s) on which the Premises are
located, and shall be accessible to Tenant through a capped outlet located
therein. If Tenant uses water for any purposes other than as set forth in
Section 15.02(a) above, then Landlord may install and maintain, at Tenant's
expense, one or more meters to measure Tenant's consumption of cold water for
such other purposes. Tenant shall reimburse Landlord for the quantities of cold
water shown on such meter or meters, periodically, within thirty (30) days after
written demand therefor, in accordance with the rates and charges of the utility
company or municipality supplying water to the Building. Tenant, at its expense,
shall be solely responsible for distributing within the Premises, and, to the
extent Tenant requires hot water, heating, any additional cold water furnished
pursuant to this Section 15.02(b).
15.03. (a) Landlord, during Business Hours, shall furnish, in accordance
with the specifications set forth on Schedule E annexed hereto, (i) heat service
at the perimeter of the Premises through the existing perimeter equipment (such
heat service being herein called "BASE BUILDING HEAT SERVICE"), (ii)
air-conditioning service both at the perimeter of the Premises (through the
existing perimeter equipment) and at designated delivery points in the
Building's core located on the floor(s) on which the Premises are located (such
air-conditioning service being herein called "BASE BUILDING AIR-CONDITIONING
SERVICE"), and (iii) ventilation service, both at the perimeter of the Premises
as aforesaid and at the designated delivery points in the Building's core as
aforesaid (such ventilation service being herein called "BASE
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BUILDING VENTILATION SERVICE"). Landlord shall provide either Base Building Heat
Service or Base Building Air-Conditioning Service on a seasonal basis, not
according to outside conditions.
(b) If Tenant shall request that Landlord furnish Base Building Heat
Service ("OVERTIME HEAT"), Base Building Air-Conditioning Service ("OVERTIME
AC") or Base Building Ventilation ("OVERTIME VENTILATION") to any floor on which
the Premises are located at any time other than Business Hours, then Landlord
shall furnish such service at such times (x) upon no less than five (5) hours'
advance notice from Tenant for overtime service after six (6) p.m. on Business
Days, and (y) upon notice received before Noon on the preceding Business Day for
overtime service on non-Business Days. Each such notice shall specify the floor
or floors to which service is to be provided. Tenant, within thirty (30) days
after its receipt of a demand therefor, shall pay to Landlord (x) the Overtime
AC Rate for any Overtime AC, and (y) the Overtime Heat Rate for any Overtime
Heat. As of the date hereof, the "OVERTIME AC RATE" shall be $325 per hour, per
floor, and the "OVERTIME HEAT RATE" shall be $150 per hour, per floor. Each of
the Overtime AC Rate and the Overtime Heat Rate shall be adjusted by CPI (as
defined in Article 31 hereof). Overtime Ventilation shall be free of charge.
15.04. (a) Landlord shall furnish condenser water to the SCW Distribution
Point (as hereinafter defined), 24 hours a day, 7 days a week, at a level which,
subject to Tenant making proper connection thereto, will enable Tenant to draw
at least 40 tons of condenser water (such tonnage capacity being herein called
the "ALLOTTED SCW CAPACITY"), in the aggregate, from such point at any time.
Tenant shall have the right to draw from the SCW Distribution Point, at any
instance in time, up to, but not in excess of, the Allotted SCW Capacity, which
condenser water shall be used for the operation to one or more water-cooled
supplemental air-conditioning units located in the Premises (herein called
"TENANT'S SUPPLEMENTAL AC EQUIPMENT"). Tenant, at its expense, shall be
responsible for connecting to the SCW Distribution Point and distributing any
condenser water drawn from such SCW Distribution Point to Tenant's Supplemental
AC Equipment. As used herein, the "SCW Distribution Point" shall mean the single
point in the Building's core on the 37th floor of the Building, which shall be
designated by Landlord.
(b) In respect of Landlord agreeing to furnish condenser water to
the SCW Distribution Point as hereinabove provided in Section 15.04(a) (and
regardless of the quantity of condenser water, if any, that Tenant actually
draws therefrom), Tenant shall pay to Landlord, as Additional Charges, a monthly
charge, for each month during the term of this lease, equal to (i) the monthly
SCW Rate (as hereinafter defined) multiplied by (ii) the aggregate number of
tons of capacity of Tenant's Supplemental AC Equipment connected to, or
otherwise receiving condenser water from, the SCW Distribution Point at anytime
during such month (such monthly charge being herein called the "MONTHLY SCW
CHARGE"). The Monthly SCW Charge,
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for each month during the term of this lease, shall be payable, in arrears, on
the first day of the next succeeding month. The "MONTHLY SCW RATE", as of the
date hereof, is a rate of $43.75 per month per ton of capacity; such rate shall
be Adjusted By CPI.
15.05. Landlord shall provide passenger elevator service to the floor(s) on
which the Premises are located during Business Hours, with a minimum of one (1)
passenger elevator being subject to call at all other times; it being agreed
that, throughout the term of this lease, (x) all the passenger elevators that
serve the 37th floor of the Building shall have the 37th floor as their first
stop after the ground floor lobby, and (y) no passenger elevator not in the
passenger elevator bank known, as of the date hereof, as "Bank D", as shown on
Exhibit H attached hereto, shall serve the 37th floor of the Building.
Landlord's obligation to provide passenger elevator pursuant to the foregoing
provisions of this Section 15.05 shall not commence until the Business Occupancy
Date. Use of the passenger elevators shall be subject to the Rules and
Regulations.
15.06. (a) Landlord, during Business Hours, shall provide Tenant with
freight elevator service to the floor(s) on which the Premises are located on a
non-exclusive, first-come first-served basis (i.e., no advance scheduling).
(b) If Tenant shall require freight elevator service other than
during Business Hours ("OVERTIME FREIGHT ELEVATOR SERVICE"), then Landlord shall
provide the same on a first-reserved first-served basis, (i) upon notice from
Tenant that is received by Landlord no less than twenty-four (24) hours in
advance, for overtime service on Business Days, or (ii) upon notice from Tenant
that is received by Landlord before Noon on the preceding Business Day, for
overtime service on non-Business Days. Tenant, within thirty (30) days after its
receipt of a written demand therefor, shall pay to Landlord the applicable
Overtime Freight Rate (as hereinafter defined) for any Overtime Freight Elevator
Service. As of the date hereof, the "OVERTIME FREIGHT RATE" is $55 per hour per
freight elevator. The Overtime Freight Rate shall be Adjusted by CPI.
(c) Freight elevator service shall include, whenever Tenant shall so
elect, use of the loading dock and there shall be no separate charge therefor.
(d) Use of the freight elevators shall be subject to the Rules and
Regulations and the Alteration Rules and Regulations.
15.07. (a) Landlord shall cause the Premises and the applicable portions of
the Base Building (including the exterior windows serving the Premises), to be
cleaned in accordance with the cleaning specifications set forth on Exhibit E
annexed hereto (herein called the "CLEANING SPECIFICATIONS"). Tenant shall pay
to Landlord, within thirty (30) days after written demand, the additional costs
incurred by Landlord for (i) extra cleaning work in the Premises required
because of (x)
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carelessness, misuse or neglect on the part of Tenant or any Tenant Party or its
or their visitors, (y) interior glass partitions or unusual quantity of interior
glass surfaces, and (z) materials or finishes installed by or on behalf of
Tenant which are unusually difficult or time consuming to clean, and (ii)
removal from the Premises and the Building of any refuse and rubbish of Tenant
in excess of that ordinarily accumulated in business office occupancy,
including, without limitation, kitchen refuse and rubbish, and (iii) removal
from the Premises and the Building of any refuse and rubbish of Tenant at times
other than Landlord's standard cleaning times.
(b) Notwithstanding the foregoing provisions of Section 15.07(a),
Landlord shall not be required to clean any portions of the Premises used for
(A) kitchen, cafeteria or dining facilities, kitchenettes, pantries and vending
machine areas, (B) private lavatories or toilets installed by Tenant or any
Tenant Party, (C) printing, or (D) other special purposes requiring greater or
more difficult cleaning work than office areas (it being agreed that trading
floor use is not such a special purpose); and Tenant agrees, at Tenant's
expense, to retain Landlord's cleaning contractor (and no other cleaning
contractor) to perform such additional cleaning services; provided, however,
that if (i) Landlord's cleaning contractor proposes to charge Tenant for such
additional cleaning services at rates which, in the aggregate, are materially in
excess of the market rates for such additional cleaning services (which "market
rates" shall be determined with reference to the rates charged for such services
by cleaning contractors of Similar Buildings), and (ii) Tenant, prior to
retaining Landlord's cleaning contractor for such additional cleaning services,
notifies Landlord thereof in writing, then Landlord shall reimburse Tenant the
amount of such excess (unless Landlord, at its option, shall, in lieu thereof,
grant Tenant the right to employ its own contractor to perform such additional
cleaning services). Landlord shall not receive an override on any amounts paid
by Tenant to Landlord's cleaning contractor for such additional cleaning
services.
(c) Landlord, its cleaning contractor and their respective employees
shall have access to the Premises after 6:00 p.m. and before 8:00 a.m. and shall
have the right to use, without charge therefor, all light, power and water in
the Premises reasonably required to clean the Premises as required under this
Section 15.07.
(d) Tenant shall not clean, nor require, permit, suffer or allow any
windows in the Premises to be cleaned, from the outside in violation of Section
202 of the Labor Law, or any other applicable law.
(e) Notwithstanding anything to the contrary contained in the
foregoing provisions of this Section 15.07, Landlord shall have no obligation to
provide any of the aforesaid cleaning services prior to the Business Occupancy
Date therefor.
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15.08. Landlord shall provide life safety service through the Building's
Class E System to the DGP installed as part of Landlord's Work. Landlord shall
provide Tenant with seven (7) points on such DGP at which Tenant may tie-in to
the Building's Class E System.
15.09. Except as expressly provided in this Article 15, Landlord shall not
be required to provide any services to the Premises.
15.10. (a) Landlord, subject to the provisions of Section 15.10(b) below,
reserves the right, without liability to Tenant and without it being deemed a
constructive eviction, to stop or interrupt any heating, elevator, escalator,
lighting, ventilating, air-conditioning, steam, power, electricity, water,
condenser water, cleaning or other service and to stop or interrupt the use of
any Building Systems or Building facilities at such times as may be necessary
and only for as long as may reasonably be required by reason of accidents,
strikes, or the making of alterations, additions, improvements, replacements or
repairs, or inability to secure a proper supply of fuel, gas, steam, water,
electricity, labor or supplies, or by reason of any other similar or dissimilar
cause beyond the reasonable control of Landlord. No such stoppage or
interruption shall (i) result in any liability from Landlord to Tenant (except
for any liability, other than consequential damages, arising out of a violation
of the provisions Section 15.10(b) below) or (ii) entitle Tenant to any
diminution or abatement of rent (except as may be expressly provided for in
Section 39.01 hereof) or other compensation nor shall this lease or any of the
obligations of Tenant be affected or reduced by reason of any such stoppage or
interruption.
(b) Landlord shall not (i) voluntarily effect any Service Shutdown
without first providing Tenant with at least three (3) Business Days notice of
the times of such Service Shutdown, or (ii) voluntarily effect a Service
Shutdown of electricity or condenser water during Business Hours; provided,
however, that Landlord may voluntarily effect any Service Shutdown (including
without limitation a Service Shutdown of electricity or condenser water), at any
time or times and without any requirement that it give Tenant notice thereof, if
(A) the Service Shutdown is effected by Landlord with a view toward averting or
reducing danger to persons or damage to property, (B) the Service Shutdown is
effected by Landlord in response to any actual or perceived emergency, (C) the
Service Shutdown is effected by Landlord in response to the directive of a
governmental or quasi-governmental authority or a public utility, or (D) the
Service Shutdown is not a Service Shutdown to electricity or condenser water,
and does not otherwise materially affect the operation of Tenant's business in
the Premises; provided, further, however, that, in the cases described in
clauses (A), (B) and (C) above, Landlord shall, if practicable, give Tenant such
prior notice of the Service Shutdown to be effected as shall be reasonable under
the circumstances (which notice may be written or oral), except that Landlord
shall never be required to give notice in cases where it effects a Service
Shutdown in response to an actual or perceived emergency which could imminently
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result in danger to the health or safety of persons or in substantial damage to
property. For purposes of this Section 15.10(b), the term "SERVICE SHUTDOWN"
shall mean a shutdown of one or more Building System(s) which provide one or
more Building Services to Tenant; and Landlord shall be deemed to have
"VOLUNTARILY EFFECTED" a Service Shutdown only if Landlord, by its own direct,
intentional and affirmative act, effects such a Service Shutdown.
15.11. Only Landlord or persons approved by Landlord (which approval shall
not unreasonably be withheld) shall be permitted to furnish or sell laundry,
linen, towels, drinking water, ice, food, beverages, bootblacking, barbering and
other similar supplies and services to tenants. Such persons approved by
Landlord may contract directly with Tenant. Landlord may fix the reasonable
circumstances under which such supplies and services are to be furnished or
sold. Landlord expressly reserves the right to exclude from the Building any
person not so approved by Landlord. However, Tenant, its regular office
employees or invitees may personally bring food or beverages into the Building
or order the same for delivery for consumption within the Premises solely by
Tenant, its regular office employees or invitees.
ARTICLE 16
Access and Name of Building
16.01. Except for the space within the inside surfaces of all walls
bounding the Premises, slab ceilings, floors, windows and doors bounding the
Premises (other than any such space used on the date hereof for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks of other
Building facilities), all of the Building (including, without limitation,
exterior Building walls, core walls, doors and entrances (or, on any
multi-tenant floor, corridor walls, doors and entrances) and any terraces or
roofs (and further including without limitation the aforementioned space used on
the date hereof for shafts, stacks, pipes, conduits, fan rooms, ducts, electric
or other utilities, sinks of other Building facilities), and the use thereof, as
well as access thereto through the Premises for the purposes of operation,
maintenance, alteration, addition, improvement, replacement and repair) is
reserved to Landlord and/or persons authorized by Landlord and no space or
property so reserved shall be deemed to be part of the Premises. Telephone and
electric closets on the thirty-seventh (37th) floor of the Building shall be
included in the Premises if, and only if, the same are hatched on Exhibit B
attached hereto.
16.02. Landlord reserves the right, and Tenant shall permit Landlord and
persons authorized by Landlord to install, erect, use and maintain pipes, ducts
and conduits in and through the Premises; provided, however, that Landlord,
after the date hereof, may locate any such pipe, duct or conduit within the
Premises (as opposed to the areas reserved to Landlord pursuant to Section 16.01
hereof) only if it
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is not feasible for Landlord to locate such pipe, duct or conduit within areas
reserved to Landlord pursuant to Section 16.01 hereof; provided, further,
however, that, even in cases where, pursuant to the preceding proviso, Landlord
may locate a pipe, duct or conduit within the Premises, Landlord may only locate
such pipe, duct or conduit within one or more of the Primary Landlord Conduit
Areas (as hereinafter defined), unless it is also not feasible for Landlord to
locate such pipe, duct or conduit within Primary Landlord Conduit Areas, in
which event Landlord may locate such pipe, duct or conduit within one or more of
the Secondary Landlord Conduit Areas. Any pipe, duct or conduit located within
the Premises shall be concealed behind then existing walls, ceilings or raised
floors of the Premises if feasible (and if not feasible, then the same shall be
completely furred at points immediately adjacent to partitioning, columns or
ceilings). In exercising the rights reserved to it under this Section 16.02,
Landlord shall comply with the provisions of Section 35.15 hereof. As used in
this Section 16.02, (I) the term "FEASIBLE" shall mean both physically feasible
and economically feasible, from Landlord's perspective, and consistent with all
laws and requirements of public authorities, (II) the term "PRIMARY LANDLORD
CONDUIT AREAS" shall mean any of (x) the areas of the Premises located between
the hung and structural ceiling of the Premises on any floor, (y) the areas of
the Premises located underneath any raised flooring, and (z) the other areas of
the Premises, if any, shown hatched on Exhibit C attached hereto, and (III) the
term "SECONDARY LANDLORD CONDUIT AREAS" shall mean any area of the Premises
which is adjacent to (A) any walls, floors or ceilings bounding the Premises
(including without limitation core and exterior walls) or (B) any areas reserved
to Landlord pursuant to Section 16.01 hereof.
16.03. (a) Subject to the terms of Sections 16.03(b) and 35.15, Landlord
and persons authorized by Landlord shall have the right, upon reasonable prior
notice (except that no notice shall be required in the case of emergency), to
enter and/or pass through the Premises at any reasonable times (or at any time
in the case of emergency) for any one or more of the following purposes: (i) to
examine the Premises and to show them to actual and prospective Mortgagees or
Underlying Lessors or prospective purchasers of the Building; (ii) to make such
alterations, additions, improvements, repairs or replacements in or to the Real
Property (excluding, however, the Premises and Tenant's Improvements located
outside the Premises) as Landlord is required to make or deems reasonably
necessary to make, (iii) to make (x) such alterations, additions or improvements
in and to the Premises (and Tenant's Improvements located outside the Premises)
as Landlord is required or authorized by this lease to make, or (y) such repairs
or replacements in and to the Premises (and Tenant's Improvements located
outside the Premises) as Landlord is required or permitted by this lease or by
law to make; (iv) to provide the services which Landlord is required to provide
hereunder; and (V) to read any utility meters located therein.
(b) Tenant, from time to time (but not more frequently than twice in
any calendar year), may, upon not less than thirty (30) days prior written
notice to
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Landlord, designate one or more discrete portions of the Premises as high
security areas (herein called the "SECURITY AREAS"), provided, that (1) Tenant's
notice shall be accompanied by floor plans of the Premises designating the
Security Areas, and (2) any such designation shall be reasonable in light of
Tenant's business requirements. Landlord shall have no right to enter any
Security Areas except for any entry made (i) for the purpose of operating,
maintaining and repairing the Building and/or the Building Systems, and (ii)
either (x) at times reasonably designated by Tenant, or (y) at any time in case
of emergency. Except in the case of an emergency, Landlord shall notify Tenant
prior to entering the Security Areas and Tenant shall have the right to have its
representative(s) accompany Landlord's representative(s) during any such entry;
provided, however, that Tenant, at all times during Business Hours (and, upon 24
hours' notice from Landlord, at any other time), shall make one or more such
representatives available to so accompany Landlord. Landlord shall have no
obligation to provide any services, or make any repairs, to the Security Areas,
or to other portions of the Premises, to the extent that access to the Security
Areas is necessary to provide such services or make such repairs, unless Tenant
shall provide Landlord with access to the Security Areas for purposes of
providing such services or making such repairs at those times that Landlord
shall reasonably designate in respect thereof.
16.04. If at any time any windows of the Premises are either temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building (or permanently darkened or obstructed
if required by law) or covered by any transparent material (which may create a
mirror-like effect) for the purpose of energy conservation, or if any part of
the Building, other than the Premises or access thereto, is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this lease. Nothing contained in this Section 16.04 shall be deemed to abrogate
any of Landlord's obligations to furnish Building Services, as such obligations
are herein expressly set forth. This Section 16.04 shall not limit or restrict
any abatement or termination right granted Tenant pursuant to the provisions of
Article 19, 20 or 39.
16.05. During any Option Period (and following the exercise by Landlord of
any of its Recapture Options) and during the period of two (2) years prior to
the Expiration Date of this lease, Landlord and persons authorized by Landlord
may exhibit the Premises (or the applicable portions thereof) during Business
Hours on Business Days to prospective tenants upon reasonable advance notice.
16.06. Landlord reserves the right, at any time, without it being deemed a
constructive eviction and without incurring any liability to Tenant therefor, or
affecting or reducing any of Tenant's covenants and obligations hereunder, to
make or permit to be made such changes, alterations, additions and improvements
in or to the Building and the fixtures and equipment thereof (but not to the
interior of the
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Premises except as otherwise permitted under this lease), as well as in or to
the street entrances, doors, halls, passages, elevators, escalators and
stairways thereof, and other public parts of the Building, as Landlord shall
deem necessary or desirable, provided, that no such change, alteration, addition
or improvement shall (a) materially adversely affect (i) access to the Premises,
(ii) the size, configuration or utility of any of the Core Lavatories, or (iii)
the provision of any of the Building Services, or (b) otherwise affect any of
the rights and obligations of Landlord and Tenant that are expressly set forth
in this lease. In exercising the rights reserved unto it in this Section 16.06,
Landlord shall comply with the provisions of Section 35.15 hereof.
16.07. Landlord reserves the right to name the Building and to change the
name or address of the Building at any time and from time to time. Neither this
lease nor any use by Tenant shall give Tenant any easement or other right in or
to the use of any door, passage, concourse or plaza connecting the Building with
any subway or any other building or to any public conveniences, and the use of
such doors, passages, concourses, plazas and conveniences may upon reasonable
prior notice to Tenant (except in the case of emergency), be regulated, in
accordance with the provisions of Article 10 hereof, or generally discontinued
at any time by Landlord.
16.08. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when for any reason an entry therein shall
be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may forcibly enter the same without rendering Landlord or such
agents liable therefor (so long as Landlord or Landlord's agents shall exercise
reasonable care in respect of Tenant's Property) and without in any manner
affecting the obligations and covenants of this lease.
16.09. Tenant, and its permitted subtenants, may have ten (10) listings in
any Building directory located in the Building lobby. Landlord, from time to
time, shall, at Tenant's expense, make such changes in the listings as Tenant
shall request.
16.10. Tenant, throughout the term of this lease, shall have the right to
utilize the vents, if any, which are currently located in and serving the
Premises for the purposes for which the same are designed.
ARTICLE 17
Notice of Occurrences
17.01. Tenant, to the extent is has actual knowledge thereof, shall give
prompt notice to Landlord of any fire or other casualty in or affecting the
Premises.
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ARTICLE 18
Non-Liability and Indemnification
18.01. Neither Landlord nor any Landlord Party shall be liable to Tenant
for any loss, injury or damage to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss, nor
shall the aforesaid parties be liable to Tenant for any damage to any property
of Tenant or of others entrusted to employees of Landlord nor for loss of or
damage to any such property by theft or otherwise, except in any case to the
extent caused by or resulting from the negligence or willful and improper acts
of Landlord or such Landlord Party. Notwithstanding anything to the contrary
contained in this lease, neither Landlord nor any Landlord Party shall be liable
for consequential damages of any kind or nature (including without limitation
consequential damages in respect of any loss of use of the Premises or any
Tenant's Improvements or Tenant Property) in any event whatsoever, even if
arising from any act, omission or negligence of such party or from the breach by
such party of its obligations under this lease.
18.02. Tenant shall indemnify and hold harmless Landlord and all Landlord
Parties from and against any and all claims (to the extent in excess of any sums
reimbursed by insurance or, which would have been so reimbursed if Landlord had
maintained the insurance required to be maintained by it hereunder) to the
extent that the same arises from (a) the conduct or management of the Premises
or of any business therein, or any condition created (other than by Landlord or
any Landlord Party) in, at or upon the Premises, (b) the negligence or willful
misconduct of Tenant or any Tenant Party, (c) any accident, injury or damage
whatever (except to the extent caused by any negligence or willful misconduct of
Landlord or any Landlord Party) occurring in, at or upon the Premises, or (d)
any breach or default by Tenant in the full and prompt payment and performance
of Tenant's obligations under this lease; together, subject to the provisions of
this Section 18.02, with all costs, expenses and liabilities incurred in or in
connection with each such claim or any action or proceeding brought thereon,
including, without limitation, all reasonable attorneys' fees and expenses. If
any such claim is asserted against Landlord and/or any Landlord Party, Landlord
shall give Tenant prompt notice thereof. If Tenant shall, in good faith, believe
that such claim is or may not be within the scope of the indemnity set forth in
this Section then, pending determination of that question, Tenant shall not be
deemed to be in default under this lease by reason of its failure or refusal to
indemnify and hold harmless Landlord or any Landlord Party therefrom or to pay
such costs, expenses and liabilities, but if it shall be finally determined by a
court of competent jurisdiction that such claim was within the scope of the
indemnity set forth in this Section 18.02, then Tenant shall be liable for any
judgement or reasonable settlement or any reasonable legal fees incurred by the
party entitled to indemnity hereunder. If the issuer of any insurance policy
maintained by Tenant shall assume
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the defense of any claim then Landlord shall permit such insurance carrier to
defend the claim with its counsel and (x) neither Landlord nor any Landlord
Party shall settle such claim without the consent of the insurance carrier
(unless such settlement would relieve Landlord or such Landlord Party of all
liability for which Tenant or its insurance carrier may be liable hereunder),
(y) Landlord and all Landlord Parties shall reasonably cooperate, at Tenant's
expense, with the insurance carrier in its defense of any such claim, and (z)
Tenant shall not be liable for the costs of any separate counsel employed by
Landlord or any Landlord Party.
18.03. Landlord shall indemnify and hold harmless Tenant and all Tenant
Parties from and against any and all claims (to the extent in excess of any sums
reimbursed by insurance or, which would have been so reimbursed if Tenant had
maintained the insurance required to be maintained by it hereunder) to the
extent that the same arises from (a) the negligence or willful misconduct of
Landlord or any Landlord Party, or (b) any breach or default by Landlord in the
full and prompt payment and performance of Landlord's obligations under this
lease; together, subject to the provisions of this Section 18.03, with all
costs, expenses and liabilities incurred in or in connection with each such
claim or any action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses. If any such claim is asserted
against Tenant and/or any Tenant Party, Tenant shall give Landlord prompt notice
thereof. If Landlord shall, in good faith, believe that such claim is or may not
be within the scope of the indemnity set forth in this Section then, pending
determination of that question, Landlord shall not be deemed to be in default
under this lease by reason of its failure or refusal to indemnify and hold
harmless Tenant or any Tenant Party therefrom or to pay such costs, expenses and
liabilities, but if it shall be finally determined by a court of competent
jurisdiction that such claim was within the scope of the indemnity set forth in
this Section 18.03, then Landlord shall be liable for any judgement or
reasonable settlement or any reasonable legal fees incurred by the party
entitled to indemnity hereunder. If the issuer of any insurance policy
maintained by Landlord shall assume the defense of any claim then Tenant shall
permit such insurance carrier to defend the claim with its counsel and (x)
neither Tenant nor any Tenant Party shall settle such claim without the consent
of the insurance carrier (unless such settlement would relieve Tenant or such
Tenant Party of all liability for which Landlord or its insurance carrier may be
liable hereunder), (y) Tenant and all Tenant Parties shall reasonably cooperate,
at Landlord's expense, with the insurance carrier in its defense of any such
claim, and (z) Landlord shall not be liable for the costs of any separate
counsel employed by Tenant or any Tenant Party.
ARTICLE 19
Damage or Destruction
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19.01. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty, then, unless this lease is
terminated as hereinafter provided in this Article 19, the following provisions
shall apply:
(a) Landlord shall repair the damage to and restore and rebuild the
Base Building (inclusive of the Base Building Premises Components) to a
condition which is substantially the same condition as (or to a better condition
than) the condition of the same immediately prior to the fire or other casualty;
excluding, however, (1) those portions of the Base Building which do not affect,
or affect only to a de minimis extent, (i) Tenant's use and occupancy of the
Premises, (ii) access to the Premises, (iii) the provision of Building Services
to the Premises, and (iv) Tenant's ability to perform Alterations which would
otherwise be permitted hereunder, and (2) in all events, Tenant's Improvements
and Tenant's Property; all such repair, restoration and rebuilding work being
herein called the "LANDLORD RESTORATION WORK". Landlord shall commence the
Landlord Restoration Work with due diligence after the Landlord Restoration
Start Date (as hereinafter defined) and, subject to Events of Force Majeure,
shall prosecute the same to completion with diligence and continuity.
(b) Tenant may, but shall not be required to, perform the Tenant
Restoration Work (as hereinafter defined); provided, however, that Tenant shall
be required to perform the Tenant Restoration Work to the extent required so
that the value of the Tenant's Improvements in the Premises (undamaged or
repaired, restored and rebuilt) shall be at least equal to the value of the
Tenant's Improvements which would have been in the Premises immediately prior to
such fire if the Initial Alterations had been limited to those which were paid
for by application of Landlord's Contribution and if Tenant had made no
subsequent Alterations in the Premises. As used herein, the "TENANT RESTORATION
WORK" shall mean all the repairs, restoration and rebuilding required to restore
the Tenant's Improvements to their condition immediately prior to the fire or
other casualty. All Tenant Restoration Work shall be deemed Alterations for the
purpose of Article 11, and Tenant shall perform all such work in accordance with
the provisions thereof, provided, however, that Landlord's approval of the plans
therefor shall not be required to the extent the Tenant Restoration Work
consists of restoring the same Tenant's Improvements which were damaged or
destroyed (unless the same were made in violation of this lease). Tenant shall
commence so much of the Tenant Restoration Work as it shall be required by the
provisions of this Section 19.01(b) to perform on or prior to the Tenant
Restoration Start Date (as hereinafter defined), and, subject to Events of Force
Majeure, shall prosecute the same to completion with diligence and continuity.
In addition and in all events, Tenant shall move or remove from the Premises, as
soon as it is feasible to do so, such salvageable Tenant's Improvements and
Tenant's Property as may be reasonably designated by Landlord as necessary for
Landlord to perform the Landlord Restoration Work.
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(c) (1) The "LANDLORD RESTORATION START DATE" shall mean the date
ten (10) days after the date that Landlord shall first have knowledge of the
damage or destruction giving rise to the need for the Landlord Restoration Work;
provided, however, that (I) in any case where Landlord is required to designate
an Expert (as hereinafter defined) pursuant to Section 19.03 hereof, the
"Landlord Restoration Start Date" shall not occur prior to the date that Tenant
receives a statement from the Expert setting forth the Section 19.03 Estimated
Period (as hereinafter defined) (or, if the Section 19.03 Estimated Period is
longer than nine (9) months, then the date that is twenty (20) Business Days
after Tenant's receipt of such statement), and (II) in any case where Landlord
designates an Expert pursuant to Section 19.04 hereof, the "Landlord Restoration
Start Date" shall not occur until the date that Tenant receives a statement from
the Expert setting forth the Section 19.04 Estimate (as hereinafter defined)
(or, if, by reason of the Section 19.04 Estimate, Landlord shall have a right to
terminate this lease pursuant to Section 19.04, the first date that Landlord no
longer has such termination right).
(2) The "TENANT RESTORATION START DATE" shall mean the Ten Day
Date (as hereinafter defined); provided, however, that (I) in any case where
Landlord is required to designate an Expert (as hereinafter defined) pursuant to
Section 19.03 hereof, the "Tenant Restoration Start Date" shall not occur prior
to the date that Tenant receives a statement from the Expert setting forth the
Section 19.03 Estimated Period (as hereinafter defined) (or, if the Section
19.03 Estimated Period is longer than nine (9) months, then the date that is
twenty (20) Business Days after Tenant's receipt of such statement), and (II) in
any case where Landlord designates an Expert pursuant to Section 19.04 hereof,
the "Tenant Restoration Start Date" shall not occur until the date that Tenant
receives a statement from the Expert setting forth the Section 19.04 Estimate
(as hereinafter defined) (or, if, by reason of the Section 19.04 Estimate,
Landlord shall have a right to terminate this lease pursuant to Section 19.04,
the first date that Landlord no longer has such termination right).
(3) The "TEN DAY DATE" shall mean the date that is ten (10)
Business Days after Landlord shall have substantially completed enough of the
Landlord Restoration Work (if any), that Tenant shall be able, in accordance
with good construction practices, to commence prosecution of the Tenant
Restoration Work (including without limitation any Landlord Restoration Work
that is needed to provide Tenant with the access required to commence such
Tenant's Restoration Work) and shall have notified Tenant thereof in writing; or
if no Landlord Restoration Work is applicable, then the "Ten Day Date" shall be
the date ten (10) Business Days after the date on which Tenant first learns of
the damage or destruction giving rise to the need for the Tenant Restoration
Work.
19.02. If, on account of fire or other casualty, all or a part of the
Premises shall be rendered untenantable (whether as a result of damage or
destruction to the Premises or damage or destruction to parts of the Building
outside the Premises),
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then the Fixed Rent, the Tax Payments and the Operating Payments attributable to
each portion of the Premises that is so rendered untenantable shall abate for
the period (if any) commencing on the date that such portion of the Premises
first becomes untenantable and ending on the day preceding the later to occur of
the following dates (as applicable):
(a) the earliest to occur of (i) the date that Tenant shall have
substantially completed so much of the Tenant Restoration Work (if any) as
is needed to render such portion of the Premises tenantable, (ii) the date
that Tenant would have substantially completed so much of the Tenant
Restoration Work (if any) as is needed to render such portion of the
Premises tenantable, had Tenant, from and after the Tenant Restoration
Start Date, prosecuted such work to completion with diligence and
continuity (subject to Events of Force Majeure), and (iii) the date that is
six (6) months after the Ten Day Date (provided that this subsection (a)
shall only be applicable if Tenant Restoration Work is needed to render
such portion of the Premises tenantable); and
(b) the date upon which Landlord shall have substantially completed
so much of the Landlord Restoration Work as is needed to allow such portion
of the Premises, subject to the completion of the applicable Tenant
Restoration Work, to be made tenantable (provided that this subsection (b)
shall only be applicable if Landlord Restoration Work is needed to render
such portion of the Premises tenantable);
provided, however, that the aforesaid abatement period with respect to any
portion of the Premises shall not, in any event, extend beyond the day preceding
the date that such portion of the Premises becomes tenantable (e.g., if Tenant,
or any person claiming by, through or under Tenant, shall re-occupy such portion
of the Premises for the purposes demised hereunder, then the aforesaid abatement
with respect to such portion of the Premises shall thereupon automatically
cease).
19.03. (a) If, at anytime during the term of this lease, the Building shall
be damaged or destroyed by fire or other casualty, and, as a result thereof,
10,000 rentable square feet or more of the Premises are rendered untenantable
(whether as a result of damage or destruction to the Premises or damage or
destruction to parts of the Building outside the Premises), then the following
provisions shall apply:
(1) Landlord, within twenty (20) Business Days after Landlord
has notice of such damage, shall designate an independent, reputable contractor,
registered architect or licensed professional engineer, having at least ten (10)
years' experience in the applicable areas of expertise (any such contractor,
architect or engineer being herein called an "EXPERT") to act in accordance with
the provisions of this Section 19.03, which Expert shall be subject to Tenant's
approval, which approval shall not be unreasonably withheld. In any case that
Landlord requests Tenant's
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approval of one or more designated Experts (together with a brief written
description of each such entity's qualifications), Tenant, within five (5)
Business Days after Tenant's receipt of such request, shall either grant or deny
such approval with respect to each such Expert (it being agreed that Tenant's
failure to deny such approval of any such Expert in a notice setting forth, in
reasonable detail, its reasons therefor, within such five (5) Business Day
period shall be deemed an approval of such Expert). Tenant further agrees that
if, in connection with any fire or other casualty, an Expert has been approved
for substantially similar purposes by a tenant of the Building (other than
Tenant) that leases in excess of 300,000 rentable square feet in the Building,
then, with respect to such fire or other casualty, Tenant's approval of such
Expert shall be deemed given. Within twenty (20) Business Days after an Expert
has been approved (or deemed approved) by Tenant, Landlord shall deliver to
Tenant a statement prepared by such Expert setting forth such Expert's estimate
as to the time period (measured from the date of the fire or other casualty)
required for the substantial completion of so much of the Landlord Restoration
Work as is needed to allow the Premises, subject to the completion of the
applicable Tenant Restoration Work, to be made tenantable (the time period so
set forth in such estimate is referred to as the "SECTION 19.03 ESTIMATED
PERIOD").
(2) If the Section 19.03 Estimated Period exceeds nine (9)
months from the date of the fire or other casualty, then Tenant may elect to
terminate this lease by notice to Landlord given not later than twenty (20)
Business Days following receipt of such estimate, which notice shall set forth
the date upon which this lease shall terminate, which date shall in no event be
less than ten (10) days nor more than twelve (12) months following the date of
Tenant's notice (and in no event after the Expiration Date). If Tenant makes
such election, then this lease shall terminate upon the termination date set
forth in Tenant's notice as if such date was the Expiration Date.
(3) If (i) Tenant shall not have elected to terminate this
lease pursuant to Section 19.03(a)(2) above (or if Tenant shall not have been
entitled to terminate this lease pursuant to Section 19.03(a)(2) above), and
(ii) as of the Section 19.03 Outside Date (as defined below), Landlord shall not
have effected the substantial completion of so much of the Landlord Restoration
Work as is needed to allow the Premises, subject to the completion of the
applicable Tenant Restoration Work, to be made tenantable, then Tenant, as its
sole remedy on account thereof, may elect to terminate this lease by notice to
Landlord given not later than thirty (30) days following Section 19.03 Outside
Date, which notice shall set forth the date upon which this lease shall
terminate, which date shall in no event be less than ten (10) days nor more than
twelve (12) months after the date of Tenant's notice (and in no event after the
Expiration Date). The term "SECTION 19.03 OUTSIDE DATE", with respect to any
fire or other casualty, shall mean the later to occur of (I) the date that is
sixty days (60) days after the last day of the Section 19.03 Estimated Period,
and (II) the date that is nine (9) months after the date of the fire or other
casualty; except that the
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Section 19.03 Outside Date shall be postponed, but not by more than additional
sixty (60) days, by Events of Force Majeure.
(b) Upon the termination of this lease under any of the conditions
provided above in this Section 19.03, Tenant's liability for Fixed Rent, Tax
Payments and Operating Payments shall, subject to the provisions of Section
19.02, be prorated and adjusted as of the termination date.
19.04. (a) If, at anytime during the term of this lease, the Building shall
be materially damaged or destroyed by fire or other casualty (whether or not any
portion of the Premises is damaged, destroyed or rendered untenantable), then
Landlord, at anytime thereafter (but in no event more than sixty (60) days after
the date of the fire or other casualty), may designate an Expert to act in
accordance with the provisions of this Section 19.04, which Expert shall be
subject to Tenant's approval, which approval shall not be unreasonably withheld.
In any case that Landlord requests Tenant's approval of one or more designated
Experts (together with a brief written description of each such entity's
qualifications), Tenant, within five (5) Business Days after Tenant's receipt of
such request, shall either grant or deny such approval of each such Expert (it
being agreed that Tenant's failure to deny such approval of any such Expert in a
notice setting forth, in reasonable detail, its reasons therefor, within such
five (5) Business Day period shall be deemed an approval of such Expert). Tenant
further agrees that if an Expert has been approved, with respect to any fire or
other casualty, for substantially similar purposes by a tenant of the Building
(other than Tenant) that leases in excess of 300,000 rentable square feet in the
Building, then, with respect to such fire or other casualty, Tenant's approval
of such Expert shall be deemed given. At anytime after an Expert has been
approved (or deemed approved) by Tenant (but in no event more than thirty (30)
days after such Expert was approved or deemed approved), Landlord may deliver to
Tenant a statement prepared by such Expert setting forth such Expert's estimate
of (i) the time required to fully repair and restore the Base Building (measured
from the date of the fire or other casualty) and/or (ii) the cost of such repair
and restoration (such estimate being herein called the "SECTION 19.04
ESTIMATE").
(b) If the Section 19.04 Estimate shall indicate that the full
repair and restoration of the Base Building requires either (i) more than twelve
(12) months (measured from the date of the fire or other casualty) or (ii) the
expenditure of more than forty (40%) percent of the full insurable value of the
Base Building determined as of the date immediately prior to the casualty (which
term "FULL INSURABLE VALUE" shall refer to the replacement cost of the Base
Building, less the cost of footings, foundations and other structures below the
ground level of the Building), then, in either of such events, Landlord may
terminate this lease by giving Tenant notice to such effect within twenty (20)
Business Days after the date of the Section 19.04 Estimate (but not, in any
event, later than ninety (90) days after such fire or other casualty), which
notice shall set forth the date for the termination of this lease, which
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date shall not be less than three (3) months nor more than twelve (12) months
from the date of such notice. If Landlord makes such election, then this lease
shall terminate on the termination date set forth in Landlord's notice as if the
same was the Expiration Date, and the Fixed Rent, Tax Payments and Operating
Payments shall, subject to the provisions of Section 19.02, be prorated and
adjusted as of such termination date.
19.05. Except as expressly provided in this Article 19, neither Landlord
nor Tenant shall be entitled to terminate this lease on account of damage or
destruction by fire or other casualty. Landlord shall have no liability to
Tenant for inconvenience, loss of business or annoyance arising from any repair
or restoration of any portion of the Premises or of the Building pursuant to
this Article 19. Landlord shall prosecute the Landlord Restoration Work with
diligence and continuity (subject to Force Majeure) and consistent with the
provisions of Section 35.15 hereof, and, without limiting the generality of the
foregoing, shall use reasonable efforts to complete the applicable portions of
any Landlord Restoration Work prior to end of any Section 19.03 Estimated
Period; provided, however, that, except as expressly provided in Section 35.15
hereof, in no event shall Landlord ever be obligated to perform any Landlord
Restoration Work except during Business Hours on Business Days.
19.06. Landlord will not be required to carry insurance of any kind on
Tenant's Improvements or Tenant's Property and shall not be required to repair
any damage to or replace Tenant's Improvements or Tenant's Property.
19.07. The provisions of this Article 19 shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, providing for such a contingency in the absence of an express agreement,
and any other law of like import, now or hereafter in force, shall have no
application in such case.
19.08. All proceeds of the insurance maintained by Tenant under clause (a)
of the first sentence of Section 9.03 with respect to Tenant's Improvements
shall be endorsed to, and deposited with, Landlord; such proceeds, together with
any interest earned thereon, being herein called the "DEPOSITED PROCEEDS".
Landlord shall disburse or retain the Deposited Proceeds in accordance with the
following provisions of this Section 19.08:
(a) If neither Landlord nor Tenant shall terminate this lease
pursuant to the provisions of Sections 19.03 or 19.04 hereof, then Landlord,
from and after the date that Tenant no longer has any further right to terminate
this lease pursuant to Section 19.03 hereof, shall make disbursements of the
Deposited Proceeds to Tenant as follows:
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(1) If Tenant is required pursuant to the provisions of
Section 19.01 to perform any Tenant Restoration Work (such required work being
herein called the "REQUIRED TENANT RESTORATION WORK"), Landlord shall (A) first,
disburse the Deposited Proceeds to Tenant as reimbursement for the costs and
expenses (including hard and soft costs, including without limitation clean-up,
rubbish and debris removal, and architectural and engineering fees) incurred by
Tenant in the prosecution of such Required Tenant Restoration Work
(collectively, the "REQUIRED TENANT RESTORATION COSTS"), such Deposited Proceeds
to be disbursed in accordance with the provisions of Section 36.01(a) and (b),
mutatis mutandis, except that references therein to (i) "Landlord's
Contribution" shall be deemed to mean the Required Tenant Restoration Costs,
(ii) "Initial Tenant Work" shall be deemed to mean the Required Tenant
Restoration Work, (iii) "One Million Nine Hundred Ten Thousand Four Hundred
Fifty-Nine and 98/100 ($1,910,459.98)" shall be deemed to mean the entire
Deposited Proceeds, and (iv) "Tenant's Soft Costs" shall be deemed to mean the
soft costs incurred by Tenant in the prosecution of the Tenant Restoration Work.
Sections 36.03 and 36.04 shall apply, mutatis mutandis, to the payment of the
Deposited Proceeds pursuant to the foregoing provisions of this Section
19.08(a), and (B) second, together with the final disbursement of Deposited
Proceeds as reimbursement for the Required Tenant Restoration Costs pursuant to
the foregoing provisions, also disburse the balance, if any, of the Deposited
Proceeds to Tenant.
(2) If there is no Required Tenant Restoration Work, then
Landlord shall disburse the entire Deposited Proceeds to Tenant. Such
disbursement to Tenant shall be made within thirty (30) days after the date that
Tenant no longer has any further right to terminate this lease pursuant to
Section 19.03 hereof.
(b) If this lease shall be terminated by Tenant pursuant to Section
19.03 hereof, then Landlord (i) may retain the Deposited Proceeds up an amount
equal to the Unamortized Contribution Amount as of the date of such termination,
and (ii) shall disburse the balance, if any, of the Deposited Proceeds to
Tenant. Such disbursement to Tenant, if any, shall be made within thirty (30)
days after the date of such termination. As used herein, the "UNAMORTIZED
CONTRIBUTION AMOUNT", as of any date, shall mean the principal balance which
would be outstanding, as of such date, under a loan (i) advanced on the Rent
Commencement Date in an original principal amount equal to Landlord's
Contribution, (ii) bearing interest at a rate of 9% per annum, and (iii)
providing for combined constant monthly payments of principal and interest
sufficient to fully liquidate such loan over the period commencing on the Rent
Commencement Date and ending on the Expiration Date.
(c) If this lease shall be terminated by Landlord pursuant to
Section 19.04 hereof, then Landlord, except to the extent it may have previously
disbursed the Deposited Proceeds to Tenant pursuant to Section 19.08(a) above,
shall disburse the entire Deposited Proceeds to Tenant. Such disbursement to
Tenant shall be made within thirty (30) days after the date of such termination.
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ARTICLE 20
Eminent Domain
20.01. If the whole of the Building or the Premises shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall terminate as of
the date of the vesting of title in connection with such taking (herein called
"DATE OF THE TAKING"), and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such date.
20.02. If any part of the Building or the Land shall be so taken, this
lease shall be unaffected by such taking, except that (a) if more than twenty
(20%) percent of the Building or if twenty (20%) percent or more of the rentable
area of the Premises shall be so taken, then, in either event, Landlord may, at
its option, terminate this lease by giving Tenant notice to that effect within
ninety (90) days after the Date of the Taking, and (b) if twenty (20%) percent
or more of the rentable area of the Premises shall be so taken and the remaining
rentable area of the Premises shall not be reasonably sufficient for Tenant to
continue feasible operation of its business, then Tenant may terminate this
lease by giving Landlord notice to that effect within ninety (90) days after the
Date of the Taking. This lease shall terminate on the date that such notice from
Landlord or Tenant to the other shall be given, and the Fixed Rent and
Additional Charges shall be prorated and adjusted as of such termination date.
Upon such partial taking and this lease continuing in force as to any part of
the Premises, the Fixed Rent, Tenant's Tax Share and Tenant's Operating Share
shall be reduced and the Base Tax Amount and Base Operating Amount shall be
adjusted, all in the proportion that the area of the Premises taken bears to the
total area of the Premises.
20.03. Landlord shall be entitled to receive the entire award or payment in
connection with any taking without reduction therefrom for any estate vested in
Tenant by this lease or any value attributable to the unexpired portion of the
term of this lease and Tenant shall receive no part of such award. Tenant hereby
expressly assigns to Landlord all of its right, title and interest in and to
every such award or payment and waives any right to the value of the unexpired
portion of the term of this lease, except as set forth in the preceding
sentence. Tenant may maintain a separate action for Tenant's Property and moving
expenses; provided, however, that any award shall not result in a reduction of
Landlord's award.
20.04. If the temporary use or occupancy of all or any part of the Premises
shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose during the term of this lease (any such taking being
herein called a "TEMPORARY TAKING"), then (i) this lease shall be and remain
unaffected
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by such taking and Tenant shall continue to be responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking and shall continue to pay in full the Fixed Rent and Additional Charges
when due, (ii) Tenant shall be entitled, except as hereinafter set forth, to
receive that portion of the award for such temporary taking which represents
compensation for the use and occupancy of the Premises, for the temporary taking
of Tenant's Improvements, Tenant's Property and for moving expenses, and (iii)
Landlord shall be entitled to receive that portion of the award, if any, for
such temporary taking which represents reimbursement for the cost of restoring
the Premises. If the period of temporary use or occupancy shall extend beyond
the Expiration Date of this lease, that part of the award which represents
compensation for the use and occupancy of the Premises (or a part thereof) shall
be divided between Landlord and Tenant so that Tenant shall receive so much
thereof as represents the period up to and including such Expiration Date and
Landlord shall receive so much thereof as represents the period after such
Expiration Date.
20.05. In the event of a taking of less than the whole of the Building
and/or the Land which does not result in termination of this lease, or in the
event of a temporary taking of all or any part of the Premises which does not
result in a termination of this lease, (a) Landlord, at its expense, and whether
or not any award or awards shall be sufficient for the purpose (except as
provided below)~ shall proceed with reasonable diligence to perform the
Landlord's Condemnation Work (as defined below), and (b) Tenant, at its expense,
and whether or not any award or awards shall be sufficient for the purpose,
shall have the right (but shall not be obligated) to perform the Tenant's
Condemnation Work (as defined below). The "LANDLORD'S CONDEMNATION WORK" shall
mean the work necessary to repair the remaining parts of the Building and the
Premises (other than the Tenant's Improvements and Tenant's Property) to
substantially their former condition to the extent that the same may be feasible
(subject to reasonable changes which Landlord shall deem desirable) and so as to
constitute a complete and rentable Building and Premises. The "TENANT'S
CONDEMNATION WORK" shall mean the work necessary to repair the Tenant's
Improvements and Tenant's Property, to substantially their former condition to
the extent that the same may be feasible, subject to reasonable changes which
shall be deemed Alterations.
ARTICLE 21
Surrender
21.01. On the Expiration Date, or upon any earlier termination of this
lease, or upon any reentry by Landlord upon the Premises pursuant to Article 23,
Tenant shall quit and surrender the Premises to Landlord "broom-clean" and in
good order, condition and repair, except for ordinary wear and tear and such
damage or
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destruction as Landlord is required to repair or restore under this lease or
Tenant is not required under this lease to repair or restore, and Tenant (i)
shall remove those Tenant's Improvements which it is required to remove pursuant
to Article 12 hereof and (ii) shall remove all of the Tenant's Property except
as otherwise expressly provided in this lease.
21.02. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord and each
Underlying Lessor and Mortgagee (of which Tenant has knowledge) whose lease or
mortgage, as the case may be, provides that no such surrender may be accepted
without its consent.
ARTICLE 22
Conditions of Limitation
22.01. This lease and the term and estate hereby granted are subject to the
limitation that whenever Tenant shall make a general assignment for the benefit
of creditors, or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition alleging an act of bankruptcy or
insolvency shall be filed against Tenant under any bankruptcy or insolvency law
(and such petition shall not be dismissed within 120 days after its filing), or
whenever a petition shall be filed by or against (and if against, such petition
shall not be dismissed within 120 days after its filing) Tenant under the
reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant, under the arrangement provisions of the United States Bankruptcy Code or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant, or of or for the property of Tenant, shall be appointed and not
removed after a period of 120 days, then Landlord, at any time after the
occurrence of any such event, may give Tenant a notice of intention to end the
term of this lease at the expiration of five days from the date of service of
such notice of intention, and upon the expiration of said five-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 of this lease, but Tenant shall remain liable for
damages as provided in Article 24.
22.02. This lease and the term and estate hereby granted are subject to the
further limitations that:
(a) if Tenant shall default in the payment of any (i) Fixed Rent,
and such default shall continue for ten (10) days after notice thereof from
Landlord or (ii) Additional Charges, and such default shall continue for a
period of fifteen (15) days after notice thereof from Landlord, or
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(b) if Tenant shall, whether by action or inaction, be in default of
any of its obligations under this lease (other than a default in the payment of
Fixed Rent or Additional Charges) and such default shall continue and not be
remedied as soon as reasonably practicable and in any event within thirty (30)
days after Landlord shall have given to Tenant a notice specifying the same, or,
in the case of a default which cannot with due diligence be cured within a
period of thirty (30) days, if Tenant shall not (x) within said thirty (30) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (y) duly commence within said 30-day period, and thereafter
diligently prosecute to completion all steps necessary to remedy the default and
(z) complete such remedy within a reasonable time after the date of said notice
of Landlord, or
(c) if 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 expressly permitted by
Article 7.
Then in any of said cases Landlord may give to Tenant a notice of
intention to end the term of this lease at the expiration of ten (10) days from
the date of the service of such notice of intention, and upon the expiration of
said ten (10) days 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 was the day herein definitely fixed for the end and
expiration of this lease, but Tenant shall remain liable for damages as provided
in Article 24.
22.03. (a) If Tenant shall have assigned its interest in this lease, and
this lease shall thereafter be disaffirmed or rejected in any proceeding under
the United States Bankruptcy Code or under the provisions of any Federal, state
or foreign law of like import, or in the event of termination of this lease by
reason of any such proceeding, the assignor or any of its predecessors in
interest under this lease, upon request of Landlord given within ninety (90)
days after such disaffirmance or rejection shall (a) pay to Landlord all Fixed
Rent and Additional Charges then due and payable to Landlord under this lease to
and including the date of such disaffirmance or rejection and (b) enter into a
new lease as lessee with Landlord of the Premises for a term commencing on the
effective date of such disaffirmance or rejection and ending on the Expiration
Date, unless sooner terminated as in such lease provided, at the same Fixed Rent
and Additional Charges and upon the then executory terms, covenants and
conditions as are contained in this lease, except that (i) the rights of the
lessee under the new lease, shall be subject to any possessory rights of the
assignee in question under this lease and any rights of persons claiming through
or under such assignee, (ii) such new lease shall require all defaults existing
under this lease to be cured by the lessee with reasonable diligence, and (iii)
such new lease shall require the lessee to pay all Additional Charges which, had
this lease not been disaffirmed or rejected, would have become due after the
effective date of
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such disaffirmance or rejection with respect to any prior period. If the lessee
shall fail or refuse to enter into the new lease within ten (10) days after
Landlord's request to do so, then in addition to all other rights and remedies
by reason of such default, under this lease, at law or in equity, Landlord shall
have the same rights and remedies against the lessee as if the lessee had
entered into such new lease and such new lease had thereafter been terminated at
the beginning of its term by reason of the default of the lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is permitted to assign
this lease in disregard of the restrictions contained in Article 7 (or if this
lease shall be assumed by a trustee), the trustee or assignee shall cure any
default under this lease and shall provide adequate assurance of future
performance by the trustee or assignee including (i) the source of payment of
rent and performance of other obligations under this Lease, for which adequate
assurance shall mean the deposit of cash security with Landlord in an amount
equal to the sum of one year's Fixed Rent then reserved hereunder plus an amount
equal to all Additional Charges payable under Article 3 for the calendar year
preceding the year in which such assignment is intended to become effective,
which deposit shall be held by Landlord, without interest, for the balance of
the term as security for the full and faithful performance of all of the
obligations under this lease on the part of Tenant yet to be performed, and that
any such assignee of this lease shall have a net worth exclusive of good will,
computed in accordance with generally accepted accounting principles, equal to
at least ten (10) times the aggregate of the annual Fixed Rent reserved
hereunder plus all Additional Charges for the preceding calendar year as
aforesaid and (ii) that the use of the Premises shall in no way diminish the
reputation of the Building as a first-class office building or impose any
additional burden upon the Building or increase the services to be provided by
Landlord. If all defaults are not cured and such adequate assurance is not
provided within 60 days after there has been an order for relief under the
Bankruptcy Code, then this lease shall be deemed rejected, Tenant or any other
person in possession shall vacate the Premises, and Landlord shall be entitled
to retain any rent or security deposit previously received from Tenant and shall
have no further liability to Tenant or any person claiming through Tenant or any
trustee. If Tenant receives or is to receive any valuable consideration for such
an assignment of this Lease, such consideration, after deducting therefrom (a)
the brokerage commissions, if any, and other expenses reasonably incurred by
Tenant for such assignment and (b) any portion of such consideration reasonably
designed by the assignee as paid for the purchase of Tenant's Property in the
Premises, shall be and become the sole exclusive property of Landlord and shall
be paid over to Landlord directly by such assignee.
(c) If Tenant's trustee, Tenant or Tenant as debtor-in-possession
assumes this lease and proposes to assign the same (pursuant to Title 11 U.S.C.
Section 365, as the same may be amended) to any person, including, without
limitation, any individual, partnership or corporate entity, who shall have made
a bona fide offer to
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accept an assignment of this lease on terms acceptable to the trustee, Tenant or
Tenant as debtor-in-possession, then notice of such proposed assignment, setting
forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) the adequate assurance to be provided Landlord
to assure such person's future performance under this lease, including, without
limitation, the assurances referred to in Title 11 U.S.C. Section 365(b)(3) (as
the same may be amended), shall be given to Landlord by the trustee, Tenant or
Tenant as debtor-in-possession no later than twenty (20) days after receipt by
the trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any
event no later than ten (10) days prior to the date that the trustee, Tenant or
Tenant as debtor-in-possession shall make application to a court of competent
jurisdiction for authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior right and option, to be
exercised by notice to the trustee, Tenant or Tenant as debtor-in-possession,
given at any time prior to the effective date of such proposed assignment, to
accept an assignment of this lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such person, less
any brokerage commissions which may be payable out of the consideration to be
paid by such person for the assignment of this lease.
ARTICLE 23
Reentry by Landlord
23.01. If Landlord obtains a court order permitting reentry, or if this
lease shall terminate as provided in Article 22, Landlord or Landlord's agents
and employees may immediately or at any time thereafter reenter 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 same, and may remove any person
therefrom, to the end that Landlord may have, hold and enjoy the Premises. The
word "reenter", as used herein, is not restricted to its technical legal
meaning. If this lease is terminated under the provisions of Article 22, or if
Landlord shall reenter the Premises under the provisions of this Article, or in
the event of the termination of this lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the Fixed Rent and Additional Charges payable up to the time of such
termination of this lease, or of such recovery of possession of the Premises by
Landlord, as the case may be, and shall also pay to Landlord damages as provided
in Article 24.
23.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not
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intended to be exclusive of any other remedies to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
23.03. If this lease shall terminate under the provisions of Article 22, or
if Landlord shall reenter the Premises under the provisions of this Article, or
in the event of the termination of this lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
Fixed Rent or Additional Charges due from Tenant at the time of such termination
or reentry or, at Landlord's option, against any damages payable by Tenant under
Article 24 or pursuant to law.
ARTICLE 24
Damages
24.01. If this lease is terminated under the provisions of Article 22, or
if Landlord shall reenter the Premises under the provisions of Article 23, or in
the event of the termination of this lease by reason of Tenant's default, or of
reentry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the then present value, discounted to present value at the Article 24
Discount Rate (as defined below), of the excess, if any, of
(1) the aggregate amount of the Fixed Rent and the Additional
Charges under Article 3 which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges under
Article 3 to be the same as were payable for the last 12 calendar
months, or if less than 12 calendar months have then elapsed since
the Commencement Date, all of the calendar months immediately
preceding such termination or reentry) for the period (herein called
the "COMPUTATION PERIOD") commencing with such earlier termination
of this lease or the date of any such reentry, as the case may be,
and ending with the date contemplated as the Expiration Date hereof
if this lease had not so terminated or if Landlord had not so
reentered the Premises, over
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(2) the aggregate rental value of the Premises for the
Computation Period; or
(b) sums equal to the Fixed Rent and the Additional Charges under
Article 3 which would have been payable by Tenant had this lease not so
terminated, or had Landlord not so reentered the premises, payable upon the
due dates therefor specified herein following such termination or such
reentry and until the date contemplated as the Expiration Date hereof if
this lease had not so terminated or if Landlord had not so reentered the
Premises; provided, however, that if Landlord shall relet the Premises
during said period, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord
from such reletting the expenses incurred or paid by Landlord in
terminating this lease or in reentering the Premises and in securing
possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Premises for new tenants,
brokers' commissions, legal fees, and all other expenses properly
chargeable against the Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or longer
than the remaining term of this lease; but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by
Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this subdivision to a credit in
respect of any net rents from a reletting, except to the extent that such
net rents are actually received by Landlord. If the Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received
from such reletting and of the expenses of reletting.
If the Premises or any part thereof should be occupied by Landlord (or, if on
other than on an arms' length basis, by Landlord's agents or Affiliates) for the
conduct of such party's ordinary business (as distinguished from temporary use
for the business of operating and/or leasing the Real Property), then Landlord
shall credit Tenant with the fair market rental value of the portion of the
Premises so occupied, minus the costs incurred by Landlord (or such agent or
affiliate) to prepare such portion for its occupancy.
If the Premises or any part thereof be relet by Landlord for the unexpired
portion of the term of this lease, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Premises, or part thereof, so relet during the term of the
reletting.
Landlord shall not be liable in any way whatsoever for its failure or refusal to
relet the Premises or any part thereof, or if the Premises or any part thereof
are relet, for
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its failure to collect the rent under such reletting, and no such refusal or
failure to relet or failure to collect rent shall release or affect Tenant's
liability or damages or otherwise under this lease.
For the purposes of this Article 24, the "ARTICLE 24 DISCOUNT RATE" shall mean
the per annum rate in effect on the first day of the Computation Period, equal
to the interest rate on United States Treasury Securities having a maturity date
that will occur within the same calendar month as occurs the 60% Day (as defined
below). The "60% DAY" shall be the day that occurs the following number of days
after the first day of the Computation Period: a number of days equal to the
product obtained by multiplying the total number of days in the Computation
Period by 0.6. If at any time United States Treasury Securities cease to be
issued or actively traded, Landlord, upon written notice to Tenant, shall
reasonably designate other obligations backed by the full faith and credit of
the United States having such maturities as the instruments to be substituted
for such United States Treasury Securities in order to compute the Treasury
Rate.
24.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, 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 if it had not been
so terminated under the provisions of Article 22, or had Landlord not reentered
the Premises. Nothing herein contained shall be construed to limit or preclude
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, except consequential
damages. Nothing herein contained shall be construed to limit or prejudice the
right of Landlord to prove for and obtain as damages by reason of the
termination of this lease or reentry on the Premises for the default of Tenant
under this lease an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved whether or not such amount be greater than any of the
sums referred to in Section 24.01, except consequential damages.
24.03. In addition, if this lease is terminated under the provisions of
Article 22, or if Landlord shall reenter the Premises under the provisions of
Article 23, Tenant agrees that:
(a) the Premises then shall be in the condition in which Tenant has
agreed to surrender the same to Landlord at the expiration of the term hereof;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this lease for the making of any Alterations or
for restoring or rebuilding the Premises or the Building, or any part thereof;
and
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(c) for the breach of any covenant of Tenant set forth above in this
Section 24.03, Landlord shall be entitled immediately, without notice or other
action by Landlord, to recover, and Tenant shall pay, as and for liquidated
damages therefor, the cost of performing such covenant (as estimated by an
independent contractor selected by Landlord).
24.04. In addition to any other remedies Landlord may have under this
lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under Article 22, if any Fixed Rent, Additional Charges or damages
payable hereunder by Tenant to Landlord are not paid within five (5) Business
Days after the due date therefor, the same shall bear interest at the Interest
Rate, from the due date thereof until paid, and the amount of such interest
shall be an Additional Charge hereunder.
ARTICLE 25
Affirmative Waivers
25.01. Tenant, on behalf of itself and any and all persons claiming through
or under Tenant, does hereby waive and surrender all right and privilege which
it, 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 after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of this lease as provided in this lease.
25.02. If Tenant is in arrears in payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Tenant agrees that Landlord
may apply any payments made by Tenant to such items as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items which any such payments shall be credited.
25.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
25.04. Tenant shall not interpose any counterclaim of any kind in any
summary action or proceeding commenced by Landlord to recover possession of the
Premises, other than a counterclaim which states only one or more claims which,
if not raised in such action or proceeding, would be irrevocably waived by
Tenant.
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ARTICLE 26
No Waivers
26.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this lease or of the right to exercise such election, and such
right to insist upon strict performance shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission. The receipt
by Landlord of Fixed Rent or partial payments thereof or Additional Charges or
partial payments thereof with knowledge of breach by Tenant of any obligation of
this lease shall not be deemed a waiver of such breach.
26.02. If this lease is terminated by Landlord or by Tenant pursuant to any
of the terms hereof, Tenant shall not have the right by virtue of any renewal
option herein granted to reinstate this lease.
ARTICLE 27
Curing Tenant's Defaults
27.01. If Tenant shall default in the performance of any of Tenant's
obligations under this lease, Landlord, any Underlying Lessor or any Mortgagee
without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency, and in any other case only if such default continues after
the expiration of any applicable notice and cure period. If Landlord effects
such cure by bonding any lien which Tenant is required to bond or otherwise
discharge, Tenant shall obtain and substitute a bond for Landlord's bond at its
sole cost and expense and reimburse Landlord for the cost of Landlord's bond.
27.02. Bills for any expenses incurred by Landlord or any Underlying Lessor
or any Mortgagee in connection with any such performance by it for the account
of Tenant, and, if Landlord shall be the successful party in any action or suit,
bills for all costs, expenses and disbursements of every kind and nature
whatsoever, including reasonable counsel fees, involved in collecting or
endeavoring to collect the Fixed Rent or Additional Charges or any part thereof
or enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in
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recovering possession of the Premises after default by Tenant or upon the
expiration or sooner termination of this lease, and interest on all sums
advanced by Landlord or such Underlying Lessor or Mortgagee under this Section
and/or Section 27.01 (at the Interest Rate) may be sent by Landlord or such
Underlying Lessor or Mortgagee to Tenant monthly, or immediately, at its option,
and such amounts shall be due and payable as Additional Charges in accordance
with the terms of such bills.
ARTICLE 28
Broker
28.01. Landlord and Tenant each covenant, warrant and represent to the
other that no broker except Cushman & Wakefield, Inc. and Equis Corporation
(collectively, the "BROKERS") was instrumental in bringing about or consummating
this lease and that they have had no conversations or negotiations with any
broker except the Brokers concerning the leasing of the Premises. Landlord and
Tenant each agree to indemnify and hold harmless the other against and from any
claims for any brokerage commissions and all costs, expenses and liabilities in
connection therewith, including, without limitation, attorneys' fees and
expenses, arising out of any conversations or negotiations had by that party
with any broker other than the Brokers. Landlord agrees to pay the Brokers
pursuant to a separate agreements.
ARTICLE 29
Notices
29.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
Landlord or Tenant pursuant to this lease or pursuant to any applicable law or
requirement of public authority (collectively, "NOTICES") shall be in writing
(whether or not so stated elsewhere in this lease) and shall be deemed to have
been properly given, rendered or made only if sent by (i) registered or
certified mail, return receipt requested, posted in a United States post office
station or letter box in the continental United States or (ii) overnight courier
service, addressed, in either event, to the other party at the address
hereinabove set forth (except that after the Business Occupancy Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the
Building), and shall be deemed to have been given, rendered or made on the
Business Day after the day so mailed, unless mailed outside of the State of New
York, in which case it shall be deemed to have been given, rendered or made on
the third (3rd) Business Day after the day so mailed or when delivered by
overnight courier service; provided, however, that notices of default given by
one party hereto to the other shall be deemed to have been given, rendered or
made on the day when
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actually receipted by the sendee (or if the sendee refuses to accept such
notice, then on the day on which the sendee refused to accept delivery of such
notice). Either party may, by notice as aforesaid, designate a different address
or addresses for notices intended for it. Notwithstanding the foregoing, (a)
with respect to a default or termination of this lease, an occurrence presenting
imminent danger to the health or safety of persons or damage to property in, on
or about the Building or during a postal strike, notices may be hand delivered
to a party at the address to which notices to that party are to be sent,
provided that the same notice is also sent in the manner set forth above, and
(b) requests for Overtime AC, Overtime Heat, Overtime Ventilation or Overtime
Freight Elevator Service may be hand delivered to the applicable Building
Office.
29.02. Notices hereunder from Landlord to Tenant may be given by Landlord's
managing agent, if any, or Landlord's attorney.
29.03. A duplicate copy of all notices sent by Tenant to Landlord shall be
sent to Landlord at each of the following addresses: (i) Building Office, Ground
Floor, One Chase Manhattan Plaza, New York, New York 10081, Attention: Building
Manager; and (ii) Real Estate Resources, 4 Chase MetroTech Center, 17th Floor,
Brooklyn, New York 11245, Attention: Vice President.
ARTICLE 30
Estoppel Certificates
30.01. Each party agrees, at any time and from time to time, on or prior to
the tenth day following a written request by the other party, to execute and
deliver to the other a statement certifying that this lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), certifying the
Commencement Date, Expiration Date and the dates to which the Fixed Rent and
Additional Charges have been paid, stating whether or not, to the best knowledge
of the signer, the other party is in default in performance of any of its
obligations under this lease, and, if so, specifying each such default of which
the signer shall have knowledge and stating whether or not, to the best
knowledge of the signer, any event has occurred which with the giving of notice
or passage of time, or both, would constitute such a default, and, if so,
specifying each such event, it being intended that any such statement delivered
pursuant hereto shall be deemed a representation and warranty to be relied upon
by the party requesting the certificate and by others with whom such party may
be dealing, regardless of independent investigation. Tenant also shall include
or confirm in any such statement (i) the extent, if any, to which Landlord's
Work has not theretofore been completed, and/or (ii) such other Information
concerning this lease and known to Tenant as Landlord may reasonably request.
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ARTICLE 31
Definitions
31.01. For the purposes of this lease, the following terms have the
meanings indicated:
"ADJUSTED BY CPI" shall mean that the amount in question shall be
adjusted on each anniversary of the date hereof by adding to such amount in
question (as of the date hereof) an amount equal to the product of (i) such
amount, multiplied by (ii) the percentage of increase, if any, in the Consumer
Price Index for the month in which the applicable anniversary of the date hereof
occurs, over the Consumer Price Index for the month in which shall occur the
date hereof. "CONSUMER PRICE INDEX" shall mean the Consumer Price Index for all
Urban Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, New York, New York-Northeastern New Jersey Area (1982-84 =
100), or any successor index thereto, appropriately adjusted; provided that if
there shall be no successor index, a substitute index shall be reasonably
selected by Landlord.
"AFFILIATE", of any person, shall mean a corporation, partnership or
other entity which controls, is controlled by or is under common control with
such person.
"AND/OR" when applied to one or more matters or things shall be
construed to apply to any one or more or all thereof as the circumstances
warrant at the time in question.
"BASE BUILDING" shall mean (i) the structural elements of the Real
Property, (ii) the walkways, plazas, stairways and all other improvements or
landscaping on the Land, (iii) the pedestrian and freight and service entrances
to the Building, (iv) the Building's ground floor lobbies and all equipment,
improvements and fixtures therein, (v) the common and service areas of the Real
Property used by or available to tenants and occupants, and all equipment,
improvements and fixtures therein, (vi) the Building's core and its shafts,
stacks, pipes, ducts and other conduits and all other areas of the Building
located outside of the Premises and other leasable areas of the Building, and
all equipment, improvements and fixtures therein, (viii) the Building Systems
and all other facilities and equipment which are used for the provision of
Building Services (whether or not located in the Premises), (ix) the Core
Lavatories (whether or not included in the Premises), and (x) the elevator lobby
and common corridors on any multi-tenant floor and all equipment, improvements
and fixtures in such lobby and corridors; excluding, however, in all events,
Tenant's Improvements and Tenant's Property as well as the improvements and
betterments, and the moveable personal property, of other tenants of the
Building.
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"BASE BUILDING PREMISES COMPONENTS" shall mean (I) all components of
the Base Building which are within or bounding the Premises (including without
limitation the structural elements bounding the Premises) and (II) all other
components of the Base Building which are located on one or more floors on which
the Premises are located and which exclusively serve the Premises.
"BUILDING SERVICES" shall mean the services required to be furnished
to Tenant pursuant to the provisions of Article 14 or 15 hereof.
"BUILDING SYSTEMS" shall mean the electrical, HVAC, condenser water,
mechanical, sanitary, sprinkler, utility, power, plumbing, cleaning, fire
control, alarm and prevention systems, elevator, escalator, window washing,
waste compacting and removal, lighting, life safety and security systems of the
Building (together with all related equipment), brought to (and including), but
not beyond, the perimeter point of distribution to the Premises (or other
leasable area) or the perimeter point of connection to Tenant's Improvements (or
the improvements and betterments of any other tenant); provided, however, that
all components of the Building's perimeter HVAC systems (including the units and
controls located in the Premises or any other leasable area) and all components
of the Building's sprinkler system up to and including the main sprinkler loop
on each floor and all components of the Building's plumbing system in or serving
the Core Lavatories shall be deemed to be included in such term; excluding,
however, in all events, Tenant's Improvements and Tenant's Property (as well as
the improvements and betterments, and the moveable personal property, of any
other tenants of the Building). In the case of the Building's electrical system,
the aforesaid point of distribution shall be the electrical panels on the
thirty-seventh (37th) floor of the Building (or the corresponding electrical
panels on any other floor).
"CONTROL" shall mean (i) in the case of a corporation, either (A)
ownership or voting control, directly or indirectly, of at least fifty (50%)
percent of all the voting stock, or (B) the power to direct the management and
policies of such corporation, (ii) in case of a partnership or joint venture,
either (x) ownership, directly or indirectly, of at least fifty (50%) percent of
all the general or other partnership (or similar) interests therein, or (y) the
power to direct the management and policies of such partnership or joint
venture, and (iii) in the case of any other entity, either (x) ownership,
directly or indirectly, of at least fifty (50%) percent of all the equity or
other beneficial interest(s) therein, or (y) the power to direct the management
and policies of such entity.
"CORE LAVATORIES" shall mean (a) the Building's lavatories located
on the floor(s) of the Building on which the Premises are located and which are
in existence of the date hereof (including all toilets, urinals, partitions,
flooring, tiling, sinks, piping, counters, soap dispensers, towel dispensers,
trash disposal containers, and other hardware, fixtures and equipment within or
serving the same from time to
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time), and (b) slop sinks located on the floor(s) of the Building on which the
Premises are located and which are in existence on the date hereof (including
the slop sinks and other hardware, fixtures and equipment within or serving the
same from time to time).
"FORCE MAJEURE" and/or "EVENT(S) OF FORCE MAJEURE" shall mean fire,
casualty, any strike, lock-out or other labor trouble, governmental preemption
of priorities or other controls in connection with a national or other public
emergency or shortages of fuel, supplies or labor resulting therefrom, or any
other cause, whether similar or dissimilar, beyond Landlord's or Tenant's
reasonable control, as the case may be; or any failure or defect in the supply,
quantity or character of electricity or water furnished to the Premises, by
reason of any requirement, act or omission of the public utility or municipality
serving the Building with electricity or water (provided such public utility's
act or omission was not due to Landlord's or Tenant's willful misconduct,
negligence or failure to remit payment to such public utility or municipality),
or for any other reason whether similar or dissimilar, beyond Landlord's or
Tenant's reasonable control, as the case may be. A party's inability to pay
money or to obtain funding or financing shall not constitute Force Majeure or an
Event of Force Majeure.
"HEREIN," "HEREOF" and "HEREUNDER," and words of similar import,
shall be construed to refer to this lease as a whole, and not to any particular
Article or section, unless expressly so stated.
"GUARANTOR" shall mean The Van Kampen Merritt Companies, Inc., as
guarantor under that certain Guaranty dated as of even date herewith, together
with any successor thereto under such Guaranty. For purposes of Sections 7.02
and 11.12 hereof, the "net worth" of the Guarantor, in order to avoid double
counting, shall be determined exclusive of any part of Guarantor's assets which
consist of the stock of, or other ownership interest in, Tenant.
"INITIALLY DEMISED PREMISES" shall mean the Premises as initially
demised as set forth in Section 1.02 hereof.
"INTEREST RATE," when used in this lease, shall mean an interest
rate equal to two percent (2%) above the so-called annual "Base Rate" of
interest established and approved by The Chase Manhattan Bank (National
Association), from time to time, as its interest rate charged for unsecured
loans to its corporate customers, but in no event greater than the highest
lawful rate from time to time in effect.
"LANDLORD" shall mean only the owner, at the time in question, of
the Building or that portion of the Building of which the Premises are a part,
or of a lease of the Building or that portion of the Building of which the
Premises are a part, so that in the event of any transfer or transfers of title
to the Building or of Landlord's
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interest in a lease of the Building or such portion of the Building, the
transferor shall be and hereby is relieved and freed of all obligations of
Landlord under this lease accruing after such transfer, and it shall be deemed,
without further agreement, that such transferee has assumed and agreed to
perform and observe all obligations of Landlord herein accruing during the
period it is the holder of Landlord's interest under this lease.
"LANDLORD PARTY" shall mean (1) any principal, partner, member,
officer, stockholder, director, employee or agent of Landlord or of any partner
or member of any partnership constituting Landlord, disclosed or undisclosed,
(2) any Underlying Lessor and any principal, partner, member, officer,
stockholder, director, employee or agent thereof, or (3) any Mortgagee and any
principal, partner, member, officer, stockholder, director, employee or agent
thereof; and "LANDLORD PARTIES" shall have the corresponding plural meaning.
"LANDLORD SHALL HAVE NO LIABILITY TO TENANT" or "THE SAME SHALL BE
WITHOUT LIABILITY TO LANDLORD" or "WITHOUT INCURRING ANY LIABILITY TO TENANT
THEREFOR", or words of similar import shall mean (unless expressly set forth
herein to the contrary) that Tenant is not entitled to terminate this lease, or
to claim actual or constructive eviction, partial, or total, or to receive any
abatement or diminution of rent, or to be relieved in any manner of any of its
other obligations hereunder, or to be compensated for loss or injury suffered or
to enforce any other right or kind of liability whatsoever against Landlord
under or with respect to this lease or with respect to Tenant's use or occupancy
of the Premises.
"LAWS AND REQUIREMENTS OF ANY PUBLIC AUTHORITIES" and words of a
similar import shall mean laws and ordinances of any or all of the federal,
state, city, county and borough governments and rules, regulations, orders and
directives of any and all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Building and/or the Premises, and the
direction of any public officer pursuant to law, whether now or hereafter in
force.
"MORTGAGE" shall include a mortgage and/or a deed of trust, and the
term "HOLDER OF A MORTGAGE" or "MORTGAGEE" or words of similar import shall
include a mortgagee of a mortgage or a beneficiary of a deed of trust.
"PERSON" shall mean any natural person or persons, a partnership,
corporation, and any other form of business or legal association or entity.
"REQUIREMENTS OF INSURANCE BODIES" and words of similar import shall
mean rules, regulations, orders and other requirements of the New York Board of
Underwriters and/or the New York Fire Insurance Rating Organization and/or any
other similar body performing the same or similar functions and having
jurisdiction
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or cognizance over the Building and/or the Premises, whether now or hereafter in
force.
"SIMILAR BUILDINGS" shall mean buildings which contain in excess of
one million rentable square feet and which are of an age and construction
similar to the Building, and which are located in the downtown Manhattan
business district; it being understood that all references to "Similar
Buildings" shall allow for differences amongst the Building and other such
buildings based upon the different facilities and features thereof.
"STRUCTURAL ELEMENTS" shall mean the roof, the slabs, the beams,
columns, girders and other structural members and connections, the interior and
exterior of all exterior walls, window frames and windows and all other parts of
the Building's structure and supports.
"TENANT" shall mean the Tenant herein named or any assignee or other
successor in interest (immediate or remote) of the Tenant herein named, which at
the time in question is the owner of the Tenant's estate and interest granted by
this lease; but the foregoing provisions of this subsection shall not be
construed to permit any assignment of this lease or to relieve the Tenant herein
named or any assignee or other successor in interest (whether immediate or
remote) of the Tenant herein named from the full and prompt payment, performance
and observance of the covenants, obligations and conditions to be paid,
performed and observed by Tenant under this lease.
"TENANT PARTY" shall mean (1) any principal, partner, member,
officer, stockholder, director, employee or agent of Tenant or of any partner or
member of any partnership constituting Tenant, disclosed or undisclosed, and (2)
any subtenant of Tenant or any other party claiming by, through or under Tenant,
and any principal, partner, member, officer, stockholder, director, employee or
agent of such subtenant or such other party; and "TENANT PARTIES" shall have the
corresponding plural meaning.
"TENANT NAMED HEREIN" shall mean McCarthy, Cristani & Maffei, Inc.,
a New York corporation. "ORIGINAL TENANT" shall mean the Tenant Named Herein and
any immediate or remote assignee under one or more assignments under Section
7.02(b) hereof.
"UNITED STATES TREASURY SECURITIES" shall mean obligations of the
United States Government Treasury, yields for which obligations are reported in
Federal Reserve Statistical Release H.15 -- Selected Interest Rates.
"UNTENANTABLE", when used with respect to the Premises, or any
portion thereof, shall mean that (i) the Premises, or such portion thereof, is
not being
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occupied by Tenant (or any Tenant Party) for the purposes demised hereunder, and
(ii) either (x) the Premises, or such portion thereof, is not reasonably capable
of being occupied by Tenant (or any Tenant Party) for the purposes demised
hereunder in a reasonable manner, or (y) the Premises, or such portion thereof,
is not accessible by means of adequate passenger elevator service; and
"TENANTABLE", when used with respect to the Premises, or any portion thereof,
shall mean that the Premises, or such portion thereof, are not untenantable.
"VKM" shall mean Van Kampen Merritt, Inc., an existing Affiliate of
Tenant to which Tenant intends to sublease a portion of the Premises pursuant to
Section 7.02(c)(1), and any successor to Van Kampen Merritt, Inc., as subtenant
under any such sublease from Tenant, pursuant to the provisions thereof
contemplated by Section 7.13(d)(2).
ARTICLE 32
No Representations by Landlord
32.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this lease and shall expressly refer to this lease.
All understandings and agreements heretofore had between the parties are merged
in this lease and any other written agreement(s) made concurrently herewith,
which alone fully and completely express the agreement of the parties and which
are entered into after full investigation, neither party relying upon any
statement or representation not embodied in this lease or any other written
agreement(s) made concurrently herewith.
ARTICLE 33
Tenant's Termination Rights
33.01. Subject to and in accordance with the provisions of this Article 33,
Tenant shall have two separate rights to terminate this lease (herein
respectively called "TERMINATION RIGHT I" and "TERMINATION RIGHT II" and
collectively called the "TERMINATION RIGHTS"), effective as of (a) in the case
of Termination Right I, November 30, 1999 (the "FIRST EARLY TERMINATION DATE")
and (b) in the case of Termination Right II, November 30, 2004 (the "SECOND
EARLY TERMINATION DATE").
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33.02. Tenant may exercise either Termination Right only by giving written
notice thereof (in either case, the "TENANT'S TERMINATION NOTICE"), which notice
shall (i) be received by Landlord on or prior to (a) in the case of the exercise
of Termination Right I, November 30, 1998 (time being of the essence), and (b)
in the case of the exercise of Termination Right II, November 30, 2003 (time
being of the essence), and (ii) be accompanied by Tenant's good and sufficient
check in the amount of (x) in the case of the exercise of Termination Right I, a
termination fee of Two Million Six Hundred Seven Thousand Eight Hundred
Twenty-Six and 25/100 ($2,607,826.25) Dollars, or (y) in the case of the
exercise of Termination Right II, a termination fee of Five Hundred Thirty-Three
Thousand Nine Hundred Eighty-Three and 48/100 ($533,983.48) Dollars. The payment
of either such termination fee shall be payable as Additional Charges hereunder.
Notwithstanding the foregoing, Landlord, at its option, may render any Tenant's
Termination Notice null and void (and, accordingly, such notice shall not be
effective to exercise the Termination Right it purports to exercise), if, on the
date Landlord receives such notice, a monetary Event of Default shall have
occurred and is then continuing (it being agreed that if Landlord shall render a
Tenant's Termination Notice null and void, then Landlord shall return to Tenant
the termination fee delivered therewith, less, at Landlord's option, any Fixed
Rent or Additional Charges then due and owing).
33.03. If Tenant timely exercises either Termination Right in accordance
with Section 33.02 above and timely pays the applicable termination fee in
accordance with Section 33.03 above, then, as of the First Early Termination
Date or Second Early Termination Date, as the case may be, this lease shall
terminate and end as fully and completely as if the First Early Termination Date
or Second Early Termination Date, as the case may be, was the Expiration Date.
Accordingly, and without limiting the generality of the foregoing, (i) on or
prior to the First Early Termination Date or Second Early Termination Date, as
the case may be, Tenant shall (and shall cause each Tenant Party) vacate the
Premises in accordance with the provisions of this lease, and (ii) as of the
First Early Termination Date or Second Early Termination Date, as the case may
be, Fixed Rent and Additional Charges shall be apportioned in the same manner
and to the same extent as if the First Early Termination Date or Second Early
Termination Date, as the case may be, was the Expiration Date.
ARTICLE 34
Holdover
34.01. (a) If Tenant shall remain in possession of any portion of the
Premises after the expiration or earlier termination of this lease, then Tenant
shall be deemed a holdover tenant and shall be liable to Landlord for rent, or a
charge in respect of use and occupancy, at a per diem rate computed at 150% of
the rate of Fixed Rent and Additional Charges payable by Tenant during the last
year of the
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term of this lease (i.e., the year immediately prior to the holdover period). In
addition to the foregoing, Landlord shall be entitled to recover from Tenant any
losses or damages arising from such holdover.
(b) Notwithstanding the foregoing, the acceptance of any rent paid
by Tenant pursuant to Section 34.01(a) above shall not preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding, and the
preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 223-c of the Real Property Law of the
State of New York.
(c) If Tenant shall remain in possession of any portion of the
Premises after the expiration or earlier termination of this lease, then Tenant
shall be subject not only to summary proceeding and all damages related thereto,
but also to any damages arising out of any lost opportunities (and/or new
leases) by Landlord to re-let the Premises (or any part thereof). All damages to
Landlord by reason of such holding over by Tenant may be the subject of a
separate action and need not be asserted by Landlord in any summary proceedings
against Tenant.
ARTICLE 35
Miscellaneous Provisions and Definitions
35.01. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this lease, in whole or in
part, including, without limitation, this Section 35.01, unless such agreement
is in writing, refers expressly to this lease and is signed by the party against
whom enforcement of the change, modification, waiver, release, discharge,
termination or effectuation of the abandonment is sought. If Tenant shall at any
time request Landlord to sublet the Premises for Tenant's account, Landlord or
its agent is authorized to receive keys for such purposes without releasing
Tenant from any of its obligations under this lease, and Tenant hereby releases
Landlord of any liability for loss or damage to any of the Tenant's Property in
connection with such subletting.
35.02. Except as otherwise expressly provided in this lease, the
obligations of this lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that (a) no violation of the
provisions of Article 7 shall operate to vest any rights in any successor or
assignee of Tenant and (b) the provisions of this Section 35.02 shall not be
construed as modifying the conditions of limitation contained in Article 22.
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35.03. Tenant shall look only to Landlord's estate and interest in the Land
and the Building 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, officers, directors,
shareholders 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 or occupancy of the Premises.
35.04. (a) The obligations of Tenant hereunder shall be in no wise
affected, impaired or excused, nor shall Landlord have any liability whatsoever
to Tenant, nor shall it be deemed a constructive eviction to the extent that
Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this lease by reason of Force Majeure.
(b) The obligations of Landlord hereunder shall be in no wise
affected, impaired or excused, nor shall Tenant have any liability whatsoever to
Landlord, to the extent that Tenant is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this lease by reason of Force Majeure
and nor shall the same give rise to any default or conditional limitation under
Article 22.
(c) If this lease specifies a time period for performance of an
obligation by any party, that time period shall be extended by the period of any
delay in such party's performance caused by Force Majeure, except that (i) in
any instance under this lease in which either party has a termination,
cancellation, rescission or revocation right, the dates on which or the
circumstances under which such party may exercise such right shall not be
affected even if the other party suffers Force Majeure (except to the extent
expressly so provided), (ii) in any instance under this lease in which Tenant
has the right to an abatement of, or a credit against, Fixed Rent or Additional
Charges, the dates in respect of which, the circumstances under which and the
amount of such abatement shall not be affected even if Landlord suffers Force
Majeure (except to the extent expressly so provided), and (iii) the date on
which any party must furnish any notice or information, make any election, or
exercise any right shall not be affected even if such party suffers Force
Majeure (except to the extent expressly so provided).
35.05. The obligations of Landlord and Tenant with respect to all periods
prior to the expiration or other termination of this lease, including without
limitation the obligation to pay, and/or to refund overpayments of, Fixed Rent
and Additional Charges, shall survive the expiration or other termination of
this lease.
35.06. Tenant shall not record this lease, any instrument modifying this
lease or any memorandum hereof or thereof.
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35.07. If Tenant shall request Landlord's consent or approval and Landlord
shall fail or refuse to give such consent or approval, Tenant shall not be
entitled to any damages or any other remedy for any such failure or refusal by
Landlord to grant its consent or approval; provided, however, that in those
cases where Landlord has expressly agreed in writing not to unreasonably
withhold its consent or approval, or where as a matter of law Landlord may not
unreasonably withhold its consent or approval, Tenant shall have the right, as
its sole and exclusive remedies, to dispute Landlord's failure or refusal to
grant its consent or approval either (i) by prosecuting an action for specific
performance, injunction and/or damages (provided that Tenant shall be entitled
to damages if and only if Landlord acted in bad faith in failing or refusing to
grant its consent or approval) or (ii) by submitting such dispute to arbitration
in accordance with Article 40 hereof. The remedies described in clause (i) and
in clause (ii) of the preceding sentence are mutually exclusive. Tenant may
elect the remedy set forth in clause (ii) above only by sending written notice
thereof to Landlord within fifteen (15) Business Days after Tenant's receipt of
the applicable denial of the consent or approval by Landlord, and, in each such
case, the sole issue to be resolved by such arbitration shall be whether
Landlord's denial of consent or approval was reasonable.
35.08. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license to enter the Premises
for the purpose of performing such work as is reasonably necessary to preserve
and protect the Building from injury or damage to support the same by proper
foundations, without any claim for damages or liability against Landlord and
without reducing or otherwise affecting Tenant's obligations under this lease.
35.09. Landlord represents that the floor load per square foot which the
floor of the Premises is designed to carry, and is capable of carrying, is fifty
(50) pounds per square foot live load. Tenant shall not place a load upon any
floor of the Premises which violates applicable law or the Certificate of
Occupancy of the Building or which exceeds the floor load per square foot which
such floor was designed to carry or which such floor is reinforced to carry. All
heavy material and/or equipment must be placed by Tenant, at Tenant's expense,
so as to distribute the weight. Business machines and mechanical equipment shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient
in Landlord's reasonable judgment to absorb and prevent vibration, noise and
annoyance. If the Premises be or become infested with vermin as a result of the
use or any misuse or neglect of the Premises by Tenant, its agents, employees,
visitors or licensees, Tenant shall at Tenant's expense cause the same to be
exterminated from time to time to the reasonable satisfaction of Landlord and
shall employ such exterminators and such exterminating company or companies as
shall be reasonably approved by Landlord.
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35.10. The submission by Landlord of this lease in draft form shall be
deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed the
lease and duplicate originals thereof shall have been delivered to the
respective parties.
35.11. 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 provisions 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 but rather shall be
enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this lease are solely for convenience of references and
shall not affect its interpretation. This lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this lease to be drafted. All terms and words used in this lease, shall
be deemed to include any other number and any other gender as the context may
require.
35.12. If under the terms of this lease Tenant is obligated to pay Landlord
a sum in addition to the Fixed Rent under the lease and no payment period
therefor is specified, Tenant shall pay Landlord the amount due within thirty
(30) days after being billed.
35.13. (a) Tenant represents and warrants that this lease has been duly
authorized, executed and delivered by Tenant and constitutes the legal, valid
and binding obligation of Tenant.
(b) Landlord represents and warrants that this lease has been duly
authorized, executed and delivered by Landlord and constitutes the legal, valid
and binding obligation of Landlord.
35.14. If any sales or other tax is payable with respect to any cleaning or
other services which Tenant purchases directly from any third party or parties,
Tenant shall file any required tax returns and shall pay any such tax, and
Tenant shall indemnify and hold Landlord harmless from and against any loss,
damage or liability suffered or incurred by Landlord on account thereof.
35.15. (a) Landlord shall use reasonable efforts to (i) conduct (or cause
to be conducted) any entry into the Premises permitted under this lease and (ii)
perform (or cause to be performed) any work performed by Landlord pursuant to
the terms hereof (including any work necessary to alleviate or minimize the
duration of any stoppage or interruption of Building Services), in a manner so
as to minimize the
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inconvenience or interference with the operation of Tenant's business in the
Premises that may occasioned thereby. Landlord, however, shall not be obligated
to continuously perform any such work and shall not be liable for any
interruptions of such work nor shall Landlord, except as expressly provided in
Section 35.15(b) below, be obligated to employ contractors or labor outside of
Business Hours on Business Days.
(b) If (i) Landlord shall perform work in the Premises or on the
floor(s) of the Building on which the Premises are located, and (ii) Tenant
furnishes Landlord with a statement requesting that Landlord perform such work
(or specifically identified portions thereof) on an overtime basis, then (A)
Landlord shall perform such work (or specifically identified portions thereof)
on such overtime basis (provided, that (x) doing so will not have an adverse
impact on other tenants of the Building, and (y) overtime labor is reasonably
available, and provided, further, that, if Tenant's aforesaid request is
received by Landlord after Landlord has either commenced the work in question or
made arrangements with respect to the timing thereof, then Landlord need only
perform such work on an overtime basis to the extent it can reasonably do so
without disruption of such work), and (B) Tenant, within thirty (30) days after
its receipt of a demand therefor, shall pay to Landlord, as Additional Charges,
all of the costs Landlord incurs in connection with the performance of such work
on an overtime basis, including, without limitation, all the costs of any
standby personnel required in connection therewith (including, without
limitation, operating engineers and stand-by electricians).
35.16. Tenant acknowledges that it has no rights to any development rights,
"air rights" or comparable rights appurtenant to the Real Property, and
consents, without further consideration, to any utilization of such rights by
Landlord and agrees to promptly execute and deliver any instruments which may be
requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent. The provisions of this Section 35.16 shall be
deemed to be and shall be construed as an express waiver by Tenant of any
interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Real Property.
35.17. Tenant agrees to keep, and cause its employees and agents to keep,
all provisions of this lease confidential and shall not disclose same to any
other person, other than as and when required by law, or to its accountants,
attorneys, assignees and subtenants, or to real estate brokers or consultants
advising Tenant.
35.18. Notwithstanding anything to the contrary contained in this lease,
during the continuance of any default by Tenant beyond any applicable notice and
cure period, Tenant shall not be entitled to exercise any expansion or renewal
rights or options, or to receive any funds or proceeds being held, under or
pursuant to this lease. If such default is cured prior to termination of this
Lease, Tenant shall then
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become entitled to exercise or receive the same. If this lease is terminated
prior to such default being cured, such funds shall be credited against any sums
due or becoming due to Landlord hereunder.
35.19. Landlord represents that, to the best of its knowledge, there are no
asbestos-containing materials within the Premises. If any asbestos-containing
materials are found within the Premises (other than any such materials installed
by Tenant) and the same are required to be removed, encapsulated or otherwise
treated by any law or requirement of public authorities, then Landlord, promptly
after notice from Tenant in respect thereof, shall remove, encapsulate or
otherwise treat the same in accordance with such law or requirement of public
authorities.
35.20. This lease and all rights of Tenant hereunder are and shall be
subject and subordinate in all respects to any condominium declaration and any
other documents (collectively, the "DECLARATION") which shall be recorded in
order to convert the Land and improvements erected thereon to a condominium form
of ownership in accordance with the provisions of Article 9-B of the Real
Property Law of the State of New York or any successor thereto. If any such
Declaration is to be recorded, Tenant, upon request of Landlord, shall enter
into an amendment of this lease confirming such subordination and modifying this
lease in such respects as shall be necessary to conform to such
condominiumization, including, without limitation, appropriate adjustments to
Tenant's Tax Share and Tenant's Operating Share and appropriate reductions in
the Base Tax Amount and Base Operating Amount, provided that such modifications
shall be reasonably acceptable to Tenant and shall not increase the amounts
payable by Tenant under this lease.
ARTICLE 36
Landlord's Contribution
36.01. Landlord shall reimburse Tenant for the cost (incurred by Tenant or
any Affiliates of Tenant) of the Initial Tenant Work (as defined below) and
Tenant's Soft Costs (as defined below) in an aggregate amount equal to the
lesser of (i) the cost of the Initial Tenant Work plus Tenant's Soft Costs and
(ii) One Million Nine Hundred Ten Thousand Four Hundred Fifty-Nine and 98/100
($1,910,459.98) Dollars (which lesser amount between the amount described in
clause (i) above and the amount described in clause (ii) above being herein
called the "LANDLORD'S CONTRIBUTION") upon the terms and conditions hereinafter
set forth:
(a) Landlord shall make interim disbursements of Landlord's
Contribution to Tenant, from time to time during the progress of the Initial
Tenant Work, but no more frequently than once a month, in amounts equal to
ninety (90%) percent of the cost of such Initial Tenant Work theretofore
incorporated into the
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Premises less the amount of the interim disbursements of Landlord's Contribution
theretofore made by Landlord hereunder; provided, however, that in no event
shall the aggregate of all interim disbursements under this Section 36.01(a)
exceed ninety (90%) of One Million Nine Hundred Ten Thousand Four Hundred
Fifty-Nine and 98/100 ($1,910,459.98) Dollars. Each disbursement shall be made
by Landlord within thirty (30) days after Landlord's receipt of a request
therefor from Tenant, which request shall be accompanied by (I) evidence
reasonably satisfactory to Landlord establishing that all sums due and owing to
Tenant's general contractor in excess of thirty (30) days have been paid,
including lien waivers from Tenant's general contractor with respect to the sums
paid to Tenant's general contractor, and (II) a certificate from a licensed
architect or engineer employed by Tenant to supervise the construction and
performance of the Initial Tenant Work certifying (x) the cost of such Initial
Tenant Work incorporated into the Premises, or incorporated into the Premises
since the last request, or (y) the amount requested from Landlord and that such
amount is then due and payable from Tenant or has theretofore been paid by
Tenant.
(b) The balance of Landlord's Contribution, if any, shall be
disbursed to Tenant within thirty (30) days after the completion of the Initial
Tenant Work and Landlord's receipt of a notice from Tenant (the "FINAL
CONTRIBUTION REQUEST"), stating that such Initial Tenant Work has been
completed, which notice shall be accompanied by (I) evidence reasonably
satisfactory to Landlord establishing that all sums due and owing to
contractors, subcontractors and materialmen have been paid, including final lien
waivers (or, as to any disputed sums which do not exceed $90,000 in the
aggregate, evidence reasonably satisfactory to Landlord as to the amount of such
disputed sums does not exceed $90,000 in the aggregate), (II) a certificate of
the licensed architect or engineer employed by Tenant to supervise such Initial
Tenant Work certifying (x) the total cost of the Initial Tenant Work and
Tenant's Soft Costs, and (y) that the Initial Tenant Work has been performed and
completed in accordance with the provisions of this lease and the plans and
specifications theretofore approved by Landlord, and (III) evidence that all
governmental authorities (including, without limitation, the New York City
Department of Buildings) have issued final approval of the work as built and
occupancy of the Premises.
36.02. As used herein, "INITIAL TENANT WORK" shall be deemed to mean the
Initial Alterations (inclusive of all fixtures, improvements and appurtenances
attached to or built into the Premises in accordance with Tenant's plans and
specifications), and shall not include movable partitions, business and trade
fixtures, office machinery, business equipment, furniture, furnishings and other
articles of personal property. As used herein, "TENANT'S SOFT COSTS" shall be
deemed to mean the fees and expenses of Tenant's architect and engineer
incurred, in each case, with respect to the Initial Tenant Work, and the moving
expenses incurred in connection with Tenant's move into the Premises.
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36.03. The right to receive reimbursement for the cost of Initial Tenant
Work and Tenant's Soft Costs as set forth in this Article 36 shall be for the
exclusive benefit of Tenant, it being the express intent of the parties hereto
that in no event shall such right be conferred upon or for the benefit of any
third party, including, without limitation, any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or any other person, firm or
entity.
36.04. If Landlord shall default under the provisions of Section 36.01
hereof by failing to disburse the Landlord's Contribution, or any portion
thereof, in accordance with the provisions of Section 36.01 hereof, then Tenant
may furnish to Landlord a written notice setting forth such default, which
notice shall indicate the portions of Landlord's Contribution then due and owing
to Tenant, and expressly refer to and set forth, verbatim, the provisions of
this Section 36.04. If Landlord fails to pay the portions of Landlord's
Contribution then due and owing on or prior to the date thirty (30) days after
Landlord's receipt of the aforesaid notice, then Tenant, thereafter, shall have
the right to offset such amounts against the Fixed Rent and Additional Charges
next becoming due under this lease.
36.05. (a) Tenant, as part of the Initial Alterations, shall, in accordance
with the provisions of Article 11 hereof (including without limitation Sections
11.02 and 11.04 hereof), furnish and install the main sprinkler loop for the
37th floor of the Building in accordance with all laws and requirements of
public authorities. Landlord shall reimburse Tenant the reasonable out-of-pocket
costs incurred by Tenant to so furnish and install such sprinkler loop, up to an
aggregate maximum reimbursement of $15,000. Such reimbursement shall be made
within thirty (30) days after Tenant's submission to Landlord of a written
request therefor, which request shall be accompanied by paid invoices.
(b) Tenant, in accordance with the provisions of Article 11 hereof
(including without limitation Sections 11.02 and 11.04 hereof), shall be
responsible to perform its "tie-in" work to tie-in to the Building's Class E
System through the DGP installed as part of Landlord's Work. If the reasonable
out-of-pocket costs incurred by Tenant to perform such tie-in work shall exceed
$2,000, then Landlord shall reimburse Tenant such excess. Such reimbursement
shall be made within thirty (30) days after Tenant's submission to Landlord of a
written request therefor, which request shall be accompanied by paid invoices.
ARTICLE 37
Option Space
37.01. Landlord, once during the term of this lease, shall give Tenant a
written notice (herein called the "OPTION NOTICE"), which notice shall (i)
describe certain
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office space within the Building (the location of which office space within the
Building shall be determined by Landlord in its sole discretion, provided, that
such space shall be located on a floor of the Building above the 34th floor of
the Building), which office space shall (x) consist of between 4000 and 8000
contiguous rentable square feet, (y) be commercially reasonable in shape and
configuration, and (z) contain an amount of exterior window space which bears
substantially the same ratio to the rentable area of the Option Space, as the
total amount of exterior window space on the floor on which the Option Space is
located bears to the rentable area of such floor (such office space being herein
called the "OPTION SPACE"), (ii) be accompanied by a floor plan delineating the
Option Space, (iii) set forth Landlord's good-faith determination of the Option
Space Rentable Area (as hereinafter defined), and (iv) set forth the date upon
which Landlord anticipates being able to deliver the Option Space to Tenant (the
"OPTION SPACE SCHEDULED DATE"), which date shall not be less than six (6) months
and not more than twelve (12) months from the date of the Option Notice, and
which date shall be between the fifth (5th) anniversary and the seventh (7th)
anniversary of the Commencement Date (it being agreed that, at the time that
Landlord serves the Option Notice, Landlord shall have, or reasonably believe
that it has, a contractual right to possession of the Option Space as of the
Option Space Scheduled Date); provided, however, that Landlord shall have no
obligation to deliver the Option Notice if either (I) prior to the delivery of
the Option Notice, this lease shall be terminated or cancelled for any reason
whatsoever, or (II) at anytime during the term of this lease after the
substantial completion of the Initial Alterations and prior to the delivery of
the Option Notice, the Outside Occupancy Percentage (as hereinafter defined)
shall be greater than fifty (50%) percent, or (III) at anytime during the term
of this lease after the substantial completion of the Initial Alterations and
prior to the delivery of the Option Notice, (x) there shall be no portion of the
Initially Demised Premises having a rentable area equal to or greater than
12,000 rentable square feet which is occupied by Original Tenant, and (y) there
shall be no portion of the Initially Demised Premises having a rentable area
equal to or greater than 12,000 rentable square feet which is occupied by VKM.
As used in this lease, the term "OUTSIDE OCCUPANCY PERCENTAGE" shall refer to a
fraction, expressed as percentage (x) the numerator of which is the number of
rentable square feet in all Recaptured Space and in all portions of the Premises
then subject to any sublease, other than a sublease made pursuant to Section
7.02, and (y) the denominator of which is number of rentable square feet in the
Initially Demised Premises and all Option Space and Available Space theretofore
having become a part of the Premises. Subject to the provisions of this Article
37, the Option Notice shall constitute a one-time non-recurring offer by
Landlord to Tenant to lease all (and not less than all) of the Option Space upon
the terms and conditions set forth in this Article 37.
37.02. If Tenant desires to lease the Option Space upon the terms and
conditions set forth in this Article 37, then Tenant, within twenty (20)
Business Days after Landlord shall delivered the Option Notice (time being of
the essence), shall
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deliver to Landlord a written notice to such effect (herein called the "OPTION
SPACE ACCEPTANCE NOTICE"); provided, however, that the Option Space Acceptance
Notice shall automatically be null and void if this lease shall have theretofore
been terminated or cancelled for any reason whatsoever, and Landlord, at its
option, by notice to Tenant given no later than ten (10) Business Days after
Landlord's receipt of Tenant's Option Space Acceptance Notice, may render the
Option Space Acceptance Notice null and void if, at the time that Landlord
receives the same, (i) a monetary Event of Default shall have occurred and is
then continuing, or (ii) the Outside Occupancy Percentage shall be greater than
fifty (50%) percent, or (iii) (x) there shall be no portion of the Initially
Demised Premises having a rentable area equal to or greater than 12,000 rentable
square feet which is occupied by Original Tenant, and (y) there shall be no
portion of the Initially Demised Premises having a rentable area equal to or
greater than 12,000 rentable square feet which is occupied by VKM. If Tenant
shall fail to timely and properly deliver the Option Space Acceptance Notice in
accordance with this Section 37.02 or Landlord shall render the Option Space
Acceptance Notice null and void in accordance with this Section 37.02, then, in
either event, Tenant shall be conclusively deemed to have waived any rights it
may have to lease the Option Space, and Tenant shall have no further rights and
Landlord shall have no further obligations under this Article 37.
37.03. If Tenant shall timely and properly deliver the Option Space
Acceptance Notice in accordance with the provisions of Section 37.02 above (and
Landlord shall not render the same null and void in accordance with the
provisions of Section 37.02 above), then, effective as of the Option Space
Commencement Date (as hereinafter defined), the Option Space shall become, and
be deemed to comprise, part of the Premises upon all the then executory terms
hereof (including without limitation the Expiration Date), subject to and upon
the following terms and conditions:
(a) The Fixed Rent shall be increased by, and shall thereby include,
the Option Space Fixed Rent (as hereinafter defined). The "OPTION SPACE
FIXED RENT", for any part of the term of this lease, shall mean a per annum
amount equal to the product of (x) the number rentable square feet in the
Option Space Rentable Area, multiplied by (y) the Annual Rate Per RSF (as
hereinafter defined) for such part of the term of this lease. The "ANNUAL
RATE PER RSF" shall mean (I) $28 per annum, for that part of the term of
this lease occurring between the Commencement Date and November 30, 1999
(both dates inclusive), (II) $32.25 per annum, for that part of the term of
this lease occurring between December 1, 1999 and November 30, 2004 (both
dates inclusive), and (III) $37.50 per annum, for that part of the term of
this lease occurring between December 1, 2004 and the Expiration Date (both
dates inclusive).
(b) Tenant's Operating Share and Tenant's Tax Share, respectively,
shall be appropriately increased by operation of the provisions of
Sections 3.01(n) and 3.01(o), respectively, based upon the Option Space
Rentable Area. It
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is specifically understood that the Base Tax Amount and Base Operating
Amount shall be the same for the Option Space as for the Premises
originally demised hereunder.
(c) Article 14 hereof shall apply to the Option Space upon and
subject to the following provisions: (i) Tenant, at Tenant's expense as
part of the Initial Option Space Work (as hereinafter defined), shall
install one or more "Tenant's Submeters" for the Option Space to measure
Tenant's demand and consumption of electricity in the Option Space, (ii)
Section 14.02 shall apply separately to the Option Space, and, in respect
thereof, (x) the separate "Committed Electrical Service Level" for the
Option Space shall be a level of not less than six and one-half (6-1/2)
watts multiplied by the number of rentable square feet in the Option Space
Rentable Area, (y) such separate electrical capacity shall be made
available to Tenant at one or more points on the floor of the Building on
which the Option Space is located, and (z) Section 14.02(c) shall not apply
to the Option Space, and (iii) until such time as such "Tenant's Submeters"
are installed for the Option Space, the last two (2) sentences of Section
14.03 shall apply separately to the Option Space.
(d) Article 15 hereof shall apply to the Option Space upon and
subject to the following provisions: (i) Section 15.01(a) and the other
provisions of Article 15 dealing with the Business Occupancy Date shall
apply separately to the Option Space (and thus reflect a separate "Business
Occupancy Date" for the Option Space, which shall be the date for the
commencement of certain services to the Option Space as more particularly
provided in Article 15), and (ii) Section 15.04 shall apply separately to
the Option Space, and, in respect thereof, (x) the "Allotted SCW Capacity",
for the Option Space, shall be a number of tons of condenser water equal to
(A) one (1) ton multiplied by the number rentable square feet in the Option
Space Rentable Area, divided by (B) 1,000, and (y) the "SCW Distribution
Point", for the Option Space, shall mean a point in the Building's core on
the floor of the Building on which the Option Space is located, which point
shall be designated by Landlord.
(e) In no event shall any of the following provisions of this lease
apply to the Option Space: (i) Article 4 hereof (it being understood that
the provisions of Section 37.04 below shall apply in lieu thereof), (ii)
Article 36 hereof (except as and to the extent provided in Section 37.05
below), and (iii) any provisions providing for a free rent period or period
of rent abatement in respect of Fixed Rent, Tax Payments or Operating
Payments (it being understood that the provisions of Section 37.06 shall
apply in lieu thereof).
37.04. (a) Landlord shall deliver and Tenant shall accept the Option Space
in its "as is" condition as of the date of the Option Space Acceptance Notice,
subject to ordinary wear and tear to the Option Space occurring between such
date and the
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date of delivery; provided, however, that on the date of such delivery (i) the
Option Space shall be fully demised in accordance with all laws and requirements
of public authorities, (ii) the Option Space shall be served by an operational
sprinkler loop conforming to all laws and requirements of public authorities,
and (iii) the Option Space shall be in a condition which, if the same were
demised on the date hereof, would permit Landlord to obtain an ACP-5 with
respect thereto. Section 2.02 hereof, including Section 2.02(c) hereof, shall
apply to the Option Space.
(b) The "OPTION SPACE COMMENCEMENT DATE" shall be the later to occur
of (i) the Option Space Scheduled Date, and (ii) the day on which Landlord
actually delivers exclusive possession of the Option Space to Tenant in
accordance with the provisions of subsection (a) above.
(c) Landlord shall use reasonable efforts to deliver possession of
the Option Space to Tenant in accordance with the provisions of subsection (a)
above on or prior to the Option Space Scheduled Date. Landlord's obligation to
use reasonable efforts shall include an obligation to institute and prosecute a
holdover or other appropriate proceeding against any holdover tenant or occupant
of the Option Space, unless (i) Landlord reasonably believes that the holding
over in question will not delay its delivery of the Option Space to Tenant
beyond the Option Space Scheduled Date, or (ii) Landlord reasonably believes
that the institution or prosecution of such a proceeding, as the case may be,
will not result in such holdover tenant or occupant vacating of the Option Space
on a significantly earlier date.
(d) If, for any reason, Landlord is unable to deliver possession of
the Option Space to Tenant in accordance with the provisions of subsection (a)
above on or prior to the Option Space Scheduled Date, then (i) this lease and
the obligations of Tenant hereunder (including without limitation any obligation
of Tenant hereunder to lease the Option Space) shall not be impaired under such
circumstances (it being understood that the Option Space Commencement Date shall
occur only as set forth in subsection (b) above), and (ii) Landlord, except to
the extent that Landlord failed to exercise reasonable efforts to deliver the
Option Space as required in subsection (c) above, shall not be subject to any
liability on account of such failure. Tenant hereby waives any right to rescind
this lease under the provisions of Section 223-a of the Real Property Law of the
State of New York, and agrees that the provisions of this Article are intended
to constitute "an express provision to the contrary" within the meaning of said
Section 223-a.
(e) Notwithstanding the provisions of subsection (d) above, if, for
any reason, Landlord is unable to deliver possession of the Option Space on or
prior to the date that is two hundred and seventy (270) days after the Option
Space Scheduled Date, then Tenant, by written notice given within thirty (30)
days after the expiration of such 270-day period, may, at its option, rescind
the Option Space Acceptance Notice (which rescission shall render the Option
Space Acceptance Notice
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null and void), and, in which event and upon Landlord's receipt of such
rescission notice, neither Landlord nor Tenant shall have any further rights,
obligations or liability under this Article 37 with respect to the delivery or
leasing of the Option Space or otherwise.
37.05. If Tenant leases the Option Space, then Landlord shall reimburse
Tenant for the cost of the Initial Option Space Work (as hereinafter defined)
and the Option Space Soft Costs (as hereinafter defined), in an amount equal to
the lesser of (a) the aggregate cost of the Initial Option Space Work and the
Option Space Soft Costs and (b) an amount equal to the product of (i) the number
of rentable square feet in the Option Space Rentable Area, multiplied by (ii)
Fifty-Five ($55) Dollars, multiplied by (iii) a fraction, the numerator of which
is the number of days occurring within the period commencing on the Option Space
Commencement Date and ending on the Expiration Date (both days inclusive), and
the denominator of which is the number of days in the full term of this lease
(commencing on the Commencement Date and ending on the Expiration Date (both
days inclusive)) (which lesser amount between the amount described in clause (a)
and the amount described in clause (b) being herein called the "LANDLORD'S
OPTION SPACE CONTRIBUTION"), which Landlord's Option Space Contribution shall be
disbursed in the same manner as provided for Landlord's Contribution in Article
36 hereof, and, accordingly, the provisions of Section 36.01(a) and (b), as well
as the provisions of Sections 36.03 and 36.04, shall apply thereto, mutatis
mutandis, provided that (I) any references in such provisions to (x) "Landlord's
Contribution" shall be deemed to mean Landlord's Option Space Contribution, (y)
the "Initial Tenant Work" shall be deemed to mean the "Initial Option Space
Work", and (z) "Tenant's Soft Costs" shall be deemed to mean the Option Space
Soft Costs, and (II) the references in Section 36.01 to (X) "One Million Nine
Hundred Ten Thousand Four Hundred Fifty-Nine and 98/100 ($1,910,459.98) Dollars"
shall be deemed to mean the amount described in subsection (b) of this Section
37.05, and (Y) "$90,000" shall be deemed to refer to a dollar amount of
"$25,000". As used herein, (1) the "INITIAL OPTION SPACE WORK" shall mean the
Alterations, if any, performed by Tenant in the Option Space to prepare the
Option Space for Tenant's initial use and occupancy; and (2) the "OPTION SPACE
SOFT COSTS" shall mean the fees and expenses of Tenant's architect and engineer
incurred, in each case, with respect to the Initial Option Space Work, and the
moving expenses incurred in connection with Tenant's move into the Option Space.
37.06. Notwithstanding the provisions of Section 37.03(a) and (b), (i) the
Option Space Fixed Rent shall abate for the Option Space Abatement Period (as
hereinafter defined), and (ii) the increases in Tenant's Operating Share and
Tenant's Tax Share resulting from the addition of the Option Space to the
Premises shall abate for, i.e., not occur until the expiration of, the Option
Space Abatement Period. The "OPTION SPACE ABATEMENT PERIOD" shall mean the
period commencing on the Option Space Commencement Date and ending on the day
prior to the date which is three (3) months after the Option Space Commencement
Date, both dates inclusive.
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37.07. Landlord agrees that, during the period commencing on the date that
Landlord shall deliver the Option Notice and ending on the date twenty (20)
Business Days thereafter, Tenant may, from time to time, inspect and measure the
Option Space, after reasonable notice to Landlord, subject to the rights of any
tenants or occupants thereof, so long as such rights do not prevent Tenant from
conducting such inspections and measurements. If Tenant delivers the Option
Space Acceptance Notice, then Tenant, during the period commencing with the
expiration of such 20 Business Day period and ending on the Option Space
Commencement Date (or, in the event Tenant shall rescind the Option Space
Acceptance Notice pursuant to the provisions of Section 37.04(e) hereof, the
date of such rescission), shall have the right to periodically (but not more
frequently than twice a month) inspect the Option, subject, in all events, to
the rights of any tenants or occupants thereof.
37.08. (a) The "OPTION SPACE RENTABLE AREA" shall mean the rentable area of
the Option Space shall be determined in accordance with the following
provisions: (i) the "usable area" of the Option Space shall be that usable area
determined in accordance with the "Recommended Method of Floor Measurement for
Office Buildings" effective January 1, 1987 published by the Real Estate Board
of New York; and (ii) the "rentable area" of the Option Space shall be equal to
the product of (x) the usable area of the Option Space, multiplied by (y) 1.40.
(b) Landlord's determination of the Option Space Rentable Area set
forth in the Option Notice (herein called "LANDLORD'S DETERMINATION") shall be
conclusive and binding upon Tenant, unless Tenant shall expressly dispute the
same in good-faith in the Option Space Acceptance Notice, in which event, the
Option Space Acceptance Notice shall set forth Tenant's good-faith determination
of Option Space Rentable Area (herein called "TENANT'S DETERMINATION"), which
shall be based upon a measurement of the usable area of the Option Space
conducted by a licensed architect retained by Tenant in accordance with the
provisions of Section 37.08(a)(i) above, together with the name of such
architect.
(c) If Tenant shall dispute Landlord's Determination in accordance
with the provisions of subsection (b) above, then Landlord and Tenant shall
attempt in good-faith to resolve such dispute. If, by the date which is thirty
(30) days after Landlord's receipt of the Option Space Acceptance Notice,
Landlord and Tenant are unable to resolve the dispute, then Landlord and Tenant
shall designate a mutually acceptable licensed architect (the "OPTION SPACE
ARCHITECT") who shall measure the Option Space to determine the usable area of
the Option Space in accordance with the provisions of Section 37.08(a)(i) above,
which determination of the usable area of the Option Space shall be issued in
writing and shall be conclusive and binding upon both Landlord and Tenant, and
the final determination of the Option Space Rentable Area shall be as based
thereon in accordance with the provisions of Section 37.08(a)(ii); provided,
however, that the final determination of the Option Space Rentable Area shall
never exceed Landlord's Determination or be less than Tenant's
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Determination. In the event that Landlord and Tenant shall be unable to agree
upon the designation of the Option Space Architect within sixty (60) days after
Landlord's receipt of the Option Space Acceptance Notice, then either party
shall have the right to request the AAA (or any organization which is the
successor thereto) to designate as the Option Space Architect a licensed
architect who shall be independent and shall have at least five (5) years
experience in the measurement of usable area in office buildings in New York
City pursuant to the method set forth in Section 37.07(a)(i) above. Until the
determination of the Option Space Architect, all computations made pursuant to
this Article 37 shall be based upon Landlord's Determination, and if the final
determination of the Option Space Rentable Area shall be less than Landlord's
Determination, then all such computations shall be appropriately adjusted and
reconciled and Landlord shall refund to Tenant the amounts indicated thereby.
The costs of Option Space Architect shall be borne by Landlord if the final
determination of the Option Space Rentable Area is less than 95% of Landlord's
Determination, and by Tenant in all other cases.
37.09. Landlord and Tenant shall, upon the request of the other party,
execute, acknowledge and deliver to the other party an instrument or instruments
in form reasonably satisfactory to both parties confirming the addition of the
Option Space to the Premises, the Option Space Commencement Date, any resulting
increase in Fixed Rent, Tenant's Operating Share and Tenant's Tax Share, and any
other terms or conditions in respect of the Option Space, but any failure of the
parties to execute, acknowledge and deliver such instrument(s) shall not affect
the validity of the leasing of the Option Space or any of the provisions of this
Article 37.
ARTICLE 38
Preferential Right to Lease
38.01. (a) For purposes of this Article 38, the following terms shall have
the following meanings:
"DESIGNATED SPACE" shall mean all the leasable area on the
thirty-eighth (38th) floor of the Building.
"SUPERIOR TRANSACTION" shall mean (1) any renewal or extension
of any lease demising the whole or any part of the Designated Space,
whether such renewal or extension is effected pursuant to a specific right
or option included in the lease or otherwise, (2) any lease of the whole or
any part of the Designated Space effected pursuant to a specific right or
option contained in a lease existing as of the date hereof (so long as such
leasing is effected in substantial compliance with the terms of such right
or option), (3) any lease of the whole or any part of the Designated Space
which is vacant on the date
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hereof, but only if such lease is executed on or prior to the date that is
twenty-four (24) months after the date hereof, (4) any lease of the whole
or any part of the Designated Space which also demises other leasable space
in the Building which is not part of the Designated Space (but only if the
part of the Designated Space demised by such lease consists of a rentable
area that is equal to or greater than the rentable area of such other
leasable space in the Building demised by such lease), and (5) any lease of
the whole or any part of the Designated Space which commences after
eleventh (11th) anniversary of the Rent Commencement Date.
(b) If Landlord intends to lease the whole or any part of the
Designated Space, other than pursuant to a Superior Transaction, then, prior to
leasing such space, shall give Tenant a written notice (each, an "OFFER
NOTICE"), which notice shall (i) describe the portion of the Designated Space
which Landlord is so intending to lease (each such portion being herein called
"OFFER SPACE"), it being agreed that, if any Offer Space is less than the entire
Designated Space, then such Offer Space shall be (x) be commercially reasonable
in shape and configuration, and (y) contain an amount of exterior window space
which bears substantially the same ratio to the rentable area of the Offer
Space, as the total amount of exterior window space on the 38th floor of the
Building bears to the rentable area of the Designated Space, (ii) be accompanied
by a floor plan delineating such Offer Space (unless the Offer Space is
comprised of the entire Designated Space), (iii) set forth Landlord's good-faith
determination of the Offer Space Rentable Area (as hereinafter defined) with
respect to such Offer Space (unless the Offer Space consists of the entire
Designated Space), and (iv) set forth the date upon which Landlord anticipates
being able to deliver such Offer Space to Tenant (herein called, with respect to
such Offer Space, the "OFFER SPACE SCHEDULED DATE"), which date shall not be
less than ninety (90) days nor more than eighteen (18) months from the date of
such Offer Notice (it being agreed that, at the time that Landlord serves any
Offer Notice, Landlord shall have, or reasonably believe that it has, a
contractual right to possession of the Offer Space described therein as of the
Offer Space Scheduled Date with respect thereto); provided, however, that
Landlord shall have no obligation to deliver any Offer Notice if either (I)
prior to the delivery of the Offer Notice, this lease shall be terminated or
cancelled for any reason whatsoever, or (II) at anytime during the term of this
lease after the substantial completion of the Initial Alterations and prior to
the delivery of the Offer Notice, the Outside Occupancy Percentage (as
hereinafter defined) shall be greater than fifty (50%) percent, or (III) at
anytime during the term of this lease after the substantial completion of the
Initial Alterations and prior to the delivery of the Offer Notice, (x) there
shall be no portion of the Initially Demised Premises having a rentable area
equal to or greater than 12,000 rentable square feet which is occupied by
Original Tenant, and (y) there shall be no portion of the Initially Demised
Premises having a rentable area equal to or greater than 12,000 rentable square
feet which is occupied by VKM. Subject to the provisions of this Article 38,
each Offer Notice shall constitute a one-time non-recurring offer by
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Landlord to Tenant to lease all (and not less than all) of the Offer Space
described therein upon the terms and conditions set forth in this Article 38.
38.02. If Tenant desires to lease the Offer Space described in any Offer
Notice upon the terms and conditions set forth in this Article 38, then Tenant,
within fifteen (15) Business Days after Landlord shall delivered such Offer
Notice (time being of the essence), shall deliver to Landlord a written notice
to such effect (each such notice being herein called an "OFFER SPACE ACCEPTANCE
NOTICE"); provided, however, that the Offer Space Acceptance Notice shall
automatically be null and void if this lease shall have theretofore been
terminated or cancelled for any reason whatsoever, and Landlord, at its option,
by notice to Tenant given no later than ten (10) Business Days after Landlord's
receipt of Tenant's Offer Space Acceptance Notice, may render the Offer Space
Acceptance Notice null and void if, at the time that Landlord receives the same,
(i) a monetary Event of Default shall have occurred and is then continuing, or
(ii) the Outside Occupancy Percentage shall be greater than fifty (50%) percent,
or (iii) (x) there shall be no portion of the Initially Demised Premises having
a rentable area equal to or greater than 12,000 rentable square feet which is
occupied by Original Tenant, and (y) there shall be no portion of the Initially
Demised Premises having a rentable area equal to or greater than 12,000 rentable
square feet which is occupied by VKM. If Tenant shall fail to timely and
properly deliver the Offer Space Acceptance Notice for any Offer Space in
accordance with this Section 38.02, or Landlord shall render such Offer Space
Acceptance Notice null and void in accordance with this Section 38.02, then, in
either event, Tenant shall be conclusively deemed to have waived any rights it
may have to lease such Offer Space, and Tenant shall have no further rights and
Landlord shall have no further obligations under this Article 38 with respect to
such Offer Space.
38.03. If Tenant shall timely and properly deliver an Offer Space
Acceptance Notice with respect to the Offer Space described in any Offer Notice
in accordance with the provisions of Section 38.02 above (and Landlord shall not
render the same null and void in accordance with the provisions of Section 38.02
above), then, effective as of the Offer Space Commencement Date (as hereinafter
defined) with respect to such Offer Space, such Offer Space shall become, and be
deemed to comprise, part of the Premises upon all the then executory terms
hereof (including without limitation the Expiration Date), subject to and upon
the following terms and conditions:
(a) The Fixed Rent shall be increased by, and shall thereby include,
the Offer Space Fixed Rent (as hereinafter defined) for such Offer Space.
The "OFFER SPACE FIXED RENT", for any Offer Space for any part of the term
of this lease, shall mean a per annum amount equal to the product of (x)
the number rentable square feet in the Offer Space Rentable Area of such
Offer Space, multiplied by (y) the Annual Rate Per RSF for such part of the
term of this lease.
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(b) Tenant's Operating Share and Tenant's Tax Share, respectively,
shall be appropriately increased by operation of the provisions of Sections
3.01(n) and 3.01(o), respectively, based upon the Offer Space Rentable Area
of any Offer Space. It is specifically understood that the Base Tax Amount
and Base Operating Amount shall be the same for any Offer Space as for the
Premises originally demised hereunder.
(c) Article 14 hereof shall apply to any Offer Space upon and
subject to the following provisions: (i) Tenant, at Tenant's expense as
part of the Initial Offer Space Work (as hereinafter defined), shall
install one or more "Tenant's Submeters" for such Offer Space to measure
Tenant's demand and consumption of electricity in such Offer Space, (ii)
Section 14.02 shall apply separately to any Offer Space, and, in respect
thereof, (x) the separate "Committed Electrical Service Level" for any
Offer Space shall be a level of not less than six and one-half (6-1/2)
watts multiplied by the number of rentable square feet in the Offer Space
Rentable Area of such Offer Space, (y) such separate electrical capacity
shall be made available to Tenant at one or more points on the 38th floor
of the Building, and (z) Section 14.02(c) shall not apply to such Offer
Space, and (iii) until such time as such "Tenant's Submeters" are installed
for any Offer Space, the last two (2) sentences of Section 14.03 shall
apply separately to such Offer Space.
(d) Article 15 hereof shall apply to any Offer Space upon and
subject to the following provisions: (i) Section 15.01(a) and the other
provisions of Article 15 dealing with the Business Occupancy Date shall
apply separately to such Offer Space (and thus reflect a separate "Business
Occupancy Date" for such Offer Space, which shall be the date for the
commencement of certain services to such Offer Space as more particularly
provided in Article 15), and (ii) Section 15.04 shall apply separately to
such Offer Space, and, in respect thereof, (x) the "Allotted SCW Capacity",
for such Offer Space, shall be a number of tons of condenser water equal to
(A) one (1) ton multiplied by the number rentable square feet in the Offer
Space Rentable Area, divided by (B) 1,000, and (y) the "SCW Distribution
Point", for such Offer Space, shall mean a point in the Building's core on
the floor of the Building on which such Offer Space is located, which point
shall be designated by Landlord.
(e) In no event shall any of the following provisions of this lease
apply to any Offer Space: (i) Article 4 hereof (it being understood that
the provisions of Section 38.04 below shall apply in lieu thereof), (ii)
Article 36 hereof (except as and to the extent provided in Section 38.05
below), and (iii) any provisions providing for a free rent period or period
of rent abatement in respect of Fixed Rent, Tax Payments or Operating
Payments (it being understood that the provisions of Section 38.06 shall
apply in lieu thereof).
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38.04. (a) Landlord shall deliver and Tenant shall accept any Offer Space
in its "as is" condition as of the date of the Offer Space Acceptance Notice
subject to ordinary wear and tear to the Offer Space occurring between such date
and the date of delivery; provided, however, that on the date of such delivery
(i) the Offer Space shall be fully demised in accordance with all laws and
requirements of public authorities, (ii) the Offer Space shall be served by an
operational sprinkler loop conforming to all laws and requirements of public
authorities, and (iii) the Offer Space shall be in a condition which, if the
same were demised on the date hereof, would permit Landlord to obtain an ACP-5
with respect thereto. Section 2.02 hereof, including Section 2.02(c) hereof,
shall apply to the Offer Space.
(b) The "OFFER SPACE COMMENCEMENT DATE", with respect to any Offer
Space shall be the later to occur of (i) the Offer Space Scheduled Date with
respect to such Offer Space, and (ii) the day on which Landlord actually
delivers exclusive possession of such Offer Space to Tenant in accordance with
the provisions of subsection (a) above.
(c) Landlord shall use reasonable efforts to deliver possession of
any Offer Space to Tenant in accordance with the provisions of subsection (a)
above on or prior to the Offer Space Scheduled Date with respect to such Offer
Space. Landlord's obligation to use reasonable efforts shall include an
obligation to institute and prosecute a holdover or other appropriate proceeding
against any holdover tenant or occupant of any Offer Space, unless (i) Landlord
reasonably believes that the holding over in question will not delay its
delivery of such Offer Space to Tenant beyond the Offer Space Scheduled Date
with respect thereto, or (ii) Landlord reasonably believes that the institution
or prosecution of such a proceeding, as the case may be, will not result in such
holdover tenant or occupant vacating of such Offer Space on a significantly
earlier date.
(d) If, for any reason, Landlord is unable to deliver possession of
any Offer Space to Tenant in accordance with the provisions of subsection (a)
above on or prior to the Offer Space Scheduled Date with respect to such Offer
Space, then (i) this lease and the obligations of Tenant hereunder (including
without limitation any obligation of Tenant hereunder to lease such Offer Space)
shall not be impaired under such circumstances (it being understood that the
Offer Space Commencement Date with respect to such Offer Space shall occur only
as set forth in subsection (b) above), and (ii) Landlord, except to the extent
that Landlord failed to exercise reasonable efforts to deliver any Offer Space
as required in subsection (c) above, shall not be subject to any liability on
account of such failure. Tenant hereby waives any right to rescind this lease
under the provisions of Section 223-a of the Real Property Law of the State of
New York, and agrees that the provisions of this Article are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223-a.
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(e) Notwithstanding the provisions of subsection (d) above, if, for
any reason, Landlord is unable to deliver possession of any Offer Space on or
prior to the date that is two hundred and seventy (270) days after the Offer
Space Scheduled Date with respect thereto, then Tenant, by written notice given
within thirty (30) days after the expiration of such 270-day period, may, at its
option, rescind the Offer Space Acceptance Notice with respect to such Offer
Space (which rescission shall render such Offer Space Acceptance Notice null and
void), and, in which event and upon Landlord's receipt of such rescission
notice, neither Landlord nor Tenant shall have any further rights, obligations
or liability under this Article 38 with respect to the delivery or leasing of
such Offer Space or otherwise with respect to such Offer Space.
38.05. If Tenant leases any Offer Space, then Landlord shall reimburse
Tenant for the cost of the Initial Offer Space Work (as hereinafter defined)
with respect to such Offer Space and the Offer Space Soft Costs (as hereinafter
defined) with respect to such Offer Space, in an amount equal to the lesser of
(a) the aggregate cost of such Initial Offer Space Work and such Offer Space
Soft Costs, and (b) an amount equal to the product of (i) the number of rentable
square feet in the Offer Space Rentable Area of such Offer Space, multiplied by
(ii) Fifty-Five ($55) Dollars, multiplied by (iii) a fraction, the numerator of
which is the number of days occurring within the period commencing on the Offer
Space Commencement Date with respect to such Offer Space and ending on the
Expiration Date (both days inclusive), and the denominator of which is the
number of days in the full term of this lease (commencing on the Commencement
Date and ending on the Expiration Date (both days inclusive)) (which lesser
amount between the amount described in clause (a) and the amount described in
clause (b) being herein called, with respect to such Offer Space, the
"LANDLORD'S OFFER SPACE CONTRIBUTION"), which Landlord's Offer Space
Contribution shall be disbursed in the same manner as provided for Landlord's
Contribution in Article 36 hereof, and, accordingly, the provisions of Section
36.01(a) and (b), as well as the provisions of Sections 36.03 and 36.04, shall
apply thereto, mutatis mutandis, provided that (I) any references in such
provisions to (x) "Landlord's Contribution" shall be deemed to mean Landlord's
Offer Space Contribution with respect to such Offer Space, (y) the "Initial
Tenant Work" shall be deemed to mean the "Initial Offer Space Work" with respect
to such Offer Space, and (z) "Tenant's Soft Costs" shall be deemed to mean the
Offer Space Soft Costs with respect to such Offer Space, and (II) the references
in Section 36.01 to (X) "One Million Nine Hundred Ten Thousand Four Hundred
Fifty-Nine and 98/100 ($1,910,459.98) Dollars" shall be deemed to mean the
amount described in subsection (b) of this Section 38.05, and (Y) "$90,000"
shall be deemed to refer to a dollar amount of "$25,000". As used herein, (1)
the "INITIAL OFFER SPACE WORK", with respect to any Offer Space, shall mean the
Alterations, if any, performed by Tenant in such Offer Space to prepare the same
for Tenant's initial use and occupancy; and (2) the "OFFER SPACE SOFT COSTS",
with respect to any Offer Space, shall mean the fees and expenses of Tenant's
architect and engineer incurred, in each case, with respect to the Initial Offer
Space Work with respect to such Offer
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Space, and the moving expenses incurred in connection with Tenant's move into
such Offer Space.
38.06. Notwithstanding the provisions of Section 38.03(a) and (b), (i) the
Offer Space Fixed Rent for any Offer Space shall abate for the Offer Space
Abatement Period (as hereinafter defined) for such Offer Space, and (ii) the
increases in Tenant's Operating Share and Tenant's Tax Share resulting from the
addition of such Offer Space to the Premises shall abate for, i.e., not occur
until the expiration of, the Offer Space Abatement Period for such Offer Space.
The "OFFER SPACE ABATEMENT PERIOD", for any Offer Space, shall mean the period
commencing on the Offer Space Commencement Date for such Offer Space and ending
on the day prior to the date which is three (3) months after such Offer Space
Commencement Date, both dates inclusive.
38.07. Landlord agrees that, during the period commencing on the date that
Landlord shall deliver any Offer Notice and ending on the date fifteen (15)
Business Days thereafter, Tenant may, from time to time, inspect and measure the
Offer Space, after reasonable notice to Landlord, subject to the rights of any
tenants or occupants thereof, so long as such rights do not prevent Tenant from
conducting such inspections and measurements. If Tenant delivers an Offer Space
Acceptance Notice with respect to any Offer Space, then, with respect to such
Offer Space, Tenant, during the period commencing with the expiration of such 15
Business Day period and ending on the Offer Space Commencement Date with respect
to such Offer Space (or, in the event Tenant shall rescind such Offer Space
Acceptance Notice pursuant to the provisions of Section 38.04(e) hereof, the
date of such rescission), shall have the right to periodically (but not more
frequently than twice a month) inspect such Offer Space, subject, in all events,
to the rights of any tenants or occupants thereof.
38.08. (a) The "OFFER SPACE RENTABLE AREA", with respect to any Offer
Space, shall mean the rentable area of the Offer Space as determined in
accordance with the following provisions: (i) the "rentable area" of the entire
Designated Space shall be conclusively deemed to be 32,747 rentable square feet
(in no event shall any of the aforesaid usable or rentable square foot numbers
or amounts constitute or imply any representation or warranty by Landlord
whatsoever, as to the actual size of the Designated Space); (ii) the "usable
area" of any Offer Space which is less than the entire area of the Designated
Space shall be that usable area determined in accordance with the "Recommended
Method of Floor Measurement for Office Buildings", effective January 1, 1987
published by the Real Estate Board of New York; and (iii) the "rentable area" of
any Offer Space which is less than the entire area of the Designated Space shall
be equal to the product of (x) the usable area of such Offer Space, multiplied
by (y) 1.40.
(b) Landlord's determination of the Offer Space Rentable Area for
any Offer Space consisting of less than the entire Designated Space as set forth
in the
-140-
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Offer Notice describing such Offer Space (herein called "LANDLORD'S
DETERMINATION") shall be conclusive and binding upon Tenant, unless Tenant shall
expressly dispute the same in good-faith in the Offer Space Acceptance Notice
with respect to such Offer Space, in which event, such Offer Space Acceptance
Notice shall set forth Tenant's good-faith determination of Offer Space Rentable
Area for such Offer Space (herein called "TENANT'S DETERMINATION"), which shall
be based upon a measurement of the usable area of such Offer Space conducted by
a licensed architect retained by Tenant in accordance with the provisions of
Section 38.08(a)(ii) above, together with the name of such architect.
(c) If Tenant shall dispute Landlord's Determination with respect to
any Offer Space in accordance with the provisions of subsection (b) above, then
Landlord and Tenant shall attempt in good-faith to resolve such dispute. If, by
the date which is thirty (30) days after Landlord's receipt of the Offer Space
Acceptance Notice with respect to such Offer Space, Landlord and Tenant are
unable to resolve the dispute, then Landlord and Tenant shall designate a
mutually acceptable licensed architect (the "OFFER SPACE ARCHITECT") who shall
measure such Offer Space to determine the usable area of the same in accordance
with the provisions of Section 38.08(a)(ii) above, which determination of the
usable area of such Offer Space shall be issued in writing and shall be
conclusive and binding upon both Landlord and Tenant, and the final
determination of the Offer Space Rentable Area with respect to such Offer Space
shall be as based thereon in accordance with the provisions of Section 38.08(a)
(iii); provided, however, that the final determination of the Offer Space
Rentable Area with respect to any Offer Space shall never exceed Landlord's
Determination with respect to such Offer Space or be less than Tenant's
Determination with respect to such Offer Space. In the event that Landlord and
Tenant shall be unable to agree upon the designation of the Offer Space
Architect within sixty (60) days after Landlord's receipt of the Offer Space
Acceptance Notice with respect to such Offer Space, then either party shall have
the right to request the AAA (or any organization which is the successor
thereto) to designate as the Offer Space Architect a licensed architect who
shall be independent and shall have at least five (5) years experience in the
measurement of usable area in office buildings in New York City pursuant to the
method set forth in Section 38.08(a)(ii) above. Until the determination of the
Offer Space Architect, all computations made pursuant to this Article 38 with
respect to such Offer Space shall be based upon Landlord's Determination with
respect to such Offer Space, and if the final determination of the Offer Space
Rentable Area with respect to such Offer Space shall be less than Landlord's
Determination with respect thereto, then all such computations shall be
appropriately adjusted and reconciled and Landlord shall refund to Tenant the
amounts indicated thereby. The costs of the Offer Space Architect with respect
to any Offer Space shall be borne by Landlord if the final determination of the
Offer Space Rentable Area with respect to such Offer Space is less than 95% of
Landlord's Determination with respect to such Offer Space, and by Tenant in all
other cases.
-141-
146
38.09. If, at anytime during the term of this lease, (i) Tenant shall be
leasing, and, together with its Affiliates, be in occupancy of, more than
one-half (1/2) of the rentable area of the Designated Space, and (ii) Tenant
shall be leasing, and, together with its Affiliates, be in occupancy of, more
than one-half (1/2) of the rentable area of the Initially Demised Premises,
then, during any such period, Tenant, subject to and in accordance with the
provisions of Article 11, shall have the right to install an interior staircase
connecting the portion of the Premises located on the 37th floor of the Building
with the portion of the Premises located on the 38th floor of the Building.
38.10. Landlord and Tenant shall, upon the request of the other party,
execute, acknowledge and deliver to the other party an instrument or instruments
in form reasonably satisfactory to both parties confirming the addition of any
Offer Space to the Premises, the Offer Space Commencement Date with respect to
such Offer Space, any resulting increase in Fixed Rent, Tenant's Operating Share
and Tenant's Tax Share, and any other terms or conditions in respect of such
Offer Space, but any failure of the parties to execute, acknowledge and deliver
such instrument(s) shall not affect the validity of the leasing of such Offer
Space or any of the provisions of this Article 38.
ARTICLE 39
Untenantability
39.01. If, at any time during the term of this lease, (i) there shall be a
failure of one or more of the Building Services, (ii) such failure is caused by
the negligence of Landlord, (iii) such failure is not the result of one or more
Events of Force Majeure and/or one or more acts or omissions of Tenant or any
Tenant Party, and (iv) as a result of such failure, the Premises (or a
substantial portion thereof, as more fully described below, that was then being
occupied) become untenantable (and, accordingly are vacated) and thereafter
remain untenantable for a period of five (5) consecutive Business Days after
Tenant notifies Landlord that the Premises (or such substantial portion thereof)
are untenantable, then Tenant, as its remedy, shall be entitled to an abatement
of Fixed Rent, the Operating Payment(s) and the Tax Payment(s) otherwise payable
hereunder in respect of the Premises (or such substantial portion thereof) for
the period commencing on the first Business Day after such five (5) Business Day
period and ending on the date upon which the Premises (or such substantial
portion thereof) is no longer untenantable. For purposes of this Section 39.01,
a substantial portion of the Premises shall be deemed to mean any portion of the
Premises which consists of at least 5,000 contiguous rentable square feet.
-142-
147
ARTICLE 40
Arbitration
40.01. If, pursuant to any express provision of this lease, either Landlord
is entitled, Tenant is entitled, or either of Landlord or Tenant are entitled,
to submit a particular dispute to arbitration in accordance with the provisions
of this Article 40, then each party so entitled to submit the dispute in
question to arbitration may do so only by delivering a notice thereof to the
other party (each, an "ARBITRATION NOTICE"), and if such provision of this lease
shall set forth a specific period within which such party may submit the dispute
to arbitration, then such Arbitration Notice must be served prior to the
expiration of such time period (time being of the essence). For purposes of this
Article 40, the party delivering an Arbitration Notice shall be referred to as
the "INITIATING PARTY", and the party receiving an Arbitration Notice shall be
referred to as the "RESPONDING PARTY". Each Arbitration Notice shall (i)
specifically set forth the Article and Section of this lease in which are
located the provisions hereof expressly entitling the Initiating Party to submit
the dispute in question to arbitration (such provisions being herein called the
"AUTHORIZING PROVISIONS"), (ii) set forth, with reasonable specificity, the
dispute being submitted to arbitration pursuant to such Authorizing Provisions
and the issue to be determined by arbitration (which issue shall be consistent
with the Authorizing Provisions) (such issue being herein called the
"ARBITRATION ISSUE"), and (iii) appoint, and set forth the name and address of,
an arbitrator (herein called the "FIRST ARBITRATOR") to act in connection with
the dispute in question.
40.02. In each case that an Arbitration Notice is delivered in accordance
with the provisions of this lease, the following provisions shall apply:
(a) The Responding Party, within eight (8) Business Days after its
receipt of the Arbitration Notice, shall, by notice to Initiating Party,
appoint, and provided the name and address of, a second arbitrator (herein
called the "SECOND ARBITRATOR") to act in connection with the dispute in
question; it being agreed that if (x) the Responding Party shall fail to appoint
a Second Arbitrator within such 8 Business Day period, and (y) such failure
shall continue for 3 Business Days after the Responding Party receives a notice
of such failure from the Initiating Party (which notice shall expressly refer to
this Section 44.02(a)), then the First Arbitrator may appoint the Second
Arbitrator).
(b) After the appointment of both the First Arbitrator and the
Second Arbitrator (collectively, the "INITIAL ARBITRATORS"), the Initial
Arbitrators shall jointly appoint, by written instrument delivered to both the
Initiating Party and the Responding Party, a third arbitrator to act in
connection with the dispute in question (herein called the "THIRD ARBITRATOR");
it being agreed that if the Initial Arbitrators shall fail to appoint the Third
Arbitrator within the aforesaid 5 Business Day period,
-143-
148
then either the Initiating Party or the Responding Party may apply to the AAA,
or if the AAA shall refuse or fail to act, to a court of competent jurisdiction
in the State of New York, for the appointment of the Third Arbitrator.
40.03. Promptly after the appointment of the Third Arbitrator, each of the
First Arbitrator, the Second Arbitrator and the Third Arbitrator shall proceed
to decide the Arbitration Issue. The arbitrators shall be instructed to render
their respective decisions, in writing, within eight (8) Business Days after the
appointment of the Third Arbitrator. The written decision of any two (2) of the
arbitrators shall be binding and conclusive upon both the Initiating Party and
the Responding Party.
40.04. Landlord and Tenant shall each have the right to appear and be
represented by counsel before any arbitrator(s) and to submit such data and
memoranda in support of their respective positions with respect to the
Arbitration Issue as may be reasonably necessary or appropriate in the
circumstances; it being agreed that if a dispute shall arise as to whether any
such data or memoranda is reasonable arises, a majority of the arbitrators are
hereby authorized to resolve same.
40.05. All the reasonable fees of the arbitrators appointed under Article
40 (whether by Tenant, Landlord, the AAA or a court) shall be paid by the
non-prevailing party in the arbitration. In addition, the non-prevailing party
shall reimburse the prevailing party the reasonable out-of-pocket costs
(including without limitation reasonable attorneys' fees and the reasonable
costs of producing witnesses and experts) incurred by the prevailing party in
connection with the arbitration.
40.06. With respect to any conclusive and binding decision of the
arbitrator(s) rendered pursuant to the provisions of this Article 40, judgment
may be entered thereupon in any court of competent jurisdiction. In rendering
any decision, the arbitrator(s) shall have no power to modify any of the
provisions of this lease, and the jurisdiction of arbitrator(s) is limited
accordingly, it being specifically understood that the arbitrator(s), in any
arbitration under this Article 40, shall only have authority to decide the
Arbitration Issue in question, and in no event shall the arbitrator(s) have any
authority to award damages.
40.07. Each "ARBITRATOR" appointed hereunder (whether by Landlord, Tenant
or any other person(s), organization or court) shall not then be employed by
Landlord, Tenant or any Affiliate of Landlord or Tenant, and, in all other
respects, shall be impartial. In addition, each arbitrator (x) shall meet the
specific qualifications set forth in the applicable Authorizing Provisions, or
(y) if no such qualifications are so set forth in the Authorizing Provisions,
shall be an attorney with at least ten (10) years experience in commercial real
estate law in the Borough of Manhattan.
-144-
149
40.08. Landlord and Tenant shall not be deemed to have agreed to have any
dispute/issue arising out of this lease determined by arbitration unless a
determination in such manner shall be expressly provided hereunder.
ARTICLE 41
Effective Date of Lease
41.01. Tenant, by its execution of this lease, hereby acknowledges that (i)
Tenant has been in possession of the Premises from and after December 7, 1993
(the date which is, for all purposes hereof, the Commencement Date and the date
of this lease), and (ii) this lease, although executed at later date, is
effective, for all purposes, as of December 7, 1993, and shall be deemed, for
all purposes (including without limitation any obligations of Tenant to be
performed prior to the date of execution), to have been in full force and effect
since December 7, 1993 (and, accordingly and without limitation, Tenant's
possession of the Premises for the period from such date until the date of
execution shall be deemed to have been pursuant hereto), as fully and completely
as if this lease were executed on December 7, 1993 immediately prior to Tenant
taking possession of the Premises on such date.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
lease as of the day and year first above written.
LANDLORD:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ Victor Colman
-----------------------------
Name: Victor Colman
Title: Vice President
-145-
150
TENANT:
McCARTHY, CRISTANI & MAFFEI,
INC.
By: /s/ Lindley B. Richert
-------------------------------
Name: Lindley B. Richert
Title: President
Tenant's Federal Tax I.D. No.:
13-2812663
-----------------------------------
-146-
151
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of July, 1994, before me personally came Victor
Colman, to me known, who, being duly sworn by me, did depose and say that he
resides at Westing, NY; that he is a Vice President of THE CHASE MANHATTAN
BANK, N.A., the national banking association described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said association.
/s/ [illegible signature]
---------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of May, 1994, before me personally came Lindley B.
Richert, to me known, who, being duly sworn by me, did depose and say that he
resides at 249 Pequest Rd., Hoboken, New Jersey; that he is President of
McCARTHY, CRISTANI & MAFFEI, INC., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of said corporation.
/s/ Victoria Cosentino
--------------------------------------
Victoria Cosentino
Notary Public, State of New York
No. 24-4799317
Commission Expires January 31, 1997
-147-
152
Schedule A
FIXED RENT
(a) NINE HUNDRED SIXTEEN THOUSAND NINE HUNDRED SIXTEEN and 00/100
($916,916.00) Dollars, per annum, for the period from the Commencement Date to
and including November 30, 1999;
(b) ONE MILLION FIFTY-SIX THOUSAND NINETY and 75/100 ($1,056,090.75)
Dollars, per annum, for the period from December 1, 1999 to and including
November 30, 2004; and
(c) ONE MILLION TWO HUNDRED TWENTY-EIGHT THOUSAND TWELVE and 50/100
($1,228,012.50) Dollars, per annum, for the period from December 1, 2004 to and
including the Expiration Date.
Schedule A
Page 1
153
Schedule B to Exhibit 10.35
---------------------------
CERTIFICATE OF OCCUPANCY
DEPARTMENT OF BUILDINGS
AMENDED CERTIFICATE OF OCCUPANCY
- -------
BOROUGH MANHATTAN DATE APR 14 1982 NO.8[illegible]
Amends
This certificate xxxxxx No. 61477 ZONING DISTRICT C 5-5
THIS CERTIFIES that the xxx altered [illegible] building--premises 1,2,3,4,
located at 1 Chase Manhattan Plaza Block 44, 45 Lot 14 & 19
CONFORMS SUBSTANTIALLY TO THE APPROVED PLANS AND SPECIFICATIONS AND TO THE
REQUIREMENTS OF ALL APPLICABLE LAWS, RULES AND REGULATIONS FOR THE USES AND
OCCUPANCIES SPECIFIED HEREIN
PERMISSIBLE USE AND OCCUPANCY
=========================================================================================================================
[illegible] [illegible] [illegible] [illegible] [illegible] [illegible] [illegible] DESCRIPTION OF USE
=========================================================================================================================
5th Sub-cellar 100 203 - - - - bank vaults and offices
4th Sub-cellar 100 620 - - - - Offices and machine room
3rd Sub-cellar 100 & 362 - - - - Offices and mechanical
175 equipment
2nd Sub-cellar 175 428 - - - - Kitchen, storage,
maintenance shops,
mechanical equipment,
truck door, loading
berth
1st Sub-cellar 100 467 - - - - West dining room
846 East dining room
280 West Lounge
138 East Lounge
202 Garage, bank, and offices
Cellar
100 1261 - - - - Bank, meeting rooms,
lobby, offices, and
garage
Plaza-1st story
100 - - - - - Lobby
2nd Story
50 90 - - - - Offices
3rd Story
50 240 - - - - Offices
4th to 10th
Story, Incl 50 244 - - - - Offices on each story
each each
11th & 12th
Story, Incl 175 10 - - - - Mechanical equipment
each
13th to 17th
Story, Incl 50 244 - - - - Offices on each story
each each story
18th & 19th
Story, Incl 50 240 - - - - Offices on each story
each each
=========================================================================================================================
(CONTINUED)
OPEN SPACE USES Plaza and Garden
---------------------------------------------------------------
(SPECIFY PARKING SPACES, LOADING BERTHS, OTHER USES, NONE)
================================================================================
NO CHANGES OF USE OR OCCUPANCY SHALL BE MADE UNLESS
A NEW AMENDED CERTIFICATE OF OCCUPANCY IS OBTAINED
THIS CERTIFICATE OF OCCUPANCY IS ISSUED SUBJECT TO FURTHER LIMITATIONS,
CONDITIONS AND SPECIFICATIONS NOTED ON THE REVERSE SIDE.
- ------------------------------- ----------------------------------
BOROUGH SUPERINTENDENT COMMISSIONER
154
THE CITY OF NEW YORK
DEPARTMENT OF BUILDINGS
AMENDED CERTIFICATE OF OCCUPANCY
BOROUGH MANHATTAN DATE APR 14 1982 NO. 8[illegible]
Amends
This certificate xxxxxx No. 61477 ZONING DISTRICT C 5-5
THIS CERTIFIES that the xxx altered [illegible] building--premises
located at 1 Chase Manhattan Plaza Block 44, 45 Lot 14 & 19 CONFORMS
SUBSTANTIALLY TO THE APPROVED PLANS AND SPECIFICATIONS AND TO THE
REQUIREMENTS OF ALL APPLICABLE LAWS, RULES AND REGULATIONS FOR THE USES AND
OCCUPANCIES SPECIFIED HEREIN
PERMISSIBLE USE AND OCCUPANCY
=========================================================================================================================
[illegible] [illegible] [illegible] [illegible] [illegible] [illegible] [illegible] DESCRIPTION OF USE
=========================================================================================================================
20th to 27th 50 250 - - - - Offices on each story
Story, Incl. each each
28th Story 50 510 - - - - Offices and lecture room
29th & 30th 50 255 - - - - Offices on each story
stories each each
31st & 32nd 175 10 - - - - Mechanical equipment
stories each
33rd to 35th 50 255 - - - - Offices on each story
Story, Incl. each each
36th to 40th 50 253 - - - - Offices on each story
Story, Incl. each each
41st to 43rd 50 255 - - - - Offices on each
each each
44th floor 50 480 - - - - Offices and Employee
Cafeteria and conference
room
45th-50th floor 50 255 - - - - Offices on each floor
each each
51st & 52nd 175 10 - - - - Mechanical equipment
Stories each each
53rd to 58th 50 255 - - - - Offices on each story
Story, Incl. each each
59th Story 50 510 - - - - Private dining club and
kitchen
60th Story 50 510 - - - - Executive dining room and
kitchen
Penthouse 175 - - - - - Mechanical equipment and
paint storage
=========================================================================================================================
(CONTINUED)
OPEN SPACE USES
-----------------------------------------------------------------
(SPECIFY PARKING SPACES, LOADING BERTHS, OTHER USES, NONE)
================================================================================
NO CHANGES OF USE OR OCCUPANCY SHALL BE MADE UNLESS
A NEW AMENDED CERTIFICATE OF OCCUPANCY IS OBTAINED
THIS CERTIFICATE OF OCCUPANCY IS ISSUED SUBJECT TO FURTHER LIMITATIONS,
CONDITIONS AND SPECIFICATIONS NOTED ON THE REVERSE SIDE.
- ------------------------------- ----------------------------------
BOROUGH SUPERINTENDENT COMMISSIONER
[ ] ORIGINAL [ ] OFFICE COPY - DEPARTMENT OF BUILDINGS [ ] COPY
155
THE CITY OF NEW YORK
DEPARTMENT OF BUILDINGS
AMENDED CERTIFICATE OF OCCUPANCY
- -------
BOROUGH MANHATTAN DATE APR 14 1992 NO. 8[illegible]
Amends
This certificate xxxxxx No. 61477 ZONING DISTRICT C 5-5
THIS CERTIFIES that the xxx altered [illegible] building--premises
located at 1 Chase Manhattan Plaza Block 44, 45 Lot 14 & 19 CONFORMS
SUBSTANTIALLY TO THE APPROVED PLANS AND SPECIFICATIONS AND TO THE
REQUIREMENTS OF ALL APPLICABLE LAWS, RULES AND REGULATIONS FOR THE USES AND
OCCUPANCIES SPECIFIED HEREIN
PERMISSIBLE USE AND OCCUPANCY
=========================================================================================================================
[illegible] [illegible] [illegible] [illegible] [illegible] [illegible] [illegible] DESCRIPTION OF USE
=========================================================================================================================
TOTAL: Commercial
New-Code
This certificate is issued to amend certificate of occupancy
#61477 for change of use confined to the 44th floor only.
Note:Garage to be used exclusively for the storage of
passenger motor vehicles of tenants or their employees,
customers, patrons. No sales of gasoline or oil service or
repair facilities permitted.
FIRE DEPARTMENT APPROVALS:
--------------------------
Standpipe System-November 2, 1960.
Sprinkler System-November 30, 1960.
Diesel Oil Tanks, Permit No. E-1655
================================================================================
OPEN SPACE USES
-----------------------------------------------------------------
(SPECIFY PARKING SPACES, LOADING BERTHS, OTHER USES, NONE)
================================================================================
NO CHANGES OF USE OR OCCUPANCY SHALL BE MADE UNLESS
A NEW AMENDED CERTIFICATE OF OCCUPANCY IS OBTAINED
THIS CERTIFICATE OF OCCUPANCY IS ISSUED SUBJECT TO FURTHER LIMITATIONS,
CONDITIONS AND SPECIFICATIONS NOTED ON THE REVERSE SIDE.
- ------------------------------- ----------------------------------
BOROUGH SUPERINTENDENT COMMISSIONER
[ ] ORIGINAL [ ] OFFICE COPY - DEPARTMENT OF BUILDINGS [ ] COPY
156
THAT THE ZONING LOT ON WHICH THE PREMISES IS LOCATED IS BOUNDED AS FOLLOWS:
BEGINNING at a point on the Southeast Corner of Nassau Street and Liberty Street
distant of East the corner formed by the intersection of
Nassau Street Nassau Street and Liberty Street
running thence EAST 409'-6" feet; thence SOUTH 312'-5 1/2" feet;
thence WEST 237'-3 1/4" feet; thence NORTH 71'-3" feet;
thence EAST 5'-11 1/4" feet; thence NORTH 72'-9 3/4" feet;
thence WEST 187'-6 1/4" feet; thence NORTH 219'-9 1/8" feet;
to the point or place of beginning
XXX ALT. No 817/79 DATE OF COMPLETION 2/16/82 CONSTRUCTION CLASSIFICATION 1-A-Fireproof
BUILDING OCCUPANCY GROUP CLASSIFICATION HEIGHT STORIES 787.94' FEET
Commercial 60 & Penthouse
THE FOLLOWING FIRE DETECTION AND EXTINGUISHING SYSTEMS ARE REQUIRED AND WERE
INSTALLED IN COMPLIANCE WITH APPLICABLE LAWS.
--------- ---------
YES NO YES NO
- --------------------------------------------------------------------------------
STANDPIPE SYSTEM x AUTOMATIC SPRINKLER SYSTEM x
- --------------------------------------------------------------------------------
YARD HYDRANT SYSTEM
- -----------------------------------------
STANDPIPE FIRE TELEPHONE AND
SIGNALLING SYSTEM
- -----------------------------------------
SMOKE DETECTOR
- -----------------------------------------
FIRE ALARM AND SIGNAL SYSTEM
- -----------------------------------------
STORM DRAINAGE DISCHARGES INTO:
A)STORM SEWER [ ] B) COMBINED SEWER [ ] C) PRIVATE SEWAGE DISPOSAL SYSTEM [ ]
SANITARY DRAINAGE DISCHARGES INTO:
A)STORM SEWER [ ] B) COMBINED SEWER [ ] C) PRIVATE SEWAGE DISPOSAL SYSTEM [ ]
LIMITATIONS OR RESTRICTIONS:
BOARD OF STANDARDS AND APPEALS CAL. NO 347-56-BZ. 3337-BZY
---------------
CITY PLANNING COMMISSION CAL. NO. [ILLEGIBLE] October 25, 1956
-----------
OTHERS:
BOARD OF ESTIMATE CAL. #1-40-A
Schedule B - Page 4
157
Schedule C
LANDLORD'S WORK
1. All convector covers will be cleaned, repaired or replaced as required.
2. A data gathering panel ("DGP") for the 37th floor of the Building will be
furnished, installed and connected to the Building's Class E System.
3. Door handles along the Building's core will be repaired or replaced, as
required.
Schedule C
Page 1
158
Schedule D
CONTRACTORS APPROVED FOR INITIAL ALTERATIONS
GENERAL CONTRACTORS
Werner Krebs (212) 325-5400 Val Bonanno
J. Gallin (212) 889-9100 John Gallin
A.J. Contracting (212) 229-6301 Ken Smith
Turner (212) 586-8000 Pat A. Difillipo
McCann, Inc. (212) 586-8000 Vincent Allperti
Herbert Construction
Structuretone
Henegan
Lehr Construction
Schedule D
Page 1
159
DEMOLITION
All City Interior Contracting Inc.
Sal Vilante (718) 599-0197
Casalino Interior Demolition Corp.
Carlo Casalino (718) 478-2292
Liberty Contracting Corp.
Glen Furman (201) 488-9300
MASONRY
Art Construction
Robert Tariche (718) 359-1424
Capri Construction, Inc.
Nat Minucci (516) 333-4414
Dovin Construction Inc.
Robert Lynch (516) 586-1927
Kelly Masonry Corp.
Robert Massina (516) 739-8110
STONE
Bergon County Cut Stone
Joe Mollturno (201) 796-0961
Port Morris Tile & Marble Corp.
Vincent Dalazzaro (212) 378-6100
AMI Assoc. Marble Industries
Angelo Romenelli (516) 371-9301
Sheppard Industries
Mike Fiorentino (212) 349-8240
STRUCTURAL STEEL
Burgass Steel
Tim Guerin (212) 563-6000
Dominick Iron Works, Inc.
Jack Stoff (914) 698-6177
Feinstein Iron Works, Inc.
Daniel Feinstein (718) 899-8300
Koenig Iron Works, Inc.
Norman Rosenbaum (212) 924-4333
Schedule D
Page 2
160
MOVING
Liberty Moving
Tom Iucci (516) 234-3000
Guardian Moving
Michael Mariani (212) 585-9444
American Moving
Chris Shea (516) 543-5550
Central Moving
Nick DiVito (212) 268-8989
ELEVATORS
Otis Elevator Co.
Bill Mount (212) 620-8900
GLASS
Harris Glass
Liz Canale (212) 227-3191
Elmont Glass
Glen Greenburg (212) 336-1100
Checker Glass
Frank Cooper (516) 284-8818
Fox Glass
Rich Martin (718) 259-2705
Schedule D
Page 3
161
PLUMBING
George Breslaw & Sons
Milton Breslaw (212) 265-4023
Lab Plumbing
Richard Bisso (718) 246-9690
Par Plumbing Co., Inc.
Marty Levine (516) 887-4000
MBR Mechanical Corp.
Morris Rosenman (718) 402-6136
HVAC
A.D. Winston Corp.
Charles Rodstrom (718) 786-7848
J.T. Falk & Co., Inc.
Arnold Robinson (212) 924-8900
P.J. Mechanical
Tom Lacarrozo (212) 966-6054
Landis & Gyr Powers
Frank Del Vecchio (201) 575-6300
Service Engineering
J. Ross (718) 821-6330
Sound A/C
Robert Guimi (516) 747-5678
V & S Temperature
Joe Jelik (212) 227-7774
ELECTRICAL
Coyne Electrical Contractors Inc.
Ron Nelson (212) 292-9100
George Kleinknacht Inc.
Mike Borman (212) 989-4500
L.K. Comstock
Manny Abad (212) 682-1020
Petrocelli Electric
Joseph Rutigliano (718) 837-1200
Unity Electric
Richard Scarpelli (718) 639-4000
Schedule D
Page 4
162
PAINTING & FINISHES
Caruso Painting & Decorating Corp.
Tom Caruso (718) 948-7979
Century Painting
Val Bonanno (212) 325-5400
Brookside Painting
Bobby Wager (914) 738-0103
Bond Painting
Stuart Feld (212) 839-3900
SIGNAGE
Letters Graphics
Frank Lettera (212) 328-7702
BPC Industries
Lew Jacobs (212) 473-1630
Ultimate Signs
Mike Gysoek (516) 756-1010
TechSign
Savas Kay (212) 279-6666
FIRE PROTECTION/SPRINKLER
Firecraft (Class "E")
Don Ollerich (718) 322-3600
Rael Automatic Sprinkler Co., Inc.
David Israel (516) 392-2000
George Breslaw & Sons
Milton Breslaw (212) 265-4023
MBR Mechanical Corp.
Morris Rosenmann (718) 402-6136
ABLE
Richard Johnson (718) 366-9445
Sirina Fire Protection
Anthony Florez (516) 942-0400
Triangle
Fred Swirling (718) 343-8700
Schedule D
Page 5
163
FINISH CARPENTRY
John Langenbacher Co., Inc.
Emmett Mickelson (212) 328-7600
Nordic Interiors Inc.
Joseph Personelli (718) 456-7000
Emco Woodworking
Ed Murawski (718) 894-5135
SPRAY-ON FIREPROOFING
Crown Plaster Inc.
Dough Schwartz (516) 489-8200
Island ADC, Inc.
Ron Lamarter (516) 289-2000
Rosen Plaster Corp.
Jerry Rose (718) 469-5232
Prism-Giambol Corp.
Chuck Newman (212) 756-4200
LATH/PLASTER
Crown Plaster Inc.
Doug Schwartz (516) 489-8200
Donaldson Acoustics Co., Inc.
Robert Donaldson (516) 681-7136
Island ADC, Inc.
Ron Lamarter (516) 289-2000
Rosen Plaster Inc.
Jerry Rosen (718) 469-5232
DRYWALL/ROUGH CARPENTRY
Donaldson Acoustics Co., Inc.
Robert Donaldson (516) 681-7136
Island ADC, Inc.
Ron Lamparter (516) 289-3000
Linden Construction Corp.
Peter Kaplow (516) 921-2050
Werner Krabs
Val Bonanno (212) 325-5400
S&H Drywall
Celestine Donaghy (718) 392-0190
Schedule D
Page 6
164
Schedule E
HVAC SPECIFICATIONS
The Building's HVAC system for the office floors is designed to maintain the
following conditions provided Tenant's air distribution duct work conforms to
S.M.A.C.N.A. (Sheet Metal and Air Conditioning National Association, Inc.)
standards for variable air volume systems:
1. When summer outdoor ambient temperature is not in excess of
90(degree)F dry bulb and 78(degree)F wet bulb, indoor space
conditions shall be not greater than 75(degree)F dry bulb and
maximum relative humidity of 50%.
2. When winter outdoor temperature is not less than 10(degree)F, indoor
space conditions shall be not less than 70(degree)F dry bulb and
maximum relative humidity of 50%.
3. Introduction of outside ventilation air at New York City code
required quantity of 0.133 cubic feet per minute per occupied square
foot area.
Maintenance of these conditions is subject to:
(a) Light colored drape or blind on clear glass, no shading on tinted
reflective glass.
(b) Occupant density not in excess of one person per 100 usable square
foot of the Premises.
(c) Total individual floor lighting and equipment power consumption not
exceeding 6.0 watts per usable square foot of the Premises.
(d) Tenant's interior air distribution system will maintain a minimum of
1 c.f.m. per usable square foot of the Premises.
Schedule E
Page 1
165
EXHIBIT A
LAND
ALL that certain lot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the southerly line of
Liberty Street before widening with the westerly line of William Street before
widening:
Running thence southerly, along the westerly line of William Street before
widening, 139'-10 1/4";
Thence westerly, along a line forming an angle of 85(degree)-20'-10" on its
northerly side with the preceding course, 15'-2 7/8" to a point in the westerly
line of William Street as widened;
Thence southerly, along the westerly line of William Street as widened,
34'-11 1/8" to a point in the former southerly line of Cedar Street, now closed
and discontinued;
Thence easterly, along the former southerly line of Cedar Street, now
closed and discontinued, 15'-4" to a point in the westerly line of William
Street before widening;
Thence southerly, along the westerly line of William Street before
widening, 137'-9 1/2" to the corner formed by the intersection of the westerly
line of William Street before widening with the northerly line of Pine Street
before widening;
Thence westerly, along the northerly line of Pine Street before widening,
237'-3 1/4";
Thence northerly, along a line forming an angle of 93(degree)-53'-00" on
its easterly side with the preceding course, 71'-3";
Thence easterly, along a line forming an angle of 86(degree)-07'-10" on its
southerly side with the preceding course, 5'-11 1/4";
Thence northerly, along a line forming an angle of 87(degree)-04'-30" on
its westerly side with the preceding course, 72'-9 3/4", to a point in the
former southerly line of Cedar Street, now closed and discontinued;
Exhibit A
Page 1
166
Thence westerly, along the former southerly line of Cedar Street, now
closed and discontinued, forming an angle of 94(degree)-35'-00" on its southerly
side with the preceding course, 86'-3 3/4" to an angle point therein;
Thence still westerly, along the southerly line of Cedar Street, now closed
and discontinued, forming an angle of 179(degree)-24'-50" on its northerly side
with the preceding course, 73'-2" to a point in the easterly line of Nassau
Street as widened;
Thence northerly, along the easterly line of Nassau Street as widened,
35'-2";
Thence westerly, along a line forming an angle of 95(degree)-46'-20" on its
southerly side with the preceding course, 7'-7 3/4" to a point in the easterly
line of Nassau Street before widening;
Thence northerly, along the easterly line of Nassau Street before widening,
184'-11 1/8" to the corner formed by the intersection of the easterly line of
Nassau Street before widening with the southerly line of Liberty Street before
widening;
Thence easterly, along the southerly line of Liberty Street before
widening, 115'-9" to an angle point therein;
Thence still easterly, along the southerly line of Liberty Street before
widening, forming an angle of 181(degree)-81'-20" on its northerly side with the
preceding course, 99'-9 1/2" to an angle point therein;
Thence still easterly, along the southerly line of Liberty Street before
widening, forming an angle of 180(degree)-38'-00" on its northerly side with the
preceding course, 112'-1 7/8" to an angle point therein;
Thence still easterly, along the southerly line of Liberty Street before
widening, forming an angle of 179(degree)-41'-00" on its northerly side with the
preceding course, 82'-4 1/2" to the point or place of BEGINNING.
Exhibit A
Page 2
167
EXHIBIT B
FLOOR PLAN OF THE PREMISES
This floor plan is annexed to and made a part of this lease solely
to indicate the Premises by outlining and diagonal marking. All areas,
conditions, dimensions and locations are approximate.
Diagram: depiction of the floor plan of the 37th Floor of One Chase
Manhattan Plaza, New York, New York. The floor is rectangular with Liberty and
Pine Streets bordering the length of the floor, respectively. Nassau and William
Streets border the width of the floor, respectively. The floor plan has been
marked with diagonal lines highlighting the area to be used for work space. In
the center, but shifted slightly to the left on the rectangular floor plan, are
two small sized rectangles. These two smaller rectangular areas are not
highlighted with diagonal lines but there is a small area separating these
rectangles which is highlighted with diagonal lines. Decipited inside of the two
small rectangles in the center is illegible (it appears to be evaluator banks
and stairs).
168
EXHIBIT C
RULES AND REGULATIONS
1. No tenant shall obstruct or encumber, or use for any purpose
other than ingress to and egress from its premises, the sidewalks, driveways,
entrances, passages, courts, lobbies, esplanade areas, atrium, plazas,
elevators, escalators, stairways, vestibules, corridors, halls and other public
portions of the Building ("Public Areas") and no tenant shall permit any of its
employees, agents, licensees or invitees to congregate or loiter in any of the
Public Areas. No tenant shall invite to, or permit to visit, its premises
persons in such numbers or under such conditions as may interfere with the use
and enjoyment by others of the Public Areas. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purposes by any
tenant, or the employees, agents, licensees or invitees of any tenant. Landlord
reserves the right to control and operate, and to restrict and regulate the use
of the Public Areas and the public facilities, as well as facilities furnished
for the common use of the tenants, in such reasonable manner as it deems best
for the benefit of the tenants generally, including the right to allocate
certain elevators for delivery service and the right to designate which Building
entrances shall be used by persons making deliveries in the Building. No
doormat, garbage or garbage receptacle, showcase, furniture, decoration or
sculpture or other article of any kind whatsoever shall be placed or left in the
Public Areas or outside any tenant's premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building. Curtains, blinds, shades, louvered openings and screens
shall (i) not be attached to or hung in, or used in connection with, any window
or door of any tenant's premises, without the consent of Landlord, (ii) be of a
quality, type, design and color, and attached in the manner, approved by
Landlord, and (iii) once attached, hung or used with the consent of Landlord,
not be thereafter removed or changed. In order to maintain a uniform exterior
appearance of the Building, each tenant occupying the perimeter areas of the
Building shall (a) use only Building Standard lighting in areas where lighting
is visible from the outside of the Building and (b) use only Building Standard
blinds in window areas which are visible from the outside of the Building.
3. Signs, advertisements, graphics and notices visible from the
Public Areas or the exterior of the Building shall be subject to Landlord's
approval. Signs on each entrance door of any tenant's premises shall conform to
Building Standard signs, samples of which are on display in Landlord's rental
office. Such signs shall, at the expense of the tenant, be inscribed, painted or
affixed by signmakers approved by Landlord. Landlord shall have the right to
prohibit any advertising or identifying sign by any tenant which, in Landlord's
reasonable
Exhibit C
Page 1
169
judgment, tends to impair the reputation of the Building or its desirability as
a building for others, and upon written notice from Landlord, such tenant shall
refrain from and discontinue such advertising or identifying sign. In the event
of the violation of any of the foregoing by any tenant, Landlord may remove the
same without any liability, and may charge the expense incurred in such removal
to the tenant violating this rule. Interior signs, elevator cab designations, if
any, and lettering on doors and the Building directory shall, if and when
approved by Landlord, be inscribed, painted or affixed for each tenant by
Landlord, at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord. Landlord will, at the request of any tenant, maintain
listings on the Building directory of the names of such tenant and any other
person, firm, association or corporation in occupancy of such tenant's premises
or any part thereof as permitted pursuant to its lease, and the names of any
officers or employees of, or partners in, the foregoing; provided, however, that
the maximum number of names so listed shall in no event exceed such tenant's
proportionate share of the listing capacity of the Building directory. Landlord
will change the listings of any tenant on the Building directory at the request
of such tenant and may charge the expense incurred in making such change to the
tenant.
4. No tenant shall (a) cover or obstruct the sashes, sash doors,
skylights or windows that reflect or admit light and air into the halls,
passageways or other public places in the Building or the heating, ventilating
and air conditioning vents and doors, or (b) place any bottles, parcels or other
articles on the window sills or on the peripheral heating enclosures. Whenever
the heating, ventilating or air conditioning systems are in operation, each
tenant shall draw the shades, blinds or other window coverings, as reasonably
required because of the position of the sun.
5. No tenant shall (a) discharge, or permit to be discharged, acids,
harmful vapors or other harmful materials into the waste lines, vents or flues
of the Building; (b) use the water and wash closets and other plumbing fixtures
for any purposes other than those for which they were designed and constructed,
or throw or deposit therein sweepings, rubbish, rags, acids or other foreign
substances; or (c) sweep or throw anything into the Public Areas or other areas
of the Building, or into or upon any heating or ventilating vents or registers
or plumbing apparatus in the Building, or upon adjoining buildings or land or
the street.
6. No tenant shall mark, paint, drill into, or in any way deface,
any part of the Building except in connection with the installation of customary
office decorations in such tenant's offices. No boring, cutting or stringing of
wires shall be permitted in any part of the Building, except with the prior
written consent of, and as directed by, Landlord. Tenant shall not attach or
affix any screws or fasteners to the exterior curtain wall of the Building or
install, except with the prior written consent of Landlord, any materials that
will come in contact with the exterior curtain wall of
Exhibit C
Page 2
170
the Building. No telephone, telegraph or other wires or instruments shall be
introduced into the Building by any tenant except in a manner approved by
Landlord. No tenant shall install linoleum, or other similar floor covering, so
that the same shall come in direct contact with the floor of its premises, and,
if linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
7. No tenant shall bring into or keep in or about its premises any
bicycles, vehicles, animals (except seeing eye dogs), fish or birds of any kind.
8. No tenant, nor the employees, agents, licensees or invitees of
any tenant, shall at any time bring or keep upon its premises any inflammable
combustible or explosive fluid, chemical or substance.
9. No tenant shall (a) place or affix any additional locks or bolts
of any kind upon any of the doors or windows of its premises or the Building or
(b) make any changes in locks or the mechanism thereof. Duplicate keys for any
tenant's premises and toilet rooms shall be procured only from Landlord, and
Landlord may make a reasonable charge therefor. Each tenant shall, upon the
expiration or sooner termination of the Lease of which these Rules and
Regulations are a part, turn over to Landlord all keys to stores, offices and
toilet rooms, either furnished to, or otherwise procured by, such tenant, and in
the event of the loss of any keys furnished by Landlord, such tenant shall pay
to Landlord the cost of replacement locks. Notwithstanding the foregoing, a
tenant may, subject to Landlord's consent, install a security system in the
premises which uses master codes or cards instead of keys, provided that such
tenant shall provide Landlord with the master code or card for such system. No
tenant shall lend or furnish to any public messenger the keys to any toilet
rooms.
10. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter shall take
place only during such hours and in such elevators as Landlord may from time to
time determine, which may involve overtime work for Landlord's employees. Each
tenant shall reimburse Landlord for extra costs incurred by Landlord on such
tenant's behalf, including the cost of such overtime work. No hand trucks shall
be used for such purposes except those equipped with rubber tires, side guards
and such other safeguards as Landlord shall require. No hand trucks shall be
used in passenger elevators. Tenants shall not use the elevators during Business
Hours on Business Days for haulage or removal of construction materials or
debris. The persons employed to move safes and other heavy objects shall be
reasonably acceptable to Landlord and, if so required by law, shall hold a
Master Rigger's license.
Exhibit C
Page 3
171
Arrangements must be made with Landlord by any tenant for moving large
quantities of furniture and equipment into or out of the Building. All
reasonable labor and engineering costs incurred by Landlord in connection with
any moving specified in this rule shall be paid by tenants to Landlord as
Additional Charges on demand.
11. No tenant shall use or occupy, or permit any portion of its
premises to be used or occupied, as an office for a public stenographer or
public typist, or for the possession, storage, manufacture or sale of liquor,
tobacco or any controlled substance or as a barber, beauty or manicure shop,
telephone or telegraph agency, telephone or secretarial service, messenger
service, travel or tourist agency, retail service shop, labor union, company
engaged in the business of renting office or desk space. public finance
(personal loan) business, hiring employment agency, stock brokerage, or for the
conduct of any other business or occupation which predominantly involves direct
patronage of the general public. No tenant shall engage or pay any employee on
its premises, except those actually working for such tenant on its premises, nor
advertise for laborers giving an address at the Building.
12. Landlord may institute, revise and discontinue such security
measures, systems and requirements as Landlord shall deem appropriate. Landlord
reserves the right to inspect all objects and matter to be brought into the
Building and to exclude from the Building all objects and matter which violate
any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part. Landlord may require any person leaving the Building
with any package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises the package or
object or matter is being removed, but the establishment and enforcement or
non-enforcement of such requirement shall not impose any responsibility or
liability on Landlord for the protection of any tenant against the removal of
property from the premises of such tenant. Landlord reserves the right to
exclude from the Building all employees of any tenant who do not present a pass
to the Building signed by such tenant. Landlord or its agent will promptly
furnish passes to persons for whom any tenant requests same in writing. Landlord
reserves the right to require all other persons entering the Building to sign a
register, to be announced to the tenant such person is visiting, and to be
accepted as a visitor by such tenant or to be otherwise properly identified
(and, if not so accepted or identified, reserves the right to exclude such
persons from the Building) and to require persons leaving the Building to sign a
register or to surrender a pass given to such person by the tenant visited. Each
tenant shall be responsible for all persons for whom it requests any such pass
or any person who such tenant accepts, and such tenant shall be liable to
Landlord for all acts or omissions of such persons. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character, security, reputation or interests of the Building or the
tenants of the Building may be denied access to the Building or may
Exhibit C
Page 4
172
be ejected from the Building. In the event of invasion, riot, public excitement
or other commotion, Landlord may prevent all access to the Building during the
continuance of the same by closing the doors or otherwise, if reasonably
necessary for the safety of tenants and the protection of property in the
Building. Landlord shall in no way be liable to any tenant for damages or loss
arising from the admission, exclusion or ejection of any person, objects or
matter to or from its premises or the Building under the provisions of this Rule
12.
13. Each tenant, before closing and leaving its premises at any
time, shall see that all lights are turned out. All entrance doors in each
tenant's premises shall be kept locked and all windows shall be left closed by
such tenant when its premises are not in use. Entrance doors shall not be left
open at any time.
14. Each tenant shall, at the expense of such tenant, provide light,
power and water for the employees of Landlord, and the agents, contractors and
employees of Landlord, while doing janitor service or other cleaning in the
premises demised to such tenant and while making repairs or alterations in its
premises.
15. No tenant shall use its premises for lodging or sleeping or for
any immoral or illegal purpose.
16. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
17. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
18. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, bootblacking, floor polishing,
lighting, maintenance, cleaning or other similar services from any persons not
authorized by Landlord in writing to furnish such services (which authorization
shall not be unreasonably withheld) provided that the charges for such services
by persons authorized by Landlord are comparable to similar charges in other
first class office buildings in New York County. Such services shall be
furnished only at such hours, and under such reasonable regulations, as may be
fixed by Landlord from time to time.
19. All paneling, doors, trim or other wood products not considered
furniture shall, to the extent required by law, be of fire-retardant materials.
Before installation of any such materials, certification of such materials'
fire-retardant
Exhibit C
Page 5
173
characteristics shall be submitted to and approved by Landlord, and such
materials shall be installed in a manner approved by Landlord.
20. Whenever any tenant shall submit to Landlord any plan, agreement
or other document for the consent or approval of Landlord, such tenant shall pay
to Landlord, within 5 Business Days after demand, a processing fee in the amount
of the reasonable fees for the review thereof, including the services of any
architect, engineer or attorney employed by Landlord to review such plan,
agreement or document. The fees payable by any tenant pursuant to this Rule 20
shall not be duplicative of the fees payable by such tenant pursuant to Section
11.02 of its lease.
Exhibit C
Page 6
174
EXHIBIT D
ALTERATION RULES AND REGULATIONS
A. General
1. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, a complete plan of the Premises, or of the floor on
which the Alterations are to occur. Drawings are to be complete with full
details and specifications for all of the Alterations.
2. The proposed Alterations must comply with the Administrative Code of The
City of New York and the rules and regulations of the Housing and Development
Administration of The City of New York and any other agencies having
jurisdiction.
3. No work shall be permitted to commence without the Landlord being
furnished with a valid permit from the Department of Buildings and/or other
agencies having jurisdiction.
4. All (i) demotion or removals, or (ii) other categories of work if such
work would disturb or interfere with any other tenant(s) of the Building or
disturb Building operations, or (iii) carrying in or out of construction
materials to or from the Building, must be scheduled and performed before or
after normal working hours, and Tenant shall provide the building Manager with
at least 24 hours' notice prior to proceeding with such work and shall pay for
any overtime labor or engineering costs incurred by Landlord in connection
therewith.
5. All inquiries, submissions, approvals and all other matters shall be
processed through the Building Manager.
B. Prior to Commencement of Work
1. Tenant shall submit to the Building Manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for
Landlord's approval.
(ii) Four complete sets of plans and specifications properly stamped
by a registered architect or professional engineer.
Exhibit D
Page 1
175
(iii) A properly executed Building Notice application form or
Alteration form; Engineer's Statement "B" if HVAC work is to be performed;
Plumbing Specification sheet if any plumbing change is to be performed;
Form 10F if any controlled inspection is required.
(iv) Four executed copies of the Insurance Requirements agreement in
the form attached to these Rules and Regulations from Tenant's contractor
and if requested by Landlord from the contractor's subcontractors.
(v) Contractor's and subcontractor's insurance certificates
including a "hold harmless" in accordance with the Insurance Requirements
Agreement.
2. Landlord will return the following to Tenant:
(i) Plans approved or returned with comments (such approval or
comments shall not constitute a waiver of Department of Buildings approval
or approval of other jurisdictional agencies).
(ii) Signed application forms referred to in B1(iii), above,
providing proper submissions have been made.
(iii) Two fully executed copies of the Insurance Requirements
agreement.
(iv) Covering transmittal letter.
3. Tenant shall obtain Department of Buildings approval of plans and a
permit from the Department of Buildings. Tenant shall be responsible for keeping
current all permits. Tenant shall submit copies of all approved plans and
permits to Landlord and shall post the original permit on the Premises prior to
the commencement of any work.
C. Requirements and Procedures
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers. When necessary, Landlord will require engineering and shop
drawings, which drawings must be approved by Landlord before work is started.
Drawings are to be prepared by Tenant and all approvals shall be obtained by
Tenant.
Exhibit D
Page 2
176
3. Intentionally omitted.
4. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be made with
Building Manager by Tenant. No material or equipment shall be carried under or
on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
5. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative at Tenant's expense. No work will be performed in Building
mechanical equipment rooms without Landlord's approval and under Landlord's
supervision at Tenant's expense.
6. Tenant's contractor shall:
(i) have a Superintendent or Foreman on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies;
(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep
dust from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other tenants.
7. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for the corrective work done by Building porters and
other personnel.
8. All equipment and installations must be equal to the standards of the
Building. Any deviation from Building standards will be permitted only if
indicated or specified on the plans and specifications and approved by Landlord.
9. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
Exhibit D
Page 3
177
10. Upon completion of the Alterations, Tenant shall submit to Landlord a
properly executed Form 23 and/or other documents indicating total compliance and
final approval by the Department of Buildings of the Building Notice or
Alteration.
11. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
12. Additional and differing provisions in the lease, if any, will be
applicable and will take precedence.
D. SPECIAL REQUIREMENTS REGARDING LOCAL LAW #5/73 (AS AMENDED)
1. Tenant acknowledges being advised that the Building has an active
Modified Class E Fire System ("Class E System"). Tenant shall notify its
contractors and subcontractors, as well as all persons and entities who shall
perform or supervise any alteration or demotion within the Premises, of such
facts.
2. Demolition by Tenant of all or any portions of the Premises shall be
carried out in such manner as to protect equipment and wiring of Landlord's
Class E System.
3. Landlord, after receipt of Tenant's notice of demolition, and at
Tenant's expense, shall secure and protect Building equipment connected to the
Class E System in the Premises to be demolished.
4. Landlord, at Tenant's expense, shall make such additions and alterations
within the requirements of Local Law #5/73 (as amended) to the existing Class E
System as may be necessary by reason of Alterations made within the Premises
either by or on behalf of Tenant or by Landlord, as part of the initial
installation, and work, if any, that Landlord is required to perform pursuant to
the provisions of the lease or any work letter or leasehold improvements
agreement entered into by Landlord and Tenant.
5. Landlord's contract fire alarm service personnel shall be the only
personnel permitted to adjust, test, alter, relocate, add to, or remove
equipment connected to the Class E system.
6. Landlord, at Tenant's expense, shall repair or cause to have repaired
any and all defects, deficiencies or malfunctions of the Class E System caused
by Tenant's alterations or demolition of the Premises. Such expense may include
expenses of engineering, supervision and standby fire watch personnel that
Landlord deems necessary to protect the Building during the time such defects,
deficiencies and malfunctions are being corrected.
Exhibit D
Page 4
178
7. During such times that Tenant's Alterations or demolition of the
Premises require that fire protection afforded by the Class E System be
disabled, Tenant, at Tenant's expense, shall maintain fire watch service deemed
reasonably suitable by Landlord.
8. Tenant and Tenant's architect shall familiarize themselves with and be
aware of Local Law #5/73 and all amendments thereto with regard to smoke
control, compartmentation, and areas of safe refuge. Tenant shall fully comply
with these requirements. Landlord, at Landlord's option, may withhold approval
of Tenant's alterations or demolition if such requirements are not met with
Landlord's reasonable satisfaction.
9. Should Tenant desire to install its own internal fire alarm system,
Tenant shall request Landlord to connect such system to the Class E System at
Tenant's expense in such reasonable manner as prescribed by the Landlord. Tenant
shall, at Tenant's expense, have such internal fire alarm system approved by
governing agencies having jurisdiction, and shall submit to the Landlord an
approved copy of plans of such system before initiating any installation of such
system.
10. In the event Tenant shall install its own internal fire alarm system
within the Premises and in such event (as required by law) requests Landlord to
connect same to the Class E System, then Tenant shall reimburse Landlord for its
costs incurred in making such connection within ten (10) days after being billed
therefor. Tenant shall also reimburse Landlord for costs of contracting for the
maintenance and supervision of Tenant's internal fire alarm system with the
company providing such services for the Class E System.
11. Tenant, at Tenant's expense, shall cause the Premises to be fully
sprinklered in accordance with the requirements of the Building Code of The City
of New York and all applicable rules and regulations pertaining thereto and
Landlord shall, at Tenant's expense, connect same to the Building system.
Exhibit D
Page 5
179
STANDARD REQUIREMENTS
DRYWALLS
1. All drywall partitions are to be constructed of 2- 1/2" steel studs, 24"
on center, and a minimum of 5/8" thick fire code gypsum wallboard each side,
properly taped and spackled.
2. All steel studs shall extend from slab to slab. No drywall is to be
fastened to any ductwork or directly to any ceiling tile.
3. All walls butting mullions shall have a proper channel to receive the
sheetrock.
ELECTRICAL
1. Home runs shall be indicated on plans. Rigid conduit shall be used
throughout, 3/4" minimum size. Thin wall tubing is permitted.
2. Light fixtures shall be Building-standard or as previously approved by
Landlord.
3. All conduit shall be supported by standoffs, not wired to ceiling
supports. All conduit shall be concealed.
4. All electrical boxes shall meet code requirements.
5. All unused conduit and wiring shall be removed.
6. All wiring shall meet the requirements of the Department of Water
Supply, Gas and Electricity and of Underwriter's Laboratory. No wire molding
shall be permitted.
7. Special power shall be taken from main distribution board and not from
existing Building panels.
8. Plans with requirements shall be submitted to Landlord to determine
riser capacity.
9. Tenant shall pay for all electrical design and layout costs for related
work.
Exhibit D
Page 6
180
10. Building Mechanic or Engineer shall supervise all riser shutdowns.
TELEPHONE
1. All telephone wire shall be concealed in conduit or thin wall tubing.
2. No telephone wire shall be run loose in the ceilings.
3. Telephone wire will be permitted to be run loose in periphery enclosures
only.
4. No telephone wire shall be run exposed on baseboards or walls.
DOORS
All wood doors shall have a fire rated label. All hollow metal doors shall
be properly fire rated if they are located in rated partitions.
HARDWARE
1. All hardware shall match existing.
2. All locks shall be keyed and mastered to Building setup. Two individual
keys must be supplied to the Building Manager.
EQUIPMENT
1. No equipment is to be suspended from the reinforcing rods in arch.
2. Equipment shall be suspended with fish plates through slab or steel
beams depending on load.
3. All floor loading and steel work shall be subject to the prior approval
of the Building structural engineer. All approvals shall be obtained by the
Tenant at Tenant's expense. Tenant shall also be responsible for the costs of
all controlled inspection by any professional engineers in connection with this
work.
Exhibit D
Page 7
181
WOODWORK
All work shall be fireproofed and a New York City Affidavit of
Certification must be furnished.
PUBLIC AREAS
All public areas shall meet Department of Buildings' requirements or
requirements of other agencies having jurisdiction.
AIR CONDITIONING
1. Tenant shall be responsible for Alterations to existing air conditioning
ductwork or systems and for insuring that such work is properly integrated into
the existing Building systems with no adverse effects on the Building systems.
Landlord shall not be responsible for the proper HVAC design within the area of
any Tenant Alteration.
2. The system shall be balanced at the completion of the job.
3. Tenant shall furnish design balancing figures to Building office.
4. All air conditioning components shall match existing or shall receive
prior approval from Landlord.
5. Landlord will not permit any additional outside louvers unless the need
therefor is firmly established. The location of such louvers shall be subject to
Landlord's approval. Detailed sketches of all louvers shall be submitted for
Landlord's approval.
6. No outside louver or ductwork is to be installed in such a manner as to
interfere with the cleaning of windows or replacement of glass.
7. All periphery shutoff valves shall be accessible at all times.
8. All unused ductwork shall be removed.
9. All unused equipment, such as air handling units and air conditioning
units, shall be removed.
Exhibit D
Page 8
182
10. All HVAC, kitchen, toilet and equipment exhaust fan systems and any
other systems shall be discharged to the atmosphere, not in ceilings or existing
Building return air systems.
PLUMBING
1. No water risers shall be shut down during Building office hours.
2. All plumbing shall conform to the code.
3. All fixtures shall match existing fixtures.
4. No exposed plumbing is permitted.
5. All unused fixtures and piping shall be removed and all unused piping
shall be capped at its respective riser.
6. No plastic pipe will be permitted.
7. All unused fixtures shall be returned to Landlord.
8. A Building mechanic shall supervise all riser shutdowns.
9. All run outs from risers shall be brass pipe.
10. All hot water lines shall be properly insulated, and, where necessary,
Landlord may require that cold water lines be insulated.
VENETIAN BLINDS AND CURTAINS
1. All venetian blinds shall match existing blinds.
2. No curtain rods are to be installed in venetian blind pockets.
3. Curtain rods shall not be supported by any part of the acoustical tile.
Rods shall be supported by headers attached to the ceiling's mechanical supports
of black iron.
4. If curtains are to be installed by Tenant, such curtains shall be
flameproof and shall not interfere with the proper functioning of the peripheral
HVAC system.
Exhibit D
Page 9
183
CEILINGS
1. All ceilings shall meet all requirements of New York City Department of
Buildings.
2. All acoustic tile ceiling shall match the existing tile ceiling to the
extent possible.
3. All ceilings are to be supported independently and not from ductwork.
Exhibit D
Page 10
184
INSURANCE REQUIREMENTS
The undersigned contractor or subcontractor (hereinafter called
"Contractor") has been hired by ___________________, a tenant or occupant
(hereinafter called "Tenant") of the Building named above or by Tenant's
contractor to perform certain work (hereinafter called "Work") for Tenant in the
Tenant's premises or elsewhere in the Building. Contractor and Tenant have
requested the undersigned landlord (hereinafter called "Landlord") to grant
Contractor access to the Building and its facilities in connection with the
performance of the Work and Landlord agrees to grant such access to Contractor
upon and subject to the following terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, Tenant
and their respective officers, employees and agents and their affiliates,
subsidiaries, and partners, and each of them, from and with respect to any
claims, demands, suits, liabilities, losses and expenses, including reasonable
attorneys' fees, arising out of or in connection with the Work (and/or imposed
by law upon any or all of them) because of personal injuries, including death at
any time resulting therefrom, and loss of or damage to property, including
consequential damages, whether such injuries to persons or property are claimed
to be due to negligence of the Contractor, Tenant, Landlord or any other party
entitled to be indemnified as aforesaid except to the extent specifically
prohibited by law (and any such prohibition shall not void this Agreement but
shall be applied only to the minimum extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workers' Compensation and Employers' Liability Insurance
covering each and every workman employed in, about or upon the work, as
provided for in each and every statute applicable to Workers' Compensation
and Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance Including Coverages
for Protective and Contractual Liability (to specifically include coverage
for the indemnification clause of this Agreement) for not less than the
following limits:
Bodily Injury and
Property Damage: $5,000,000 per occurrence
(c) Comprehensive Automobile Liability Insurance (covering all
owned, non-owned and/or hired motor vehicles to be used in connection with
the Work) for not less than the following limits:
Exhibit D
Page 11
185
Bodily Injury and
Property Damage: $5,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or carriers to
the Building office before commencing the Work, showing that it has complied
with the above requirements regarding insurance and providing that the insurer
will give Landlord ten (10) days' prior written notice of the cancellation of
any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Comprehensive General Liability Insurance Including Protective
and Contractual Liability Coverages with limits of liability at least equal
to the above stated limits.
(b) Comprehensive Automobile Liability Insurance (covering all
owned, non-owned and/or hired motor vehicles to be used in connection with
the Work) for not less than the following limits:
Bodily Injury and
Property Damage: $5,000,000 per occurrence
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 19 .
Contractor:
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
Exhibit D
Page 12
186
EXHIBIT E
CLEANING SPECIFICATIONS
General & Private Offices, Conference Rooms
a. Nightly, light vacuuming is to be performed.
b. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
c. Nightly, empty waste paper receptacles. Empty and damp wipe ash trays.
d. Nightly, dust desk tops, tops of filing cabinets and table tops with cloth.
Dust arms, seat, back and rails of chairs. Dust furniture, tables, sills,
ledges, and wall decorations.
e. Nightly, disinfect telephones.
f. Nightly, spot clean vertical surfaces.
g. Nightly, sweep wood borders and saddles in reception areas and staircases.
h. Nightly, dust stair rails.
Interior Offices
a. Nightly check tile floor area for deposits and use a putty knife or scraper
to remove. Sweep using a treated mop.
b. Weekly, spot mopping is performed in normal traffic areas and only if the
floor area has an accumulation of spills and dirt that cannot be removed by
sweeping with a treated mop; then, use a mop that is wrung fairly dry to
remove these spots. Generally, there should be no moving of furniture when
this function is performed.
c. Weekly, damp mopping is performed in areas that receive fairly heavy
traffic.
d. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
e. Nightly, empty waste paper receptacles. Empty and damp wipe ash trays.
f. Nightly, dust desk tops, tops of filing cabinets and table tops with cloth.
Dust arms, seat, back and rails of chairs. Dust furniture, tables, sills,
ledges, and wall decorations.
Elevator Lobby
a. Nightly, light vacuuming is to be performed.
b. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
c. Nightly, empty waste paper receptacles. Empty and damp wipe ash trays,
sand/smoke urns (if sand urn, sift sand with strainer and replace sand to
proper level as necessary).
Exhibit E
Page 1
187
Men's Lavatories/Foyers
a. Nightly, check floor area for deposits and use a putty knife or scraper to
remove. Sweep using a treated mop.
b. Monthly, any floor finish build-up in corners or at edging where different
floor types meet should be removed by using a wet sponge to loosen and wipe
the accumulation away from corner/edge or, if necessary, a putty knife
should be employed to scrape it away. Remove old finish and thoroughly
clean floor by wet mopping using solvent or disinfectant as necessary and
rinsing; then, apply at least two coats of finish material and buff to a
luster. Walls, baseboards, furniture and other surfaces should be free of
finish residue and marks from the equipment.
c. Nightly, wet mopping is performed in areas where an antiseptic level of
cleanliness is required or wherever damp mopping is ineffective.
d. Monthly, sprinkle floor with scouring powder and wet with warm water. Use a
small polishing machine with scrubbing brushes to scrub floor.
e. Nightly, spot clean walls and doors up to hand-high height to remove spots,
smudges and any splashes that may have occurred.
f. Monthly, spot wash toilet stall partitions and doors.
g. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
h. Nightly, empty waste paper receptacles.
i. Nightly, remove contents of waste towel receptacles as necessary, emptying
any trash receptacles.
j. Nightly, pick-up all wastepaper and trash from floor.
k. Nightly, check soap dispensers and refill.
l. Nightly, check toilet tissue and paper tower dispensers and put in supplies
necessary to fill them.
m. Nightly, spot clean wash basins, commodes and urinals.
n. Nightly, wet mop tiled floors with approved disinfectant.
o. Monthly, scrub tiled floors.
p. Nightly, clean and polish bright work on lavatory fixtures.
q. Bi-weekly, wash and disinfect stationary trash receptacles.
r. Nightly, clean mirrors.
Ladies' Lavatory/Powder Rooms
a. Nightly, check floor area for deposits and use a putty knife or scraper to
remove. Sweep using a treated mop.
b. Monthly, any floor finish build-up in corners or at edging where different
floor types meet should be removed by using a wet sponge to loosen and wipe
the accumulation away from corner/edge or, if necessary, a putty knife
should be employed to scrape it away. Remove old finish and thoroughly
clean floor by wet mopping using solvent or disinfectant as necessary and
rinsing; then, apply
Exhibit E
Page 2
188
at least two coats of finish material and buff to a luster. Walls,
baseboards, furniture and other surfaces should be free of finish residue
and marks from the equipment.
c. Nightly, wet mopping is performed in areas where an antiseptic level of
cleanliness is required or wherever damp mopping is ineffective.
d. Monthly, sprinkle floor with scouring powder and wet with warm water. Use a
small polishing machine with scrubbing brushes to scrub floor.
e. Nightly, spot clean walls and doors up to hand-high height to remove spots,
smudges and any splashes that may have occurred.
f. Monthly, spot wash toilet stall partitions and doors.
g. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
h. Nightly, empty waste paper receptacles.
1. Nightly, remove contents of waste towel receptacles as necessary, emptying
any trash receptacles.
j. Nightly, pick-up all wastepaper and trash from floor.
k. Nightly, check soap dispensers and refill.
l. Nightly, check toilet tissue and paper towel dispensers and put in supplies
necessary to fill them.
m. Nightly, spot clean wash basins, commodes.
Window Cleaning
a. Clean twice per year inside and Outside.
Freight Lobbies
a. Nightly, check tile floor area for deposits and use a putty knife or
scraper to remove. Sweep using a treated mop.
b. Weekly, spot mopping is performed in normal traffic areas and only if the
floor area has an accumulation of spills and dirt that cannot be removed by
sweeping with a treated mop; then, use a mop that is wrung fairly dry to
remove these spots. Generally, there should be no moving of furniture when
this function is performed.
c. Weekly, damp mopping is performed in areas that receive fairly heavy
traffic.
d. Quarterly, dust all high horizontal surfaces not reached in nightly
cleaning.
e. Nightly, empty waste paper receptacles. Empty and damp wipe ash trays,
sand/smoke urns (if sand urn, sift sand with strainer and replace sand to
proper level as necessary).
f. Nightly, dust desk tops, tops of filing cabinets and table tops with cloth.
Dust arms, seat, back and rails of chairs. Dust furniture, tables, sills,
ledges, and wall decorations.
g. Nightly, sweep floors.
Exhibit E
Page 3
189
Fire Stairwells
a. Weekly, check floor area for deposits and use a putty knife or scraper to
remove. Sweep using a treated mop.
b. Monthly, damp mopping is performed in areas that receive fairly heavy
traffic. The entire area is to be damp mopped.
c. Quarterly, damp mop floor. The entire area is to be damp mopped.
Exhibit E
Page 4
190
EXHIBIT F-1
FORM OF NON-DISTURBANCE AGREEMENT
FOR UNDERLYING LEASES
Agreement made as of the ___ day of _________, 199__ between
________________, a _______________ corporation having an office at ______
___________, ________, ________ _____ ("GROUND LESSOR") and
_______________________________ a ________________ corporation having an office
at __________ _________, _____, _______________ ________ ("TENANT");
W I T N E S S E T H:
WHEREAS, Ground Lessor is the lessor pursuant to a ground lease
dated _______________ __, ______ (the "GROUND LEASE"), between Ground Lessor, as
ground lessor, and certain ground lessees described therein, covering the land
(the "GROUND LEASE PREMISES") described in Schedule I annexed hereto, on which
is located the building (the "BUILDING") commonly known as One Chase Manhattan
Plaza, Borough of Manhattan, City, County and State of New York; and
WHEREAS, Tenant has entered into a space lease dated ________ __,
____ (said space lease, as amended, and as same may be hereafter amended from
time to time, collectively referred to as the "LEASE"), covering the portions of
the Building (the "PREMISES") more particularly described in the Lease.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which are hereby
conclusively acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at
all times continue to be subject and subordinate in each and every respect to
the Ground Lease. The provisions of this Paragraph 1 shall be self-operative and
no further instrument shall be required. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Ground Lessor may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies (i) that the Lease is presently in full force
and effect and, except as provided in Schedule II annexed hereto, the Lease is
unmodified, (ii) that no Fixed Rent (as defined in the Lease) payable thereunder
has been paid more than one (1) month in advance of its due date, (iii) that to
the best of Tenant's knowledge, no default of Tenant exists under the Lease
which has continued beyond the expiration of any applicable grace period, and
(iv) that to the best of Tenant's
Exhibit F-1
Page 1
191
knowledge, no default of Landlord (as defined below) exists under the Lease
which has continued beyond the expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued beyond the
expiration of any applicable grace period, (i) Ground Lessor shall not name or
join Tenant as a party defendant to any action to terminate the Ground Lease or
recover possession (unless required by law, but such naming or joinder shall not
terminate the Lease or cause Tenant's possession of the Premises to be
disturbed), (ii) nor shall the Lease be terminated in connection with, or by
reason of, the termination or expiration of the Ground Lease, (iii) nor shall
Tenant's use or possession of the Premises be disturbed or interfered in
connection with, or by reason of, the termination or expiration of the Ground
Lease, unless, in case of (i), (ii) or (iii) above, the holder of the landlord's
interest under the Lease (the "Landlord"), would have had such right if the
Ground Lease had not been made, and (iv) if the Ground Lease shall terminate or
expire prior to the scheduled final expiration date of the Lease, the Lease
shall continue in full force and effect as a direct lease between the holder of
the landlord's interest in the Ground Lease immediately prior to such
termination or expiration, as landlord, and Tenant, as tenant. Notwithstanding
the foregoing, any person acquiring, or succeeding to, the interests of the
Landlord as a result of any such termination or expiration (the "Successor
Landlord"), shall not be:
(a) liable for any previous act or omission of Landlord (or
its predecessors in interest); it being understood that the foregoing is
not intended to relieve Successor Landlord of any liability arising by
reason of its acts or omissions from and after the date it succeeds to the
interests of the Landlord, including a continuation of the failure of the
prior Landlord to perform its obligations under the Lease, in which case
Successor Landlord upon receipt of notice of such continuation from Tenant
shall have a reasonable period of time to remedy same (which period shall
not exceed the time period granted Landlord for such remedy pursuant to the
terms of the Lease);
(b) responsible for any monies owing by Landlord to the credit
of Tenant;
(c) subject to any offsets, claims, counterclaims, demands or
defenses which Tenant may have against Landlord (or its predecessors in
interest);
(d) bound by any payments of rent which Tenant might have made
for more than one (1) month in advance to Landlord (or its predecessors in
interest);
Exhibit F-1
Page 2
192
(e) required to account for any security deposit other than
any security deposit actually delivered to the Successor Landlord; and
(f) bound by any modification of the Lease, made after the
date hereof, which is made without the written consent of Ground Lessor.
Notwithstanding the foregoing provisions of this Paragraph 3, such Successor
Landlord shall be liable for Landlord's obligations to make payments to Tenant
in respect of Landlord's Contribution (as set forth in Article 36 hereof),
Landlord's Option Space Contribution (as set forth in Article 37 hereof), any
Landlord's Offer Space Contribution (as set forth in Article 38 hereof), and any
Deposited Proceeds (as set forth in Section 19.08 hereof), regardless of whether
the payment thereof was due hereunder prior to or after such Successor Landlord
becomes Successor Landlord and, with respect thereto, Tenant may exercise
against such Successor Landlord Tenant's right of set-off as set forth in
Section 36.04 of the Lease (including Section 36.04 as made applicable to (x)
the Option Space or any Offer Space by virtue of the provisions of Article 37 or
38, or (y) any Deposited Proceeds by virtue of the provisions of Section 19.08
hereof).
4. If the interest of the Landlord under the Lease shall be
transferred by reason of a termination of the Ground Lease, Tenant shall be
bound to the Successor Landlord, and, except as provided in this Agreement, the
Successor Landlord shall be bound to Tenant, under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining, with
the same force and effect as if the Successor Landlord were the Landlord, and
Tenant does hereby (i) agree to attorn to the Successor Landlord, including
Ground Lessor if it be the Successor Landlord, as its landlord, (ii) affirm its
obligations under the Lease, and (iii) agree to make payments of all sums due
under the Lease to the Successor Landlord, said attornment, affirmation and
agreement to be effective and self-operative without the execution of any
further instruments, upon the Successor Landlord succeeding to the interest of
the Landlord under the Lease. Tenant waives the provisions of any statute or
rule of law now or hereafter in effect that may give or purport to give it any
right or election to terminate or otherwise adversely affect the Lease or the
obligations of Tenant thereunder by reason of any termination of the Ground
Lease.
5. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate the
Lease, or to abate or offset against the payment of Fixed Rent or Additional
Charges or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and Ground Lessor, and (b) until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice which shall
include a reasonable period of time for Ground
Exhibit F-1
Page 3
193
Lessor to have become entitled under the Ground Lease to remedy the same (which
latter reasonable period shall in no event be less than the period to which
Landlord would be entitled under the Lease or otherwise, after similar notice,
to effect such remedy plus thirty (30) days), provided Ground Lessor shall,
within thirty (30) days after its receipt of Tenant's notice given in accordance
herewith, give Tenant notice of its intention to remedy such act or omission,
with diligence and continuity, promptly after becoming entitled to do so. This
Paragraph 5 shall not be applicable to any situation governed by Article 19, 20,
33, 36 (including Article 36 as made applicable to the Option Space or any Offer
Space by virtue of the provisions of Article 37 or 38, or (y) any Deposited
Proceeds by virtue of the provisions of Section 19.08 hereof) or 39.
6. This Agreement may not be modified except by an agreement in
writing signed by the parties or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties thereto,
their respective heirs, representatives, successors and assigns.
7. The Tenant agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Ground Lessor. Tenant further agrees that in the event there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease dealing with non-disturbance by Ground Lessor, the terms
and provisions hereof shall be controlling.
8. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party whom the
notice, demand or request is being made by certified or registered mail, return
receipt requested, as its address set forth above, except that, after Tenant
occupies the Premises for the conduct of business, notices shall be sent to
Tenant at One Chase Manhattan Plaza, New York, New York _____, Attn:
___________________. Any party may change the place that notices and demands are
to be sent by written notice delivered in accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State of New
York. If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
10. All capitalized terms used herein which are not herein defined
shall have the meanings ascribed thereto in the Lease.
Exhibit F-1
Page 4
194
11. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which taken together shall constitute one
and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
By:_________________________________
Name:___________________________
Title:__________________________
By:_________________________________
Name:___________________________
Title:__________________________
Exhibit F-1
Page 5
195
Acknowledgements
Exhibit F-1
Page 6
196
Schedule I to Exhibit F-1
Land
Exhibit F-1
Page 7
197
Schedule II to Exhibit F-1
Amendments to Lease
Exhibit F-1
Page 8
198
EXHIBIT F-2
FORM OF NON-DISTURBANCE AGREEMENT
FOR MORTGAGES
THIS AGREEMENT, made as of the ___ day of _______, _______ by and between
_____________________________, a _______________ corporation, having an office
at ___________________ ___________, _________ ________ (hereinafter called
"Mortgagee"), and ____________________ _______________, a ________________
corporation, having an office at ____________ ___________, hereinafter called
"Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the holder of that certain Mortgage, dated
_______ __, ____ (said Mortgage, as it may be amended, increased, renewed,
modified, consolidated, replaced, combined, substituted, severed, split, spread
or extended from time to time, being hereinafter referred to as the "Mortgage"),
between Mortgagee, as mortgagee, and certain mortgagors described therein which
encumbers, among other properties, the land described in Schedule I annexed
hereto (the "Land") and the building (the "Building") located at One Chase
Manhattan Plaza, Borough of Manhattan, City, County and State of New York (the
Land and the Building are sometimes hereinafter referred to collectively as the
"Property"); and
WHEREAS, Tenant has entered into a certain agreement of lease dated
as of ________ __, ____ (said agreement of lease, as amended, and as same may be
hereafter amended from time to time collectively referred to as the "Lease"),
covering the portions of the Building (the "Premises") more particularly
described in the Lease.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at
all times continue to be subject and subordinate in each and every respect to
the Mortgage. The provisions of this Paragraph 1 shall be self-operative and no
further instrument shall be required. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may reasonably
request to confirm said subordination by Tenant.
2. Tenant certifies (i) that the Lease is presently in full force
and effect and, except as provided in Schedule II annexed hereto, the Lease is
unmodified, (ii) that no Fixed Rent (as defined in the Lease) payable thereunder
has been paid
Exhibit F-2
Page 1
199
more than one (1) month in advance of its due date, (iii) that, to the best of
Tenant's knowledge, no default of Tenant exists under the Lease which has
continued beyond the expiration of any applicable grace period, and (iv) that,
to the best of Tenant's knowledge, no default of Landlord (as defined below)
exists under the Lease which has continued beyond the expiration of any
applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued beyond the
expiration of any applicable grace period, Mortgagee shall not name or join
Tenant as a party defendant to any action for foreclosure or other enforcement
thereof (unless required by law, but such naming or joinder shall not cause
Tenant's possession of the Premises to be disturbed), nor shall the Lease be
terminated by Mortgagee in connection with, or by reason of, foreclosure or
other proceedings for the enforcement of the Mortgage, or by reason of a
transfer of the landlord's interest under the Lease pursuant to the taking of a
deed in lieu of foreclosure (or similar device), nor shall Tenant's use or
possession of the Premises be disturbed or interfered with by Mortgagee, unless
the holder of the landlord's interest under the Lease (the "Landlord"), would
have had such right if the Mortgage had not been made. Notwithstanding the
foregoing, any person acquiring, or succeeding to, the interests of the Landlord
as a result of any such action, foreclosure, transfer or other proceeding (any
of the foregoing being hereinafter referred to as the "Successor Landlord"),
shall not be:
(a) liable for any previous act or omission of Landlord (or
its predecessors in interest); it being understood that the foregoing is
not intended to relieve Successor Landlord of any liability arising by
reason of its acts or omissions from and after the date it succeeds to the
interests of the Landlord, including a continuation of the failure of the
prior Landlord to perform its obligations under the Lease, in which case
Successor Landlord upon receipt of notice of such continuation from Tenant
shall have a reasonable period of time to remedy same (which period shall
not exceed the time period granted Landlord for such remedy pursuant to the
terms of the Lease);
(b) responsible for any monies owing by Landlord to the credit
of Tenant;
(c) subject to any credits, offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord (or its
predecessors in interest);
(d) bound by any payments of rent which Tenant might have made
for more than one (1) month in advance to Landlord (or its predecessors in
interest);
Exhibit F-2
Page 2
200
(e) required to account for any security deposit other than
any security deposit actually delivered to the Successor Landlord; and
(f) bound by any modification of the Lease, made after the
date hereof, which is made without the written consent of Mortgagee.
Notwithstanding the foregoing provisions of this Paragraph 3, such Successor
Landlord shall be liable for Landlord's obligations to make payments to Tenant
in respect of Landlord's Contribution (as set forth in Article 36 hereof),
Landlord's Option Space Contribution (as set forth in Article 37 hereof), any
Landlord's Offer Space Contribution (as set forth in Article 38 hereof), and any
Deposited Proceeds (as set forth in Section 19.08 hereof), regardless of whether
the payment thereof was due hereunder prior to or after such Successor Landlord
becomes Successor Landlord and, with respect thereto, Tenant may exercise
against such Successor Landlord Tenant's right of set-off as set forth in
Section 36.04 of the Lease (including Section 36.04 as made applicable to (x)
the Option Space or any Offer Space by virtue of the provisions of Article 37 or
38, or (y) any Deposited Proceeds by virtue of the provisions of Section 19.08
hereof).
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for enforcement of the
Mortgage or pursuant to a taking of a deed in lieu of foreclosure (or similar
device), Tenant shall be bound to the Successor Landlord, and, except as
provided in this Agreement, the Successor Landlord shall be bound to Tenant,
under all of the terms, covenants and conditions of the Lease for the balance of
the term thereof remaining, with the same force and effect as if the Successor
Landlord were the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor Landlord, including Mortgagee if it be the Successor Landlord, as its
landlord, (ii) affirm its obligations under the Lease, and (iii) agree to make
payments of all sums due under the Lease to the Successor Landlord, said
attornment, affirmation and agreement to be effective and self-operative without
the execution of any further instruments, upon the Successor Landlord succeeding
to the interest of the Landlord under the Lease. Tenant waives the provisions of
any statute or rule of law now or hereafter in effect that may give or purport
to give it any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any foreclosure or
similar proceeding.
5. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
lease, or to abate or offset against the payment of rent or to claim a partial
or total eviction, Tenant shall not exercise such right (a) until it has given
written notice of such act or omission to Landlord and Mortgagee, and (b) until
a reasonable period for remedying such act or omission shall have elapsed
following the giving of such
Exhibit F-2
Page 3
201
notice which shall include a reasonable period of time for Mortgagee to have
become entitled under the Mortgage to remedy the same (which latter reasonable
period shall in no event be less than the period to which Landlord would be
entitled under this lease or otherwise, after similar notice, to effect such
remedy plus thirty (30) days), provided that Mortgagee shall within thirty (30)
days after its receipt of Tenant's notice given in accordance herewith, give
Tenant notice of its intention to remedy such act or omission, with diligence
and continuity, promptly after becoming entitled to do so. This Paragraph 5
shall not be applicable to any situation governed by Article 19, 20, 33, 36
(including Article 36 as made applicable to (x) the Option Space or Offer Space
by virtue of the provisions of Article 37 or 38, or (y) any Deposited Proceeds
by virtue of the provisions of Section 19.08 hereof) or 39.
6. This Agreement may not be modified except by an agreement in
writing signed by the parties or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties thereto,
their respective heirs, representatives, successors and assigns.
7. Nothing contained in this Agreement shall in any way impair or
affect the lien created by the Mortgage except as specifically set forth herein.
8. The Tenant agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
by Mortgagee. Tenant further agrees that in the event there is any inconsistency
between the terms and provisions hereof and the terms and provisions of the
Lease dealing with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
9. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party whom the
notice, demand or request is being made by certified or registered mail, return
receipt requested, as its address set forth above, except that, after Tenant
occupies the Premises for the conduct of business, notices shall be sent to
Tenant at One Chase Manhattan Plaza, New York, New York _____, Attn:
____________________. Any party may change the place that notices and demands
are to be sent by written notice delivered in accordance with this Agreement.
10. This Agreement shall be governed by the laws of the State of New
York. If any term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
Exhibit F-2
Page 4
202
11. All capitalized terms used herein which are not herein defined
shall have the meanings ascribed thereto in the Lease.
12. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which taken together shall constitute one
and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
By:____________________________________
Name:______________________________
Title:_____________________________
By:____________________________________
Name:______________________________
Title:_____________________________
Exhibit F-2
Page 5
203
Acknowledgements
Exhibit F-2
Page 6
204
Schedule I to Exhibit F-2
Exhibit F-2
Page 7
205
Schedule I to Exhibit F-2
Land
Exhibit F-2
Page 8
206
Schedule II to Exhibit F-2
Amendments to Lease
Exhibit F-2
Page 9
207
EXHIBIT G
Primary Landlord Conduit Areas
There are no Primary Landlord Conduit Areas other than those delineated in
Section 16.02 of the lease.
Exhibit G
Page 1
208
EXHIBIT H
Passenger Elevator Bank D
Diagram: depiction of the floor plan of the 37th Floor of One Chase
Manhattan Plaza, New York, New York. The floor is rectangular with Liberty and
Pine Streets bordering the length of the floor, respectively. Nassau and William
Streets border the width of the floor, respectively. In the center, but shifted
slightly to the left on the rectangular floor plan, are four small sized
rectangles. The floor plan has been marked with "'D' Bank" and an arrow pointing
between the second and third small rectangles in the center of the floor plan.