Exhibit 4.1
FOURTH AMENDMENT OF LEASE
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THIS AGREEMENT made as of the 1st day of January, 2000 by and between THE
XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH IN THE CITY OF NEW YORK,
a religious corporation having its office and principal place of business at 00
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and EWDB NORTH AMERICA
INC. ("Euro"), a Delaware corporation having its offices at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Della Femina XxXxxxx, Inc. ("Della") (predecessor-in-
interest to Tenant), as tenant, entered into a lease dated March 5, 1987 (the
"1987 Lease") with respect to a portion of the 5th floor and the entire 6th,
7th, 8th arid 9th floor addition in the building known as 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx (the "Building"); and
WHEREAS, the 1987 Lease was amended by agreement dated as of March 28, 1988
(the "First Amendment"), and further amended by a Second Amendment of Lease
dated as of April 1, 1989 (the "Second Amendment") and a Third Amendment of
Lease dated as of September 1, 1992 (the "Third Amendment"; the 1987 Lease, as
amended by the First Amendment, Second Amendment and Third Amendment is
collectively referred to as the "Modified Lease"); and
WHEREAS, pursuant to the Modified Lease, Tenant currently occupies a
portion of the basement (the "Basement Premises"), a portion of the 5th floor,
and the entire 6th, 7th, 8th and 9th floors in the Building, (the portions of
the Basement Space and the 5th floor currently occupied by the Tenant being
shown on Exhibits 4A-1 and 4A-2 annexed hereto; and all such space being
collectively referred to as the "premises"); and
WHEREAS, Della merged into Xxxxxxx Xxxxxx Xxxxxx XxXxxxx Xxxxxxxxxxx
("MVBMS"), which succeeded to the interest of Della; and
WHEREAS, by Assignment and Assumption Agreement bearing even date herewith,
MVBMS is hereby assigning its interest in and to the Lease to Tenant; and
WHEREAS, the parties desire to amend the Modified Lease so also terminate
the Second Amendment and Third Amendment, and to otherwise amend the Modified
Lease on the terms and conditions set forth herein; so that from and after
September 1, 2000 (the "Effective Date"), the term "Lease" shall mean the 1987
Lease, as amended by the First Amendment and
this Fourth Amendment (such documents being hereinafter collectively referred to
as the "Lease"); and
WHEREAS, capitalized terms used herein shall have the meaning ascribed to
them in the Lease, unless otherwise set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions hereafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. Termination of Second and Third Amendment. From and after the
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Effective Date the Second Amendment and Third Amendment are hereby terminated in
their entirety and shall be of no further force or effect.
2. Upfront Payment. As an inducement to the Landlord to enter into this
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Fourth Amendment, Tenant has agreed to pay Landlord the sum of Seven Million
Five Hundred Thousand and 00/100 Dollars ($7,500,000.00) which amount shall be
paid upon the execution of this Agreement.
3. Term. The parties confirm that, as a result of the termination of the
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Third Amendment, the original expiration date of December 31, 2007 (the
"Expiration Date") as set forth in the 1987 Lease, is hereby reinstated.
4. Fixed Rent. Commencing as of the Effective Date, the annual fixed
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rent ("fixed rent") payable under the Lease with respect to the premises is
amended as follows:
a. For the period commencing January 1, 2000 and ending August 31,
2000, the fixed rent shall be payable at the rate of $2,996,366 per annum, which
shall be payable in equal monthly installments of $249,697.20.
b. For the period commencing September 1,2000 and ending December 31,
2002, the fixed rent shall be payable at the rate of $3,732,191.45 per annum,
which shall be payable in equal monthly installments of $311,016.
c. For the period commencing January 1,2003 and ending December 31,
2007, the fixed rent shall be payable at the rate of $4,127,443.21 per annum,
which shall be payable in equal monthly installments of $343,953.60.
5. Escalations. (a) From and after the Effective Date, and except as
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otherwise provided in this Xxxxxxxxx 0, Xxxxxx shall pay porters' wage and real
estate tax escalations in accordance with the provisions of Article Thirty-Sixth
of the Lease, including, without limitation, for the premises designated as the
"Fifth Floor-Southwestern Corner Premises" and the
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Basement Premises, both as defined in the Second Amendment. Notwithstanding the
foregoing, the Tenant shall not be obligated to pay any Xxxxxx'x Wage Payment
with respect to the Basement Premises.
(b) With respect to calculating the real estate tax escalations for
the Basement Premises pursuant to Article Thirty-Sixth of the Lease, the
following definitions shall apply:
(i) The term "Increase in Real Estate Taxes" shall mean the
amount by which Real Estate Taxes in any Subsequent Year, exceed the
Real Estate Taxes assessed for the tax year ending June 30, 1989.
(ii) The term "Area of the Basement" shall mean 4,162 square
feet.
(iii) The term "Tenant's Proportionate Share" shall mean a
fraction, of which the numerator shall be the Area of the Basement and
the denominator shall be the total number of Rentable Square Feet of
the Area in the entire Building. The Landlord and Tenant agree that,
with respect to the Basement Premises, the Tenant's Proportionate
Share shall be .0156.
(iv) The term "Subsequent Year" shall mean each calendar year
during the term of the Lease commencing with the year beginning
January 1, 1990.
(v) The term "Computation Date" shall, in the case of the
Subsequent Year commencing on January 1, 1990, mean December 1, 1989,
and in the case of Subsequent Years following 1990, the applicable
anniversary date.
(c) Paragraph (10) of Article Thirty-Sixth is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"10. For purposes of calculating the real estate tax escalations,
"Tenant's Proportionate Share" for the premises, up to and including
the Expiration Date, is 52%."
(d) Paragraph (5) of Article Thirty-Sixth is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"5. The term "Area of the Demised Premises" up to and including the
Expiration Date shall mean 129,369 square feet, for the purposes of
this Article only."
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6. Use. Article First of the Lease is hereby amended to read as follows:
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"The Tenant shall use the premises (other than the Basement Premises)
only for executive and administrative offices, including in connection
with the advertising, direct marketing, public relations and related
business of Tenant arid its Affiliates (as hereinafter defined) and
for any other use consistent with a first class office building owned
by a church, to which the Landlord may consent, such consent not be
unreasonably withheld. The Basement Premises shall be used for
storage purposes only."
7. Building Name. Paragraph (c) (continued) of Article Fourth of the
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Lease is hereby amended to read in full as follows:
"The Landlord shall not change the home, street number or designation by
which the Building is commonly known. Provided that the Tenant named in this
Fourth Amendment or an Affiliate occupies at least 60,000 rentable square feet
of space in the Building (excluding from any such calculation any space occupied
by Tenant's sublessees and assignees which are not Affiliates), Tenant named in
this Lease (but not the Tenant's successor by assignment other than an
Affiliate) shall have the right to require the Landlord to affix to the Building
a sign bearing its name or the name of an Affiliate then occupying space in the
Building (the "Approved Names") and the Landlord shall thereafter promptly affix
such sign to the Building at Tenant's expense. In the event that the rentable
square footage occupied by Tenant and its Affiliates shall be reduced below
60,000 rentable square feet, but subsequently shall once again increase to at
least 60,000 rentable square feet, Tenant shall once again have the right to
require Landlord to affix a sign bearing an Approved Name. The design, style
and proposed location of any such sign shall be subject to the Landlord's prior
written approval, which shall not be unreasonably withheld, delayed or
conditioned. In case the Landlord shall deem it necessary to remove any such
sign in order to paint or to make any other repairs, alterations or improvements
in or upon the Building, or any part thereof, it shall have the right to do so,
provided it causes the same to be removed and promptly replaced at its expense.
In the event the Tenant changes the name it desires to have on the sign, Tenant
may request Landlord to reflect the desired name and, provided the desired name
is an Approved Name, Landlord shall thereafter change the sign at Tenant's
expense. As long as a sign with an Approved Name is affixed to the Building in
accordance with this paragraph, the Landlord will not install, and will not
permit any other tenant in the Building to install (i) any other sign on the
Building of comparable size and prominence, provided that the foregoing shall
not limit the sign directly
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above any retail store or restaurant located On the ground floor; (ii) a sign
for a retail tenant on the exterior walls of the Building which is angled away
form the main entrance of the Building and greater than fifty percent of the
size of Tenant's sign; or (iii) a sign bearing the name of any office or loft
tenant which exceeds fifty percent of the size of Tenant's sign."
8. Affiliate. The definition of the term "Affiliate" appearing in
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paragraph (a) of Article Eighteenth (rewritten) of the Lease is hereby amended
to read in flit! as follows:
"As used in this Lease, the terms "Affiliate" and "Affiliates" shall
mean any entity which controls, is controlled by or under common
control with Tenant. For the purposes hereof, "control" shall be
deemed to mean ownership of not less than thirty percent (30%) of all
of the voting stock of a corporation or not less than thirty percent
(30%) of all of the legal and equitable interest in any other business
entity if Tenant is not a corporation or the ability whether by the
ownership of shames or other equity interest, by contract or
otherwise, to elect a majority of the directors in the case of a
corporation or if not a corporation, to make management decisions on
behalf of the entity. The term "Affiliate" shall also include any
corporation or other entity into or with which Tenant is merged on
consolidated or to which substantially of Tenant's assets are
transferred, provided that such transfer is for a legitimate business
purpose and not to circumvent the provisions of this Article
Eighteenth (rewritten).
9. Electricity. If so requested and paid for by the Tenant, the Landlord
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will install such meters or "totalizing" equipment as the Tenant may specify for
the purpose of combining the Tenant's demand (measured in KW) of electricity at
the premises. Alternatively, if requested by the Tenant, the Landlord will
aggregate the Tenant's demand (measured in KW) of electricity as recorded on the
meters measuring electrical demand and consumption at the premises. In either
case, the charges to the Tenant for demand of electricity pursuant to Article
Tenth (rewritten) of the Lease will be calculated on the basis of such
aggregated or "totalized" demand, as the case may be. Consumption (measured in
KWH) of electricity at the premises will be calculated by aggregating
consumption as recorded on the meters measuring demand and consumption at the
premises.
10. Additional Fifth Floor Premises. The Lease is hereby amended to
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delete Article Forty-Third thereof and Exhibit B thereto.
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11. Window Cleaning. Schedule A of the Lease is hereby amended by adding
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the following thereto:
"Window Cleaning. The Landlord shall clean the exterior and interior
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surfaces of all windows in the Premises not less than once every
calendar year."
12. Fifth Floor and Basement Premises. (a) Pursuant to the Second and
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Third Amendment, a portion of the 5th floor (defined therein as the "Fifth Floor
- Southwestern Corner Premises") and the Basement Premises were leased to the
Tenant. Despite the termination of the Second and Third Amendment, the Tenant
shall continue to lease such premises subject to the terms, conditions and
agreements set forth in the Lease. Except as otherwise expressly provided
herein, the term "premises" shall be deemed to include the Fifth Floor
Southwestern Corner Premises (as defined in the Second and Third Amendments) and
the Basement Premises.
(b) For purposes of Article Seventeenth (rewritten) of the Lease, the
term "premises" shall not include the Basement Premises, provided, however, that
in the event that the Tenant has the right to terminate the Lease with respect
to the premises pursuant to Article Seventeenth of the Lease, then the Tenant
shall also have the right to terminate the Lease for the Basement Premises.
(c) If the Basement Premises shall be partially or totally damaged or
destroyed by fire or other cause covered by insurance, then, unless the Lease
has been terminated or is then terminable by the Landlord or the Tenant, the
Landlord shall repair and restore the Basement Premises as promptly as
reasonably practicable and until such repair shall be substantially completed,
the fixed rent applicable to the Basement Premises shall be apportioned with
respect to the portion of the Basement Premises which is rendered damaged or
destroyed. The fixed rent applicable to the Basement Premises shall be
determined as follows: (i) during the period from January 1, 2000 through August
31, 2000, the sum of $20,810 per annum; (ii) during the period from September 1,
2000 through December 31, 2002 the sum of $25,920; and (iii) during the period
from January 1, 2003 through December 31, 2007 the sum of $28,665 per annum.
(d) Notwithstanding the second and third `sentences of paragraph (g)
of Article Eighteenth (re-written) of the Lease, the Tenant shall not sublet the
Basement Premises alone, and may only sublet the Basement Premises in
conjunction with the subleasing of other premises covered by the Lease and in
calculating the amount of any profit with respect to the subleasing of the
Basement Premises, no amount shall be deducted
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pursuant to the last sentence of paragraph (g) of Article Eighteenth (re-
written)..
13. Subleasing. (a) Article Eighteenth (rewritten) is hereby amended by
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revising paragraph (e) as follows:
"By written notice (hereafter referred to as the "Landlord's
Subleasing Notice") executed by the Landlord and delivered to the
Tenant within thirty (30) days following receipt of the Tenant's
Subleasing Notice (for the purposes hereof such notice shall not be
deemed to have been received by the Landlord until all of the
information required by paragraph (d) above shall have been furnished
to the Landlord), the Landlord shall have the absolute right to select
one of the alternatives set forth in paragraphs (1), or (h) in the
case of an assignment of lease, and paragraph (g) in the case of a
subletting. Landlord hereby confirms its approval of the sublease
between MVBMS and Berwyn for a portion of the sixth floor."
(b) Article Eighteenth (rewritten) is hereby further amended by
adding the following sentence to the end of paragraph (f):
"The Landlord shall have no right to require the Tenant to surrender
the premises to the Landlord and terminate the Lease in the case of a
subletting of all or part of the premises, it being agreed that the
Landlord's rights with respect to a proposed subletting shall be
governed by paragraph (g) below."
(c) Clause (iii) of paragraph (g) of Article Eighteenth (re-
written) of the Lease shall be amended, in part, to read as follows:
"(iii) the Landlord and the Tenant shall share equally on any profit
to the Tenant (that is to say, the difference between the sum of (x)
the rental rate per square foot which the Tenant pays to the Landlord
under this Lease (including all direct and indirect payments
regardless of how characterized) and (y) when used with respect to the
premises (other than the Basement Premises, and when used with respect
to the Basement Premises, an amount equal to $2.24 per rentable square
foot) an amount equal to S7.83 per rentable square foot and the rental
rate per square foot which the Proposed Undertenant is to pay to
the...."
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14. Additional Fifth Floor Premises. (a) Global Digital Prepress, Inc.
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("Global") leases from the Landlord a portion of the fifth floor of the building
(the "Global Premises") pursuant to a lease with the Landlord (the "Global
Lease"). The Landlord has the right to terminate the Global Lease prior to the
stated expiration date thereof, such termination to be effective as of August
31, 2002, subject to Global's right to elect to remain in the Global Premises
until August 31, 2004. MVBMS currently subleases a portion (the "Sublet
Premises") of the Global Premises pursuant to a sublease dated December 1, 1998
("Sublease"), which Sublease is scheduled to expire on August 31, 2002. In the
event the Landlord and Global enter into an agreement to terminate the Global
Lease prior to the expiration of the Sublease, Landlord shall lease to Tenant
for the remainder of the term of the Sublease (i) the Sublet Premises upon the
same terms d conditions as are set forth in the Sublease, and (ii) the remainder
of the Global Premises (the "Remainder Space") consisting of 1,160 rentable
square feet at the same per square foot rental rate as set forth in subparagraph
(b)(l) below with respect to the Additional Fifth Floor Premises and escalations
as set forth in subparagraph (b)(2) below, provided, however, that the Tenant's
Proportionate Share shall be .38%, and the "Area of the Demised Premises" shall
be 1,160 square feet.
(b) Upon the expiration of the Global Lease, or the earlier
termination of the Global Lease pursuant to Articles Eleventh, Seventeenth or
Twenty-fifth of the Global Lease, and further provided that this Lease is not
terminated by virtue of the same circumstances giving rise to the termination of
the Global Lease, i.e., casualty or condemnation, the Landlord shall lease to
the Tenant the Global Premises (which for purposes of this Lease shall be
hereinafter referred to as the "Additional Fifth Floor Premises") upon the same
terms and conditions of the Lease subject to the following:
(1) The fixed rent for the Additional Fifth Floor Premises shall be
at the rate of $40.49 per rentable square foot, so that fixed rent for the
Additional Fifth Floor Premises shall be Three Hundred Eighty Five Thousand
Three Hundred Two and 84/100 Dollars ($385,302.84) per annum, which shall be
payable in equal monthly installments of Thirty Two Thousand One Hundred Eight
and 57/100 Dollars ($32,108.57) in accordance with the provisions of the Lease.
(2) Tenant shall pay porters wage and real estate tax escalations for
the Remainder Space and Additional Fifth Floor Premises in accordance with the
provisions of Article Thirty-Sixth of the Lease, except that, in calculating the
escalations for the Remainder Space and the Additional Fifth Floor Premises, the
following definitions shall apply:
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(i) The definition of "Increase in Real Estate Taxes" contained in
paragraph 2 when used with respect to the Remainder Space and
the Additional Fifth Floor Premises shall mean the amount by
which the Real Estate Taxes in any fiscal year following fiscal
year 2002/03 exceed the Real Estate Taxes assessed for the tax
year ending June 30, 2003.
(ii) The definition of "Base Wage Rate" contained in Paragraph 4
when used with respect to the Additional Fifth Floor Premises
shall mean the Wage Rate in effect on the last day of calendar
year 2002.
(iii) Paragraph 5 is hereby amended to add the following sentence:
"Area of the Demised Premises' shall mean, when used with
respect to the Additional Fifth Floor Premises, 9,516 square
feet."
(iv) The definition of "Xxxxxx'x Wage Payment" contained in
Paragraph 7, when used with respect to the Additional Fifth
Floor Premises shall mean the amount obtained by multiplying
the Area of the Demised Premises of the Additional Fifth Floor
Premises, by the number of cents (including any fraction of a
cent) by which the Wage Rate for such year is greater than the
Base Wage Rate for the Additional Fifth Floor Premises.
(v) The following is hereby added as Paragraph 13 of Article
Thirty-Sixth:
"13. Tenant's Proportionate Share" with respect to the
Additional Fifth Floor Premises shall mean 3.14%."
(c) Tenant shall pay for electricity used in the Remainder Space
and the Additional Fifth Floor Premises in accordance with the provisions of
Article Tenth (a) (rewritten) of the Lease, except that all references therein
to 112% shall be changed to 108%.
15. Tenant's Expansion Rights. (a) Article Forty-Two of the Lease is
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hereby deleted in its entirety.
(b) Provided no event of default shall have occurred and be
continuing, Tenant may notify Landlord, by written notice delivered on or before
December 31, 2000 (the "Election Notice") whether it wishes to lease either one-
half or all of one or more of the basement, second, third and fourth
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floors in the Building (the "Expansion Space"), provided, however, in exercising
its option for only a portion of the Expansion Space, Tenant must lease in
increments of either one-half or full floors (other than the basement) but
Tenant may not lease half floor increments on two separate floors. TIME SHALL BE
OF THE ESSENCE with respect to the delivery of the Election Notice. If the
Tenant timely delivers an Election Notice, then the Expansion Space shall be
added to and shall be part of the premises upon the same terms and conditions of
the Lease subject to the following:
(i) The term for the Expansion Space shall commence as of the date
Landlord delivers vacant possession of such space to the Tenant,
which delivery shall occur no later than thirty days after the
expiration or earlier termination of the leases currently in
effect for such space, provided, however, that with respect to
any Expansion Space Located on the second or third floor, if
Tenant has elected to lease the entire floor, the term for such
floor shall not commence until the Landlord delivers possession
of the entire floor. The term for any Expansion Space located on
the fourth floor may, at the Tenant's option, expire as of
December 31, 2007 or December 31, 2012 (the Tenant agreeing to
notify the Landlord as to which expiration date it elects for the
fourth floor in its Election Notice), and the term for the
basement space shall expire, unless sooner terminated in
accordance with the provisions of the Lease as of the Expiration
Date. With respect to any Expansion Space located on the second
and third floors of the Building, the Tenant shall specify, in
its Election Notice, the term for which it elects to lease such
space, which shall be no less than ten nor more than fifteen
years, and, in such event, the term of the Lease for Expansion
Space located on the second or third floors shall expire as of
the last day of the calendar month in which the specified
anniversary of the commencement date for such space occurs. (The
Tenant must elect the same term of Lease for all space on the
second and third floors.) Tenant shall have no right to renew
the term of the Lease with respect to any Expansion Space located
on the second or third floor.
(ii) The fixed rent for the Expansion Space shall be payable at the
rate of $45 per rentable square foot and the rentable area for
the Expansion Space shall be determined based upon the full floor
rentable square footages set out in Exhibit B annexed hereto.
The fixed rent shall be payable
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in equal monthly installments in accordance with the provisions
of the Lease.
(iii) Tenant shall pay Increases in Real Estate Taxes for the
Expansion Space in accordance with the provisions of Article
Thirty-Sixth of the Lease, except that in calculating the
escalations for the Expansion Space, the following definitions
shall apply:
(x) The definition of "Increase in Real Estate Taxes"
contained in paragraph 2, when used with respect to the
Expansion Space, shall mean the amount by which the
Real Estate Taxes in any fiscal year following fiscal
year 2000/01 exceed the Real Estate Taxes assessed for
the tax year ending June 30, 2001.
(y) The following is added as Paragraph 14 of Article
Thirty-Sixth:
14. Tenant's Proportionate Share with respect to the entire
second floor shall mean 11.65%, with respect to the
basement portion of the Expansion Space shall mean
5.84%, and with respect to each of the entire third and
fourth floors shall mean 11.56%. If the Tenant leases
less than an entire floor, Tenant's Proportionate Share
shall be adjusted accordingly.
(iv) In lieu of paying a Xxxxxx'x Wage Payment pursuant to Article
Thirty-Sixth for the Expansion Space, commencing as of the
first anniversary of the commencement date of the lease for any
Expansion Space and on each anniversary thereafter, the fixed
rent shall increase to an amount equal to 103% of the fixed
rent payable for such space during the immediately preceding
twelve month period. By way of illustration only, assume the
term for the Expansion Space commenced as of September 1, 2001
at a fixed rent of $1,000,000 per annum. As of September 1,
2002, the fixed rent shall increase to 103% of the prior year's
rent, for a fixed rent of $1,030,000. As of September 1, 2003,
the fixed rent shall increase to 103% of the prior year's rent,
for a fixed rent of $1,060,900.
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(v) Tenant shall pay for electricity used in the Expansion Space in
accordance with the following, in lieu of the methodology
specified in Article Tenth (a) (rewritten) of the Lease:
Landlord hereby represents that there is, or will be, a separate meter
installed which separately measures the consumption of electricity in
the Expansion Space, including any Expansion Space which is comprised
of a half floor. Tenant covenants and agrees to purchase, from the
Landlord or the Landlord's designated agent, electricity for the
Tenant's requirements at the Expansion Space at a price equal to 108%
of the Rates (as hereinafter defined) paid by Landlord with respect to
the Building (or the conjunctional group in which the Building in
included), plus an amount equal to all sales, use and gross receipt
taxes and other governmental charges or levies, generally applicable
to the purchase and sale of electricity by commercial buildings in New
York City (and without regard to whether the Landlord is exempt from
paying or collecting any such tax, charge or levy). If Tenant so
requests, the Landlord will, at the expense of the Tenant, install in
the Expansion Space a time-of-day meter selected by the Tenant and
approved by the Landlord, which approval shall not be unreasonably
withheld or delayed. Thereafter, the Tenant's demand and consumption
of electricity for the Expansion Space shall be that specified for the
applicable period in any applicable rate schedule as so measured. As
used herein, the term "Rates" shall mean Landlord's aggregate cost of
purchasing electricity for the Building, including, without
limitation, all charges related to the generation, transmission,
distribution and service and all charges for consumption and demand
(including, without limitation, all seasonal and time-of-day
adjustments and fuel escalation charges relating to such consumption
and demand charges). The Tenant shall have the right to request
"totalizing equipment" in the Expansion Space in accordance with the
provisions of paragraph 9 of this Fourth Amendment.
(vi) Landlord shall not be obligated to perform any work in the
Expansion Space, such space to be delivered in its then "as is"
condition. Notwithstanding the foregoing, Landlord shall enforce
any rights contained in the leases of the existing tenants in the
Expansion Space which require such tenants to restore their
premises or repair
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any damage therein upon the expiration or sooner termination of
such leases.
(vii) Tenant's obligation to pay fixed rent for any Expansion Space
shall not commence until the earlier to occur of (x) one
hundred twenty (120) days after the commencement date of the
term for such space and (y) the date on which the Tenant
commences occupancy of the Expansion Space for the conduct of
its business operations.
(c) Tenant's rights under this Paragraph 15 are subject to the
rights of the current tenants (and their successors and assigns), as well as any
rights of Xxxx Elsevier Inc. pursuant to a lease dated as of June 1, 1998
between Landlord, as landlord, and Xxxx Elsevier, Inc., as tenant (the "Xxxx
Lease"). If the Tenant has delivered an Election Notice, and if Xxxx Elsevier
exercises any expansion option contained in the Xxxx Lease, and if such
expansion option is superior to the rights of the Tenant hereunder, Tenant's
Election Notice shall be automatically deemed rescinded, and the Landlord shall
promptly notify Tenant of Xxxx Elsevier's exercise of its expansion option.
(d) If Tenant fails to timely send Election Notice, then Tenant's
rights under this Paragraph 15 shall terminate and Landlord shall thereafter
have the right to lease any or all of the remaining basement space or the
second, third or fourth floors to any third party, subject only to the Tenant's
rights under Paragraph 16 hereof.
(e) If the Landlord fails to deliver the Expansion Space within one
year after the date by which it is obligated to deliver possession of such
Expansion Space, Tenant shall have a one-time right to rescind its Election
Notice by giving Landlord written notice within thirty days after the expiration
of such one-year period (the "Rescission Notice"), but prior to the date
Landlord delivers possession of such Expansion Space, time being of the essence
with respect to the giving of the Rescission Notice. If Tenant fails to timely
deliver the Rescission Notice, then it shall lease the Expansion Space on the
terms set forth in this Paragraph 15.
16. Tenant's Right of First Offer. (a) If Tenant does not elect to send
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an Election Notice in accordance with the provisions of paragraph 15 above, and
further provided that no event of default shall have occurred and be continuing,
in the event that any space in the basement, second, third or forth floors of
the Building becomes available by reason of a lease termination (such space
being hereinafter referred to as "Vacated Space," the Landlord agreeing that it
shall not renew the lease for any Vacated Space without first
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offering the Vacated Space to the Tenant pursuant to this paragraph 16 unless
the existing tenant has, as of the date of this Fourth Amendment, an explicit
right of renewal for the Vacated Space in its lease, or an existing lease
specifically grants, as of the date of this Fourth Amendment, to an existing
tenant the right to lease any of the Vacated Space), the Landlord shall give the
Tenant notice of the availability of such Vacated Space (including the proposed
date of delivery of the Vacated Space), such notice to also set forth the
proposed rental rate for such space, rent escalation, utility payments and such
other terms upon which the Landlord intends to market and lease such Vacated
Space (the "Landlord's Notice"). If the Tenant shall desire to lease such
Vacated Space, the Tenant shall give written notice to Landlord of the Tenant's
acceptance of the Landlord's Notice not later than fifteen business days
following receipt of the Landlord's Notice (and if the Vacated Space is on the
second or third floor, Tenant's notice shall also state the term for which
Tenant elects to lease such space, which shall be no less than ten and no more
than fifteen years), time being of the essence with respect to the Tenant's
giving of such notice. If the Tenant shall give notice of its election to lease
the Vacated Space, and provided that no event of default shall have occurred and
be continuing and that this Lease shall not have been terminated, an amendment
to this Lease shall be offered to the Tenant covering the Vacated Space which
shall reflect the rental terms and other terms set forth in the Landlord's
Notice and which shall otherwise contain substantially the same terms as set
forth herein wherever possible and, (i) with respect to Vacated Space in the
basement, shall provide for a term ending concurrently with this Lease, (ii)
with respect to Vacated Space on the fourth floor, shall provide for a term
expiring at the Tenant's option on December 31, 2007 or December 31, 2012 (the
Tenant to specify which term it elects when it notifies the Landlord as to
whether it elects to lease such Vacated Space), and (iii) with respect to
Vacated Space on the second or third floor, shall provide for a term ending as
of the last day of the calendar month in which the appropriate anniversary of
the commencement date for such space occurs. If the Tenant does not give written
notice accepting the Landlord's Notice in a timely manner, the Tenant shall be
deemed not to have leased the Vacated Space, and the Landlord may thereafter
lease such Vacated Space to a third party on such terms as the Landlord in its
sole discretion shall determine (including renewal options, if any) and the
Tenant shall have no further right to lease the Vacated Space when the same
becomes available in the future; provided, however, that if in connection with
the first leasing of the Vacated Space following the delivery of Landlord's
Notice, the Landlord offers to lease the Vacated Space to a third party for a
net effective rental, the present value of which (discounted at a rate of 9% per
annum) is less than 90% of the present value (discounted at the rate of 9% per
annum) of the net effective rental rate set forth in Landlord's Notice to the
Tenant for such space, then the Landlord shall again offer such Vacated
14
Space to the Tenant as provided in this Fourth Amendment at such reduced rental
rate (the "Landlord's Second Notice"). The Tenant shall be obligated to respond
to the Landlord's Second Notice, or any new lease offered in connection
therewith in the same manner and within the same time as set forth above, time
being of the essence. If the Tenant does not give written notice accepting the
Landlord's Second Notice in a timely manner, the Landlord may thereafter lease
such Vacated Space to a third party on such terms as the Landlord in its sole
discretion shall determine (including renewal options, if any) and the Tenant
shall have no further right to lease the Vacated Space when the same become
available in the future, subject only to the provisions of paragraph (b) below.
The parties shall endeavor to execute a lease amendment within thirty days. If
the Tenant has timely given written notice accepting the Landlord's Notice or
the Landlord's Second Notice, as the case may be, but fails to timely execute a
lease amendment, the Tenant shall nonetheless be obligated to lease from the
Landlord, and the Landlord shall be obligated to lease to the Tenant, the
Vacated Space on the terms and conditions set forth in the Landlord's Notice or
the Landlord's Second Notice, as the case may be, and the Lease shall be deemed
amended accordingly.
(b) In addition to the provisions of paragraph (a) above, if the
Landlord fails to enter into a lease with a third party for any of the Vacated
Space within six months after the date of Landlord's Notice, then the Landlord
shall notify the Tenant of the continued availability of the Vacated Space and
the terms upon which it is being offered (the "Landlord's Reoffer Notice") and
the Tenant shall have a period of fifteen days following receipt of Landlord's
Reoffer Notice in which to deliver a written notice to the Landlord as to
whether the Tenant wishes to lease the Vacated Space, time being of the essence
with respect too giving of such notice. If the Tenant shall give notice of its
election to lease the Vacated Space, and provided that no event of default shall
have occurred and be continuing, and that this Lease shall not have been
terminated, an amendment to this Lease shall be offered to the Tenant covering
the Vacated Space which shall reflect the rental terms and other terms set forth
in Landlord's Reoffer Notice, and which shall otherwise contain substantially
the same terms as set forth herein whenever possible (and containing the
expiration dates as set forth in paragraph (a) above). If the Tenant does not
give written notice accepting the Landlord's Reoffer Notice in a timely manner,
the Tenant shall be deemed to have waived its right to lease the Vacated Space,
and the Landlord may therefore then lease the Vacated Space to any third party
on such terms as the Landlord in its sole discretion may determine, free of all
rights of the Tenant hereunder. The parties shall endeavor to execute a lease
amendment within thirty days. If the Tenant timely accepts the Landlord's
Reoffer Notice, but fails to execute a lease amendment, the parties shall be
bound with respect to such space as set forth in the last sentence of
subparagraph (a) above.
15
(c) Tenant's rights under this Paragraph are subject to the rights of
Xxxx Elsevier, Inc. pursuant to the Xxxx Lease.
(d) If the Landlord fails to deliver the Vacated Space within one year
after the anticipated delivery date set forth in Landlord's Notice, Tenant shall
have a one-time right to rescind its election to lease the Vacated Space by
giving Landlord written notice within thirty days after the expiration of such
one-year period (the "Rescission Notice"), but prior to the date Landlord
delivers possession of the Vacated Space to the Tenant, time being of the
essence with respect to the giving of the Rescission Notice. If Tenant fails to
timely deliver the Rescission Notice, then it shall lease the Vacated Space in
accordance with the provisions of this Paragraph 16.
17. Renewal Option. The following is hereby added as Article Fifty Second
--------------
of the Lease:
"FIFTY-SECOND: (a) Provided the Tenant or an Affiliate is then occupying
sixty percent (60%) of the premises then being leased hereunder, the Tenant or
an Affiliate is granted a one-time option to extend the term of this Lease for
an additional five-year period (the "Renewal Term") for no less than sixty (60%)
percent of the premises then being leased, which space must be comprised of full
floors, which Renewal Term shall commence on the date immediately succeeding the
Expiration Date and end on the fifth anniversary of the Expiration Date,
provided, however, that (i) this Lease shall not have been previously
terminated, (ii) no event of default shall have occurred and be continuing on
either the date the Tenant gives the Landlord written notice of its election to
exercise its renewal option or on the date of the commencement of the Renewal
Term, (iii) that Tenant shall not have exercised its right of rescission as set
forth in paragraph (b) below, and (iv) Tenant shall have no right to renew the
term of this Lease with respect to space, if any, leased on the second and third
floors. The renewal option may be exercised by the Tenant by giving the Landlord
written notice (the "Renewal Notice") of the Tenant's election to do so not
later than eighteen (18) months prior to the Expiration Date, TIME BEING OF THE
ESSENCE with respect to the giving of such notice. The Tenant shall advise the
Landlord in its Renewal Notice whether Tenant is exercising its option for all
or only a portion of the premises. Upon the giving of the Renewal Notice, the
Tenant shall have no further right or option to extend or renew the term. The
Renewal Term shall be on all of the terms, covenants and conditions contained in
this Lease, except that the fixed rent shall be determined as set forth in this
Article FIFTY-SECOND and the determination of additional rent shall be made in
accordance with paragraph (e) of this Article FIFTY-SECOND, and the Landlord
shall have no obligation to perform any work in the premises.
16
(b) In the event the Tenant shall exercise its option to extend the
Lease for an additional five years, then commencing on the first day of the
Renewal Term, the fixed rent payable hereunder shall be 95% of the annual fair
market rental value for the premises as of the first day of the Renewal Term
(the "FMRV Rent"). The initial determination of the FMRV Rent shall be made by
the Landlord. The Landlord shall give notice to the Tenant of the proposed FMRV
Rent within thirty (30) days after receipt of the Renewal Notice (the "FMRV
Notice"). If the Tenant does not agree with the Landlord's determination of
fixed rent as set forth in the FMRV Notice, the Tenant shall, within thirty (30)
days after receipt of the FMRV Notice, notify the Landlord ("Tenant's Election
Notice") that Tenant (i) elects to have the FMRV Rent determined in accordance
with the provisions of this Article Fifty-Second, or (ii) elects to rescind its
Renewal Notice. TIME SHALL BE OF THE ESSENCE with respect to the delivery of
Tenant's Election Notice.
(c) If Tenant has not rescinded its Renewal Notice, and if the parties
are still unable to agree on the FMRV rent within thirty days after receipt of
Tenant's Election Notice, then within forty-five days after Landlord's receipt
of Tenant's Election Notice, each party, at its cost and by giving notice to the
other party, shall appoint a real estate appraiser with at least ten years'
continuous full time commercial rental appraisal or leasing experience of
comparable space in the New York City rental market to appraise and set forth
the FMRV Rent of the premises. If a party does not appoint an appraiser within
ten (10) days after the other party has given notice of the name of its
appraiser, the single appraiser appointed shall be the sole appraiser and shall
determine the FMRV Rent. If the two appraisers are appointed by the parties as
stated in this paragraph, they shall meet promptly and shall be instructed to
prepare and exchange appraisal reports and set the FMRV Rent within thirty (30)
days after the second appraiser has been appointed, and if their two appraisals
are within ten (10%) percent of each other, the FMRV Rent shall be the average
of the two appraisals. If the two appraisals are not within ten percent of each
other, the appraisers shall attempt to agree upon a third appraiser meeting the
qualifications stated in this paragraph within five (5) days after the last day
the two appraisers are given to set the FMRV Rent. If they are unable to agree
on the third appraiser, either of the parties to this Lease, by giving three (3)
days' notice to the other party, can file a petition with the President of the
Real Estate Board of the City of New York, solely for the purpose of selecting a
third appraiser who meets the qualifications stated in this paragraph. Each
party shall bear half the cost of the appointment of the third appraiser,
including the third appraiser's fee. No appraiser can be appointed pursuant to
this Article who has represented either party in connection with any transaction
in New York City within the five year period preceding such appointment.
17
Within ten (10) days after the selection of the third appraiser, the
Landlord's and the Tenant's appraiser shall each submit to the third appraiser
its estimate of the FMRV Rent, together with such reports, information on
comparable rentals and other information as they deem relevant. The third
appraiser shall conduct such hearings (which hearings shall not be conducted as
a formal arbitration proceeding) and investigations as he may deem appropriate,
providing each party, in any event, an opportunity to explain its determination
of the FMRV Rent, and within thirty days after the submission by the two
appraisers, shall choose one of the determinations of the FMRV Rent of the two
arbitrators originally selected by the parties and that choice by the third
arbitrator shall be binding upon the Landlord and the Tenant. The third
appraiser may not select any other rental value for the premises. The
determination of the two appraisers, or the third appraiser, as the case may e,
shall be in writing and shall be binding upon the Landlord and the Tenant. The
appraisers shall not have the power to add to, modify or change any of the
provisions of this Lease.
(d) In the event that by the commencement of the Renewal Term there
has been no agreement between the Landlord and the Tenant and no determination
as set forth herein, then until such agreement or determination as set forth
herein, the Tenant shall pay fixed rent equal to Landlord's determination of the
FMRV Rent. Within thirty (30) days following the determination of the FMRV Rent,
the Tenant shall pay any amount owing to Landlord for such period, or Landlord
shall refund or credit any excess amount paid by Tenant against the installments
of fixed and additional rent next becoming due hereunder, as the case may be.
(e) If the Tenant exercises its option to extend the term of this
Lease for the Renewal Term, then in addition to the fixed rent payable during
the Renewal Term, the Tenant shall also, commencing as of the commencement of
the Renewal Term, continue to pay to the Landlord all additional rent payable
pursuant to Article THIRTY-SIXTH of the Lease, except that:
(i) the term "Increase in Real Estate Taxes" mean the amount by
which Real Estate Taxes in any Subsequent Year exceed the
Real Estate Taxes in effect during the calendar year 2008;
(ii) the term "Subsequent Year" shall mean each calendar year
during the term of the lease commencing January 1, 2009;
(iii) "Base Wage Rate" shall mean the average of the Wage Rates
in effect during calendar year 2008;
18
(iv) "Tenant's Proportionate Share" during the Renewal Term shall
be 53.66% which percentage is based on the premises being
leased in the basement as of the date of this Fourth
Amendment and the entire fifth through ninth floors
inclusive. Tenant's Proportionate Share shall be adjusted
appropriately if the amount of space leased by Tenant shall
have changed by the commencement of the Renewal Term.
(v) "Area of Demised Premises" shall mean 158,248 square feet
(the parties acknowledging that this square footage applies
only to the entire fifth through ninth floors (and excludes,
for purposes of computing the Porters' Wage Payment, any
basement space), which number shall be adjusted
appropriately depending upon which space is being leased for
the Renewal Term (but shall in all events exclude any
basement space).
(f) Anything in paragraph (a) above to the contrary notwithstanding,
if the Tenant is occupying any portion of the second or third floor as of the
date by which the Renewal Notice must be delivered, the Tenant shall also have
the right to renew the term of the Lease for up to 2,500 rentable square feet of
basement space for each of the second and third floor for a term to expire
coterminously with the Lease for the second and/or third floor space, and
otherwise on the terms set forth herein.
(g) In determining the FMRV Rent for the Renewal Term, the rentable
area of the premises and the Additional Fifth Floor Premises, shall be as set
forth on Exhibit B annexed hereto.
(h) During the Renewal Term, electricity shall be billed in
accordance with the provisions of Paragraph 15(a)(5) hereof for all of the
premises for which the term is being renewed.
(i) The "FMRV Rent" shall be the annual fair market rental rate per
square foot of rentable square foot as of the beginning of the Renewal Term for
space comparable in size, location and term. FMRV Rent shall be determined by
assuming that the premises are free and clear of all leases and tenancies,
including this Lease, and taking into consideration the following: (i) the
condition and class of the Building and comparable buildings of similar
condition, size and quality in the Midtown South area of New York City, (ii)
concessions then being given by landlords in the market, including, without
limitation, rental abatements, construction allowances and other
19
concessions, to the extent such concessions are customarily granted for terms of
such length; (iii) brokerage commissions, if any, Landlord is obligated to pay
with respect to the Renewal Term; (iv) the method of measurement of the rentable
area of the premises; (v) that the Landlord and a prospective tenant are
entering into an arms-length transaction and that neither the Landlord nor any
prospective tenant is under any compulsion to rent; (vi) that for purposes of
calculating porters wage and tax escalations, the bases have been updated
pursuant to this Article Fifty-Second, (vii) that as of the commencement of the
Renewal Term, the Tenant shall not be required to pay Tenant's Proportionate
Share of such other escalation payments, if any, which Landlord is then charging
in the Building or which landlords (including Landlord) are then charging
tenants under leases in comparable buildings, and (viii) the provisions of this
Lease, including the manner in which electricity is to be billed during the
Renewal Term.
18. Guaranty. By Lease Guaranty dated April 15, 1993, EURO RSCG S.A.
--------
guaranteed the obligations of Della under the Lease. Simultaneously herewith,
HAVAS ADVERTISING S.A. formerly known and EURO RSCG S.A. hereby reaffirms the
Guaranty, which Guaranty shall remain in full force and effect with respect to
all premises leased by the Tenant pursuant to the Lease throughout the original
term of this Lease and the Renewal Term, if any.
19. Broker. The Tenant represents and warrants to the Landlord that all
------
of the Tenant's negotiations respecting this Lease which were conducted with or
through any person, firm or corporation, other than the officers of the
Landlord, were conducted through Insignia/ESG, Inc. (the "Broker"). The Landlord
agrees to pay the commission due to the Broker pursuant to the terms of a
separate agreement. Landlord and Tenant agree to indemnify and hold one another
harmless from and against all demands, liabilities, losses, causes of action,
damages, cost and expenses (including, without limitation, attorneys' fees and
disbursements) suffered or incurred in connection with any claims for a
brokerage commission, finder's fee, consultation fees or other compensation
arising out of any conversations or negotiations had by the party against whom
indemnification is claimed with any broker or other party except for the Broker.
20. Satellite Installation Agreement. The Lease Addendum as of April 15,
--------------------------------
1999 with respect to the satellite antenna installation on the roof of the
Building is hereby ratified and shall remain in full force and effect in
accordance with its terms through the Expiration Date as the same may be
extended pursuant to the provisions of Article 52, provided, however, that at
the time Tenant exercises its rights pursuant to Article 52, Tenant must
simultaneously notify Landlord that it intends to extend the April 15, 1999
Lease Addendum, and the fair market rental value for the space leased
20
pursuant to the Lease Addendum shall be determined in the same manner set forth
in Article 52.
21. Lease is in Full Force and Effect. Except as expressly provided in
---------------------------------
this Fourth Amendment, all the terms, conditions, covenants and agreements
contained in the Lease shall continue in full force and effect and are hereby
ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have set their hands and seal as of
the day first above written.
THE XXXXXX, CHURCH-WARDENS AND VESTRYMEN OF TRINITY CHURCH
IN THE CITY OF NEW YORK
By:__________________________________________
By:__________________________________________
By:__________________________________________
EWDB NORTH AMERICA, INC.
By:__________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President & Chief
Financial Officer
With respect to Paragraph 18 only:
HAVAS ADVERTISING S.A.
By:__________________________________________
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President-Chief
Financial Officer
21
EXHIBIT 4A-1
------------
BASEMENT SPACE
--------------
22
EXHIBIT 4A-2(two pages)
------------
FIFTH FLOOR PREMISES
--------------------
23
EXHIBIT B
---------
RENTABLE SQUARE FOOTAGE
-----------------------
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Basement Space 21,989 sq. feet
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Entire 2/nd/ Floor 35,299, sq. feet
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Entire 3/rd/ Floor 35,018, sq. feet
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Entire 4/th/ Floor 35,018, sq. feet
--------------------------------------------------------------------------------
Entire 5/th/ Floor 35,018, sq. feet
--------------------------------------------------------------------------------
Entire 6/th/ Floor 35,018, sq. feet
--------------------------------------------------------------------------------
Entire 7/th/ Floor 35,018, sq. feet
--------------------------------------------------------------------------------
Entire 8/th/ Floor 35,018, sq. feet
--------------------------------------------------------------------------------
Entire 94/th/ Floor 18,176 sq. feet
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24
