Lease, dated March 31, 1998, between ROCK-McGRAW, INC., a New York
corporation, having an office at 1221 Avenue of the Americas, New York, N.Y.
10020-1095 (the "Landlord"), and CD RADIO INC., a Delaware corporation, having
an office at 1001 22nd Street, N.W., Sixth Floor, Washington, D.C. 20037 (the
"Tenant"),
Witnesseth:
ARTICLE ONE
(1.)Demise of Premises, Term and Rent
1.1.1. The Landlord does hereby lease and demise to the Tenant, and the Tenant
does hereby hire and take from the Landlord, subject and subordinate to the
Qualified Encumbrances (as defined in Section 1.7 below), and upon and subject
to the provisions of this Lease, for the term hereinafter stated, the spaces
substantially as shown hatched on the diagrams attached hereto as Exhibit A-1
and designated as `A' on the 36th Floor (herein sometimes called the "36th Floor
Space"), Exhibit A-2 and designated as `A' on the 37th Floor (herein sometimes
called the "37th Floor Space"; the 36th Floor Space and the 37th Floor Space
being herein sometimes collectively called the "Office Space"), Exhibit A-3 and
designated as `A' on the roof (herein sometimes called the "Penthouse Space"),
and Exhibit A-5 and designated as `A' on the C4 level (herein sometimes called
the "Basement Space"), the Office Space being measured from the underside of the
ceiling slab to the underside of the floor slab, of the building known as 1221
Avenue of the Americas (the "Building"), situated upon a plot of land (the
"Land") in the Borough of Manhattan, New York, N.Y., together with all fixtures,
equipment, improvements, installations and appurtenances which at the
commencement of, or during the term of, this Lease are thereto attached (except
items not deemed to be included therein and removable by the Tenant as provided
in Article Four below), which spaces, fixtures, equipment, improvements,
installations and appurtenances are herein sometimes collectively called the
"Premises".
1.1.2. The Landlord does hereby grant to the Tenant non-exclusive licenses, and
the Tenant does hereby take such licenses from the Landlord, subject and
subordinate to the Qualified Encumbrances, and upon and subject to the
provisions of Article Thirty-four, Article
Thirty-five or Article Thirty-six of this Lease, as applicable, for the term
hereinafter stated, of the spaces (herein sometimes collectively called the
"Licensed Spaces") substantially as shown hatched on the diagrams attached
hereto as Exhibit A-3 and designated as `B' on the Building's penthouse roof and
more particularly described in Section 35.1 below (herein sometimes called the
"Penthouse Roof Space"), Exhibit A-3 and designated as `C' on the main Building
roof and more particularly described in Section 36.1 below (herein sometimes
called the "Auxiliary Chiller Space"), and Exhibit A-4 and designated as `A' on
the roof of the eighth (8th) floor setback and more particularly described in
Section 34.1 below (herein sometimes called the "Emergency Generator Space"), of
the Building, together with non-exclusive licenses of portions of those certain
shaft spaces in the Building, as more particularly described (and defined) as
the Emergency Electric Riser and the Emergency Fuel Pipe Area in Article
Thirty-four of this Lease, the Satellite Riser Area in Article Thirty-five of
this Lease and the Chilled Water Riser Area in Article Thirty-six of this Lease.
1.1.3. The Landlord and McGraw-Hill (as hereinafter defined) are parties to a
lease dated as of March 27, 1998 relating to certain space on the 50th Floor of
the Building (the "McGraw-Hill Lease"). Section 25.8(b) of the McGraw-Hill Lease
provides that, subject to certain conditions, as set forth in the McGraw-Hill
Lease and as hereinafter set forth, McGraw-Hill will permit any CD Radio Entity
(as hereinafter defined) access to the roof of the Building after Business Hours
in Emergency Situations (as hereinafter defined), through the hatched area on
the 50th Floor of the Building specified on the diagram attached hereto as
Exhibit A-6 (the "Emergency Access Route") for passage from the passenger
elevator cars on the 50th Floor to the fire stair referenced in such Exhibit
A-6. Accordingly, based on such permission granted by McGraw-Hill, the Tenant
agrees that a CD Radio Entity will only utilize the Emergency Access Route for
access to the roof of the Building if, and only if, an Emergency Situation shall
exist which requires such CD Radio Entity to gain immediate access after
Business Hours to the roof without any delay. Subject to Section 20.5 below, and
in connection with and ancillary to the permission granted by McGraw-Hill for CD
Radio Entities to use the Emergency Access Route for access to the roof of the
Building, the Landlord will supply, during non-Business Hours in Emergency
Situations, elevator service to the 50th floor elevator lobby serving the "A"
bank of passenger elevators. The use of the Emergency Access Route and such
elevator service by CD Radio Entities shall be upon and subject to the Qualified
Encumbrances, the applicable provisions of this Lease and such reasonable
regulations and restrictions as the Landlord may, from time to time, deem
necessary to establish (provided, that the Landlord shall give the Tenant five
(5) business days prior written notice before any such additional regulations
and restrictions shall become appliable to the Tenant), and in accordance with
the following terms and conditions: (a) before being permitted to gain such
access through the Emergency Access Route, such CD Radio Entity must call
McGraw-Hill's security personnel at 5124202 (or if no answer is received, at
5124749 or such other numbers as shall be designated by McGraw-Hill from time to
time) and must call Building security at the front desk of the Building, to
report such Emergency Situation and the requirement that such CD Radio Entity
gain access to the roof through the Emergency Access Route; (b) only such CD
Radio Entity's personnel who are qualified persons capable of addressing the
particular Emergency Situation at issue ("Qualified Personnel") shall be
permitted to gain access through the
Emergency Access Route; (c) such Qualified Personnel shall be accompanied by a
representative of McGraw-Hill, if such representative is available (and if such
representative is not available, by a representative of the Landlord, if
available) who shall escort such Qualified Personnel to and from the applicable
passenger elevator on the 50th floor of the Building to the roof of the
Building; provided, however, that such Qualified Personnel need not be
accompanied by a representative of McGraw-Hill or the Landlord if such
representatives are not available after such CD Radio Entity exercises
reasonable efforts to notify such representatives to accompany such Qualified
Personnel (it being agreed that if any representative is unavailable to
immediately accompany such Qualified Personnel upon its notification (or good
faith effort to notify), such inability shall be deemed to constitute its
unavailability); (d) the Tenant shall indemnify, defend and hold harmless
McGraw-Hill from and against any and all claims, judgments, damages, costs and
liabilities (including, without limitation, reasonable attorneys' fees) arising
from, or in connection with the access provided to the CD Radio Entity through
the Emergency Access Route; (e) the Tenant shall specifically carry insurance
relating to such access through the Emergency Access Route and shall name
McGraw-Hill and the Landlord as additional insureds under such policy; and (f)
such access shall be for Qualified Personnel only and no equipment (other than
normal hand tools) shall be moved through the Emergency Access Route. For
purposes of this Section 1.1.3, the term "Emergency Situation" shall mean, and
an "Emergency Situation" shall be deemed to have occurred if, (i) any portion of
the Satellite Transmission System or the Auxiliary Chiller System which is
located in or on the Penthouse Space, the Penthouse Roof Space or the Auxiliary
Chiller Space shall malfunction, fail to properly operate at times other than
Business Hours and Qualified Personnel must gain immediate access to the roof
without delay after such Business Hours such that awaiting to gain access
through the Standard Roof Access Area (i.e. waiting for a freight elevator
personnel to be able to bring such Qualified Personnel to the 50th floor) is
unacceptable to the CD Radio Entity in its good faith reasonable discretion or
would endanger the Tenant's equipment in question or the CD Radio Entity's
business. "CD Radio Entity" shall mean (i) the Tenant and its successors by
merger, consolidation or acquisition or (ii) any subtenant or assignee of an
entity referred to in subclause (i) above who is an affiliate of such entity
referred to in subclause (i) above.
1.1.4. The Landlord does hereby grant to the Tenant a non-exclusive easement
from the 50th floor freight elevator lobby to the main roof of the Building,
substantially as shown hatched on the diagram attached hereto as Exhibit A-7 and
designated as the "Standard Roof Access Easement Area" (the "Standard Roof
Access Easement Area"), for access to the Penthouse Space, the Penthouse Roof
Space and the Auxiliary Chiller Space (such non-exclusive easement is herein
sometimes called the "Standard Roof Access Easement"), and the Tenant does
hereby accept the Standard Roof Access Easement from the Landlord, subject and
subordinate to the Qualified Encumbrances, for the term of this Lease, or for
such shorter period as the Lease of the Penthouse Space or the license of the
Penthouse Roof Space or the Auxiliary Chiller Space shall remain in effect. The
Tenant's use of the Standard Roof Access Easement Area shall be upon and subject
to the applicable provisions of this Lease and such reasonable regulations and
restrictions as the Landlord may, from time to time, deem necessary to establish
(provided, that the Landlord shall give the Tenant five (5) business days prior
written notice before any such additional regulations and restrictions
shall become applicable to the Tenant), including, but not limited to, the
requirements that (a) the Tenant give reasonable prior notice (which may be
oral) to the Landlord before any use of the Standard Roof Access Easement Area,
except in the case of an emergency, in which event the Tenant shall give such
notice as is reasonable in the circumstances, (b) only the Tenant's contractors
who have been consented to by the Landlord, and the Tenant's properly identified
employees, agents and representatives shall be permitted access to the Standard
Roof Access Easement Area, and (c) except in the case of an emergency, such
contractors, employees, agents and representatives shall, at the Landlord's
option and at no cost to the Tenant, be accompanied by employees of the
Landlord, provided that such requirement shall not interfere with or delay the
Tenant's access to the Penthouse Space, the Penthouse Roof Space or the
Auxiliary Chiller Space (except to a de minimis extent).
1.2. The term of this Lease shall commence (subject to the provisions of Article
Two, including, without limitation, the provisions of Section 2.4.1 below) on
the date on which the Landlord delivers to the Tenant (a) vacant possession
of the Office Space with all of the Landlord's work constituting Term
Commencement Conditions (as hereinafter defined) with respect to the Office
Space substantially completed and all other Term Commencement Conditions with
respect to the Office Space satisfied, and (b) vacant possession of the
Penthouse Space, or on such earlier date as the Tenant shall occupy the Premises
with the consent of the Landlord (the date for the commencement of the term of
this Lease being herein called the "term commencement date"), and shall end on
the last day of the calendar month in which shall occur the date which is
fifteen (15) years and ten (10) months after the term commencement date, or on
such earlier date upon which the term may expire or be terminated pursuant to
any of the conditions of limitation or other provisions of this Lease or
pursuant to law. Commencing on the term commencement date, the Landlord shall
also permit the Tenant to enter upon, and commence to use, (x) the Licensed
Spaces for the uses provided in Article Thirty-four, Article Thirty-five or
Article Thirty-six, as applicable, (y) the Emergency Access Route, for the uses
provided in, and subject to, Section 1.1.3 above and (z) the Standard Access
Easement Area, for the uses provided in, and subject to, Section 1.1.4 above. As
used in this Lease, "Term Commencement Conditions" shall mean, collectively,
those certain conditions set forth on Exhibit B annexed hereto and made a part
hereof. Anything in this Section 1.2 to the contrary notwithstanding, the Tenant
shall not be obligated to accept possession of the Premises prior to September
15, 1998.
1.3.1. The Premises shall be used for the following, but no other purposes,
namely executive, clerical, general and administrative offices, including
activities incidental thereto, and a radio and/or video broadcast studio,
including the production and live broadcast of radio and/or video programming
and the broadcast of pre-recorded programming and activities incidental thereto,
and any other lawful purpose consistent with a firstclass office building
located in midtown Manhattan; provided, however, that the Basement Space shall
be used only for the purposes permitted pursuant to, and in accordance with, the
provisions of Article Thirty-four below.
1.3.2 Each of the Licensed Spaces shall be used solely for the purpose set forth
in Article Thirty-four, Article Thirty-five or Article Thirty-six, as
applicable, and for no other purpose.
1.4.1. The rent reserved under this Lease for the term of this Lease shall
consist of (a) fixed rent, at the following rate(s), namely the sum of:
(i) with respect to the Office Space, (A) $3,989,781.00 ($44.50 per
rentable square foot) per annum ($332,481.75 per month) during the
period commencing on the term commencement date and ending on the
day immediately preceding the First Rent Step-Up Date (as
hereinafter defined), (B) $4,258,755.00 ($47.50 per rentable square
foot) per annum ($354,896.25 per month) during the period commencing
on the first day of the calendar month following the month in which
occurs the date which is five (5) years and ten (10) months
following the term commencement date (the "First Rent Step-Up Date")
and ending on the day immediately preceding the fifth (5th)
anniversary of the First Rent Step-Up Date and (C) $4,527,729.00
($50.50 per rentable square foot) per annum ($377,310.75 per month)
thereafter;
(ii) with respect to the Penthouse Space, (A) $18,000.00 ($30.00 per
rentable square foot) per annum ($1,500.00 per month) during the
term of this Lease; and
(iii) with respect to the Basement Space, $5,400.00 ($25.00 per usable square
foot) per annum ($450.00 per month) during the term of this Lease.
which fixed rent shall be payable in equal monthly installments in advance on
the first day of each and every calendar month of the term of this Lease for
which fixed rent is reserved as aforesaid (except that, if the term commencement
date shall be other than the first day of a calendar month, the first monthly
installment of fixed rent, apportioned for the part month in question, shall be
payable on the term commencement date), plus (b) the additional rent payable as
provided in this Lease.
1.4.2. The license fees reserved under this Lease for the term of this Lease
shall be at the following rate(s), namely the sum of:
(a) with respect to the Penthouse Roof Space, $219,240.00 ($30.00 per
usable square foot) per annum ($18,270.00 per month) during the entire
initial term of this Lease;
(b) with respect to the Auxiliary Chiller Space, $25,500.00 ($30.00 per
usable square foot) per annum ($2,125.00 per month) during the entire
initial term of this Lease; and
(c) with respect to the Emergency Generator Space, $8,750.00 ($25.00 per
usable square foot) per annum ($729.17 per month) during the entire
initial term of this Lease,
which license fees rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month of the term of this
Lease for which license fees are reserved as aforesaid (except that, if the term
commencement date shall be other than the
first day of a calendar month, the first monthly installment of license fees,
apportioned for the part month in question, shall be payable on the term
commencement date).
1.4.3 All fixed rent, additional rent and license fees shall be paid to the
Landlord, at its office as set forth above, or at such other place or places in
New York, New York as the Landlord shall designate to the Tenant, in lawful
money of the United States of America.
1.5. The Tenant shall pay the fixed rent, license fees and additional rent
(collectively "Rent") as and when the same shall become due and payable as
provided in this Lease, without demand therefor, and without any setoff or
deduction whatsoever except as may otherwise be expressly provided for in this
Lease, and keep, observe and perform, and permit no violation of, each and every
provision contained in this Lease on the part of the Tenant to be kept, observed
and performed.
1.6. In determining the rentable area and, where applicable, the useable
area of the Building or any portion thereof (other than the Penthouse Roof
Space, the Auxiliary Chiller Space and the Emergency Generator Space) pursuant
to any provision of this Lease, the rentable area or useable area thereof or
such portion, as the case may be, shall be the rentable area or useable area
thereof in square feet determined in accordance with the Recommended Method of
Floor Measurement for Office Buildings approved by The Real Estate Board of New
York, Inc., which became effective on January 1, 1987, assuming a 20% loss
factor from rentable to useable. The Landlord represents that the rentable area
of the Office Space has been so determined and, based on such representation,
the Landlord and the Tenant agree that, as of the date hereof, (a) the rentable
area of the 36th Floor Space is 44,723 rentable square feet and (b) the rentable
area of the 37th Floor Space is 44,935 rentable square feet. In addition, the
Landlord and the Tenant agree that, for the purposes of this Lease, (1) the
rentable area of the Penthouse Space is 600 rentable square feet, (2) the
useable area of the Penthouse Roof Space is 7,308 useable square feet, (3) the
useable area of the Auxiliary Chiller Space is 850 useable square feet, (4) the
usable area of the Emergency Generator Space is 350 usable square feet and (5)
the usable area of the Basement Space is 216 usable square feet.
1.7. The term "Qualified Encumbrances" means (a) matters of record
affecting the Premises, the Licensed Spaces, the Emergency Access Route, the
Standard Roof Access Easement, the Building or the Land on the date of this
Lease or hereafter approved by the Tenant, which approval shall not be
unreasonably withheld, (b) the underlying mortgages and underlying leases to
which this Lease is subordinate pursuant to Article Thirteen, provided that the
Tenant receives subordination, non-disturbance and attornment agreements with
respect thereto in accordance with the provisions of Section 13.1 below, (c) any
declaration of restrictions or other document in respect of the transfer or use
of development rights, (d) any declaration or other document which subjects all
or any portion of the Land and/or the Building to a condominium regime, provided
that such condominium regime does not (i) decrease (except to a de minimis
extent) the Tenant's rights and/or the Landlord's obligations under this Lease
or (ii) increase (except to a de minimis extent) the Tenant's obligations and/or
the Landlord's rights under this Lease, and (e) any future preservation or
similar easement, declaration or agreement containing covenants, restrictions or
agreements
in respect of the maintenance of the Building and/or the Land as a landmark site
with or held by a governmental agency or an entity designated or accepted by a
governmental agency (each, a "Preservation Agreement").
ARTICLE TWO
(2.)Completion and Occupancy
2.1. The Tenant has examined and shall accept the Premises and each of the
Licensed Spaces in its existing condition and state of repair and understands
that no work is to be performed by the Landlord in connection therewith except
the work the Landlord is required to perform with respect to the Office Space in
order to satisfy the Term Commencement Conditions. The Landlord, either through
its own employees or through a contractor or contractors to be engaged by it for
such purpose, will proceed with due dispatch, subject to delay caused by events
of Force Majeure (as defined in Section 2.4.3 below), Tenant Delay (as
hereinafter defined) and the failure of any present occupant of the Premises to
vacate and surrender the same, to do all of the work during regular working
hours and will exercise all reasonable efforts to complete all of such work not
later than October 1, 1998. If the Landlord is required by this Lease to do any
such work without expense to the Tenant and the cost of such work is increased
due to any Tenant Delay, the Tenant shall pay to the Landlord an amount equal to
such increase in cost. Any dispute regarding whether the Landlord has satisfied
the Term Commencement Conditions shall be resolved by the expedited dispute
resolution procedure set forth in Section 25.13 below.
2.2. Unless otherwise specifically provided in this Lease, if the
Premises, or any portion thereof, shall not be available for occupancy by the
Tenant on October 1, 1998 (or on such earlier or later date which the Landlord
shall have notified the Tenant (pursuant to the provisions of Section 2.4.1
below) would be the term commencement date) for any reason, including, without
limitation, (a) noncompletion by the Landlord of such work as it shall be
required by the terms of this Lease to do in connection with the layout or
finish of the Premises, and (b) any current occupant of the Premises remaining
in occupancy (including, without limitation, any unavailability resulting from
the exercise by The McGraw-Hill Companies, Inc. ("McGraw-Hill") of any right to
delay the expiration of the term of its lease with respect to any portion of the
Premises), then, except as provided in Section 2.4.2 and Section 2.4.3 below,
this Lease shall not be affected thereby, but, in such case, the term
commencement date shall be postponed until the date when such space shall be
available for occupancy by the Tenant, provided, that, subject to the provisions
of the immediately succeeding sentence, if, and on the condition that, the
Landlord shall have given notice to the Tenant of any Tenant Delay (as
hereinafter defined) within a reasonable period following Landlord's first
becoming aware of such Tenant Delay, there shall be no such postponement of the
term commencement date for any delay in the availability of the Premises for
occupancy by the Tenant which shall be due to any act or omission of the Tenant,
any affiliate thereof or their respective agents, officers, partners, directors,
contractors, employees, licensees or invitees ("Tenant Delay"); it being
understood that the Tenant shall have no claim against the Landlord, and the
Landlord shall have no liability to the Tenant, by reason of any such
postponement of the term commencement date. For
purpose of this Lease, if any period of Tenant Delay reasonably could have been
shortened as a result of the Landlord's having given notice to the Tenant of
such Tenant Delay promptly following Landlord's first becoming aware of such
Tenant Delay, then such period of Tenant Delay shall be deemed to be so
shortened. No part of the Premises shall be deemed unavailable for possession by
the Tenant, nor shall any work which the Landlord is obligated to perform in
such part of the Premises be deemed incomplete for the purpose of any adjustment
of fixed rent payable under this Lease, solely due to the noncompletion of
details of construction, decoration or mechanical adjustments which are minor in
character and the noncompletion of which does not materially interfere with the
Tenant's use of such part of the Premises. Subject to the foregoing, the parties
to this Lease expressly provide that, if the Premises shall not be available for
possession by the Tenant on October 1, 1998 (or on such earlier or later date
which Landlord shall have notified the Tenant (pursuant to the provisions of
Section 2.4.1 below) would be the term commencement date), the Tenant, except
with the consent of the Landlord, shall not be entitled to possession of the
Premises until the same is delivered to the Tenant by the Landlord and, subject
to the provisions of Section 2.4.1 and Section 2.4.2 below, there shall be no
abatement of rent by reason thereof, and the Tenant shall not have any claim
against the Landlord nor, subject to the provisions of Section 2.4.3 below, any
right to rescind this Lease, and the Landlord shall have no liability to the
Tenant, by reason thereof. The foregoing Section 2.2 shall constitute "an
express provision to the contrary" as such phrase is used in Section 223-a of
the Real Property Law of the State of New York and shall constitute a waiver of
the Tenant's rights pursuant to such Section 223-a and any other law of like
import now or hereafter in force.
2.3. Without limiting the generality of the provisions of Section 2.1
above, the Tenant by entering into occupancy of any part of the Premises shall
be conclusively deemed to have agreed that the Landlord, up to the time of such
occupancy, had performed all of its obligations under this Lease with respect to
such part and that such part was in satisfactory condition as of the date of
such occupancy, except for (a) latent defects in the base Building (which the
Landlord shall be obligated to cure with reasonable promptness after receipt of
notice from the Tenant) and (b) other defects and minor details of construction,
decoration and mechanical adjustment ("Punch-List Work") referred to in
Section 2.2 above, which are brought to the Landlord's attention within
thirty (30) days after the date on which the Landlord notifies the Tenant that
all of the Landlord's work constituting Term Commencement Conditions, if any,
with respect to such part of the Premises has been substantially completed. If
the Tenant shall fail to notify the Landlord in writing of any defect in, or the
non-performance or the incomplete performance of, any work constituting Term
Commencement Conditions within such thirty (30) day period, the Tenant shall be
conclusively deemed to have agreed that such work was performed in satisfactory
fashion, except for latent defects. The Landlord shall use reasonable efforts to
complete all Punch-List Work in an expeditious manner and, in any event within
thirty (30) days after the Landlord's receipt of the Tenant's notice thereof,
subject to delays in the performance thereof caused by events of Force Majeure
and Tenant Delay.
2.4.1. If the Landlord determines that the term commencement date will not
occur on October 1, 1998 (or on any earlier or later date which the Landlord
theretofore may have notified the Tenant pursuant to this Section 2.4.1 would be
the term commencement date),
then the Landlord shall so notify the Tenant and shall, contemporaneously or
thereafter, notify the Tenant, at least seven (7) days prior thereto, of the
date on which the Landlord anticipates that the term commencement date will
occur. If the term commencement date occurs prior to the date set forth in such
notice from the Landlord specifying an anticipated term commencement date other
than October 1, 1998, then the fixed rent payable hereunder shall be abated in
an amount equal to one (1) day's fixed rent for each day that the actual term
commencement date occurs prior to such anticipated term commencement date, up to
a maximum of seven (7) days; provided, however, that if (a) the anticipated term
commencement date is a date prior to October 1, 1998, and (b) the actual term
commencement date occurs on or prior to October 1, 1998, then the Tenant shall
not be entitled to any abatement of fixed rent under this Section 2.4.1 for any
period from and after October 1, 1998.
2.4.2. If the term commencement date is delayed beyond November 1, 1998
(as such date may be extended by any delays due to Tenant Delay or events of
Force Majeure; it being understood, however, that, for the purposes of this
Section 2.4.2, no such period of extension due to events of Force Majeure shall
exceed sixty (60) days), the fixed rent payable hereunder shall be abated in an
amount equal to (y) one (1) day's fixed rent for each day that the term
commencement date is delayed beyond November 1, 1998 (as such date may be
extended by any delays due to Tenant Delay or events of Force Majeure) and
(z) one and one-half (1 1/2) days' fixed rent for each day that the term
commencement date is delayed beyond January 1, 1999 (as such date may be
extended by any delays due to Tenant Delay or events of Force Majeure).
2.4.3. If the term commencement date is delayed beyond April 1, 1999 (as
such date may be extended by any delays due to Tenant Delay or events of Force
Majeure; it being understood that, for the purposes of this Section 2.4.3, no
such period of extension due to events of Force Majeure shall exceed sixty (60)
days), the Tenant shall have the option to cancel this Lease by delivering
thirty (30) days prior written notice to the Landlord of its exercise of such
option at any time prior to the delivery of Premises by the Landlord to the
Tenant, in which event (subject to the concluding sentence of this Section
2.4.3) this Lease shall be deemed cancelled and of no force or effect upon the
date which is thirty-one (31) days after the receipt by the Landlord of such
notice and neither the Landlord nor the Tenant shall have any liability to the
other under this Lease except that the Landlord shall return to the Tenant any
Deposit L/C(s) then in the Landlord's possession within five (5) business days
after receipt of written demand therefor from the Tenant. Anything in this
Section 2.4.3 to the contrary notwithstanding, if the Landlord delivers the
Premises to the Tenant by the date which is thirty (30) days after the receipt
by the Landlord of such notice, the Tenant's exercise of such cancellation
option shall be deemed void and of no force or effect.
2.4.4. As used in this Lease, the term "Force Majeure" shall mean any
delays resulting from any causes beyond the Landlord's or the Tenant's, as the
case may be, reasonable control (other than the Landlord's or the Tenant's
financial condition), including, without limitation, governmental regulation,
governmental restriction, strike, labor dispute, riot, acts of God, war, fire or
other casualty and other like circumstances. For purposes of this Lease, Force
Majeure delays shall be deemed to exist only if the Landlord or the Tenant
(as the case may be) promptly notifies the other party in writing of such delay
and, after such initial notification promptly after request of the other party,
the Landlord or the Tenant (as the case may be) notifies the other party of the
status of such delay. Each party shall use all reasonable efforts to mitigate
the delay caused by any event of Force Majeure to the extent reasonably
practicable, but without the necessity of employing overtime labor unless such
party elects to do so within its sole discretion or unless the other party
elects to pay for such overtime labor. Anything in this Lease to the contrary
notwithstanding, the holding over or other remaining in occupancy of the
Premises, or any portion thereof, by McGraw-Hill shall constitute an event of
Force Majeure if, and only if, such holding over or other remaining in occupancy
of the Premises, or any portion thereof, by McGraw-Hill is due to any delay
resulting from any causes beyond McGraw-Hill's reasonable control (other than
McGraw-Hill's financial condition), including, without limitation, governmental
regulation, governmental restriction, strike, labor dispute, riot, acts of God,
war, fire or other casualty and other like circumstances (it being understood
that in no event shall the Landlord be required to commence any action or
proceeding to remove McGraw-Hill from any portion of the Premises in order to
mitigate any delay caused by such event of Force Majeure).
ARTICLE THREE
(3.)Use of Premises
3.1. The Tenant shall not, except with the prior consent of the Landlord,
use, or suffer or permit the use of, the Premises or any part thereof for any
purpose other than the uses permitted in Article One, provided, that (a) the
portions, if any, of the Premises which are toilets or utility areas shall be
used by the Tenant only for the purposes for which they are designed and (b) the
portions, if any, of the Premises which are storage areas shall be used only for
storage purposes.
3.2. The Tenant shall not use, or suffer or permit the use of, the
Premises or any part thereof in any manner or for any purpose or do, bring or
keep anything, or suffer or permit anything to be done, brought or kept, therein
(including, without limitation, the installation or operation of any electrical,
electronic or other equipment) which (a) would violate any provision of this
Lease or is unlawful or in contravention of the Certificate of Occupancy for the
Building, or (b) in the reasonable judgment of the Landlord may in any way
impair or interfere in any material respect with any of the Building services or
the proper and economic heating, air conditioning, cleaning or other servicing
of the Building or the Premises or impair or interfere with the use of any of
the other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any other tenant of the Building or impair the appearance of the
Building. The Tenant shall not use, or suffer or permit the use of, the Premises
or any part thereof in any manner, or do, or suffer or permit the doing of,
anything therein or in connection with the Tenant's business or advertising
which, in the reasonable judgment of the Landlord, may be prejudicial to the
business of the Landlord or the reputation of the Landlord or the Building or
reflect unfavorably on the Landlord or the Building or confuse or mislead the
public as to any connection or relationship between the Landlord and the Tenant;
provided, however, that nothing in this Section 3.2 or elsewhere in this Lease
shall be construed to give the Landlord any rights regarding the content of the
programming broadcast from the Premises; provided further, however, that, with
respect to the content of the programming broadcast from the Premises, the
Tenant shall be and remain liable for, and shall indemnify, and save harmless,
the Indemnitees from and against, all liability (statutory or otherwise),
losses, claims, suits, demands, damages, judgments, costs, interest and expenses
(including reasonable counsel fees and disbursements incurred in the defense
thereof) to which any Indemnitee may be subject or suffer directly relating to,
or directly arising out of, the content of any programming broadcast from the
Premises, except to the extent that any of such liability, losses, claims,
suits, demands, damages, judgments, costs, interest or expenses directly relates
to, or directly arises out of, a risk of a nature and in a degree which is
attendant to the use of office space in the Building for executive, clerical,
general and administrative offices, and for which the Tenant is not otherwise
liable under this Lease.
3.3. Unless otherwise specifically provided in this Lease, the Tenant will
not use, or suffer or permit the use of, the Premises or any part thereof for
any of the following purposes, whether or not incidental to the Tenant's
business, namely: (a) manufacturing of any kind, (b) the sale of any item
whatsoever (provided, however, that nothing contained in this clause (b) shall
prohibit the Tenant from consummating sale(s) transactions at the Premises for
delivery of goods from a remote location), (c) an auction of any kind, (d) the
hosting of so-called "studio audiences", or (e) the preparation, dispensing or
consumption of food or beverages, except, (i) that parts of the Premises may be
used as pantries and lunchrooms for employees of the Tenant and for the
installation and operation of food and beverage vending machines, and the Tenant
may avail itself of the use of catering service in the Premises, upon the
condition in each case that (A) no cooking or other preparation of food (other
than the reheating of food by microwave or the preparation of beverages) shall
be done in the Premises, (B) no food or beverages will be kept or served in the
Premises in a manner or under any conditions which shall be the occasion for
fumes or odors being emitted from, or detectable outside of, the Premises,
(C) such parts of the Premises shall be at all times maintained by the Tenant in
a clean and sanitary condition and free of refuse (including use of
extermination services whenever required), and (D) the Tenant will keep the
plumbing and sanitary systems and installations serving such parts of the
Premises to the points they connect with the main vertical risers and stacks of
the Building in a good state of repair and operating condition, and (ii) if the
cafeteria currently operated by McGraw-Hill on the C-1 level of the Building, or
any replacement of such cafeteria operated for the benefit of all tenants of the
Building (in either case, the "Building Cafeteria"), ceases to operate, or if
the Tenant is denied access thereto (other than a temporary denial of access
resulting from the performance of alterations to the Building Cafeteria or a
fire or other casualty, or a denial of access resulting from Tenant's failure or
refusal to enter into the standard license or user agreement for the Building
Cafeteria on terms that are not less favorable than the terms generally made
available to all tenants in the Building of comparable size (other than
McGraw-Hill or Rockefeller Group, Inc.), or pay the license or user fee
thereunder), then, anything in Section 3.3(e)(1)(A) above to the contrary
notwithstanding, in connection with, and incidental to, the Tenant's use of the
Premises for the purposes permitted under Section 1.3.1 above, and at the
Tenant's sole cost and expense, a portion of the Premises, not exceeding 10,000
rentable square feet in area may be used for the installation and operation of a
cafeteria (including a kitchen) for the preparation and dispensing of food for,
and the
consumption of food by, the Tenant's employees who have offices in the Building
and their invitees (but not other tenants in the Building or the general
public), provided, and upon the express conditions that, (A) in connection with
the installation and operation of such cafeteria, the Tenant shall comply with
all applicable Requirements and the provisions of this Lease (including, without
limitation, the provisions of Section 6.1(e) below) and with all other
reasonable requirements and regulations that the Landlord may adopt from time to
time, (B) the Tenant shall obtain, at the Tenant's sole cost and expense, any
and all required permits, licenses and certificates for such incidental use
(including, without limitation, any amendment to the Building certificate of
occupancy necessitated by such incidental use), and (C) the Tenant shall pay for
any necessary extermination, for the installation of all flues, vents, grease
traps and Ansul systems and other similar equipment as Landlord shall reasonably
require and for all cleaning of such space (it being understood that Landlord's
provision of cleaning services pursuant to Section 20.1(e) below shall not apply
to the use of the Premises, or any portion thereof, for such cafeteria use). In
addition, if the Landlord or any designee of the Landlord operates the Building
Cafeteria, then, subject to the execution by Tenant of the standard license or
user agreement for the Building Cafeteria on terms that are not less favorable
than the terms generally made available to all tenants in the Building of
comparable size, and the payment of the applicable license or user fee
thereunder, the Tenant shall be permitted access thereto on a non-exclusive
basis with other tenants of the Building.
3.4. If any governmental license, permit or certificate shall be required
for the proper and lawful conduct of any business or other activity carried on
in the Premises or in or from any of the Licensed Spaces (including, without
limitation, (a) any license, permit or certificate required to be obtained from
the Federal Communications Commission for the conduct of the Tenant's business
or for the operation of the Satellite Transmission System, and (b) any amendment
to the certificate of occupancy for the Building necessitated by (i) the use of
the Office Space, or any portion thereof, as a studio for the broadcasting of
live and/or pre-recorded radio programming and/or the recording of radio
programming for future broadcasting, (ii) the use of the Premises, or any
portion thereof, for radio broadcasting and/or the providing of radio broadcast
services or (iii) the installation, use, operation or maintenance of the
Satellite Transmission System, the Emergency Generator System or the Auxiliary
Chillers) and, if the failure to secure such license, permit or certificate
would, in any way, adversely affect the Landlord, the Tenant shall, at the
Tenant's sole cost and expense, promptly procure and thereafter maintain such
license, permit or certificate, submit the same to the Landlord for inspection,
and comply with the terms and conditions thereof, and in no event shall Tenant
conduct any such business or other activity at the Premises until a validly
issued license, permit or certificate therefor has been duly obtained. Anything
in this Section 3.4 to the contrary notwithstanding, it shall be the Landlord's
obligation to maintain the certificate of occupancy for the Building with
respect to use of the Office Space as executive, clerical, general and
administrative offices. With respect to any application for any governmental
license, permit or certificate required to be obtained hereunder by Tenant, upon
the request of the Tenant, the Landlord, at the Tenant's sole cost and expense,
shall (y) join in the application therefor and shall sign such application
reasonably promptly after request by the Tenant, provided and on the express
conditions that the provisions of the applicable Requirement require the
Landlord to join in
such application and such application relates to (1) the performance by the
Tenant of Alterations in accordance with the terms of this Lease or (2) the
ability of the Tenant to use the Premises for the purposes permitted under this
Lease, or (3) such application is otherwise reasonably acceptable to the
Landlord and (z) otherwise cooperate with the Tenant in obtaining such license,
permit or certificate. In addition, if the existence of any violation of any
Requirement by reason of any act or omission of the Landlord which is curable by
the Landlord (and which is not due, in part, to any act or omission of any
Tenant Party), prevents the Tenant from obtaining any governmental license,
permit or certificate (including, without limitation, a temporary permit,
approval or certificate) required for the legal use by the Tenant of the
Premises for the purposes permitted in this Article Three, and the Tenant does
not use the Premises, and if such violation is not cured by the Landlord for a
period of ten (10) business days after the Landlord's receipt of notice thereof
from the Tenant, then, the fixed rent payable hereunder shall be abated in an
amount equal to one (1) day's fixed rent for each day after the expiration of
such ten (10) business day period that the Landlord fails to cure such
violation, and the conditions described in subclauses (A) and (B) of this
Section 3.4 remain in effect.
3.5. Neither the Tenant nor any occupant of the Premises shall use the
words "Rockefeller" or "Center", or any combination or simulation thereof, for
any purpose whatsoever, including (but not limited to) as or for any corporate,
firm or trade name, trademark or designation or description of merchandise or
services, except that the foregoing shall not prevent the use, in a conventional
manner and without emphasis or display, of the words "Rockefeller Center" as
part of the Tenant's business address. Neither the Tenant nor any occupant of
the Premises shall use the name of the Building or the name of the entity for
which the Building is named or any part or abbreviation (including initials) of
either such name except that the foregoing shall not prevent the use of the name
of the Building or any part thereof, in a conventional manner and without
emphasis or display, as a part of the Tenant's or such occupant's business
address or by reference in the ordinary course of its business.
ARTICLE FOUR
(4.)Fixtures
4.1. All fixtures, equipment, improvements and installations ("Fixtures")
attached to, or built into, the Premises or the Licensed Spaces at the
commencement of or during the term of this Lease, whether or not installed at
the expense of the Tenant or by the Tenant, shall be and remain part of the
Premises or the Licensed Spaces, as the case may be, and be deemed the property
of the Landlord; provided, however, that the Tenant may remove or replace such
Fixtures. All electric, plumbing, heating, sprinkling, dumbwaiter, elevator,
fixtures and outlets, venetian blinds, partitions, railings, gates, doors,
vaults, stairs, paneling (including display cases and cupboards recessed in
paneling), molding, shelving, radiator enclosures, floors, and ventilating,
silencing, air conditioning and cooling equipment shall be deemed to be included
in Fixtures, whether or not attached to or built into the Premises or the
Licensed Spaces. Notwithstanding the provisions of the first sentence of this
Section 4.1, Tenant shall (a) close up any slab penetration in the Premises or
the Building
created by and for the benefit of the Tenant (or any party claiming by or
through the Tenant), (b) remove from the Building (i) any raised floors, safes,
vault areas, stairways, lead-lined rooms, conveyors, pneumatic tubes, internal
elevators, and mechanical and electrical rooms and telephone switchrooms and the
equipment therein installed by or for the benefit of the Tenant (or any party
claiming by or through the Tenant), (ii) the Emergency Generator System,
(iii) the Satellite Transmission System (including, without limitation, rooftop
steel dunnage installed to support the portion thereof located on the Penthouse
Roof Space) and (iv) all other Fixtures of a nature or type not ordinarily
installed in premises used for executive, clerical, general and administrative
offices (including, without limitation, supplemental air conditioning equipment,
exclusive of electrical conduit and duct work) which have been furnished and
installed in any part of the Premises, whether or not attached to or built in
the Premises ("Extraordinary Fixtures"), except those Extraordinary Fixtures
which, pursuant to the provisions of Section 6.2(a) of this Lease, the Tenant
shall not be required to remove from the Building at the end of the term of this
Lease, and (c) not remove venetian blinds, radiator enclosures, elevators and
any components of the Building systems. All such closing and removal shall be
performed, at the Tenant's sole cost and expense, not later than the expiration
or termination of the Lease and the removal of Fixtures by the Tenant during the
term of this Lease shall be performed subject to the provisions of this Lease,
including, without limitation, Section 6.1(e). The Tenant shall repair any
damage to the Premises arising from such closing and removal described in the
preceding sentence. The reasonable cost of repairing any damage to the Premises
or the Building arising from such closing and removal described in the preceding
sentences shall be paid by the Tenant upon demand. If any Fixture which as
aforesaid may or is required to be removed by the Tenant is not so removed
within the time specified therefor in this Section 4.1, then the Landlord may at
its election deem that the same has been abandoned by the Tenant to the
Landlord, and the Tenant, upon demand, shall pay to the Landlord the reasonable
cost and expense of removing the same or the reasonable cost of repairing damage
arising from such removal. Anything in this Section 4.1 or elsewhere in this
Lease to the contrary notwithstanding, (y) the Landlord may, by notice to the
Tenant, prohibit the closing of any slab penetration not theretofore closed and
the removal of any or all items the Tenant is required to remove pursuant to
this Section 4.1 but has not theretofore removed and (z) the Tenant may (subject
to the immediately preceding clause (y)), but shall have no obligation to,
remove or pay for the removal of any Salvageable Fixture(s) (as hereinafter
defined) if either (i) the Landlord shall fail to notify the Tenant on or before
the date which is six (6) months following the expiration or earlier termination
of this Lease that the Landlord has elected to require the removal of such
Salvageable Fixture(s) or (ii) the Landlord shall enter into a lease with
another tenant who or which desires to utilize such Salvageable Fixture(s),
provided, however, that, if the Landlord's notice to the Tenant that such
removal will be required shall be timely given, but shall be given after the
expiration or earlier termination of the term of this Lease, then, the Landlord
shall perform such removal and all reasonable costs and expenses incurred by the
Landlord in connection the performance by it of such work shall be paid by the
Tenant to the Landlord upon demand, provided, however, that, if such work is
performed by the Landlord in conjunction with any other work at the Premises,
the Tenant's obligation hereunder shall be limited to the amount by which the
cost of the removal of the Salvageable Fixtures(s) materially increases (i.e.,
by more than $50,000.00) the total cost, when performed together, of the
performance of such other work and the
removal of such Salvageable Fixtures(s). In order to determine such increased
cost, the Landlord shall obtain, from reputable independent contractors selected
by Landlord, not less than three (3) bids for such work, each of which shall
specify, in addition to the total cost of performing all of the work, the cost
of performing the work without the removal of the Salvageable Fixture(s). As
used in this Lease, the term "Salvageable Fixtures" means (1) slab cuts,
(2) internal staircases, (3) supplemental air conditioning equipment (excluding
duct-work), (4) the Emergency Generator System, (5) the Auxiliary Chiller
System, (6) the Satellite Transmission System (including, without limitation,
the steel dunnage installed to support the portion thereof located on the
Penthouse Roof Space) and (7) any Fixtures which, at the time the Landlord
designates the same as "Extraordinary Fixtures" (in accordance with the
procedure set forth in Section 6.2(a) below) the Landlord also designates the
same as "Salvageable Fixtures". Anything in this Section 4.1 or elsewhere in
this Lease to the contrary notwithstanding, the Tenant shall be permitted to
remove that portion of the Satellite Transmission System (that the Tenant is
required under this Lease to remove) from the Penthouse Space and the Penthouse
Roof Space within the forty-five (45) day period following the expiration or
sooner termination of this Lease; provided, that the Tenant maintains on deposit
with the Landlord one or more Deposit L/Cs in accordance with Article Twenty-six
below and provisions of this Section 4.1 applicable to the repair of damage to
the Building arising from such removal and of Section 6.1(j) shall survive the
expiration or sooner termination of this Lease.
4.2. All the perimeter walls of the Premises, any balconies, terraces or
roofs adjacent to the Premises (including any flagpoles or other installations
on said walls, balconies, terraces or roofs), and any space adjacent to the
Premises used for shafts, stairways, stacks, pipes, conduits, ducts, mail
chutes, conveyors, electric or other utilities, sinks, fans or other Building
facilities, and the use thereof, as well as access thereto through the Premises
(in accordance with the provisions of Section 6.1(c) below) for the purposes of
such use and the operation, improvement, replacement, addition, repair,
maintenance or decoration thereof, are expressly reserved to the Landlord.
ARTICLE FIVE
(5.)Electric Current and Water
5.1. As an incident to this Lease, the Landlord shall furnish to the
Tenant:
(a) through the existing transmission facilities (including existing
taps, disconnects and transformers) installed by the Landlord in the
Building, alternating electric current to the electric closets and
panels provided by the Landlord and serving the Office Space and the
Penthouse Space in such reasonable quantity as may be required by
the Tenant for the Tenant's ordinary use of the Premises for the
purposes herein specified, but such quantity shall not exceed, in
the aggregate, six (6) watts of demand power per usable square foot
of space in the Office Space, and two (2) watts of demand power per
usable square foot of space in the Penthouse Space (each exclusive
of the quantity of alternating electric current required to support
base Building systems). Subject to the provisions of this Lease,
including,
without limitation, Section 6.1(e) below, the Tenant may distribute
such six (6) watts of alternating electric current within the Office
Space, and such two (2) watts of alternating electric current within
the Penthouse Space, in such manner as the Tenant may elect;
(b) alternating electric current to the Basement Space, the
Penthouse Roof Space, the Auxiliary Chiller Space and the Emergency
Generator Space, as applicable, in accordance with Section 5.4
below; and
(c) additional alternating electric current to the Office Space from
a 1,200 ampere supply switch to be designated by the Landlord in the
base Building switchgear room on the 38th Floor of the Building, in
such reasonable quantity as may be required by the Tenant for the
Tenant's ordinary use of the Office Space for the purposes herein
specified, provided, that (i) such quantity shall be limited to no
more than 1,000 amperes (the "Additional Electric Amount"), which
Additional Electric Amount shall be designated by the Tenant in a
notice delivered to the Landlord together with the Tenant's
Preliminary Drawings (as defined in Section 6.2(a) below) for the
Initial Tenant Alterations (the "Additional Electric Amount Load
Letter"), and (ii) the Tenant, at the Tenant's sole cost and
expense, in compliance with all applicable Requirements, and subject
to all of the provisions of this Lease (including, without
limitation, Section 6.1(e) and Section 11.1) shall, (A) provide and
install all risers, conduit, switches, fuses, (including, without
limitation, a fuse located in such switchgear room limiting the
amount of alternating electric current available to the Tenant
pursuant to this Section 5.1(c) to the Additional Electric Amount)
feeders, and/or appurtenances which, in the Landlord's sole (but
good faith) judgment, are necessary to bring the Additional Electric
Amount from such switchgear room, through a portion of shaft space
to be designated by the Landlord in reasonable accordance with the
diagram attached hereto as Exhibit A-8, to the electric closet
serving the Office Space located on the 37th Floor of the Building.
Anything in this Section 5.1(c) to the contrary notwithstanding, if
the Tenant fails to deliver the Fused Amount Load Letter to the
Landlord together with the Tenant's Preliminary Drawings for the
Initial Tenant Alterations, the Landlord shall have no obligation to
furnish such additional electric current to the Office Space as
described in this Section 5.1(c).
5.2.1. The alternating electric current to be provided to the Office
Space and the Penthouse Space pursuant to Section 5.1(a) and Section 5.1(c)
above, and any alternating electric current to be provided to the Basement
Space, the Penthouse Roof Space, the Auxiliary Chiller Space or the Emergency
Generator Space, as the case may be, pursuant to Section 5.1(b) above, shall be
measured by an electronic meter or meters and meter equipment (including meter
pans and other appurtenant equipment, if applicable) measuring for each such
space only electric current furnished to each such space. Such meter(s) and
meter equipment for the delivery of alternating electric current to the Office
Space and the Penthouse Space pursuant to Section 5.1(a) above shall be provided
by the Landlord at a
reasonable expense to the Tenant, and installed, in conjunction with the Initial
Tenant Alterations to the Office Space and the Penthouse Space, by the Landlord
(or, upon written notice from the Tenant to the Landlord and subject to the
provisions of Section 6.1(e) below and all Requirements, by the Tenant) at the
Tenant's expense, in such quantity as the Landlord shall reasonably determine
and at such location or locations within the Office Space and the Penthouse
Space as the Landlord shall reasonably determine in consultation with the
Tenant. Such meter(s) and meter equipment for the delivery of alternating
electric current to the Office Space pursuant to Section 5.1(c) above and for
the Basement Space, the Penthouse Roof Space, the Auxiliary Chiller Space or the
Emergency Generator Space, as the case may be, shall be provided by the Landlord
at a reasonable expense to the Tenant, and installed, prior to the Landlord
providing alternating electric current to the Office Space pursuant to Section
5.1(c) above and to each such other space, by the Landlord (or, upon written
notice from the Tenant to the Landlord and subject to the provisions of
Section 6.1(e) below and all Requirements, by the Tenant) at the Tenant's
expense, in such quantity as the Landlord shall reasonably determine and at such
location or locations within the Office Space pursuant to Section 5.1(c) above
and to each such other space as the Landlord shall reasonably determine in
consultation with the Tenant. The Tenant shall pay as additional rent to the
Landlord, upon demand by the Landlord, at the end of each billing period (the
"Applicable Billing Period") of the electric utility service provider then
supplying such alternating electric current to the Building (and, if there shall
be more than one (1) such electric utility service provider, the electric
utility service provider which supplies to the Building the alternating electric
current furnished to the Office Space and the Penthouse Space by the Landlord),
an amount which shall be the sum of (a) 105% of (i) the product obtained by
multiplying the actual number of kilowatt hours of electric current consumed by
the Tenant in such Applicable Billing Period by a fraction having as its
numerator the amount charged to the Landlord for the Building by said electric
utility service provider (net of all rebates, discounts and other monetary
benefits received by the Landlord for the Building from said electric utility
service provider which are for the benefit of the Building as a whole and not
for the particular benefit of one or more tenants (including Tenant) or
occupants of the Building) for the total number of kilowatt hours billable to
the Landlord for electricity used in the Building in such billing period and as
its denominator said total number of kilowatt hours, less (ii) the BIR Amount
(as defined in Section 5.2.2. below) for such Applicable Billing Period), and
(b) any taxes applicable to the amount determined pursuant to the foregoing
clause (a). Anything in the foregoing provisions of Section 5.1(a) or elsewhere
in this Lease to the contrary notwithstanding, until such meter(s) for the
Office Space and the Penthouse Space are installed and operable, the Tenant
shall pay to Landlord as additional rent, for alternating electric current
supplied to the Office Space and the Penthouse Space, a sum at the rate of (A)
$0.75 per rentable square foot of the Office Space and the Penthouse Space per
annum from the term commencement date until the date which is sixty (60) days
after the term commencement date, (B) $1.50 per rentable square foot of the
Office Space and the Penthouse Space per annum from the day which is sixty-one
(61) days after the term commencement date until the day immediately preceding
the date on which the Tenant shall substantially complete the construction of
the Initial Tenant Alterations (the "Electric Conversion Date") and (C) $3.50
per rentable square foot of the Office Space and the Penthouse Space per annum
thereafter, payable in equal monthly installments in advance on the first day of
each and every calendar month of the term of this
Lease (except that (x) if the term commencement date shall be other than the
first day of a calendar month, the first monthly installment of additional rent
for alternating electric current for such space, apportioned for the part month
in question, shall be payable on the term commencement date and (y) if the date
upon which such meter(s) become operable is other than the last day of a
calendar month, the last monthly installment of additional rent for alternating
electric current shall be apportioned for the part of the month in question and
the Landlord shall, at the Tenant's election, (i) refund to the Tenant the
amount of any overpayment or (ii) apply any overpayment toward the next payment
of additional rent due pursuant to this Section 5.2.1). At any time, and from
time to time after the Electric Conversion Date and prior to the installation of
the meter(s), at the Landlord's election, a reputable, independent electrical
consultant selected by the Landlord and reasonably acceptable to the Tenant
shall make a survey of the electric lighting and connected power load in the
Premises and the Licensed Spaces to determine the average monthly electric
current consumption therein; provided, that for the purposes of such survey,
such independent electrical consultant shall assume that the Tenant uses an
average of seventy-five percent (75%) of the total available connected power
load in the Premises and the Licensed Spaces. The cost of each such survey shall
be borne by the Tenant. The Landlord shall give the Tenant written notice of the
findings of such survey and any increase or decrease in the rate at which the
Tenant is required to pay for electricity (and, therefore, the amount of any
increase or decrease in the fixed rent payable under this Lease) pursuant to the
foregoing electric inclusion provision of this Lease; provided, however, that,
notwithstanding anything to the contrary in this Section 5.2.1, no adjustment of
the electric inclusion amount shall be made which reduces the fixed rent below
the amount thereof set forth in Section 1.4 above. The findings of the
independent electrical consultant shall be conclusive and binding upon the
parties. Any increase or decrease in the electric inclusion amount shall be
effective as of the date the change (if any) of connected power load or electric
consumption occurred (as determined by the independent electrical consultant)
or, if no such change shall have occurred, as of the date of the electrical
survey. In the event of any such increase, (1) the initial unpaid amount of each
such increase shall be paid by the Tenant to the Landlord within ten (10)
business days after the final determination of the new electric inclusion amount
as determined above, and (2) thereafter, the increase shall be added to the
fixed rent payable monthly on the first day of every month during the term of
this Lease, in advance. In the event of any such decrease, (I) the Landlord
shall credit to the Tenant, against the next Rents coming due hereunder, the
amount of any overpayment, and (II) thereafter, the decrease shall be subtracted
from the fixed rent payable monthly under this Lease; provided, however, that
the fixed rent shall in no event be reduced below the amount of fixed rent set
forth in Section 1.4 above. If, during the term of this Lease, more than one (1)
electric utility service provider is supplying alternating electric current to
the Building (each such electric utility service provider other than the
electric utility service provider through which the Landlord is then furnishing
alternating electric current to the Premises (and, if applicable, any of the
Licensed Spaces) is herein called an "Alternate Electricity Provider"), and if,
in the Landlord's reasonable judgement, there is available space in the Building
(taking into consideration the current and anticipated future needs of all
tenants in the Building and of the Building itself) to accommodate all risers,
conduits, feeders and other equipment necessary for an Alternate Electricity
Provider to provide alternating electric current to the Landlord for the purpose
of the Landlord's furnishing the
same to the Tenant in accordance with Section 5.1(a) above, then, with
reasonable promptness following receipt of written request therefor from the
Tenant (which request the Tenant shall not make more than one (1) time in any
twelve (12) month period, the Landlord shall cause the Alternate Electricity
Provider designated by the Tenant to supply the Landlord with alternating
electric current in such quantity through such equipment and at such point(s) of
connections so as to permit the Landlord to furnish alternating electric current
to the Premises (and, if applicable, any of the Licensed Spaces) in accordance
with this Article Five. The Tenant shall be responsible for, and shall pay to
the Landlord upon demand, all reasonable costs incurred by the Landlord in
connection with any such replacement of any current electric utility service
provider with any Alternate Electricity Provider (including, without limitation,
the reasonable cost of installing all necessary risers, conduits, feeders, taps,
disconnects, transformers, panels and meters and other equipment and the
reasonable cost of Building space necessary to accommodate such equipment),
except that, if such equipment provides electric capacity which is in excess of
that which is required to service the Premises and any applicable Licensed Space
(as determined by an independent electrical consultant selected by the Landlord,
whose fee shall be shared equally by the Landlord and the Tenant) at the time
such equipment is installed and if (Y) such excess capacity was installed at the
request of the Tenant, such costs shall be paid solely by the Tenant and, until
the expiration or sooner termination of the term of this Lease, such excess
capacity shall be reserved for the use of the Tenant in such manner as the
Tenant, in its sole discretion (but subject to the other provisions of this
Lease applicable to the Tenant's use of electric current) shall determine,
provided, and on the express condition that, the Tenant shall not sell any such
excess capacity to, or otherwise permit the use of such excess capacity by, any
other person or entity (except for a subtenant of the Tenant), whether or not a
tenant in the Building, or (Z) such excess capacity was not installed at the
request of the Tenant, such costs shall be equitably apportioned between the
Tenant and the Landlord and such excess capacity shall be the sole property of
the Landlord to use as the Landlord, in its sole discretion, shall determine,
including, without limitation, to provide access to the Alternate Electricity
Provider to other tenants in the Building.
5.2.2. As part of the IDA Transaction (as defined in Article Thirty-Seven
below), the Tenant is entitled to receive electric energy made available to the
Premises (whether through the Landlord or otherwise) by The Consolidated Edison
Company ("Con Ed") at a reduced rate pursuant to Con Ed's so-called Business
Incentive Rate Program (the "BIR Program"). The Landlord, at the Tenant's sole
cost and expense, shall cooperate with the Tenant's efforts to obtain electric
energy at such reduced rate; such cooperation to include, without limitation,
the execution and delivery by the Landlord of any applications required to apply
for the BIR Program, and all such other documents and instruments as shall
reasonably be required by the Tenant, Con Ed or the IDA (as defined in Article
Thirty-Seven below) in connection therewith; provided, however, that the effect
of such applications, documents or instruments shall in no event be to (a)
decrease (except to a de minimis extent) the Landlord's rights under this Lease,
(b) increase (except to a de minimis extent) the Landlord's obligations under
this Lease or (c) adversely affect the current or future supply of electric
current to the Building or the rates at which such non-BIR Program electric
current may be purchased. In addition, to the extent that the same is required
as a condition to the Tenant's right to participate in the BIR Program, the
Landlord shall permit the IDA
and Con Ed, and persons authorized by either of them, to enter the part of the
Building in which the submeters serving the Premises are located from time to
time during Business Hours on reasonable advance notice for the purpose of
reading and/or inspecting such submeters. The dollar amount by which the
Landlord's electrical bills are reduced by Con Ed (whether such reduction be by
way of rebate, discount or other monetary benefit) for any Applicable Billing
Period as a result of the Tenant's participation in the BIR Program is referred
to herein as the "BIR Amount". The Tenant shall cause Con Ed to append to the
Landlord's electric bills an appropriate notation, or deliver a statement to the
Landlord contemporaneously with such bills, to the effect that such reduction in
the amount of the BIR Amount is given solely in respect of electric energy
consumed by, and is solely for the benefit of, the Tenant. The BIR Amount set
forth by Con Ed on the Landlord's electrical bills, or in such statement (if
applicable), shall be dispositive as between the Landlord and the Tenant of such
BIR Amount. Anything in this Section 5.2.2 or elsewhere in this Lease to the
contrary notwithstanding, the Landlord shall have the right at any time, in the
Landlord's sole discretion, to discontinue using Con Ed as its electric service
provider for the Building.
5.2.3. If any tenant or other occupant of the Building shall claim (each
such claim being referred to herein as an "Other Tenant Electric Claim") for any
given period (the "Applicable Claim Period") that it is entitled to a reduction
in (a) any electricity payment payable with respect to the electricity provided
to its premises (whether by way of electric rent inclusion, direct meter or
submeter) or (b) its payment on account of the Cost of Operation and Maintenance
or any similar escalation payment, in either case, which such tenant or occupant
would otherwise be obligated to pay, where the basis for such claimed reduction
is that the BIR Program benefits (even though intended for the exclusive benefit
of the Tenant) allegedly reduced the total energy costs for the entire Building
by the BIR Amount during such Applicable Claim Period (such alleged reduction in
the total energy costs for the entire Building (including, without limitation,
any alleged reduction in the Cost of Operation and Maintenance for such
Applicable Claim Period) being referred to herein as the "BIR Reductions"), then
the Landlord shall promptly notify the Tenant of such Other Tenant Electric
Claim, including the exact amount (if known) of the reduction being claimed by
such tenant (the "Claimed Amount") and the basis for such claim (to the extent
known by the Landlord after using reasonable efforts to ascertain the same), and
shall deliver to the Tenant copies of any documents, leases, bills and other
pertinent information in its possession relating to such Other Tenant Electric
Claim. Within thirty (30) days of the Landlord's notice to the Tenant of any
Other Tenant Electric Claim (together with the information set forth above), the
Tenant shall notify the Landlord whether (y) it intends to dispute such Other
Tenant Electric Claim (or the amount thereof that the Tenant wishes to dispute)
or (z) pay to the Landlord, as additional rent, the amount of such Claimed
Amount for the Applicable Claim Period. If the Tenant shall elect to dispute any
Other Tenant Electric Claim (or any portion thereof), then the Tenant shall be
permitted to litigate, arbitrate, negotiate and settle such dispute for and in
the name of the Landlord, and the Landlord shall execute and deliver such
complaints, pleadings, documents, agreements and correspondence as the Tenant
may reasonably require in connection therewith, provided that the Tenant shall
(A) bear the entire cost of such dispute and any settlement of any such Other
Tenant Electric Claim (including, without limitation, all attorneys' fees,
disbursements and
costs of litigation) and (B) indemnify, defend and hold harmless the Indemnitees
from and against all liability (statutory or otherwise), loss, claims, suits,
demands, damages, judgments, costs, interest and expenses (including reasonable
counsel fees and disbursements incurred in the defense thereof) to which any
Indemnitee may be subject or suffer relating to, or arising out of the Other
Tenant Electric Claims, as well as the Claimed Amount, provided, however, that
such indemnification obligation under this subclause (B) with respect to any
Other Tenant Electric Claim for any given Applicable Claim Period shall be
limited to an amount equal to the BIR Amount with respect to the Applicable
Claim Period. If the Tenant shall elect to pay any Other Tenant Electric Claim
pursuant to clause (z) above, the Tenant shall pay the Landlord, as additional
rent, the Claimed Amount; provided, however, that, if the Tenant does not
dispute any Claimed Amount for any Applicable Claim Period, the aggregate of all
such payments with respect to any Applicable Claim Period shall not exceed the
BIR Amount which the Tenant has received the benefit of hereunder with respect
to such Applicable Claim Period. If the Tenant fails to elect to either pay or
dispute any Claimed Amount within such thirty (30) day period, then the Tenant
shall be deemed to have elected to pay such Claimed Amount. Subject to the
Tenant's right to dispute any Other Tenant Electric Claim and the Landlord's
obligations hereunder with respect to any such dispute, the Tenant agrees that
(Y) the Landlord shall have no obligation to challenge or commence or prosecute
any action or proceeding against any tenant or occupant of the Building who
shall make any Other Tenant Electric Claim, and (Z) the Tenant shall not assert
an independent claim against the Landlord or any such tenant or occupant,
directly or indirectly (including, without limitation, any claim by way of
subrogation), as a result of any claim by such tenant or occupant for a
reduction in any electricity payment payable with respect to the electricity
provided to its premises and/or a reduction in its payment on account of the
Cost of Operation and Maintenance, as aforesaid.
5.2.4. Anything in this Lease to the contrary notwithstanding, if the
Landlord shall implement an economic incentive package with respect to
electricity for the benefit of another tenant or other occupant of the Building
(and if such benefit is passed on to such other tenant or occupant) and, as a
result thereof, the energy costs for the Building shall be reduced or abated, in
whole or in part, with respect to all or any portion of the Building, then for
purposes of calculating the payment required to be made by the Tenant in respect
of electricity pursuant to this Lease, the energy costs for the Building shall
be the amount which would have been payable without regard to such reduction or
abatement. In addition, any economic incentive package with respect to
electricity for the benefit of any tenant (including the Tenant) of the Building
shall not be construed to reduce electric charges allocable to the non-demisable
portions of the Building for purposes of calculating the Cost of Operation and
Maintenance.
5.3. If required by any Requirement, the Landlord shall, upon not less
than thirty (30) days' prior notice, but in no event prior to such time as the
Tenant may obtain alternating electric current directly from an electrical
utility service provider then serving the Building, discontinue the furnishing
of alternating electric current to the Premises or any part thereof. In such
event, the Tenant shall contract for the supplying of such alternating electric
current to the Premises with an electrical utility service provider then
supplying
alternating electric current to the Building; and the Landlord shall permit its
wires, risers, conduits and feeders, switchboards and appurtenances serving the
Premises, to the extent safely capable, to be used for the purpose of supplying
such alternating electric current and the Landlord shall be responsible for the
costs and expenses associated with any such conversion, excluding any increase
in rates charged to the Tenant by any such electric utility service provider
occasioned by reason of such conversion.
5.4. If the Tenant shall require electric current for use in (Y) the
Office Space and/or the Penthouse Space in excess of such reasonable quantity
required to be furnished as provided in Section 5.1(a) above, or (Z) the
Basement Space, the Penthouse Roof Space, the Auxiliary Chiller Space or the
Emergency Generator Space, as the case may be, and provided that (a) the
Landlord is not prohibited from furnishing additional electric current to any
such space by any applicable Requirement, (b) the supply of the additional
electric current required by the Tenant is permitted and, to the extent not then
available in the Building, will be made available by the electric utility
service provider furnishing electric current to the Building, and (c) in the
Landlord's reasonable judgment (taking into consideration the current and
anticipated future needs of all tenants of the Building and of the Building
itself) such electric current is not required to be reserved for other uses, the
Landlord shall make such excess load available to the Tenant at no additional
charge, except for the increased additional rent to be charged the Tenant, in
accordance with Section 5.2.1 hereof, for such additional alternating electric
current furnished to any such space by reason of the Tenant's increased usage.
In addition to the foregoing charges, if, in the Landlord's reasonable judgment,
such additional electric current cannot be furnished unless additional risers,
conduit, feeders, switchboards and/or appurtenances are installed in the
Building, the Landlord, upon request of the Tenant, will proceed with reasonable
diligence to install such additional risers, conduits, feeders, switchboards
and/or appurtenances, provided the same and the use thereof shall be permitted
by all laws, ordinances, rules, orders and regulations of all governmental and
quasi-governmental authorities and of all insurance bodies, at any time duly
issued and in force, applicable to the Land, the Building or the Premises or any
part thereof, to the Tenant's use thereof or to the Tenant's observance of any
provision of this Lease (collectively, "Requirements") and shall not cause
damage or injury to the Building or the Premises or cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations or
repairs or interfere with or disturb other tenants or occupants of the Building,
and the Tenant shall pay, upon demand, all reasonable costs and expenses
incurred by the Landlord in connection with such installation (and shall
maintain on deposit with the Landlord such security for the payment by the
Tenant of all such costs and expenses as the Landlord shall from time to time
reasonably request), except that to the extent such equipment provides electric
capacity which is in excess of that which is required to provide the additional
electric current requested by the Tenant (as determined by an independent
electrical consultant selected by the Landlord, whose fee shall be shared
equally by the Landlord and the Tenant), such costs shall be equitably
apportioned between the Tenant and the Landlord and such excess capacity shall
be the sole property of the Landlord to use as the Landlord, in its sole
discretion, shall determine, including, without limitation, to provide electric
service to other tenants in the Building; provided, that the Tenant may, at its
expense, install such additional risers, feeders, switchboards and/or
appurtenances (and all work and actions in connection therewith shall be subject
to the provisions of this Lease,
including, without limitation, Section 6.1(e) below). The Tenant shall purchase
and install all lamps, starters and ballasts (including replacements thereof)
used in the lighting fixtures in the Premises.
5.5. Water will be furnished by the Landlord for normal use in the
pantries and lunchrooms, lavatory and toilet facilities, and drinking fountains
if any, in the Office Space. If the Tenant otherwise uses (i.e., the quantity of
water used by the Tenant exceeds, by more than a de minimis amount, normal use
for the purposes specified, or water is used for purposes other than the
purposes specified, in the first sentence of this Section 5.5) water furnished
to the Office Space by the Landlord ("Extra Water"), the Tenant shall pay
(i) the cost of supplying, installing and maintaining a meter to measure Extra
Water, (ii) the reasonable charges of the Landlord for Extra Water and for any
required pumping and heating thereof, and (iii) any taxes, sewer rent or other
charges which may be imposed by any government or agency thereof based upon the
quantity of Extra Water so used by the Tenant or the charge therefor.
5.6. The Landlord shall in no way be liable for any failure, inadequacy or
defect in the character or supply of electric current or water furnished
pursuant to this Article Five, except for actual damage suffered by the Tenant
by reason of any such failure, inadequacy or defect caused by the negligence or
wilful misconduct of the Landlord or its employees, contractors or agents
acting, respectively, within the scope of their employment, contract or agency
(each, a "Landlord Party") .
ARTICLE SIX
(6.)Various Covenants
6.1. The Tenant shall:
(a) take good care of the Premises and the Licensed Spaces, keep
clean the portions of the Premises and the Licensed Spaces which the
Landlord is not required by this Lease to clean, and pay the cost of
making good any injury, damage or breakage (including, without
limitation, the cost of removing stains from floors and walls) done
by the Tenant, any other occupant of the Premises or user of the
Licensed Spaces (other than the Landlord), any affiliate thereof, or
any of their respective employees, officers, directors, partners,
contractors, agents, licensees or invitees (each, a "Tenant Party"),
other than any damage with respect to which the Tenant is released
from liability pursuant to Section 9.3;
(b) observe and comply with the rules and regulations annexed to,
and made a part of, this Lease and such other and further reasonable
rules and regulations as the Landlord hereafter at any time may make
and communicate to the Tenant and which, in the reasonable judgment
of the Landlord, shall be necessary or desirable for the reputation,
safety, care or appearance of the Building, or the preservation of
good order therein, or the operation or
maintenance of the Building, or the equipment thereof, or the
comfort of tenants or others in the Building; provided, however,
that in the case of any conflict between the provisions of this
Lease and any such rule or regulation, the provisions of this Lease
shall control, and provided further that the Landlord shall not
enforce any rule or regulation against the Tenant which it is not
generally then enforcing against all other office tenants in the
Building;
(c) permit the Landlord, any landlord under any of the underlying
leases, any mortgagee under any of the underlying mortgages and any
other party designated by the Landlord, and their respective
representatives (including, without limitation, their respective
employees, agents and contractors), to enter the Premises and/or
enter upon the Licensed Spaces (i) during Business Hours, upon
reasonable prior notice to the Tenant for the purposes of
inspection, and (ii) at any time that will not unreasonably
interfere with the normal conduct of the Tenant's business (except
in the event of an emergency, in which event they may enter at any
time), or otherwise at any time after Business Hours, upon
reasonable prior notice to the Tenant (except in the event of an
emergency, in which event the Landlord shall use reasonable efforts
to give the Tenant such notice as the circumstances reasonably
permit), for the purpose of complying with any Requirement or
exercising any right reserved to the Landlord under Article Eight or
elsewhere by this Lease (it being understood that the parties
specified in this subsection are third-party beneficiaries of the
covenants specified in this subsection in the event of the
Landlord's breach of any obligation the Landlord may have to any
such party to exercise a right of access on such party's behalf);
provided, however, that (A) except in the event of an emergency, and
provided the same does not unreasonably delay access to the
Premises, the Landlord, such parties and their representatives
shall, at the election of the Tenant, be accompanied by a
representative of the Tenant, (B) the Tenant may, from time to time
on reasonable prior written notice to the Landlord, designate areas
within the Premises that contain sensitive broadcasting,
communications or computer equipment as "secured areas", as to which
the Landlord, such parties and their representatives, except in the
event of an emergency, shall not be permitted access (it being
understood by the Tenant that, notwithstanding anything to the
contrary in this Lease, if, and for as long as, any portion of the
Premises is designated as a secured area the Landlord shall have no
obligation to provide cleaning services, or any other services
requiring access, to such portion of the Premises) and (C) the
Tenant may, from time to time on reasonable prior written notice to
the Landlord, designate (1) areas within the Premises that are to be
used for the conduct of live broadcasting as "live broadcasting
areas" and (2) times during the day when the Tenant is conducting
live broadcasting as "live broadcasting hours", during which hours
the Landlord, such parties and their representatives, except in the
event of an emergency, shall not be permitted access to the live
broadcasting areas (it being understood by the Tenant that,
notwithstanding anything to the contrary in this Lease, if, and for
as long as, any portion of the Premises is designated as a "live
broadcasting area" the Landlord shall have no obligation to provide
cleaning services, or any other services requiring access, to such
portion of the Premises during live broadcasting hours and, if live
broadcasting hours prevent the Landlord from providing any such
service(s) at the times the same are customarily provided to tenants
in the Building, the Tenant shall have the option either to waive
the Landlord's obligation to provide such services or to contract
with Landlord or Landlord's designee for such services and, in the
latter case, the Tenant shall pay to the Landlord as additional rent
hereunder upon demand by the Landlord all overtime and all other
increased costs incurred by the Landlord in providing such
services);
(d) make no claim against the Landlord or any landlord under any of
the underlying leases for any injury or damage to the Tenant or to
any other person or for any damage to, or loss (by theft or
otherwise) of, or loss of use of, any property of the Tenant or of
any other person, irrespective of the cause of such injury, damage
or loss, unless caused by the negligence or wilful misconduct of a
Landlord Party in the operation or maintenance of the Premises or
the Building, it being understood that no property other than such
as might normally be brought upon or kept in the Premises as an
incident to the reasonable use of the Premises for the purposes
specified in this Lease will be brought upon or kept in the
Premises;
(e) without the prior consent of the Landlord, be permitted to make
any alteration, addition, improvement, repair or replacement (an
"Alteration") in the nature of decorative changes (such as painting,
floor coverings, wallcoverings and furniture rearrangement) in, to,
or about the Premises provided that, (i) the same does not affect
any beam, girder, column, bearing wall, bearing partition, exterior
wall or other structural element of the Building, or the air
conditioning, ventilating, heating, steam, electric, water or other
system of the Building, and (ii) the workmanship and material used
in making any such Alteration shall be at least equal to the
standard therefor, if any, adopted by the Landlord for the Building;
make no other Alteration, in, to, or about, the Premises or any of
the Licensed Spaces, and do no work in such connection, without in
each case the prior review and consent of the Landlord to the final
working drawings and specifications for such Alteration (subject to,
and in accordance with, the provisions of Section 6.2 below), and
then only by workmen and contractors of the Landlord or by workmen
and contractors of the Tenant reasonably acceptable to the Landlord
[it being agreed by the parties to this Lease that if, after the
Tenant shall have given a written Notice to the Landlord requesting
the Landlord's consent to any such contractor, which Notice
requirement shall be satisfied by the Tenant delivering such written
Notice to Rockefeller Center Management Corporation, 1221 Avenue of
the Americas, New York, New York 10020-1095 Attention: Senior Vice
President - Operations, with a copy to
Rockefeller Center Management Corporation, 1221 Avenue of the
Americas, New York, New York 10020-1095 Attention: Secretary, the
Landlord shall not consent to such contractor, then the Landlord
shall so notify the Tenant (which notice shall set forth with
reasonable specificity the reasons for the Landlord's withholding
its consent) within five (5) business days after the Landlord's
receipt of the Tenant's request therefor, except that the Landlord
shall not be in default in the performance of its obligations under
Section 6.1(e) unless and until the Tenant shall have notified the
Landlord in writing of the Landlord's failure to so notify the
Tenant within such five (5) business day period, which notice shall
prominently include in bold type the following:
"THIS IS A SECOND REQUEST FOR CONSENT TO A
PROPOSED CONTRACTOR PURSUANT TO SECTION
6.1(e) OF THE LEASE. THE LANDLORD'S
RESPONSE IS REQUIRED TO BE GIVEN NOT LATER
THAN THREE (3) BUSINESS DAYS AFTER RECEIPT
OF THIS SECOND REQUEST OR THE LANDLORD'S
CONSENT TO THE PROPOSED CONTRACTOR WILL BE
DEEMED GIVEN"
and the Landlord shall fail to so notify the Tenant within a further
period of three (3) business days after the Landlord's receipt of
such second notice, in which event the Tenant's sole remedy for the
Landlord's default in so notifying the Tenant shall be that the
contractor with respect to which the Landlord's consent is sought
shall be deemed consented to by the Landlord], and in a manner and
upon terms and conditions and at times, reasonably approved by the
Landlord (it being understood that the performance by the Tenant at
any time during Business Hours of Alterations that have otherwise
been approved by the Landlord, other than Alterations requiring the
performance of work that is not customarily performed during
Business Hours (e.g., core drilling) and Alterations requiring the
performance of work which the Landlord reasonably determines would
unreasonably interfere with the normal conduct of other tenants'
business or with the normal operation of the Building, shall be
deemed to be reasonably approved by the Landlord), and make no
contract for, nor employ, any labor in connection with the
maintenance, cleaning or other servicing of the Premises without
like consent, which consents and approvals shall not be unreasonably
withheld or delayed; notwithstanding anything in this Lease to the
contrary, make all changes (once approved by the Landlord), whether
or not structural and whether or not in the Premises and the
Licensed Spaces, required by any Requirement as a result of any
Alteration; pay as and when the same become due and payable all
charges incurred by Tenant in connection with any Alteration(s) and
pay or reimburse to the Landlord the
Landlord's reasonable out-of-pocket charges payable or paid to
unrelated third parties for making such reviews and inspections as
the Landlord may reasonably deem necessary or desirable in
connection with the consideration of the granting of, and compliance
with, any such consent (provided, however, that the Tenant shall not
be obligated to reimburse the Landlord for any such out-of-pocket
charges incurred in connection with any of Initial Tenant
Alterations to the Office Space which are of a nature or type
ordinarily installed in premises used for executive, clerical,
general and administrative offices or which do not otherwise affect
any beam, girder, column, bearing wall, bearing partition, exterior
wall or other structural element of the Building, or the air
conditioning, ventilating, heating, steam, electric, water or other
system of the Building); if any notice or claim of any lien be given
or filed by or against the Building or the Land for any work, labor
or services performed, or for any materials, products or equipment
used, furnished or manufactured for use, therein or thereon or in
connection with the performance of any Alteration, promptly, but in
all events within thirty (30) days after receiving notice thereof,
discharge or remove the same by payment, bonding or otherwise;
notwithstanding any such consent or approval, not permit the use of
any contractors, workmen, labor, material or equipment in the
performance of any thereof if the use thereof, in the Landlord's
reasonable judgment, will disturb harmony ("Labor Harmony") with any
trade engaged in performing any other work, labor or service in or
about the Building or contribute to any labor dispute; permit no
such work to be undertaken in connection with any Alteration unless
insurance protecting the Tenant and each of the Tenant's
consultants, contractors and subcontractors, and the Indemnitees (as
defined in Section 6.1(j) below), against liability for worker's
compensation and for bodily injuries and death, as well as for
property damage arising our of or in connection with the performance
and completion of such Alteration, shall be procured and maintained
in full force and effect throughout the prosecution thereof, at the
sole cost and expense of the Tenant and/or its consultants,
contractors and subcontractors (all such insurance to be
commercially reasonable as to form, amounts and insurers and
reasonably acceptable to the Landlord) and the Tenant shall furnish
to the Landlord certificates of such insurance prior to the
commencement of such work; and deliver, within thirty (30) days
after completion of any Alteration that is not purely decorative in
nature, as-built plans and specifications of the Premises and the
Licensed Spaces reflecting the Alteration prepared on an Autocad (or
similar compatible) Computer Assisted Drafting and Design ("CADD")
System using naming conventions issued by the American Institute of
Architects ("AIA") in June 1990 (or such other naming convention as
may be adopted) and magnetic computer media of such "as-built"
drawings and specifications, translated into DXF format or other
format selected by the AIA;
(f) not violate, or permit the violation of, any condition imposed
by the standard fire insurance policy issued for office buildings in
the Borough of Manhattan, New York, N. Y., and not do, suffer or
permit anything to be done, or keep, suffer or permit anything to be
kept, in the Premises or any of the Licensed
Spaces, which, in the Landlord's reasonable judgment constitutes a
threat to life, health or safety or materially and adversely affects
the Building, or which would increase the fire or other casualty
insurance rate on the Building or property therein (unless the
Tenant pays the amount of any such increase to the Landlord upon
demand), or which would result in insurance companies of good
standing refusing to insure the Building or any such property in
amounts and against risks as reasonably determined by the Landlord;
(g) upon prior notice to the Tenant, permit the Landlord to show the
Premises (other than secured areas, or live broadcasting areas
during live broadcasting hours) at reasonable times during Business
Hours (as hereinafter defined) to any lessee, or any prospective
purchaser, lessee, mortgagee or assignee of any mortgage or
underlying lease, of the Building and/or the Land or of the
Landlord's interest therein, and their representatives, and during
the 12 months preceding the expiration of this Lease with respect to
any part of the Premises (other than secured areas, or live
broadcasting areas during live broadcasting hours) similarly show
such part to any person contemplating the leasing of all or a
portion of the same;
(h) at the expiration or any earlier termination of this Lease with
respect to any part of the Premises or any part of the Licensed
Spaces, terminate its occupancy and/or use (as applicable) of, and
quit and surrender to the Landlord, such part of the Premises and
such part of the Licensed Spaces broom-clean and without the Tenant
having committed intentional waste therein (except for (1) ordinary
wear and tear, and (2) provided that the Tenant shall pay to the
Landlord all net insurance proceeds received by the Tenant (other
than proceeds of insurance covering the Tenant's personal property,
trade fixtures and other property, if any, which remains the
property of the Tenant and may, or is required to, be removed from
the Premises or any of the Licensed Spaces by the Tenant at the end
of the term of this Lease), and assign to the Landlord the right to
receive all uncollected insurance proceeds payable as a result
thereof, loss or damage by fire or other casualty which shall not
have been occasioned by the fault of any Tenant Party or with
respect to which the Tenant is released from liability pursuant to
Section 9.3); provided, however, that the Tenant shall have no
obligation to restore such part of the Premises or the Licensed
Spaces to the condition existing as of the commencement of the term
of this Lease, or to remove any Alteration to the Premises or the
Licensed Spaces, except (i) as set forth in Section 4.1 above and
(ii) as otherwise specifically set forth in this Lease;
(i) and the Landlord shall, at any time and from time to time upon
not less than twenty (20) days' prior notice from the Landlord or
the Tenant, whichever is the requesting party, execute, acknowledge
and deliver to the requesting party a statement of the
non-requesting party (or if the non-requesting party is a
corporation or a partnership, an appropriate officer or partner, as
the case may be, of such party) 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),
and the dates to which the Rent has been paid in advance, if any,
stating whether or not to the best knowledge of the signer of such
certificate the requesting party is in default in the keeping,
observance or performance of any provision contained in this Lease
and, if so, specifying each such default, and such other information
as the requesting party may reasonably request, it being intended
that any such statement may be relied upon by any landlord under any
underlying lease (as defined in Article Thirteen hereof) or any
lessee or mortgagee, or any prospective purchaser, lessee, mortgagee
or assignee of any underlying mortgage (as defined in
Article Thirteen hereof); provided, however, that neither party
shall have any liability by reason of any such statement made by
such party being untrue (except if such statement was made
negligently or in bad faith), but such statement shall,
nevertheless, serve to estop the party that made the same from
contradicting the contents thereof;
(j) indemnify, and save harmless, the Landlord, and its agents and
partners and its and their respective contractors, licensees,
invitees, servants, officers, directors, agents and employees, any
mortgagee under any underlying mortgage and any landlord under any
of the underlying leases (the "Indemnitees") from and against all
liability (statutory or otherwise), claims, suits, demands, damages,
judgments, costs, interest and expenses (including reasonable
counsel fees and disbursements incurred in the defense thereof) to
which any Indemnitee may (except to the extent arising out of the
negligence of any Indemnitee or willful misconduct of any
Indemnitee) be subject or suffer whether by reason of, or by reason
of any claim for, any injury to, or death of, any person or persons
or damage to property (including any loss of use thereof) or
otherwise arising from or in connection with the (i) use of, or from
any work or thing whatsoever done in, any part of the Premises or at
or from any Licensed Space, the Emergency Access Route or the
Standard Access Easement Area (other than by an Indemnitee) or
(ii) the negligence or wilful misconduct of the Tenant or any Tenant
Party in the Building, during the term of this Lease or during the
period of time, if any, prior to the commencement of such term that
the Tenant may have been given access to such part for the purpose
of doing work or otherwise, or as a result of any Tenant Party
performing any such work or otherwise that subjects any Indemnitee
to any Requirement to which such Indemnitee would not otherwise be
subject, or arising from any condition of the Premises, the Licensed
Spaces, the Emergency Access Route, the Standard Roof Access
Easement Area, the Satellite Transmission System, the Auxiliary
Chiller System or the Emergency Generator System due to, or
resulting from, any default by the Tenant in the keeping, observance
or performance of any provision contained in this Lease or from any
act or negligence of any Tenant Party, provided, however, that
insofar as the foregoing indemnity applies to damage to the
Landlord's property, the same shall be subject to the provisions of
Section 9.3 below; and
(k) maintain, at all times during the term of this Lease and during
any other times the Tenant is granted access to the Premises or the
Licensed Spaces, a policy or policies of commercial general
liability insurance (including, without limitation, insurance of the
Tenant's contractual liability under this Lease and such insurance
as the Landlord reasonably may require with respect to the Emergency
Access Route, the Standard Roof Access Easement Area, the Satellite
Transmission System, the Auxiliary Chiller System and the Emergency
Generator System) with the premiums fully paid on or before the due
date, issued by a reputable insurance company licensed to do
business in the State of New York, having a minimum rating A-/X by
A.M. Best & Company or such other financial rating as the Landlord
may at any time consider appropriate, and reasonably acceptable to
the Landlord. Such insurance shall afford minimum limits as the
Landlord may reasonably designate from time to time, but in no event
less than $3,000,000 per occurrence with a $5,000,000 aggregate in
respect of injury or death to any number of persons and not less
than $3,000,000 for damage to or loss of use of property in any one
occurrence. Each such policy shall provide that it cannot be
cancelled without 30 days' prior notice to the Landlord and shall
name the Indemnitees and such other designees (including, without
limitation, McGraw-Hill with respect to the Emergency Access Route)
as the Landlord may from time to time designate as additional
insureds thereunder. The Tenant shall furnish original certificates
of such insurance to the Landlord prior to the term commencement
date (or any date on which the Tenant is granted earlier access) and
thereafter not more than thirty (30) days after the inception of
each such policy and any renewals or replacements thereof (except
with respect to any assignee or sublessee of the Tenant in which
case such original, renewal or replacement certificates shall be
provided to the Landlord thirty (30) days prior to the term
comencement date or expiration of a prior policy, as the case may
be).
6.2. The provisions of this Section 6.2 shall apply to any proposed Alteration
(including, without limitation, the Initial Tenant Alterations) in any portion
of the Premises or any of the Licensed Spaces for which the prior review and
consent of the Landlord is required pursuant to Section 6.1(e) above and Article
Thirty-one below. All working drawings and specifications, whether preliminary
(as described in Section 6.2(a) below), final (as described in Section 6.2(b)
below) or resubmissions (as described in Section 6.2(c) below) shall be prepared
by a competent architect licensed in the State of New York (in consultation with
a competent engineer licensed in the State of New York where required by the
nature of the work), reasonably acceptable to the Landlord (any such architect
is sometimes referred to herein as an "Acceptable Architect"), who shall be
engaged by the Tenant and who, at the Tenant's expense, shall furnish all
architectural and engineering services necessary for the preparation of said
working drawings and specifications and in connection with securing the
Landlord's consent thereto and with the securing by the Tenant of such approvals
as by reason of the nature of the work shown on said working drawings and
specifications, may be required from the Department of Buildings of the City of
New York and any governmental and quasi-governmental authorities.
(a) If the Tenant desires to perform any proposed Alteration governed by
this Section 6.2, the Tenant shall submit to the Landlord (which
submission requirement shall be satisfied by the Tenant delivering such
submission to Rockefeller Center Management Corporation, 1221 Avenue of
the Americas, New York, New York 10020-1095 Attention: Senior Vice
President - Operations, with a copy to Rockefeller Center Management
Corporation, 1221 Avenue of the Americas, New York, New York 10020-1095
Attention: Secretary) preliminary architectural and mechanical working
drawings and specifications (i.e., working drawings and specifications
which are at least seventy-five percent (75%) complete) for the proposed
Alterations ("Preliminary Drawings"). The Landlord shall notify the Tenant
of any comments that the Landlord may have with respect to such
Preliminary Drawings within ten (10) business days after receipt by such
Senior Vice President - Operations and Secretary of Rockefeller Center
Management Corporation of such submission of Preliminary Drawings, except
that the Landlord shall not be in default of its obligations under this
Section 6.2(a) unless and until the Tenant shall have notified such Senior
Vice President - Operations and Secretary in writing of the Landlord's
failure to so notify the Tenant within such ten (10) business day period,
which notice shall prominently include in bold type the following:
"THIS IS A SECOND REQUEST FOR THE LANDLORD
TO NOTIFY THE TENANT IN ACCORDANCE WITH
SECTION 6.2(a) OF THE LEASE OF ANY
COMMENTS THAT THE LANDLORD MAY HAVE WITH
RESPECT TO PRELIMINARY WORKING DRAWINGS
AND SPECIFICATIONS SUBMITTED BY THE TENANT
RELATING TO A PROPOSED ALTERATION TO BE
PERFORMED BY THE TENANT. THE LANDLORD'S
RESPONSE IS REQUIRED TO BE GIVEN NOT LATER
THAN FIVE (5) DAYS AFTER RECEIPT OF THIS
REQUEST OR THE TENANT SHALL BE ENTITLED TO
EXERCISE THE REMEDIES SET FORTH IN SECTION
6.2(a) OF THE LEASE"
and the Landlord shall fail to so notify the Tenant within a further
period of five (5) days after receipt by such Senior Vice President -
Operations and Secretary of such second request, in which case the
Tenant's sole remedies for the Landlord's default under this Section
6.2(a) shall be that (y) the Tenant shall be entitled to submit the final
working drawings and specifications with respect to the proposed
Alteration immediately or at any time after the occurrence of such default
and (z) the period of five (5) business days provided in Section 6.2(c)
below shall be reduced to three (3) business days and the provisions of
Section 6.2(c) shall be applied accordingly; provided, however, that if
the Landlord shall fail to complete its review of the Preliminary Drawings
and notify the Tenant of its comments with respect thereto within such
periods of ten (10) business days and five (5) days by reason of Force
Majeure or Tenant Delay, then the periods within which the Landlord must
so notify the Tenant shall be automatically extended by the period of such
Force Majeure or Tenant Delay.
(b) After receipt of the Landlord's comments with respect to any
preliminary working drawings and specifications, the Tenant shall submit
to the Landlord (which submission requirement shall be satisfied by the
Tenant delivering such submission to Rockefeller Center Management
Corporation, 1221 Avenue of the Americas, New York, New York 10020-1095
Attention: Senior Vice President - Operations, with a copy to Rockefeller
Center Management Corporation, 1221 Avenue of the Americas, New York, New
York 10020-1095 Attention: Secretary) final working drawings and
specifications (i.e., working drawings and specifications that are one
hundred percent (100%) complete) for the proposed Alteration, which final
working drawings and specifications shall (i) be sufficiently detailed so
as to permit the Landlord to assess such proposed Alteration and whether
the same is consistent with the design, construction and equipment of the
Building and in conformity with the Building's structural elements and
Building systems and in compliance with all Requirements, and (ii)
provided that such comments were timely made, address the Landlord's
comments with respect to the preliminary working drawings and
specifications. If, after the Tenant shall have submitted to such Senior
Vice President - Operations and Secretary of Rockefeller Center Management
Corporation such final working drawings and specifications and all other
information reasonably required by the Landlord to assess any proposed
Alteration, the Landlord shall not consent to such proposed Alteration,
then the Landlord shall so notify the Tenant (which notice shall set forth
with reasonable specificity the reasons for the Landlord's withholding its
consent) within fifteen (15) business days after the Landlord's receipt of
such final working drawings and specifications, except that the Landlord
shall not be in default in the performance of its obligations under this
Section 6.2(b) unless and until the Tenant shall have notified such Senior
Vice President - Operations and Secretary in writing of the Landlord's
failure to so notify the Tenant within such fifteen (15) business day
period, which notice shall prominently include in bold type the following:
"THIS IS A SECOND REQUEST FOR CONSENT TO A
PROPOSED ALTERATION. THE LANDLORD'S
RESPONSE IS REQUIRED TO BE GIVEN NOT LATER
THAN FIVE (5) DAYS AFTER RECEIPT OF THIS
SECOND REQUEST OR THE LANDLORD'S CONSENT
TO THE PROPOSED ALTERATION WILL BE DEEMED
GIVEN"
and the Landlord shall fail to so notify the Tenant within a further
period of five (5) days after receipt by such Senior Vice President -
Operations and Secretary of such second notice, in which event the
Tenant's sole remedy for the Landlord's default under this Section 6.2(b)
shall be that the Alteration with respect to which the Landlord's consent
is sought shall be deemed consented to; provided, however, that if the
Landlord shall fail to so notify the Tenant within such periods of fifteen
(15) business days and five (5) days by reason of Force Majeure or Tenant
Delay, then the periods within which
the Landlord must so notify the Tenant shall be automatically extended by
the period of such Force Majeure or Tenant Delay; it being further
understood that any dispute as to the reasonableness of the Landlord's
withholding of any such consent shall be resolved by the expedited dispute
resolution procedure set forth in Section 25.13 below. All final working
drawings and specifications submitted by the Tenant for the Landlord's
approval pursuant to this Section 6.2(b) shall be accompanied by a
separate written Notice from the Tenant to the Landlord (which Notice
requirement shall be satisfied by the Tenant delivering such written
Notice to Rockefeller Center Management Corporation, 1221 Avenue of the
Americas, New York, New York 10020-1095 Attention: Senior Vice President -
Operations, with a copy to Rockefeller Center Management Corporation, 1221
Avenue of the Americas, New York, New York 10020-1095 Attention:
Secretary), which Notice shall state that the accompanying final working
drawings and specifications are being delivered for the Landlord's
approval and shall prominently set forth in bold type the following:
"UNLESS THE LANDLORD NOTIFIES THE TENANT,
TOGETHER WITH ITS APPROVAL OF THE ATTACHED
FINAL WORKING DRAWINGS AND SPECIFICATIONS,
WHICH OF THE `EXTRAORDINARY FIXTURES'
SHOWN THEREON MUST BE REMOVED PURSUANT TO
SECTION 4.1 OF THE LEASE AT THE END OF THE
TERM OF THE LEASE, THE LANDLORD WILL BE
DEEMED TO HAVE WAIVED THE RIGHT TO REQUIRE
THE TENANT TO REMOVE ANY SUCH
`EXTRAORDINARY FIXTURES'; AND UNLESS THE
LANDLORD NOTIFIES THE TENANT WHICH OF THE
`EXTRAORDINARY FIXTURES' SHOWN THEREON ARE
SALVAGEABLE FIXTURES, THE LANDLORD WILL BE
PRECLUDED FROM DESIGNATING SUCH
`EXTRAORDINARY FIXTURES' AS SALVAGEABLE
FIXTURES."
If the Tenant shall fail to include such a Notice with any submission of
final working drawings and specifications at the time the same are
submitted to the Landlord, the Landlord shall have the right to require
the Tenant to remove any or all of the Extraordinary Fixtures shown on
such working drawings and specifications from the Building, and to
designate any such Extraordinary Fixtures as Salvageable Fixtures, at the
end of the term of this Lease. If the Tenant shall include such a Notice
with its final working drawings and specifications, then (i) the Tenant
shall be required to remove only those Extraordinary Fixtures which the
Landlord notifies the Tenant in the Landlord's approval of such working
drawings and specifications must be removed at the end of the term of this
Lease and (ii) the Landlord shall be precluded from designating as
Salvageable Fixtures any Extraordinary Fixtures which the Landlord fails
to designate as Salvageable Fixtures in the Landlord's approval of such
final working drawings and specifications.
(c) After receipt of any notice from the Landlord that the Landlord does
not consent to any proposed Alteration which is the subject of final
working drawings and specifications submitted to the Landlord in
accordance with Section 6.2(b) above (or resubmitted working drawings and
specifications submitted to the Landlord in accordance with this Section
6.2(c)), the Tenant shall (i) revise such final working drawings and
specifications relative to the aspects of the proposed Alteration to which
the Landlord shall have objected and resubmit such final working drawings
and specifications to the Landlord (which submission requirement shall be
satisfied by the Tenant delivering such submission to Rockefeller Center
Management Corporation, 1221 Avenue of the Americas, New York, New York
10020-1095 Attention: Senior Vice President - Operations, with a copy to
Rockefeller Center Management Corporation, 1221 Avenue of the Americas,
New York, New York 10020-1095 Attention: Secretary). If the Landlord shall
not consent to the proposed Alteration which is the subject of such
resubmitted final working drawings and specifications, then the Landlord
shall so notify the Tenant (which notice shall set forth with reasonable
specificity all of the aspects of the proposed Alteration to which the
Landlord continues to object and the reasons therefor) within five (5)
business days after receipt by such Senior Vice President - Operations and
Secretary of such resubmitted final working drawings and specifications,
except that the Landlord shall not be in default in the performance of its
obligations under this Section 6.2(b) unless and until the Tenant shall
have notified such Senior Vice President - Operations and Secretary in
writing of the Landlord's failure to so notify the Tenant within such
five (5) business day period, which notice shall prominently include in
bold type the following:
"THIS IS A SECOND REQUEST FOR CONSENT TO A
PROPOSED ALTERATION. THE LANDLORD'S
RESPONSE IS REQUIRED TO BE GIVEN NOT LATER
THAN THREE (3) BUSINESS DAYS AFTER RECEIPT
OF THIS SECOND REQUEST OR THE LANDLORD'S
CONSENT TO THE PROPOSED ALTERATION WILL BE
DEEMED GIVEN"
and the Landlord shall fail to so notify the Tenant within a further
period of three (3) business days after receipt by such Senior Vice
President - Operations and Secretary of such second request, in which
event the Tenant's sole remedy for the Landlord's default under this
Section 6.2(b) shall be that the Alteration with respect to which the
Landlord's consent is sought shall be deemed consented to; provided,
however, that if the Landlord shall fail to so notify the Tenant within
such period of five (5) business days and three (3) business days by
reason of Force Majeure or Tenant Delay, then the periods within which the
Landlord must so notify the Tenant shall be automatically extended by the
period of such Force Majeure or Tenant Delay; it being further understood
that any dispute as to the reasonableness of the Landlord's withholding of
any such consent shall be resolved by the expedited dispute resolution
procedure set forth in Section 25.13 below.
(d) Working drawings and specifications for each proposed Alteration, as
finally consented, or deemed consented to pursuant to Section 6.2(b) or
Section 6.2(c) above, are herein called "Working Drawings."
ARTICLE SEVEN
(7.)Assignment, Mortgaging, Subletting, etc.
7.1. Except as otherwise permitted in this Article Seven, the Tenant
covenants, for the Tenant and its successors, assigns and legal representatives,
that, without the prior written consent of the Landlord in each instance,
neither this Lease nor the term and estate hereby granted, nor any part hereof
or thereof, nor any of the licenses hereby granted will be assigned, mortgaged,
pledged, encumbered or otherwise transferred (it being agreed that (y) issuance
by the Tenant of stock and/or the transfer of already-issued stock/partnership
interests, in one or more transactions so as to (i) transfer (directly or
indirectly) control of the Tenant or (ii) transfer 50% or more of an interest in
the Tenant, other than through over-the-counter or national securities exchange
transactions, or (z) sale or transfer of 25% or more of the assets of the Tenant
in one or more transactions, other than in the ordinary course of business,
shall, in any of the events described in the foregoing clauses (y) and (z), be
deemed an assignment of this Lease), and that neither the Premises nor the
Licensed Spaces, nor any part of the Premises or any of the Licensed Spaces,
will be encumbered in any manner by reason of any act or omission on the part of
the Tenant, or will be used or occupied, or permitted to be used or occupied, or
utilized for desk space, for mailing privileges or as a concession, by anyone
other than the Tenant; provided, however, that (a) an assignment or transfer of
this Lease and the term and estate hereby granted, together with the licenses
hereby granted, to any corporation or other entity into which the Tenant is
merged or with which the Tenant is consolidated (such corporation or other
entity being hereinafter in this Article called the "Assignee") without the
prior consent of the Landlord shall not be deemed to be prohibited hereby if,
and upon the express conditions that, (i) the primary purpose for such merger or
consolidation is other than the transfer of this Lease, (ii) the surviving
entity has a net worth at least equal to that of the Tenant's on the date hereof
or the date of merger or consolidation, whichever is greater, and (iii) within
thirty (30) days following the merger or consolidation, the Assignee shall have
executed and delivered to the Landlord an agreement in form and substance
reasonably satisfactory to the Landlord whereby the Assignee shall agree to be
personally bound by and upon all the provisions set forth in this Lease on the
part of the Tenant to be kept, observed or performed, and whereby the Assignee
shall expressly agree that the provisions of this Article shall, notwithstanding
such assignment or transfer, continue to be binding upon it with respect to all
future assignments and transfers, and (b) the Landlord will consent to the
Tenant assigning, subletting or otherwise permitting the Premises to be used and
occupied for the purposes specified in, and subject to the provisions of, this
Lease, by any subsidiary or affiliate of the Tenant, but only for so long as the
occupant remains a subsidiary or affiliate of the Tenant, provided that (i) the
Tenant provides reasonable evidence of the relationship of the subsidiary or
affiliate to the Tenant, (ii) in the Landlord's reasonable judgment the
subsidiary or affiliate
is of a character and engaged in a business such as in keeping with the
standards in those respects for the Building and its occupancy and (iii) it
being understood that an entity shall only be a subsidiary of the Tenant if the
Tenant owns, directly or indirectly, more than 50% of the stock, partnership or
other ownership interests in the entity, and shall only be an affiliate of the
Tenant if under common ownership, that is, direct or indirect ownership by an
entity holding more than 50% of the stock, partnership or other ownership
interests in both the Tenant and such affiliate.
7.2.1. Subject to Section 7.1 above, the Tenant covenants, for the Tenant
and its successors, assigns and legal representatives, that neither the Premises
nor any part thereof, will be sublet, and that neither the Licensed Spaces nor
any part thereof, will be sublicensed, without the prior written consent of the
Landlord in each instance. The Landlord will not unreasonably withhold or delay
its consent to any proposed subletting of the Premises on the terms and
conditions set forth in a notice (a "Tenant's Notice") thereof from the Tenant
to the Landlord (it being understood that any dispute as to the reasonableness
of the Landlord's withholding of any such consent to a proposed subletting shall
be resolved by the expedited dispute resolution procedure set forth in Section
25.13 below); provided, however, that the Landlord shall not in any event be
obligated to consent to any such proposed subletting unless:
(a) the sublessee under any such subletting shall be such person,
firm or corporation as in the Landlord's reasonable judgment is of a
character and engaged in a business such as is in keeping with the
standards in those respects for the Building and its occupancy and
shall not be (i) a government or a governmental authority or a
subdivision or an agency of any government or any governmental
authority or (ii) a tenant, subtenant or occupant in the Building if
the Landlord then has, or will have within the next three (3)
months, space available in the Building with a comparable amount of
floor area for a comparable term as the floor area and the term set
forth in the Tenant's notice to the Landlord regarding such proposed
subletting;
(b) the Tenant, for itself and for all other Tenant Parties, shall
agree in writing (i) not to advertise, and to keep confidential, the
economic terms of any proposed sublease, (ii) not to disclose, and
to keep confidential, all such economic terms with respect to an
executed sublease and (iii) to use reasonable efforts to require the
sublessee and all real estate broker(s), if any, to agree in writing
to the foregoing provisions of this Section 7.2.1(b);
(c) after the demising of the premises to be sublet, the remaining
portion of the Office Space on the floor on which the sublet
premises are located will constitute, in the Landlord's reasonable
judgment, one or more commercially reasonable rental units;
(d) such subletting would not result in any floor of the Office
Space being occupied by more than four (4) tenants (including the
Tenant);
(e) the Tenant and the sublessee shall agree in writing that the
sublessee will not, without the prior consent of the Landlord (which
consent Landlord shall not unreasonably withhold or delay) assign
the sublease or under-sublet the space so sublet or any part
thereof; and
(f) such consent shall be evidenced by the delivery of, and shall be
subject to the covenants, agreements, terms, provisions and
conditions of, a "Consent to Sublease" duly executed by the
Landlord, the Tenant and the sublessee (in substantially the form
annexed hereto as Exhibit C), for which the Tenant shall pay to the
Landlord a reasonable processing charge (not to exceed $500 in each
instance).
Anything in this Lease to the contrary notwithstanding, the Landlord shall not
in any event be obligated to consent to (x) any proposed subletting of the
Basement Space, (y) any proposed subletting that includes a sublicense of a
portion of the Penthouse Roof Space or (z) any proposed sublicensing of the
Licensed Spaces, unless such space is sublet or sublicensed, as applicable, to a
party which contemporaneously sublets, pursuant to this Article Seven, at least
twenty-five percent (25%) of the rentable square foot area on one (1) floor of
the Office Space.
7.2.2. If the Tenant proposes to sublease all or any part of the Premises, the
Tenant shall deliver a Tenant's Notice setting forth (a) the name of the
proposed sublessee, (b) such information regarding the proposed sublessee as
shall be in the Tenant's possession, (c) the space(s) proposed to be sublet to
the proposed sublessee (including any space(s) with respect to which the Tenant
proposes to grant such proposed sublessee an expansion option or right), and
(d) the material terms and conditions of the proposed subletting.
Notwithstanding anything in Section 7.2.1 above or this Section 7.2.2 to the
contrary, if, after the Landlord shall have received all of the information
regarding a proposed sublessee and sublease required to be delivered to the
Landlord pursuant to Section 7.2.1 and this Section 7.2.2, the Landlord shall
not consent to such proposed sublease, then the Landlord shall so notify the
Tenant (which notice shall set forth with reasonable specificity the reason(s)
for the Landlord's withholding its consent) within fifteen (15) business days
after the Landlord's receipt of the last of such information, except that the
Landlord shall not be in default in the performance of its obligations under
this Section 7.2.2 unless and until the Tenant shall have notified the Landlord
in writing (which Notice requirement shall be satisfied by the Tenant delivering
such written Notice to Rockefeller Center Management Corporation, 1221 Avenue of
the Americas, New York, New York 10020-1095 Attention: Senior Vice President -
Marketing, with a copy to Rockefeller Center Management Corporation, 1221 Avenue
of the Americas, New York, New York 10020-1095 Attention: Secretary) of the
Landlord's failure to so notify the Tenant within the applicable period referred
to above, which notice shall prominently include in bold type the following:
"THIS IS A SECOND REQUEST FOR CONSENT TO A
PROPOSED SUBLEASE UNDER SECTION 7.2.2 OF
THE LEASE. THE LANDLORD'S RESPONSE IS
REQUIRED TO BE GIVEN NOT LATER THAN THREE
(3)
BUSINESS DAYS AFTER RECEIPT OF THIS
REQUEST OR THE LANDLORD'S CONSENT TO THE
PROPOSED SUBLEASE WILL BE DEEMED GIVEN"
and the Landlord shall have failed to so notify the Tenant within a further
period of three (3) business days after receipt of such notice by such Senior
Vice President - Marketing and Secretary in which event the Tenant's sole remedy
for the Landlord's default under this Section 7.2.2 shall be that the proposed
sublease with respect to which the Landlord's consent is sought shall be deemed
consented to by the Landlord; provided, however, if the Landlord is deemed to
have consented to a proposed sublease, the Tenant and the sublessee thereunder
shall nevertheless be obligated to comply with the provisions of Section 7.2.3
below. Any reference in this Lease to subleases to which the Landlord shall have
consented (or similar reference) shall be understood to include any subleases to
which the Landlord shall be deemed to have consented under this Section 7.2.2.
7.2.3. All of the covenants, agreements, terms, provisions and conditions
of any such "Consent to Sublease" so executed by the Landlord, the Tenant and
the sublessee shall be deemed to be covenants, agreements, terms, provisions and
conditions of this Lease and the violation by the Tenant or the sublessee of any
covenant, agreement, term, provision or condition of such "Consent to Sublease"
shall entitle the Landlord to all the rights and remedies provided for in this
Lease or by law in the case of any violation of a covenant, agreement, term,
provision or condition of this Lease, subject to any applicable notice and cure
periods provided for in this Lease.
7.2.4. If the aggregate amounts payable as rent (including as rent,
without limitation, all amounts payable on account of changes in Real Estate
Taxes, operating costs, maintenance costs, labor rates, indexes or other formula
contained in the sublease; collectively "Sublease Rent") with respect to any
period during which there shall be in effect a sublease of any part of the
Premises made by the Tenant, shall be in excess of the Tenant's Basic Cost (as
hereinafter defined) for such part of the Premises, then, promptly after the
collection by the Tenant of the Sublease Rent payable under such sublease, the
Tenant will pay to the Landlord, as additional rent hereunder, an amount equal
to the Sublease Profit Percentage (as hereinafter defined) of the excess (if
any) of such Sublease Rent so collected over the Tenant's Basic Cost for such
part of the Premises through the date of such collection (with respect to any
such sublease, such excess amount is sometimes referred to herein as "Sublease
Profits"); provided, however, that any excess of Tenant's Basic Costs over any
Sublease Rent shall be carried forward and applied against the next Sublease
Rent collected. The term "Tenant's Basic Cost," as used herein with respect to
any period for which any part of the Premises is sublet, shall mean the sum of
(i) the amount payable by the Tenant to the Landlord as fixed rent at the
Applicable Rental Rate (as hereinafter defined) for such period with respect to
such part of the Premises, (ii) the amount payable by the Tenant to the Landlord
for such period with respect to such part of the Premises pursuant to Article
Twenty-four hereof, (iii) the amount of any reasonable brokerage commissions,
reasonable takeover obligations and reasonable legal fees paid by the Tenant to
unaffiliated third parties and not reimbursed by the subtenant or the Landlord,
to the extent not previously applied against collections of Sublease Rent,
(iv) the amount, if any, of any reasonable costs incurred by the Tenant in
making changes in the layout and finish of such part
of the Premises at the request of the subtenant and paid by the Tenant to
unaffiliated third parties, or reasonable subtenant work allowances in lieu
thereof, but only to the extent that such costs are not reimbursed by such
subtenant or the Landlord, to the extent not previously applied against
collections of Sublease Rent, (v) the amount, if any, payable by the Tenant to
the Landlord in connection with the Landlord's review and consent to such
sublease, but only to the extent that such costs are not reimbursed by such
subtenant or the Landlord, to the extent not previously applied against
collections of Sublease Rent and (vi) the amount of any reasonable rent
abatement (i.e., any so-called "free rent") provided by the Tenant to such
subtenant to the extent not previously applied against collections of Sublease
Rent. The term "Applicable Rental Rate" as used in this Article shall be deemed
to mean, with respect to each space constituting a part of the Premises, an
amount equal to (Y) the then applicable fixed rent per annum per rentable square
foot, of such space set forth in Section 1.4 above and (Z) $7.11 per annum per
rentable square foot; or, if the term of this Lease is extended and renewed
pursuant to Article Thirty-two below, the term "Applicable Rental Rate" during
each Renewal Term (as defined in Section 32.2 below) shall be deemed to mean,
with respect to each space constituting a part of the Premises, the applicable
fixed rent per annum per rentable square foot of such space payable during such
Renewal Term. Anything in this Section 7.2.4 to the contrary notwithstanding,
the Tenant shall not be obligated to pay to the Landlord the Sublease Profits,
if any, which are received by the Tenant in respect of any period prior to the
seventh (7th) anniversary of the term commencement date for the subletting of up
to an aggregate of 25,000 rentable square feet of the 37th Floor Space;
provided, however, that, if the Tenant shall receive any such Sublease Profits
with respect to subleases of the 37th Floor Space covering in excess of 25,000
rentable square feet, for the purposes of determining which Sublease Profits are
covered by the preceding provisions of this sentence, the rentable square foot
area covered by such subleases and the Sublease Profits derived therefrom shall
be treated on a "first in, first out" basis. The term "Sublease Profit
Percentage," as used herein, shall mean (a) fifty percent (50%), with respect to
subleases of the Office Space in effect at the time in question covering, in the
aggregate, up to and including fifty percent (50%) of the rentable square foot
area of the Office Space, and (b) 75%, with respect to any sublease(s) in effect
at the time in question covering any portion of the Office Space in excess of
fifty percent (50%) of the rentable square foot area of the Office Space.
7.2.5. If the Tenant has sublet the Premises or any part thereof, the
Tenant shall deliver to the Landlord a statement within 60 days after the end of
each calendar year in which any part of the term of this Lease occurs specifying
as to such calendar year, and within 60 days after the expiration or earlier
termination of the term of this Lease specifying with respect to the elapsed
portion of the calendar year in which such expiration or termination occurs
(a) each sublease in effect during the period covered by such statement and as
to each sublease a computation in reasonable detail showing whether or not
anything is payable by the Tenant to the Landlord pursuant to this Article Seven
with respect to such sublease for the period covered by such statement; and
(b) whether or not anything is payable by the Tenant to the Landlord pursuant to
this Article Seven with respect to any payments received from a sublessee during
such period but which relate to an earlier period and showing in reasonable
detail the computation of the amount so payable.
7.2.6. Each sublease of the Premises or a portion thereof shall be subject
and subordinate to this Lease and the rights of the Landlord under this Lease;
provided, however, that, upon receipt of a written request therefor from the
Tenant prior to the commencement of any sublease (a) to which the Landlord has
consented under Section 7.2.1 above, (b) the term of which is not less than
three (3) years or such lesser period as shall then constitute all or
substantially all of the balance of the term of this Lease, and (c) which covers
at least one (1) full floor of the Premises, the Landlord shall enter into a
subordination, non-disturbance and attornment agreement in the form attached
hereto as Exhibit E-5 with the subtenant under such sublease. Any violation of
any provision of this Lease, whether by act or omission, by any sublessee shall
be deemed a violation of such provision by the Tenant, it being the intention of
the parties that the Tenant shall assume and be liable to the Landlord for any
and all acts and omissions of all sublessees if such act or omission, if made by
the Tenant, would be a violation of any provision of this Lease. No sublease
shall provide for a term which extends beyond the day prior to the then
expiration date of this Lease. In the event of the Tenant's default in the
payment of any fixed rent and/or additional rent under this Lease beyond any
applicable period of grace, the Landlord may collect rent from any sublessee so
long as such default shall continue, and the Landlord may apply the same to the
curing of any such default under this Lease in any order of priority the
Landlord may select, any unapplied balance thereof to be applied by the Landlord
against subsequent installments of Rent, but the Landlord's collection of rent
from a sublessee shall not constitute a recognition by the Landlord of
attornment by such sublessee nor a waiver by the Landlord of any default by the
Tenant.
7.3. The Landlord will, at the request of the Tenant, maintain listings on
the Building directory of the names of the Tenant and the names of any officers
or employees of the Tenant and other permitted occupants (including Office Space
Occupants (as defined in Section 7.5 below)); provided, however, that the number
of names so listed shall be in the same proportion to the capacity of the
building directory as the aggregate number of square feet of rentable area of
the Office Space is to the aggregate number of square feet of rentable area of
the Building. Without implying any right to do so, the listing of any name other
than that of the Tenant, whether on the doors or windows of the Premises, on the
Building directory, or otherwise, shall not, in and of itself, operate to vest
any right or interest in this Lease or in the Premises or be deemed to be the
consent of the Landlord referred to in Section 7.1 or Section 7.2.1 above.
7.4. Without in any way suggesting permission for the Tenant to assign the
Lease, if the Lease is nonetheless assigned by the order of a court or otherwise
but not as permitted by Section 7.1 above, the Tenant shall pay to the Landlord
50% of any consideration received by the Tenant for the assignment, net of
brokerage commissions and legal fees incurred by the Tenant and paid to
unaffiliated third parties in connection therewith and not reimbursed by the
assignee. The amounts to be paid to the Landlord under this Section shall be
deemed to be deferred rent payable only out of amounts collected by the Tenant
in connection with an assignment and shall be deemed forgiven if no assignment
occurs.
7.5. The Tenant may, without the Landlord's consent, but upon not less
than ten (10) days' prior notice to the Landlord, permit any individuals who are
employees of business partners of the Tenant (collectively, "Office Space
Occupants") to occupy offices within the Office Premises, if, and upon the
express conditions that (a) each Office Space Occupant shall
be of good reputation and engaged in an activity which (i) relates to the
production of the Tenant's broadcast programming, (ii) is in keeping with the
standards of the Building and (iii) is a Permitted Use, (b) the offices occupied
by such Office Space Occupants shall not constitute, in the aggregate, more than
twenty percent (20%) of the rentable square foot area of the Office Premises,
(c) each such office shall be part of, and not separately demised from, the
remainder of the Office Premises occupied by the Tenant, (d) no Office Space
Occupant shall be permitted to have a separate entrance to the Office Premises
and (e) no Office Space Occupant shall be permitted to have any signage outside
of the Office Premises. Each such occupancy shall be subject and subordinate to
this Lease and to the matters to which this Lease is or shall be subordinate,
and, in the event of termination, re-entry or dispossess by the Landlord under
this Lease, such occupancy shall immediately terminate. Occupancy by an Office
Space Occupant shall not be deemed to vest in such Office Space Occupant any
right or interest in this Lease or the Premises, nor shall it relieve, release,
impair or discharge any of the Tenant's obligations hereunder. Each notice of an
Office Space Occupant required pursuant to this Section 7.5 shall include (y)
the name(s) and the nature of the business or occupation of such Office Space
Occupant and (z) the terms of such Office Space Occupant's occupancy. Each such
occupancy shall be terminable on not more than thirty (30) days notice (which
right of termination the Tenant shall exercise upon reasonable demand of the
Landlord).
7.6. The Tenant has advised the Landlord that, in order for the Tenant to
enjoy the Benefit (as defined in Section 3.7.1. below) consisting of sales and
use tax exemptions on materials to be incorporated into Alterations made to the
Premises, it is necessary for the Tenant to sublet the Premises to the IDA (as
defined in Section 3.7.1. below) and to sub-sublet the Premises back from the
IDA. In connection therewith, the Tenant has requested that the Landlord
cooperate with the Tenant by (a) consenting to a sublease of the Premises from
the Tenant to the IDA (the "Tenant/IDA Sublease") and (b) consenting to a
sub-sublease of the Premises back from the IDA to the Tenant (the "IDA/Tenant
Sub-Sublease"; and, together with the Tenant/IDA Sublease, collectively, the
"IDA Subleases"). Anything in this Lease to the contrary notwithstanding, the
Landlord hereby consents to the Tenant entering into the IDA Subleases; provided
and upon the express conditions that, upon any termination of the IDA/Tenant
Sub-Sublease, the Tenant/IDA Sublease shall immediately and without further act
be deemed to have terminated, and in no event shall the IDA ever be permitted
(i) to occupy the Premises or any portion thereof or (ii) to assign this Lease
or further sublet the Premises or any portion thereof to any person or entity
(other than to the Tenant and/or a subsidiary or affiliate of the Tenant as
contemplated by the IDA Transaction). In addition, each IDA Sublease shall (y)
expressly specify and provide that (and the consent of the Landlord contained
herein is expressly conditioned upon) such sublease and sub-sublease are subject
and subordinate to this Lease and the matters to which this Lease is subject and
subordinate, and (z) have a scheduled expiration date no later than one day
prior to the scheduled expiration date of this Lease and shall terminate
automatically upon any earlier termination of this Lease. The Tenant shall,
within thirty (30) days of entering into the IDA Subleases provide the Landlord
with written notice of the date of the IDA Subleases, the commencement and
expiration dates of the term thereof and the portions of the Premises affected
thereby. In addition, to the extent not prohibited by the express provisions of
the IDA Subleases, the Tenant shall also provide the Landlord with true and
correct copies of same within such thirty (30) day period. Any sublease pursuant
to this Section 7.6 shall be entered into solely for the purposes of
implementing a
tax/economic incentive package for the Tenant. No IDA Sublease (A) shall release
the Tenant from any liability or obligation of the Tenant under this Lease or
any supplemental indenture or other amendment or modification hereto and (B)
shall impose any additional obligation or liability on the Landlord, for which
the Landlord is not otherwise indemnified from, or reimbursed for by, the Tenant
under this Lease.
ARTICLE EIGHT
(8.)Changes or Alterations by Landlord
8.1. The Landlord reserves the right, upon prior notice to the Tenant in
accordance with Section 6.1(c) above, to make such changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Premises) and the fixtures and equipment thereof, as well as in
or to the street entrances, halls, passages, elevators, escalators and stairways
and other parts of the Building, and to erect, maintain and use pipes, ducts and
conduits in and through the Premises, all as it may reasonably deem necessary or
desirable; provided that the exercise of such rights shall not result in an
unreasonable obstruction of the means of access to the Premises or unreasonable
interference with the use of the Premises and provided, further, that no such
change, alteration, addition, improvement, repair or replacement shall be made
in the Premises (a) below the hung ceiling of the Premises, (b) above the hung
ceiling of the Premises in any area designated as "sensitive" by the Tenant,
unless (i) there is, in Landlord's reasonable judgment, no practical alternative
that would not increase (except in a de minimis amount) the Landlord's cost of
making such change, alteration, addition, improvement, repair or replacement or
(ii) there is a practical alternative, but the same will increase the cost of
making such change, alteration, addition, improvement, repair or replacement and
the Tenant shall elect not to pay any such increased cost or (c) which would
reduce the floor area of the Premises (except to a de minimis extent), except,
in each case, with the prior consent of the Tenant, and except for any such
change, alteration, addition, improvement, repair or replacement which is
required in order to comply with any applicable Requirement, and, in the case of
any change, alteration, addition, improvement, repair or replacement made with
the consent of Tenant or required in order to comply with any Requirement that
permanently reduces the floor area of the Premises (more than a de minimis
amount), the fixed rent shall be reduced proportionally to reflect such
reduction. Upon the completion of any such work, the Landlord shall, with
reasonable promptness, restore the areas of the Premises affected by such work
as nearly as is reasonably possible to the condition they were in immediately
prior to the commencement of such work. Nothing in this Section or in
Article Six shall be deemed to relieve the Tenant of any duty, obligation or
liability to make any repair, replacement or improvement or comply with any
Requirement.
8.2. The Landlord reserves the right to change the name or address of the
Building at any time. Neither this Lease nor any use by the Tenant shall give
the Tenant any right or easement to the use of any door or any passage
connecting the Building with any subway or any other building or to the use of
any public conveniences, and the use of such doors, passages and conveniences
may be regulated or discontinued at any time by the Landlord, provided that the
Tenant shall have reasonable access to the Premises at all times.
8.3. The Landlord will, subject to, and except as otherwise provided in,
the other covenants, agreements, terms, provisions and conditions of this Lease,
with reasonable dispatch and in a manner and at such times as shall not
unreasonably interfere with the use of the Premises nor unreasonably obstruct
the means of access to the Premises, make as and when required, all repairs,
structural or otherwise, interior or exterior to the Building (but excluding
anything which constitutes subdivision, layout and finish of spaces in the
Building rented to, or available for renting to, tenants) as may be necessary to
restore the same to a state of good working order, condition and repair and to a
standard in keeping with the reputation of the Building as a first-class office
building located in midtown Manhattan.
ARTICLE NINE
(9.)Damage by Fire, etc.
9.1. If any part of the Premises shall be damaged by fire or other perils,
the Tenant shall give prompt notice thereof to the Landlord; and the Landlord
shall proceed with reasonable diligence, subject to adjustment and collection of
any insurance proceeds and the provisions of any Qualified Encumbrance, to
repair such damage to the extent required by this Article Nine, at the
Landlord's expense. If any part of the Premises shall be rendered untenantable
by reason of such damage (including untenantability due to lack of access
thereto), the annual fixed rent payable under this Lease, to the extent that
such fixed rent relates to such part of the Premises, and subject to the
provisions of Section 24.4 hereof, shall be abated for the period from the date
of such damage until such time as the Landlord shall complete the repairs
required by this Article Nine; provided that such abatement shall be made only
to the extent that it is in excess of the annual rate of any existing abatement
of fixed rent under Section 20.6 or under Section 30.3 below. The Landlord shall
not be liable for any inconvenience or annoyance to the Tenant or injury to the
business of the Tenant resulting in any way from such damage or the repair
thereof, provided, however, that, to the extent reasonably practicable, the
Landlord will use reasonable efforts to attempt to minimize any such
inconvenience or annoyance. The Tenant understands that the Landlord will not
carry insurance of any kind on (a) the Tenant's goods, furniture or furnishings,
(b) on any Fixtures removable by the Tenant as provided in this Lease, (c) on
Tenant improvements or betterments or (d) on any property in the care, custody
and control of the Tenant, and that the Landlord shall not be obligated to
repair any damage thereto or replace the same; it being understood that,
notwithstanding anything set forth in this Article Nine or elsewhere in this
Lease to the contrary, the Landlord's repair obligation under this Article Nine
shall be limited to such repairs as are required to restore the Premises to
"core and shell condition" with reasonable access thereto.
9.2. If substantial alteration or reconstruction of the Building (i.e., if
the estimated cost of alteration and reconstruction equals or exceeds
thirty-three percent (33%) of the replacement cost of the Building immediately
prior to such damage) shall, in the reasonable determination of the Landlord
(which determination, if requested by the Tenant, shall be verified by an
independent architect or engineer selected by the Landlord and reasonably
acceptable to the Tenant, the cost of which shall be paid by the Tenant unless
the Landlord's determination is not found to be substantially correct), be
required as a result of damage by fire or other perils affecting thirty-three
percent (33%) or more of the rentable area of the Building
(whether or not the Premises shall have been damaged by such fire or other
casualty), then this Lease and the term and estate hereby granted may be
terminated by the Landlord by a notice, given within sixty (60) days of such
damage specifying a date for such termination; provided, however, that the
Landlord shall not so terminate this Lease and the term and estate hereby
granted unless the Landlord shall terminate leases (including this Lease)
covering not less than fifty percent (50%) of the rentable area of the Building.
In addition, if a substantial part of the Premises is rendered untenantable as a
result of such damage by fire or other peril, within sixty (60) days after the
occurrence of such damage Landlord shall make a reasonable determination (which
determination, if requested by the Tenant, shall be verified by an independent
architect or engineer selected by the Landlord and reasonably acceptable to the
Tenant, the cost of which shall be paid by the Tenant unless the Landlord's
determination is not found to be substantially correct) of the estimated date by
which such portion of the Premises can be made tenantable. If it is finally
determined by the Landlord or pursuant to the verification procedure set forth
above that such part of the Premises cannot be made tenantable within a period
of one (1) year after the occurrence of such fire or other peril, then the
Landlord shall notify the Tenant of the same within sixty (60) days of such
damage and this Lease and the term and estate hereby granted may be terminated
by the Landlord or the Tenant by a notice specifying a date, not less than
ninety (90) days after such final determination. In the event of the giving of
notice of termination, this Lease and the term and estate hereby granted shall
expire as of the date specified in such notice with the same effect as if such
date were the date initially specified in this Lease as the expiration date, and
the fixed rent payable under this Lease shall be apportioned as of such date of
termination, subject to abatement, if any, as and to the extent above provided.
In addition, if the repairs required to be made by the Landlord under this
Article Nine are not substantially completed by the Landlord within twelve (12)
months after the occurrence of such fire or other peril (as such
twelve (12) month period shall be extended by delays caused by events of Force
Majeure), then this Lease and the term and estate hereby granted may be
terminated by the Tenant by the Tenant's giving to the Landlord, within sixty
(60) days after the end of such twelve (12) month period (as such twelve (12)
month period shall be extended by delays caused by events of Force Majeure;
provided that no such extension due to delays caused by events of Force Majeure
shall exceed ninety (90) days), notice specifying a date, not more than
ninety (90) days after the giving of such notice, for such termination, in which
case the provisions previously stated in this Section 9.2 governing a
termination of this Lease shall apply; provided, however, that if the Tenant
shall not exercise such termination right within such sixty (60) day period, the
Tenant's right to terminate this Lease shall be postponed for successive periods
of sixty (60) days, and if such repairs are not substantially completed within
any such period of sixty (60) days, then this Lease and the term and estate
hereby granted may be terminated by the Tenant by its giving to the Landlord,
within thirty (30) days after the end of such sixty (60) day period (as such
sixty (60) day period may be extended by any delays caused by events of Force
Majeure), notice specifying a date, not more than ninety (90) days after the
giving of such notice, for such termination, in which case the provision
previously stated in this Section 9.2 governing a termination of this Lease
shall apply.
9.3. Nothing in this Lease shall relieve the Tenant from any liability to
the Landlord or to its insurers in connection with any damage to the Premises or
the Building by fire or other peril if the Tenant shall be legally liable in
such respect, except that the Landlord and the
Tenant hereby release each other with respect to any liability which the
released party might otherwise have to the releasing party for any damage to the
Building or the Premises or the contents thereof by fire or other peril
occurring during the term of this Lease to the extent of the proceeds received
under a policy or policies of insurance permitting such release. Each party will
use best efforts to cause its property and/or other applicable insurance policy
to include a provision permitting such a release of liability; provided, that if
such a provision is (a) not obtainable from such insurer, the insured party
shall use reasonable efforts to cause the other party to be added as an
additional insured on such policy, provided, however, that if there is an
additional expense therefor, the insured party shall so notify the other party
and, unless the other party pays such additional expense within ten (10) days
thereafter, the insured party's release provided for above in this Section 9.3
shall be of no further force or effect until such time as the other party pays
such additional expense or the insured party's insurance carrier notifies the
insured party that no additional cost is required under the policy in question,
or (b) obtainable from such insurer only at an additional expense, the insured
party shall notify the other party and, unless the other party pays such
additional expense within ten (10) days thereafter, the insured party shall
thereafter be free of its waiver of subrogation so long as an additional cost is
required under the policy in question.
9.4. This Lease shall be considered an express agreement governing any
case of damage to or destruction of, or any part of, the Building or the
Premises by fire or other peril, and Section 227 of the Real Property Law of the
State of New York providing for such a contingency in the absence of express
agreement, and any other law of like import now or hereafter in force, shall
have no application in such case.
ARTICLE TEN
(10.)Condemnation
10.1. If all of the Premises shall be lawfully condemned or taken in any
manner for any public or quasi-public use, this Lease and the term and estate
hereby granted shall forthwith cease and terminate as of the date of vesting of
title in such condemnation or taking. If only a part of the Premises shall be so
condemned or taken, then the term and estate hereby granted with respect to such
part of the Premises shall forthwith cease and terminate as of the date of
vesting of title in such condemnation or taking and the annual fixed rent
payable under this Lease, to the extent that such fixed rent relates to such
part of the Premises, shall be abated for the period from the date of such
vesting of title to the date specified in this Lease for the expiration of the
full term of this Lease with respect to such part of the Premises, but only to
the extent that such abatement is in excess of the annual rate of any other
existing abatement of fixed rent under Section 20.6 or under Section 30.3 below.
If only a part of the Building shall be so condemned or taken, then (a) if
substantial alteration or reconstruction of the Building or the Premises shall,
in the opinion of the Landlord, be necessary or desirable as a result of such
condemnation or taking, this Lease and the term and estate hereby granted may be
terminated by the Landlord within ninety (90) days following the date on which
the Landlord shall have received notice of such vesting of title, by a notice to
the Tenant specifying a date, not less than ninety (90) days after the
Landlord's notice, for such termination, or (b) if such condemnation or taking
shall be of a substantial part of the Premises or of a substantial
part of the means of access thereto, this Lease and the term and estate hereby
granted may be terminated by the Tenant, within ninety (90) days following the
date upon which the Tenant shall have received notice of such vesting of title,
by a notice to the Landlord specifying a date, not less than ninety (90) days
after the Tenant's notice, for such termination, or (c) if neither the Landlord
nor the Tenant elects to terminate this Lease, this Lease shall not be affected
by such condemnation or taking, except that this Lease and the term and estate
hereby granted with respect to the part of the Premises so condemned or taken
shall expire on the date of the vesting of title to such part and except that
the fixed rent payable under this Lease shall be abated to the extent, if any,
hereinabove provided in this Article. If only a part of the Premises shall be so
condemned or taken and this Lease and the term and estate hereby granted with
respect to the remaining portion of the Premises are not terminated, the
Landlord will proceed with reasonable diligence, subject to the provisions of
any Qualified Encumbrance and without requiring the Landlord to expend more than
it collects as an award therefor, to restore the remaining portion of the
Premises as nearly as practicable to the same condition as it was in prior to
such condemntion or taking.
10.2. The termination of this Lease and the term and estate hereby granted
in any of the cases specified in this Article shall be with the same effect as
if the date of such termination were the date originally specified for the
expiration of the full term of this Lease, and the fixed rent payable under this
Lease shall be apportioned as of such date of termination.
10.3. If there is any condemnation or taking of all or a part of the
Building, the Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate
vested by this Lease in the Tenant, and the Tenant hereby expressly assigns to
the Landlord any and all right, title and interest of the Tenant now or
hereafter arising in or to any such award or any part thereof, and the Tenant
shall be entitled to receive no part of such award; provided, that the Tenant
shall not be precluded from intervening for the Tenant's own interest in any
such condemnation proceeding to claim or receive from the condemning authority
any compensation to which the Tenant may otherwise lawfully be entitled in such
case in respect of property removable by the Tenant under Article Four or for
moving expenses, but only to the extent such compensation does not reduce the
award otherwise payable to the Landlord.
10.4. If the whole or any part of the Premises, or of the Tenant's
leasehold estate, shall be taken in condemnation proceedings or by any right of
eminent domain for temporary use or occupancy, the foregoing provisions of this
Article Ten shall not apply and the Tenant shall continue to pay, in the manner
and at the times herein specified, the full amount of the rent and other charges
payable by the Tenant under this Lease, and, except only to the extent that the
Tenant may be prevented from so doing pursuant to the terms of the order of the
condemning authority, the Tenant shall perform and observe all of the other
provisions of this Lease upon the part of the Tenant to be performed and
observed, as though such taking had not occurred. In the event of any taking
referred to in this Section 10.4, the Landlord shall be entitled to receive any
portion of the condemnation proceeds paid as compensation for the cost of
restoration of the Building and the Tenant shall be entitled to receive the
balance of the condemnation proceeds paid for such taking, whether paid by way
of damages, rent or otherwise, unless such period of temporary use or occupancy
shall extend beyond the expiration
or termination of this Lease, in which case the balance of the condemnation
proceeds shall be apportioned between the Landlord and the Tenant as of the date
of the expiration or termination of this Lease. The Landlord shall, upon the
expiration of any such period of temporary use or occupancy, restore the
Building, as nearly as may be reasonably possible within the balance of the term
of the Lease, to the condition in which the same was immediately prior to such
taking, subject to the provisions of any Qualified Encumbrance and without
requiring the Landlord to expend more than it collects as an award therefor.
ARTICLE ELEVEN
(11.)Compliance with Laws
11.1. The Tenant shall comply with all Requirements applicable to the
Premises or any part thereof, and the Licensed Space or any part thereof, due to
the Tenant's manner of use thereof or to the Tenant's observance of any
provision of this Lease, except that the Tenant shall not be under any
obligation to comply with any Requirement requiring any structural alteration of
or in connection with the Premises solely by reason of the use thereof for any
of the purposes permitted in Article One and not by reason of (a) a condition
which has been created by, or at the instance of, any Tenant Party, (b) a breach
by any Tenant Party of any provision of this Lease or (c) a Requirement having
as a primary purpose the benefit of disabled persons. Without limiting the
generality of Section 11.1(c) above, the Landlord and the Tenant agree that the
Tenant's obligations thereunder shall include (y) the relocation of the elevator
call buttons on each floor of the Premises constituting a part of the Office
Space (the "Call Button Work") and (z) providing handicapped accessible
bathrooms on each floor of the Premises constituting a part of the Office Space
by either (i) renovating the bathrooms on each floor of the Premises
constituting a part of the Office Space or (ii) installing a unisex bathroom on
each floor of the Premises, so that after such renovation or installation, as
the case may be, each such bathroom, and the Office Space, complies with all
Requirements of the type referred to in clause (c) of this Section 11.1
(collectively, the "Bathroom Work"). Where any structural alteration of or in
connection with the Premises is required by any such Requirement, and, by reason
of the express exception specified above, the Tenant is not under any obligation
to make such alteration, then the Landlord will make such alteration if the cost
of making the same is not in excess of fifty million dollars ($50,000,000) or,
if such cost is in excess of fifty million dollars ($50,000,000), the Landlord
shall have the option of making such alteration or of terminating this Lease and
the term and estate hereby granted by giving to the Tenant not less than one (1)
year's prior notice (unless sooner required by such Requirement) of such
termination; provided, that, if within fifteen (15) days after the giving of
notice of termination the Tenant shall request the Landlord to make such
alteration, then such notice of termination shall be ineffective; the Landlord
shall proceed with reasonable diligence to make such alteration and the Tenant
shall pay to the Landlord all costs and expenses incurred by the Landlord in
connection therewith in excess of said fifty million dollars ($50,000,000) to
the extent that such excess alteration costs amortized over their useful life
(the term "useful life" shall be the meaning attributed to such term in
accordance with generally accepted accounting principles, but in no event shall
such useful life exceed ten (10) years) fall within the remaining term of this
Lease). Upon the request of the Landlord, the Tenant shall maintain on deposit
with the Landlord as an addition to the Required Amount (as defined below in
Section 26.3),
such security for the payment of such costs and expenses in excess of said fifty
million dollars ($50,000,000) as the Landlord shall from time to time request.
For purpose of this Article, providing and installing of sprinklers shall be
deemed to be a non-structural alteration. If because of any Requirement the
Tenant is required to make any alteration of or in connection with the Premises
along with other tenants in the Building, the Tenant shall only be required to
contribute towards or perform its proportionate share of any such alteration as
reasonably determined by the Landlord.
11.2. If a notice of termination shall be given by the Landlord under this
Article and such notice shall not become ineffective as above provided, this
Lease and the term and estate hereby granted shall terminate on the date
specified in such notice with the same effect as if such date were the date
originally specified for the expiration of this Lease, and the fixed rent
payable under this Lease shall be apportioned as of such date of termination.
ARTICLE TWELVE
(12.)Accidents to Sanitary and other Systems
12.1. The Tenant shall give to the Landlord prompt notice of any damage
to, or defective condition in, any part or appurtenance of the Building's
sanitary, electrical, heating, air conditioning, ventilating or other systems
serving, located in, or passing through, the Premises of which the Tenant
becomes aware. Any such damage or defective condition shall be remedied by the
Landlord with reasonable diligence, except to the extent the Tenant is
specifically obligated to remedy same under the terms of this Lease. Without
limiting the generality of the immediately preceding sentence, the Tenant shall
be obligated to remedy all damage and defective conditions (other than any
damage with respect to which the Tenant is relieved from liability pursuant to
Section 9.3 above) (a) caused by the negligence or wilful misconduct of any
Tenant Party or (b) relating to, or in any manner arising out of, the
installation of any Fixture by or at the request of Tenant or in connection with
the initial build-out of the Premises; and, in the case of both clause (a) or
clause (b) above, the Tenant shall reimburse to the Landlord upon demand all
reasonable costs paid or incurred by the Landlord to remedy such damage or
defective conditions. The Tenant shall not be entitled to claim any damages
against the Landlord arising from any such damage or defective condition, except
to the extent that the same shall have been caused by the negligence or wilful
misconduct of any Landlord Party and the same shall not have been remedied by
the Landlord with reasonable diligence after notice from the Tenant to the
Landlord; nor shall the Tenant be entitled to claim any damages against any
other party (including, without limitation, any third party vendor or other
supplier of services to the Landlord) arising from any such damage or defective
condition, except to the extent that the same shall have been caused by the
negligence or wilful misconduct of such party and the same shall not have been
remedied by such party with reasonable diligence after notice thereof from the
Tenant to the Landlord; nor shall the Tenant be entitled to claim any eviction
by reason of any such damage or defective condition unless such damage or
defective condition shall have been caused by the negligence or willful
misconduct of any Landlord Party and the Landlord shall not have cured the same
within a reasonable time after notice from the Tenant to the Landlord. Nothing
in this Section 12.1 is
intended to limit or affect any abatement of rent to which the Tenant is
entitled pursuant to any other provision of this Lease.
ARTICLE THIRTEEN
(13.)Subordination
13.1. This Lease and the term and estate hereby granted are and shall be
subject and subordinate to the lien of each mortgage which may now or at any
time hereafter affect the Premises, the Building and/or the Land, or the
Landlord's interest therein (collectively, the "underlying mortgages"), provided
that, and for so long as (a) (i) either Emigrant Savings Bank ("Emigrant") or
The Chase Manhattan Bank, N.A. ("Chase"), whichever is the holder of the
underlying mortgage in effect as of the date which is ten (10) days after the
date of this Lease, shall have entered into a subordination, non-disturbance and
attornment agreement in a form substantially similar to the form annexed hereto
as Exhibit E-1 (the "Emigrant SNDA"), if Emigrant is then the holder of the
underlying mortgage, or the form annexed hereto as Exhibit E-2 (the "Chase
SNDA"), if Chase is then the holder of the present underlying mortgage, and
(ii) the holder of any such future underlying mortgage(s) shall have entered
into a subordination, non-disturbance and attornment agreement (a "Mortgagee
SNDA") with the Tenant in substantially the form of the Chase SNDA, if Chase is
the holder of any such future underlying mortgage(s), and, otherwise, in the
form annexed hereto as Exhibit E-3, and (b) The Emigrant SNDA, the Chase SNDA
and/or such Mortgagee SNDA continues to be in full force and effect unless the
related underlying mortgage has either been satisfied and released of record or
refinanced and become subject to a subsequent Mortgagee SNDA. This lease shall
also be subject and subordinate to any future ground or net lease of the Land
and/or the Building (collectively the "underlying leases"), provided that, and
for so long as (y) the lessor under any such present or future underlying lease
shall have entered into a subordination, non-disturbance and attornment
agreement (a "Lessor SNDA") with the Tenant in substantially the form annexed
hereto as Exhibit E-4 and (z) such Lessor SNDA continues to be in full force and
effect.
13.2. Intentionally omitted.
13.3. The Tenant shall, from time to time, upon request by the Landlord,
promptly execute and deliver (a) an Emigrant SNDA to Emigrant or a Chase SNDA to
Chase, as the case may be, as the holder of the underlying mortgage in effect as
of the date which is ten (10) days after the date of this Lease (as such
underlying mortgage may be renewed, modified, supplemented, amended, spread,
consolidated, replaced, substituted for, added to or extended), (b) a Mortgagee
SNDA to the holder of any future underlying mortgage and (c) a Lessor SNDA to
the lessor under any present or future underlying lease. The Landlord shall,
from time to time, upon request by the Tenant, request that any holder of any
future underlying mortgage deliver an executed Mortgagee SNDA and any lessor
under any future underlying lease deliver an executed Lessor SNDA to the Tenant
for its signature; and the Tenant shall promptly execute and deliver any such
Mortgagee SNDA or Lessor SNDA delivered to the Tenant. If the Landlord shall,
for any reason, fail to obtain any requested Mortgagee SNDA or Lessor SNDA, as
the case may be, and deliver the same to the Tenant for its signature, then,
notwithstanding
anything in this Article Thirteen to the contrary, and as the Tenant's sole
recourse and remedy in such event, this Lease shall not be subject and
subordinate to such future underlying mortgage or such future underlying lease,
as the case may be.
ARTICLE FOURTEEN
(14.)Notices
14.1. Any notice, consent, approval, request, communication, bill, demand
or statement (collectively, "Notices") under this Lease by either party to the
other party shall be in writing and shall be deemed to have been duly given when
(a) delivered personally or by overnight mail service to such other party and a
receipt has been obtained (provided, that the inability to obtain such receipt
after reasonable efforts shall not affect the effectiveness of such delivery) or
(b) upon receipt after being mailed in a postpaid envelope (registered or
certified, return receipt requested) addressed to such other party, which
address for the Landlord shall be as above set forth and for the Tenant shall be
the Premises, or 1001 22nd Street, N.W., Sixth Floor, Washington, D.C. 20037 if
mailed prior to the date upon which the Tenant occupies the Premises for the
conduct of its business, in either case, to the attention: General Counsel, with
a copy to Chief Financial Officer, or if the address of such other party for
notices shall have been duly changed as hereinafter provided, if so mailed to
such other party at such changed address. Either party may at any time change
the address for Notices by a Notice stating the change and setting forth the
changed address. If the term "Tenant" as used in this Lease refers to more than
one person, any Notice to any one of such persons shall be deemed to have been
duly given to the Tenant. If and to the extent requested by the Landlord, the
Tenant shall give copies of all Notices to the Landlord to holders of underlying
mortgages and underlying leases of which the Tenant has notice.
ARTICLE FIFTEEN
(15.)Conditions of Limitation
15.1. This Lease and the term and estate hereby granted are subject to the
limitation that:
(a)if the Tenant shall default in the payment of any Rent and any
such default shall continue for ten (10) days after notice,
(b)if the Tenant shall default in observing any provision of
Sections 3.1, 3.2, 3.3 or of subsections (e) (other than the
provisions relating to Labor Harmony and labor disputes) or (f) of
Section 6.1 or of Section 6.2 and such default shall continue and
shall not be remedied by the Tenant within five (5) business days
after notice,
(c) if the Tenant shall default in the observing of any provision of
subsection (e) of Section 6.1 pertaining to Labor Harmony and labor
disputes, and if the
same shall continue and not be remedied by the Tenant within two (2)
business days after a notice,
(d) if the Tenant shall default in observing the provisions of
Section 13.2 of this Lease and if such default shall continue and
not be remedied by the Tenant within ten (10) business days after
notice,
(e) if the Tenant shall default in observing any provision of this
Lease (other than a default of the character referred to in
subsections (a), (b) and (c) of this Section 15.1), and if such
default shall continue and shall not be remedied by the Tenant
within thirty (30) days after notice or, if such default cannot for
causes beyond the Tenant's control, with due diligence be cured
within said period of thirty (30) days, if the Tenant (i) shall not,
promptly upon the giving of such notice, give the Landlord notice of
the Tenant's intention to duly institute all steps necessary to
remedy such default, (ii) shall not duly institute and thereafter
diligently prosecute to completion all steps necessary to remedy the
same, or (iii) shall not remedy the same within a reasonable time
after the date of the giving of said notice by the Landlord,
(f) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of
the full term of this Lease would, by operation of law or otherwise,
devolve upon or pass to any person, firm or corporation other than
the Tenant (except as permitted under Article Seven) and such event
is not cured (with the result that this Lease and the term and
estate hereby granted shall again be vested solely in the Tenant)
within thirty (30) days after notice, or
(g) when and to the extent permitted by law, if a petition in
bankruptcy shall be filed by or against the Tenant and the same is
not stayed or vacated within sixty (60) days (or if stayed but not
ultimately vacated after lifting of such stay), or if the Tenant
shall make a general assignment for the benefit of its creditors, or
the Tenant shall receive the benefit of any insolvency or
reorganization act, or if a receiver or trustee is appointed for any
portion of the Tenant's property and such appointment is not vacated
within sixty (60) days, or if an execution or attachment shall be
issued under which the Premises shall be taken or occupied by anyone
other than the Tenant,
then in any of said cases the Landlord may give to the Tenant a notice of
intention to end the term of this Lease, and, if such notice is given, this
Lease and the term and estate hereby granted (whether or not the term shall
theretofore have commenced) shall terminate upon the expiration of three (3)
days from the date the notice is deemed given with the same effect as if the
last of said three (3) days were the date originally specified as the expiration
of the full term of this Lease, but the Tenant shall remain liable for damages
as provided in this Lease or pursuant to law. If this Lease shall have been
assigned, the term "Tenant", as used in subsections (a) to (g), inclusive, of
this Section 15.1, shall be deemed to include the assignee and the assignor or
either of them under any such assignment unless the Landlord shall, in
connection with such assignment, release the assignor from any further liability
under this Lease, in which event the term "Tenant", as used in said subsections,
shall not include the assignor so released.
ARTICLE SIXTEEN
(16.)Re-entry by Landlord
16.1. If this Lease shall terminate under Article Fifteen, the Landlord or
the Landlord's agents and servants may immediately or at any time thereafter
re-enter the Premises, or any part thereof in the name of the whole, either by
summary dispossess proceedings or by any suitable action or proceeding at law or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that the Landlord may have, hold and enjoy the Premises
again as and of its first estate and interest therein. The words "re-enter",
"re-entry", and "re-entering" as used in this Lease are not restricted to their
technical legal meanings.
16.2. If this Lease shall terminate under the provisions of
Article Fifteen or if the Landlord undertakes any summary dispossess or other
proceeding or action or other measure for the enforcement of its right of
re-entry (any such termination of this Lease or undertaking by the Landlord
being a "Default Termination"), the Tenant shall thereupon pay to the Landlord
the Rent up to the time of such Default Termination, and shall likewise pay to
the Landlord all such damages which, by reason of such Default Termination,
shall be payable by the Tenant as provided in this Lease or pursuant to law.
Also in the event of a Default Termination the Landlord shall be entitled to
retain all moneys, if any, paid by the Tenant to the Landlord, whether as
advance rent or as security for rent, but such moneys shall be credited by the
Landlord against any Rent due from the Tenant at the time of such Default
Termination or, at the Landlord's option, against any damages payable by the
Tenant as provided in this Lease or pursuant to law.
16.3. In the event of a breach or threatened breach on the part of either
party to this Lease of any of its obligations hereunder, the other party shall
also have the right of injunction. The specified remedies to which the Landlord
may resort under this Lease are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which the Landlord may lawfully be
entitled at any time, and the Landlord may invoke any remedy allowed at law or
in equity as if specific remedies were not provided for in this Lease.
ARTICLE SEVENTEEN
(17.)Damages
17.1. If there is a Default Termination of this Lease, the Tenant will pay
to the Landlord as damages, at the election of the Landlord, either:
(a) a sum which, at the time of such Default Termination, represents
the then present value (such computation to be made by using the
then prevailing rate of
most recently issued bonds or notes issued by the United States
Treasury having a maturity closest to but not exceeding the period
commencing with the day following the date of such Default
Termination and ending with the date originally specified as the
expiration date of this Lease (the "Remaining Period")) of the
excess, if any, of (1) the aggregate of the fixed rent and the
additional rent under Article Twenty-four (if any) which, had this
Lease not so terminated, would have been payable under this Lease by
the Tenant for the Remaining Period over (2) the aggregate fair
market rental value of the Premises for the same period, or
(b) sums equal to the aggregate of the fixed rent and the additional
rent under Article Twenty-four (if any) which would have been
payable by the Tenant had this Lease not terminated by such Default
Termination, payable upon the due dates therefor specified in this
Lease following such Default Termination and until the date
originally specified as the expiration of this Lease; provided, that
if the Landlord shall relet all or any part of the Premises for all
or any part of the Remaining Period (the Landlord having no
obligation to so relet the Premises), the Landlord shall credit the
Tenant with the net rents received by the Landlord from such
reletting, such net rents to be determined by first deducting from
the gross rents as and when received by the Landlord from such
reletting the expenses incurred by the Landlord in terminating this
Lease and re-entering the Premises and of securing possession
thereof, as well as the expenses of reletting, including altering
and preparing the Premises for new tenants, brokers' commissions,
and all other expenses properly chargeable against the Premises and
the rental therefrom in connection with such reletting, it being
understood that any such reletting may be for a period equal to or
shorter or longer than said period; provided, further, that (i) in
no event shall the Tenant be entitled to receive any excess of such
net rents over the sums payable by the Tenant to the Landlord, (ii)
in no event shall the Tenant be entitled, in any suit for the
collection of damages pursuant to this subsubsection (b), to a
credit in respect of any net rents from a reletting except to the
extent that such net rents are actually received by the Landlord
prior to the commencement of such suit, and (iii) if the Premises or
any part thereof should be relet in combination with other space,
then proper apportionment on a square foot rentable area basis shall
be made of the rent received from such reletting and of the expenses
of reletting.
17.2. For the purposes of this Article, the amount of additional rent
which would have been payable by the Tenant under Article Twenty-four shall, for
each Computation Year (as defined in Article Twenty-four) ending after such
Default Termination, be deemed to be an amount equal to the amount of additional
rent payable by the Tenant for the Computation Year immediately preceding the
Computation Year in which such Default Termination occurs or if the Default
Termination occurs prior to the end of the first Computation Year, then the
Landlord's reasonable estimate of what additional rent would have been had the
Lease commenced one year earlier, and in either case deemed increased each year
by the percentage increase in additional rent for the immediately preceding
Computation Year over the additional rent for the twelve-month period prior
thereto or, if the Lease term did not occur throughout
such prior years, Landlord's reasonable estimate of what such increase would
have been had the term occurred during such years. Suit or suits for the
recovery of any damages payable by the Tenant, or any installments thereof, may
be brought by the Landlord from time to time at its election, and nothing in
this Lease shall be deemed to require the Landlord to postpone suit until the
date when the term of this Lease would have expired but for such Default
Termination.
17.3. Subject to Section 25.12, nothing in this Lease shall be construed
as limiting or precluding the recovery by the Landlord against the Tenant of any
sums or damages to which, in addition to the damages specified above, the
Landlord may lawfully be entitled by reason of any default under this Lease on
the part of the Tenant.
ARTICLE EIGHTEEN
(18.)Waivers by Tenant
18.1. The Tenant, for itself and all other Tenant Parties, and on behalf
of any and all persons, firms, entities and corporations claiming through or
under any Tenant Party, including, without limitation, creditors of all kinds,
does hereby waive and surrender all right and privilege which they or any of
them might have under or by reason of any present or future law to redeem the
Premises or to have a continuance of this Lease for the full term hereby demised
after the Tenant is dispossessed or ejected therefrom by process of law or under
the terms of this Lease or after the expiration or termination of this Lease as
provided in this Lease or pursuant to law. The Tenant also waives (a) the right
of the Tenant to trial by jury in any summary dispossess or other proceeding
that may hereafter be instituted by the Landlord against the Tenant with respect
to the Premises or in any action that may be brought to recover rent, damages or
other sums payable under this Lease, and (b) the provisions of any law relating
to notice and/or delay in levy of execution in case of an eviction or dispossess
of a tenant for nonpayment of rent, and of any other law of like import now or
hereafter in effect. If the Landlord commences any such summary dispossess
proceeding, the Tenant will not interpose any counterclaim of whatever nature or
description in such proceeding, other than a compulsory counterclaim.
ARTICLE NINETEEN
(19.)Tenant's Removal
19.1. Any personal property which shall remain in any part of the Premises
or any of the Licensed Spaces after the expiration or termination of the term of
this Lease with respect to such part shall be deemed to have been abandoned, and
either may be retained by the Landlord as its property or may be disposed of in
such manner as the Landlord may see fit at the Tenant's cost; provided, that the
Tenant will, upon request of the Landlord, remove from the Building any such
personal property by the later of the expiration or termination of this Lease or
thirty (30) days after the Landlord's request.
ARTICLE TWENTY
(20.)Elevators, Cleaning, Services, etc.
20.1. The Landlord will (a) supply passenger elevator service to each
floor, above the street floor of the Building, which is served by the Building's
passenger elevators and on which the Office Space, or any portion thereof, is
located, utilizing (i) all of the passenger elevators serving the floors on
which the Office Space is located during Business Hours (as hereinafter
defined), subject to Section 8.1 above, provided, however, that, unless the
Landlord shall reasonably determine that it is commercially reasonable to do
otherwise, during Business Hours (A) the Landlord shall use reasonable efforts
to avoid taking more than one (1) passenger elevator in each elevator bank
serving the Office Space out of service at any one time to perform upgrades,
repairs and/or maintenance of such elevators and (B) if the Landlord shall take
more than one (1) such passenger elevator out of service at any one time to
perform such upgrades, repairs and/or maintenance, the Landlord shall not do so
during peak hours (i.e., 8:00 a.m. to 10:00 a.m., noon to 2:00 p.m. and
5:00 p.m. to 6:00 p.m.), and (ii) not less than two (2) of said elevators during
hours other than Business Hours, (b) supply an elevator for the transmission of
freight to said floor or floors during Business Hours, (c) supply a freight
elevator for access to the C-4 level of the Building and the 50th Floor of the
Building (the Tenant acknowledging that access to the roof of the Building is
not available from any elevator, but only by stairs from the 50th floor) during
Business Hours, subject to such reasonable regulations and restrictions as the
Landlord may, from time to time, deem necessary to establish, including, but not
limited to, the requirements that (i) only the Tenant's contractors who have
been consented to by the Landlord, and the Tenant's properly identified
employees, agents and representatives shall be permitted access to the C-4 level
of the Building or the 50th Floor of the Building and (ii) except in the case of
emergency, such contractors, employees, agents and representatives shall, at the
Landlord's option, be accompanied by employees of the Landlord, provided that
such requirement shall not interfere with or delay such access to the C-4 level
of the Building or the 50th Floor of the Building (except to a de minimis
extent), (d) subject to any applicable policies or regulations adopted by any
utility or governmental authority, supply during Business Hours in the heating
season heat for the warming of the Office Space and the public portions of the
Building, (e) subject to any applicable policies or regulations adopted by any
utility or governmental authority, supply during Business Hours air conditioning
(including cooling during the cooling season in accordance with the provisions
of Section 20.2.1 below) and ventilation to all portions of the Office Space, if
any, which are served by the Building's air conditioning and ventilation
systems, and (f) clean the Office Space in accordance with the specification
attached as Exhibit G hereto, except any such portion of the Office Space
primarily used for preparing, dispensing or consumption of food or beverages or
as an exhibition area or classroom or for storage, shipping room, mail room or
similar purposes, or which is a private toilet (it being agreed that any unisex
bathrooms installed as part of the Bathroom Work pursuant to Section 11.1 above
are not private toilets) or shower, or which is a shop or is used for a trading
floor or for operation of computer, data processing, reproduction, duplicating
or similar equipment (unless, in the case of any of the foregoing such use does
not require cleaning that is in excess of, or of a nature that is different
from, that which would be required by ordinary office use), or which is
designated as a "secured area" by the Tenant, or (subject to Section 6.1(c))
which is designated as a "live broadcasting area" by the Tenant. Unless
otherwise provided in this Lease, the following terms shall have the meanings
indicated: "Business Hours" shall mean the hours of 8:00 A.M. to 6:00 P.M. of
days other than
Saturdays, Sundays and Holidays (as hereinafter defined); and "Holidays" shall
mean (y) New Year's Day, President's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day and (z) any other days which are
hereafter designated as federal holidays, provided the same are adopted as
building holidays in other similar first-class office buildings located in
midtown Manhattan.
20.2.1. Notwithstanding anything to the contrary contained in this Lease,
the air conditioning to be provided to the Office Space from the Building's
interior shaft and perimeter system shall be such as to provide, in the
aggregate, the number of cubic feet per minute per floor as set forth opposite
such floor on Exhibit F-1 and (a) with respect to the air conditioning provided
from the Building's interior shaft, at a supply air temperature of 58 degrees
Fahrenheit (plus or minus 2 degrees Fahrenheit) measured at the shaft on each
floor in the Office Space when the inside dry bulb temperature is 76 degrees
Fahrenheit or higher and such as to maintain during the summer season a relative
humidity of 50% (plus or minus 5%) and (b) with respect to the air conditioning
to be provided to the Office Space from the Building's perimeter system,
substantially in accordance with the specification attached hereto as
Exhibit F2. No representation is made by the Landlord with respect to the supply
air temperature measured at the perimeter of the Office Space, or the adequacy
or fitness of such air conditioning or ventilation to achieve or maintain
temperatures that may be required for the comfortable occupancy of the Office
Space, or that may be required for, or because of, the operation of any
computer, data processing, radio broadcasting or other equipment of the Tenant,
or otherwise; and where air conditioning or ventilation is required for any such
purpose, the Landlord assumes no responsibility, and shall have no liability,
for any loss or damage however sustained in connection therewith.
20.2.2. The Tenant acknowledges that the supply air temperature at the
Building's interior shaft, as set forth in Section 20.2.1. above, may rise or
fall from the 58 degrees Fahrenheit (plus or minus 2 degrees Fahrenheit)
temperature set forth above. Accordingly, such supply air temperature may, at
the Landlord's option and typically preceding or following Business Hours, be
increased during period of warm-up and reduced during periods of cool-down.
20.2.3. The air circulated through the ducts of the air conditioning
system of the Building serving the Office Space (including the perimeter system
of the Office Space) shall consist of an average amount of fresh air equal to 20
cubic feet per minute per person based on an occupancy level of one person per
100 square feet of usable area. Duct traverse readings shall be taken before or
after construction in the presence of the Tenant's representative to verify the
delivery of the proper air quality and temperature. If conditions warrant, the
readings taken before construction shall include the insertion of an appropriate
external resistance so that the static pressure delivered to the Office Space is
measured at 1.0 inches.
20.2.4.(a) The Landlord agrees that, subject to the terms and conditions
of this Lease (including, but not limited to, the provisions of
Section 6.1(e)) and all applicable Requirements, the Tenant, at the
Tenant's sole cost and expense, may install in the Office Space a
supplemental air conditioning system or systems having, in the
aggregate, a maximum cooling capacity of one hundred twenty
(120) tons, and, in connection therewith, one (1) valved chilled
water tap (supply and return) on each floor of the Office Space on
which any such system is located, at a location approved by the
Landlord. If the Tenant shall install such a supplemental air
conditioning system or systems, the Landlord shall, subject to the
provisions of Section 36.6, Section 20.2.4(b) and Section 20.2.4(c)
below, provide to the Tenant up to one hundred twenty (120) tons of
chilled water for the operation of the Tenant's supplemental air
conditioning system or systems.
(b) The Tenant shall pay for all chilled water used by and/or
reserved and available for use by the Tenant, at the Landlord's
standard published charges for the supply of chilled water, which
charge is currently Eight Hundred Fifty and 00/100 Dollars ($850.00)
per ton per annum. Such charge is subject to increases prior to the
commencement date and during the term of this Lease to reflect
increases in the costs incurred by the Landlord in the production of
chilled water, as reasonably determined by Landlord. The Tenant
shall pay the charge for chilled water in equal monthly installments
in advance, on the first day of each and every calendar month during
the term of this Lease. The chilled water required to be supplied by
the Landlord pursuant to this Section 20.2.4 shall be available at
all times (24 hours per day, 7 days per week) and shall have a
supply temperature of 48 degrees Fahrenheit (plus or minus 2
degrees). The "( T" resulting from the operation of the Tenant's
supplemental air conditioning system(s) shall not be more than 10
degrees Fahrenheit.
(c) Anything in Section 20.2.4(a) or Section 20.2.4(b) to the
contrary notwithstanding, if, as of the date which is six (6) months
following the date upon which the Tenant first occupies the Premises
for the normal conduct of its business, the Tenant has not installed
a supplemental air conditioning system or systems in the Premises,
or if the supplemental air conditioning system or systems then
installed require less than one hundred twenty (120) tons of chilled
water, the Tenant shall be deemed to have waived its rights to
receive any chilled water in excess of the amounts then being used
by the Tenant and such additional amounts that the Tenant, as of
such date, can demonstrate to the Landlord's reasonable satisfaction
that the Tenant will require for its use during the remaining term
of this Lease, and the Landlord, shall have no further obligation to
reserve and/or to make available to the Tenant any chilled water in
excess of such amounts.
(d) Subject to Section 5.6 above, the Landlord shall provide to the
Tenant a supply of water which is reasonably required for
humidification of the Tenant's supplemental air conditioning
system(s), provided, and on the express conditions that (i) the
Tenant shall have given the Landlord written notice requesting such
humidification water together with the Tenant's Preliminary Plans
for the Initial Tenant Alterations (it being expressly agreed by the
Tenant that if the Tenant fails to deliver such notice together with
the Tenant's Preliminary Drawings for the Initial Tenant
Alterations, the Landlord shall have
no obligation to furnish such humidification water pursuant to this
Section 20.2.4(d)), (ii) if the Tenant timely delivers the Landlord
the notice referenced in subclause (i) above, the Landlord's
obligation to provide such humidification water shall continue if,
and for so long as, the Tenant installs and operates such
supplemental air conditioning system(s) and (iii) the Tenant, at the
Tenant's sole cost and expense, shall, subject to Section 6.1(e) and
all other applicable provisions of this Lease, provide and install
all pipes, risers, connections and/or appurtenances which are
necessary to bring such humidification water to such supplemental
air conditioning system(s) from the Building's cold water riser on
the 37th Floor of the Building. The Tenant shall pay for such
humidification water, as additional rent hereunder in twelve (12)
equal monthly installments together with payments of fixed rent due
hereunder, an annual flat rate, as is reasonably determined by the
Landlord and of which the Landlord gives written notice to the
Tenant within a reasonable period of time after timely receipt by
the Landlord of the Tenant's request for such humidification water.
20.3. The Landlord shall, when and to the extent reasonably requested by
the Tenant, furnish additional passenger and freight elevators, heating, air
conditioning, ventilating and/or cleaning services (including cleaning services
to (Y) any "secured area" (subject to being granted access thereto) or "live
broadcasting area" on an after-hours, overtime basis and (Z) any other portion
of the Premises in addition to the Office Space) upon such reasonable terms and
conditions as shall be determined by the Landlord, including the payment by the
Tenant of the Landlord's reasonable charge therefor; provided, however, that,
upon the Tenant's request therefor made at least three (3) business days in
advance (but subject to any prior reservations made by other tenants and
occupants of the Building), the Landlord will furnish to the Tenant, at no
charge to the Tenant, (a) the exclusive use of one (1) freight elevator for the
Tenant's initial move-in to each of the 36th Floor Space and the 37th Floor
Space on two (2) consecutive weekends for each floor (during the period from
8:00 a.m. to 11:59 p.m. on both Saturday and Sunday) and (b) the exclusive use
of one (1) freight elevator for the Tenant's move-out from each of the 36th
Floor Space and the 37th Floor Space on one (1) weekend for each floor (during
the period from 8:00 a.m. to 11:59 p.m. on both Saturday and Sunday), provided,
however, that nothing in this Section 20.3 shall be construed to grant to the
Tenant the right to the exclusive use, or the use at no charge to the Tenant, of
more than one (1) freight elevator on any given day. The Tenant will also pay
the Landlord's reasonable charge for (y) any additional cleaning of the Office
Space required because of the carelessness or indifference of any Tenant Party
or because of the particular nature of any Tenant Party business (as
distinguished from customary office use), and (z) the removal of any refuse and
rubbish of any Tenant Party from the Premises and the Building, except the
removal from the Office Space of wastepaper and similar discarded material
placed by the Tenant in wastepaper baskets and left for emptying as an incident
to the Landlord's normal cleaning of the Office Space. If the cost to the
Landlord for cleaning the Office Space shall be increased due to the use of any
part of the Office Space during hours other than Business Hours or due to there
being installed in the Office Space, at the request of or by any Tenant Party,
any materials or finish other than those which are of the standard adopted by
the Landlord for the Building, the Tenant shall pay to the Landlord an amount
equal to such reasonable increase in cost; provided, however, that the Tenant,
upon not less than three (3) business days prior written notice to the Landlord,
shall
be permitted to use its own contractors or employees to clean such non-standard
items, and the Landlord shall provide such contractors with necessary access to
the Office Space, provided, and upon the express conditions that (a) such use
shall be in compliance with and shall not violate any Requirements, (b) the
Tenant shall have obtained the Landlord's prior consent to such contractors or
employees, provided that such consent not to be unreasonably withheld or
delayed, and (c) the same will not in the Landlord's reasonable determination,
cause any disruption of labor harmony in the Building. The Tenant may
participate in any paper recycling plan available to it and nothing contained
herein shall require that the Tenant use or participate in any recycling plan
sponsored or approved by the Landlord unless dictated by any Requirement and
provided that such recycling plan does not impose any material additional burden
upon the Landlord or the Building or the Land. As used in this Section 20.3, the
Landlord's "reasonable charges" shall be the charges set forth in the Landlord's
"1998 Tenant Sales Rate Schedule" (a copy of which has previously been furnished
to the Tenant), as the same may be increased from time to time by the Landlord,
provided that such increases shall be reasonably related to increases in the
Landlord's actual cost of providing such services to tenants in the Building.
20.4. All or any of the elevators in the Building may, at the option of
the Landlord, be manual or automatic elevators, and the Landlord shall be under
no obligation to furnish an elevator operator or starter for any automatic
elevator, but if the Landlord shall furnish any elevator operator or starter for
any automatic elevator, the Landlord may discontinue furnishing such elevator
operator or starter.
20.5. The Landlord reserves the right, without liability to the Tenant
(subject to the provisions of Section 20.6 below) and without constituting any
claim of constructive eviction, to stop or interrupt any heating, elevator,
escalator, lighting, ventilating, air conditioning, power, water, cleaning or
other service and to interrupt the use of any Building facilities, at such times
as may be necessary and for as long as may reasonably be required by reason of
accidents, strikes, the making of repairs, alterations or improvements,
inability to secure a proper supply of fuel, steam, water, electricity, labor or
supplies, or by reason of any other cause beyond the reasonable control of the
Landlord; provided, that the Landlord shall use reasonable efforts to coordinate
with the Tenant regarding the scheduling of any such stoppage or interruption
for the purpose of making any discretionary or non-emergency repairs,
alterations or improvements and make the same at such times and in such manner
as shall not unreasonably interfere with the Tenant's use of the Premises.
20.6. Anything in Section 20.5 above or elsewhere in this Lease to the
contrary notwithstanding, if any Essential Service (as hereinafter defined)
which the Landlord is required to provide to the Tenant under this Lease is
interrupted for a period of ten (10) consecutive business days, other than any
interruption caused by any act or omission of any Tenant Party (in which event
there shall be no abatement of fixed rent as provided for in this Section 20.6),
and if, as a result thereof (a) all or substantially all of the Premises is
rendered untenantable or otherwise cannot be used for the reasonable conduct of
the Tenant's business, the Tenant shall be entitled to an abatement of the fixed
rent for each day after the expiration of such ten (10) business day period that
all or substantially all of the Premises shall remain untenantable or otherwise
cannot be used for the reasonable conduct of the Tenant's business, or (b) (i)
at least
5,000 rentable square feet of the Office Space (but less than all or
substantially all of the Office Space) or (ii) any part of the Premises that is
essential for the normal conduct of the Tenant's business in the Office Space,
(without regard to the size of such part of the Premises), is rendered
untenantable or otherwise cannot be used for the reasonable conduct of the
Tenant's business for ten (10) consecutive business days by reason of any
interruption of an Essential Service, other than any interruption caused by an
act or omission of any Tenant Party (in which event there shall be no abatement
of fixed rent as provided for in this Section 20.6), the Tenant shall be
entitled to a partial abatement of fixed per square foot rent for each day after
the expiration of such ten (10) business day period that such portion of the
Premises shall remain untenantable or otherwise cannot be used for the
reasonable conduct of the Tenant's business, such abatement to be an amount
equal to the product of the fixed rental rate applicable with respect to such
portion of the Premises, the number of rentable square feet in such portion of
the Premises and a fraction, the numerator of which is one (1) and the
denominator of which is three hundred sixty-five (365). The abatements provided
for in this Section 20.6 shall be the Tenant's sole remedy in the event of any
interruption of any Essential Service which the Landlord is required to provide
to the Tenant under this Lease. The term "Essential Service" as used in this
Lease shall mean electric current, heat, air conditioning and ventilation, water
for lavatory purposes and any fire suppression sprinkler system and at least
two (2) elevators serving the Office Space and elevator access to the 50th Floor
of the Building.
20.7. Anything in this Lease to the contrary notwithstanding, the Landlord
agrees that the Tenant shall have access to the Building and the Premises, and
that the Landlord will provide staffing in the Building's lobby, 24 hours per
day, 7 days per week, subject to events of Force Majeure and applicable
Requirements.
20.8. The Building's toilet exhaust system shall be such as to provide
during Business Hours exhaust capacity of at least 2 cubic feet per minute per
square foot of the existing toilet facilities in the Office Space, and such
toilet facilities in the Office Space as the same may be renovated and/or
installed in accordance with Section 11.1 above.
20.9. Anything in this Lease to the contrary notwithstanding, the Landlord
shall not be required to provide any services to the Basement Space, the
Penthouse Space or the Licensed Spaces, except as specifically provided for such
spaces in Section 5.1(b) and Article Thirty-four, Article Thirty-five and
Article Thirty-six of this Lease.
20.10. Provided, and for so long as, the Tenant uses at least one hundred
(100) tons of chilled water pursuant to Section 20.2.4 above, the Landlord, at
no additional charge to the Tenant, shall make the Building's licensed operating
engineer available, on a non-exclusive basis, for consultation in connection
with the operation and maintenance of the Auxiliary Chiller System and the
Emergency Generator System. Anything in this Lease to the contrary
notwithstanding, in no event shall the Landlord, such engineer or any of the
other Indemnitees be responsible for (a) complying with, nor shall the Landlord,
such engineer or any of the other Indemnitees be subject to any liability for
the Tenant's failure to comply with, any Requirement applicable to the Auxiliary
Chiller System or the Emergency Generator System or the installation, operation
or maintenance (or, upon the expiration or sooner termination of this Lease, the
removal) of the Auxiliary Chiller System or the Emergency Generator System, or
(b)
the installation, operation or maintenance of the Auxiliary Chiller System or
the Emergency Generator System, or for any liability or damage incurred or
suffered by the Tenant in connection with or arising out of the Tenant's
installation, operation or maintenance (or, upon the expiration or sooner
termination of this Lease, the removal) of the Auxiliary Chiller System or the
Emergency Generator System; and the Tenant shall make no claim against the
Landlord or any Landlord Party (including, without limitation, such engineer)
for any direct, consequential or other loss or damage suffered or incurred by
the Tenant in connection with the installation operation or maintenance (or,
upon the expiration or sooner termination of this Lease, the removal) of the
Auxiliary Chiller System or the Emergency Generator System, however caused,
provided, however, that the foregoing is not intended to relieve such engineer
from any liability for his or her willful misconduct in connection with the
operation and maintenance of the Auxiliary Chiller System or the Emergency
Generator System. The Tenant shall indemnify and save harmless the Indemnitees
(including, without limitation, such engineer), and defend the Indemnitees (with
counsel reasonably acceptable to the Indemnitees), from and against any and all
liability (including, but not limited to, statutory liability), loss, damage
interest, judgments and liens, and any and all costs and expenses (including,
but not limited to, counsel fees and disbursements), in any way arising out of
or incurred in connection with, any and all claims, demands, suits, actions
and/or proceedings which shall be made or brought against the Indemnitees in
connection with or arising out of, anything done or omitted to be done with
respect to the Auxiliary Chiller System or the Emergency Generator System,
except to the extent caused by the willful misconduct of such engineer. The
Indemnitees agree to give the Tenant prompt written notice of all claims,
demands, suits, actions and/or proceedings for which the Indemnitees are
indemnified hereunder brought or threatened against the Indemnitees, but any
failure or delay in giving any such notice shall not affect the Tenant's
indemnification obligation hereunder unless the Tenant's ability to defend
against such claim is materially adversely affected by such failure or delay.
The provisions of this Section 20.10 shall survive the expiration or earlier
termination of this Lease. The foregoing provisions of this Section 20.10 are
subject to the provisions of Section 9.3 and Section 25.12 of this Lease.
ARTICLE TWENTY-ONE
(21.)Lease Contains All Agreements-No Waivers
21.1. This Lease contains all of the understandings relating to the
leasing of the Premises and the Landlord's obligations in connection therewith
and neither the Landlord nor any agent or representative of the Landlord has
made or is making, and the Tenant in executing and delivering this Lease is not
relying upon, any warranties, representations, promises or statements
whatsoever, except to the extent expressly set forth in this Lease. All
understandings and agreements, if any, heretofore had between the parties are
merged in this Lease, which alone fully and completely expresses the agreement
of the parties.
21.2. The failure of either party to insist in any instance upon the
strict keeping, observance or performance of any provision of this Lease or to
exercise any election in this Lease shall not be construed as a waiver or
relinquishment for the future of such provision, but the same shall continue and
remain in full force and effect. No waiver or modification by either party of
any provision of this Lease shall be deemed to have been made unless expressed
in
writing and signed by the party to be charged. No surrender of possession of the
Premises or of any part thereof or of any remainder of the term of this Lease
shall release the Tenant from any of its obligations under this Lease unless
accepted by the Landlord in writing. The receipt and retention by the Landlord
of Rent from anyone other than the Tenant shall not be deemed a waiver of the
breach by the Tenant of any provision in this Lease, or the acceptance of such
other person as a tenant, or a release of the Tenant from its further observance
of the provisions of this Lease. The receipt and retention by the Landlord of
Rent with knowledge of the breach of any provision of this Lease shall not be
deemed a waiver of such breach.
ARTICLE TWENTY-TWO
(22.)Parties Bound; Exculpation
22.1. The provisions of this Lease shall bind and benefit the respective
successors, assigns and legal representatives of the parties to this Lease,
except that (1) no violation of the provisions of Article Seven shall operate to
vest any rights in any successor, assignee or legal representative of the Tenant
and (2) the provisions of this Article shall not be construed as modifying the
conditions of limitation contained in Article Fifteen. The obligations of the
Landlord under this Lease shall not, however, be binding upon the Landlord
herein named (or any subsequent transferor of its interest in the Building or
the Premises) with respect to the period (i) subsequent to the transfer of its
interest in the Building or the Premises (a lease of the entire interest being
deemed such a transfer), except for obligations of the Landlord that accrued
prior to the date of such transfer (provided that such obligations shall not be
binding on the Landlord herein named (or any such subsequent transferor) if the
transferee of the Landlord herein named (or the transferee of any such
subsequent transferor) assumes such obligations in writing and a copy of such
assumption agreement is delivered to the Tenant within a reasonable period of
time thereafter), or (ii) subsequent to the expiration or earlier termination of
the term of any underlying lease to which this Lease and the term and estate
hereby granted may be subject and subordinate and wherein the lessor thereunder
has agreed to recognize this Lease in case the term of said underlying lease
expires or terminates prior to the expiration or termination of the term of this
Lease if the Landlord would not then be entitled to terminate this Lease
pursuant to said Article Fifteen or to exercise any dispossess remedy provided
for in this Lease or by law; and in any such event those covenants shall,
subject to Article Thirteen, thereafter be binding upon the transferee of such
interest in the Building or the Premises or the lessor under said underlying
lease, as the case may be, until the next such transfer of such interest.
22.2. The Tenant shall look solely to the Landlord's interest in the Land
and the Building (and the proceeds thereof, including, without limitation, sale
proceeds thereof and any undistributed proceeds thereof resulting from any
financing or refinancing of the Building (it being expressly agreed by the
Tenant that the Tenant shall have no recourse to any financing or refinancing
proceeds paid to the shareholders, partners, members or other owners of any
equity interests in the Landlord, whether by distribution, dividend or
otherwise) or any proceeds thereof resulting from any casualty to or
condemnation of the Building) for the satisfaction of any monetary claim under
this Lease, or for the collection of any judgment (or other judicial process)
based thereon, and no other property or assets of the Landlord (or any
affiliate,
shareholder, director, officer, employee, partner, agent, representative, or
beneficiary of the Landlord, disclosed or undisclosed) shall be subject to levy,
execution or other enforcement procedure for the satisfaction of such claim or
judgment (or other judicial process). If a final, non-appealable judgment is
entered in favor of the Tenant against the Landlord based on any monetary claim
under this Lease, and if such judgment is not paid to the Tenant within thirty
(30) days after demand therefor, the Tenant shall be entitled to offset the
amount of such judgment against the next accruing fixed rent.
ARTICLE TWENTY-THREE
(23.)Curing Tenant's Defaults-Additional Rents
23.1. If the Tenant shall default in the observance of any provision of
this Lease, the Landlord, without thereby waiving such default, may perform the
same for the account and at the expense (which shall be reasonable, taking into
account the circumstances giving rise to the necessity to cure the Tenant's
default) of the Tenant (a) immediately or at any time thereafter and without
notice in the case of emergency (except that the Landlord shall provide notice
of such emergency to the Tenant as soon as reasonably practicable under the
circumstances but in no event shall the Landlord's failure to do so affect its
right to effect a cure of the Tenant's default) or in case such default
unreasonably interferes with the use by any other tenant of any space in the
Building or with the efficient operation of the Building or will result in a
violation of any Requirement applicable to the Land, the Building or the
Premises or any part thereof, to the Tenant's use thereof or to the Tenant's
observance of any provision of this Lease, or in a cancellation of an insurance
policy maintained by the Landlord, and (b) in any other case if such default
continues after thirty (30) days from the date of the giving by the Landlord of
notice of the Landlord's intention so to perform the same, provided, however,
that if the Tenant's default constitutes a default under any underlying lease or
underlying mortgage and the lessor or mortgagee thereof notifies the Landlord of
such default, then if the cure period afforded the Tenant extends beyond the
tenth (10th) day preceding the end of the cure period permitted to the Landlord
under the underlying lease or underlying mortgage, the Landlord may so notify
the Tenant, in which event the Landlord's right to cure the Tenant's default
will commence upon such tenth (10th) day. All costs and expenses incurred by the
Landlord in connection with any such performance by it for the account of the
Tenant and all costs and expenses, including reasonable counsel fees and
disbursements incurred by the Landlor in any action or proceeding (including any
summary dispossess proceeding) brought by the Landlord to enforce any obligation
of the Tenant under this Lease and/or right of the Landlord in or to the
Premises, shall be paid by the Tenant to the Landlord upon demand. Except as
expressly provided to the contrary in this Lease, all costs and expenses which,
pursuant to this Lease (including the rules and regulations referred to in this
Lease) are incurred by the Landlord and payable to it by the Tenant and all
charges, amounts and sums payable to the Landlord by the Tenant for any
property, material, labor, utility or other services which, pursuant to this
Lease or at the request and for the account of the Tenant, are provided,
furnished or rendered by the Landlord shall become due and payable by the Tenant
to the Landlord on the later of (i) thirty (30) days after receipt by the Tenant
of a bill from the Landlord or (ii) three (3) business days prior to the date
due to a third-party vendor. If any cost, expense, charge, amount or sum
referred to in this Section or elsewhere in this Lease is not paid when due as
provided
in this Lease, the same shall become due by the Tenant as additional rent under
this Lease. If any Rent or damages payable under this Lease is not paid within
ten (10) days after the date (the "Due Date") when due, the same shall bear
interest at the rate per annum (except as specifically set forth below in this
Section 23.1) equal to the Prime Rate (as hereinafter defined) plus (x) two (2)
percentage points, during the period from the Due Date until the earlier to
occur of (i) the date that is thirty (30) days after the Due Date and (ii) the
date that such amount is paid, (y) four (4) percentage points during the period
from the thirty-first (31st) day after the Due Date until the earlier to occur
of (i) the date that is sixty (60) days after the Due Date and (ii) the date
that such amount is paid and (z) six (6) percentage points during the period
from the sixty-first (61st) day after the Due Date until the date that such
amount is paid (but in no event shall the interest payable under clause (x), (y)
or (z) above be in excess of that permitted by law), and the amount of such
interest shall be deemed additional rent under this Lease. If there is a
nonpayment by the Tenant of any such additional rent and/or any other additional
rent becoming due under this Lease, the Landlord, in addition to any other right
or remedy, shall have the same rights and remedies as in the case of default by
the Tenant in the payment of the fixed rent. If the Tenant is in arrears in
payment of Rent beyond any applicable notice and grace period provided for under
this Lease, the Tenant waives the Tenant's right, if any, to designate the items
against which any payments made by the Tenant are to be credited, and the
Landlord may apply any payments made by the Tenant to any items the Landlord
sees fit, irrespective of and notwithstanding any designation or request by the
Tenant as to the items against which any such payments shall be credited. The
Landlord reserves the right, without liability to the Tenant and without
constituting any claim of constructive eviction, to suspend furnishing or
rendering to the Tenant any property, material, labor, utility or other service,
wherever the Landlord is obligated to furnish or render the same at the expense
of the Tenant, in the event that (but only so long as) the Tenant is in arrears
in paying the Landlord therefor at the expiration of five (5) business days
after the Landlord shall have given to the Tenant notice demanding the payment
of such arrears; provided, however, that if (but only so long as) the Tenant is
disputing in good faith Tenant's obligation to pay all of such arrears, has paid
to the Landlord all amounts due for services which are not in dispute, and is
diligently prosecuting the resolution of such dispute, then the Landlord shall
not exercise such right to suspend services; provided further, however, that if
it is determined that the Tenant owes the Landlord all or any portion of the
amount in arrears, or if the Tenant ceases to dispute in good faith its
obligation to pay all or any portion of the amount in arrears, the Tenant shall
pay to the Landlord, upon demand (and with interest thereon a rate per annum
equal to the Prime Rate plus two (2) percentage points (but in no event in
excess of that permitted by law) from the date such amount was due to the date
such amount (with interest) is paid to the Landlord) any amount that is so
determined to be owed to the Landlord and any amount which the Tenant no longer
disputes in good faith; provided further, however, that, if it is determined
that the Landlord improperly billed the Tenant for a service and that the Tenant
has remitted payment to the Landlord for all or any portion of such improperly
billed amount, then the Landlord shall pay to the Tenant, upon demand, the
amount that is so determined to have been overpaid by the Tenant. As used in
this Lease, the term "Prime Rate" shall mean, for any period of time during the
term of this Lease, the then published prime interest rate for unsecured loans
charged by The Chase Manhattan Bank, (or Citibank if The Chase Manhattan Bank,
shall not then have an announced prime rate) on loans of 90 days.
ARTICLE TWENTY-FOUR
(24.)Adjustments for Changes in Landlord's Costs and Expenses
24.1. If for any Computation Year, the R.E. Tax Share of the Real Estate
Taxes shall be greater than Base Real Estate Taxes, or 108% of the O.E. Share of
the Cost of Operation and Maintenance shall be greater than 108% of the Base
COM, then the Tenant shall pay to the Landlord, as additional rent, an amount
equal to the product obtained by multiplying such excess or excesses by the
Tenant's Area. In no event shall any payment by the Tenant in respect of (a)
Real Estate Taxes be due with respect to any period ending on or before June 30,
1999 and (b) the Cost of Operation and Maintenance be due with respect to any
period ending on or before December 31, 1999.
24.2. In order to provide for current payments on account of the
additional rent which may be payable to the Landlord pursuant to Section 24.1
for any Computation Year, the Tenant agrees to make such payments on account of
said additional rent for and during such Computation Year, as the case may be,
as follows:
(a) With respect to Real Estate Taxes, the Tenant shall pay its
share thereof in two semiannual installments in advance on the
twentieth (20th) day of June and December, each equal to the product
of the Tenant's Area, multiplied by one-half of the excess of the
R.E. Tax Share of the Real Estate Taxes for the Tax Year in which
the Landlord's corresponding tax payment falls over the Base Real
Estate Taxes, it being understood that if the tax bill for the
following Tax Year is not received in time to bill the June 20
payment, the Landlord may reasonably estimate the payment due on
June 20 based on the Landlord's reasonable estimate of the Real
Estate Taxes for such following Tax Year. If, upon issuance of the
tax bill for such following Tax Year (or upon such earlier date as
the Landlord shall have knowledge of the actual amount of such Real
Estate Taxes as finally determined by the applicable taxing
authorities), such estimated amount results in an underpayment, the
Tenant shall pay to the Landlord the amount of the underpayment. If,
upon issuance of the tax bill for such following Tax Year (or upon
such earlier date as the Landlord shall have knowledge of the actual
amount of such Real Estate Taxes as finally determined by the
applicable taxing authorities), such estimated amount results in an
overpayment, the Landlord shall, at the Tenant's election, either
pay to the Tenant an amount equal to the overpayment or permit the
Tenant a credit for such amount against future rent payments. If
there shall be any increase in Real Estate Taxes for any Tax Year,
whether during or after such Tax Year, or if there shall be any
decrease in the Real Estate Taxes for any Tax Year, whether during
or after such Tax Year, the Tenant shall pay its share of any
increase, or, to the extent the decrease does not reduce the R.E.
Tax Share of Real Estate Taxes below the Base Real Estate Taxes,
receive its share of any decrease, substantially in the same manner
as provided in the preceding two sentences. If during the term of
the Lease, eal Estate Taxes are required to be paid (to the
appropriate taxing authorities), on any other date or dates than as
presently required, then the Tenant's payments toward Real Estate
Taxes shall be
correspondingly accelerated or revised so that such payments are due
at least ten (10) days prior to the date payments are due to the
taxing authorities. Upon the receipt by the Landlord of a written
request therefor from the Tenant within three (3) years after the
end of the applicable Tax Year, the Landlord shall provide to the
Tenant a copy of any tax bill for the Building requested by the
Tenant and in the Landlord's possession.
(b) With respect to Cost of Operation and Maintenance, the Tenant
shall pay an amount each month equal to the product of the Tenant's
Area multiplied by 1/12th of the excess of 108% of the O.E. Share of
the Cost of Operation and Maintenance for such Computation Year as
reasonably estimated by the Landlord (which estimate of the Cost of
Operation and Maintenance for such Computation Year shall not exceed
105% (or such higher percentage which the Landlord can reasonably
document) of the Cost of Operation and Maintenance for the
immediately preceding Computation Year) over 108% of the Base COM,
the installment for each calendar month to be due and payable upon
the receipt from the Landlord of a bill for the same. If, as finally
determined, the amount of additional rent payable by the Tenant to
the Landlord pursuant to this Subsection for such Computation Year
shall be greater than (resulting in an underpayment) or be less than
(resulting in an overpayment) the aggregate of all the installments
so paid on account to the Landlord by the Tenant for such
Computation Year, then, promptly after the receipt of the bill for
such Computation Year and, in performance of its obligations under
Section 24.1, the Tenant shall, in case of such an underpayment, pay
to the Landlord within thirty (30) days an amount equal to such
underpayment, or the Landlord shall, in case of such an overpayment,
at the Tenant's election, either pay to the Tenant within thirty
(30) days an amount equal to such overpayment or permit the Tenant a
credit for such amount against future rent payments.
24.3. As used in this Article:
(a) "Computation Year" shall mean each calendar year in which occurs
any part of the term of this Lease and, in the case of a Default
Termination of this Lease, in which would have occurred any part of
the full term of this Lease except for such Default Termination.
(b) "Tax Year" shall mean the twelve (12) month period commencing
July 1 of each year, or such other twelve (12) month period as may
be duly adopted as the fiscal year for real estate tax purposes in
The City of New York.
(c) "Tenant's Area" shall mean the number of square feet in the
rentable area of the Office Space, the Basement Space and the
Penthouse Space, as agreed upon by the parties and set forth in
Section 1.6 hereof.
(d) "R.E. Tax Share" shall mean a fraction whose numerator is one
and whose denominator is the number of square feet of the rentable
area of the Building.
(e) "O.E. Share" shall mean a fraction whose numerator is one and
whose denominator is the number of square feet in the rentable area
of the Building. The parties agree that the Building currently
contains 2,497,153 rentable square feet for purposes of this
Article.
(f) "Real Estate Taxes" shall mean the taxes and assessments imposed
upon the Building, including without limitation assessments made as
a result of the Building or part thereof being within a business
improvement district, (other than any interest or penalties imposed
in connection therewith) and all expenses, including fees and
disbursements of counsel and experts, reasonably incurred by, or
reimbursable by, the Landlord in connection with any application for
a reduction in the assessed valuation for the Building or for a
judicial review thereof. Except as hereinafter provided, Real Estate
Taxes shall not be deemed to include (i) any taxes on the income of
the holder of an underlying mortgage and any taxes on the income of
the lessor under any underlying lease, (ii) any corporation,
unincorporated business or franchise taxes, (iii) any estate gift,
succession or inheritance taxes, (iv) any capital gains, mortgage
recording or transfer taxes, (v) any taxes or assessments
attributable to any sign attached to, or located on, the Building or
the Land or (vi) any similar taxes imposed on the Landlord, the
holder of any underlying mortgage or the lessor under any underlying
lease; provided, however, that if, due to a future change in the
method of taxation any tax of the type referred to in the foregoing
clauses (i)-(vi), or any other tax, shall be levied against the
Landlord in substitution in whole or in part for, or in lieu of, any
tax assessment, lien, or imposition which would otherwise constitute
a Real Estate Tax, such tax shall be deemed to be a Real Estate Tax
for the purposes of this Lease. Where the Real Estate Taxes are not
separately levied upon the Building and the Land but are included in
a blanket levy imposed upon or with respect to the Building and or
the Land as well as others or portions thereof, the amount of Real
Estate Taxes for the purposes of this Lease shall be determined by
allocation as follows: the amount of Real Estate Taxes for the
Building shall be deemed to be that amount which, in relation to the
total amount of said taxes for all buildings or portions thereof
included in said blanket levy, is in the same proportion as the
total rentable area of the Building bears to the total rentable area
of all the included buildings or portions thereof, and the amount of
Real Estate Taxes for the Land shall be deemed to be that amount
which, in relation to the total amount of said taxes for all land
included in said blanket levy, is in the same proportion as the
rentable area of the Building bears to the aggregate rentable area
of all buildings or portions thereof situated on said included
lands.
(g) "Cost of Operation and Maintenance" shall mean the actual cost
incurred by the Landlord or its affiliates in accordance with sound
management and accounting principles and practices generally
accepted (consistently applied) with respect to the ownership,
operation, maintenance and repair of the Building and the curbs and
sidewalks adjoining the same, including, without limitation,
the cost incurred for air conditioning; mechanical ventilation;
heating; interior and exterior cleaning; rubbish removal; window
washing (interior and exterior, including inside partitions);
elevators; escalators; hand tools and other moveable equipment to
the extent same are not required to be capitalized in accordance
with good accounting practice; porter and matron service; electric
current, steam, water and other utilities; association fees and
dues; protection and security service; repairs; maintenance;
compliance with any Preservation Agreement to the extent same are
not required to be capitalized in accordance with good accounting
practice; fire, extended coverage, boiler, sprinkler, apparatus,
rental income, public liability and property damage insurance;
supplies; wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting
service and maintenance employees, building superintendents,
concierges, managers, their assistants and clerical staffs, and
persons engaged in supervision of the foregoing; uniforms and
working clothes for such employees and the cleaning thereof;
expenses imposed pursuant to any collective bargaining agreement
with respect to such employees; payroll, social security,
unemployment and other similar taxes with respect to such employees;
sales, use and other similar taxes; vault charges, except to the
extent the related vault space is leased to a third party; franchise
fees payable to New York City in connection with the concourse
levels of Rockefeller Center; water rates; sewer rents; charges of
any independent contractor who does any work with respect to the
operation, maintenance and repai of the Building and the curbs and
sidewalks adjoining the same; legal, accounting and other
professional fees; decorations; and the annual depreciation or
amortization over the useful life thereof of costs, including
reasonable financing costs, incurred for any equipment, device or
other capital improvement made or acquired which is either intended
as a laborsaving measure or to effect other economies in the
operation of the Building and said curbs and sidewalks (but only to
the extent that the annual benefits anticipated to be realized
therefrom are reasonably anticipated to exceed the annual amount to
be amortized) or which is required by any Requirement enacted after
the date hereof; provided, that the term "Cost of Operation and
Maintenance" shall not include (1) Real Estate Taxes, special
assessments, franchise, transfer, gains, inheritance, estate,
succession, gift, corporation, unincorporated business or gross
receipts taxes or taxes imposed upon or measured by the income or
profits of the Landlord, (2) except for depreciation and
amortization specifically provided for in this subsection, the cost
of any item, including, without limitation, any improvement, repair,
alteration, change, addition (including, without limitation, any
additions to, or additional stories on, the Building or its plazas,
or additional buildings or other structures adjoining the Building,
or connecting the Building to other structures adjoining the
Building), or replacement, which is, or should in accordance with
good accounting practice be, capitalized on the books of the
Landlord, including, without limitation, rental payments for any
equipment which, in accordance with good accounting practice, is
considered to be of a capital nature, (3) the cost of any
electricity furnished to the Premises or any other space in the
Building demised or
available for lease to other tenants, (4) the cost of any work or
service performed for any tenant of space in the Building (including
the Tenant) at such tenant's cost and expense or in excess of
Building Standard, or work done prior to initial occupancy, and any
other contribution by the Landlord to the cost of tenant
improvements, or the cost of any work or service performed for any
tenant of space in the Building of a type which is not provided to
the Tenant (or which is provided to the Tenant, but at a separate or
additional charge), (5) any costs incurred with respect to any
theater or garage located in the Building, (6) advertising,
entertainment and promotional expenses, (7) all leasing commissions
and expenses of procuring tenants, including, without limitation,
lease concessions and take-over or take-back obligations, (8)
depreciation and amortization (except as otherwise provided above),
(9) interest on and amortization of det, (10) any ground rent or any
other payments payable under any lease to which this Lease is
subject, (11) any fines, late charges, interest and penalties on any
taxes, debt service and ground rent, (12) wages, fringe benefits and
salaries of employees over the rank of senior vice
president-operating (provided that the Landlord shall reasonably
apportion, if applicable, the wages, fringe benefits and salary of
such senior vice president-operating among or between the buildings
for which he or she is responsible and the amount apportioned to
buildings other than the Building shall not be included in the Cost
of Operation and Maintenance), (13) costs and expenses of lease
enforcement, including legal fees, (14) intentionally omitted, (15)
expenses resulting from any violation by the Landlord of the terms
of any lease of space in the Building or of any ground or underlying
lease or mortgage to which this Lease is subordinate, (16) amounts
received by the Landlord (through proceeds of insurance or
otherwise) to the extent they are compensation for sums previously
included in operating expenses, (17) amounts paid to any affiliate
of the Landlord for services and/or materials which is in excess of
the fair market price (it being understood that, upon the request of
the Tenant, the Landlord shall notify the Tenant of any contract for
services and/or materials between the Landlord and any such
affiliate), (18) costs incurred with respect to a sale or transfer
of all or any portion of the Building or any interest therein or in
any person or entity of whatever tier owning an interest therein,
(19) financing and refinancing costs, (20) intentionally omitted,
(21) costs for which the Landlord receives compensation through the
proceeds of insurance or for which the Landlord would have been
compensated by insurance had it carried the coverage required under
the Lease or for which the Landlord receives compensation from any
other source, (22) intentionally omitted, (23) legal fees, expenses
and disbursements incurred in connecton with leasing, sales,
financing or refinancing or disputes with tenants, (24) amounts
otherwise includable in the Cost of Operation and Maintenance but
reimbursed to the Landlord directly by the Tenant or other tenants
(other than through provisions similar to this Article Twenty-four),
(25) to the extent any costs includable in the Cost of Operation and
Maintenance are incurred with respect to both the Building and other
properties (including, without limitations, salaries, fringe
benefits and other compensation of the Landlord's personnel who
provide services to both the
Building and other properties), there shall be excluded from the
Cost of Operation and Maintenance a fair and reasonable percentage
thereof which is properly allocable to such other properties, (26)
the cost of any judgment, settlement, or arbitration award resulting
from any liability of the Landlord (other than a liability for
amounts otherwise includable in the Cost of Operation and
Maintenance hereunder) and all expenses incurred in connection
therewith, (27) the cost of acquiring or replacing any separate
electrical meter the Landlord may provide to any of the tenants in
the Building, (28) costs relating to withdrawal liability or
unfunded pension liability under the Multi-Employer Pension Plan Act
or similar law, (29) the cost of installing, operating and
maintaining any specialty facility such as an observatory,
broadcasting facilities, luncheon club, athletic or recreational
club, child care or similar facility, cafeteria or dining facility
or conference center, (30) any compensation paid to clerks,
attendants or other persons in commercial concessions operated by
the Landlord, (31) costs of acquiring, leasing, restoring,
displaying, insuring or protecting (a) sculptures, (b) paintings and
(c) other objects of art located within or outside the Building,
except for the cost of routine maintenance of such objects in the
public areas in the Building, (32) expenditures for repairing and/or
replacing any defect in any work performed by the Landlord pursuant
to the provisions of this Lease, (33) costs incurred to remedy
violations of Requirements (including, without limitation, the
Americans with Disabilities Act or New York City local law 58/87)
that arise by reason of the Landlord's failure to construct,
maintain or opeate the Building or any part thereof in compliance
with such Requirements, other than such costs incurred in order to
achieve compliance with new Requirements (including any changes in
any Requirements) enacted after the date hereof which may be
amortized as provided in the definition of Cost of Operation and
Maintenance, (34) expenses allocable directly and solely to the
retail space of the Building (including, without limitation, plate
glass insurance), (35) intentionally omitted, (36) costs incurred in
connection with the acquisition or sale of air rights, transferable
development rights, easements or other real property interests, (37)
any insurance costs that are not customary for first-class office
buildings located in Manhattan and any increased insurance costs
reimbursed directly to the Landlord by a tenant, including, without
limitation, the Tenant, pursuant to their respective leases, (38)
costs incurred by the Landlord which result from a tenant's (other
than the Tenant) breach of a lease or the Landlord's tortious or
negligent conduct, (39) the cost of repairs or replacements or
restorations by reason of fire or other casualty or condemnation,
(40) costs and expenses incurred by the Landlord in connection with
any obligation of the Landlord to indemnify any tenant of the
Building (including the Tenant) pursuant to its lease or otherwise,
(41) the cost paid or incurred in connection with the removal,
replacement, enclosure, enclosure, encapsulation or other treatment
of any substances in the Building which constitute hazardous
substances as of the date of this Lease, (42) all costs incurred by
the Landlord in respect of modifications or upgrades to the
Landlord's computer hardware or software systems required for the
proper functioning of the Landlord's computer systems for, or with
respect to, the year 2000 and thereafter, (43) the cost of
electricity and overtime heating, ventilating and air conditioning
furnished to any rentable space in the Building, whether or not
leased to tenants, and (44) costs(including, without limitation, any
taxes or assessments) incurred in connection with any sign attached
to, or located on, the Land or the Building. If during any period
for which the Cost of Operation and Maintenance is being computed,
including the Computation Years used to calculate the Base COM, the
Landlord is not for all or any part of such period furnishing any
particular work or service (the cost of which if performed by the
Landlord would constitute a Cost of Operation and Maintenance) to a
portion of the Building due to the fact that such portion is not
leased to a tenant or that the Landlord is not obligated to perform
such work or service in such portion, then the amount of the Cost of
Operation and Maintenance for such period shall be deemed, for the
purposes of this Article, to be increased by an amount equal to the
additional Cost of Operation and Maintenance which would reasonably
have been incurred during such period by the Landlord if it had
furnished such work or service. The Landlord, upon request by the
Tenant, shall specifically identify all amounts which are "grossed
up" in each Computation Year pursuant to the immediately preceding
sentence and, upon request, provide the Tenant with reasonable
back-up for such gross-up.
(h) "Base Real Estate Taxes" shall mean the R.E. Tax Share of the
Real Estate Taxes for the Tax Year commencing on July 1, 1998 and
ending on June 30, 1999.
(i) "Base COM" shall mean the O.E. Share of the Cost of Operation
and Maintenance for the Computation Year commencing on January 1,
1999 and ending on December 31, 1999.
24.4. If the term commencement date shall be a day other than a January 1
or the date fixed for the expiration of the full term of this Lease shall be a
day other than December 31, or if there is any abatement of the fixed rent
payable under this Lease or any termination of this Lease (other than a Default
Termination), or if there is any increase or decrease in the Tenant's Area, then
in each such event in applying the provisions of this Article Twenty-four with
respect to any Tax Year or Computation Year in which such event occurred,
appropriate adjustments shall be made (which, in the case of any such abatement
of fixed rent, shall include an abatement of additional rent payable pursuant to
this Article Twenty-four) to reflect the result of such event on a basis
consistent with the principles underlying the provisions of this Article, taking
into consideration (a) the portion of such Tax Year or Computation Year, as the
case may be, which shall have elapsed prior to or after such event, (b) the
rentable area of the Office Space affected thereby, and (c) the duration of such
event.
24.5. The Tenant shall not (and hereby waives any and all rights it may
now or hereafter have to) institute or maintain any action, proceeding or
application in any court or
other body having the power to fix or review assessed valuations, for the
purpose of reducing the Real Estate Taxes.
24.6. In the event the Landlord fails to bill the Tenant for Tenant's
share of Real Estate Taxes or Cost of Operation and Maintenance by the time such
amounts would otherwise be due and payable hereunder, the Tenant shall pay the
amount most recently billed for the item in question, subject to subsequent
adjustment to reflect the correct amount due.
24.7. When requested by the Tenant within nine (9) months following the
receipt by it of any Escalation Statement, the Landlord, in substantiation of
its determination of the amounts set forth in said Escalation Statement, will
furnish to the Tenant such additional information as reasonably may be required
by the Tenant for such purpose, and, as may be reasonably necessary for the
verification of such information, will permit the pertinent records of the
Landlord (i.e., the records relating to the particular items of Cost of
Operation and Maintenance under review by the Tenant the year in question and
the two (2) prior years (including, if applicable, the two (2) prior years
preceding the earliest year being utilized to determine the Base COM)) to be
examined and copied by an officer of the Tenant or by the Tenant's Audit
Representative (as hereinafter defined), as the Tenant may designate (subject
however, to the execution of a confidentiality agreement by the Tenant and its
Audit Representative in form reasonably acceptable to the Landlord); it being
expressly understood that the Landlord shall be under no duty to preserve any
such records, or any data or material related thereto, beyond such time as shall
be its customary practice with respect thereto (which at the present time is
three (3) years). For purposes of this Article Twenty-four: (a) "Escalation
Statement" shall mean a final statement setting forth the amount payable by the
Tenant or the Landlord, as the case may be, for a specified Computation Year
pursuant to this Article Twenty-four; and (b) "Audit Representative" shall mean
an independent and reputable, certified public accounting firm, which firm is
not being compensated by the Tenant for its services on a contingency or success
fee basis, and which shall employ only certified public accountants who are
full-time, regular employees of such firm in connection with such verification.
ARTICLE TWENTY-FIVE
(25.)Miscellaneous
25.1. If upon the request of the Tenant the Landlord shall consent to the
omission or removal of any part of, or the insertion of any door (other than to
a public corridor) or other opening in, any wall separating the Premises from
other space adjoining the Premises, then (a) the Tenant shall be deemed to have
assumed responsibility for all risks (including, without limitation, damage to,
or loss or theft of, property) incident to the use of said door or other opening
or the existence thereof, and shall indemnify and save the Indemnitees harmless
from and against any claim, demand or action for, or on account of, any such
loss, theft or damage, and (b) upon the expiration or termination of this Lease
or any lease of said adjoining space, the Landlord may enter the Premises and
close up such door or other opening by erecting a wall to match the wall
separating the Premises from said adjoining space, and the Tenant shall pay the
reasonable cost thereof and, subject to Section 6.1(c) above, such work may be
done during Business Hours and while the Tenant is in occupancy of the Premises
and the Tenant shall not
be entitled to any abatement of fixed rent or other compensation on account
thereof; provided, that nothing shall be deemed to vest the Tenant with any
right or interest in, or with respect to, said adjoining space, or the use
thereof, and the Tenant hereby expressly waives any right to be made a party to,
or to be served with process or other notice under or in connection with, any
proceeding which may hereafter be instituted by the Landlord for the recovery of
the possession of said adjoining space.
25.2. Without incurring any liability to the Tenant and upon notice to the
Tenant as soon as may be reasonably practicable under the circumstances (whether
prior to or thereafter), the Landlord may permit access to the Premises or any
of the Licensed Spaces and open the same, whether or not the Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, the Tenant's property or for any other purpose (but this
provision and any action by the Landlord hereunder shall not be deemed a
recognition by the Landlord that the person or official making such demand has
any right or interest in or to this Lease, or in or to the Premises or any of
the Licensed Spaces), or upon demand of any representative of the fire, police,
building, sanitation or other department of the city, state or federal
government.
25.3. If an excavation shall be made upon any land adjacent to the
Building, or shall be authorized to be made, the Tenant shall afford to the
person causing or authorized to cause such excavation a license to enter upon
the Premises for the purpose of doing such work as said person shall deem
necessary to preserve the Building from injury or damage, all without any claim
for damages or indemnity against the Landlord or diminution or abatement of
rent.
25.4. The headings of the Articles of this Lease are for convenience only
and are not to be considered in construing said Articles.
25.5. As used in this Section, the term "facility" means stores,
restaurants, cafeterias, rest rooms, and any other facility of a public nature
in the Building. The Tenant will not discriminate by segregation or otherwise
against any person or persons because of race, creed, color, sex (except as
appropriate in the case of rest rooms) or national origin in furnishing, or by
refusing to furnish, to such person or persons the use of any facility in the
Premises, including any and all services, privileges, accommodations, and
activities provided thereby. The Tenant's noncompliance with the provisions of
this Section shall constitute a material breach of this Lease. In the event of
such noncompliance, the Landlord may take appropriate action to enforce
compliance, may terminate this Lease in accordance with the provisions of this
Lease, or may pursue such other remedies as may be provided by law. In the event
of termination, the Tenant shall be liable to the Landlord for damages in
accordance with the provisions of this Lease.
25.6. If the Tenant holds-over in the Premises after the expiration or
termination of this Lease without the consent of the Landlord, the Tenant shall
pay as hold-over rental (a) for each of the first three (3) months of the
hold-over tenancy, an amount equal to 125% of the Rent which Tenant was
obligated to pay for the month immediately preceding the expiration or
termination of this Lease and (b) for each month after the first three (3)
months of the hold-over
tenancy, an amount equal to the greater of (i) 150% of the fair market rental
value of the Premises for such month and (ii) 150% of the Rent which Tenant was
obligated to pay for the month immediately preceding the expiration or
termination of this Lease; provided, however, that, subject to the provisions of
Section 25.12 below, nothing in the foregoing provisions of this Section 25.6
shall be construed to limit or preclude any other rights or remedies available
to the Landlord at law or in equity by reason of such holding-over by the
Tenant, including, without limitation, the recovery by the Landlord against the
Tenant of any sums or damages to which, in addition to the damages specified
above, the Landlord may lawfully be entitled. No holding-over by the Tenant, nor
the payment to the Landlord of the amounts specified above, shall operate to
extend the term of this Lease.
25.7. Any obligation of the Landlord or the Tenant which by its nature or
under the circumstances can only be, or by the provisions of this Lease may be,
performed after the expiration or earlier termination of this Lease, and any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such expiration or termination, unless expressly
otherwise provided in this Lease, shall survive the expiration or earlier
termination of this Lease.
25.8. If any provision of this Lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
25.9. It is the intention of the Landlord and the Tenant to create the
relationship of landlord and tenant, and no other relationship whatsoever, and
nothing herein shall be construed to make the Landlord and the Tenant partners
or joint venturers, or to render either party hereto liable for any of the debts
or obligations of the other party.
25.10. The Landlord and the Tenant acknowledge that (i) improvements
(including Fixtures) made or installed by the Tenant in the Premises do not
constitute consideration for the granting of this Lease to the Tenant and (ii)
there has been no adjustment in the fixed or additional rent payable under this
Lease on account of such improvements (including Fixtures).
25.11. If there is any payment required to be made by the Tenant under
this Lease for which no time period is stated within which the payment must be
made, or where this Lease requires any payment to be made "upon demand", such
payment shall be made within thirty (30) days after demand by the Landlord.
25.12. Notwithstanding anything contained in this Lease to the contrary,
in no event shall either the Landlord or the Tenant be liable to the other for
consequential damages.
25.13. Wherever this Lease specifically provides for a dispute to be
resolved in accordance with the expedited dispute resolution procedure set forth
in this Section 25.13, such dispute shall, at either party's option, be resolved
and finally determined by arbitration
conducted in the City and County of New York in accordance with the rules of the
AAA (as defined in Section 33.4.1) and the following provisions of this Section
25.13:
(a) Within five (5) business days following the giving of any notice
by the Landlord or the Tenant stating that it wishes such dispute to
be so resolved, the parties shall attempt to agree on a single
arbitrator (the "Single Arbitrator"). The Single Arbitrator shall be
a qualified, disinterested and impartial person who shall have had
at least 10 years experience in New York City in a calling related
to the subject matter of the dispute. If the parties are unable to
agree on the Single Arbitrator within such five (5) business day
period, either party, upon notice to the other party, may request
the AAA to appoint the Single Arbitrator meeting the foregoing
requirements. If the AAA shall refuse to appoint the Single
Arbitrator or fail to do so within five (5) after the request, or if
there shall be no AAA in existence, either party hereto, on behalf
of both, may apply for the appointment of the Single Arbitrator to
the President of the Bar Association of the City of New York or, if
said President does not appoint the Single Arbitrator within
ten (10) days of such application, to the Supreme Court in the
County of New York, and the other party shall not raise any
objection as to said President's or the Court's full power and
jurisdiction to entertain the application and make such appointment.
(b) The Single Arbitrator shall be directed to reach a written
decision within ten (10) business days following his or her
appointment. The Landlord and the Tenant shall each have the right
to appear and be represented by counsel before the Single Arbitrator
and to submit such data and memoranda in support of their respective
positions in the matter in dispute as they may deem necessary or
appropriate in the circumstances. The Single Arbitrator, in
rendering his or her decision, shall not add to, subtract from or
otherwise modify the provisions of this Lease. The Single
Arbitrator's decision, determined as provided in this Section 25.13,
shall be conclusive and binding on the parties, shall constitute an
"award" by the Single Arbitrator within the meaning of AAA rules and
judgment may be entered thereon in any court of competent
jurisdiction.
(c) Each party shall pay its own counsel fees and expenses, if any,
in connection with any arbitration under this Section 25.13 (unless
the Single Arbitrator shall have awarded counsel fees and expenses
to the prevailing party upon a finding of bad faith by the other
party), and the parties shall share all other expenses and fees of
any such arbitration (unless the Single Arbitrator shall have
directed that one party pay such expenses and fees upon a finding of
bad faith by such party).
25.14. Whenever this Lease shall provide that Landlord or Tenant shall pay the
out-of-pocket costs of the other party, such out-of-pocket costs shall be
reasonable.
25.15. Anything in this Lease to the contrary notwithstanding, CD Radio, the
Tenant named herein, shall be permitted to install signage in the elevator
lobbies on each floor of the Office Space without the Landlord's prior written
consent, provided that such signage shall be
consistent with the quality of the signage installed by multi-floor tenants in
the elevator lobbies on floors in the Building on which such tenants are the
sole occupants.
25.16. In the case of any conflict between the provisions of this Lease and the
exhibits attached hereto, the provisions of this Lease shall control.
ARTICLE TWENTY-SIX
(26.)Security
26.1. The Tenant has deposited, and shall maintain on deposit with
Landlord at all times during the term of this Lease, one or more clean,
unconditional, irrevocable letter(s) of credit (each a "Deposit L/C" and
collectively, the "Deposit L/Cs") having an aggregate value at all times equal
to or greater than the Required Amount (as defined in Section 26.3 below) as
security for the full and faithful keeping, observance and performance of all of
the covenants, agreements, terms, provisions and conditions of this Lease
required to be kept, observed or performed by the Tenant (expressly including,
without being limited to, the payment as and when due of the fixed rent,
additional rent, percentage rent, if any, and any other sums or damages payable
by the Tenant under this Lease) and the payment of any and all other damages for
which the Tenant shall be liable by reason of any act or omission contrary to
any of said covenants, agreements, terms, provisions or conditions. Every
Deposit L/C shall be issued by a bank which is a member of the New York Clearing
House Association with offices for banking purposes in the City of New York,
having a net equity or combined capital and surplus of not less than One Billion
and 00/100 Dollars ($1,000,000,000.00), and which bank is reasonably acceptable
to the Landlord and every Deposit L/C shall be substantially in the form of the
letter of credit attached hereto as Exhibit D and made a part hereof. If any
Deposit L/C provides that the amount drawable thereunder shall cease to be
available on a date prior to the date which is six (6) months after the
expiration of the Term of this Lease, or if the issuing bank shall give written
notice to the Landlord that it will not extend such Deposit L/C for an
additional twelve (12) months beyond the then current expiry date, the Tenant
shall, at least thirty (30) days prior to the date specified in such Deposit L/C
as being the date on which such drawable amount will cease to be available, or
the then current expiry date, as the case may be, either furnish to the Landlord
a renewal or extension of such Deposit L/C or a new Deposit L/C. Failure to
comply with the provisions of the preceding sentence prior to the commencement
of any such thirty (30) day period, shall constitute a default under this Lease
and the Landlord may, at any time during such thirty (30) day period, draw upon
such Deposit L/Cs and retain as a cash deposit hereunder the amount so drawn. If
at any time the Tenant shall be in default in the payment as aforesaid of any
fixed rent, additional rent and/or any other sums or damages or shall otherwise
be in default in the keeping, observance or performance of any of the covenants,
agreements, terms, provisions or conditions of this Lease beyond the applicable
notice and grace periods set forth in this Lease, then the Landlord, at the
Landlord's election, may draw upon the Deposit L/Cs to the extent required for
the payment of the fixed rent, additional rent, other sums or damages in respect
of which the Tenant is so in default and/or, if the Tenant is otherwise in
default in the keeping, observing or performing as aforesaid of any of the
covenants, agreements, terms, provisions or conditions of this Lease, the
Landlord may draw upon the Deposit L/Cs to the extent required for the payment
of such costs and expenses
as the Landlord shall incur in curing any such default without relieving the
Tenant of its obligation to the extentthe funds available under the Deposit L/Cs
are inadequate. If the Landlord shall so draw upon any Deposit L/C, the Tenant
shall, upon demand, immediately deposit with the Landlord a new Deposit L/C in
an amount equal to the amount so drawn. If, at any time after the payment by the
Tenant to the Landlord of any amounts required to be paid by the Tenant under
this Lease, the Landlord is required to return or repay to the Tenant, for any
reason in connection with the bankruptcy or insolvency of the Tenant, any fixed
rent or additional rent, or any other sums paid by the Tenant to the Landlord
under this Lease, then, at the Landlord's election, the Deposit L/Cs may be
drawn upon and the proceeds thereof applied by the Landlord to offset all or any
portion of the amounts so returned or repaid. If the Tenant shall fully and
faithfully pay, perform and observe all of the covenants and obligations to be
paid, performed and/or observed on the part of the Tenant under this Lease, all
of the Deposit L/Cs shall be returned to the Tenant in accordance with the
provisions of Section 26.2(d) below after the expiration of the term of this
Lease and delivery to the Landlord of possession of the Premises and the
Licensed Spaces in accordance with the provisions of Section 6.1(h) of this
Lease and payment by the Tenant of its obligations under Section 4.1 above, if
any, to remove the Salvageable Fixtures designated by the Landlord from the
Premises and/or the Licensed Spaces. The provisions of this Article Twenty-six
relating to periods after the expiration or earlier termination of this Lease
shall survive the expiration or earlier termination of this Lease.
26.2. (a) The term "Required Amount" as used in this Article Twenty-six
shall mean $6,250,000, for the period from the date hereof until the third (3rd)
anniversary of the term commencement date, thereafter, reducing as follows:
(i) In each year during the term of this Lease, from and
after the third (3rd) anniversary of the term
commencement date, that the Tenant's Gross Revenues (as
hereinafter defined) equal or exceed $200,000,000 but
are less than $350,000,000, the Required Amount shall be
reduced by $1,000,000, but in no event shall the
Required Amount ever be less than $2,000,000.
(ii) If, in any year during the term of this Lease from and
after the third (3rd) anniversary of the term
commencement date, the Tenant's Gross Revenues equal or
exceed $350,000,000, the Required Amount shall be
reduced to $2,000,000.
(iii) From and after the date which is thirty (30) days after
the later to occur of the expiration of the term of this
Lease and the date upon which the Tenant shall have
delivered to the Landlord possession of the Premises and
the Licensed Spaces in accordance with the provisions of
Section 6.1(h) of this Lease, the Required Amount shall
be reduced to $250,000.
(b) Anything in this Section 26.2 or elsewhere in this Lease to the
contrary notwithstanding, if, at any time during the term of this Lease (i) the
Tenant shall default in observing any provision of that certain indenture
agreement for 15% senior secured discount
notes due December 1, 2007, dated as of November 26, 1997 and issued by CD Radio
Inc. to IBJ Schroder Bank and Trust Company (the "Indenture") or (ii) the
satellite radio broadcast license granted to the Tenant by the Federal
Communications Commission ("FCC") on October 10, 1997 is transferred by the
Tenant (other than to an Assignee), revoked by the FCC or otherwise limited or
invalidated, the reductions in the Required Amount provided for in Section
26.2(a) above shall cease until such time as the default under the Indenture is
cured and/or such license is fully reinstated or replaced by the FCC with
another satellite radio broadcast license of at least equal scope and utility .
(c) As used in this Article Twenty-six: (i) "Gross Revenues" shall
mean for any period, all revenues from the operations of the Tenant during such
period, determined in accordance GAAP, as verified in a sworn statement of the
chief financial officer of the Tenant, or as certified by an independent
certified public accountant reasonably acceptable to the Landlord, delivered to
the Landlord together with all supporting documentation reasonably requested by
the Landlord, provided, however, that in no event shall Gross Revenues include
(i) any gain arising from any writeup of assets, (ii) any loan proceeds,
(iii) proceeds or payments under insurance policies (other than proceeds or
payments for business interruption), (iv) gross receipts earned by licensees,
concessionaires or similar third parties except for any portion of such receipts
which are shared by the Tenant, (v) condemnation proceeds or sales proceeds in
lieu of and/or under threat of condemnation, (vi) refunds, rebates, discounts,
credits, etc. which are paid, retained or received by the Tenant, or (vii) any
other extraordinary items which are received by the Tenant other than in the
ordinary course of the Tenant's business; and (ii) "GAAP" shall mean generally
accepted accounting principles in the United States of America in effect from
time to time, applied on a consistent basis both as to classification of items
and amounts.
(d) If, as a result of any reduction in the Required Amount, the
Landlord is holding Deposit L/Cs in an aggregate amount that exceeds the
Required Amount, the Landlord shall return to the Tenant the Deposit L/Cs then
held by the Landlord in exchange for new Deposit L/Cs, so that thereafter the
Landlord shall hold Deposit L/Cs in an aggregate amount equal to the Required
Amount. If at any time the aggregate amount of the Deposit L/Cs then held by the
Landlord shall be less than the Required Amount, the Tenant shall forthwith
deposit with the Landlord one or more additional Deposit L/Cs in an aggregate
amount equal to the deficiency.
ARTICLE TWENTY-SEVEN
(27.)Brokerage Commission
27.1. Each party represents to the other that the only brokers with which
it has dealt in connection with this Lease are Rockefeller Center Management
Corporation and The Staubach Company of New York, LLC (collectively, the
"Brokers"). Each party shall indemnify and save harmless their respective
Indemnitees from and against all liability, claims, suits, demands, judgments,
costs, interest and expenses (including reasonable counsel fees and
disbursements incurred in the defense thereof) arising out of any claim for
commission or other compensation made by a broker claiming through the
indemnifying party (except, that Tenant
shall not be liable for any claim made by the Brokers). The Landlord shall be
obligated to pay any commissions owing to the Brokers pursuant to a separate
agreement between Landlord and each of the Brokers.
ARTICLE TWENTY-EIGHT
(28.)Quiet Enjoyment
28.1. Provided that the Tenant is not in default under this Lease beyond
any applicable notice and grace period, the Landlord covenants that the Tenant
shall quietly enjoy the Premises without hindrance or molestation by the
Landlord or by any other person lawfully claiming the same, subject, however, to
the provisions of this Lease.
ARTICLE TWENTY-NINE
(29.)Hazardous Substances
29.1. The Tenant shall not (a) cause or permit to be brought onto the Land
or into the Building or the Premises any hazardous substances, (b) cause or
permit the storage or use of any hazardous substances in or about the Premises
or any part thereof, or (c) cause or permit the escape, disposal or release of
any hazardous substances in, on or in the vicinity of the Building or the Land;
provided, that nothing herein shall prohibit the Tenant's use of small
quantities of hazardous substances customarily used by tenants of office space
similar to the Premises in the ordinary course of office operations if such use
is in fact for such ordinary course of office operations and is in compliance
with all Requirements and the provisions of this Lease and otherwise in a safe
and secure manner.
29.2. "Hazardous substances" are (i) any "hazardous wastes" as defined by
the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et
seq.), as amended, and regulations promulgated thereunder; (ii) any "hazardous,
toxic or dangerous waste, substance or material" specifically defined as such in
(or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended, and
regulations promulgated thereunder; and (iii) any hazardous, toxic or dangerous
chemical, biological or other waste, substance or material as defined in any
so-called "superfund" or "superlien" law or any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct concerning such waste,
substance or material; including, without limiting the generality of the
foregoing, asbestos, radon, urea formaldehyde, polychlorinated biphenyls, and
petroleum products including gasoline, fuel oil, crude oil and various
constituents of such products. Without limiting the generality of Section 6.1(j)
hereof, the Tenant agrees that the covenants and warranties contained in this
Article are included within the matters as to which the Indemnities shall be
indemnified pursuant to said Section 6.1(j).
29.3. The covenants contained in this Article shall survive the expiration
or earlier termination of this Lease.
ARTICLE THIRTY
(30.)Asbestos: Inspection and Removal
30.1. With respect to the Initial Tenant Alterations of each floor of the
Premises constituting a part of the Office Space (if the Landlord shall not
theretofore have delivered the same to the Tenant in satisfaction of the Term
Commencement Conditions), the Landlord shall, within one (1) business day after
the later to occur of (a) the date on which the Landlord shall have consented to
the final Working Drawings for the Initial Tenant Alterations of the Office
Space and (b) the date on which the Landlord satisfies the asbestos removal Term
Commencement Condition set forth in Paragraph 3 of Exhibit B attached hereto,
furnish to the Tenant an ACP-5 Form with respect to such Initial Alterations
sufficient to permit the Tenant to prosecute such Initial Tenant Alterations in
the Office Space as an "asbestos-free" project, provided that such final Working
Drawings shall not provide for any work to be performed behind any perimeter
induction units, within any perimeter walls or within any columns or shafts in
any part of the Premises or the core of the Building, including, without
limitation, pipe and conveyor shafts and minor areas of non-friable
asbestos-containing fireproofing at certain points on inaccessible structural
members. If the Landlord is unable to deliver an ACP-5 Form for the Initial
Tenant Alterations to the Office Space because such final Working Drawings
affect asbestos-containing areas outside of the Office Space, then the
provisions of Section 30.2.1 et seq. shall apply. The Tenant's submission of
such final Working Drawings in accordance with Section 31.1 and Section 6.2
shall prominently include in bold type the following notice:
"IF THE LANDLORD SHALL FAIL TO DELIVER THE
REQUIRED ACP5 FORM WITHIN THE TIME PERIOD
PROVIDED IN SECTION 30.1 OF THE LEASE, THE
TENANT MAY BE ENTITLED TO AN ABATEMENT OF
FIXED RENT"
If the Tenant's submission of such final Working Drawings shall include such a
notice and if the Landlord shall fail to deliver an ACP-5 Form with respect to
any such initial Alterations within the required time period, then, in addition
to any other abatements of fixed rent provided in this Lease, the fixed rent
payable hereunder with respect to the Office Space shall be abated in an amount
equal to one (1) day's fixed rent for each day after the expiration of such time
period that the Landlord fails to deliver the required ACP-5 Form. If the
Tenant's submission shall not include such a notice, then the Tenant shall not
be entitled to such abatement for any period prior to the day which is one (1)
business day after the date on which the Tenant shall subsequently give such a
notice.
30.2.1. Prior to the commencement of any demolition work or construction work
(other than construction of the Initial Tenant Alterations of the Office Space)
in any portion of the Premises or any of the Licensed Spaces, the Tenant, at its
sole cost and expense, shall cause a reputable New York City certified asbestos
investigator, selected by the Tenant and reasonably acceptable to the Landlord,
to conduct an inspection of the affected portion of the Premises (other than
behind any perimeter induction units, within any perimeter walls, or within any
columns or
shafts) for the purpose of detecting the presence of asbestos therein and
determining whether any such asbestos is required to be removed therefrom or
remediated therein in connection with the demolition of any existing
improvements and/or the construction of any Alterations.
30.2.2. If the report with respect to any asbestos inspection conducted in
accordance with Section 30.2.1 above indicates no presence of asbestos, or that
no removal or remediation is required to be performed in connection with such
demolition and with the construction of the Tenant's proposed Alterations, the
Tenant, at its sole cost and expense (subject to the provisions of Section
30.5(a) below), shall obtain and furnish to the Landlord a properly executed
ACP-5 Form for the affected portion of the Premises to the effect that no
asbestos removal or remediation is required to be performed in a such space in
connection with such demolition or with the construction of the proposed
Alterations. If the report with respect to any asbestos inspection conducted in
accordance with Section 30.2.1 above indicates that asbestos removal or
remediation is required to be performed in such space, the Landlord, at the
Landlord's sole cost and expense with respect to any asbestos (other than
asbestos introduced into the Premises by any Tenant Party), in the Office Space
(other than behind any perimeter induction units, within any perimeter walls, or
within any columns or shafts), and at the Tenant's sole cost and expense with
respect to any asbestos in any other portion of the Premises or in any of the
Licensed Spaces indicated in such report, shall initiate an ACP-7 Form and shall
perform all required asbestos removal and/or remediation in compliance with all
Requirements. Except as mandated by Requirements, the Landlord shall not be
required to remove or remediate any asbestos located behind perimeter induction
units, within any perimeter walls, within any columns, or within any shaft area
in the core, including, without limitation, pipe and conveyor shafts and minor
areas of non-friable asbestos containing fireproofing at certain points on
inaccessible structural members and, except as mandated by Requirements, any
asbestos located in such areas may be encapsulated; provided, however, that all
other asbestos shall be removed. Promptly upon completion of any required
asbestos removal and/or remediation, the Landlord shall notify the Tenant and
shall deliver to the Tenant (a) a clean air certification issued by a licensed
independent testing laboratory (i.e., one that is not affiliated in any way with
the entity performing the asbestos removal work) certifying that the level of
airborne asbestos in the affected portion of the Premises and/or the Licensed
Spaces is at or below the maximum level permitted by applicable Requirements,
and (b) an ACP-5 Form sufficient to permit the Tenant to commence the proposed
demolition and Alterations as an "asbestos free" project. Within ten (10) days
after receipt of the Landlord's demand therefor, which shall state with
reasonable specificity how the Landlord calculated the same, the Tenant shall
pay to the Landlord, as additional rent, the Tenant's share of the cost of the
asbestos removal and/or remediation.
30.3. In connection with any required asbestos removal and/or remediation
required to be performed by the Landlord, at the Landlord's cost and expense, in
the Office Premises in accordance with the provisions of Section 30.2.1 and
Section 30.2.2 above, the fixed rent with respect to the portion of the Office
Space in which such removal and/or remediation work is performed shall be abated
one (1) day for each day during the period commencing on the earlier to occur of
(a) the date on which the Tenant reasonably determines that such portion of the
Office Space is untenantable by reason of the health hazard created by the
existence of such asbestos and the Tenant actually ceases to use and occupy such
portion of the Office Space, and (b) the date on which the Landlord commences
such removal and/or remediation work in the
affected portion of the Office Space, and ending on the date on which the
Landlord shall obtain (or with the exercise of reasonable diligence in the
performance of such work would have obtained but for the occurrence of any delay
in the performance of such work which shall be due to any act or omission of the
Tenant or any Tenant Party) an ACP5 Form sufficient to permit the Tenant to
commence the demolition and/or construction of the affected portion of the
Office Space as an "asbestos free" project. The abatement provided for in this
Section 30.3 shall be the Tenant's sole remedy in the event that asbestos shall
be required to be removed and/or remediated in the Office Space; provided,
however, that the foregoing shall not limit the right of any person to assert a
claim against the Landlord for any injury arising from exposure to asbestos in
the Office Space, other than asbestos introduced into the Premises by any Tenant
Party.
ARTICLE THIRTY-ONE
(31.)Work by Tenant
31.1. Provided that the Tenant shall have obtained the Landlord's prior
written consent thereto, and shall otherwise have complied with the provisions
of this Lease (including, without limitation, Section 6.1(e) and Section 6.2),
the Tenant may perform such Alterations in the Premises and to the Licensed
Spaces as shall be desired by the Tenant (consistent with the design,
construction and equipment of the Building and in conformity with its standards)
to prepare the same for the Tenant's use and occupancy thereof and for the
conduct of the Tenant's business therein (such Alterations being herein called
the "Initial Tenant Alterations"). The Initial Tenant Alterations shall include,
but shall not be limited to: (a) the installation of a sprinkler fire
suppression system (including the main sprinkler loop and all branch work and
other distribution required by all Requirements) on each floor (including all
bathrooms and service areas) of the Premises constituting the Office Space, (b)
the Bathroom Work and (c) the Call Button Work. The Working Drawings for the
Initial Tenant Alterations shall be prepared by (i) HLW International LLP and
Edwards and Zuck, P.C., each of whom the Landlord hereby confirms is acceptable
to the Landlord, or (ii) another Acceptable Architect.
31.2. The workmen and the contractors performing the Initial Tenant
Alterations and the manner, terms and conditions upon which the same is
performed shall be reasonably satisfactory to and consented to by the Landlord.
The work shall at all times comply with (a) all Requirements and (b) with the
reasonable rules and regulations of the Landlord dated January, 1997 (a copy of
which has been delivered to the Tenant) pertaining to the performance thereof.
31.3. Within sixty (60) days after the substantial completion of the
Initial Tenant Alterations, the Tenant shall deliver to the Landlord (a) general
releases and waivers of lien from each contractor, subcontractor and materialman
who shall have performed work and/or furnished the materials for a price in
excess of $50,000 in the aggregate, (b) a certificate from the Tenant's
architect certifying that the work has been substantially completed in
accordance with all applicable rules and regulations, Requirements and the
Working Drawings, and (c) either (i) a detailed list of completed work and
copies of paid bills certified by an officer of the Tenant reasonably acceptable
to the Landlord and a certificate signed by the Tenant's general contractor
stating that all contractors, subcontractors and materialmen have been paid for
all
work and materials furnished through such date, or (ii) an AIA Form G-702/703
certified by the Tenant's general contractor and reasonably acceptable to the
Landlord. Notwithstanding the foregoing, but in all events subject to the
Tenant's obligation to keep the Premises and the Building free of liens, the
Tenant shall not be required to deliver to the Landlord any general release or
waiver of lien, as required by the preceding sentence, if the Tenant shall be
disputing in good faith the payment which would otherwise entitle the Tenant to
such release or waiver, provided that the Tenant shall keep the Landlord advised
in a timely fashion of the status of any such dispute and the basis therefor and
the Tenant shall deliver to the Landlord the general release or waiver of lien
when any such dispute is settled.
31.4. The Landlord shall, at such time as the applicable Building systems
are operational, allow the Tenant (a) final connections to the Building Class
"E" system for the Tenant's new strobe control panel and (b) reasonably
sufficient capacity in the Building Class "E" system for connection of wiring
from the Tenant's new systems, equipment and devices to be installed and
maintained by the Tenant (such as a pre-action sprinkler system, area smoke
detectors, door release controls, etc.) and which such systems, equipment and
devices shall be monitored and/or controlled directly by the Building Class "E"
system. Additionally, at such time as the Building systems are operational, the
Landlord shall, at the Tenant's sole cost and expense, connect to such Building
Class "E" system the Tenant's sprinkler system flow and tamper switches and
shall thereafter maintain such switches, subject to ordinary wear and tear and
any damage caused by any Tenant Party.
31.5. Provided that the Tenant shall not have exercised its option
pursuant to Article Thirty-nine to add the Additional Penthouse Space to the
Premises prior to the Tenant's commencement of the Initial Tenant Alterations to
the Penthouse Space, the Tenant, at the Tenant's sole cost and expense, shall
provide and install a demising wall in the Penthouse Space as part of the
Initial Tenant Alterations, in a location to be designated by the Landlord (a)
reasonably in accordance with the diagram attached hereto as Exhibit A-3 and (b)
in accordance with the applicable provisions of this Lease (including, without
limitation, Section 6.1(e)).
ARTICLE THIRTY-TWO
(32.)[Intentionally Omitted]
ARTICLE THIRTY-THREE
(33.)Renewal Options
33.1. Subject to the Tenant's compliance with the Renewal Conditions (as
hereinafter defined), the Tenant may elect to extend and renew (a) the term of
this Lease with respect to (i) all of the Premises, or (ii) (A) either the 36th
Floor Space or the 37th Floor Space and (B) the Basement Space and the Penthouse
Space (whichever the Tenant shall elect is herein called the "Renewal
Premises"), and (b) the term of the licenses of the Licensed Spaces, in each
case, for one five-year period, as hereinafter provided, by giving written
notice thereof (the "Renewal Notice") to the Landlord not later than fifteen
(15) months prior to the expiration of the initial
term of this Lease, as to which date time is of the essence. The Renewal Notice
shall include the Tenant's election of the space that will constitute the
Renewal Premises and a request that the Landlord deliver to the Tenant the
Landlord's binding estimate of the Fair Market Rental Value for the Renewal
Premises for the Renewal Term (as hereinafter defined) by the date which is
twelve (12) months prior to the expiration of the initial term of this Lease.
Upon and in the event of the giving of the Renewal Notice in a timely manner,
the term of this Lease and such licenses shall (unless (1) such term shall
sooner have expired or terminated pursuant to any of the conditions of
limitation or other provisions of this Lease or pursuant to law, (2) the Renewal
Conditions shall not have been complied with in all material respects and the
Landlord shall not have waived such non-compliance in writing or (3) the Tenant
delivers a Rescission Notice (as hereinafter defined) to the Landlord in a
timely manner in accordance with Section 33.3 below) be deemed extended and
renewed for a period of five (5) years (the "Renewal Term"), namely, the five
year period commencing on the day immediately following the Expiration Date and
ending on the fifth (5th) anniversary of the Expiration Date (subject to earlier
termination pursuant to any of the conditions of limitation or other provisions
of this Lease or pursuant to law), such extension and renewal to be subject to
and upon all of the terms and conditions of this Lease (including, without
limitation, Article Twentyfour hereof) and such licenses, except that during the
Renewal Term (u) the Premises shall be the Renewal Premises, (v) reference in
this Lease to the term hereof shall be deemed to include the Renewal Term,
(w) the annual fixed rent payable hereunder shall be the Fair Market Rental
Value (as hereinafter defined) for a lease commencing on the day immediately
following the Expiration Date and having a term of five (5) years, determined in
accordance with the provisions of this Article Thirty-three, (x) in applying the
provisions of Article Twentyfour of this Lease on and after the first day of the
Renewal Term, subparagraphs (h) and (i) of Section 24.3 shall be deemed to read,
respectively, (i) "`Base Real Estate Taxes' shall mean the R.E. Tax Share of the
Real Estate Taxes for the Tax Year (A) in which shall occur the Expiration Date,
if the Expiration Date occurs within the first six (6) months of such Tax Year,
or (B) immediately following the Tax Year in which shall occur the Expiration
Date, if the Expiration Date occurs within the last six (6) months of such Tax
Year", and (ii) "`Base COM' shall mean the O.E. Share of the Cost of Operation
and Maintenance for the Computation Year (A) in which shall occur the Expiration
Date, if the Expiration Date occurs within the first six (6) months of such
Computation Year or (B) immediately following the Computation Year in which
shall occur the Expiration Date, if the Expiration Date occurs within the last
six (6) months of such Computation Year", (y) the provisions of Section 30.1
shall not be applicable to the Renewal Term and (z) the Tenant shall have no
further right to extend or renew the term of this Lease or the licenses.
33.2. As used in this Article Thirty-three, the following terms shall have
the meanings indicated: (a) "Renewal Conditions" shall mean that, immediately
prior to (i) the date the Tenant delivers the Renewal Notice to the Landlord and
(ii) the commencement of the Renewal Term, (A) the Tenant shall not be in
default in the payment of any monetary obligation(s) under this Lease which,
individually or in the aggregate, exceed $50,000 ("Material Default"), for more
than five (5) days after notice, provided, however, that if a Material Default
is continuing at the time the Tenant would otherwise have been permitted to
exercise its option to renew and extend the term of this Lease for the Renewal
Term, and if such Material Default shall be fully cured prior to the Expiration
Date and within the five (5) day cure period provided above in
this Section 33.2 and no other Material Default shall occur and continue beyond
the Expiration Date or beyond such five (5) day cure period, then the time by
which such option to renew and extend the term of this Lease for the Renewal
Term must be exercised shall be extended to a date which is three (3) business
days after the date on which cure of such continuing Material Default(s) is
effected and, with respect to any such exercise, time shall be of the essence,
and (B) the Tenant named herein (i.e., CD Radio Inc. or any permitted Assignee)
shall itself be in direct occupancy (i.e., exclusive of any subtenants other
than Tenant's affiliates or subsidiaries) of not less than (I) in the case of a
renewal of the term of this Lease with respect to all of the Premises, one (1)
full floor of the Office Space and using the same for the normal conduct of its
business or (II) in the case of a renewal of the term of this Lease with respect
to either the 36th Floor Space or the 37th Floor Space, fifty percent (50%) of
either the 36th Floor Space or the 37th Floor Space and using the same for the
normal conduct of its business as primarily a satellite radio broadcaster; and
(b) "Fair Market Rental Value" as used herein shall mean, for the Renewal Term,
the reasonable annual market fixed rental value for comparable office space
lease renewals (including comparable license arrangements) for comparable
buildings in midtown Manhattan for a lease renewal term of five (5) years,
taking into account all appropriate factors; provided, however, that the current
value of any Alterations in the Premises shall be taken into account only if
such Alterations were originally performed at the Landlord's expense or were
originally performed at the Tenant's expense and constituted part of the Initial
Tenant Alterations and, in the latter case, in an amount equal to the product of
the current value of all improvements that constituted the Initial Tenant
Improvements and a fraction, the numerator of which is $3,138,030.00 and the
denominator is the original cost of all of the Initial Tenant Alterations.
33.3. If the Tenant shall have duly delivered the Renewal Notice to the
Landlord, the Landlord shall, by no later than the date which is twelve (12)
months prior to the Expiration Date, notify the Tenant of the Landlord's binding
estimate of the Fair Market Rental Value for the Renewal Term. Thereafter, if
the Tenant desires to rescind its election to renew and extend the term of this
Lease, the Tenant must give written notice thereof (the "Rescission Notice") to
the Landlord within thirty (30) days after the Landlord gives notice of its
binding estimate, as to which date time is of the essence, and, upon the giving
of the Rescission Notice, the Tenant's election to renew and extend the term of
this Lease and the licenses shall be void and of no further force or effect and
the Tenant shall have no further right to extend or renew the term of this Lease
or the licenses. If the Tenant does not rescind its election to renew as
aforesaid, and does not dispute the amount of the Landlord's binding estimate
within thirty (30) days after the Landlord gives notice of its binding estimate,
the fixed rent for the Renewal Term shall be the amount of the Landlord's
binding estimate. If the Tenant disputes such amount, the Tenant shall notify
the Landlord of the Tenant's binding estimate of the Fair Market Rental Value (a
"Tenant's Binding Notice") within such thirty (30) days after the Landlord gives
notice of its binding estimate and, if the Landlord and the Tenant fail to reach
agreement on the Fair Market Rental Value within ten (10) business days
thereafter, the Fair Market Rental Value shall be determined by arbitration
pursuant to Sections 33.4.1, 33.4.2 and 33.4.3 below. Anything in this Article
Thirty-three to the contrary notwithstanding, if upon the giving of the
Rescission Notice as aforesaid, there is less than fifteen (15) months remaining
until the expiration of the term of this Lease, then the term of this Lease
shall be automatically extended and renewed for the period commencing on the day
immediately following the date which would otherwise have
been the date of the expiration of the term of this Lease and ending on the last
day of the calendar month in which shall occur the date which is fifteen (15)
months after the date of the Tenant's giving of the Rescission Notice, such
extension and renewal to be subject to and upon all of the terms and conditions
of this Lease, except that (a) the Tenant shall have no further right to extend
or renew the term of this Lease, (b) the fixed rent for such period shall be the
amount of the Landlord's binding estimate, and (c) the modifications to the
definitions of "Base Real Estate Taxes" and "Base COM" provided for in Section
33.1 above with respect to the Renewal Term shall be applicable with respect to
such period.
33.4.1. If the Fair Market Rental Value is to be determined by
arbitration, the same shall be conducted in accordance with the rules of the
American Arbitration Association, or if the American Arbitration Association
shall no longer be in existence a successor or other organization selected by
the Landlord issuing similar rules for the conduct of arbitrations (as the case
may be, the "AAA"). The parties hereto shall attempt to agree on a single
arbitrator (the "Referee"). The Referee must be a real estate broker licensed by
the State of New York who is a member of the Real Estate Board of New York, Inc.
and a Senior Commercial Appraiser of the Appraisal Institute, and, in any event,
with at least ten (10) years of experience in appraising the fair market rental
value of leases of office space in major office buildings in the Borough of
Manhattan, in the City of New York. If the parties hereto cannot agree on the
appointment of the Referee within fifteen (15) days after the Tenant gives a
Tenant's Binding Notice, either party may request the AAA to appoint a Referee
meeting the foregoing requirements. If the AAA shall refuse to appoint such
Referee or fail to do so within ten (10) days after the request, or if there
shall be no AAA in existence, either party hereto, on behalf of both, may apply
for the appointment of the Referee to the President of the Bar Association of
the City of New York or, if said President does not appoint a Referee within
thirty (30) days of such application, to the Supreme Court in the County of New
York, and the other party shall not raise any objection as to said President's
or the Court's full power and jurisdiction to entertain the application and make
such appointment. Within five (5) days after the selection of the Referee, each
party shall submit to the Referee two copies of its binding estimate of the Fair
Market Rental Value (each a "Determination"), which shall be identical to such
party's binding estimate under Section 33.3 above. After submission of a
Determination to the Referee, the submitting party may not change its
Determination, but may, during the thirty (30) days following the expiration of
such five (5) days referred to above, submit to the Referee such evidence as the
submitting party may deem relevant. Within twenty (20) days following such
thirty (30) day period, the Referee shall select one of the estimates to be the
Fair Market Rental Value. The Referee, in rendering his or her decision, shall
not add to, subtract from or otherwise modify the provisions of this Lease or
either Determination. The Referee's decision, determined as provided in this
Article Thirty-three, shall be conclusive and binding on the parties, shall
constitute an "award" by the Referee within the meaning of AAA rules and
judgment may be entered thereon in any court of competent jurisdiction.
33.4.2. If either party fails to submit its Determination to the Referee
within the time period for doing so permitted under Section 33.4.1, time being
of the essence with respect thereto, such party shall be deemed to have
irrevocably waived its right to deliver a Determination and the Referee, without
holding a hearing, shall accept the Determination of the submitting party as the
Fair Market Rental Value. If either party timely submits a
Determination, the Referee shall, promptly after its receipt of the second
Determination, deliver a copy of each party's Determination to the other party.
33.4.3. Each party shall pay its own fees and expenses relating to the
arbitration (including, without limitation, the fees and expenses of its counsel
and of experts and witnesses retained or called by it). Each party shall pay
onehalf of the fees and expenses of the AAA and of the Referee, provided, that
if either party fails to submit a Determination within the period provided
therefor, such nonsubmitting party shall pay all of such AAA and Referee fees
and expenses.
33.5. If the annual fixed rent for the Renewal Term shall not be
determined prior to the first day of the Renewal Term, the Tenant shall pay an
interim fixed rent for the period commencing on the first day of the Renewal
Term and ending on the last day of the month in which such annual fixed rent is
determined at an annual rate (including fixed rent and additional rent under
Article Twenty-four) equal to the annual rate that was in effect hereunder with
respect to the Renewal Premises on the day immediately preceding the first day
of the Renewal Term (without giving effect to any existing abatement of fixed
rent other than any abatement under Article Ten hereof). When the annual fixed
rent for the Renewal Term is finally determined, the fixed rent for such period
shall be recomputed upon the basis of such annual fixed rent so determined, and
if such recomputed fixed rent for such period is in excess of such interim fixed
rent so paid for such period, the Tenant shall promptly pay to the Landlord an
amount equal to such excess. Conversely, if such recomputed fixed rent for such
period is less than such interim fixed rent so paid for such period, the
Landlord shall, at the Tenant's election, either (i) apply such amount against
the next installments of fixed rent coming due under this Lease or (ii) promptly
refund to the Tenant the amount of such excess.
33.6. When the Fair Market Rental Value shall be agreed upon or
established as herein provided, the Landlord and the Tenant shall execute and
deliver a supplemental indenture to this Lease specifying the fixed rent payable
for the Renewal Term. The failure of either party to execute such an instrument
shall not affect the binding nature of the Fair Market Rental Value so agreed
upon or established.
ARTICLE THIRTY-FOUR
(34.)Emergency Generator System
34.1. Subject to the provisions of this Article Thirty-four, the Tenant is
hereby granted (a) (i) the right to install, operate and maintain in the
Basement Space a 2,400 gallon diesel fuel "ready tank" and (ii) a non-exclusive
license to install, operate and maintain in the Emergency Generator Space a 500
kilowatt, diesel powered, emergency electric power generator, together, in such
case, with all ancillary equipment, mountings, piping, duct work, venting,
conduit, wiring and support as shall reasonably be necessary for the
installation and operation of such generator and fuel tank (the generator and
the fuel tank, and all such ancillary equipment, mountings, piping, duct work,
venting, conduit, wiring and support (including, without limitation, the
Emergency Electric Riser and the Emergency Fuel Pipes) are herein collectively
called the "Emergency Generator System"), and (b) a non-exclusive license to
install, operate
and maintain in a portion of the shaft space to be designated by the Landlord
reasonably in accordance with the diagrams attached hereto as (i) Exhibit A-8
and Exhibit A-4 (the "Emergency Electric Riser Area") from the Emergency
Generator Space to the electric closet serving the Office Space located on the
36th Floor of the Building and from such electric closet to the Penthouse Space
and the Auxiliary Chiller Space, an electric riser to bring electric power from
the Emergency Generator System to such electric closet and the Penthouse Space
and Auxiliary Chiller Space (the "Emergency Electric Riser") and (ii) Exhibit
A-9, Exhibit A-4 and Exhibit A-5 (the "Emergency Fuel Pipe Area") from the
Basement Space (A) to the Emergency Generator Space, a fuel supply and return
and a vent pipe as required to bring fuel from such fuel tank to such generator,
(B) to the Building's intake and discharge air shafts/plenums on the C-4 level
of the Building, a ventilation pathway reasonably sufficient to meet the
ventilation requirements of the Tenant's fuel tank, and (C) to a fuel oil fill
pipe in the truck lift machine room on the street level of the Building, and
vent, to bring fuel from the street to such fuel tank (collectively, the
"Emergency Fuel Pipes"). The Tenant shall not use the Emergency Generator Space,
the Basement Space or the Emergency Electric Riser Area for any other purpose.
34.2. The licenses and rights herein granted to the Tenant to use the
Basement Space, the Emergency Generator Space, the Emergency Electric Riser Area
and the Emergency Fuel Pipe Area for the installation, operation and maintenance
of the Emergency Generator System is subject to all of the provisions of this
Lease including, without limitation, Section 3.4, Section 6.1(e) and
Section 11.1. Without limiting the generality of the immediately preceding
sentence of this Section 34.2, the Tenant's use of the Basement Space, the
Emergency Generator Space, the Emergency Electric Riser Area and the Emergency
Fuel Pipe Area shall be subject to such additional reasonable rules and
regulations as the Landlord may from time to time establish and the following
additional conditions: (a) the Tenant shall be solely responsible for the
installation, maintenance, repair, security, operation and replacement of the
Emergency Generator System, (b) the Tenant shall not sell any electric power
generated by the Emergency Generator System to, or otherwise permit the use of
the Emergency Generator System by, any other person or entity (except for a
subtenant of the Tenant), whether or not a tenant in the Building, (c) the
Tenant shall provide noise and vibration abatement as required by the Landlord
and (d) the Tenant shall provide screening for the generator in the Emergency
Generator Space as reasonably required by Landlord.
34.3. The Tenant shall (a) be solely responsible for any damage caused as
a result of the use of the Emergency Generator System (except to the extent
caused by the Landlord or any of its agents or employees acting within the scope
of their employment), (b) promptly pay any tax, license, permit or other fees or
charges imposed pursuant to any Requirements relating to the construction,
installation, maintenance, repair, operation or use of the Emergency Generator
System, (c) at its sole cost and expense, promptly comply with all precautions
and safeguards required by Landlord's insurance company and all Requirements
with respect to the Emergency Generator System and (d) at its sole cost and
expense, make all necessary repairs or replacements to the Emergency Generator
System.
34.4. If necessary due to any Requirement, or otherwise if the same does
not interfere (except to a de minimis extent) with the conduct of Tenant's
business in the Office Space, then,
at any time and from time to time following the Tenant's installation of the
Emergency Generator System, the Landlord may direct the Tenant to relocate the
Emergency Generator System, or any portion thereof, to a location designated by
the Landlord, and the Tenant shall promptly relocate the Emergency Generator
System. The cost and expense of such relocation of the Emergency Generator
System shall be borne by the Tenant if such relocation shall be necessary due to
any Requirement or due to any act or omission of the Tenant. If the relocation
shall be required for any other reason, the cost and expense of such relocation
shall be borne by the Landlord. In the event the Tenant shall fail to relocate
the Emergency Generator System, the Landlord may do so, and, to the extent that
the Tenant would have been obligated to bear the cost of such relocation, as set
forth above, the Tenant shall reimburse the Landlord on demand for any
reasonable costs and expenses incurred by the Landlord in connection therewith.
34.5. The Tenant acknowledges and agrees that the licenses and related
privileges granted the Tenant under this Article Thirty-four shall not, now or
at any time before or after the installation of the Emergency Generator System,
be deemed to grant the Tenant a leasehold or other real property interest in the
Building or any portion thereof in connection with the Licensed Spaces relating
to the Emergency Generator System. The licenses granted to the Tenant in this
Article Thirty-four shall automatically terminate and expire upon the expiration
or earlier termination of this Lease and the termination of such license shall
be self-operative and no further instrument shall be required to effect such
termination. The foregoing notwithstanding, upon request by the Landlord, the
Tenant promptly shall execute and deliver to Landlord, in recordable form, any
certificate or other document confirming the termination of the Tenant's right
to use the Emergency Generator Space, the Emergency Fuel Pipe Area and/or the
Emergency Electric Riser Area. The license granted to Tenant in this Article
Thirty-four shall not be assignable by Tenant separate and apart from this
Lease.
34.6. Anything in this Article Thirty-four to the contrary
notwithstanding, except as shall be required in the event of an electric power
failure to the Premises, (a) the Emergency Generator System shall not be
operated or tested during the hours of 6:00 a.m. to 11:59 p.m. on weekdays, (b)
the Tenant shall give the Landlord at least three (3) business days' prior
written notice of any proposed operation or testing of the Emergency Generator
System and shall coordinate the timing of such operation or testing with the
Landlord in order to minimize disturbance to other tenants of the Building and
(c) the Landlord, at its option, shall have the right to require that any such
operation or testing be performed on non-business days.
ARTICLE THIRTY-FIVE
(35.)Satellite Transmission System
35.1. Subject to the provisions of this Article Thirty-five, the Tenant is
hereby granted (a) a non-exclusive license in and to the Penthouse Roof Space,
and the right in the Penthouse Space, to install, operate and maintain up to
three (3) 5-meter satellite dishes (capable of X band transmission and S band
reception), together with all ancillary equipment (including, without
limitation, automatic tracking systems and several C/KU band TVRO receive-only
satellite dishes), mountings, steel dunnage, structural reinforcement, conduit,
wiring and supports as shall be necessary for the installation and operation of
such satellite dishes (such satellite
dishes, together with such ancillary equipment, mountings, steel dunnage,
structural reinforcement, conduit (including the Satellite Equipment Conduits),
wiring and supports are herein collectively called the "Satellite Transmission
System") and (b) a non-exclusive license to install, operate and maintain in a
portion of the shaft space from the electric closet serving the Office Space
located on the 37th Floor of the Building to the Penthouse Space, which shaft
space is to be designated by the Landlord reasonably in accordance with the
diagram attached hereto as Exhibit A-8 (the "Satellite Riser Area") two (2)
3-inch power conduits and two (2) 4-inch telecommunications conduits (the
"Satellite Equipment Conduits"), for use in connection with the operation of the
Satellite Transmission System. The Tenant shall not use the Penthouse Space, the
Penthouse Roof Space or the Satellite Riser Area for any other purpose.
35.2. The rights and licenses herein granted to the Tenant to use the
Penthouse Space, the Penthouse Roof Space and the Satellite Riser Area for the
installation, operation and maintenance of the Satellite Transmission System are
subject to all of the provisions of this Lease, including, without limitation,
Section 3.4, Section 6.1(e), Section 6.1(j) and Section 11.1. Without limiting
the generality of the immediately preceding sentence of this Section 35.2, the
Tenant's use of the Penthouse Space, the Penthouse Roof Space and the Satellite
Riser Area shall be subject to such reasonable rules and regulations as the
Landlord may from time to time establish, and to the following additional
conditions: (a) the Satellite Transmission System shall not cause any material
interference with the operation of any equipment theretofore installed in or on
the Building or on or in any other building that is not cured by the Tenant, at
the Tenant's sole cost and expense, within two (2) business days; (b) the
Satellite Transmission System and the appearance of the portion thereof that is
located on the Penthouse Roof Space shall be consistent with the character of
similar installations on and in other first-class office buildings in midtown
Manhattan; (c) the Tenant shall be solely responsible for the installation,
maintenance, repair, security, operation and replacement of the Satellite
Transmission System (including, without limitation, the cost of utilities); (d)
other than the sale of programming time on the Tenant's radio broadcasts the
Tenant shall not sell, rent or transfer any portion of the Satellite
Transmission System or any related services to, or otherwise permit (whether or
not for a fee) the use of the Satellite Transmission System or any related
services by, any other person or entity (except for a subtenant of the Tenant),
whether or not a tenant in the Building and (e) the Tenant shall, to the extent
permitted under applicable Requirements, provide roof top fencing or screening,
reasonably acceptable to the Landlord, around the Satellite Transmission System.
Without limiting the generality of the immediately preceding sentence, all work
and actions in connection with Section 35.1 and this Section 35.2 shall be
deemed an Alteration and shall be subject to the provisions of Section 6.1(e)
above. The Tenant shall be responsible for all structural requirements,
maintenance, repair and security for the Satellite Transmission System.
35.3. (a) The Tenant shall not install the Satellite Transmission System,
or make, or permit to be made, any additions or other changes in or to the
Satellite Transmission System, the Penthouse Space, the Penthouse Roof Space or
the Satellite Riser Area without, in each instance, first obtaining (i) the
Landlord's prior written consent thereto (except that minor additions or changes
in or to the Satellite Transmission System, the Satellite Riser Area, the
Penthouse Space or the Penthouse Roof Space, which are incident to the normal
operation or
maintenance thereof shall not require the Landlord's prior written consent but
may be performed only upon prior written notice to the Landlord) in accordance
with the applicable provisions of this Lease, and (ii) when required by
applicable Requirements, all required permits and approvals of any federal,
state or local governmental or quasi-governmental authority with respect to any
such additions or changes.
(b) Throughout the term of this Lease, and at the Tenant's sole cost
and expense, the Tenant shall (i) keep and maintain the Satellite Transmission
System, the Satellite Riser Area and the Tenant's installation therein, the
Penthouse Space and the Penthouse Roof Space in a safe condition and good order
and state of repair, (ii) comply with all Requirements applicable to the
installation, maintenance and operation of the Satellite Transmission System,
the Tenant's installation in the Satellite Riser Area and to the use and
maintenance of the Satellite Riser Area, the Penthouse Space and the Penthouse
Roof Space and (iii) comply with all precautions and safeguards required by the
Landlord's insurance company with respect to the Satellite Transmission System,
the Tenant's installation in the Satellite Riser Area and the use and
maintenance of the Satellite Riser Area, the Penthouse Space and the Penthouse
Roof Space. Without limiting the generality of the foregoing provisions of this
Section 35.3(b), the Tenant, at the Tenant's sole cost and expense, shall (A)
paint the antennae on the roof the Building white, or such other color as is
customary in other first class buildings in mid-town Manhattan (provided that
the Tenant shall be permitted to paint the Tenant's logo on such antennae) (B)
install and maintain such lightening rods, air terminals and/or similar
equipment as the Landlord may reasonably require, on or about the portion of the
Satellite Transmission System which is located on the roof of the Building, (C)
comply with all applicable Requirements (including those of the Federal
Communication Commission, or any successor thereto) relating to the
installation, operation and maintenance of the Satellite Transmission System,
and (D) obtain all permits and licenses required by any governmental or
quasi-governmental authority with respect to the installation, operation or
maintenance (and, upon the expiration or sooner termination of this Lease, the
removal) of the Satellite Transmission System, renew all such permits and
licenses as and when required by applicable Requirements and pay promptly as and
when due all taxes, license, permit and other fees or charges imposed in respect
thereof.
(c) Throughout the term of this Lease, the Tenant shall use and
operate the Satellite Transmission System and the devices and equipment used in
connection therewith in a manner that does not in any way constitute a health
hazard or danger to property. If the Landlord shall determine that the Satellite
Transmission System or any of the devices and equipment used in connection
therewith may constitute a health hazard or a danger to property the Tenant,
upon notice from the Landlord, shall immediately discontinue the use of the
Satellite Transmission System and/or such other devices and equipment.
Thereafter, the Tenant shall diligently undertake to determine, and shall
correct, at the Tenant's sole cost and expense, the cause of such hazard or
danger; and the Tenant shall not resume the use of the Satellite Transmission
System and/or such other devices and equipment until the Tenant has been
notified by the Landlord that adequate corrective steps have been taken to
remedy or prevent such hazard or danger as the case may be.
35.4. If necessary due to any Requirement (other than a Requirement of
insurance bodies not having the force of law and subject to Section 6.1(f)
above), then, at any time and from time to time following the Tenant's
installation of the Satellite Transmission System, the Landlord, upon written
notice to the Tenant, may direct the Tenant to relocate the Satellite
Transmission System, or any portion thereof, to a location designated by the
Landlord, and the Tenant shall relocate the Satellite Transmission System with
reasonable promptness and, if necessary due to any such Requirements, cease
operation of the Satellite Transmission System (or such applicable portion)
until such relocation is completed. The cost and expense of such relocation of
the Satellite Transmission System shall be borne by the Tenant. If the
relocation shall be required for any other reason, the cost and expense of such
relocation shall be borne by the Landlord. In the event the Tenant shall fail to
relocate the Satellite Transmission System with reasonable promptness following
receipt of such notice from the Landlord, the Landlord may do so, and the
Tenant, as additional rent under this Lease, shall reimburse the Landlord on
demand for any reasonable costs and expenses incurred by the Landlord in
connection therewith.
35.5. In no event shall the Landlord or any of the other Indemnitees be
responsible for (a) complying with, nor shall the Landlord or any of the other
Indemnitees be subject to any liability for the Tenant's failure to comply with,
any Requirement applicable to the Satellite Transmission System, the Tenant's
installation in the Satellite Riser Area, the Penthouse Space or the Penthouse
Roof Space or the installation, operation or maintenance (or, upon the
expiration or sooner termination of this Lease, the removal) of the Satellite
Transmission System or the Tenant's installation in the Satellite Riser Area, or
the use of the Penthouse Space or the Penthouse Roof Space, (b) or in connection
with, the installation, operation or maintenance of the Satellite Transmission
System or the Tenant's installation in the Satellite Riser Space, or for any
liability or damage incurred or suffered by the Tenant in connection with or
arising out of the Tenant's installation, operation or maintenance (or, upon the
expiration or sooner termination of this Lease, the removal) of the Satellite
Transmission System or the Tenant's installation in the Satellite Riser Area, or
the use of the Penthouse Space or the Penthouse Roof Space or (c) any damage
that may be caused to the Tenant or the Satellite Transmission System (or any
other property of the Tenant) by any other tenant, occupant or licensee in the
Building; and the Tenant shall make no claim against the Landlord or any
Landlord Party for any direct, consequential or other loss or damage suffered or
incurred by the Tenant in connection with the installation operation or
maintenance (or, upon the expiration or sooner termination of this Lease, the
removal) of the Satellite Transmission System or the Tenant's installation in
the Satellite Riser Area, or the use of the Penthouse Space or the Penthouse
Roof Space, however caused, except to the extent caused by the negligence or
willful misconduct of the Landlord. The Tenant shall indemnify and save harmless
the Indemnitees, and defend te Indemnitees (with counsel reasonably acceptable
to the Indemnitees), from and against any and all liability (including, but not
limited to, statutory liability), loss, damage interest, judgments and liens,
and any and all costs and expenses (including, but not limited to, counsel fees
and disbursements), in any way arising out of or incurred in connection with,
any and all claims, demands, suits, actions and/or proceedings (including, but
not limited to suits and claims against the Indemnitees for infringement or
violation of any patent, trademark, copyright, trade secret, proprietary, or
other tangible or intangible property rights of any kind whatsoever as a result
of or arising out of the broadcast, rebroadcast, display or transmission
of any images, programs, sports events, music or any other voice or data
transmissions in, to, through or from the Satellite Transmission System) which
shall be made or brought against the Indemnitees in connection with or arising
out of, anything done or omitted to be done with respect to the Satellite
Transmission System, the Satellite Riser Area and/or the Tenant's installation
therein, the Penthouse Space and/or the Penthouse Roof Space, except to the
extent caused by the negligence or willful misconduct of the Landlord. The
Indemnitees agree to give the Tenant prompt written notice of all claims,
demands, suits, actions and/or proceedings for which the Indemnitees are
indemnified hereunder brought or threatened against the Indemnitees, but any
failure or delay in giving any such notice shall not affect the Tenant's
indemnification obligation hereunder unless the Tenant's ability to defend
against such claim is materially adversely affected by such failure or delay.
The provisions of this Section 35.5 shall survive the expiration or earlier
termination of this Lease. The foregoing provisions of this Section 35.5 are
subject to the provisions of Section 9.3 and Section 25.12 of this Lease.
35.6. Anything in this Lease to the contrary notwithstanding, it is
expressly acknowledged and agreed by the Tenant that the Landlord has made no
representation or warranty to the Tenant (a) that the installation, operation or
maintenance of the Satellite Transmission System is permitted by applicable
Requirements or (b) that, once installed, the Satellite Transmission System will
be able to receive or transmit communication and/or radio broadcast signals
without interference or disturbance (whether or not by reason of the
installation or use of other similar or dissimilar equipment by others on the
roof of the Building or at or from any other location); and the Tenant agrees
that the Landlord shall have no obligation or liability to the Tenant if such
installation, operation and/or maintenance is now or hereafter prohibited by any
applicable Requirement or as a result of the inability, for any reason, of the
Satellite Transmission System to receive or transmit communication signals
without interference or disturbance.
35.7. The Landlord shall permit the Tenant's contractors who have been
consented to by the Landlord in accordance with Section 6.1(e) above, and the
Tenant's properly identified employees, agents and representatives, 24 hours a
day, 7 days a week access to the portions of the Building in which the Satellite
Transmission System is located, at and for such reasonable periods of time, in
such manner and by such means, as shall reasonably be required by the Tenant,
for the purpose of operating and maintaining the Satellite Transmission System,
subject always to such reasonable regulations and restrictions as the Landlord
may, from time to time, deem necessary to establish, including, but not limited
to, the requirement that, except in an emergency, such contractors, agents and
representatives be accompanied by employees of the Landlord, provided that such
requirement shall not interfere with or delay such access (except to a de
minimis extent).
35.8. The Landlord shall have the right at any time, without any liability
to the Tenant, to inspect and examine the Satellite Transmission System and all
devices and equipment installed in connection therewith and to inspect and
examine the Satellite Riser Area, the Penthouse Space and the Penthouse Roof
Space, and the Tenant shall cooperate with the Landlord in demonstrating or
testing the Satellite Transmission System and any such devices and equipment.
35.9. The Tenant acknowledges and agrees that the licenses and related
privileges granted the Tenant under this Article Thirty-five shall not, now or
at any time before or after the installation of the Satellite Transmission
System, be deemed to grant to the Tenant a leasehold or other real property
interest in the Building or any portion thereof in connection with the Licensed
Spaces relating to the Satellite Transmission System. The licenses granted to
the Tenant in this Article Thirty-five shall automatically terminate and expire
upon the expiration or earlier termination of this Lease and the termination of
such license shall be self-operative and no further instrument shall be required
to effect such termination. The foregoing notwithstanding, upon request by the
Landlord, the Tenant promptly shall execute and deliver to Landlord, in
recordable form, any certificate or other document confirming the termination of
the Tenant's right to use the Penthouse Roof Space and/or the Satellite Riser
Area. The license granted to Tenant in this Article Thirty-five shall not be
assignable by Tenant separate and apart from this Lease.
ARTICLE THIRTY-SIX
(36.)Auxiliary Chiller System
36.1. Subject to the provisions of this Article Thirty-six, specifically,
including, without limitation, Section 36.6 below, the Tenant is hereby granted
(a) a non-exclusive license to install, operate and maintain in the Auxiliary
Chiller Space two 100-ton, air-cooled supplemental air conditioning chillers,
together with all ancillary equipment, mountings, piping, duct work, venting,
conduit, wiring and support as shall reasonably be necessary for the
installation and operation of such chillers (the chillers, and all such
ancillary equipment, mountings, piping, duct work, venting, conduit, wiring and
support (including, without limitation, the Chilled Water Lines) are herein
collectively called the ("Auxiliary Chiller System"), and (b) a non-exclusive
license to install, operate and maintain in a portion of the shaft space to be
designated by the Landlord reasonably in accordance with the diagram attached
hereto as Exhibit A-9 (the "Chilled Water Riser Area") from the Auxiliary
Chiller Space to the pump closet located (or to be located) on the 37th Floor of
the Building chilled water supply and return pipes (the "Chilled Water Lines")
to bring chilled water from the Auxiliary Chiller System to the chilled water
pumps.
36.2. The license herein granted to the Tenant to use the Auxiliary
Chiller Space and the Chilled Water Riser Area for the installation, operation
and maintenance of the Auxiliary Chiller System is subject to all of the
provisions of this Lease including, without limitation, Section 3.4,
Section 6.1(e) and Section 11.1. Without limiting the generality of the
immediately preceding sentence of this Section 36.2, the Tenant's use of the
Auxiliary Chiller Space and the Chilled Water Riser Area shall be subject to
such additional reasonable rules and regulations as the Landlord may from time
to time establish and the following additional conditions: (a) the Tenant shall
be solely responsible for the installation, maintenance, repair, security,
operation and replacement of the Auxiliary Chiller System, provided, however,
that the Landlord shall assist the Tenant, at no cost to the Tenant, in
instituting a regular program of repair and maintenance acceptable to the
Landlord, (b) the Tenant shall not sell any, chilled water generated by the
Auxiliary Chiller System to, or otherwise permit the use of the Auxiliary
Chiller System by, any other person or entity (except for a subtenant of the
Tenant), whether or not a tenant in the Building, (c) the Tenant shall provide
noise and vibration abatement as
reasonably required by the Landlord and (d) the Tenant shall provide screening
for the Auxiliary Chiller Space as reasonably required by Landlord.
36.3. The Tenant shall (a) be solely responsible for any damage caused as
a result of the use of the Auxiliary Chiller System (except to the extent caused
by the Landlord or any of its agents or employees acting within the scope of
their employment), (b) promptly pay any tax, license, permit or other fees or
charges imposed pursuant to any Requirements relating to the construction,
installation, maintenance, repair, operation or use of the Auxiliary Chiller
System, (c) at its sole cost and expense, promptly comply with all precautions
and safeguards required by Landlord's insurance company and all Requirements
with respect to the Auxiliary Chiller System and (d) at its sole cost and
expense, make all necessary repairs or replacements to the Auxiliary Chiller
System.
36.4. If necessary due to any Requirement, or otherwise if the same does
not interfere (except to a de minimis extent) with the conduct of the Tenant's
business in the Office Space, then, at any time and from time to time following
the Tenant's installation of the Auxiliary Chiller System, the Landlord may
direct the Tenant to relocate the Auxiliary Chiller System, or any portion
thereof, to a location designated by the Landlord, and the Tenant shall promptly
relocate the Auxiliary Chiller System. The cost and expense of such relocation
of the Auxiliary Chiller System shall be borne by the Tenant if such relocation
shall be necessary due to any Requirement or due to any act or omission of the
Tenant. If the relocation shall be required for any other reason, the cost and
expense of such relocation shall be borne by the Landlord. In the event the
Tenant shall fail to relocate the Chilled Water Riser System, the Landlord may
do so, and, to the extent that the Tenant would have been obligated to bear the
cost of such relocation, as set forth above, the Tenant shall reimburse the
Landlord on demand for any reasonable costs and expenses incurred by the
Landlord in connection therewith.
36.5. The Tenant acknowledges and agrees that the licenses and related
privileges granted the Tenant under this Article Thirty-six shall not, now or at
any time before or after the installation of the Auxiliary Chiller System, be
deemed to grant the Tenant a leasehold or other real property interest in the
Building or any portion thereof in connection with the Licensed Spaces relating
to the Auxiliary Chiller System. The licenses granted to the Tenant in this
Article Thirty-six shall automatically terminate and expire upon the expiration
or earlier termination of this Lease and the termination of such license shall
be self-operative and no further instrument shall be required to effect such
termination. The foregoing notwithstanding, upon request by the Landlord, the
Tenant promptly shall execute and deliver to Landlord, in recordable form, any
certificate or other document confirming the termination of the Tenant's right
to use the Auxiliary Chiller Space and/or the Chilled Water Riser Area. The
license granted to Tenant in this Article Thirty-six shall not be assignable by
Tenant separate and apart from this Lease.
36.6. Anything in this Article Thirty-six, in Section 20.2.4, or elsewhere
in this Lease to the contrary notwithstanding, the Tenant's rights under this
Article Thirty-six and Section 20.2.4 above are subject to the Tenant's
exercising one (1) of the following options, which exercise shall be made by
written notice delivered to the Landlord together with the Tenant's
submission to the Landlord of the Preliminary Plans for the Initial Tenant
Alterations, and time is of the essence with respect to the delivery of such
notice:
(a) to use the Auxiliary Chiller System, in acordance with this
Article Thirty-six, to provide all necessary cooling to the Tenant's
supplemental air conditioning system(s) serving the Office Space, in which event
the Tenant shall have no further rights, and the Landlord shall have no further
obligations, under Section 20.2.4 above with respect to the provision by the
Landlord of chilled water or humidification water; or
(b) to have the terms, conditions and limitations of Section 20.2.4
above apply with respect to all necessary cooling of the Tenant's supplemental
air conditioning system(s) serving the Office Space, in which event the Tenant
shall have no further rights, and the Landlord shall have no further
obligations, under this Article Thirty-six with respect to the Auxiliary Chiller
System; or
(c) (i) to have the terms, conditions and limitations of Section
36.1 through Section 36.5 of this Lease, inclusive, apply only with respect to
the necessary cooling of the Tenant's supplemental air conditioning system(s) in
the event that, and only for so long as, the Landlord fails to provide chilled
water to the Tenant's supplemental air conditioning system(s) serving the Office
Space in accordance with the terms, conditions and limitations of Section 20.2.4
above, and (ii) to have the terms, conditions and limitations of Section 20.2.4
above apply with respect to all other necessary cooling of the Tenant's
supplemental air conditioning system(s) serving the Office Space.
If the Tenant fails to exercise its option under this Section 36.6 at the time
it submits the Preliminary Plans for the Initial Tenant Alterations to the
Landlord, then the Tenant shall be deemed to have exercised the provisions of
Section 36.6(c) hereof.
ARTICLE THIRTY-SEVEN
(37.)IDA Transaction
37.1. The Tenant has advised the Landlord that The City of New York (the
"City"), acting through the New York City Industrial Development Agency (the
"IDA"), has agreed, subject to finalizing definitive documentation (including
the IDA Subleases), to provide the Tenant with certain discretionary economic
development benefits (collectively, the "Benefits") as an inducement to the
Tenant to relocate its operations to the City (the provision of such Benefits
and the consummation of the transaction between the IDA and the Tenant being
hereinafter collectively referred to as the "IDA Transaction").
37.2. The Landlord hereby agrees that the Landlord shall, at the
reasonable request of the Tenant and at Tenant's sole cost and expense, promptly
execute and deliver such further or additional instruments (in form and
substance reasonably acceptable to the Landlord) and take such further actions
as are reasonably necessary or appropriate to effectuate the IDA Transaction;
provided that no such instruments or actions shall operate to (a) release the
Tenant from, or in any way decrease, any liability or obligation of the Tenant
under this Lease, or (b)
impose any additional or increased obligation or liability on the Landlord, for
which the Landlord is not otherwise indemnified from or reimbursed for by the
Tenant under this Lease.
ARTICLE THIRTY-EIGHT
(38.)Right of First Offer
38.1. Subject to the provisions of the last sentence of Section 38.2
below, from and after the third (3rd) anniversary of the term commencement date
(provided that this Lease shall then be in full force and effect and the term
and estate hereby granted shall not have expired or been terminated), the
Landlord will not enter into a lease with any other person, firm or corporation
covering the demise of any single full floor in the Building which is served by
the elevator bank that serves floors twenty-seven (27) through thirty-seven (37)
in the Building (any such space being herein called the "Extra Space") until a
period of ten (10) business days shall have elapsed after the Landlord shall
have notified the Tenant that the Extra Space is or will be (on a date not less
than sixty (60), or more than four hundred fifty-five (455), days after the date
of such notice) available for leasing. The Landlord's notice shall (a) include
an outline floor plan of the Extra Space, (b) specify the rentable area thereof,
(c) specify the date on which Landlord proposes that the Extra Space be added to
the Premises and (d) include the Landlord's binding estimate of the Fair Market
Rental Value (as hereinafter defined) for the Extra Space. Anything in this
Article Thirty-eight to the contrary notwithstanding, (y) the Tenant shall not
have any right to exercise the right of first offer provided for herein more
than two (2) times and, if the Landlord shall have previously notified the
Tenant of the availability of any space pursuant to this Section 38.1, whether
or not the Tenant shall have exercised the option granted pursuant to Section
38.2 below, the Landlord shall not thereafter have any obligation to notify the
Tenant that any space that might otherwise have constituted the Extra Space is
or will be available for leasing or to grant the Tenant an option to lease such
space, and (z) the Landlord shall have no obligation to notify the Tenant that
any space that might otherwise have constituted the Extra Space is or will be
available for leasing or to grant the Tenant an option to lease such space if
the Landlord renews or extends, in whole or in part, a lease covering such space
(including by way of entering into a new lease with a then-existing tenant under
a lease covering such space). The term "Fair Market Rental Value" as used in
this Article Thirty-eight with respect to any Extra Space shall mean the
reasonable annual market fixed rental value of comparable office space in
comparable buildings in midtown Manhattan for a lease term equal to the then
remaining term of this Lease, taking into account all appropriate factors.
38.2. If the Landlord so notifies the Tenant that the Extra Space is or
will be available for leasing, then, subject to the provisions of the last
sentence of this Section 38.2, the Tenant shall have the option to lease the
Extra Space upon all of the same terms and conditions contained in this Lease as
amended by the terms and conditions set forth in this Article Thirty-eight. The
Tenant shall exercise such option (if at all) only by written notice to the
Landlord (an "Expansion Notice") given within such period of ten (10) business
days after the Tenant's receipt of the Landlord's notice that the Extra Space is
or will be available for leasing, and time is of the essence with respect to the
Tenant's giving of such notice exercising such option with in such ten (10)
business day period. Anything in this Section 38.2 or elsewhere in this Lease to
the contrary notwithstanding, the Tenant's rights under this Article
Thirty-eight
to lease the Extra Space are and shall be subject and subordinate to (a) any
rights in or to the Extra Space in effect on the date hereof of any existing
tenants in the Building under their leases, as the same may be amended or
modified from time to time, and (b) any rights in or to the Extra Space that the
Landlord shall have granted, or shall hereafter grant, to any tenant, subtenant
or occupant of the Building, or to any prospective tenant, subtenant or occupant
with which the Landlord is then in active negotiations, provided that such
tenant, subtenant or occupant or prospective tenant, subtenant or occupant then
leases, or is then in active negotiations to lease, 250,000 or more rentable
square feet of space in the Building or, if the Tenant then leases 250,000 or
more rentable square feet in the Building, such tenant, subtenant or occupant or
prospective tenant, subtenant or occupant leases, or is then in active
negotiations to lease, more rentable square feet in the Building, than is then
leased by the Tenant.
38.3. If the Tenant shall timely exercise the option to add the Extra
Space to the Premises, then, on and after the date specified in the Landlord's
notice as the date on which the Extra Space is to be incorporated in the
Premises (the "Extra Space Commencement Date") (a) the Extra Space shall be
incorporated into and form a part of the Premises, (b) the annual fixed rent
reserved under this Lease shall be increased by an amount which is equal to the
Fair Market Rental Value for the Extra Space, (c) in applying the provisions of
Article Twentyfour of this Lease to the Extra Space only, subparagraphs (h) and
(i) of Section 24.3 shall be deemed to read, respectively, (i) "`Base Real
Estate Taxes' shall mean the R.E. Tax Share of the Real Estate Taxes for the Tax
Year (A) in which shall occur the Extra Space Commencement Date, if the Extra
Space Commencement Date occurs within the first six (6) months of such Tax Year,
or (B) immediately following the Tax Year in which shall occur the Extra Space
Commencement Date, if the Extra Space Commencement Date occurs within the last
six (6) months of such Tax Year," and (ii) "`Base COM' shall mean the O.E. Share
of the Cost of Operation and Maintenance for the Computation Year (A) in which
shall occur the Extra Space Commencement Date, if the Extra Space Commencement
Date occurs within the first six (6) months of such Computation Year, or
(B) immediately following the Computation Year in which shall occur the Extra
Space Commencement Date, if the Extra Space Commencement Date occurs within the
last six (6) months of such Computation Year"; and (d) Section 24.3(c) shall be
amended so that the number of rentable square feet in the Extra Space shall be
added to the Tenant's Area.
38.4. If the Tenant does not dispute the Landlord's estimate of the Fair
Market Rental Value for the Extra Space within thirty (30) days after the
Tenant's receipt of the Landlord's notice that the Extra Space is or will be
available for leasing in accordance with Section 38.1 above, such estimate shall
become the Fixed Rent for the Extra Space. If the Tenant disputes the Landlord's
estimate, the Tenant shall so notify the Landlord of the Tenant's binding
estimate of the Fair Market Rental Value within such thirty (30) days after the
Tenant's receipt of the Landlord's notice and, if the Landlord and the Tenant
fail to reach agreement on the Fair Market Rental Value within ten (10) business
days thereafter, the Fair Market Rental Value shall be determined by arbitration
substantially in accordance with Sections 33.5.1, 33.5.2 and 33.5.3 hereof.
38.5. If the annual fixed rent for the Extra Space shall not be determined
prior to the date the Extra Space is incorporated in the Premises, the Tenant
shall pay an interim fixed rent
for the period commencing on the date the Extra Space is incorporated in the
Premises and ending on the last day of the month in which such annual fixed rent
is determined at the average annual rate per square foot in effect for the
remainder of the Premises on the day preceding the date the Extra Space is
incorporated in the Premises (without giving effect to any existing abatement of
fixed rent in effect on such date, other than any abatement under Article Ten)
hereof. When the annual fixed rent for the Extra Space is determined, the fixed
rent for such period shall be recomputed upon the basis of such annual fixed
rent so determined and if such recomputed fixed rent for such period is in
excess of such interim fixed rent so paid for such period, the Tenant shall
promptly pay to the Landlord an amount equal to such excess. Conversely, if such
recomputed fixed rent for such period is less than such interim fixed rent so
paid for such period, the Landlord shall apply such amount against the next
installment or installments of fixed rent coming due under the Lease.
38.6. With reasonable promptness after the incorporation of the Extra
Space in the Premises and the final determination of the Rent payable with
regard to the Extra Space, the Landlord and the Tenant shall execute a
supplemental indenture to this Lease confirming the demising of the Extra Space
to the Tenant pursuant to this Article Thirty-eight.
ARTICLE THIRTYNINE
(39.)Additional Penthouse Space
39.1. The Landlord hereby grants to the Tenant the option to take under lease,
subject and subordinate to the Qualified Encumbrances, the space substantially
as shown cross-hatched on the diagram attached hereto as Exhibit A-3 and
designated as 'D' on the roof of the Building (herein called the "Additional
Penthouse Space") subject to all the same terms and conditions of this Lease
applicable to the Penthouse Space. The term with respect to the Additional
Penthouse Space shall commence, and the Additional Penthouse Space shall be
added to the Penthouse Space, on the date which is the earlier to occur of (a)
December 1, 1999 and (b) the date upon which the Tenant first occupies the
Premises for the conduct of its business, subject to Article Two of this Lease
(the "Additional Penthouse Space Term Commencement Date"). The Tenant may
exercise the option granted pursuant to this Section 39.1 (if at all) only by
notifying the Landlord, in writing, not later than October 1, 1999.
39.2. In the event the Tenant shall exercise such option in a timely manner,
then, on and after the Additional Penthouse Space Term Commencement Date (a) the
Additional Penthouse Space shall constitute a part of the Penthouse Space for
all purposes of this Lease, (b) the annual fixed rent reserved under this Lease
for the Penthouse Space pursuant to Section 1.4.1(a)(ii) above shall be
increased to $34,620.00 ($2,885.00 per month), and (c) the agreed upon rentable
area of the Penthouse Space set forth in Section 1.6 above shall be increased to
1,154 rentable square feet.
39.3. With reasonable promptness after the exercise of such option, the Landlord
and the Tenant shall execute a supplemental indenture to this Lease confirming
the demising of such Additional Penthouse Space to the Tenant pursuant to this
Article Thirty-nine. If the Tenant does not exercise its option with respect to
the Additional Penthouse Space within the time and in the
manner specified in this Article Thirty-nine, then the Landlord shall have no
further obligation to demise the Additional Penthouse Space to the Tenant.
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