1
Exhibit 10(v) B
AGREEMENT OF LEASE
between
SEVEN THIRTY ONE LIMITED PARTNERSHIP,
Landlord
and
BLOOMBERG L.P.,
Tenant
The Site Bounded by Lexington Avenue,
Xxxx 00xx Xxxxxx, Xxxx 00xx Xxxxxx and Third Avenue,
New York, New York
as of April 30, 2001
2
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEMISE, PREMISES, TERM, RENT........................................................................... 28
ARTICLE 2 USE AND OCCUPANCY...................................................................................... 31
ARTICLE 3 ALTERATIONS............................................................................................ 43
ARTICLE 4 REPAIRS-FLOOR LOAD..................................................................................... 58
ARTICLE 5 WINDOW CLEANING........................................................................................ 60
ARTICLE 6 LEGAL AND INSURANCE REQUIREMENTS....................................................................... 61
ARTICLE 7 SUBORDINATION.......................................................................................... 63
ARTICLE 8 RULES AND REGULATIONS.................................................................................. 85
ARTICLE 9 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT...................................................... 86
ARTICLE 10 DESTRUCTION-FIRE OR OTHER CAUSE....................................................................... 91
ARTICLE 11 EMINENT DOMAIN........................................................................................ 98
ARTICLE 12 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC................................................................. 100
ARTICLE 13 ELECTRICITY........................................................................................... 126
ARTICLE 14 ACCESS TO TENANT AREAS; UNTENANTABILITY............................................................... 129
ARTICLE 15 CERTIFICATE OF OCCUPANCY.............................................................................. 135
ARTICLE 16 DEFAULT............................................................................................... 137
ARTICLE 17 REMEDIES AND DAMAGES.................................................................................. 140
ARTICLE 18 FEES AND EXPENSES..................................................................................... 142
ARTICLE 19 NO REPRESENTATIONS BY LANDLORD........................................................................ 144
ARTICLE 20 END OF TERM........................................................................................... 144
ARTICLE 21 QUIET ENJOYMENT....................................................................................... 145
-i-
3
ARTICLE 22 CONSTRUCTION OF THE BUILDING AND THE PREMISES......................................................... 145
ARTICLE 23 NO WAIVER............................................................................................. 187
ARTICLE 24 WAIVER OF TRIAL BY JURY............................................................................... 188
ARTICLE 25 BILLS AND NOTICES..................................................................................... 189
ARTICLE 26 ESCALATION............................................................................................ 190
ARTICLE 27 SERVICES.............................................................................................. 209
ARTICLE 28 LIMITATION ON TENANT'S LIABILITY...................................................................... 214
ARTICLE 29 PARKING............................................................................................... 214
ARTICLE 30 CAPTIONS.............................................................................................. 215
ARTICLE 31 PARTIES BOUND......................................................................................... 216
ARTICLE 32 BROKER................................................................................................ 216
ARTICLE 33 INDEMNITY............................................................................................. 216
ARTICLE 34 ADJACENT EXCAVATION-SHORING........................................................................... 219
ARTICLE 35 ADDITIONAL PROVISIONS................................................................................. 220
ARTICLE 36 OPTION SPACE.......................................................................................... 225
ARTICLE 37 RENEWAL TERM.......................................................................................... 234
ARTICLE 38 RENTAL VALUE.......................................................................................... 237
ARTICLE 39 TENANT'S SIGNS........................................................................................ 241
ARTICLE 40 CERTAIN RESTRICTIONS.................................................................................. 245
ARTICLE 41 GOVERNMENTAL INCENTIVES............................................................................... 252
ARTICLE 42 ROOF RIGHTS........................................................................................... 254
-ii-
4
EXHIBITS
Exhibit Definitions-A Comparison Amounts
Exhibit Definitions-B Deliverable Units
Exhibit Definitions-C Land
Exhibit Definitions-D List of Regular Competitors
Exhibit Definitions-E List of Primary Competitors
Exhibit Definitions-F Usable Area
Exhibit Definitions-G Work Exhibit
Exhibit 2.6 Neutral Zone
Exhibit 3.1 Approved Contractors and Architects
Exhibit 3.9 Approved Alterations
Exhibit 7.10 Financial Disclosure Provisions
Exhibit 7.12 Existing Mortgages
Exhibit 12.6 Form of Consent to Sublease
Exhibit 12.8 Form of Consent to Assignment
Exhibit 22.1 Schematic Drawings
Exhibit 22.4 Incremental Area from Prior Building Design
Exhibit 22.6 Construction Milestone Stages
Exhibit 22.8 Existing Leases
Exhibit 26.1 Comparable Properties
Exhibit 26.2 Calculation of Section 421-a Reduction
Exhibit 35.5 Form of Memorandum of Lease
Exhibit 39.1 Tenant's Signs
-iii-
5
AGREEMENT OF LEASE, made as of the 30th day of April, 2001, between
Landlord and Tenant.
W I T N E S S E T H:
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows:
DEFINITIONS
"AAA" shall mean the American Arbitration Association, or its
successor.
"Abatement Event" shall have the meaning set forth in Section 14.5
hereof.
"Abatement Percentage" shall have the meaning set forth in Section 14.5
hereof.
"Access Tunnel" shall have the meaning set forth in Section 22.1
hereof.
"Actual Tax Amount" shall have the meaning set forth in Section 26.1
hereof.
"Additional Antennae" shall have the meaning set forth in Section 42.1
hereof.
"Additional Antennae Site" shall have the meaning set forth in Section
42.1 hereof.
"Affiliate" shall mean a Person which (1) Controls, (2) is under the
Control of, or (3) is under common Control with, the Person in question.
"Alexander's" shall mean Alexander's Inc., a Delaware corporation.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations, such as painting,
wall covering and floor covering) made by or on behalf of Tenant in or about the
Premises (it being understood that the Work shall not constitute Alterations for
purposes hereof).
"Antennae" shall have the meaning set forth in Section 42.2 hereof.
"Antennae Site" shall have the meaning set forth in Section 42.2
hereof.
"Applicable Area" shall have the meaning set forth in Section 38.1
hereof.
"Applicable Date" shall have the meaning set forth in Section 38.1
hereof.
"Applicable Financing" shall have the meaning set forth in Section 7.13
hereof.
"Applicable Financing Term" shall have the meaning set forth in Section
7.13 hereof.
1
6
"Applicable Option Space" shall have the meaning set forth in Section
36.2 hereof.
"Applicable Option Space Items" shall have the meaning set forth in
Section 36.5 hereof.
"Applicable Percentage" shall have the meaning set forth in Section
22.8 hereof.
"Applicable Rate" shall mean the lesser of (x) two (2) percentage
points above the then current Base Rate, and (y) the maximum rate permitted by
applicable law.
"Applicable Review Period" shall have the meaning set forth in Section
22.3 hereof.
"Applicable Signage Option Space" shall have the meaning set forth in
Section 39.1 hereof.
"Applicable Terms" shall have the meaning set forth in Section 12.11
hereof.
"Appraiser" shall have the meaning set forth in Section 38.3 hereof.
"Assessed Valuation" shall have the meaning set forth in Section 26.1
hereof.
"Asset Acceptance Notice" shall have the meaning set forth in Section
40.1 hereof.
"Assignment Proceeds" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Recapture" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Statement" shall have the meaning set forth in Section 12.8
hereof.
"Available Reduction Amount" shall have the meaning set forth in
Section 26.2 hereof.
"Average Comparable Property Increase Rate" shall have the meaning set
forth in Section 26.1 hereof.
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 et seq., as amended
from time to time from and after the date hereof, or any statute of similar
nature and purpose.
"Base Capacity" shall have the meaning set forth in Section 13.2
hereof.
"Base Premises" shall mean (i) the third (3rd), fourth (4th), fifth
(5th), sixth (6th), seventh (7th), eighth (8th), ninth (9th) and tenth (10th)
floors of the Lexington Avenue Building, (ii) the fourth (4th), fifth (5th),
sixth (6th) and seventh (7th) floors of the Third Avenue Building, and (iii) the
Bridge Building; provided, however, that the Base Premises shall not include any
portion of the aforesaid space in the Building that is used for Remote Building
Systems or for Shared Building Systems.
2
7
"Base Rate" shall mean the rate of interest publicly announced from
time to time by The Chase Manhattan Bank, or its successor, as its "prime
lending rate" in New York City (or such other term as may be used by The Chase
Manhattan Bank, from time to time, for the rate presently referred to as its
"prime lending rate"), which rate was eight percent (8%) per annum on April 17,
2001.
"Base Rental Amount" shall have the meaning set forth in Section 38.1
hereof.
"Basic Amenities" shall have the meaning set forth in Section 2.5
hereof.
"Basic Antennae" shall have the meaning set forth in Section 42.1
hereof.
"Basic Antennae Site" shall have the meaning set forth in Section 42.1
hereof.
"Basic Commencement Date" shall mean the date hereof.
"Basic Premises" shall mean the Premises, other than portions thereof
that consist of Upper Option Space or Lower Option Space.
"Blended Comparison Amount" shall mean the product obtained by
multiplying (x) the number of square feet of Rentable Area of the Applicable
Option Space that constitutes Lower Option Space, by (y) (I) Fifty-Two and
39/100 Dollars ($52.39), with respect to 1st Rental Period, (II) Fifty-Eight and
15/100 Dollars ($58.15), with respect to the 2nd Rental Period, (III) Sixty-Four
and 55/100 Dollars ($64.55), with respect to the 3rd Rental Period, (IV)
Seventy-One and 65/100 Dollars ($71.65), with respect to the 4th Rental Period,
(V) Seventy-Nine and 53/100 Dollars ($79.53), with respect to the 5th Rental
Period, (VI) Eighty-Eight and 28/100 Dollars ($88.28), with respect to the 6th
Rental Period, and (VII) Ninety-Seven and 99/100 Dollars ($97.99), with respect
to the 7th Rental Period.
"Bloomberg" shall mean Bloomberg L.P., a Delaware limited partnership,
having an address as of the date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Bloomberg Party" shall mean (x) Bloomberg, (y) an Affiliate of
Bloomberg, or (z) a Person that takes the tenant's interest hereunder by
assignment from Bloomberg or an Affiliate of Bloomberg pursuant to a transaction
of the nature described in Section 12.4(C) hereof or Section 12.4(E) hereof.
"Board of Managers" shall have the meaning set forth in Section 7.7
hereof.
"Bond Lease" shall have the meaning set forth in Section 7.11 hereof.
"Bridge Building" shall mean the structure identified as the "Bridge
Building" on the Schematic Drawings, including, without limitation, the
equipment and improvements therein (as such structure, equipment or improvements
may be altered, replaced or supplemented from time to time, subject to and in
accordance with the terms hereof).
3
8
"Broker" shall have the meaning set forth in Article 32 hereof.
"Building" shall mean, collectively, the Third Avenue Building, the
Bridge Building and the Lexington Avenue Building.
"Building Lobby" shall have the meaning set forth in Section 2.3
hereof.
"Building Plans" shall have the meaning set forth in Section 22.3
hereof.
"Building Standard" shall have the meaning set forth in Section 4.1
hereof.
"Building Systems" shall mean the mechanical, gas, electrical,
sanitary, sprinkler, emergency electrical generation, HVAC, elevator, plumbing,
life-safety and other service and utility systems of the Building (other than
any such system that Tenant installs as an Alteration to service the Premises
exclusively).
"Business Days" shall mean all days, excluding Saturdays, Sundays and
all days observed by either the State of New York or the Federal Government and
by the labor unions servicing the Building as legal holidays.
"By-Laws" shall mean the by-laws of the Condominium.
"Casualty Statement" shall have the meaning set forth in Section 10.1
hereof.
"Combined Tax Lot" shall have the meaning set forth in Section 26.2
hereof.
"Combined Tax Lot Area" shall have the meaning set forth in Section
26.2 hereof.
"Combined Tax Lot Period" shall have the meaning set forth in Section
26.2 hereof.
"Commencement Cutoff Date" shall have meaning set forth in Section 22.8
hereof.
"Commencement Date" shall mean, subject to Section 22.1 hereof, with
respect to each Deliverable Unit, the date that Landlord has Substantially
Completed the Pre-Delivery Work for such Deliverable Unit, and delivered vacant
and exclusive possession of such Deliverable Unit to Tenant pursuant to the
provisions of Article 22 hereof (with the understanding, however, that the
Commencement Date for a Deliverable Unit shall not occur unless Landlord has
given at least ten (10) Business Days of advance Construction Notice thereof to
Tenant).
"Common Charges" shall have the meaning set forth in Section 26.1
hereof.
"Comparable Properties" shall have the meaning set forth in Section
26.1 hereof.
"Comparable Property Change Rate" shall have the meaning set forth in
Section 26.1 hereof.
4
9
"Comparison Amount" shall mean, at a particular time, the product
obtained by multiplying (a) the number of square feet of Rentable Area demised
under a Major Sublease or comprising Recapture Space, by (b) the amount
applicable at such time, as set forth on Exhibit Definitions-A attached hereto
and made a part hereof.
"Competitor" shall mean, at any particular time, a Person listed at
such time on the List of Regular Competitors or the List of Primary Competitors.
"Condominium" shall mean (i) the arrangement that exists among the
owners of the fee interests in real property that are located at the Land as
described in the Subdivision Agreement (during the period that the Subdivision
Agreement is in effect), and (ii) the condominium that is created by the
Statutory Condominium Declaration (from and after the date that the Statutory
Condominium Declaration becomes effective).
"Condominium Association" shall mean, collectively, (i) the board that
governs the business and affairs of the Condominium, and (ii) any other board
created by the Condominium Declaration that governs a portion of the Building
that includes all or part of the Premises.
"Condominium Declaration" shall mean (i) the Subdivision Agreement
(during the period that the Subdivision Agreement is in effect), and (ii) the
Statutory Condominium Declaration (from and after the date that the Statutory
Condominium Declaration becomes effective), and, in either case, the By-Laws.
"Condominium Nondisturbance Agreement" shall have the meaning set forth
in Section 7.7 hereof.
"Construction Expert" shall have the meaning set forth in Section 22.2
hereof.
"Construction Hoist" shall mean the Tower Hoist, the Shared Hoist, or
any other construction hoist that Landlord erects or causes to be erected to
accommodate the construction of the Building in accordance with the Logistics
Plan.
"Construction Notice" shall have the meaning set forth in Section 25.2
hereof.
"Consumer Price Index" shall mean the Consumer Price Index for All
Urban Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, New York, N.Y. - Northeastern N.J. Area, All Items (1982-84
= 100), or any successor index thereto, appropriately adjusted. If the Consumer
Price Index is converted to a different standard reference base or otherwise
revised, then the determination of adjustments provided for herein shall be made
with the use of such conversion factor, formula or table for converting the
Consumer Price Index as may be published by the Bureau of Labor Statistics or,
if said Bureau shall not publish the same, then with the use of such conversion
factor, formula or table as may be published by Xxxxxxxx-Xxxx, Inc., or any
other nationally recognized publisher of similar statistical information. If the
Consumer Price Index ceases to be published, and there is no successor thereto,
then such other index as Landlord and Tenant agree upon in writing shall be
substituted for the Consumer
5
10
Price Index. If Landlord and Tenant are unable to agree as to such substituted
index, then either party shall have the right to submit such matter to an
Expedited Arbitration Proceeding.
"Contractor" shall mean the Person (acting as a construction manager,
contractor, subcontractor or material supplier) that provides labor or materials
for a particular Alteration or Work Component, as the case may be.
"Control" or "control" shall mean (i) direct or indirect ownership of
more than fifty percent (50%) of the outstanding voting stock of a corporation
or other majority equity interest if not a corporation, or (ii) the power or
authority to control the management or affairs of a Person, whether by reason of
(a) direct or indirect ownership of a particular portion of the total equity
interest in such Person, (b) the terms of a contract, or (c) another means.
"Conversion Notice" shall have the meaning set forth in Section 7.11
hereof.
"Credit Rating" shall mean a credit rating issued by Standard & Poor's,
Xxxxx'x, or another nationally recognized rating agency.
"Credit Requirement" shall mean the requirement that, at any particular
time, a Person has either (i) a Credit Rating of no less than BBB issued by
Standard & Poor's (or such other designation that is the same as, or
substantially the same as, a BBB rating issued by Standard & Poor's as of the
date hereof), or (ii) Net Cash Flow of no less than fifteen (15) times the
annual Fixed Rent payable by Tenant hereunder at such time.
"Deficiency" shall have the meaning set forth in Section 17.2 hereof.
"Deliverable Unit" shall mean, subject to Section 22.1(E) hereof and
Section 36.11 hereof, each portion of the Initial Premises as described on
Exhibit Definitions-B attached hereto and made a part hereof.
"Direct Equity" shall have the meaning set forth in Section 40.1
hereof.
"Early Option" shall have the meaning set forth in Section 36.11
hereof.
"Early Option Notice" shall have the meaning set forth in Section 36.11
hereof.
"Electricity Fee" shall have the meaning set forth in Section 13.3
hereof.
"Emergency" shall mean any situation where the applicable Person, in
its reasonable judgment, concludes that a particular action (including, without
limitation, the expenditure of funds) is immediately necessary (i) to avoid
imminent material damage to all or any material portion of the Building or
Premises, (ii) to protect any person from imminent harm, or (iii) to avoid the
imminent unforeseen and unforeseeable suspension of any necessary material
service in or to the Building or the Premises, the failure of which service
would have a material and adverse effect on the Building or the Premises.
6
11
"Emergency Generator System" shall have the meaning set forth in
Section 2.10 hereof.
"Entire Premises" shall mean, subject to Section 14.4 hereof, (i) the
Tower Premises, (ii) the Base Premises, and (iii) the Lower Level Space;
provided, however, that the Entire Premises shall also include any Applicable
Option Space from and after the applicable Option Space Commencement Date
therefor.
"Environmental Laws" shall mean all applicable federal, state and local
environmental, health or safety statutes, laws, rules, ordinances and codes
(whether now existing or hereafter enacted or promulgated) of all Governmental
Authorities and all judicial and administrative and regulatory decrees,
judgments and orders that are applicable to the Land, relating to injury to, or
the protection of, real or personal property or human health or the environment,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the
Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq., the Safe Water Drinking Act, 42 U.S.C. Section 300f et
seq., the Occupational Safety and Health Act, 29 U.S.C. Section 641 et seq.,
Local Laws 76 and 80 of the City of New York and the New York Industrial Waste
Management Act, ECL Section 27-0900 et seq.
"Equity Acceptance Notice" shall have the meaning set forth in Section
40.1 hereof.
"Equity Creditor" shall have the meaning set forth in Section 40.1
hereof.
"Escalation Rent" shall mean, collectively, the Tax Payment and the
Operating Payment.
"Escalation Rent Per Square Foot" shall have the meaning set forth in
Section 12.7 hereof.
"Event of Default" shall have the meaning set forth in Section 16.1
hereof.
"Exclusive Lobby Area" shall have the meaning set forth in Section 2.3
hereof.
"Existing Leases" shall have the meaning set forth in Section 22.8
hereof.
"Existing Mortgages" shall have the meaning set forth in Section 7.12
hereof.
"Expedited Arbitration Proceeding" shall mean a binding arbitration
proceeding conducted in The City of New York under the Commercial Arbitration
Rules of the AAA and administered pursuant to the Expedited Procedures
provisions thereof; provided, however, that with respect to any such
arbitration, (i) the list of arbitrators referred to in Section E-5(b) shall be
returned within five (5) Business Days from the date of mailing; (ii) the
parties shall notify the AAA by telephone, within four (4) Business Days, of any
objections to the arbitrator appointed and, subject to clause (vii) below, shall
have no right to object if the arbitrator so appointed was
7
12
on the list submitted by the AAA and was not objected to in accordance with
Section E-5(b) as modified by clause (i) above; (iii) the notification of the
hearing referred to in Section E-8 shall be four (4) Business Days in advance of
the hearing; (iv) the hearing shall be held within seven (7) Business Days after
the appointment of the arbitrator; (v) the arbitrator shall have no right to
award damages; (vi) the decision of the arbitrator shall be final and binding on
the parties; and (vii) the arbitrator shall not have been employed by either
party (or their respective Affiliates) during the period of three (3) years
prior to the date of the Expedited Arbitration Proceeding. In connection with an
Expedited Arbitration Proceeding that is instituted to select the Construction
Expert or the Appraiser, the parties shall each pay one-half (1/2) of the
arbitrator's fees. In connection with any other Expedited Arbitration
Proceeding, the arbitrator shall determine the extent to which each party is
successful in such Expedited Arbitration Proceeding in addition to rendering a
decision on the dispute submitted. If the arbitrator determines that one (1)
party is entirely unsuccessful, then such party shall pay all of the fees of
such arbitrator. If the arbitrator determines that both parties are partially
successful, then each party shall be responsible for such arbitrator's fees only
to the extent such party is unsuccessful (e.g., if Landlord is eighty percent
(80%) successful and Tenant is twenty (20%) successful, then Landlord shall be
responsible for twenty percent (20%) of such arbitrator's fees and Tenant shall
be responsible for eighty percent (80%) of such arbitrator's fees).
"Expiration Date" shall mean the Fixed Expiration Date or such earlier
or later date on which the Term shall sooner or later end pursuant to any of the
terms, conditions or covenants of this Lease or pursuant to Requirements.
"Extended Option Term" shall have the meaning set forth in Section 36.7
hereof.
"Fair Market Rent" shall have the meaning set forth in Section 38.1
hereof.
"5th Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Financial Disclosure Provisions" shall have the meaning set forth in
Section 7.10 hereof.
"Fire Stairs" shall have the meaning set forth in Section 2.7 hereof.
"Firm Renewal Date" shall have the meaning set forth in Section 26.1
hereof.
"First Commencement Date" shall mean the first to occur of each of the
Commencement Dates.
"First Delivery Component" shall mean (i) the portions of the Initial
Premises that are located on the third (3rd), eighth (8th), ninth (9th) and
tenth (10th) floors of the Lexington Avenue Building, (ii) the portions of the
Initial Premises that are located on the fourth (4th), fifth (5th), sixth (6th)
and seventh (7th) floors of the Building, and (iii) the First Lower Level Space.
"First Lower Level Space" shall have the meaning set forth in Section
22.1 hereof.
8
13
"First Milestone Date" shall have the meaning set forth in Section 22.6
hereof.
"First Price Space" shall mean the portions of the Initial Premises on
the third (3rd), fourth (4th), fifth (5th) or sixth (6th) floors of the
Building, or on the seventh (7th) floor of the Third Avenue Building.
"First Rating Agency" shall have the meaning set forth in Section 7.13
hereof.
"1st Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"First Tenant Tax Year" shall have the meaning set forth in Section
26.1 hereof.
"Fixed Expiration Date" shall mean the date immediately preceding the
twenty-fifth (25th) anniversary of the last to occur of each of the Commencement
Dates applicable to the Initial Premises; provided, however, that in no event
shall the Fixed Expiration Date occur later than the twenty-sixth (26th)
anniversary of the First Commencement Date.
"Fixed Rent" shall have the meaning set forth in Article 1 hereof.
"Fixed Rent Payment Date" shall mean the first (1st) day of a calendar
month, except that if the first (1st) day of a calendar month is a Saturday, a
Sunday or a day observed by either the State of New York or the Federal
Government as a legal holiday, then the Fixed Rent Payment Date for such month
shall be the first (1st) day of such month that is not a Saturday, a Sunday, or
a day observed by either the State of New York or the Federal Government as a
legal holiday.
"Fourth Milestone Date" shall have the meaning set forth in Section
22.6 hereof.
"4th Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Garage Area" shall have the meaning set forth in Section 29.1 hereof.
"Governmental Authority" shall mean the United States of America, the
State of New York, The City of New York, any political subdivision thereof and
any agency, department, commission, board, bureau or instrumentality of any of
the foregoing, or any quasi-governmental authority, now existing or hereafter
created, having jurisdiction over the Building.
"Guarantor" shall have the meaning set forth in Section 7.11 hereof.
"Guaranty" shall have the meaning set forth in Section 7.11 hereof.
"Guaranty Credit Requirements" shall have the meaning set forth in
Section 7.11 hereof.
"Headquarters Space" shall mean, at any particular time, all of the
Rentable Area of the Premises occupied by Bloomberg Parties for the conduct of
business, provided that, at such time, (i) no less than two-thirds (2/3) of the
senior executives of Bloomberg who are headquartered in
9
14
the United States maintain their principal offices at the Premises, and (ii) no
space other than the Premises is designated by Bloomberg, or is commonly known
as, Bloomberg's headquarters in the United States.
"Highest Basic Floor" shall mean the twenty-first (21st) floor of the
Lexington Avenue Building, except that if Tenant exercises the Early Option or
the Shortage Option, then the Highest Basic Floor shall be the highest floor in
the Building that Tenant leases from Landlord pursuant to Section 36.11 hereof.
"High Rise Office Elevators" shall have the meaning set forth in the
Work Exhibit.
"High Rise Portion" shall have the meaning set forth in Section 36.11
hereof.
"Holdover Costs" shall have the meaning set forth in Section 22.8
hereof.
"Holdover Excess" shall have the meaning set forth in Section 22.8
hereof.
"Holdover Premises" shall have the meaning set forth in Section 22.8
hereof.
"Holdover Terms" shall have the meaning set forth in Section 22.8
hereof.
"Hourly Hoist Rate" shall have the meaning set forth in Section 22.14
hereof.
"HVAC" shall mean heat, ventilation and air conditioning.
"HVAC Systems" shall mean the Building Systems providing HVAC.
"Impeding Building Violation" shall have the meaning set forth in
Section 3.8 hereof.
"Impeding Premises Violation" shall have the meaning set forth in
Section 3.8 hereof.
"Incremental Area" shall mean the area of staircases, shaftways and
telecommunications areas that would have otherwise constituted Usable Area
(assuming that Landlord constructed the Building in accordance with the Building
Standard to accommodate a first-class office occupancy) but for Landlord's
installing or expanding the area of such staircases, shaftways and
telecommunications areas to accommodate Tenant's particular requirements;
provided, however, that (W) the Incremental Area shall not include any portion
of the area of the shafts used for the central HVAC System, (X) in respect of
the fresh air supply and return shaft areas that are located above the second
(2nd) floor of the Building and that Tenant and other occupants of the Building
share, the Incremental Area thereof shall be deemed to be the portion of the
area thereof that Landlord is constructing as a Tenant Upgrade Work Component,
and (Y) the area used for fresh air and kitchen exhaust below the third (3rd)
floor of the Building shall not constitute Incremental Area except to the extent
that such area exceeds the area that retail tenants customarily require.
10
15
"Indemnitee" shall have the meaning set forth in Section 33.2 hereof.
"Indemnitor" shall have the meaning set forth in Section 33.2 hereof.
"Indirect Equity" shall have the meaning set forth in 40.1 hereof.
"Initial Alterations" shall mean the Alterations to be made by Tenant
to prepare the Initial Premises for Tenant's initial occupancy.
"Initial Lease" shall have the meaning set forth in Section 7.11
hereof.
"Initial Premises" shall mean, subject to Section 14.4 hereof, (i) the
Base Premises, (ii) the Tower Premises, and (iii) the Lower Level Space.
"Initial Term Option Space" shall have the meaning set forth in Section
37.1 hereof.
"Inspection Access" shall have the meaning set forth in Section 14.1
hereof.
"Institutional Lender" shall mean a savings bank, a savings and loan
association, a commercial bank or trust company (whether acting individually, as
a trustee, as a servicing agent or in a fiduciary capacity), a private pension
fund, a credit union or credit company, an insurance company, a religious,
educational or eleemosynary institution, a federal, state or municipal
employee's welfare, benefit, pension or retirement fund, any governmental agency
or entity insured by a governmental agency, any brokerage or investment banking
organization (or an Affiliate thereof), whether acting in its own capacity or on
behalf of its clients, any real estate mortgage investment conduit or similar
investment vehicle, or any combination of Persons that would otherwise
constitute Institutional Lenders; provided, however, that (i) a Person (other
than a real estate mortgage investment conduit or similar investment vehicle)
shall not constitute an Institutional Lender for purposes hereof unless such
Person (or such Person and its Affiliates) has net assets of at least Two
Hundred Fifty Million Dollars ($250,000,000), and (ii) an Institutional Lender
shall also include any other Person that is generally recognized in the capital
markets as an institutional lender from and after the date hereof.
"Interference Area" shall have the meaning set forth in Section 14.5
hereof.
"Interference Day" shall have the meaning set forth in Section 14.5
hereof.
"Joint Protest Period" shall have the meaning set forth in Section 26.1
hereof.
"Land" shall mean the plot of land described in Exhibit Definitions-C
attached hereto and made a part hereof.
"Landlord", on the date as of which this Lease is made, shall mean
Seven Thirty One Limited Partnership, a New York limited partnership, having an
office c/o Vornado Realty Trust, 000 Xxxxx 0 Xxxx, Xxxxxxx, Xxx Xxxxxx 00000,
but thereafter "Landlord" shall mean only the fee
11
16
owner of the Entire Premises or, if there exists a Superior Lease, the tenant
thereunder (unless the fee owner of the Premises and the tenant under such
Superior Lease is the same Person, in which case "Landlord" shall mean the fee
owner of the Entire Premises and the tenant under such Superior Lease, jointly
and severally).
"Landlord Admission Agreement" shall have the meaning set forth in
Section 7.11 hereof.
"Landlord Default" shall have the meaning set forth in Section 18.3
hereof.
"Landlord Ceiling Zone" shall have the meaning set forth in Section 2.6
hereof.
"Landlord Indemnitees" shall mean (x) Landlord, Lessors, and
Mortgagees, and their respective partners, principals, members, managers,
shareholders, officers, directors, employees, servicing agents, trustees and
agents, and (y) the Condominium Association, the managing agent therefor, and
the members of the Board of Managers and any Subordinate Board of Managers.
"Landlord Owners" shall have the meaning set forth in Section 7.8
hereof.
"Landlord Party" shall have the meaning set forth in Section 26.1
hereof.
"Landlord Protest Period" shall have the meaning set forth in Section
26.1 hereof.
"Landlord Restoration Items" shall mean (i) the structural components
of (I) the Entire Premises, (II) the other Tenant Areas, and (III) other
portions of the Building that Tenant has the right to use hereunder, (ii) the
floor slabs of (I) the Entire Premises, (II) the other Tenant Areas, and (III)
other portions of the Building that Tenant has the right to use hereunder, (iii)
the Building core areas of the Entire Premises, (iv) the curtain wall of the
Entire Premises and the other Tenant Areas, (v) the Premises Systems, (vi) the
Shared Building Systems, and (vii) the Shared Lobby.
"Landlord's Determination" shall have the meaning set forth in Section
38.3 hereof.
"Landlord's Exclusive Hoist Period" shall have the meaning set forth in
Section 22.14 hereof.
"Landlord's Liability Policy" shall have the meaning set forth in
Section 9.3 hereof.
"Landlord's Property Policy" shall have the meaning set forth in
Section 9.3 hereof.
"Last Commencement Date" shall mean the last to occur of each of the
Commencement Dates applicable to the Initial Premises; provided, however, that
(x) in no event shall the Last Commencement Date occur later than December 31,
2006 (it being understood that the Last Commencement Date being deemed to be
December 31, 2006 shall not impair Landlord's obligation to perform the Work in
accordance with Article 22 hereof), and (y) nothing contained
12
17
in this definition obligates Landlord to cause the Commencement Date for each
Deliverable Unit to occur prior to the first (1st) anniversary of the Last
Commencement Date.
"Last Rent Commencement Date" shall mean the last to occur of each of
the Rent Commencement Dates applicable to the Initial Premises; provided,
however, that (I) the Last Rent Commencement Date shall not occur later than the
day that corresponds to the Last Commencement Date in the ninth (9th) calendar
month following the calendar month during which the Last Commencement Date
occurs, except that if there is no day in such ninth (9th) calendar month that
corresponds to the Last Commencement Date, then the Last Rent Commencement Date
shall be the first (1st) day of the tenth (10th) calendar month following the
calendar month during which the Last Commencement Date occurs, and (II) nothing
contained in this definition obligates Tenant to commence the payment of Fixed
Rent for any Deliverable Unit prior to the Rent Commencement Date therefor.
"Lease Conversion" shall have the meaning set forth in Section 7.11
hereof.
"Lease Conversion Date" shall have the meaning set forth in Section
7.11 hereof.
"Lease Conversion Documents" shall have the meaning set forth in
Section 7.11 hereof.
"Lessor" shall mean a lessor under a Superior Lease.
"Lexington Avenue Building" shall mean the building identified as the
"Lexington Avenue Building" on the Schematic Drawings, including, without
limitation, the equipment and improvements therein (as such building, equipment
or improvements may be altered, replaced, or supplemented from time to time,
subject to and in accordance with the terms hereof).
"Lexington Place Courtyard" shall mean the courtyard located between
the Lexington Avenue Building and the Third Avenue Building.
"License Fee" shall have the meaning set forth in Section 42.3 hereof.
"List of Primary Competitors" shall mean, subject to the terms of
Section 40.6 hereof, the list of Persons set forth on Exhibit Definitions-D
attached hereto and made a part hereof.
"List of Regular Competitors" shall mean the list of Persons set forth
on Exhibit Definitions-E attached hereto and made a part hereof, as such list
may be revised from time to time pursuant to the terms of Section 40.6 hereof.
"Logistics Plan" shall have the meaning set forth in Section 22.5
hereof.
"Long Lead Area" shall have the meaning set forth in Section 14.1
hereof.
"Long Term Sublease" shall have the meaning set forth in Section 12.6
hereof.
13
18
"Lower Level Space" shall mean, subject to Article 22 hereof, (i) the
portion of Lower Level 2 of the Building substantially as shown on the Schematic
Drawings, and (ii) a portion of Lower Level 3 of the Building that is comprised
of at least one thousand five hundred (1,500) square feet of Rentable Area and
that otherwise conforms with the Work Exhibit.
"Lower Option Space" shall have the meaning set forth in Section 36.1
hereof.
"Low Rise Office Elevators" shall have the meaning set forth in the
Work Exhibit.
"Major Sublease" shall mean a sublease, between Tenant, as sublessor,
and a third party, as sublessee, which:
(i) Tenant enters into in accordance with the provisions of
Article 12 hereof,
(ii) demises to the sublessee not less than the entire Rentable
Area in a Major Sublease Unit,
(iii) expires no earlier than the day immediately preceding the
Fixed Expiration Date (or the day immediately preceding the
last day of the Renewal Term, with respect to any such
subleases that Tenant executes and delivers from and after the
first day of the Renewal Term, if Tenant has exercised the
Renewal Option),
(iv) demises to the sublessee the entire Rentable Area of each
Major Sublease Unit covered by such sublease (so that such
sublease does not demise only a portion of any Major Sublease
Unit),
(v) either (I) demises the uppermost or lowermost Major Sublease
Unit or Major Sublease Units in the Base Premises (if such
sublease demises any space in the Base Premises) (or, if
Landlord has theretofore entered into a Recognition Agreement
as contemplated by Section 12.10 hereof with a sublessee under
another Major Sublease for space in the Base Premises, then
the condition described in this clause (v) shall be deemed to
be satisfied if the portion of the Base Premises demised by
such other Major Sublease, and the portion of the Base
Premises demised by the particular sublease in question,
constitutes the uppermost or lowermost portion of the Base
Premises), or (II) demises the uppermost or lowermost Major
Sublease Unit or Major Sublease Units in the portion of the
Building at and above the fourth (4th) floor of the Building
and to and including the seventh (7th) floor of the Building
(if such sublease demises any space in such portion of the
Building) (or, if Landlord has theretofore entered into a
Recognition Agreement as contemplated by Section 12.10 hereof
with a sublessee under another Major Sublease for space in
such portion of the Building, then the condition described in
this clause (v) shall be deemed to satisfied if the portion of
the Building demised by such other Major Sublease, and the
particular sublease in question, constitutes the uppermost or
lowermost portion of such portion of the Building), and
14
19
(vi) demises either the uppermost or lowermost Major Sublease Unit
or Major Sublease Units in the Tower Premises and any Upper
Option Space theretofore demised to Tenant hereunder (if such
sublease demises any space in the Tower Premises or in such
Upper Option Space) (or, if Landlord has theretofore entered
into a Recognition Agreement as contemplated by Section 12.10
hereof with a sublessee under another Major Sublease for space
in the Tower Premises or such Upper Option Space, then the
condition described in this clause (vi) shall be deemed to be
satisfied if the portion of the Tower Premises or such Upper
Option Space demised by such other Major Sublease, and the
portion of the Tower Premises or such Upper Option Space
demised by the particular sublease in question, constitutes
the uppermost or lowermost portion of the Tower Premises and
such Upper Option Space).
"Major Sublease Guarantor" shall mean a Person that executes and
delivers a Recognition Agreement or another agreement to guaranty (on terms that
are reasonably acceptable to Landlord) the performance of the obligations of the
subtenant under a Major Sublease on the Applicable Terms if such subtenant
becomes the direct tenant of Landlord.
"Major Sublease Unit" shall mean one (1) or more of (i) the entire
Rentable Area on the second (2nd) floor of the Third Avenue Building (if Tenant
has theretofore exercised Tenant's right to lease such Lower Option Space
pursuant to Article 36 hereof), (ii) the entire Rentable Area on the second
(2nd) floor of the Lexington Avenue Building (if Tenant has theretofore
exercised Tenant's right to lease such Lower Option Space pursuant to Article 36
hereof), (iii) the entire Rentable Area on the third (3rd) floor of the
Lexington Avenue Building, (iv) the entire Rentable Area on the fourth (4th)
floor of the Building, (v) the entire Rentable Area on the fifth (5th) floor of
the Building, (vi) the entire Rentable Area on the sixth (6th) floor of the
Building, (vii) the entire Rentable Area on the seventh (7th) floor of the
Building, (viii) the entire Rentable Area on the eighth (8th) floor of the
Lexington Avenue Building, (ix) the entire Rentable Area on the ninth (9th)
floor of the Lexington Avenue Building, (x) the entire Rentable Area on the
tenth (10th) floor of the Lexington Avenue Building, (xi) the entire Rentable
Area on the thirteenth (13th) floor of the Lexington Avenue Building, (xii) the
entire Rentable Area on the fourteenth (14th) floor of the Lexington Avenue
Building, (xiii) the entire Rentable Area on the fifteenth (15th) floor of the
Lexington Avenue Building, (xiv) the entire Rentable Area on the sixteenth
(16th) floor of the Lexington Avenue Building, (xv) the entire Rentable Area on
the seventeenth (17th) floor of the Lexington Avenue Building, (xvi) the entire
Rentable Area on the eighteenth (18th) floor of the Lexington Avenue Building,
(xvii) the entire Rentable Area on the nineteenth (19th) floor of the Lexington
Avenue Building, (xviii) the entire Rentable Area on the twentieth (20th) floor
of the Lexington Avenue Building, (xix) the entire Rentable Area on the
twenty-first (21st) floor of the Lexington Avenue Building, (xx) the entire
Rentable Area on a floor in the Lexington Avenue Building with respect to which
Tenant exercises the Early Option or the Shortage Option in accordance with the
terms hereof, and (xxi) the entire Rentable Area on any floor of the Building at
or above the twenty-second (22nd) floor of the Building (if Tenant has
theretofore exercised Tenant's right to lease such Upper Option Space pursuant
to Article 36 hereof).
15
20
"Mid Rise Office Elevators" shall have the meaning set forth in the
Work Exhibit.
"Minimum Square Footage Requirement" shall mean the requirement that
(x) a Bloomberg Party is Tenant hereunder, and (y) Bloomberg Parties occupy as
Headquarters Space at least Three Hundred Fifty Thousand (350,000) square feet
of the Rentable Area in the Building; provided, however, that (I) if, at any
particular time, Bloomberg Parties do not occupy any portion of the Rentable
Area of the Building due to (i) damage to such portion of Rentable Area
resulting from a fire or other casualty, or (ii) Tenant's performance of
Alterations for Tenant's own occupancy of the Building (and Tenant is then
performing such Alterations with due diligence), then Tenant shall be deemed to
be in occupancy of such portion of Rentable Area for purposes of determining
whether the Minimum Square Footage Requirement is satisfied at such time, and
(II) Tenant shall be deemed to have satisfied the requirement described in
clause (y) above during the period commencing on the date hereof and ending on
the Last Rent Commencement Date.
"Mortgage" shall mean any trust indenture or mortgage which may now or
hereafter affect the Premises (or any portion thereof) or any Superior Lease and
the leasehold interest created thereby, and all renewals, extensions,
supplements, amendments, modifications, consolidations and replacements thereof
or thereto, substitutions therefor, and advances made thereunder.
"Mortgagee" shall mean any trustee, mortgagee or holder of a Mortgage.
"Multi-Purpose Room" shall have the meaning set forth in the Work
Exhibit.
"Mutual Determination" shall have the meaning set forth in Section 38.3
hereof.
"Net Cash Flow" shall mean the amount by which a Person's net cash flow
provided by operating activities (as defined by generally accepted accounting
principles) exceeds mandatory debt repayment, as reflected on such Person's
audited financial statements for the most recently ended fiscal period of one
(1) year.
"Neutral Zone" shall have the meaning set forth in Section 2.6 hereof.
"Nondisturbance Agreement" shall have the meaning set forth in Section
7.1 hereof.
"Non-Material Alterations" shall mean Alterations that do not require
Landlord's prior approval pursuant to Section 3.4 hereof.
"Operating Expenses" shall have the meaning set forth in Section 26.1
hereof.
"Operating Payment" shall have the meaning set forth in Section 26.1
hereof.
"Operating Period" shall have the meaning set forth in Section 26.1
hereof.
"Operating Statement" shall have the meaning set forth in Section 26.1
hereof.
16
21
"Option" shall have the meaning set forth in Section 36.3 hereof.
"Option Notice" shall have the meaning set forth in Section 36.2
hereof.
"Option Space Commencement Date" shall have the meaning set forth in
Section 36.6 hereof.
"Option Space Expiration Date" shall have the meaning set forth in
Section 36.3 hereof.
"Option Space Holdover Notice" shall have the meaning set forth in
Section 36.6 hereof.
"Option Term" shall have the meaning set forth in Section 36.3 hereof.
"Partial Renewal Space" shall have the meaning set forth in Section
37.1 hereof.
"Parties" shall have the meaning set forth in Section 35.2 hereof.
"Permitted Deductible Amount" shall mean Two Hundred Thousand Dollars
($200,000), except that on January 1, 2002 and on January 1 of each succeeding
year during the Term, the Permitted Deductible Amount shall be adjusted to
reflect any increase in the Consumer Price Index over the Consumer Price Index
as of the date hereof.
"Permitted Pit Areas" shall have the meaning set forth in Section 14.1
hereof.
"Permitted Occupant" shall mean Tenant and any other Person that
occupies all or any portion of the Premises in accordance with the provisions of
Article 12 hereof.
"Permitted Person" shall have the meaning set forth in Section 12.13
hereof.
"Permitted Work Changes" shall have the meaning set forth in Section
22.3 hereof.
"Person" or "person" shall mean any natural person or persons, a
partnership, a limited liability company, a corporation and any other form of
business or legal association or entity.
"Post-Delivery Latent Items" shall have the meaning set forth in
Section 22.1 hereof.
"Post-Delivery Punch List Items" shall have the meaning set forth in
Section 22.1 hereof.
"Post-Delivery Work" shall mean the Work Components that are designated
as Post-Delivery Work on the Work Exhibit.
"Post-Delivery Work Date" shall have the meaning set forth in Section
22.7 hereof.
"Pre-Delivery Latent Items" shall have the meaning set forth in Section
22.1 hereof.
17
22
"Pre-Delivery Punch List Items" shall have the meaning set forth in
Section 22.1 hereof.
"Pre-Delivery Work" shall mean the Work Components that do not
constitute Post-Delivery Work.
"Premises" shall mean, subject to the terms of Section 2.3 hereof, at
any particular time, each portion of the Initial Premises for which the
applicable Commencement Date, and each portion of the Upper Option Space or the
Lower Option Space for which the applicable Option Space Commencement Date, has
theretofore occurred.
"Premises Elevators" shall have the meaning set forth in Section 27.1
hereof.
"Premises System" shall mean any Building System that services the
Premises exclusively.
"Premises Unit" shall have the meaning set forth in Section 7.7 hereof.
"Price" shall have the meaning set forth in Section 22.2 hereof.
"Pricing Notice" shall have the meaning set forth in Section 22.2
hereof.
"Pricing Procedure Notice" shall have the meaning set forth in Section
22.2 hereof.
"Primary Competitor" shall mean, at any particular time, a Person
listed on the List of Primary Competitors at such time.
"Proceeds Depository" shall have the meaning set forth in Section 9.2
hereof.
"Proposed Competitor Asset Transaction" shall have the meaning set
forth in Section 40.1 hereof.
"Proposed Competitor Equity Transaction" shall have the meaning set
forth in Section 40.1 hereof.
"Prospective Operating Statement" shall have the meaning set forth in
Section 26.4 hereof.
"Protected Tenant" shall have the meaning set forth in Section 7.7
hereof.
"Public Information Period" shall have the meaning set forth in Section
40.1 hereof.
"Qualified Specialty Alteration" shall have the meaning set forth in
Section 3.1 hereof.
"Qualifying Subtenant" shall mean a subtenant under a sublease for all
or any portion of the Premises that is consummated in accordance with Article 12
hereof.
18
23
"Recapture Space" shall have the meaning set forth in Section 12.6
hereof.
"Recapture Statement" shall have the meaning set forth in Section 12.6
hereof.
"Recognition Agreement" shall have the meaning set forth in Section
12.10 hereof.
"Recognition Effective Date" shall have the meaning set forth in
Section 12.11 hereof.
"Recovered Elevators" shall have the meaning set forth in Section 27.1
hereof.
"Recovered Lobby Area" shall have the meaning set forth in Section 27.1
hereof.
"Regular Competitor" shall mean, at any particular time, a Person
listed on the List of Regular Competitors at such time.
"Reimbursement Agreement" shall have the meaning set forth in Section
7.11 hereof.
"Reimbursement Obligor" shall have the meaning set forth in Section
7.11 hereof.
"Remote Building System" shall mean any Building System that provides
no service to the Premises.
"Removed Space" shall have the meaning set forth in Section 37.1
hereof.
"Renewal Notice" shall have the meaning set forth in Section 37.1
hereof.
"Renewal Option" shall have the meaning set forth in Section 37.1
hereof.
"Renewal Premises" shall have the meaning set forth in Section 37.1
hereof.
"Renewal Term" shall have the meaning set forth in Section 37.1 hereof.
"Rentable Area", with respect to a particular floor area, shall be the
product obtained by multiplying (a) the Usable Area of such floor area, by (b)
1.3157895.
"Rental" shall mean and be deemed to include Fixed Rent, Escalation
Rent, all additional rent and any other sums payable by Tenant hereunder.
"Rental Value" shall have the meaning set forth in Section 38.1 hereof.
"Rent Commencement Date" shall mean, subject to Section 10.1 hereof and
Article 22 hereof, with respect to each Deliverable Unit, the day that
corresponds to the Commencement Date for such Deliverable Unit in the ninth
(9th) calendar month following the calendar month during which such Commencement
Date occurs, except that if there is no day in such ninth (9th) calendar month
that corresponds to the Commencement Date for such Deliverable Unit, then the
19
24
Rent Commencement Date for such Deliverable Unit shall be the first day of the
tenth (10th) calendar month following the calendar month during which such
Commencement Date occurs (so that, for example, (I) if January 5, 2003 is the
Commencement Date for a Deliverable Unit, then the Rent Commencement Date for
such Deliverable Unit shall be October 5, 2003, and (II) if May 30, 2003 is the
Commencement Date for a Deliverable Unit, then the Rent Commencement Date for
such Deliverable Unit shall be March 1, 2004).
"Rent Notice" shall have the meaning set forth in Section 38.3 hereof.
"Rent Per Square Foot" shall have the meaning set forth in Section 12.7
hereof.
"Requirements" shall mean all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary, of all Governmental Authorities now existing
or hereafter created, and of any and all of their departments and bureaus, and
of any applicable fire rating bureau, or other body exercising similar
functions.
"Rescission Date" shall have the meaning set forth in Section 38.3
hereof.
"Rescission Notice" shall have the meaning set forth in Section 37.1
hereof.
"Response Notice" shall have the meaning set forth in Section 36.3
hereof.
"Retail Area" shall have the meaning set forth in Section 40.3 hereof.
"Revised Deadline" shall have the meaning set forth in Section 12.6
hereof.
"Risers" shall have the meaning set forth in Section 2.9 hereof.
"Rules and Regulations" shall mean the reasonable rules and regulations
that Landlord may from time to time adopt in accordance with Article 8 hereof,
subject, however, to Tenant's right to dispute the reasonableness of such rules
and regulations as provided in Article 8 hereof.
"S&P Guidelines" shall have the meaning set forth in Section 7.11
hereof.
"Scheduled Option Space Commencement Date" shall have the meaning set
forth in Section 36.2 hereof.
"Schematic Drawings" shall have the meaning set forth in Section 22.1
hereof.
"Second Bite Date" shall have the meaning set forth in Section 10.1
hereof.
"Second Bite Termination Notice" shall have the meaning set forth in
Section 10.1 hereof.
20
25
"Second Bite Warning Notice" shall have the meaning set forth in
Section 10.1 hereof.
"Second Construction Milestone Stage" shall have the meaning set forth
in Section 22.6 hereof.
"Second Lower Level Space" shall have the meaning set forth in Section
22.1 hereof.
"Second Milestone Date" shall have the meaning set forth in Section
22.6 hereof.
"Second Milestone Slide Amount" shall have the meaning set forth in
Section 22.6 hereof.
"Second Price Space" shall mean the portions of the Initial Premises
that (i) constitute Lower Level Space, (ii) are located on the seventh (7th)
floor of the Lexington Avenue Building, or (iii) are located on the eighth
(8th), ninth (9th) or tenth (10th) floors of the Lexington Avenue Building.
"Second Rating Agency" shall have the meaning set forth in Section 7.13
hereof.
"2nd Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Section 421-a Annual Amortization Amount" shall have the meaning set
forth in Section 26.2 hereof.
"Section 421-a Costs" shall have the meaning set forth in Section 26.1
hereof.
"Section 421-a Election" shall have the meaning set forth in Section
26.2 hereof.
"Section 421-a Payment Amount" shall have the meaning set forth in
Section 26.2 hereof.
"Section 421-a Reduction" shall have the meaning set forth in Section
26.2 hereof.
"Section 421-a Start Date" shall have the meaning set forth in Section
26.1 hereof.
"Section 421-a Tax Benefits" shall have the meaning set forth in
Section 26.1 hereof.
"Section 421-a Tax Factor" shall have the meaning set forth in Section
26.1 hereof.
"Secure Area" shall have the meaning set forth in Section 14.1 hereof.
"Sensitive Area" shall have the meaning set forth in Section 14.1
hereof.
"Settling Party" shall have the meaning set forth in Section 26.3
hereof.
"7th Rental Period" shall have the meaning set forth in Section 1.1
hereof.
21
26
"Shared Building System" shall mean any Building System that services
the Premises and any other parts of the Building.
"Shared Hoist" shall have the meaning set forth in Section 22.14
hereof.
"Shared Lobby Area" shall have the meaning set forth in Section 2.3
hereof.
"Shortage Floor" shall have the meaning set forth in Section 36.11
hereof.
"Shortage Option" shall have the meaning set forth in Section 36.11
hereof.
"Shortage Option Notice" shall have the meaning set forth in Section
36.11 hereof.
"Signage Option" shall have the meaning set forth in Section 39.1
hereof.
"Signage Option Notice" shall have the meaning set forth in Section
39.1 hereof.
"Signage Response Notice" shall have the meaning set forth in Section
39.1 hereof.
"6th Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Specialty Alterations" shall mean Alterations which involve the
perforation of the slab of any of the floors of the Premises (including, without
limitation, an Alteration consisting of the installation of an escalator,
elevator or internal staircase within the Premises) or which constitutes the
installation of a mezzanine in the Premises in accordance with Section 3.14
hereof; provided, however, that de minimis perforations of the slab of any of
the floors of the Premises in connection with the installation of pipes,
conduits and ducts shall not constitute Specialty Alterations for purposes
hereof.
"Statutory Condominium Declaration" shall mean the condominium
declaration that Landlord makes to submit the ownership of the fee interest in
the Building (or portions thereof) to a condominium form of ownership in
accordance with Article 9-B of the Real Property Law (as such declaration may be
amended from time to time).
"Statutory Condominium Declaration Date" shall have the meaning set
forth in Section 7.7 hereof.
"Subdivision Agreement" shall mean an agreement, among Landlord and at
least one other owner of a fee interest in real property that is intended to be
used for residential purposes, pursuant to which the parties set forth their
agreement with respect to the ownership, management, restoration, and repair of
the Land and the Building, including, without limitation, the parties'
respective obligations to pay Taxes.
"Subleasehold Assignment Proceeds" shall have the meaning set forth in
Section 12.8 hereof.
22
27
"Subleasehold Assignment Recapture" shall have the meaning set forth in
Section 12.8 hereof.
"Subleasehold Assignment Space" shall have the meaning set forth in
Section 12.8 hereof.
"Subleasehold Assignment Statement" shall have the meaning set forth in
Section 12.8 hereof.
"Sublease Expenses" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Profit" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Recapture" shall have the meaning set forth in Section 12.6
hereof.
"Sublease Rent" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Rent Per Square Foot" shall have the meaning set forth in
Section 12.7 hereof.
"Sublease Statement" shall have the meaning set forth in Section 12.6
hereof.
"Subordinate Board of Managers" shall have the meaning set forth in
Section 7.7 hereof.
"Substantial Completion" or "Substantially Completed" or words of
similar import shall mean that the applicable work has been substantially
completed in accordance with the applicable plans and specifications, it being
agreed that such work shall be deemed substantially completed notwithstanding
the fact that minor or insubstantial details of construction or demolition
and/or mechanical adjustment and/or decorative items remain to be performed;
provided that with respect to any such work being performed by or on behalf of
Landlord, such work left to be completed does not interfere in any material
respect with Tenant's ability to perform Alterations or to access or occupy the
Premises (or the applicable portion thereof).
"Superior Lease" shall mean any ground or underlying lease of the
Premises (or any portion thereof) and all renewals, extensions, supplements,
amendments and modifications thereof.
"Target Delivery Date" shall have the meaning set forth in Section 22.3
hereof.
"Taxation Rate" shall have the meaning set forth in Section 26.1
hereof.
"Taxes" shall have the meaning set forth in Section 26.1 hereof.
"Tax Lot" shall mean the tax lot or tax lots in which the Premises (or
any portion thereof) are located that the applicable Governmental Authority uses
for purposes of assessing Taxes.
23
28
"Tax Payment" shall have the meaning set forth in Section 26.2 hereof.
"Tax Protest Request" shall have the meaning set forth in Section 26.3
hereof.
"Tax Statement" shall have the meaning set forth in Section 26.1
hereof.
"Tax Year" shall have the meaning set forth in Section 26.1 hereof.
"Tenant", on the date as of which this Lease is made, shall mean
Bloomberg, but thereafter "Tenant" shall mean only the tenant under this Lease
at the time in question; provided, however, that the originally named tenant and
any assignee of the tenant's interests under this Lease shall not be released
from liability hereunder in the event of any assignment of the tenant's
interests under this Lease.
"Tenant Area" shall mean the Premises and any other portion of the
Building to which Tenant has exclusive access pursuant to the terms hereof (it
being understood that Landlord's having the right to access such portion of the
Building in accordance with the terms hereof shall not be deemed to render
Tenant's access thereto unexclusive for purposes of this definition).
"Tenant Design Components" shall have the meaning set forth in Section
22.12 hereof.
"Tenant Entire Cost Component" shall have the meaning set forth in
Section 22.2 hereof.
"Tenant Indemnitees" shall mean Tenant and its partners, principals,
members, managers, shareholders, officers, directors, employees and agents.
"Tenant Mechanical Areas" shall have the meaning set forth in Section
2.8 hereof.
"Tenant Partner" shall have the meaning set forth in Section 7.11
hereof.
"Tenant Protest Period" shall have the meaning set forth in Section
26.1 hereof.
"Tenant Restoration Items" shall mean the Premises, other than the
Landlord Restoration Items.
"Tenant Upgrade Cost" shall have the meaning set forth in Section 22.2
hereof.
"Tenant Upgrade Work Component" shall have the meaning set forth in
Section 22.2 hereof.
"Tenant Work Components" shall have the meaning set forth in Section
22.2 hereof.
"Tenant Work Deletion Notice" shall have the meaning set forth in
Section 22.3 hereof.
24
29
"Tenant's Core Business" shall mean the business of providing to the
general public (on a subscription basis or otherwise) financial information such
as news, data and analysis of financial markets and businesses via any medium,
including, without limitation, internet, dedicated communication network,
television, radio and print, and the business of operating an electronic
communications network that matches buyers and sellers of securities and that is
registered with the Securities and Exchange Commission as an electronic
communications network (it being understood that the business of serving as a
securities broker for the transfer of securities using an organized securities
exchange shall not constitute Tenant's Core Business for purposes hereof).
"Tenant's Determination" shall have the meaning set forth in Section
38.3 hereof.
"Tenant's Exclusive Hoist Period" shall have the meaning set forth in
Section 22.14 hereof.
"Tenant's Expediter" shall have the meaning set forth in Section 3.1
hereof.
"Tenant's Liability Policy" shall have the meaning set forth in Section
9.2 hereto.
"Tenant's Personal Property Policy" shall have the meaning set forth in
Section 9.2 hereof.
"Tenant's Property" shall mean movable fixtures and movable partitions,
telephone equipment, computer, television, radio and internet equipment,
furniture, furnishings, decorations and other items of personal property that,
in each case, are owned by Tenant or leased by Tenant from a third party other
than Landlord.
"Tenant's Property Policy" shall have the meaning set forth in Section
9.2 hereof.
"Tenant's Signs" shall have the meaning set forth in Section 39.1
hereof.
"Tenant's Unamortized Alterations Cost" shall mean, at any particular
time with respect to the Premises or the applicable portion thereof, the
aggregate amount theretofore paid by or on behalf of Tenant for Alterations in
the Premises or the applicable portion thereof, to the extent that such amount
then remains unamortized (assuming that such amount is amortized, in equal
monthly installments, using an interest factor equal to the Base Rate, over the
period commencing on the date that Tenant makes any such payment for Alterations
and ending on the Fixed Expiration Date, except that if Tenant's Unamortized
Alterations Cost is being determined during the Renewal Term, then such excess
shall be deemed to be amortized, in equal monthly installments, using an
interest factor equal to the Base Rate, over the period commencing on the date
that Tenant makes any such payment for Alterations and ending on the last day of
the Renewal Term).
"Term" shall mean a term which commences on the Basic Commencement Date
and expires on the Expiration Date.
25
30
"Terrace Area" shall have the meaning set forth in Section 2.11 hereof.
"Third Avenue Building" shall mean the building identified as the
"Third Avenue Building" on the Schematic Drawings, including, without
limitation, the equipment and improvements therein (as such building, equipment
or improvements may be altered, replaced, or supplemented from time to time
subject to and in accordance with the terms hereof).
"Third Construction Milestone Stage" shall have the meaning set forth
in Section 22.6 hereof.
"Third Floor Deck" shall have the meaning set forth in Section 3.10
hereof.
"Third Lower Level Space" shall have the meaning set forth in Section
22.1 hereof.
"Third Milestone Date" shall have the meaning set forth in Section 22.6
hereof.
"Third Milestone Slide Amount" shall have the meaning set forth in
Section 22.6 hereof.
"Third Price Space" shall mean the portion of the Initial Premises that
is located on the thirteenth (13th), fourteenth (14th), fifteenth (15th),
sixteenth (16th), seventeenth (17th), eighteenth (18th), nineteenth (19th),
twentieth (20th) or twenty-first (21st) floors of the Lexington Avenue Building.
"3rd Rental Period" shall have the meaning set forth in Section 1.1
hereof.
"Threshold Amount" shall have the meaning set forth in Section 26.1
hereof.
"Threshold Credit" shall have the meaning set forth in Section 26.1
hereof.
"Threshold Debit" shall have the meaning set forth in Section 26.1
hereof.
"Timed Post-Delivery Work Components" shall have the meaning set forth
in Section 22.7 hereof.
"Tower Hoist" shall have the meaning set forth in Section 22.15 hereof.
"Tower Hoist Area" shall have the meaning set forth in Section 22.15
hereof.
"Tower Premises" shall mean, subject to Section 36.11 hereof, the
thirteenth (13th), fourteenth (14th), fifteenth (15th), sixteenth (16th),
seventeenth (17th), eighteenth (18th), nineteenth (19th), twentieth (20th) and
twenty-first (21st) floors of the Lexington Avenue Building; provided, however,
that the Tower Premises shall not include any portion of the aforesaid space in
the Building that is used for Remote Building Systems or for Shared Building
Systems.
26
31
"Unavoidable Delays" shall mean, with respect to any Person, any
strike, labor trouble, or accident, weather conditions, or any other cause
whatsoever beyond such Person's reasonable control (including, but not limited
to, governmental preemption, Requirements, or the conditions of supply and
demand which have been or are affected by war or other Emergency) which delays
such Person in or prevents such Person from performing any of the obligations
expressly or impliedly to be performed by such Person under this Lease;
provided, however, that (i) an event shall not constitute an Unavoidable Delay
for purposes hereof unless such Person gives the other party notice thereof
reasonably promptly after such event delays such Person's performance hereunder,
(ii) such Person's failure to make a payment of money, or any other event that
derives from such Person's lack of funds, shall not constitute an Unavoidable
Delay for purposes hereof, (iii) weather conditions which are reasonably
anticipatable by such Person as to frequency, duration and severity in their
season of occurrence shall not constitute an Unavoidable Delay for purposes
hereof, and (iv) an event shall constitute the basis for an Unavoidable Delay
only to the extent that the effect thereof cannot be mitigated in a reasonably
practicable manner by such Person on commercially reasonable terms (with the
understanding that such Person's failure to perform work on an overtime basis
shall not constitute the basis for concluding that such Person could have
mitigated the effects of an event that otherwise constitutes the basis for an
Unavoidable Delay).
"Upper Option Space" shall have the meaning set forth in Section 36.1
hereof.
"Usable Area", shall mean, subject to Section 22.3(I) hereof, with
respect to a particular floor area, the area thereof as determined in accordance
with the standards described in Exhibit Definitions-F attached hereto and made a
part hereof, it being understood that (i) the Incremental Area in the Building
(other than the Incremental Area on Lower Level 1, the grade level, and the
second (2nd) floor of the Building) shall be deemed to constitute Usable Area,
(ii) if the Premises do not constitute all of the leasable area on a particular
floor of the Building, then the Usable Area thereof shall be determined using
the standards applicable to multi-tenanted floors as set forth in Exhibit
Definitions-F attached hereto, and (iii) the Incremental Area located on the
second (2nd) floor of the Building shall not be included in the determination of
Usable Area for the Lower Option Space.
"Usable Area Statement" shall have the meaning set forth in Section
22.4 hereof.
"VRT" shall have the meaning set forth in Section 40.5 hereof.
"Work" shall have the meaning set forth in Section 22.1 hereof.
"Work Access" shall have the meaning described in Section 14.1 hereof.
"Work Exhibit" shall mean, collectively, the exhibits attached hereto
as Exhibit Definitions-G and made a part hereof.
"Work Holdover Period" shall have the meaning set forth in Section 22.8
hereof.
27
32
"Work Component" shall have the meaning set forth in Section 22.1
hereof.
"Zero Occupancy Certificate of Occupancy" shall mean a temporary
certificate of occupancy, issued by the Department of Buildings of The City of
New York for the core of the Premises only, which does not authorize any Person
to use or occupy the Premises.
ARTICLE 1
DEMISE, PREMISES, TERM, RENT
Section 1.1. Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, the Premises for the Term to commence on the Basic Commencement
Date and to end on the Fixed Expiration Date, at an annual rental (the "Fixed
Rent") of:
(1) for the period commencing on the Rent Commencement Date
applicable to each Deliverable Unit and ending on the date immediately preceding
the fourth (4th) anniversary of the Last Commencement Date (the "1st Rental
Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Forty-Seven
and 5,873/10,000 Dollars ($47.5873), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
(ii) the product obtained by multiplying (I) Fifty-One and
5,873/10,000 Dollars ($51.5873), by (II) the number
of square feet of Rentable Area in the Second Price
Space, and
(iii) the product obtained by multiplying (I) Fifty and
7,232/10,000 Dollars ($50.7232), by (II) the number
of square feet of Rentable Area in the Third Price
Space,
(2) for the period commencing on the day immediately following
the last day of the 1st Rental Period and ending on the day immediately
preceding the eighth (8th) anniversary of the Last Commencement Date (the "2nd
Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Fifty-Three
and 1,354/10,000 Dollars ($53.1354), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
(ii) the product obtained by multiplying (I) Fifty-Seven
and 5,754/10,000 Dollars ($57.5754), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
28
33
(iii) the product obtained by multiplying (I) Fifty-Six and
6,163/10,000 Dollars ($56.6163), by (II) the number
of square feet of Rentable Area in the Third Price
Space,
(3) for the period commencing on the day immediately following
the last day of the 2nd Rental Period and ending on the day immediately
preceding the twelfth (12th) anniversary of the Last Commencement Date (the "3rd
Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Fifty-Nine
and 2,938/10,000 Dollars ($59.2938), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
(ii) the product obtained by multiplying (I) Sixty-Four
and 2,222/10,000 Dollars ($64.2222), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
(iii) the product obtained by multiplying (I) Sixty-Three
and 1,575/10,000 Dollars ($63.1575), by (II) the
number of square feet of Rentable Area in the Third
Price Space,
(4) for the period commencing on the day immediately following
the last day of the 3rd Rental Period and ending on the day immediately
preceding the sixteenth (16th) anniversary of the Last Commencement Date (the
"4th Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Sixty-Six and
1,296/10,000 Dollars ($66.1296), by (II) the number
of square feet of Rentable Area in the First Price
Space, and
(ii) the product obtained by multiplying (I) Seventy-One
and 6,001/10,000 Dollars ($71.6001), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
(iii) the product obtained by multiplying (I) Seventy and
4,184/10,000 Dollars ($70.4184), by (II) the number
of square feet of Rentable Area in the Third Price
Space,
(5) for the period commencing on the day immediately following
the last day of the 4th Rental Period and ending on the day immediately
preceding the twentieth (20th) anniversary of the Last Commencement Date (the
"5th Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Seventy-Three
and 7,174/10,000 Dollars ($73.7174), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
29
34
(ii) the product obtained by multiplying (I) Seventy-Nine
and 7,897/10,000 Dollars ($79.7897), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
(iii) the product obtained by multiplying (I) Seventy-Eight
and 4,779/10,000 Dollars ($78.4779), by (II) the
number of square feet of Rentable Area in the Third
Price Space,
(6) for the period commencing on the day immediately following
the last day of the 5th Rental Period and ending on the day immediately
preceding the twenty-fourth (24th) anniversary of the Last Commencement Date
(the "6th Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Eighty-Two
and 1,398/10,000 Dollars ($82.1398), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
(ii) the product obtained by multiplying (I) Eighty-Eight
and 8,800/10,000 Dollars ($88.8800), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
(iii) the product obtained by multiplying (I) Eighty-Seven
and 4,240/10,000 Dollars ($87.4240), by (II) the
number of square feet of Rentable Area in the Third
Price Space,
(7) for the period commencing on the day immediately following
the last day of the 6th Rental Period and ending on the Fixed Expiration Date
(the "7th Rental Period"), an amount equal to the sum of:
(i) the product obtained by multiplying (I) Ninety-One
and 4,887/10,000 Dollars ($91.4887), by (II) the
number of square feet of Rentable Area in the First
Price Space, and
(ii) the product obtained by multiplying (I) Ninety-Eight
and 9,703/10,000 Dollars ($98.9703), by (II) the
number of square feet of Rentable Area in the Second
Price Space, and
(iii) the product obtained by multiplying (I) Ninety-Seven
and 3,541/10,000 Dollars ($97.3541), by (II) the
number of square feet of Rentable Area in the Third
Price Space,
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance, on the Fixed Rent Payment
Date of each calendar month during the Term commencing on the Rent Commencement
Date that first occurs, without set-off, offset, abatement or deduction
whatsoever, except to the extent expressly set forth herein, at the office of
Landlord or such other place in the continental United States as Landlord may
designate from
30
35
time to time in a notice to Tenant in reasonable detail. The Fixed Rent shall be
payable when due by wire transfer of funds to an account designated from time to
time by Landlord (with the understanding that if, at any time and from time to
time after the date hereof, wire transfer of funds does not constitute the
customary means of transferring immediately available funds from one Person to
another Person in commercial transactions, then Tenant shall pay the Fixed Rent
to Landlord when due by such other reasonable means of transferring immediately
available funds that are used customarily in commercial transactions similar to
this Lease). If the Rent Commencement Date for a Deliverable Unit is not the
first day of a calendar month, or if the Expiration Date is not the last day of
a calendar month, then the Fixed Rent due hereunder for the calendar month
during which such Rent Commencement Date or the Expiration Date occurs shall be
appropriately pro-rated based on the number of days in such calendar month.
Section 1.2. Subject to the terms hereof, Tenant shall have the right
to use (and to permit other Permitted Occupants to use) during the Term all of
the fixtures, improvements and betterments that (i) are attached to or installed
in the Premises at any time during the Term, and (ii) are owned by Landlord or
leased by Landlord from a third party.
ARTICLE 2
USE AND OCCUPANCY
Section 2.1. Subject to the terms of this Article 2, Tenant may use and
occupy, and Tenant may permit a Permitted Occupant to use and occupy, the
Premises as general, administrative, and executive offices, and uses incidental
or ancillary thereto, and for no other purpose, except that Tenant shall have
the right to permit a Qualified Subtenant to use the Lower Option Space for
retail purposes as contemplated by Section 12.14 hereof. Tenant's use of the
Premises shall (and Tenant shall cause other Permitted Occupant's use of the
Premises to) at all times conform with the Building Standard. Landlord shall not
have the right to claim that the use of the Premises by a Permitted Occupant
with a density of one (1) person for each eighty (80) square feet of Usable Area
in the Premises, in and of itself, is not in conformity with the Building
Standard.
Section 2.2. (A) Tenant shall not use the Premises or any part thereof,
or permit the Premises or any part thereof to be used, (1) for the business of
photographic, multilith or multigraph reproductions or offset printing that is
open to the general public on an off-the-street retail basis, except in
connection with, either directly or indirectly, the Permitted Occupant's own
business and/or activities (provided that such Permitted Occupant's principal
business is not photographic, multilith, or multigraph reproductions or offset
printing that is open to the general public on an off-the-street retail basis),
(2) for a banking, trust company, depository, guarantee or safe deposit
business, in each case conducting business with the general public on an
off-the-street retail basis, (3) as a savings bank, a savings and loan
association, or as a loan company, in each case conducting business with the
general public on an off-the-street retail basis, (4) for the sale of travelers
checks, money orders, drafts, foreign exchange or letters of credit or for the
receipt of money for transmission in each case conducting business with the
general public on an off-the-street retail basis, (5) as a stockbroker's or
dealer's office or for the underwriting or sale of securities, in each case
conducting business with the general public on an off-the-street retail
31
36
basis, (6) by the United States government, the City or State of New York, any
foreign government, the United Nations or any agency or department of any of the
foregoing or any other Person having sovereign or diplomatic immunity, (7) as a
restaurant or bar or for the sale of confectionery, soda or other beverages,
sandwiches, ice cream or baked goods or for the preparation, dispensing or
consumption of food or beverages in any manner whatsoever, except for
consumption by such Permitted Occupant's partners, principals, members, agents,
officers, employees and business guests, (8) as an employment agency, executive
search firm or similar enterprise, labor union, school, or vocational training
center (except for the training of employees or customers of such Permitted
Occupant), or (9) as a xxxxxx shop or beauty salon that in either case conducts
business with the general public on an off-the-street retail basis.
(B) In connection with, and incidental to, a
Permitted Occupant's use of the Premises for the purposes as provided in this
Article 2, Tenant, at its sole cost and expense and upon compliance with all
applicable Requirements, may install (or may permit a Permitted Occupant to
install) (i) a cafeteria, dining room, kitchen, pantries and other reasonable
food service installations in the Premises, (ii) vending machines (connected to
a drain, if necessary), (iii) libraries, (iv) day care facilities, (v) smoking
rooms, (vi) health and recreation facilities, (vii) board rooms, conference
rooms and training rooms and facilities, (viii) first-aid rooms, (ix) messenger
and mail room facilities, (x) computer and communications systems for such
Permitted Occupant's business (including, without limitation, Internet services
and commerce), (xi) employee lounges, (xii) file rooms, (xiii) word processing
centers, (xiv) audio-visual and closed circuit television facilities, (xv) radio
and television studios, (xvi) aquariums, and (xvii) security rooms; provided
that, in each case, (a) such Permitted Occupant obtains all permits required by
any Governmental Authorities for the operation thereof and such installation
complies with the provisions of this Lease, including, without limitation,
Article 3 hereof, and (b) such installation is used only for the partners,
principals, members, agents, officers, employees and business guests of such
Permitted Occupant (and shall not be for use by the general public). Tenant, at
Tenant's sole cost and expense, shall take all steps reasonably required to
prevent tobacco smoke emanating from any portion of the Premises from entering
any other portion of the Building, it being understood that such steps may
include, without limitation, the installation of exhaust fans, insulation, and
filtration systems in accordance with the provisions of Article 3 hereof. During
the period that Tenant is a Bloomberg Party, Tenant shall have the right to use
portions of the Lower Level Space as (x) a fully-operational millwork and
woodwork refinishing workshop, and/or (y) a paint storage room for "attic"
stock, provided that in either case such use is ancillary to Tenant's business
being conducted by Tenant in the Building and otherwise conforms with the
requirements of this Lease (including, without limitation, the requirements that
(x) such use conforms with applicable Requirements, and (y) such use does not
have any material and adverse effect on the remainder of the Building).
Section 2.3. (A) Subject to the terms of Section 27.1 hereof and this
Section 2.3, Tenant shall have the right to use (and to permit other Permitted
Occupants to use) during the Term, on an exclusive basis, the portion of the
ground floor of the Building that Landlord constructs as part of the Work in
general conformity with the Schematic Drawing thereof (the
32
37
"Exclusive Lobby Area"). Nothing contained in this Section 2.3 diminishes
Landlord's obligation to perform the Work in accordance with Article 22 hereof.
The Exclusive Lobby Area shall constitute a part of the Premises for all
purposes of this Lease, except that (i) the floor area of the Exclusive Lobby
Area shall not be included in the determination of the Usable Area or the
Rentable Area of the Premises, and (ii) Tenant shall have the right to use (and
permit other Permitted Occupants to use) the Exclusive Lobby Area solely for the
purposes of (a) gaining access to, and egress from, the elevators serving the
Premises, (b) maintaining a reception, messenger and/or concierge desk and/or
office directory in connection with a Permitted Occupant's use of the Premises
for purposes permitted hereunder, (c) the installation and maintenance of
security equipment in accordance with the terms and subject to the conditions of
Article 3 hereof, and (d) other uses that are consistent with the Permitted
Occupant's use of the Premises for Headquarters Space. Landlord shall deliver
possession of the Exclusive Lobby Area to Tenant on or prior to the First
Commencement Date (with the Pre-Delivery Work therein Substantially Completed);
provided, however, that Landlord shall have the right to retain through the
Exclusive Lobby Area, after the First Commencement Date, an ingress and egress
tunnel to the extent necessary for purposes of meeting the Requirements for
obtaining a Zero Occupancy Certificate of Occupancy for each Deliverable Unit.
Landlord and Tenant shall cooperate with each other in good faith to determine
the appropriate location of such ingress and egress tunnel in accordance with
good construction practice. Landlord, at Landlord's sole cost and expense, shall
remove such ingress and egress tunnel as promptly as reasonably practicable
after Tenant's performance of the Initial Alterations has progressed to the
point that applicable Requirements permit such tunnel to be removed without
affecting materially Landlord's obtaining a Zero Occupancy Certificate of
Occupancy for any Deliverable Unit. Landlord, at Landlord's sole cost and
expense, shall repair any damage to the Exclusive Lobby Area (or the Initial
Alterations therein) that derives from Landlord's removal of such ingress and
egress tunnel or the installation thereof, to the condition that existed
immediately prior to Landlord's removal of such tunnel, with due diligence and
in accordance with good construction practice (provided that Tenant has
theretofore taken reasonable steps to construct the Initial Alterations in the
Exclusive Lobby Area in a manner that takes into account Landlord's right to
maintain such ingress and egress tunnel as contemplated by this Section 2.3,
with the understanding that Tenant, in taking such reasonable steps, shall not
be required to materially delay Tenant's construction schedule for, or
materially increase the cost of, the Initial Alterations that Tenant is
performing in the Exclusive Lobby Area). Landlord shall cause the Exclusive
Lobby Area to be separately demised on or prior to the First Commencement Date,
except that Landlord shall have the right to deliver possession of the Exclusive
Lobby Area to Tenant without the curtain wall for the Building being installed
thereon, provided that Landlord provides a weather-tight enclosure for the
Exclusive Lobby Area not later than the First Commencement Date. If Landlord
delivers possession of the Exclusive Lobby Area to Tenant without the curtain
wall for the Building installed thereon, then Landlord shall make such
installation of such curtain wall on the Exclusive Lobby Area not later than the
ninetieth (90th) day after the First Commencement Date. Landlord, at Landlord's
sole cost and expense, shall (i) use reasonable efforts to protect Tenant's
installations in the Exclusive Lobby Area in connection with Landlord's
subsequently installing the curtain wall for the Exclusive Lobby Area, and (ii)
repair any damage to the Exclusive Lobby Area (or the Initial Alterations
therein) that derives from Landlord's installation of the curtain wall for the
Exclusive Lobby Area
33
38
later than the First Commencement Date, with due diligence and in accordance
with good construction practice.
(B) Subject to the terms of this Section 2.3,
Tenant shall have the right to use (and to permit other Permitted Occupants to
use) during the Term, in common with other occupants of the Building, the
portion of the lobby of the Building that Landlord constructs as part of the
Work in general conformity with the Schematic Drawing thereof (such portion of
the lobby of the Building being referred to herein as the "Shared Lobby Area"),
for the purpose of gaining access to, and egress from, the Exclusive Lobby Area.
Landlord and Tenant shall work with each other in good faith to agree on the
design for the Shared Lobby Area as promptly as reasonably practicable from and
after the date hereof.
(C) Subject to the terms of this Section 2.3(C),
Tenant shall have the right to use (and to permit other Permitted Occupants to
use) the lobby of the Building that Landlord uses for floors of the Building
that are constructed for office purposes at and above the twenty-second (22nd)
floor of the Building (such lobby being referred to herein as the "Building
Lobby"). Tenant shall have the right to use the Building Lobby as contemplated
by this Section 2.3(C) only for the purpose of serving the Mid Rise Office
Elevators. If Tenant (or another Permitted Occupant) so uses the Building Lobby,
then (i) Tenant shall have the right to list on the building directory located
in the Building Lobby (if any) the names of the occupants of the portions of the
Premises that are so serviced by the Building Lobby, and (ii) Landlord shall
have the right to include in Operating Expenses a pro-rata share of the cost of
operating, cleaning, maintaining and repairing the Building Lobby. Tenant shall
have the right to use (or to permit another Permitted Occupant to use) the
Building Lobby as contemplated by this Section 2.3(C) only for portions of the
Premises that Tenant (or such other Permitted Occupant) subleases to third
parties that are not Tenant's Affiliates in accordance with Article 12 hereof.
Landlord shall not unreasonably withhold, condition or delay Landlord's approval
of Alterations that Tenant proposes to make to the Exclusive Lobby Area, at
Tenant's sole cost and expense, to diminish the area thereof (and increase
correspondingly the area of the Building Lobby) so that the applicable Mid Rise
Office Elevators open into the Building Lobby rather than the Exclusive Lobby
Area (with the understanding that Tenant shall otherwise perform any such
Alterations in accordance with the terms of Article 3 hereof). Either party
shall have the right to submit a dispute between the parties that arises under
this Section 2.3(C) to an Expedited Arbitration Proceeding.
(D) Tenant shall not have the right to use the
Exclusive Lobby Area on an exclusive basis as contemplated by this Section 2.3
if the Lease demises less than Two Hundred Thousand (200,000) square feet of
Rentable Area. If (x) Tenant does not have the right to use the Exclusive Lobby
Area on an exclusive basis by virtue of the terms of this Section 2.3(D), or (y)
Tenant otherwise relinquishes Tenant's right to use the Exclusive Lobby Area on
an exclusive basis, then Landlord shall provide Tenant with access to a lobby in
the Building and to the Premises Elevators in either case in accordance with the
Building Standard.
Section 2.4 Subject to the terms of this Section 2.4, Landlord shall
cooperate reasonably with Tenant in connection with Tenant's obtaining permits,
licenses or certificates that a Permitted Occupant requires for the proper and
lawful conduct of business in the Premises in
34
39
accordance with the terms hereof. Landlord shall execute and deliver to Tenant,
from time to time, any reasonable documentation that applicable Requirements
require Landlord to execute and deliver in connection with such Permitted
Occupant's obtaining such permits, licenses or certificates, within five (5)
Business Days after Tenant's request therefor. Tenant shall pay to Landlord an
amount equal to the reasonable out-of-pocket costs incurred by Landlord in so
cooperating with Tenant, within thirty (30) days after Landlord's request
therefor and Landlord's submission to Tenant of reasonable supporting
documentation therefor.
Section 2.5 (A) Subject to Article 14 hereof and to this Section 2.5,
Tenant shall have the right to use (and to permit other Permitted Occupants to
use) for the period commencing on the one hundred eightieth (180th) day after
the First Commencement Date and ending on the Expiration Date:
(a) in common with the other occupants of the Building, a trash
storage area on Lower Level 3 of the Building that is of a
size and configuration, and is located in an area, that in
each case conforms reasonably with the Building Standard (with
the understanding that (i) Tenant shall have the right to use
the refrigerated trash storage system, in common with other
occupants of the Building, if such trash storage area includes
a refrigerated trash storage system that is reasonably
adequate for Tenant's requirements, and (ii) if such trash
storage area does not include a refrigerated trash storage
system that is reasonably adequate for Tenant's requirements,
then Landlord shall make available to Tenant a reasonable
location that is in reasonable proximity to such trash storage
area for Tenant's installation, maintenance and operation, in
each case at Tenant's sole cost and expense, of a reasonable
refrigerated trash storage system that conforms with the
Building Standard),
(b) on an exclusive basis, two (2) loading bays on Lower Level 3
of the Building that are of a size and configuration, and are
located in an area, that in each case conforms reasonably with
the Building Standard; provided, however, that Tenant shall
have the right to the use of only one (1) such loading bay on
an exclusive basis if, at any time after the Last Rent
Commencement Date, this Lease demises less than Three Hundred
Fifty Thousand (350,000) square feet of Rentable Area,
(c) in common with the other occupants of the Building, one (1)
loading bay on Lower Level 3 of the Building (in addition to
the two (2) loading bays described in clause (b) above),
(d) in common with the other occupants of the Building, the
loading dock at grade and appurtenant truck elevator that (x)
provides access from the loading dock to Lower Level 3 of the
Building, and (y) is of a size and configuration, and is
located in an area, that in each case conforms reasonably with
the Building Standard,
35
40
(e) in common with other occupants of the Building, the Lexington
Place Courtyard (subject, however, to Landlord's right to (x)
erect a Construction Hoist therein in accordance with Article
22 hereof, and (y) Substantially Complete the construction of
the Post-Delivery Work in the Lexington Place Courtyard not
later than the Post-Delivery Date therefor, as contemplated by
Article 22 hereof),
(f) in common with other occupants of the Building, the passenger
elevator and the freight elevator that in either case services
Lower Xxxxx 0 xx xxx Xxxxxxxx xxx Xxxxx Xxxxx 0 of the
Building from grade level adjacent to the loading dock,
(g) in common with other occupants of the Building, any other
portion of the Building designated from time to time by
Landlord or the Condominium Association as being for the use
of all of the occupants of the Building or for the use by the
general public (the aforesaid portions of the Building that
Tenant (or other Permitted Occupants) have the right to use as
set forth in clauses (a) through (g) above being collectively
referred to herein as the "Basic Amenities").
Tenant shall use (and Tenant shall permit other Permitted Occupants to use) the
Basic Amenities only in accordance with the Rules and Regulations and the
Requirements. Landlord shall construct the Basic Amenities as part of the Work.
Landlord shall not be required to provide Tenant with (x) a refrigerated trash
storage system as contemplated by clause (a) above (if the trash storage area
for the Building includes a refrigerated trash storage system that is reasonably
adequate for Tenant's requirements), or (y) one (1) loading bay to use in common
with other occupants of the Building, in either case until the First Rent
Commencement Date. Either party shall have the right to submit to an Expedited
Arbitration Proceeding a dispute between the parties as to whether the Basic
Amenities proposed by Landlord conform with the requirements set forth in this
Section 2.5. If, at any time after the Last Rent Commencement Date, this Lease
demises less than Two Hundred Thousand (200,000) square feet of Rentable Area,
then Landlord shall have the right to reduce Tenant's rights to the use of the
Basic Amenities to the extent reasonably necessary for the operation of the
Building in accordance with the Building Standard. Except to the extent
otherwise expressly set forth herein, Tenant shall not have the use of any
specialty facility outside of the Premises in the Building that is otherwise
available to the occupants thereof (such as an observatory, broadcasting
facility, luncheon club, athletic or recreational club, childcare facility,
auditorium, cafeteria, dining facility or conference center).
(B) Subject to the terms of this Section 2.5(B),
Tenant shall have the right to use one (1) lane of the roadway in the Lexington
Place Courtyard as a non-exclusive drop-off lane to serve the Exclusive Lobby
Area (subject, however, to reasonable Rules and Regulations relating thereto),
and such lane to which Tenant has non-exclusive access shall run, at Landlord's
option, either from Xxxx 00xx Xxxxxx to East 59th Street, or from Xxxx 00xx
Xxxxxx to Xxxx 00xx Xxxxxx. Xxxxxxxx shall construct such drop-off lane as part
of the Work. Landlord shall use due diligence to (and shall use due diligence to
cause the Condominium Association to) keep the aforesaid lane of the roadway in
the Lexington Place Courtyard reasonably free of traffic and generally available
for Tenant's use. Landlord shall engage, or cause the Condominium Association to
engage, an attendant to assist with traffic flow through the Xxxxxxxxx Xxxxx
00
00
Courtyard to the extent reasonably necessary. Landlord shall not be required to
provide Tenant with use of the drop-off lane in the Lexington Place Courtyard
until the date that Landlord is required to remove any Construction Hoist that
Landlord erects in the Lexington Place Courtyard as provided in Article 22
hereof.
(C) Landlord and Tenant, at any time from and after
the Last Commencement Date, shall have the right to request that the other party
promptly execute and deliver a supplement hereto, in reasonable form, pursuant
to which the parties confirm the Basic Amenities that Tenant has the right to
use as contemplated by this Section 2.5 (it being understood that the parties'
failure to execute and deliver any such supplement shall not impair Tenant's
rights under this Section 2.5 to use the Basic Amenities in accordance with the
terms of this Section 2.5).
(D) Landlord and Tenant each shall have the right
to submit a dispute between the parties arising under this Section 2.5 to an
Expedited Arbitration Proceeding.
Section 2.6 Subject to the terms of this Section 2.6, Tenant, during
the Term, shall not install any furniture, furnishings or other items of
Tenant's Property in the portion of the Premises as described on Exhibit 2.6
attached hereto and made a part hereof (such portion of the Premises as
described on Exhibit 2.6 attached hereto being referred to herein as the
"Neutral Zone"). Tenant shall not use the Neutral Zone for any purpose other
than for providing a route for occupants of the Premises to circulate through
the Premises, for the installation of staircases or escalators, for the
installation of monitors, or as an informal or conference seating area (for
which Tenant constructs in the Neutral Zone no demising walls or partitioning).
Subject to the terms of this Section 2.6, Tenant shall not make any Alterations
in the Neutral Zone, except that Tenant shall have the right to install in the
Neutral Zone a reasonable floor covering, a reasonable finished ceiling and
reasonable lighting apparatus, or the aforementioned staircases, escalators, or
monitors subject, in each case, to the provisions of Article 3, and to
Landlord's prior approval thereof (which approval Landlord shall not
unreasonably withhold, condition or delay). Tenant, during the Term, shall have
the right to maintain, repair and replace any such Alterations that Tenant makes
in the Neutral Zone (provided that Tenant performs such maintenance, repair or
replacement in accordance with the terms of this Lease). Landlord, as a Work
Component that constitutes Post-Delivery Work, shall install in the portion of
the ceiling of the Neutral Zone that lies in the area from the glass curtain
wall to the point that is three (3) feet inside the glass curtain wall (such
portion of the ceiling of the Neutral Zone being referred to herein as the
"Landlord Ceiling Zone") a finished ceiling treatment and interior lighting
apparatus. Landlord's design of the aforesaid finished ceiling treatment and
interior lighting apparatus shall be subject to Tenant's approval, which
approval Tenant shall not unreasonably withhold, condition or delay. Tenant's
design of the finished ceiling treatment and interior lighting apparatus in the
portion of the ceiling of the Neutral Zone that does not also constitute the
Landlord Ceiling Zone shall be architecturally compatible with Landlord's design
of the finished ceiling treatment and the interior lighting apparatus in the
Landlord Ceiling Zone. Tenant, during the Term, shall not have the right to make
Alterations to such ceiling treatment and lighting apparatus installed by
Landlord in the Landlord Ceiling Zone without Landlord's prior approval, which
approval Landlord shall not unreasonably withhold, condition or delay, with the
understanding, however,
37
42
that Landlord shall have the right to reject any such Alterations if Landlord is
not satisfied with the aesthetic impact thereof on the Lexington Place
Courtyard. Landlord, as part of the Post-Delivery Work, shall cause the
electricity for the aforesaid interior lighting apparatus that Landlord installs
in the Landlord Ceiling Zone to be metered to the Condominium Association (and,
accordingly, the cost of such electricity shall constitute a Common Charge for
purposes hereof). Landlord (or the Condominium Association) shall have the right
to require Tenant to keep lighted at particular times the aforesaid interior
lighting apparatus that Landlord installs in the Landlord Ceiling Zone. Landlord
shall (or Landlord shall cause the Condominium Association to) maintain and
relamp any such interior lighting apparatus that Landlord installs in the
Landlord Ceiling Zone (the cost of which maintenance and relamping shall
constitute a Common Charge for purposes hereof). Landlord, during the Term,
shall have the right to make reasonable alterations to the aforesaid
installations that Landlord makes in the Landlord Ceiling Zone, provided that
(i) Tenant approves such alterations (which approval Tenant shall not
unreasonably withhold, condition or delay if such alterations that Landlord
proposes to make in the Landlord Ceiling Zone are reasonably consistent with
Tenant's installations in the Premises), and (ii) Landlord performs such
alterations in accordance with the terms of Article 4 hereof and Article 14
hereof. Tenant shall have the right to install furniture, furnishings and other
items of Tenant's Property (other than partitioning) in the Neutral Zone
(including, without limitation, plants and other interior landscaping), subject
to Landlord's prior approval thereof (which approval Landlord shall not
unreasonably withhold, condition or delay). Tenant acknowledges that the Neutral
Zone is visible from the outside of the Building through the walls of the Bridge
Building, and therefore understands Landlord's interest in approving Tenant's
aforesaid Alterations and installations of Tenant's Property in the Neutral Zone
and in Tenant's maintaining the appearance of the Neutral Zone. Tenant shall
keep the Neutral Zone in a neat, clean and orderly condition that conforms with
the Building Standard (which shall be determined taking into account the
visibility of the Neutral Zone from the outside of the Building). Landlord shall
cause the occupants of the second (2nd) floor of the Lexington Avenue Building
and the second (2nd) floor of the Third Avenue Building to (x) maintain the
appearance of their respective premises in conformity with the Building
Standard, and (y) display merchandise in their respective premises in conformity
with the Building Standard, in either case to the extent that such space on the
second (2nd) floor of the Lexington Avenue Building and the second (2nd) floor
of the Third Avenue Building is visible from the Lexington Place Courtyard.
Either party shall have the right to submit a dispute between the parties
arising under this Section 2.6 to an Expedited Arbitration Proceeding.
Section 2.7 Subject to the terms of this Section 2.7, Tenant shall have
the right to use (and to permit Permitted Occupants to use) the fire stairs
serving the Premises, for purposes of permitting personnel to move among the
floors of the Building that comprise the Premises (such fire stairs being
referred to herein as the "Fire Stairs"). A Permitted Occupant shall not have
the right to use the Fire Stairs as contemplated by this Section 2.7 to gain
access to the Exclusive Lobby Area or to the street adjacent to the Building
(except in either case in the event of an Emergency). Tenant shall use (or
permit another Permitted Occupant to use) the Fire Stairs only to the extent
permitted by, and in a manner that is consistent with, applicable Requirements.
Tenant shall not have the right to use the Fire Stairs in a manner that prevents
free passage therein from floors of the Building above the Premises. Nothing
contained in this Section 2.7
38
43
diminishes Landlord's right to make installations in the Fire Stairs to limit
Tenant's ability to gain access to portions of the Building (other than the
Premises) from the Fire Stairs. Tenant shall not have the right to perform any
Alterations in the Fire Stairs (except that Tenant shall have the right to
install, in accordance with Article 3 hereof and to the extent permitted by
Requirements, (x) a security system in the Fire Stairs that seeks to prevent
unauthorized persons from entering the Premises from the Fire Stairs, and (y)
reasonable finishes in the Fire Stairs (such as floor covering, paint and
lighting)). Tenant shall not have the right to use the Fire Stairs to gain
access to a particular Deliverable Unit until the Commencement Date therefor has
occurred. Landlord and Tenant, at any time from and after the Last Commencement
Date, shall have the right to request that the other party promptly execute and
deliver a supplement hereto, in reasonable form, pursuant to which the parties
confirm the Fire Stairs to which Tenant has access as provided in this Section
2.7 (it being understood that the parties' failure to execute and deliver any
such supplement shall not impair Tenant's rights under this Section 2.7 to use
the Fire Stairs).
Section 2.8 Subject to the terms of this Section 2.8, Tenant, during
the Term, shall have the exclusive right to use the mechanical areas of the
Building that Landlord is constructing for Tenant's use as part of the Work in
accordance with the Work Exhibit and Article 22 hereof (such mechanical areas
that Landlord is constructing for Tenant's exclusive use being collectively
referred to herein as the "Tenant Mechanical Areas"). Tenant shall have the
right to use the Tenant Mechanical Areas solely for the purpose of installing,
operating and maintaining therein mechanical equipment that Tenant requires for
the operation of the Premises (it being understood that such mechanical
equipment may include, for example, HVAC equipment and other similar mechanical
equipment that supports the Premises, but shall not include, for example, video
editing equipment or other similar equipment that Tenant uses directly in
conducting its business in the Premises). Tenant shall make its installation of
such mechanical equipment in the Tenant Mechanical Areas in accordance with all
applicable Requirements (including, without limitation, the certificate of
occupancy for the Building). Tenant shall perform its installation of such
mechanical equipment in the Tenant Mechanical Areas in accordance with Article 3
hereof (as if such installation constitutes an Alteration). Tenant shall have
the right to make appropriate installations in the Tenant Mechanical Areas to
limit access thereto by others (it being understood, however, that Landlord
shall have access thereto in accordance with the terms hereof (as if the Tenant
Mechanical Areas constituted part of the Premises)). Landlord shall permit
Tenant to gain access to the Tenant Mechanical Areas through the mechanical
areas that service other portions of the Building, to the extent reasonably
necessary. Tenant's installation of mechanical equipment in the Tenant
Mechanical Areas as contemplated by this Section 2.8 shall be at Tenant's sole
cost and expense. Tenant shall maintain any such equipment that Tenant installs
in the Tenant Mechanical Areas in good repair and otherwise in accordance with
the Building Standard. Landlord and Tenant, at any time from and after the Last
Commencement Date, shall have the right to request that the other party promptly
execute and deliver a supplement hereto, in reasonable form, pursuant to which
the parties confirm the Tenant Mechanical Areas to which Tenant has access as
provided in this Section 2.8 (it being understood that the parties' failure to
execute and deliver any such supplement shall not impair Tenant's rights under
this Section 2.8 to use the Tenant Mechanical Areas). Landlord shall have the
right to limit Tenant's right to use the Tenant Mechanical Areas to the extent
reasonably necessary for the operation of the Building in accordance with the
Building Standard if, at any time from and
39
44
after the Last Rent Commencement Date, this Lease demises less than Three
Hundred Fifty Thousand (350,000) square feet of Rentable Area. Landlord shall
not be required to make the Tenant Mechanical Areas available for Tenant's use
as contemplated by this Section 2.8 until the construction of the Building has
progressed to the stage reasonably necessary for Tenant to gain access thereto
in accordance with good construction practice (with the understanding, however,
that nothing contained in this Section 2.8 limits the provisions of 22.1(E)
hereof). The Tenant Mechanical Areas shall not constitute part of the Premises
for purposes hereof, and, accordingly, the Tenant Mechanical Areas shall not be
included in the Premises for purposes of calculating the Usable Area thereof (it
being understood, however, that any portions of the Premises that Tenant uses
for mechanical purposes in a manner that does not constitute floor area for
purposes of the Zoning Resolution of The City of New York shall nevertheless be
included in the calculation of Usable Area for purposes hereof).
Section 2.9 Subject to the terms of this Section 2.9, Landlord hereby
consents to Tenant's installing and maintaining fuel lines, electrical lines,
telecommunications lines, exhaust ducts and flues and/or other similar lines,
ducts, and conduits (collectively, the "Risers") in the shaft locations that
Landlord is constructing as part of the Work for Tenant's use in accordance with
Article 22 hereof. The shaft locations to which Tenant has access as
contemplated by this Section 2.9 shall conform to the requirements of the Work
Exhibit. Landlord shall provide Tenant with all reasonably necessary access in
accordance with good construction practice for the installation, operation and
maintenance of the Risers, provided that such access shall (i) in no event take
place until the Work has progressed to the point that, in accordance with good
construction practice, such access will not unreasonably interfere with the
further progress of the Work, (ii) not unreasonably interfere with or interrupt
the operation and maintenance of the Building, and (iii) be upon such other
terms reasonably designated by Landlord (with the understanding, however, that
Landlord shall not have the right to impose additional charges on Tenant for
Tenant's use of such shaft space as contemplated by this Section 2.9). Tenant
shall install the Risers at Tenant's sole cost and expense. Tenant shall perform
such installation in accordance with the provisions of this Lease, including,
without limitation, the provisions pertaining to the performance of Alterations.
Landlord, at Landlord's cost and expense and at no cost to Tenant, and upon
reasonable prior notice to Tenant of not less than ninety (90) days, may, at any
time and from time to time during the Term, relocate any of the Risers;
provided, however, that (i) Landlord shall perform such relocation in a manner
that does not interfere with the operation of Tenant's business in any material
respect during ordinary business hours or Business Days, and (ii) if Landlord's
aforesaid relocation of any Risers would interfere in any respect with a system
that Tenant uses on a continuous basis for the conduct of Tenant's business
(such as, for example, the cabling for Tenant's live video feeds), then
Landlord, prior to removing such Risers, shall install and make operative new
Risers and cooperate with Tenant to enable Tenant to maintain the continuous
operation of such systems. Tenant, upon the Expiration Date, shall not be
required to remove the Risers (but Landlord reserves the right to require the
Risers to be disconnected, capped and sealed at Tenant's cost upon the
Expiration Date). Landlord and Tenant, at any time from and after the Last
Commencement Date, shall have the right to request that the other party promptly
execute and deliver a supplement hereto, in reasonable form, pursuant to which
the parties confirm the aforesaid shaft locations in which Tenant has the right
to install Risers as provided in this Section 2.9 (it being understood that the
parties' failure to
40
45
execute and deliver any such supplement shall not impair Tenant's rights under
this Section 2.9 to use such shaft locations for the installation of Risers).
Section 2.10 Subject to the terms of this Section 2.10, Landlord shall
not unreasonably withhold, condition, or delay its consent to an Alteration
consisting of Tenant's installation, either in the Premises or in a Tenant
Mechanical Area, of an emergency generator and a fuel tank or fuel tanks to
support Tenant's use and occupancy of the Premises for the conduct of Tenant's
business (such generator, such fuel tank or tanks, and the fuel and power risers
that Tenant installs in the Building in connection with such generator pursuant
to Section 2.9 hereof being referred to herein collectively as the "Emergency
Generator System"). If Tenant installs the Emergency Generator System in
accordance with the terms of this Section 2.10, then Tenant shall have the right
to maintain the Emergency Generator System for the Term. Tenant's installation
of the Emergency Generator System shall be at Tenant's sole cost and expense.
Tenant, as part of the installation of the Emergency Generator System that
Tenant performs under this Section 2.10, shall reinforce the structure of the
Building, if reasonably required by Landlord; provided, however, that if (i)
Landlord requires such reinforcement, (ii) Landlord can then be reasonably
expected to schedule such reinforcement to occur during the course of the Work,
and (iii) Tenant gives Landlord a notice requesting Landlord to perform such
reinforcement, then (I) Landlord shall perform such reinforcement as part of the
Work, (II) Tenant shall pay to Landlord the reasonable out-of-pocket costs
incurred by Landlord in connection therewith (it being understood that such
reinforcement shall constitute a Tenant Work Component for purposes of Article
22 hereof), and (III) such reinforcement shall constitute Post-Delivery Work for
purposes hereof, unless such reinforcement can be reasonably included in the
Pre-Delivery Work for the applicable Deliverable Unit without any material and
adverse effect on Landlord's performance of the Work, in which case such
reinforcement shall constitute Pre-Delivery Work for purposes hereof. If Tenant
exercises Tenant's rights to install the Emergency Generator System pursuant to
this Section 2.10, then Tenant, at Tenant's sole cost and expense, shall
operate, repair and maintain the Emergency Generator System in a manner that is
consistent with the Building Standard and that complies with all applicable
Requirements. Tenant shall have the right to operate the Emergency Generator
System at all times. If Tenant elects to install the Emergency Generator System
pursuant to this Section 2.10, then Tenant shall perform its installation of the
Emergency Generator System in accordance with the provisions of Article 3
hereof, and Landlord at such time shall make available to Tenant access (at
reasonable times and on reasonable notice) to the locations of the Building as
reasonably designated by Landlord for the construction, installation,
maintenance, repair, operation and use of the Emergency Generator System (it
being understood that Tenant's installation of Risers constituting the fuel
lines for the Emergency Generator System shall be governed by Section 2.9
hereof); provided, however, that Tenant shall have the right to access such
locations without giving any such advance notice to Landlord to the extent
reasonably necessary by reason of an Emergency. Tenant shall have the right to
make an appropriate installation (in accordance with the terms of Article 3
hereof) to restrict third parties from gaining access to the Emergency Generator
System (with the understanding, however, that Landlord or the Condominium
Association shall have the right to gain access to the aforesaid location where
Tenant installs the Emergency Generator System in accordance with the terms of
this Lease that govern the rights of Landlord and the Condominium Association to
access the Secure Areas).
41
46
Section 2.11 Subject to the terms of this Section 2.11, Tenant shall
have the exclusive right to use during the Term a portion of the terrace that is
adjacent to the sixth (6th) floor of the Building (such portion of such terrace
being referred to herein as the "Terrace Area") solely as an outdoor seating and
reception area for the officers, employees and business guests of Tenant (or
other Permitted Occupants). The Terrace Area shall satisfy the requirements
applicable thereto as set forth in the Work Exhibit. Tenant shall not have the
right to permit any third parties to use the Terrace Area (except to the extent
such third party is a Permitted Occupant or a guest of a Permitted Occupant).
Tenant shall have the right to use the Terrace Area as contemplated by this
Section 2.11 only to the extent (if any) permitted by applicable Requirements.
Tenant shall comply with any applicable Rules and Regulations in connection with
Tenant's use of the Terrace Area as contemplated hereby. Tenant shall not use
the Terrace Area as a designated outdoor smoking area. Tenant shall not use the
Terrace Area in a manner that interferes in a material respect with the use and
occupancy of portions of the Building outside of the Premises. Tenant shall have
the right to make Alterations on the Terrace Area in accordance with the terms
of Article 3 hereof (including, without limitation, Alterations that constitute
the installation of outdoor lighting that is reasonably adequate for Tenant's
use of the Terrace Area at night); provided, however, that all such Alterations
(including, without limitation, any such outdoor lighting) shall be subject to
Landlord's prior approval, which approval Landlord shall not unreasonably
withhold, condition or delay (it being understood that Landlord, in considering
Tenant's request for approval of any such Alteration, shall have the right to
take into account the aesthetic impact of any such Alterations on the Building).
Tenant shall have the right to make appropriate installations (in accordance
with the terms of Article 3 hereof) to restrict third parties from gaining
access to the Terrace Area, except that Landlord (and the Condominium
Association) shall have access thereto in accordance with the terms of this
Lease that govern Landlord's right to gain access to the Premises. Tenant shall
maintain the Terrace Area during the Term in accordance with the Building
Standard. Tenant acknowledges that Landlord retains the right to use or to
permit the Condominium Association to use the portion of the terrace on which is
located the Terrace Area and that does not constitute the Terrace Area for the
purpose of installing lighting apparatus that is designed to highlight the
Building; provided, however, that if Landlord (or the Condominium Association)
uses such remaining portion of such terrace for the installation of lighting
apparatus that is designed to highlight the Building, then Landlord shall
install and operate such lighting apparatus in a manner that does not interfere
materially with Tenant's using the Terrace Area as an outdoor seating and
reception area or Tenant's use and occupancy of the Premises. Tenant
acknowledges that Landlord retains the right to use the Terrace Area to the
extent reasonably necessary for the operation of the window washing rigs for the
Building. Landlord shall store (or cause the Condominium Association to store)
the aforesaid window washing rigs in areas outside of the Premises and in
terrace areas that are not adjacent to the Premises, except that Landlord shall
not be required to store such window washing rigs, as aforesaid, during the
times that Landlord or the Condominium Association is using, or reasonably
preparing to use, such rigs for the maintenance of the Building. Tenant, at
Tenant's sole cost and expense, shall make with reasonable diligence and in
accordance with good construction practice any repairs that are required from
time to time to the roof of the Building on which is located the Terrace Area,
to the extent that such repairs are required by reason of (x) any Alterations
that Tenant performs on the Terrace Area, or (y) Tenant's use of the Terrace
Area as contemplated hereby limiting or otherwise making unavailable to Landlord
or the Condominium
42
47
Association any roof warranty that would have otherwise been available;
provided, however, that the provisions of this clause (y) shall not apply if Xxx
Xxxxx or Xxxx Xxxxxxx (who serve as representatives of Landlord) have actual
personal knowledge as of the date hereof that Tenant's aforesaid use of the
Terrace Area limits or otherwise makes unavailable to Landlord or the
Condominium Association the roof warranty that would have otherwise been
available for the Building. Landlord, in designing the portion of the Work
consisting of the curtain wall that is adjacent to the Terrace Area, shall
consult in good faith with Tenant from time to time regarding the location and
number of doors that lead to the Terrace Area from the portion of the Premises
on the floor of the Building that is adjacent to the Terrace Area. Landlord, as
a Work Component that constitutes Post-Delivery Work, shall install terrace
pavers that are consistent with the roof system on the entire roof area of the
terrace on which is located the Terrace Area. Tenant shall not have the right to
use the Terrace Area as contemplated by this Section 2.11 until the last to
occur of (i) the Last Commencement Date, (ii) the date that Tenant occupies for
the conduct of business the Deliverable Unit in the portion of the Building that
is adjacent to the Terrace Area, and (iii) the date that Landlord is required
under Article 22 hereof to remove a Construction Hoist for which applicable
Requirements or good construction practice require the erection of a shed or
other similar protection over the Terrace Area (or the applicable portion
thereof). Tenant shall not have the right to use the Terrace Area during any
period after the Last Commencement Date that this Lease does not demise the
adjacent Rentable Area on the sixth (6th) floor of the Building.
Section 2.12 Tenant shall design Tenant's installations of equipment
(including, without limitation, the Emergency Generator System and Tenant's
air-cooled chillers) in the Tenant Areas, and make the corresponding acoustical
attenuation installations, in either case to an acoustic design criterion not to
exceed NC 40 (+/- 2DB) within ten (10) feet of the applicable Tenant Area, and
NC 35 (+/- 2DB) beyond ten (10) feet of the applicable Tenant Area (in each case
as measured both horizontally and vertically); provided, however, that Tenant
shall not be deemed to be in violation of the terms of this Section 2.12 unless
the aforesaid acoustic design criterion is not met in portions of the Building
that do not constitute the Premises or Tenant Areas. Tenant shall also cause
Tenant's aforesaid installations of equipment to comply with any noise
limitations that apply under Requirements.
43
48
ARTICLE 3
ALTERATIONS
Section 3.1 (A) Subject to Section 2.6 hereof and to Section 3.4
hereof, Tenant shall not make any Alterations without Landlord's prior consent.
Landlord shall not unreasonably withhold, delay or condition its consent to any
proposed Alterations, provided that such Alterations (i) do not affect in any
material and adverse respect any part of the Building other than the Premises or
require any alterations, installations, improvements, additions or other
physical changes to be performed in or made to any portion of the Building other
than the Premises, (ii) do not affect in any material and adverse respect the
proper functioning of any Shared Building System or any Remote Building System,
(iii) do not affect in any material and adverse respect the structure of the
Building, and (iv) subject to the provisions of Article 15 hereof, do not
require a change to, or otherwise affect the validity of, the certificate of
occupancy for the Building (other than the Premises). Landlord, in determining
whether to reasonably approve a particular Alteration to the Bridge Building,
shall have the right to take into account the aesthetic impact thereof on the
Lexington Place Courtyard. If Tenant proposes to make an Alteration that is
designed principally (x) to be visible from the Lexington Place Courtyard, or
(y) as a means of advertising or otherwise promoting a product or service in a
manner that is visible from the outside of the Premises, then Landlord shall
have the right to take into account the aesthetic impact thereof on the
appearance of the Building in considering whether to reasonably approve such
Alteration.
(B) (1) Subject to Section 3.4 hereof, Tenant,
prior to making any Alterations, shall submit to Landlord plans and
specifications (including layout, architectural, mechanical and structural
drawings) for the proposed Alteration that contain sufficient detail to enable
Landlord to reasonably assess such plans and specifications. Subject to Section
3.4 hereof, Tenant shall not commence any such Alteration without first
obtaining Landlord's approval of such plans and specifications in accordance
with Section 3.1(B)(9) hereof, which, in the case of Alterations that meet the
criteria set forth in Section 3.1(A) above, shall not be unreasonably withheld,
conditioned or delayed. Landlord, in reviewing Tenant's plans for Alterations
that contemplate the installation of aquariums, shall have the right to require
Tenant to install appropriate waterproofing to protect installations in portions
of the Building outside of the Premises that lie below such aquariums.
(2) Tenant, at Tenant's expense, shall obtain,
prior to the performance of any Alteration, all permits, approvals and
certificates required by any Governmental Authorities in connection therewith,
it being agreed that all filings with Governmental Authorities to obtain such
permits, approvals and certificates shall be made, at Tenant's expense, by a
Person reasonably designated by Tenant and approved by Landlord, which approval
Landlord shall not unreasonably withhold, delay, or condition (any such Person
reasonably designated by Tenant and approved by Landlord being referred to
herein as "Tenant's Expediter"). Tenant shall cause Tenant's Expediter to
consult with Landlord's expediter promptly after Landlord's request from time to
time.
(3) Tenant, prior to performing any Alteration,
shall furnish to Landlord duplicate original policies of, or, at Tenant's
option, certificates of, (i) workers' compensation insurance in amounts not less
than statutory limits (covering all persons to be employed by Tenant, and
Tenant's contractors and subcontractors, in either case in connection
44
49
with such Alteration), (ii) commercial general liability insurance (including
products and completed operations and bodily injury coverage) naming Landlord
and its agents, and any Lessor and any Mortgagee, as additional insureds, and
(iii) builder's risk insurance, in each case in customary form and in
commercially reasonable amounts, and issued by insurers that satisfy the
requirements set forth in Article 9 hereof for the period during which such
Alteration is being performed (it being understood that in determining whether
such insurance is in commercially reasonable amounts, the parties shall take
into account the amount of such insurance customarily carried by reputable
contractors, subcontractors and construction managers in connection with the
performance of the type of work similar to the Alterations being performed by
Tenant).
(4) Upon Substantial Completion of an Alteration,
Tenant, at Tenant's expense, shall (i) obtain certificates of final approval of
such Alteration to the extent required by any Governmental Authority, (ii)
furnish Landlord with copies of such certificates, and (iii) give to Landlord
copies of the final, marked drawings and field notes for such Alteration, to the
extent that Tenant has obtained such drawings or notes (it being understood that
(x) Tenant shall use commercially diligent efforts to obtain such drawings and
notes to the extent that such drawings and notes are ordinarily prepared in
accordance with good construction practice upon the completion of work that is
similar to the applicable Alteration, and (y) Tenant shall supply such drawings
to Landlord in CADD format to the extent that Tenant otherwise has had such
drawings prepared in CADD format). All filings with Governmental Authorities to
obtain such permits, approvals and certificates shall be made, at Tenant's
expense, by Tenant's Expediter.
(5) All Alterations shall be made and performed
substantially in accordance with the plans and specifications therefor as
approved by Landlord (to the extent such approval of Landlord is required under
this Article 3), all Requirements and the Rules and Regulations. All materials
and equipment to be incorporated in the Premises as a result of any Alterations
or a part thereof shall be first quality.
(6) No Alteration at a cost for labor and materials
(as reasonably estimated by Landlord's architect, engineer or contractor) in
excess of One Million Dollars ($1,000,000), either individually or in the
aggregate with any other reasonably related Alteration constructed in any twelve
(12) month period, shall be undertaken prior to Tenant's delivering to Landlord
either (i) a performance bond and labor and materials payment bond (issued by a
surety company and in form reasonably satisfactory to Landlord), each in an
amount equal to such estimated cost, or (ii) such other security that is
reasonably satisfactory to Landlord or that is required by a Mortgagee or
Lessor; provided, however, that Tenant shall not be required to provide any such
bond or any such security during the period that Tenant satisfies the Credit
Requirement.
(7) Subject to the terms of this Section 3.1(B)(7),
if (x) as a direct result of any Alterations performed by Tenant, any
alterations, installations, improvements, additions or other physical changes
are required to be performed or made to any portion of the Building other than
the Premises in order to comply with any Requirement (any such alterations,
installations, improvements, additions or changes being referred to herein as a
"Building Change"), and (y) such Building Change would not otherwise have had to
be performed pursuant
45
50
to applicable Requirements at such time, then (I) Landlord, the Condominium
Association or the owner of the unit of the Condominium affected thereby may
perform the Building Change, (II) Tenant shall pay to Landlord, such unit owner,
or the Condominium Association an amount equal to the reasonable out-of-pocket
costs incurred by Landlord, such unit owner, or the Condominium Association in
making such Building Change, within ten (10) days after demand therefor by
Landlord, and (III) Tenant, prior to the performance of such Building Change by
Landlord, such unit owner, or the Condominium Association, shall provide
Landlord, such unit owner, or the Condominium Association with such security as
Landlord, such unit owner, or the Condominium Association reasonably requires,
in an amount equal to the cost of such Building Change, as reasonably estimated
by the architect, engineer or contractor reasonably designated by Landlord, such
unit owner, or the Condominium Association; provided, however, that Tenant shall
not be required to provide any such security during the period that Tenant
satisfies the Credit Requirement. Prior to making any Building Change, Landlord
shall notify Tenant and consult with Tenant with respect thereto (or Landlord
shall cause the Condominium Association or such unit owner to notify Tenant and
consult with Tenant with respect thereto, as the case may be). Tenant shall not
be required to make the reimbursement of the cost of performing Building Changes
as contemplated by this Section 3.1(B)(7) unless Landlord provides Tenant with
reasonable supporting information therefor, promptly after Tenant's request.
Tenant shall not be required to pay for the cost of a Building Change, or
provide the aforesaid security, in either case as contemplated by this Section
3.1(B)(7), if (i) Tenant submitted to Landlord for Landlord's approval the plans
and specifications for the applicable Alteration as contemplated by this Article
3, (ii) Landlord then had knowledge or reasonably should have known of the
Building Change that is required by reason thereof, and (iii) Landlord failed to
advise Tenant of such Building Change concurrently with Landlord's approval of
the applicable Alteration. Either Landlord or Tenant shall have the right to
submit to an Expedited Arbitration Proceeding a dispute between the parties
regarding the cost of a Building Change that Tenant is required to pay under
this Section 3.1(B).
(8) Any Alteration (other than Non-Material
Alterations) shall be performed only under the supervision of an independent
licensed architect approved by Landlord (which approval shall not be
unreasonably withheld, conditioned, or delayed). Landlord hereby approves the
architects listed on Exhibit 3.1 attached hereto and made a part hereof for
purposes of the Initial Alterations.
(9) Subject to the terms of this Section 3.1(B)(9),
if (x) Tenant submits (or resubmits) to Landlord plans and specifications for
any Alteration, and (y) Landlord fails to respond to such plans and
specifications within ten (10) Business Days after the date that Tenant makes
such submission, then Landlord shall be deemed to have approved such plans and
specifications for purposes hereof; provided, however, that if such plans and
specifications submitted by Tenant describe the Initial Alterations to more than
one (1) floor of the Building, then Landlord shall not be deemed to have
approved such plans and specifications unless Landlord fails to respond thereto
within fifteen (15) Business Days after Tenant submits such plans and
specifications to Landlord. In addition, Landlord shall use Landlord's diligent
efforts to respond to Tenant's plans and specifications for proposed Alterations
as expeditiously as reasonably practicable. Landlord acknowledges that Tenant
shall have the right to submit to
46
51
Landlord partial or incomplete plans and specifications for proposed Alterations
for Landlord's approval as provided in this Article 3 (with the understanding
that Landlord retains the right to review, and, if necessary, disapprove, the
final plans and specifications for the applicable Alteration to the extent, and
on the basis, that such final plans and specifications disclose material items
that (x) were not disclosed previously on the partial or incomplete plans and
specifications, (y) are a new concept, and (z) not merely further developments
of items disclosed previously on the partial and incomplete plans and
specifications). Any disapproval given by Landlord shall be accompanied by a
statement in reasonable detail of the reasons for such disapproval. Landlord
reserves the right to disapprove any plans and specifications in part, to
reserve approval of items shown thereon pending its review and approval of other
plans and specifications pertaining to such items, and to condition its approval
upon Tenant making reasonable revisions to the plans and specifications or
supplying additional information. Any review or approval by Landlord of any
plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant or any other Person
with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise.
(C) (1) Subject to the terms of this Section
3.1(C), Tenant shall be permitted to perform Alterations at any time. If
Tenant's performance of an Alteration (other than the Initial Alterations in the
Initial Premises) materially interferes with or interrupts the operation or
maintenance of the Building or unreasonably interferes with or interrupts the
use and occupancy of the Building by others, then such Alteration shall be
performed at such other times as Landlord or the Condominium Association may
from time to time reasonably designate. Subject to the terms of this Section
3.1(C), Tenant's Property installed by Tenant, and all Alterations in and to the
Premises which may be made by Tenant at its own cost and expense (without
contribution from Landlord) prior to and during the Term, shall remain the
property of Tenant.
(2) Subject to the terms of this Section 3.1(C),
Tenant, on or prior to the Expiration Date, shall (i) remove Tenant's Property
from the Premises, and (ii) repair and restore in a good and workerlike manner
any damage to the Building caused by the installation thereof or such removal to
a condition that is customary and reasonable assuming that Landlord intends to
demolish the interior installation in the Premises after the Expiration Date;
provided, however, that Landlord shall have the right to require Tenant to so
repair and restore any damage to the Building caused by the installation or
removal of such Tenant's Property to good condition (and not merely to the
condition that is customary and reasonable assuming that Landlord intends to
demolish the interior installation in the Premises after the Expiration Date) if
(x) Landlord then intends, in good faith, to use such interior installation
after the Expiration Date, and (y) Landlord gives notice thereof to Tenant on or
prior to the ninetieth (90th) day before the Expiration Date (or within ten (10)
days after the Expiration Date, if the Expiration Date is not the Fixed
Expiration Date or the last day of the Renewal Term, as the case may be).
Landlord, upon notice given at least one hundred eighty (180) days prior to the
Fixed Expiration Date or the last day of the Renewal Term, as the case may be,
or within ten (10) days after the Expiration
47
52
Date upon the earlier termination of the Term, may require Tenant to remove any
Specialty Alterations, and to repair and restore in a good and workerlike manner
any damage to the Building caused by the installation thereof or such removal
(including, without limitation, restoring the slab of any floors perforated in
connection with such Specialty Alterations) to a condition that is customary and
reasonable assuming that Landlord intends to demolish the interior installation
in the Premises after the Expiration Date; provided, however, that (I) Landlord
shall have the right to require Tenant to so repair and restore any damage to
the Building caused by the installation or removal of such Specialty Alterations
to good condition (and not merely to the condition that is customary and
reasonable assuming that Landlord intends to demolish the interior installation
in the Premises after the Expiration Date) if (x) Landlord then intends, in good
faith, to use such interior installation after the Expiration Date, and (y)
Landlord gives notice thereof to Tenant on or prior to the ninetieth (90th) day
before the Expiration Date (or within ten (10) days after the Expiration Date,
if the Expiration Date is not the Fixed Expiration Date or the last day of the
Renewal Term, as the case may be), and (II) Tenant shall not be required to
remove any Specialty Alterations that constitute Qualified Specialty
Alterations. If Tenant elects to remove any Alterations from the Building, then
Tenant shall repair and restore in a good and workerlike manner any damage to
the Building caused by the installation thereof or such removal to a condition
that is customary and reasonable assuming that Landlord intends to demolish the
interior installation in the Premises after the Expiration Date; provided,
however, that Landlord shall have the right to require Tenant to so repair and
restore any damage to the Building caused by the installation or removal of such
Alterations to good condition (and not merely to the condition that is customary
and reasonable assuming that Landlord intends to demolish the interior
installation in the Premises after the Expiration Date) if (x) Landlord then
intends, in good faith, to use such interior installation after the Expiration
Date, and (y) Landlord gives notice thereof to Tenant on or prior to the
Expiration Date (or within ten (10) days after the Expiration Date, if the
Expiration Date is not the Fixed Expiration Date or the last day of the Renewal
Term, as the case may be). Subject to Section 3.4 hereof, Tenant shall not
remove any raised flooring or any mechanical, electrical, plumbing or other
similar equipment or components from the Premises without Landlord's prior
consent (which consent Landlord shall not unreasonably withhold, condition or
delay). Nothing contained in this Section 3.1(C)(2) shall obligate Tenant, upon
the expiration or earlier termination of the Term, to repair ordinary wear and
tear to the Premises, or to repaint the Premises or repair or replace the floor
coverings in the Premises.
(3) If Tenant has an obligation to remove Tenant's
Property or Specialty Alterations, or to otherwise repair or restore the
Premises, in either case pursuant to this Section 3.1(C), then Tenant shall have
the right to request that Landlord perform such removal, repair or restoration,
by giving notice thereof to Landlord on or prior to the tenth (10th) day after
the date that Landlord gives Tenant a notice to the effect that such removal,
repair, or restoration is required, as contemplated by Section 3.1(C)(2) hereof.
If Tenant gives such request to Landlord, then Landlord and Tenant shall each
have the right to give to the other party, simultaneously, on a date determined
by Landlord and Tenant (or on the fifteenth (15th) day after the date that
Tenant gives such request to Landlord, if the parties fail to agree on another
date), their respective determinations of the out-of-pocket costs that Landlord
can reasonably expect to incur in performing such removal, repair or
restoration. If either party fails to give its
48
53
determination of such costs to the other party on such date, then such party's
determination for purposes of this Section 3.1(C) shall be deemed to be equal to
the determination submitted by the other party on or prior to such date (and,
accordingly, Tenant shall pay to Landlord an amount equal to such determination
submitted by such other party within thirty (30) days after such other party
submits such determination to such party). If neither party submits such
determination to the other party on or prior to such date, then Tenant shall not
be required to pay to Landlord any amounts for the performance of such removal,
repair or restoration as contemplated by this Section 3.1(C). If (x) the
determinations submitted by both parties are not equal, and (y) the parties fail
to make a mutual determination within ten (10) days after the date that the
parties submit their respective determinations of such costs to each other as
contemplated by this Section 3.1(C), then either party shall have the right to
submit to an Expedited Arbitration Proceeding the sole issue of determining
which of the two (2) determinations submitted by the parties constitutes the
better estimate of the costs that Landlord can reasonably expect to incur in
performing such removal, repair or restoration. Tenant shall pay to Landlord the
amount so determined by agreement of the parties or by an Expedited Arbitration
Proceeding within thirty (30) days after such determination is made. If (I)
Landlord gives Tenant a notice as contemplated by Section 3.1(C)(2) hereof to
the effect that Tenant is required to remove Tenant's Property or Specialty
Alterations, or otherwise repair and restore the Premises, (II) Tenant exercises
Tenant's rights as contemplated by this Section 3.1(C)(3) to require Landlord to
perform such removal, repair or restoration, and (III) Tenant does not permit
Landlord to enter upon the Premises during the last sixty (60) days of the Term
to the extent reasonably necessary to permit Landlord to perform such removal,
repair or restoration, then Tenant shall pay to Landlord, for each month after
the expiration or the earlier termination of the Term that Landlord reasonably
requires to perform such removal, repair or restoration, an amount equal to the
Rental that was due hereunder for the last month of the Term (which amount shall
be pro-rated equitably to the extent that Landlord does not require an entire
calendar month to perform such removal, repair or restoration).
(4) Prior to Tenant's performance of a Specialty
Alteration, Tenant shall have the right to request (simultaneously with Tenant's
submission to Landlord of plans and specifications for such Specialty
Alteration) that Landlord designate that Tenant shall not be required to remove
such Specialty Alteration upon the expiration or earlier termination of the
Term. Landlord shall have the right to approve or deny any such request in
Landlord's sole discretion. If Tenant makes any such request, and, together with
such request, identifies the provisions of this Section 3.1(C) requiring
Landlord to respond thereto not later than the date that Landlord's approval of
such plans and specifications is deemed to be granted pursuant to Section
3.1(B)(9) hereof, and Landlord either approves such request, or fails to respond
to Tenant's aforesaid request on or prior to such date, then Landlord shall not
have the right to require Tenant to remove such Specialty Alteration upon the
expiration or earlier termination of the Term (any such Specialty Alteration
which Tenant shall not be required to remove as aforesaid being referred to
herein as a "Qualified Specialty Alteration").
(D) All Alterations shall be performed, at Tenant's sole
cost and expense, by Landlord's Contractor or, at Tenant's option, by
Contractors approved by Landlord (which approval shall not be unreasonably
withheld, conditioned, or delayed). Prior to making
49
54
an Alteration, at Tenant's request, Landlord shall furnish Tenant with a list of
Contractors who may perform Alterations to the Premises on behalf of Tenant,
which list shall contain not less than four (4) independent Contractors for each
trade that (i) charge commercially competitive rates, (ii) are not Affiliates of
Landlord, and (iii) have no arrangement with Landlord to share revenue or
profits deriving from Tenant's performance of Alterations. If Tenant engages any
Contractor set forth on the list, then Tenant shall not be required to obtain
Landlord's consent for such Contractor unless, prior to the earlier of (a)
entering into a contract with such Contractor, and (b) the commencement of work
by such Contractor, Landlord (x) notifies Tenant that such Contractor has been
removed from the list, and (y) advises Tenant of a reasonable substitute for the
Contractor that Landlord removed from the list. With respect to the Initial
Alterations, Tenant may select any of the Contractors set forth on Exhibit 3.1
attached hereto and made a part hereof, with the understanding, however, that
Landlord shall have the right to substitute a Contractor for a Contractor listed
on Exhibit 3.1 attached hereto if Landlord has good reason to conclude that such
Contractor's reputation or capacity to perform work has suffered a material and
adverse change by giving notice thereof (including such reason) prior to the
date that Tenant engages such Contractor listed on Exhibit 3.1 attached hereto
for the Initial Alterations.
(E) Subject to the terms of this Section 3.1(E), any
mechanic's lien filed against the Premises for work done for, or materials
furnished to, Tenant shall be discharged by Tenant within thirty (30) days after
Tenant has received notice thereof, at Tenant's expense, by payment or filing
the bond required by law (which discharge must be filed, but is not required to
be of record, within such period of thirty (30) days). Tenant shall not be
required to discharge any such lien that derives from the Work, Landlord's
performance of any other work in the Premises, or any other act or omission of
Landlord (except that Tenant shall be required to discharge any such lien that
derives from Tenant's failure to pay when due the cost of any Tenant Work
Component in accordance with the provisions of Article 22 hereof).
(F) Subject to Section 22.7 hereof, Tenant shall not, at
any time prior to or during the Term, directly or indirectly employ, or permit
the employment of, any contractor, mechanic or laborer in the Premises, whether
in connection with any Alteration or otherwise, if such employment would
interfere or cause any conflict with other contractors, mechanics or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, the Condominium Association, Tenant or others. Landlord and Tenant
shall attempt (and shall cause all affected parties to attempt) to promptly
resolve any labor disputes in a commercially reasonable manner. In the event of
any such conflict and the failure of the parties to resolve the same pursuant to
the immediately preceding sentence, Tenant, upon demand of Landlord, shall take
all reasonable measures to cause all contractors, mechanics or laborers causing
such interference or conflict to leave the Building promptly or shall take such
other action as may be necessary to end such conflict. Landlord and Tenant
acknowledge that Landlord intends to use personnel who are members of
established New York City construction trade unions for the construction of the
Building.
Section 3.2 Tenant shall pay to Landlord or to Landlord's agent from
time to time in connection with the performance of any Alterations, within
thirty (30) days after demand therefor, as additional rent, a fee equal to the
reasonable out-of-pocket costs incurred by Landlord
50
55
in reviewing the plans and specifications for such Alteration, except that
Tenant shall not be required to pay such fee for the Initial Alterations to the
Initial Premises. Landlord shall provide Tenant with copies of supporting
documentation for any such payments required by Landlord from Tenant, promptly
after Tenant's request therefor.
Section 3.3 (A) Upon the request of Tenant, Landlord shall join in (and
execute) any applications for any permits or approvals required to be obtained
by Tenant in connection with any Alteration (provided that the provisions of the
applicable Requirement require that Landlord joins in (and executes) such
application) and shall otherwise cooperate reasonably with Tenant in connection
therewith, provided that Landlord shall not be obligated to incur any cost or
expense (except to the extent that Tenant has agreed to promptly reimburse
Landlord therefor), including, without limitation, reasonable attorneys' fees
and disbursements, or suffer any liability in connection therewith. Tenant shall
prepare any such applications that Tenant requires Landlord to execute. Landlord
shall join in (and execute) such applications as aforesaid within seven (7)
Business Days after Tenant's request (which shall include a copy of such
applications). Landlord acknowledges that Tenant shall have the right to request
Landlord to join in (and execute) such applications pursuant to this Section
3.3(A) before Landlord has reviewed, or approved, the plans and specifications
for the applicable Alteration as contemplated by this Article 3. Tenant
acknowledges that Landlord's joining in any such applications, or Landlord's so
cooperating with Tenant in connection therewith, prior to Landlord's approval of
the applicable Alteration (to the extent that Landlord has the right to approve
such Alteration under this Article 3) shall be without prejudice to Landlord's
right to thereafter reject the applicable Alteration in accordance with the
provisions hereof. Tenant shall reimburse Landlord as aforesaid within thirty
(30) days after Landlord's request therefor (it being understood that Landlord
shall include in such request reasonable supporting evidence therefor).
(B) Upon the request of Landlord, Tenant shall join in
(and execute) any applications for any permits or approvals required to be
obtained by Landlord in connection with any work performed by the Landlord
(provided that the provisions of the applicable Requirement require that Tenant
joins in (and executes) such application) and shall otherwise cooperate
reasonably with Landlord in connection therewith, provided that Tenant shall not
be obligated to incur any cost or expense (except to the extent that Landlord
has agreed to promptly reimburse Tenant therefor), including, without
limitation, reasonable attorneys' fees and disbursements, or suffer any
liability in connection therewith. Landlord shall prepare any such applications
that Landlord requires Tenant to execute. Tenant shall join in (and execute)
such applications as aforesaid within seven (7) Business Days after Landlord's
request therefor (which shall include a copy of such applications). Landlord
shall reimburse Tenant as aforesaid within thirty (30) days after Tenant's
request therefor (it being understood that Tenant shall include in such request
reasonable supporting evidence therefor).
Section 3.4 Anything contained in this Article 3 to the contrary
notwithstanding, Landlord's consent shall not be required with respect to any
Alteration for which Landlord's consent is otherwise required pursuant to this
Article 3, provided that such Alteration (i) is not visible in any material
respect (other than during the construction thereof) from the Lexington Place
Courtyard, (ii) does not materially and adversely affect any part of the
Building other than
51
56
the Premises and the Premises Systems or require any alterations, installations,
improvements, additions or other physical changes to be performed in or made to
any portion of the Building other than the Premises and the Premises Systems,
(iii) does not affect in any material and adverse respect the proper functioning
of any Shared Building System or any Remote Building System, (iv) does not
adversely affect the structure of the Building in any material respect, (v) does
not involve a perforation of more than five (5) inches in diameter to a floor
slab of the Premises, (vi) subject to the provisions of Article 15 hereof, does
not violate (or otherwise affect the validity of) the certificate of occupancy
for the Building (other than the Premises), (vii) is not designed principally as
a means of advertising or otherwise promoting any product or service in a manner
that is visible from the outside of the Premises, and (viii) is not reasonably
expected to have a cost for labor and materials of more than One Million Dollars
($1,000,000), either individually or in the aggregate with other reasonably
related Alterations constructed within any twelve (12) month period; provided,
however, that (I) on January 1, 2002 and on January 1 of each succeeding year
during the Term the aforesaid amount of One Million Dollars ($1,000,000) shall
be adjusted to reflect any increase in the Consumer Price Index from the
Consumer Price Index that is in effect on the date hereof, and (II) this Section
3.4 shall not abrogate Landlord's right to approve Alterations to the extent
that such right derives from provisions of this Lease other than this Article 3.
At least five (5) days prior to making any such Alteration, Tenant shall submit
to Landlord for informational purposes only the detailed plans and
specifications for such Alterations to the extent that any Governmental
Authority or the Condominium Association requires such plans or specifications
or Tenant otherwise prepares such plans and specifications. Any such Alteration
shall otherwise be performed in compliance with the provisions of this Article
3.
Section 3.5 Subject to the terms of this Section 3.5, Landlord shall
not unreasonably withhold, condition or delay Landlord's approval of Tenant's
making an Alteration to install a mezzanine or mezzanines in the Premises.
Tenant shall have the right to install any such mezzanine solely to the extent
permitted by Requirements. Tenant shall only have the right to install the
aforesaid mezzanine or mezzanines in the Bridge Building or in the Lower Level
Space that is located on Lower Level 2 of the Building. Tenant acknowledges that
Landlord, in considering whether to approve the construction of any such
mezzanine in the Bridge Building, shall have the right to take into account to a
reasonable extent the impact of such mezzanine on the appearance of the exterior
of the Building. Tenant shall construct any such mezzanine in the Bridge
Building so that no part of such mezzanine is south of the lowest ceiling bow
truss. Tenant acknowledges that any such mezzanine that Tenant constructs in the
Bridge Building shall not visually engage the curtain wall on the north side of
the Bridge Building (it being understood, however, that Landlord shall cooperate
reasonably with Tenant in developing a design for any such mezzanine that does
not engage such curtain wall visually, but nevertheless separates the area above
such mezzanine from the area below such mezzanine, perhaps with a plexiglass
barrier or other similar material). Tenant shall otherwise perform such
construction of any such mezzanine in accordance with the terms of this Article
3. Tenant's installation of any such mezzanine shall not constitute a Qualified
Specialty Alteration for purposes hereof. The Usable Area of all mezzanines that
Tenant constructs in the Bridge Building pursuant to this Section 3.5 shall not
exceed Three Thousand Five Hundred (3,500) square feet. Tenant shall not have
the right to make Alterations that result in a net increase in the floor area of
the Premises for
52
57
purposes of the Zoning Resolution of The City of New York (from the greater of
(I) the floor area that existed on the Commencement Date for the Premises
(including, without limitation, any Incremental Area in Premises that would have
constituted floor area if such Incremental Area had not been used for
staircases, shaftways, or telecommunications areas), and (II) the floor area
that would have existed on the Commencement Date for the Premises (including,
without limitation, any Incremental Area in the Premises that would have
constituted floor area if such Incremental Area had not been used for
staircases, shaftways, or telecommunications areas) but for the installation of
Tenant Work Components). Except to the extent otherwise expressly set forth in
Articles 10 and 11 hereof, any change in the Usable Area of a Deliverable Unit
that occurs from and after the Commencement Date for such Deliverable Unit
(including, without limitation, a change in the Usable Area of a Deliverable
Unit that derives from Tenant's making Alterations therein) shall not affect the
parties' determination of the Usable Area thereof for purposes hereof.
Section 3.6 Subject to the terms of this Section 3.6, Landlord shall
not unreasonably withhold, condition or delay its consent to Tenant's using the
louvers that Landlord is installing in the Tenant Mechanical Areas as part of
the Work in accordance with Article 22 hereof for purposes of drawing outside
air into, or for exhausting air from, the Premises to reasonably accommodate
Tenant's supplemental HVAC system and any other Alteration requiring an exhaust
or air intake system. Tenant shall not have the right to use such louvers to the
extent that such louvers are otherwise required for Shared Building Systems or
Remote Building Systems, except that Landlord shall not have the right to limit
Tenant's use of such louvers in a manner that results in there being
insufficient louver space to service the Tenant systems and equipment being
installed in the Premises as contemplated by the Work Exhibit or Exhibit 3.9
attached hereto in either case in accordance with the specifications for such
equipment or systems. Landlord shall also have the right to reserve a reasonable
portion of the available louver space for other occupants of the Building,
except that Landlord shall not have the right to so reserve louver space for
other occupants of the Building if the louvers that are available to Tenant do
not service the equipment and systems being installed in the Premises as
contemplated by the Work Exhibit or by Exhibit 3.9 attached hereto, in either
case in accordance with the specifications for such equipment or systems. Tenant
also shall have the right to use Tenant's pro-rata share (determined based on
the ratio that the Usable Area of the Premises bears to the Usable Area of the
Building) of any louver space that is available from time to time during the
Term; provided, however, that Tenant shall not have the right to use such
additional louver space (x) until Landlord makes a reasonable determination that
all of the other users of space in the Building have made the louver
installations that such other users require or are reasonably expected to
require, or (y) to the extent that Landlord reasonably determines that Landlord
(or the Condominium Association) will require such available louver space for
Building Systems. Tenant shall not use such louvers to exhaust or intake air to
the extent such exhaust or intake violates any applicable Requirements. Tenant's
installation of any such air intake or exhaust system shall be at Tenant's sole
cost and expense. Tenant shall perform its installation of such air intake or
exhaust system in accordance with the provisions of this Article 3. If Tenant
uses any such louvers as contemplated by this Section 3.6, then Tenant, at
Tenant's sole cost and expense, shall operate, repair, clean, and maintain such
louvers that Tenant uses in a manner that is consistent with the Building
Standard and that complies with all applicable Requirements (it being understood
that if Tenant is not using any such louver exclusively, then (x) Landlord shall
(or Landlord shall cause the
53
58
Condominium Association to) operate, repair, clean and maintain such louver, and
(y) Tenant shall pay Tenant's fair share of the costs thereof, which shall be
determined based on the area of such louver that is used by Tenant). Landlord
shall have the right to require Tenant to install a roto-clone system (or other
similar system) in connection with Tenant's use of the louvers of the Building
as contemplated by this Section 3.6 for kitchen exhaust; provided, however, that
Landlord shall not have the right to require Tenant to install such roto-clone
system (or other similar system) if (x) other occupants of the Building are
using similar louvers of the Building for similar kitchen exhaust purposes, and
(y) neither Landlord nor the Condominium Association has required such other
occupants to install such roto-clone system (or other similar system) in
connection therewith. Tenant shall have the right to require Landlord to clean
and maintain Tenant's louver installations as contemplated by this Section 3.6,
in which case Tenant shall pay to Landlord that costs that Landlord incurs in
connection therewith as Operating Expenses in accordance with the terms hereof.
Nothing contained in this Section 3.6 limits Landlord's obligation to install
louvers for the Premises to the extent such installation otherwise constitutes
part of the Work. Landlord shall clean and maintain (or cause the Condominium
Association to clean and maintain) during the Term the exterior surfaces of the
louvers that Landlord is installing as part of the Work (it being understood
that the costs that Landlord incurs in connection therewith shall constitute
Operating Expenses to the extent provided in Article 26 hereof). If (x) Tenant
uses any particular louver as contemplated by this Section 3.6, and (y) such
louver is not also used for a Building System or a system installed by or for
another occupant of the Building, then Tenant, at Tenant's sole cost and
expense, shall close any portion of such louver that is not used by Tenant's
system.
Section 3.7 Tenant, as part of the Initial Alterations, shall install
in the Exclusive Lobby Area a lobby installation that conforms with the Building
Standard.
Section 3.8 (A) Subject to the terms of this Section 3.8(A), if there
exists a violation of applicable Requirements at the Building that impedes or
increases the cost of (i) Tenant's performance of an Alteration, (ii) Tenant's
obtaining a permit from the applicable Governmental Authority for any such
Alteration, (iii) Tenant's obtaining an amendment to the certificate of
occupancy for the Premises pursuant to Article 15 hereof, or (iv) Tenant's
obtaining a permit from the applicable Governmental Authority for the conduct of
Tenant's business in the Premises as contemplated by Section 2.4 hereof (any
such violation being referred to herein as an "Impeding Building Violation"),
then Landlord, at Landlord's expense, shall cause the Impeding Building
Violation to be removed as promptly as reasonably practicable after Tenant gives
Landlord notice thereof. Nothing contained in this Section 3.8 shall require
Landlord to remove any such violation to the extent that Section 6.1 hereof
requires Tenant to comply therewith. If (i) an Impeding Building Violation
exists, (ii) Tenant gives Landlord notice thereof, (iii) Landlord fails to
remedy the Impeding Building Violation within thirty (30) days after Tenant
gives Landlord notice thereof, (iv) Tenant, in such notice, describes with
reasonable particularity the out-of-pocket costs that Tenant then reasonably
expects to incur to the extent attributable solely to the existence of the
Impeding Building Violation, (v) Tenant gives to Landlord from time to time
additional notices that describe with reasonable particularity the out-of-pocket
costs that Tenant actually incurs to the extent attributable solely to the
existence of the Impeding Building Violation, with reasonable promptness after
the date that Tenant so incurs
54
59
such costs, and (vi) Tenant takes reasonable steps to minimize such costs to the
extent reasonably practicable, then Landlord shall reimburse Tenant for such
costs within thirty (30) days after Tenant's request therefor. Either party
shall have the right to submit any dispute between the parties regarding any
such costs to be reimbursed by Landlord to Tenant to an Expedited Arbitration
Proceeding.
(B) If (I) there exists a violation of applicable
Requirements with which Tenant is required to comply pursuant to the terms
hereof, and (II) such violation impedes or increases the cost of any work being
performed in the Building by or on behalf of Landlord, the owner of a unit in
the Condominium, or the Condominium Association, or any approval of a
Governmental Authority that is required in connection therewith (any such
violation being referred to herein as an "Impeding Premises Violation"), then
Tenant, at Tenant's expense, shall cause the Impeding Premises Violation to be
removed as promptly as reasonably practicable after Landlord gives Tenant notice
thereof. If (i) an Impeding Premises Violation exists, (ii) Landlord gives
Tenant notice thereof, (iii) Tenant fails to remedy the Impeding Premises
Violation within thirty (30) days after Landlord gives Tenant notice thereof,
(iv) Landlord, in such notice, describes with reasonable particularity the
out-of-pocket costs that Landlord (or such unit owner or the Condominium
Association) then reasonably expects to incur to the extent attributable solely
to the existence of the Impeding Premises Violation, (iv) Landlord gives to
Tenant from time to time additional notices that describe with reasonable
particularity the out-of-pocket costs that Landlord (or such unit owner or the
Condominium Association) actually incurs to the extent attributable solely to
the existence of the Impeding Premises Violation, with reasonable promptness
after the date that Landlord (or such unit owner or the Condominium Association)
so incurs such costs, and (v) Landlord (or such unit owner or the Condominium
Association) takes reasonable steps to minimize such costs to the extent
reasonably practicable, then Tenant shall reimburse Landlord (or such unit owner
or the Condominium Association) for such costs within thirty (30) days after
Landlord's request therefor. Either party shall have the right to submit to an
Expedited Arbitration Proceeding any dispute between the parties regarding any
such costs to be reimbursed by Tenant to Landlord (or such unit owner or the
Condominium Association).
Section 3.9 Subject to the terms of this Section 3.9, Landlord hereby
consents in concept to Tenant's making the Initial Alterations described on
Exhibit 3.9 attached hereto. If Tenant submits plans and specifications for such
Initial Alterations to Landlord for Landlord's approval as contemplated by
Section 3.1(B) hereof (to the extent that such Initial Alterations are otherwise
subject to Landlord's prior approval under this Article 3), then Landlord shall
not have the right to withhold such approval unless (i) the scope of the Initial
Alterations as contemplated thereby exceeds the scope of the aforesaid Initial
Alterations described in Exhibit 3.9 attached hereto for which Landlord granted
conceptual approval, or (ii) such plans and specifications contemplate the
implementation of the aforesaid Initial Alterations described in Exhibit 3.9
attached hereto in a manner with respect to which Landlord has reasonable
objections (except to the extent that the manner of implementation of the
aforesaid Initial Alterations is described on Exhibit 3.9 attached hereto).
Section 3.10 Subject to the terms of this Section 3.10, Landlord shall
arrange for Tenant to gain access from time to time to the underside of the slab
and decking constituting the
55
60
floor of the portion of the Premises located on the third (3rd) floor of the
Lexington Avenue Building (the "Third Floor Deck") for the purposes reasonably
necessary for Tenant's performance of the Initial Alterations, and for the
purpose of maintaining the Initial Alterations during the Term. Nothing
contained in this Section 3.10 permits Tenant to make any installations outside
of the Premises. Tenant's access to the Third Floor Deck shall be subject to
reasonable limitations imposed by Landlord from time to time (including, without
limitation, reasonable restrictions as to the time and manner in which Tenant
may gain access to the Third Floor Deck that are required by the tenant or
occupant of the Third Avenue Building or the Lexington Avenue Building, as the
case may be). Tenant acknowledges that Tenant's right to gain access to the
Third Floor Deck may become more restrictive after the interior installation is
made on the second (2nd) floor of the Lexington Avenue Building. Tenant, at
Tenant's sole cost and expense, shall repair any damage that results from
Tenant's accessing the Third Floor Deck as contemplated by this Section 3.10.
This Section 3.10 shall not apply during any period after the Last Commencement
Date that the Rentable Area on the third (3rd) floor of the Lexington Avenue
Building is not demised hereby.
Section 3.11 Subject to the terms of this Section 3.11, Tenant shall
have the right to gain access to the underside of the slab that constitutes the
fourth (4th) floor of the Bridge Building (which is the lowermost floor of the
Bridge Building) for the purpose of installing, at Tenant's sole cost and
expense, conduits, piping and other similar lines, or an escalator pit for an
escalator that Tenant installs in the Bridge Building in accordance with the
terms hereof. Any such installation shall constitute an Alteration to which the
provisions of this Article 3 shall apply (and which shall be subject to
Landlord's prior approval, which approval Landlord shall not unreasonably
withhold, condition or delay). Tenant acknowledges that any such installation
made by Tenant shall not be visible from the exterior of the Building
(including, without limitation, from the Lexington Place Courtyard). Tenant
shall not have the right to gain access to the underside of the slab that
constitutes the fourth (4th) floor of the Bridge Building as contemplated by
this Section 3.11 from the Lexington Place Courtyard (and, accordingly, Tenant
shall not have the right to install access panels to gain access to the
underside of the slab that constitutes the fourth (4th) floor of the Bridge
Building from the Lexington Place Courtyard); provided, however, that during the
initial construction of the Building but prior to the date that Landlord
installs the exterior wall of the Bridge Building that is below the underside of
the slab that constitutes the fourth (4th) floor of the Bridge Building, Tenant
shall have the right to gain access to the underside of such slab for the
purpose of making installations as contemplated by this Section 3.11 (with the
understanding that Landlord and Tenant shall cooperate with each other in good
faith to arrange for Tenant's having such access in a manner that minimizes to
the extent reasonably practicable any interference with Landlord's construction
of the Building). Tenant, at Tenant's sole cost and expense, shall maintain any
such installation during the Term. Tenant shall repair any damage to the
Building that is caused by any such installation. Tenant shall not have the
right to perforate the aforesaid floor slab of the fourth (4th) floor of the
Bridge Building in connection with Tenant's aforesaid installation of such
conduits, piping and other similar lines (other than the aforesaid escalator
pit) (it being understood that the aforesaid conduits, piping and other lines
shall run from the ceiling of the portions of the Premises on the third (3rd)
floor of the Building). This Section 3.11 shall not apply during any period
after the
56
61
Last Commencement Date that the Rentable Area on the fourth (4th)
floor of the Building is not demised hereby.
Section 3.12 Subject to Section 3.1(B)(8) hereof, Tenant shall not
engage Bovis LendLease (or an Affiliate thereof) as the general contractor or
construction manager for the Initial Alterations; provided, however, that
Landlord, for purposes of this Section 3.12, shall have the right to substitute
for Bovis LendLease a different construction manager or general contractor only
by giving notice thereof to Tenant on or prior to the earlier of (x) July 1,
2001, and (y) the date that Tenant engages such construction manager or general
contractor to perform the Initial Alterations.
Section 3.13 Subject to the terms of this Section 3.13, Tenant, at
Tenant's sole cost and expense, shall have the right to install as part of the
Initial Alterations a system that monitors the performance of the Premises
Systems and the Shared Building Systems (and is integrated with the monitoring
system that Landlord installs as part of the Work as contemplated by the Work
Exhibit). Tenant shall make any such installation in accordance with good
construction practice and applicable Requirements. Tenant, during the Term,
shall maintain any such system in a manner that does not materially impair or
interfere with the operation of the Shared Building Systems. Any such
installation of such system shall constitute a Qualified Specialty Alteration
for purposes hereof. Tenant shall perform any such installation of such system
in accordance with the terms of this Article 3 (with the understanding that
Landlord shall not unreasonably withhold, condition or delay Landlord's approval
thereof).
57
62
ARTICLE 4
REPAIRS-FLOOR LOAD
Section 4.1 (A) Subject to Section 4.1(C) hereof, Landlord shall operate,
maintain and make all necessary repairs and replacements (whether structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen) to the
Premises Systems and the Shared Building Systems (but not to the distribution
portions of the Premises Systems and the Shared Building Systems to the extent
located within the Premises) and the structural portions of the Building
(including, without limitation, the Premises), the roof, the sidewalks, the core
areas of the Premises, the exterior walls of the Premises, the windows of the
Premises, the toilets within the Premises (other than private toilets installed
therein by Tenant), and the public portions of the Building to which Tenant has
access in connection with Tenant's use and occupancy of the Premises (including,
without limitation, the Basic Amenities), both exterior and interior (including,
without limitation, landscaping in the public portions of the Land and the
Building, lighting in public portions of the Land and the Building, lobbies in
the public portion of the Building to which Tenant has access in connection with
Tenant's use and occupancy of the Premises (but excluding the Exclusive Lobby
Area and any other lobby within the Premises), and hallways in the public
portion of the Building to which Tenant has access in connection with Tenant's
use and occupancy of the Premises), in a first-class manner in conformity with
standards maintained by "Class A" office buildings in midtown Manhattan (the
"Building Standard") throughout the Term. Landlord shall use its commercially
reasonable efforts to obtain warranties for items installed in the Building (to
the extent that such warranties are generally available for construction
projects similar to the Building in midtown Manhattan), and shall comply with
the terms of any warranties that Landlord so obtains to the extent that the
costs of maintaining, repairing or replacing such item would otherwise be
payable by Tenant hereunder. Landlord acknowledges that the Premises Systems and
Shared Building Systems to be maintained by Landlord under this Section 4.1
include, without limitation, the elevators being installed to service the
Premises as part of the Work.
(B) Tenant, at Tenant's sole cost and expense, shall take
good care of the Tenant Areas and the fixtures, equipment and appurtenances
therein and the distribution systems of the Premises Systems and Shared Building
Systems therein and shall make all nonstructural repairs thereto as and when
needed to preserve them in good working order and condition, except for
reasonable wear and tear, obsolescence and damage for which Tenant is not
responsible pursuant to the provisions of Article 10 hereof. Tenant acknowledges
that Tenant's obligations under this Section 4.1 include, without limitation,
the responsibility to clean the interior surface of all windows in the Premises.
(C) Subject to the terms of this Section 4.1(C), all damage
or injury to the Premises or to any other part of the Building and Building
Systems, or to its fixtures, equipment and appurtenances (other than any damage
or injury caused by fire or other casualty to which the provisions of Article 10
hereof apply), whether requiring structural or nonstructural repairs, caused by
or resulting from the negligence or wilful misconduct of, or Alterations made
by, Tenant shall be repaired at Tenant's sole cost and expense, by Tenant to the
reasonable satisfaction of Landlord (if the required repairs are nonstructural
in nature and do not affect any
58
63
Shared Building System or Remote Building System), or by Landlord at
commercially reasonable rates (if the required repairs are structural in nature
or affect any Shared Building System or Remote Building System). All of the
aforesaid repairs shall be of first quality and of a class consistent with the
Building Standard and shall be made in accordance with the provisions of Article
3 hereof. If Tenant fails after thirty (30) days of advance notice (or such
shorter period as may be required due to an Emergency) to proceed with due
diligence to make repairs required to be made by Tenant, then the same may be
made by Landlord, at the reasonable expense of Tenant, and the expenses thereof
incurred by Landlord, with interest thereon at the Applicable Rate, shall be
paid to Landlord within thirty (30) days after rendition of a xxxx or statement
therefor. Tenant shall give Landlord prompt notice of any defective condition in
the Building or in any Building System, located in, servicing or passing through
the Premises of which Tenant has actual knowledge. Landlord shall not have the
right to require Tenant to reimburse Landlord for the cost of repairs performed
by Landlord under this Section 4.1(C) unless (i) Landlord provides Tenant with
Landlord's good faith estimate of the costs that Landlord reasonably expects to
incur in performing such repair at least five (5) Business Days prior to
Landlord's commencement of the performance thereof, and (ii) Landlord updates
such estimate from time to time, as Landlord's repair work progresses, if, in
Landlord's reasonable determination, the cost of such repair work will exceed
one hundred five percent (105%) of Landlord's initial estimate (as Landlord may
have theretofore updated such initial estimate as contemplated by this clause
(ii)); provided, however, that if an Emergency occurs, then Landlord shall only
be required to give Tenant the advance notice described in clause (i) above to
the extent reasonably practicable under the circumstances.
Section 4.2 Tenant shall not place a load upon any floor of the Premises
exceeding the structural design capacity thereof as contemplated by the Work
Exhibit, unless (i) Tenant has theretofore performed an Alteration in accordance
with the terms of Article 3 hereof to reinforce such floor appropriately, and
(ii) Tenant has theretofore obtained the appropriate amendment to the
certificate of occupancy for the Premises in accordance with the terms of
Section 15.2 hereof (to the extent such amendment is required by applicable
Requirements). Nothing contained in this Section 4.2 impairs Landlord's
obligation to perform the Work in accordance with the Work Exhibit and Article
22 hereof. If any safe, machinery, equipment, freight, bulky matter or fixtures
that Tenant moves into or out of the Premises requires special handling, then
Tenant shall employ only persons holding a Master Rigger's license to do said
work to the extent required by the applicable Requirements. All work in
connection therewith shall comply with all Requirements and the Rules and
Regulations, and may be done at any time, provided that such work does not
materially interfere with or interrupt the operation and maintenance of the
Building or unreasonably interfere with or interrupt the use and occupancy of
the Building by others. Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in settings sufficient in
Landlord's reasonable judgment to absorb and prevent unreasonable vibration,
noise and annoyance. Except to the extent expressly provided herein, there shall
be no allowance to Tenant for a diminution of rental value and no liability on
the part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant, the Condominium Association or others making, or
failing to make, any repairs, alterations, additions or improvements in or to
any portion of the Building or the Premises, or in or to fixtures, appurtenances
or equipment thereof.
59
64
Section 4.3 Landlord shall use its commercially reasonable efforts to
minimize interference with Tenant's access to and use and occupancy of the
Premises in making any repairs, alterations, additions or improvements pursuant
to Section 4.1 hereof and shall make any such repairs, alterations, additions or
improvements with reasonable diligence. Landlord shall employ contractors or
labor at so-called overtime or other premium pay rates if necessary to make any
such repairs, alterations, additions or improvements which Landlord is required
to make hereunder to remedy any condition that (i) results in a denial of access
to the Premises, (ii) constitutes an Emergency, or (iii) interferes in any
material respect with Tenant's ability to conduct its business in the Premises.
In all other cases, Landlord, at Tenant's request, shall perform such repairs,
alterations, additions or improvements using overtime labor, or other premium
pay rates, provided that Tenant gives to Landlord reasonable advance notice of
any such request. In making any repairs, alterations, additions or improvements,
Landlord shall cause its contractors or labor to cover and secure such repair
areas and equipment in such a manner to minimize, to the extent reasonably
practicable, interference with Tenant's business operations. Nothing contained
in this Section 4.3 limits the provisions of Section 14.5 hereof.
ARTICLE 5
WINDOW CLEANING
Section 5.1 Tenant shall not clean any window in the Premises, nor
require, permit, suffer or allow any window in the Premises to be cleaned, from
the outside in violation of Section 202 of the Labor Law, or any other
Requirement, or of the rules of the Board of Standards and Appeals, or of any
other board or body having or asserting jurisdiction; provided, however, that
Tenant shall not be responsible for the manner in which Landlord, or Landlord's
agents, contractors or employees, clean such windows.
Section 5.2 Landlord, during the Term, shall clean the exterior of the
windows of the Premises not less frequently than once every six (6) months.
60
65
ARTICLE 6
LEGAL AND INSURANCE REQUIREMENTS
Section 6.1 Subject to the terms of this Article 6, Tenant, at its sole
cost and expense, shall comply with all Requirements applicable to the Premises
including, without limitation, (i) Requirements that are applicable to the
performance of Alterations by Tenant (or any other Permitted Occupant), (ii)
Requirements that become applicable by reason of Alterations having been
performed by Tenant (or another Permitted Occupant), and (iii) Requirements that
are applicable by reason of the specific nature or type of business operated by
Tenant (or another Permitted Occupant) in the Premises. Tenant shall not be
under any obligation to make any Alteration to the structure of the Building or
to the Building Systems in either case to comply with any Requirement unless (a)
such Alteration is required by reason of Alterations having been performed by
Tenant (or another Permitted Occupant) in a Tenant Area, or (b) such Alteration
is required by reason of the specific nature of the use of such Tenant Area by
Tenant (or another Permitted Occupant) (as opposed to the use of such Tenant
Area for mere general office purposes). Tenant shall not do or permit to be done
any act or thing upon the Premises which is not permitted by this Lease or will
invalidate or be in conflict with an industry-standard "all-risk" insurance
policy (which does not prohibit the use of the Premises for ordinary office
purposes); and shall not do anything, or permit anything to be done, in or upon
the Premises, or bring or keep anything therein, except as now or hereafter
permitted by the Xxx Xxxx Xxxx Xxxx Xxxxxxxxxx, Xxx Xxxx Board of Fire
Underwriters, the Insurance Services Office or other authority having
jurisdiction. Nothing contained in this Section 6.1 limits Landlord's obligation
to perform the Work in compliance with applicable Requirements in accordance
with Article 22 hereof.
Section 6.2 Landlord shall comply with all Requirements applicable to the
Building which affect Tenant's use and occupancy of the Tenant Areas as
contemplated hereby other than such Requirements with respect to which Tenant is
required to comply, subject, however, to Landlord's right to contest the
applicability or legality thereof pursuant to Section 6.3(A) hereof.
Section 6.3 (A) Subject to the terms of this Section 6.3(A), Landlord may
contest, by appropriate proceedings prosecuted diligently and in good faith, the
legality or applicability of, and not comply with, any Requirement with which
Landlord is required to comply under Section 6.2 hereof, provided that and for
so long as Landlord's aforesaid contest and Landlord's aforesaid failure to
comply with any such Requirement (i) does not subject Tenant (or any Tenant
Indemnitees) to imprisonment or to prosecution for a crime, (ii) does not
subject to condemnation or other similar taking in lieu thereof the portions of
the Building to which Tenant has access hereunder, and (iii) does not subject to
suspension or cancellation the certificate of occupancy for the portions of the
Building to which Tenant has access hereunder. Landlord shall give Tenant prior
notice of Landlord's contesting or refusing to comply with any such Requirement
as contemplated by this Section 6.3(A). Landlord shall keep Tenant regularly
advised as to the status of any such proceedings. If (i) Tenant or any Tenant
Indemnitee may be subject to any penalties or fines as a result of such
non-compliance by Landlord, and (ii) the cost of such compliance and such
penalties or fines, and the amount of any liability of Tenant to independent
third parties that is reasonably expected to result from such non-compliance by
61
66
Landlord (in each case as reasonably estimated by Tenant) exceed in the
aggregate Ten Million Dollars ($10,000,000), then Landlord shall furnish to
Tenant either (a) a bond of a surety company reasonably satisfactory to Tenant,
in form and substance reasonably satisfactory to Tenant, and in an amount equal
to the excess of (A) the aggregate amount of the cost, penalties, fines and
liability described in clause (ii) above, over (B) Ten Million Dollars
($10,000,000), or (ii) such other security reasonably satisfactory in all
respects to Tenant; provided, however, that Landlord shall not be required to
provide such bond or other security if (I) Landlord has furnished a similar bond
as required by Requirements to the appropriate Governmental Authority and has
named Tenant (and the other Tenant Indemnitees) as a beneficiary thereunder, or
(II) Landlord then satisfies the Credit Requirement. Tenant (or any Tenant
Indemnitee) shall be deemed subject to prosecution for a crime for purposes of
this Section 6.3(A) if Tenant (or any Tenant Indemnitee) or any of their
officers, directors, partners, shareholders, agents or employees is charged with
a crime of any kind whatsoever, unless such charges are withdrawn ten (10) days
before Tenant (or any Tenant Indemnitee) or such officer, director, partner,
shareholder, agent or employee, as the case may be, is required to plead or
answer thereto.
(B) Subject to the terms of this Section 6.3(B), Tenant may
contest, by appropriate proceedings prosecuted diligently and in good faith, the
legality or applicability of, and not comply with, any Requirement with which
Tenant is required to comply hereunder, provided that and for so long as
Tenant's aforesaid contest and Tenant's aforesaid failure to comply with any
such Requirement (i) does not subject Landlord (or any of Landlord's
Indemnitees) to imprisonment or to prosecution for a crime, (ii) does not
subject to condemnation or other similar taking in lieu thereof any portion of
the Building, and (iii) does not subject to suspension or cancellation the
certificate of occupancy for any portion of the Building. Tenant shall give
Landlord prior notice of Tenant's contesting or refusing to comply with a
Requirement as contemplated by this Section 6.3(B). Tenant shall keep Landlord
regularly advised as to the status of any such proceedings. If (x) Landlord or
any Landlord Indemnitee may be subject to any criminal penalties as a result of
such non-compliance by Tenant, or (y) (i) Landlord or any Landlord Indemnitee
may be subject to any civil fines or penalties as a result of such
non-compliance by Tenant, and (ii) the cost of such compliance, such civil
penalties or fines, and the amount of any liability to independent third parties
that is reasonably expected to result from such non-compliance by Tenant (in
each case as reasonably estimated by Landlord) exceed in the aggregate Five
Hundred Thousand Dollars ($500,000), then, in any such case as described in
clause (x) or clause (y) above, Tenant shall furnish to Landlord either (i) a
bond of a surety company reasonably satisfactory to Landlord, in form and
substance reasonably satisfactory to Landlord, and in an amount equal to the sum
of (A) the cost of such compliance, (B) the criminal or civil penalties or fines
that may accrue by reason of such non-compliance (as reasonably estimated by
Landlord), and (C) the amount of such liability to independent third parties (as
reasonably estimated by Landlord), or (ii) such other security reasonably
satisfactory in all respects to Landlord; provided, however, that Tenant shall
not be required to provide such bond or other security if (I) Tenant has
furnished a similar bond as required by Requirements in a similar amount to the
appropriate Governmental Authority and has named Landlord (and the other
Landlord Indemnitees) as a beneficiary thereunder, or (II) Tenant then satisfies
the Credit Requirement. Without limiting the applicability of the foregoing,
Landlord (or any Landlord Indemnitee) shall be deemed subject to prosecution for
a crime if
62
67
Landlord (or any Landlord Indemnitee), a Lessor, a Mortgagee or any of their
officers, directors, partners, shareholders, agents or employees is charged with
a crime of any kind whatsoever, unless such charges are withdrawn ten (10) days
before Landlord (or any Landlord Indemnitee), such Lessor or such Mortgagee, or
such officer, director, partner, shareholder, agent or employee, as the case may
be, is required to plead or answer thereto.
ARTICLE 7
SUBORDINATION
Section 7.1 (A) Provided that (a) a Mortgagee executes and delivers to
Tenant an agreement suitable for recording in a reasonably acceptable form to
the effect that, if there is a foreclosure of its Mortgage, or a sale in lieu of
or as a result of foreclosure, then such Mortgagee or its successor will not
make Tenant a party defendant to such foreclosure, evict Tenant, disturb
Tenant's possession or rights under this Lease, or terminate or disturb Tenant's
leasehold estate or rights hereunder, and will recognize Tenant as the direct
tenant of such Mortgagee or its successor on the same terms and conditions as
are contained in this Lease, subject to the provisions hereinafter set forth,
provided no Event of Default has occurred and is continuing hereunder, or (b) a
Lessor executes and delivers to Tenant an agreement suitable for recording in a
reasonably acceptable form to the effect that if its Superior Lease terminates
or is terminated for any reason, then such Lessor will not evict Tenant, disturb
Tenant's possession or rights under this Lease, or terminate or disturb Tenant's
leasehold estate or rights hereunder, and will recognize Tenant as the direct
tenant of such Lessor on the same terms and conditions as are contained in this
Lease (subject to the provisions hereinafter set forth), provided no Event of
Default has occurred and is continuing and Lessor will not make Tenant a party
in any action to terminate such Superior Lease or to remove or evict Tenant from
the Premises provided no Event of Default has occurred and is continuing (any
such agreement, or any agreement of similar import, from a Mortgagee or a
Lessor, as the case may be, being referred to herein as a "Nondisturbance
Agreement"), this Lease shall be subject and subordinate to such Superior Lease
and/or to such Mortgage (for so long as the Nondisturbance Agreement continues
to be in full force and effect). Subject to Tenant's receipt of a Nondisturbance
Agreement, this clause shall be self-operative and no further instrument of
subordination shall be required from Tenant to make the interest of any Lessor
or Mortgagee superior to the interest of Tenant hereunder.
(B) Any Nondisturbance Agreement may be made on the
condition that neither the Mortgagee nor the Lessor, as the case may be, nor
anyone claiming by, through or under such Mortgagee or Lessor, as the case may
be, including a purchaser at a foreclosure sale, shall be:
(1) liable for any act or omission of any prior
Landlord, except to the extent such act or omission continues from and after the
date that such Mortgagee or Lessor, or any such Person claiming by, through or
under such Mortgagee or Lessor, succeeds to the interest of the prior Landlord
(it being understood that nothing contained in this clause limits Tenant's right
to terminate this Lease in accordance with the terms of Article 22 hereof), or
63
68
(2) subject to any credit, defense or offsets
which Tenant may have against the prior Landlord (it being understood that
nothing contained in this clause limits Tenant's right to terminate this Lease
in accordance with the terms of Article 22 hereof), or
(3) bound by any payment of Rental which Tenant
may have made to any prior Landlord more than thirty (30) days in advance of the
date upon which such payment was due, or
(4) bound by any obligation to make any payment
to or on behalf of Tenant (including, without limitation, payments due to
Tenant under Section 22.6 hereof), or
(5) bound by any obligation to perform any work
or to make improvements to the Premises, except for (i) repairs and maintenance
pursuant to the provisions of Article 4 hereof, Article 5 hereof and Article 6
hereof, the need for which repairs and maintenance first arises after the date
upon which such owner, Lessor, or Mortgagee is entitled to possession of the
Premises, (ii) repairs to the Premises or any part thereof as a result of damage
by fire or other casualty pursuant to Article 10 hereof, but only to the extent
that such repairs can be reasonably made from the net proceeds of any insurance
actually made available to such owner, Lessor or Mortgagee (with the
understanding, however, that (I) nothing contained in this clause (ii) limits
Tenant's rights to terminate this Lease after the occurrence of a fire or other
casualty under Section 10.1(B) hereof, and (II) such owner, Lessor or Mortgagee
shall have the right to avoid being so bound by Landlord's covenant to rebuild
the Landlord Restoration Items after the occurrence of a fire or other casualty
(regardless of the availability of insurance proceeds therefor) only by giving
notice to Tenant of the election of such owner, Lessor or Mortgagee not to so
rebuild earlier than the later to occur of (X) the date that such owner, Lessor
or Mortgagee is required to give the Casualty Statement for such fire or other
casualty to Tenant, and (Y) the thirtieth (30th) day after the date that such
owner, Lessor or Mortgagee succeeds to the interest of Landlord hereunder), and
(iii) repairs to the Premises as a result of a partial condemnation pursuant to
Article 11 hereof, but only to the extent that such repairs can be reasonably
made from the net proceeds of any award made available to such owner, Lessor or
Mortgagee (with the understanding that nothing contained in this clause (iii)
shall limit Tenant's right to terminate this Lease after the occurrence of a
complete or partial condemnation under Section 11.1 hereof), or
(6) bound by any amendment or modification of
this Lease entered into without its consent after Tenant has received written
notice of such Mortgagee's or Lessor's existence, address and relation to
Landlord;
provided, however, that if the Mortgagee or the Lessor is an Affiliate of
Landlord, then such Mortgagee or Lessor shall not have the right to require that
a Nondisturbance Agreement include the limitations set forth in clauses (1)
through (6) of this Section 7.1(B).
(C) If required by the Mortgagee or the Lessor, within ten
(10) days after notice thereof, Tenant shall join in any Nondisturbance
Agreement to indicate its concurrence with the provisions thereof and its
agreement set forth in Section 7.2 hereof to attorn to such Mortgagee or Lessor,
as the case may be, as Tenant's landlord hereunder. Any
64
69
Nondisturbance Agreement may also contain other terms and conditions as may
otherwise be required by such Mortgagee or Lessor, as the case may be, which do
not increase Tenant's monetary obligations under this Lease, or adversely affect
or diminish the rights, or increase the other obligations, of Tenant under this
Lease, in either case beyond a de minimis degree.
Section 7.2 Subject to Section 7.1 hereof and this Section 7.2, if, at any
time prior to the expiration of the Term, any Superior Lease terminates or is
terminated for any reason or any Mortgagee comes into possession of the Premises
or the estate created by any Superior Lease by receiver or otherwise, then
Tenant agrees to attorn, from time to time, to any such Lessor or Mortgagee or
any other person acquiring the interest of Landlord as a result of any such
termination, or as a result of a foreclosure of the Mortgage or the granting of
a deed in lieu of or as a result of foreclosure, upon the then executory terms
and conditions of this Lease, for the remainder of the Term, provided that such
Lessor, Mortgagee, or other person acquiring the interest of Landlord, as the
case may be, or receiver caused to be appointed by any of the foregoing, shall
then be entitled to possession of the Premises. The provisions of this Section
7.2 shall inure to the benefit of any such owner, Lessor or Mortgagee, shall
apply notwithstanding that, as a matter of law, this Lease may terminate upon
the termination of any Superior Lease, and shall be self-operative upon any such
demand, and no further instrument shall be required to give effect to said
provisions. Tenant, however, upon demand of any such owner, Lessor or Mortgagee,
shall execute, at Tenant's expense, from time to time, instruments reasonably
required by such owner, Lessor or Mortgagee, in recordable form, in confirmation
of the foregoing provisions of this Section 7.2, reasonably satisfactory to any
such owner, Lessor or Mortgagee, acknowledging such attornment and setting forth
the terms and conditions of its tenancy. If a conflict or inconsistency exists
between this Section 7.2 and the corresponding attornment provision of a
Nondisturbance Agreement theretofore executed and delivered by Tenant and the
applicable Mortgagee or Lessor, then the provisions of such Nondisturbance
Agreement shall govern.
Section 7.3 From time to time, within fifteen (15) days following request
by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord, such
Mortgagee or such Lessor a written statement executed by Tenant, in form
reasonably satisfactory to Landlord, such Mortgagee or such Lessor, (1) stating
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth all modifications), (2) setting forth the date to
which the Fixed Rent, Escalation Rent and other items of Rental have been paid,
(3) stating whether or not, to the best knowledge of Tenant (but without having
made any investigation), Landlord is in default under this Lease, and, if
Landlord is in default, setting forth the specific nature of all such defaults,
and (4) as to any other customary matters reasonably requested by Landlord, such
Mortgagee or such Lessor and related to this Lease. Tenant acknowledges that any
statement delivered pursuant to this Section 7.3 may be relied upon by any
purchaser or owner of the Real Property or the Building, or Landlord's interest
in the Real Property or the Building or any Superior Lease, or by any Mortgagee,
or by an assignee of any Mortgagee, or by any Lessor, or by any other party that
has an existing or prospective business relationship with Landlord who has a
reasonable basis for requesting such statement.
65
70
Section 7.4 From time to time, within fifteen (15) days following request
by Tenant, Landlord shall deliver to Tenant a written statement executed by
Landlord, in form reasonably satisfactory to Tenant, (i) stating that this Lease
is then in full force and effect and has not been modified (or if modified,
setting forth all modifications), (ii) setting forth the date to which the Fixed
Rent, Escalation Rent and any other items of Rental have been paid, (iii)
stating whether or not, to the best knowledge of Landlord (but without having
made any investigation), Tenant is in default under this Lease, and, if Tenant
is in default, setting forth the specific nature of all such defaults, and (iv)
as to any other customary matters reasonably requested by Tenant and related to
this Lease. Landlord acknowledges that any statement delivered pursuant to this
Section 7.4 may be relied upon by any assignee of Tenant's interest hereunder,
any subtenant of all or any part of the Premises, or any Person that acquires
Control of Tenant (provided that such assignment, sublease or transfer of
Control is accomplished in a manner that complies with Article 12 hereof), or by
any other party that has an existing or prospective business relationship with
Tenant who has a reasonable basis for requesting such statement.
Section 7.5 Subject to the terms of this Section 7.5, as long as any
Superior Lease or Mortgage exists, Tenant shall not seek to terminate this Lease
by reason of any act or omission of Landlord until Tenant has given written
notice of such act or omission to all Lessors and Mortgagees at such addresses
as shall have been furnished to Tenant by such Lessors and Mortgagees and, if
any such Lessor or Mortgagee, as the case may be, has notified Tenant within ten
(10) Business Days following receipt of such notice of its intention to remedy
such act or omission, until a reasonable period of time has elapsed following
the giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission. The
provisions of this Section 7.5 shall not apply if the Lessor or the Mortgagee is
Landlord or an Affiliate of Landlord.
Section 7.6 Tenant hereby irrevocably waives any and all rights it may
have in connection with any zoning lot merger or transfer of development rights
with respect to the Land, the Building or the Premises, including, without
limitation, any rights it may have to be a party to, to contest, or to execute,
any Declaration of Restrictions (as such term is used in Section 12-10 of the
Zoning Resolution of The City of New York effective December 15, 1961, as
amended) with respect to the Land, the Building or the Premises, which would
cause the Land, the Building and the Premises to be merged with or unmerged from
any other zoning lot pursuant to such Zoning Resolution or to any document of a
similar nature and purpose, and Tenant agrees that this Lease shall be subject
and subordinate to any such Declaration of Restrictions or any other document of
similar nature and purpose now or hereafter affecting the Land, the Building or
the Premises. In confirmation of such subordination and waiver, Tenant shall
execute and deliver promptly any certificate or instrument that Landlord
reasonably may request (it being agreed that Landlord shall pay Tenant for the
reasonable out-of-pocket costs incurred by Tenant in connection with Tenant's
execution of any such certificate or instrument).
Section 7.7 (A) Subject to the terms of this Section 7.7, Landlord shall
record the Statutory Condominium Declaration, and file the corresponding floor
plans for the Building, in either case in accordance with the provisions of
Article 9-B of the Real Property Law, as promptly as reasonably practicable
after (i) the construction of the Building has been completed
66
71
to the extent necessary for Landlord's preparation of building plans and surveys
that are required to subject the Building to the Statutory Condominium
Declaration, (ii) the applicable Governmental Authority has issued a permanent
or temporary certificate of occupancy for the Building, and (iii) Landlord has
obtained such building plans and surveys (it being understood that Landlord
shall use due diligence to obtain such plans and surveys promptly after the
construction of the Building has been completed to the extent necessary
therefor) (the date that Landlord files the Statutory Condominium Declaration
being referred to herein as the "Statutory Condominium Declaration Date").
Landlord shall provide to Tenant from time to time, for Tenant's review and
comment, a copy of Landlord's drafts of the Statutory Condominium Declaration,
the By-Laws and the initial Rules and Regulations for the Condominium (if any)
before the Statutory Condominium Declaration Date. If there exists a dispute
between the parties as to whether the Statutory Condominium Declaration complies
with the requirements set forth in Section 7.7(C) hereof, then either party
shall have the right to submit such dispute to an Expedited Arbitration
Proceeding.
(B) Subject to the terms of this Section 7.7, Tenant's
interest under this Lease shall be subject and subordinate to the Statutory
Condominium Declaration, and all of the terms, conditions and provisions
thereof; provided, however, that Tenant's aforesaid agreement to subject
Tenant's interest under this Lease to the Statutory Condominium Declaration is
conditioned upon (I) the Statutory Condominium Declaration and the By-Laws
complying with the provisions of Section 7.7(C) hereof, (II) Tenant receiving
from the principal board of managers of the Condominium (the "Board of
Managers"), acting on behalf of the owners of Condominium units, and from any
Subordinate Board of Managers, an agreement (a "Condominium Nondisturbance
Agreement"), in form and substance reasonably satisfactory to Tenant, pursuant
to which the Board of Managers, acting on behalf of the aforesaid Condominium
unit owners, and the Subordinate Board of Managers, agree (i) to recognize all
of Tenant's rights under this Lease if the Board of Managers, any Subordinate
Board of Managers, or such unit owners exercise their respective rights under
the Statutory Condominium Declaration or applicable Requirements to exercise any
power of sale with respect to the Premises Unit, (ii) that Tenant's aforesaid
agreement to subject Tenant's interest under this Lease to the Statutory
Condominium Declaration does not (x) diminish any of Tenant's rights under this
Lease, (y) expand any of Tenant's obligations under this Lease, or (z) obligate
Tenant to comply with any of the provisions of the Statutory Condominium
Declaration (except to the extent that such obligations are otherwise expressly
reflected herein), (iii) to give Tenant notice of meetings of the Board of
Managers as contemplated by Section 7.7(C)(7) hereof, and (iv) to give Tenant
notice of meetings of the Subordinate Board of Managers as contemplated by
Section 7.7(C)(8) hereof, and (III) Landlord's executing and delivering to
Tenant and to the Board of Managers a designation that Tenant constitutes a
Protected Tenant. Tenant shall execute and deliver the Condominium
Nondisturbance Agreement to confirm Tenant's agreement to subject Tenant's
interest under this Lease to the Statutory Condominium Declaration. If the
parties dispute whether a proposed Condominium Nondisturbance Agreement conforms
reasonably to the requirements set forth in clauses (i) through (iv) of this
Section 7.7(B), then either party shall have the right to submit such dispute to
an Expedited Arbitration Proceeding.
67
72
(C) (1) Landlord shall cause the Statutory Condominium
Declaration to provide for the establishment of a unit or units of the
Condominium that correspond to the Initial Premises (so that such unit or such
units do not include portions of the Building that are not included in the
Initial Premises) (the unit or units of the Condominium that correspond to the
Initial Premises being referred to herein as the "Premises Unit").
(2) Landlord shall (x) cause the Statutory Condominium
Declaration to contemplate the establishment of a separate Tax Lot or separate
Tax Lots for the Premises Unit, and (y) take the steps required to establish a
separate Tax Lot or separate Tax Lots for the Premises Unit in accordance with
applicable Requirements as expeditiously as reasonably practicable after the
superstructure of the Building is erected (it being understood that (x) such
steps may include, without limitation, Landlord's applying to the New York State
Department of Law for appropriate advice (such as a "no action letter" or a "no
jurisdiction letter"), or Landlord's filing a Statutory Condominium Declaration
before the Building is Substantially Completed, to permit the establishment of
such separate Tax Lot or separate Tax Lots, and (y) such Tax Lot or Tax Lots may
not be assessed separately for purposes of calculating Taxes until a date that
occurs after the date that the Statutory Condominium Declaration becomes
effective).
(3) Landlord shall cause the Statutory Condominium
Declaration to grant to the owner of the Premises Unit the corresponding rights
that Landlord grants to Tenant under this Lease (to the extent that Tenant could
not exercise such rights without such grant to the owner of the Premises Unit)
(including, without limitation, (i) rights of the owner of the Premises Unit to
use the Tenant Areas and other portions of the Building to which Tenant has
access as contemplated hereby, (ii) rights of the owner of the Premises Unit to
repair Shared Building Systems and Premises Systems to the extent that Tenant
has the right to repair Shared Building Systems or Premises Systems hereunder,
(iii) rights of the owner of the Premises Unit to install signage in the
Building to the extent that Tenant has the right to install signage in the
Building hereunder, and (iv) rights of the owner of the Premises Unit to have no
more than four (4) black cars or taxis stand in the Lexington Place Courtyard as
contemplated by Section 29.2 hereof).
(4) Landlord shall cause the Statutory Condominium
Declaration to provide for (x) the Board of Managers measuring the use of Shared
Building Systems or Premises Systems that provide HVAC, water, steam and other
similar services to the Premises Unit based on the meters that Landlord is
installing in the Premises as part of the Work, and (y) the Board of Managers
calculating the charges to the owner of the Premises Unit for such services
based on the readings from the aforesaid meters. Landlord shall cause the
Statutory Condominium Declaration to provide for the fair allocation of other
common expenses among the owners of units of the Condominium based on either (x)
such unit owners' percentage of ownership in the general common elements of the
Condominium, or (y) each such unit owner's level of use of the applicable
Condominium amenity, as reasonably determined by the Board of Managers for each
such common expense.
(5) Landlord shall cause the Statutory Condominium
Declaration to provide that if the owner of the Premises Unit has theretofore
designated that a tenant of the Premises Unit is entitled to the benefits
described in this clause (5), then such tenant
68
73
of the Premises Unit shall have the right to seek appropriate injunctive relief
against the Board of Managers, the Subordinate Board of Managers or the other
owners of Condominium units if (x) the Board of Managers, the Subordinate Board
of Managers or such other owners fail to perform their respective obligations,
or fail to recognize the rights of the owner of the Premises Unit or of Tenant,
in either case as contemplated by the Statutory Condominium Declaration or the
By-Laws, (y) any such failure results in the owner of the Premises Unit being in
default in respect of such owner's obligations to such tenant under the
applicable lease for the Premises Unit or a portion thereof, and (z) such tenant
then has the right to seek such injunctive relief under the applicable lease.
(6) Landlord shall cause the Statutory
Condominium Declaration to provide that neither the Statutory Condominium
Declaration, the By-Laws nor the Rules and Regulations may include provisions
that obligate the owner of the Premises Unit to obtain the consent of the Board
of Managers or the Subordinate Board of Managers for (x) the performance of
alterations in the Premises Unit or to the Premises Systems that in either case
do not have a material and adverse effect on the remainder of the Building, or
(y) any use of the Premises or the Premises Systems that in either case do not
have a material and adverse effect on the remainder of the Building.
(7) Landlord shall cause the Statutory
Condominium Declaration to provide that if the owner of the Premises Unit has
theretofore designated that a tenant of the Premises Unit is entitled to the
benefits described in this clause (7), then (x) such tenant of the Premises Unit
has the right to attend meetings of the Board of Managers solely as an observer
and not as a participant, and (y) the Board of Managers shall give at least two
(2) Business Days of advance notice of such meetings to any such tenant of the
Premises Unit (or such shorter notice that is reasonably practicable in the
event of an Emergency).
(8) Landlord shall cause the Statutory
Condominium Declaration to provide that if (i) the owner of the Premises Unit
has theretofore designated that a tenant of the Premises Unit is entitled to the
benefits described in this clause (8), (ii) the Board of Managers or the
Condominium Declaration has delegated in a material respect the responsibility
for the operation or administration of a portion of the Building that includes
the Entire Premises to a subcommittee or other similar board composed of
representatives of Condominium units that comprise such portion of the Building
(any such subcommittee or other similar board being referred to herein as a
"Subordinate Board of Managers"), (iii) the owners of such Condominium Units are
not the same Person or Affiliates of each other, and (iv) the agenda for a
meeting of the Subordinate Board of Managers includes items that bear upon, in a
material respect, the operation of the portion of the Building that includes the
Entire Premises, then (x) such tenant of the Premises Unit has the right to
attend such meeting of the Subordinate Board of Managers solely as an observer
and not as a participant and solely to the extent necessary for such tenant to
observe the portions of such meeting that address agenda items bearing upon the
operation of the portion of the Building that includes the Entire Premises, and
(y) the Subordinate Board of Managers shall give at least two (2) Business Days
of advance notice of such meetings to any such tenant of the Premises Unit (or
such shorter advance notice that is reasonably practicable in the event of an
Emergency).
69
74
(9) Landlord shall cause the Statutory
Condominium Declaration to provide that if (a) the Condominium terminates (and
the Lease does not also terminate in accordance with its terms), and (b) the
owner of the Premises Unit has theretofore designated that a tenant of the
Premises Unit is entitled to the benefits described in this clause (9), then (i)
such termination of the Condominium will not impair the effectiveness of the
applicable lease of the Premises Unit, (ii) each successor to the owner of the
Premises Unit will recognize all of such tenant's rights under such lease, and
(iii) the interests of such successors shall be subject to the tenant's interest
under such lease.
(10) Landlord shall cause the Statutory
Condominium Declaration to provide that if the owner of the Premises Unit has
theretofore designated that a tenant of the Premises Unit is entitled to the
benefits described in this clause (10), then (x) the Board of Managers shall
give such tenant notice of any default by the owner of the Premises Unit in
respect of such owner's obligations to the Board of Managers or the other
Condominium unit owners under the Statutory Condominium Declaration or the
By-Laws (simultaneously with the Board of Managers giving any such notice of
default to the owner of the Premises Unit), and (y) the Board of Managers shall
accept such tenant's performance of the aforesaid obligations of the owner of
the Premises Unit to the Board of Managers or such other Condominium unit owners
on or prior to the date that the owner of the Premises Unit has the right to
perform such obligations under the Statutory Condominium Declaration or the
By-Laws (a tenant that the owner of the Premises Unit designates as being
entitled to the benefits described in clauses (5), (7), (8) and (9) above, and
this clause (10), being referred to herein as a "Protected Tenant").
(11) Landlord shall cause the Statutory
Condominium Declaration to provide that neither the Statutory Condominium
Declaration nor the By-Laws nor the Rules and Regulations may be amended in a
manner that impairs any of the aforesaid provisions that Landlord has agreed to
include therein or exclude therefrom, unless the owner of the Premises Unit
specifically consents thereto.
(12) Landlord shall cause the Statutory
Condominium Declaration to provide for the calculation of the share of the
general common elements of the Condominium owned by the owner of the Premises
Unit in accordance with Section 339-i(1)(iv) of the Real Property Law.
(13) Landlord shall cause the Statutory
Condominium Declaration to provide that a Protected Tenant has the right to
exercise against the Condominium Association the remedies that are available to
a Protected Tenant (at law or in equity, including, without limitation, the
remedy of specific performance) if the Condominium Association fails to
recognize the rights of a such Protected Tenant as set forth in the Statutory
Condominium Declaration.
(14) Landlord shall cause the Statutory
Condominium Declaration to provide that the owner of each unit of the
Condominium (other than the owner of the Premises Unit) has granted and shall be
required to grant or shall be deemed to have granted to the owner of the
Premises Unit a proxy and irrevocable power of attorney, coupled with an
interest, for use by the owner of the Premises Unit solely for the purpose of
resolving to proceed
70
75
with the repair or restoration of the Building after three-fourths or more of
the Building is destroyed or substantially damaged; provided, however, that (x)
Landlord shall not be liable to Tenant if the owner of a unit in the Condominium
claims that Tenant does not have the right to use such proxy or power of
attorney in lieu of such owner's personal exercise of such owner's rights under
Section 339-cc of the Real Property Law, (y) Landlord shall not be required to
cause the Statutory Condominium Declaration to so provide for the grant of such
proxy and power of attorney to the extent that the New York State Department of
Law objects thereto, and (z) Landlord shall not be required to cause the
Statutory Condominium Declaration to so provide for the grant of such proxy and
power of attorney if (I) Landlord's special condominium counsel makes a
reasonable determination that Landlord's inclusion of such provision in the
Statutory Condominium Declaration raises a material risk that the offering plan
for the residential units of the Condominium, or the sale of such units pursuant
thereto, will violate applicable Requirements, or (II) Landlord's selling agent
for the residential units in the Condominium makes a reasonable determination
that such provision in the Statutory Condominium Declaration is likely to have a
material and adverse effect on the sale of such residential units (it being
understood that Landlord and Tenant each shall have the right to submit to an
Expedited Arbitration Proceeding any dispute between the parties that arises
under this clause (z)).
(15) Landlord shall cause the Statutory Condominium
Declaration to provide that neither the Statutory Condominium Declaration nor
the By-Laws may be amended to (A) increase or impose new obligations on Tenant
(except to the extent that the terms of this Lease already expressly require
Tenant to perform such obligations), or (B) diminish Tenant's other rights
hereunder, unless, in each case, Tenant specifically consents thereto.
(D) (1) Landlord shall designate Tenant as a Protected
Tenant simultaneously with the recording of the Statutory Condominium
Declaration. Landlord shall cause the Board of Managers to acknowledge in
writing to Tenant, simultaneously with the recording of the Statutory
Condominium Declaration, that Landlord has given such designation to the Board
of Managers, and that the Board of Managers recognizes the effectiveness of such
designation.
(2) Tenant shall have the right to seek
injunctive relief against the Board of Managers, the Subordinate Board of
Managers or the other owners of Condominium units, as contemplated by Section
7.7(C)(5) hereof, if (w) the Board of Managers, the Subordinate Board of
Managers or such other Condominium unit owners fail to perform their respective
obligations, or fail to recognize the rights of Landlord or Tenant, in either
case as contemplated by the Statutory Condominium Declaration or the By-Laws,
(x) any such failure results in Landlord being in default in respect of
Landlord's obligations to Tenant under this Lease, (y) Tenant gives Landlord
notice that Tenant intends to seek such injunctive relief, and (z) the Board of
Managers, the Subordinate Board of Managers or such other Condominium unit
owners fail to remedy their aforesaid failure within ten (10) days after Tenant
gives Landlord notice thereof, or, if such failure is of a nature that cannot
with due diligence be remedied within such period of ten (10) days, the Board of
Managers, the Subordinate Board of Managers or such other Condominium owners
fail to commence the remedy of such failure within such period or ten (10) days
or thereafter fail to prosecute such remedy to completion with due diligence.
71
76
(3) Landlord acknowledges that the failure of the
Board of Managers, the Subordinate Board of Managers, or the other owners of
Condominium units to approve a particular matter (to the extent that the Board
of Managers, the Subordinate Board of Managers or such other Condominium unit
owners have the right to approve such matter under the Statutory Condominium
Declaration or the By-Laws) shall not qualify as good reason for Landlord to
refuse to grant a corresponding approval for Tenant as contemplated by this
Lease (in cases where Landlord agrees to not unreasonably withhold Landlord's
consent) if, but for such refusal of the Board of Managers, the Subordinate
Board of Managers or such other Condominium unit owners or the existence of the
condominium form of ownership, Landlord would have otherwise been required to
grant such approval.
(4) If (x) a fire or other casualty affects all
or any portion of the Building, and (y) either (a) Tenant does not have the
right to terminate this Lease by reason of such fire or other casualty, or (b)
Tenant has theretofore waived Tenant's right to terminate this Lease by reason
of such fire or other casualty, then Landlord, in its capacity as owner of the
Premises Unit, shall vote, and Landlord shall cause Affiliates of Landlord that
own Condominium units to vote, to restore the Building (rather than to terminate
the Condominium).
(5) Landlord acknowledges that the covenants set
forth in this Section 7.7 constitute covenants that run with the land, and are
therefore binding on Landlord's successors and assigns.
(6) If any provisions of this Lease contemplate
that the Condominium Association will provide services or otherwise perform
certain obligations, then Landlord shall cause such services to be provided and
such obligations to be performed in either case to the extent that such services
are to be provided or such obligations are to be performed prior to the date
that the Statutory Condominium Declaration becomes effective.
Section 7.8 (A) Tenant acknowledges that Landlord has the right, at any
time and from time to time, to consummate a transaction which results in more
than one (1) Person owning the fee estate in the Premises Unit or a leasehold
estate in the Premises Unit that is immediately superior to Tenant. If more than
one (1) Person owns the fee estate in the Premises Unit or a leasehold estate in
the Premises Unit that is immediately superior to Tenant's leasehold estate,
then, subject to the terms hereof, (w) all of the Persons that own such fee
estate or superior leasehold estate shall be jointly and severally liable for
the obligations of Landlord hereunder (the Persons that own such fee estate or
immediately superior leasehold estate being collectively referred to herein as
"Landlord Owners"), (x) the Landlord Owners shall designate one (1) of the
Landlord Owners that Tenant has the right to contact from time to time to
address day-to-day operation and management issues regarding the Premises
(including, without limitation, approvals of Landlord as contemplated by this
Lease), (y) each Landlord Owner shall be liable for any Landlord Owner's failure
to grant an approval to Tenant under this Lease (in cases where (i) Landlord's
consent is not to be unreasonably withheld in accordance with the terms hereof,
and (ii) such Landlord Owner unreasonably withholds such consent), and (z)
Tenant shall be entitled to rely upon an approval or consent granted by the
Landlord Owner designated to address day-to-day issues as provided in clause (x)
above. Nothing contained in this Section 7.8(A) limits the provision of Section
35.2 hereof or Section 35.6 hereof.
72
77
(B) Landlord shall not permit the Subdivision Agreement to
limit or impair any of Tenant's rights hereunder, or increase or expand any of
Tenant's obligations hereunder.
Section 7.9 Subject to the Financial Disclosure Provisions, if, in
connection with the financing of the Premises, or if in connection with the
entering into of a Superior Lease, any prospective Mortgagee or prospective
Lessor requests modifications to this Lease, then Tenant, promptly after
Landlord's request, shall make such modifications, provided that such
modifications do not increase Tenant's monetary obligations under this Lease, or
adversely affect or diminish the rights, or increase the other obligations of
Tenant under this Lease, beyond a de minimis degree.
Section 7.10 Landlord and Tenant shall each comply with the provisions set
forth in Exhibit 7.10 attached hereto and made a part hereof (such provisions
being referred to herein as the "Financial Disclosure Provisions"). Landlord and
Tenant shall each have the right to submit to an Expedited Arbitration
Proceeding a dispute between the parties regarding the Financial Disclosure
Provisions. Nothing contained in this Section 7.10 (or in the Financial
Disclosure Provisions) limits the provisions of Article 40 hereof.
Section 7.11 (A) Subject to the terms of this Section 7.11, Landlord shall
have the right to require Tenant to consummate the Lease Conversion by giving
notice thereof (the "Conversion Notice") to Tenant at any time during the Term.
Landlord shall not have the right to require Tenant to consummate a Lease
Conversion before the Last Rent Commencement Date. If Landlord has not
theretofore given drafts of any of the Lease Conversion Documents to Tenant as
contemplated by Section 7.11(C) hereof, then Landlord shall give to Tenant,
simultaneously with the Conversion Notice, a draft of the applicable Lease
Conversion Documents (in which case the procedure described in Section 7.11(C)
hereof shall apply thereto). Landlord and Tenant shall consummate the Lease
Conversion on or prior to the later of (x) the thirtieth (30th) day after the
date that Landlord gives the Conversion Notice to Tenant, and (y) the date that
the form of all of the Lease Conversion Documents is determined in accordance
with the procedure described in Section 7.11(C) hereof.
(B) (1) As used herein, the term "Bond Lease" shall mean an
Agreement of Lease, between Landlord, as landlord, and Tenant, as tenant, that
amends and restates the Initial Lease in its entirety, and contains all of the
terms set forth in the Initial Lease with modifications thereto to the extent
necessary to convert the Initial Lease into a "credit-tenant triple-net lease"
that satisfies the S&P Guidelines therefor, it being understood that such
modifications may include, without limitation, provisions to the effect that:
(a) the parties' mere execution and delivery of the Bond
Lease shall not require either Landlord or Tenant to
perform obligations that such Person already performed
under the Initial Lease;
(b) the Term shall expire on the Expiration Date of the
Initial Lease (subject to Tenant's right to exercise
the Renewal Option in accordance with the terms of the
Initial Lease);
73
78
(c) Landlord is relieved of Landlord's obligation to
carry Landlord's Liability Policy;
(d) Tenant shall be required to pay the Rental due
hereunder without any offset or abatement
whatsoever, it being understood that Tenant's
obligation to pay Rental, and Landlord's obligation
to perform its obligations, shall constitute
entirely separate and independent covenants, and,
accordingly, Landlord's performance of Landlord's
obligations hereunder shall not constitute
conditions to Tenant's obligation to pay Rental
hereunder;
(e) Tenant shall be obligated to provide the bonds or
other security described in Section 3.1(B)(6) of the
Initial Lease regardless of whether Tenant is a
Bloomberg Party or Tenant meets the Credit
Requirement;
(f) Tenant shall be required to clear mechanic's liens as
described in Section 3.1(E) of the Initial Lease
during a period shorter than thirty (30) days to the
extent required by the Mortgagee, but in no event less
than ten (10) Business Days;
(g) Tenant shall be obligated to provide the bonds or
other security described in Section 6.3 of the Initial
Lease regardless of whether Tenant is a Bloomberg
Party or Tenant meets the Credit
Requirement;
(h) Subject to the Financial Disclosure Provisions, Tenant
shall be obligated to make any amendments to the Bond
Lease as required from time to time by the Mortgagee,
provided that such amendments shall not increase
Tenant's potential, but reasonably foreseeable,
liability under the Bond Lease by more than Five
Million and 00/100 Dollars ($5,000,000);
(i) Tenant shall be obligated to provide an estoppel
certificate in the form, and to the parties, specified
in the S&P Guidelines;
(j) Tenant shall be required to maintain liability
insurance and property insurance that in either case
meets, at a minimum, the requirements of the S&P
Guidelines;
(k) if the Bond Lease terminates after the occurrence
of a fire or other casualty in accordance with the
terms of Article 10 of the Initial Lease, then
Tenant shall pay to Landlord an amount equal to the
excess of (x) the lesser of (I) the amount of
outstanding debt secured by the Mortgage, and (II)
the amount of debt that the applicable Mortgagee
would have funded initially on a non-
74
79
recourse basis under the loan secured by such Mortgage
if the debt service thereon was an amount equal to the
Fixed Rent (assuming that the lien of the applicable
Mortgage encumbers only the Premises), over (y) the
amount of the insurance proceeds that is available to
the Mortgagee to cover the debt (or would have been
available to the Mortgagee if Landlord carried the
property insurance required by the Initial Lease);
(l) if the Bond Lease terminates with respect to the
entire Premises after the occurrence of a
condemnation or acquisition in lieu thereof, then
Tenant shall pay to Landlord an amount equal to the
excess of (x) the lesser of (I) the amount of
outstanding debt secured by the Mortgage, and (II)
the amount of debt that the applicable Mortgagee
would have funded initially on a non-recourse basis
under the loan secured by such Mortgage if the debt
service thereon was an amount equal to the Fixed
Rent (assuming that the lien on the applicable
Mortgage encumbers only the Premises), over (y) the
amount of the proceeds of such condemnation or
acquisition that is available to the Mortgagee to
cover the debt;
(m) Tenant's obligation to pay Rental for the entire
Premises shall remain in full force and effect (and
the Bond Lease shall not terminate) following a
condemnation or acquisition in lieu thereof which
affects a part (but not all) of the Premises;
(n) if, during the term of the Bond Lease, Landlord
exercises Landlord's right to consummate a Sublease
Recapture in connection with a proposed subletting
by Tenant in accordance with the terms of the
Initial Lease, then (a) in lieu of the termination
of the Bond Lease with respect to the Recapture
Space, Landlord (or Landlord's Affiliate as
designated by Landlord) shall sublease from Tenant
such Recapture Space at a rental at all times equal
to the lesser of (I) the then sublease rental set
forth in the Recapture Statement, and (II) the sum
of (A) the Comparison Amount, and (B) the product
obtained by multiplying (x) the Escalation Rent Per
Square Foot, by (y) the number of square feet of
Rentable Area in the Recapture Space, and (b)
Tenant's obligation to pay Rental under the Bond
Lease shall remain in effect for the balance of the
Term (regardless of the aforesaid sublease of the
Recapture Space by Landlord);
(o) if, during the term of the Bond Lease, Landlord
exercises Landlord's right to consummate an
Assignment Recapture in accordance with the terms
of the Bond Lease, then (x) in lieu of the
termination of the Bond Lease, Tenant shall assign
the
75
80
interest of the tenant hereunder to Landlord or, at
Landlord's option, an Affiliate of Landlord as
designated by Landlord, (y) Tenant shall pay to
Landlord any consideration that Tenant would have been
required to pay to the proposed assignee as set forth
in the Assignment Statement (but Landlord shall not be
required to pay to Tenant any consideration that
Tenant would have received upon consummating the
assignment described in the Assignment Statement), and
(z) Tenant's obligation to pay Rental under the Bond
Lease shall remain in effect for the balance of the
Term (regardless of the aforesaid assignment of the
tenant's interest hereunder to Landlord);
(p) if, during the term of the Bond Lease, Landlord
exercises Landlord's right to consummate a
Subleasehold Assignment Recapture in accordance
with the terms of the Bond Lease, then (x) in lieu
of the termination of the Bond Lease with respect
to the Subleasehold Assignment Space, Tenant shall
cause the applicable Qualifying Subtenant to assign
the interest of the subtenant under the applicable
sublease to Landlord or, at Landlord's option, to
an Affiliate of Landlord as designated by Landlord,
(y) Tenant shall cause such Qualifying Subtenant to
pay to Landlord any consideration that such
Qualifying Subtenant would have been required to
pay to the proposed assignee as set forth in the
Subleasehold Assignment Statement (but Landlord
shall not be required to pay to such Qualifying
Subtenant any consideration that such Qualifying
Subtenant would have received upon consummating the
assignment described in the Subleasehold Assignment
Statement), and (z) Tenant's obligation to pay
Rental under the Bond Lease shall remain in effect
for the balance of the Term (regardless of the
aforesaid assignment of the Qualifying Subtenant's
interest under such sublease to Landlord);
(q) Tenant shall have no right to the abatement of
Rental as set forth in Section 14.5 hereof;
(r) Landlord shall have the right to include in
Operating Expenses all costs associated with
operating, managing and repairing the Premises,
including, without limitation, the cost of capital
improvements in Operating Expenses (and,
accordingly, the provisions of Section 26.4(E) of
the Initial Lease shall not apply in the Bond
Lease);
(s) Tenant shall be required to pay monthly installments
to Landlord on account of Taxes to the extent required
by a Mortgagee;
76
81
(t) to the extent required by the S&P Guidelines,
Tenant shall be required to indemnify Landlord, and
hold Landlord harmless, from and against any and
all losses, liabilities, damages, costs and
expenses (including, without limitation, reasonable
attorneys' fees and expenses) that Landlord incurs
by reason of the presence of hazardous materials in
the Premises;
(u) Landlord, at any time after the Lease Conversion
Date, shall have the right to reverse the Lease
Conversion, in which case (i) the parties shall
amend and restate the Bond Lease in the form of the
Initial Lease for the remainder of the Term of the
Initial Lease (subject to (x) Tenant's right to
extend the Term of the Initial Lease for the
Renewal Term if Tenant exercises the Renewal
Option, and (y) Landlord's right to again exercise
Landlord's right to consummate the Lease Conversion
as contemplated by this Section 7.11), and (ii) the
Guaranty and the Reimbursement Agreement shall
terminate and be of no further force and effect
(except for obligations thereunder that accrued
prior to the date that Landlord so reverses the
Lease Conversion);
(v) subject to the Financial Disclosure Provisions, Tenant
shall provide Landlord from time to time with
information regarding Tenant (including, without
limitation, Tenant's audited financial statements) and
the Premises in either case to the extent required to
comply with S&P Guidelines; and
(w) if, at any time, Landlord or Landlord's
representative exercises its right to reject the
Bond Lease under the Bankruptcy Code, then Tenant
shall make an election under the Bankruptcy Code to
remain in occupancy of the Premises to the extent
that Tenant has the right to make such election
under the Bankruptcy Code at such time,
notwithstanding Landlord's rejection of the Bond
Lease;
provided, however, that Landlord shall have the right to require Tenant to
execute and deliver the Bond Lease taking into account some (but not all) of the
modifications described in clauses (a) through (w) above. Landlord shall have
the right to exclude from the Bond Lease the provisions of the Initial Lease
that describe obligations that have been fully performed or that otherwise are
inapplicable (so that, for example, Landlord may exclude the provisions of the
Initial Lease governing Landlord's performance of the Pre-Delivery Work to the
extent that Landlord has theretofore performed the Pre-Delivery Work in
accordance with the terms hereof).
(2) As used herein, the term "Enforceability
Opinion" shall mean a written opinion for the benefit of Tenant, in reasonable
and customary form, which provides that (i) each Guarantor and the Reimbursement
Obligor is duly organized, (ii) each Guarantor duly authorized the execution and
delivery of the Guaranty, (iii) the Reimbursement
77
82
Obligor duly authorized the execution and delivery of the Reimbursement
Agreement, (iv) each Guarantor duly executed and delivered the Guaranty, (v) the
Reimbursement Obligor duly executed and delivered the Reimbursement Agreement,
(vi) the Guaranty is enforceable against the Guarantor in accordance with its
terms, and (vii) the Reimbursement Agreement is enforceable against the
Reimbursement Obligor, in each case subject to reasonable and customary
qualifications, limitations and assumptions.
(3) As used herein, the term "Fairness Opinion"
shall mean a written opinion for the benefit of Tenant, in reasonable and
customary form, which indicates that the Guarantor has received fair
consideration for its execution and delivery of the Guaranty.
(4) As used herein, the term "Guarantor" shall
mean, collectively, (x) Alexander's, and (y) a Person designated by Landlord
that meets the Guaranty Credit Requirements on the date that the Guaranty is
executed and delivered; provided, however, that if, on the date that the
Guaranty is executed and delivered, Alexander's satisfies the Guaranty Credit
Requirements, then "Guarantor" shall mean only Alexander's.
(5) As used herein, the term "Guaranty" shall
mean a guaranty, made by the Guarantor in favor of Tenant, pursuant to which the
Guarantor guaranties the payment and performance of the obligations of the
Reimbursement Obligor under the Reimbursement Agreement (it being understood
that (a) if the Guarantor includes more than one (1) Person, then the Persons
that constitute Guarantor shall have joint and several liability under the
Guaranty, and (b) Landlord shall have the right, at any time, and from time to
time, to cause a Person that satisfies the Guaranty Credit Requirements to
assume, at Landlord's option, either (x) all of the obligations of the Guarantor
under the Guaranty, or (y) the obligations of the Guarantor under the Guaranty
to the extent accruing from and after the date of such assumption, in which case
the Guarantor (and any other Person that theretofore assumed the obligations of
the guarantor under the Guaranty) shall be released from liability under the
Guaranty to the extent such Person assumes such obligations).
(6) As used herein, the term "Guaranty Credit
Requirements" shall mean the requirements that the Guarantor (i) has a Credit
Rating of at least BBB issued by Standard & Poor's (or such other designation
that is the same as, or substantially the same as, a BBB rating issued by
Standard & Poor's as of the date hereof), (ii) has had such Credit Rating for at
least one (1) year, and (iii) is not on credit watch.
(7) As used herein, the term "Initial Lease"
shall mean this Lease on the day immediately prior to the Lease Conversion
Date.
(8) As used herein, the term "Landlord Admission
Agreement" shall mean an agreement, among the Tenant Partner and the constituent
owners of equity interests in Landlord on the date that the Lease Conversion
occurs, pursuant to which (i) the Tenant Partner is admitted as an equity owner
in Landlord on the date that the Lease Conversion occurs, (ii) subject to clause
(iii) below, the Tenant Partner shall not have the right to receive any
distributions from Landlord (from operating cash flow, capital events or on
liquidation), (iii) if Guarantor defaults (beyond the expiration of any
applicable grace period) in
78
83
the payment of an amount due to Tenant under the Guaranty, then the Tenant
Partner shall be deemed to have made a loan to Landlord in an amount equal to
the sum of (x) the amount that Guarantor so failed to pay to Tenant, and (y)
interest thereon calculated at the Applicable Rate from the date that Guarantor
failed to make such payment to the date that Landlord repays such loan, (iv) if
the Tenant Partner is deemed to have made any such loan to Landlord, then
Landlord shall make payments to the Tenant Partner on account thereof to retire
such loan (including, without limitation, accrued and unpaid interest thereon)
in full prior to Landlord making any distributions or any other payments to any
of the other equity owners of Landlord or any of their respective Affiliates (it
being understood that the Tenant Partner's aforesaid right to receive the
repayment of such loan before Landlord makes distributions or any other payments
to other equity owners in Landlord or any of their respective Affiliates shall
be the Tenant Partner's sole remedy for the repayment of any such loan, except
to the extent otherwise expressly provided in this clause (8)), (v) subject to
the terms of this clause (8), the Tenant Partner, in its capacity as an equity
owner in Landlord, shall not have the right to participate in any respect in the
management of the business and affairs of Landlord, or to participate in any
vote with respect to which the other equity owners in Landlord are
participating, except that the other equity owners in Landlord shall agree to
not amend the agreement among the constituent owners of Landlord in a manner
that dilutes the Tenant Partner's right to receive distributions from Landlord
in repayment of loans that the Tenant Partner is deemed to have made to Landlord
as contemplated by clauses (iii) and (iv) above or that otherwise materially and
adversely affects the Tenant Partner's rights as contemplated by the Landlord
Admission Agreement, (vi) the Tenant Partner, in its capacity as an equity owner
in Landlord, shall not have any obligation to make any capital contributions or
loans to Landlord (and the Tenant Partner's equity ownership interest in
Landlord shall not be subject to being reduced by reason of the Tenant Partner's
failure to make capital contributions or loans to Landlord), (vii) if (I)
Guarantor defaults (beyond the expiration of any applicable grace period) under
the Guaranty in the payment to Tenant of an amount equal to or greater than Ten
Million Dollars ($10,000,000), and (II) the property manager for the Premises is
Landlord or an Affiliate of Landlord, then the Tenant Partner shall have the
right to cause Landlord to engage a third-party property manager as reasonably
designated by the Tenant Partner as the property manager for the Premises, and
(viii) if Guarantor defaults (beyond the expiration of any applicable grace
period) under the Guaranty in the payment to Tenant of an amount equal to or
greater than Ten Million Dollars ($10,000,000), then the Tenant Partner shall
have the right to (I) assume day-to-day management responsibility for the
business and affairs of Landlord with respect to the Premises (it being
understood that (i) the equity owners of Landlord other than the Tenant Partner
shall retain the right to consummate a refinancing of the Premises without the
approval of the Tenant Partner, and (ii) the Tenant Partner shall not have the
right to consummate a refinancing of the Premises without the approval of such
other equity owners of Landlord), and (II) subject to the Financial Disclosure
Provisions, cause Landlord to sell the Premises to a third party for an amount
that is not less than the fair market value of the Premises (with the
understanding that (X) if Tenant's Affiliate is the purchaser of the Premises,
then the fair market value thereof shall be determined using a baseball
arbitration procedure, and (Y) if the Tenant Partner uses an independent and
reputable real estate broker or investment banker for the sale of the Premises
to a third party that is not Tenant's Affiliate, and such real estate broker or
investment banker conducts such sale in a manner that is reasonably likely to
result in the sale of the Premises at a market price using a bidding or auction
procedure, then Landlord shall not have
79
84
the right to challenge such price as being less than the fair market value of
the Premises); provided, however, that if there exists a bona fide dispute
between Landlord or Guarantor and Tenant regarding the occurrence of any such
default under the Guaranty, then the Tenant Partner shall not have the right to
take the actions described in clauses (vii) and (viii) above unless and until
Tenant obtains a final non-appealable judgment to the effect that such default
under the Guaranty has occurred.
(9) As used herein, the term "Lease Conversion"
shall mean, subject to the terms of this Section 7.11(B)(9), a transaction where
(i) Landlord and Tenant execute and deliver the Bond Lease, (ii) the constituent
owners of equity interests in Landlord and Tenant execute and deliver the
Landlord Admission Agreement, (iii) Reimbursement Obligor and Tenant execute and
deliver the Reimbursement Agreement, (iv) the Guarantor executes and delivers to
Tenant the Guaranty, (v) a reputable investment bank of national recognition as
reasonably designated by Landlord issues the Fairness Opinion, and (vi) a
reputable law firm of national recognition as reasonably designated by Landlord
issues the Enforceability Opinion. Tenant shall have no obligation to consummate
the Lease Conversion unless and until Tenant receives (u) the Enforceability
Opinion, duly executed and delivered by the aforesaid law firm, (v) the Landlord
Admission Agreement, duly executed by the constituent owners of equity interests
in Landlord, (w) the Reimbursement Agreement, duly executed and delivered by the
Reimbursement Obligor, (x) the Guaranty, duly executed and delivered by the
Guarantor, and (y) the Fairness Opinion, duly executed and delivered by the
aforesaid investment bank.
(10) As used herein, the term "Lease Conversion
Date" shall mean the date that the Lease Conversion becomes effective in
accordance with the terms of this Section 7.11.
(11) As used herein, the term "Lease Conversion
Documents" shall mean the Bond Lease, the Reimbursement Agreement, the Guaranty
and the Landlord Admission Agreement.
(12) As used herein, the term "Reimbursement
Agreement" shall mean an agreement, between the Reimbursement Obligor and
Tenant, pursuant to which the Reimbursement Obligor agrees to pay to Tenant,
from time to time, any amount that Tenant is required to pay to Landlord or
third parties under the Bond Lease (by virtue of the modifications to the
Initial Lease described in clauses (a) through (w) of Section 7.11(B)(1) hereof,
or other modifications to the Initial Lease that are required to accomplish the
Lease Conversion), to the extent such amount exceeds the amount that Tenant
would have been otherwise required to pay to Landlord or third parties under the
Initial Lease, including, without limitation: (i) the amount that Tenant pays to
Landlord by reason of any amendment to the Bond Lease that a Mortgagee requires
(less the amounts, if any, that Tenant would have been otherwise required to pay
for such amendment under the Initial Lease); (ii) if, during the term of the
Bond Lease, Landlord exercises its right to recapture using a sublease as
contemplated by Section 7.11(B)(1)(n) or using an assignment of a sublease as
contemplated by Section 7.11(B)(1)(p), any amount that the subtenant fails to
pay to Tenant under the applicable sublease (less the rental collected by Tenant
from any sub-subtenant or occupant of the recaptured space); (iii) any items of
additional rent
80
85
that Tenant pays to Landlord under the Bond Lease that exceeds the amounts that
Tenant would have been required to pay for the corresponding items (if any)
under the Initial Lease; (iv) the amount paid by Tenant to Landlord if the Bond
Lease is terminated following a casualty or condemnation, as contemplated by
clause (k) or clause (l) of Section 7.11(B)(1) hereof; (v) the amount of Rental
that Tenant pays to Landlord which would not have been payable under the terms
of the Initial Lease as result of a casualty or a condemnation or acquisition by
a Governmental Authority; (vi) the amount of Rental that Tenant pays to Landlord
which would not be payable under the Initial Lease pursuant to the terms of
Section 14.5 hereof; (vii) the cost of providing the bonds or other security
pursuant to the terms of the Bond Lease that Tenant would not be required to
provide under the Initial Lease, (viii) if a fire or other casualty occurs, the
excess of (a) the amount of proceeds of property insurance for the Tenant
Restoration Items that the Mortgagee has the right to retain under the Bond
Lease, over (b) such proceeds that Landlord or the Mortgagee has the right to
retain under the Initial Lease, and (ix) if a condemnation of the Premises or a
portion thereof occurs, any portion of the condemnation award that (X) would
have been payable to Tenant under the Initial Lease, and (B) the Mortgagee has
the right to retain under the Bond Lease. Landlord and Tenant acknowledge that
the Reimbursement Agreement shall provide for (x) a quarterly reconciliation of
the amounts due from the Reimbursement Obligor to Tenant thereunder, with
interest thereon, (y) the Reimbursement Obligor being obligated to make the
reimbursements contemplated by the Reimbursement Agreement notwithstanding the
occurrence of an Event of Default under the Bond Lease, and (z) the
Reimbursement Obligor being directed to use the reimbursement payments due to
Tenant under the Reimbursement Agreement to pay any amounts that are then due to
Landlord under the Bond Lease and in respect of which an Event of Default has
occurred. Landlord and Tenant also acknowledge that the Reimbursement Agreement
shall provide that if, at any time during the term of the Bond Lease, (x) Tenant
engages an independent, qualified and reputable third party environmental
consultant with whom Tenant has had no prior business relationship to perform an
analysis of hazardous materials located at the Premises, (y) neither Tenant, nor
any Person claiming by, through or under Tenant is responsible for such
hazardous materials being located at the Premises, and (z) such consultant
concludes that there exists a material likelihood that Tenant's liability to
Landlord for the indemnity described in Section 7.11(B)(1)(t) hereof will exceed
Ten Million Dollars ($10,000,000), then the Reimbursement Obligor shall be
required to post a bond or other security reasonably satisfactory to Tenant in
the amount of such excess to secure the Reimbursement Obligor's obligation to so
indemnify Tenant.
(13) As used herein, the term "Reimbursement
Obligor" shall mean Landlord or, at Landlord's option, an Affiliate of Landlord
that Landlord designates.
(14) As used herein, the term "S&P Guidelines"
shall mean, at any particular time, the guidelines then issued by Standard &
Poor's for rated financings of credit tenant leases.
(15) As used herein, the term "Tenant Partner"
shall mean Tenant, or, if Landlord so requests in connection with the
consummation of the Lease Conversion, a bankruptcy-remote single-purpose entity
that is wholly-owned by Tenant.
81
86
(C) Landlord shall have the right to provide to Tenant
drafts of all or any of the Lease Conversion Documents for Tenant's review
(regardless of whether Landlord has theretofore given the Conversion Notice to
Tenant). If Landlord gives any such drafts of the Lease Conversion Documents to
Tenant, then Landlord and Tenant shall work diligently and in good faith to
agree on the form and substance thereof. Landlord and Tenant shall agree to the
form of the Lease Conversion Documents to the extent that the terms thereof are
consistent with the principles set forth in this Section 7.11. If Landlord and
Tenant so agree on the form of any of the Lease Conversion Documents, then such
form shall constitute the applicable Lease Conversion Document for purposes
hereof (except that Landlord, from time to time, shall have the right to submit
to Tenant revised drafts of all or any of the Lease Conversion Documents, in
which case the procedures described in this Section 7.11(C) shall again apply).
If Landlord and Tenant do not agree on the form of any such Lease Conversion
Document within one hundred twenty (120) days after the date that Landlord so
provides Tenant with a draft thereof, then Landlord shall have the right to
submit the determination of the issues regarding the applicable Lease Conversion
Document to an Expedited Arbitration Proceeding (it being understood that the
arbitrator in any such Expedited Arbitration Proceeding shall be a partner in a
law firm of national recognition with at least ten (10) years of current
experience in representing financial institutions in rated mortgage loan
transactions where (x) the security for the mortgage loan is a credit-tenant
triple-net lease, and (y) the mortgage is held by a real estate mortgage
investment conduit).
(D) If Landlord exercises Landlord's right to require Tenant
to consummate a Lease Conversion as contemplated by this Section 7.11, then,
subject to the Financial Disclosure Provisions, Tenant shall cooperate
reasonably with Landlord in connection therewith. Tenant's aforesaid cooperation
with Landlord may include, without limitation, (a) Tenant's causing Tenant's
representatives to attend meetings or presentations with a prospective Mortgagee
or any underwriters of or investors in any securitization thereof (subject,
however, to the Financial Disclosure Provisions), and (b) Tenant's executing and
delivering, or causing to be executed and delivered, any additional documents
that are reasonably required by Landlord in connection with the Lease
Conversion, to the extent that such additional documents do not impose any
additional financial obligations on Tenant or impair any of Tenant's rights
hereunder in any material respect or expand any of Tenant's other obligations
hereunder in any material respect (it being understood that such additional
documents may include, without limitation, an opinion of reputable legal counsel
with a national reputation (v) to the effect that Tenant is duly organized under
the laws of the jurisdiction of its formation, (w) to the effect that Tenant
duly authorized the execution and delivery of the Lease, (x) to the effect that
Tenant duly executed and delivered the Lease, (y) to the effect that the Lease
is enforceable against Tenant, and (z) regarding other matters reasonably and
customarily requested by the Mortgagee, in each case subject to reasonable and
customary qualifications, limitations and assumptions). Landlord shall also
cooperate reasonably with Tenant to provide any other documentation reasonably
requested by Tenant to effectuate the Lease Conversion as contemplated hereby.
(E) Subject to this Section 7.11(E), if Landlord exercises
Landlord's rights as set forth in this Section 7.11 to consummate the Lease
Conversion, then Landlord, simultaneously with the consummation of the Lease
Conversion, shall cause the owners of the
82
87
equity interests in Landlord to grant to Tenant a first-priority security
interest in such equity interests (other than the equity interests in Landlord
that Tenant owns by virtue of the Landlord Admission Agreement), to secure the
obligations of the Reimbursement Obligor under the Reimbursement Agreement and
the obligations of the Guarantor under the Guaranty. Tenant shall have the right
to realize upon such security interest, or otherwise exercise Tenant's power of
sale thereof, only if Guarantor defaults under the Guaranty in respect of more
than Ten Million Dollars ($10,000,000). Landlord and Tenant shall prepare the
documentation reasonably necessary for such grant of such first-priority
security interest in accordance with the terms of this Section 7.11 that govern
the preparation of the Lease Conversion Documents. Landlord shall use reasonable
efforts to consummate its rated financing under the S&P Guidelines in a manner
that permits the owners of the equity interests in Landlord to grant to Tenant a
first-priority security interest in such equity interests as contemplated by
this Section 7.11(E). Tenant shall not have the right to the grant of such
first-priority security interest in connection with the Lease Conversion if such
grant precludes Landlord from consummating a rated financing in accordance with
the S&P Guidelines. Landlord and Tenant acknowledge that the Lease Conversion
Documents shall provide that if such grant of such first-priority security
interest (x) does not preclude Landlord from consummating such rated financing
in accordance with the S&P Guidelines, and (y) results in the cost to Landlord
of such rated financing exceeding the cost to Landlord for such financing that
Landlord would have otherwise incurred, then Tenant shall pay to Landlord an
amount equal to fifty percent (50%) of such excess from time to time during the
period that such financing remains outstanding (with the understanding that
Tenant shall not be entitled to reimbursement for such payment pursuant to the
Reimbursement Agreement). Landlord shall include in any request for any such
payment reasonable documentation that supports Landlord's calculation of such
excess.
Section 7.12 Landlord hereby represents and warrants to Tenant that (i)
Landlord owns the fee interest in the Land, (ii) no Superior Leases exist as of
the date hereof, and (iii) the only mortgages encumbering the Land as of the
date hereof are as described on Exhibit 7.12 attached hereto and made a part
hereof (collectively, the "Existing Mortgages"). Landlord, on or prior to the
date that the erection of the structural steel for the Building commences, shall
either (x) cause the holders of the Existing Mortgages to execute and deliver a
Nondisturbance Agreement, (y) cause the Existing Mortgages to be discharged of
record, or (z) cause the Existing Mortgages to be subordinated to this Lease.
Landlord shall not lease any of the equipment that is incorporated into the
Building as part of the Work from the vendor thereof (with the understanding,
however, that Landlord shall not be precluded from consummating a Superior Lease
in accordance with the terms hereof). Landlord represents and warrants to Tenant
that to Landlord's knowledge any Taxes that have heretofore become due and
payable have been paid.
Section 7.13. (A) Subject to the terms of this Section 7.13(A), Landlord
shall have the right to require that Tenant obtain a long-term debt rating from
a rating agency with a national reputation that is designated by Tenant and
reasonably approved by Landlord (any such rating agency being referred to herein
as the "First Rating Agency"). Landlord hereby acknowledges that either Standard
& Poor's or Xxxxx'x may serve as the First Rating Agency for purposes hereof.
Tenant shall provide appropriate financial information regarding Tenant to the
First Rating Agency from time to time to the extent necessary for the First
Rating Agency to rate
83
88
Tenant during the Term. Tenant shall provide to Landlord, promptly after
Landlord's request from time to time, a statement of the long-term debt rating
then issued by the First Rating Agency in respect of Tenant. Tenant shall obtain
such financial rating from the First Rating Agency, and maintain such financial
rating from the First Rating Agency, in either case at Tenant's sole cost and
expense. Tenant shall not be required to obtain such financial rating from the
First Rating Agency earlier than the ninetieth (90th) day after the date that
Landlord requests that Tenant obtain such financial rating. Tenant shall not be
required to maintain a financial rating from the First Rating Agency during the
Term if Tenant's financial condition deteriorates to the extent that the First
Rating Agency would no longer provide a financial rating for Tenant.
(B) Subject to the terms of this Section 7.13(B) and the
Financial Disclosure Provisions, Landlord shall have the right to request that
Tenant obtain a second long-term debt rating from a rating agency with a
national reputation that is designated by Tenant (any such rating agency being
referred to herein as the "Second Rating Agency"). The Second Rating Agency
shall not be the same as the First Rating Agency. Landlord shall not make such
request that Tenant obtain such second financial rating unless (x) Landlord is
then engaged in (or otherwise making reasonable preparations for) arranging
financing for the Building (or a portion thereof comprised of at least the Basic
Premises) (other than the initial construction financing for the Building), and
(y) Landlord then has a reasonable basis for concluding that Tenant's obtaining
such second financial rating (I) is necessary for Landlord to obtain such
financing, or (II) will reduce to a material extent Landlord's financing costs
for the Building. Tenant shall select the Second Rating Agency from a group of
at least three (3) financial rating agencies, with a national reputation and
that charge commercially reasonable rates, as reasonably designated by Landlord
in the notice that Landlord gives to Tenant pursuant to which Landlord exercises
Landlord's rights under this Section 7.13(B); provided, however, that Landlord
may designate less than three (3) such agencies to the extent that there are
then less than three (3) such agencies with a national reputation. Any such
request made by Landlord shall not be effective for purposes of this Section
7.13(B) unless Landlord includes in such request a description in reasonable
detail explaining Landlord's conclusion that Tenant's obtaining such second
financial rating will make financing available to Landlord or reduce to a
material extent Landlord's financing costs for the Building (such financing as
so described by Landlord being referred to herein as the "Applicable Financing";
the term of the financing so described by Landlord being referred to herein as
the "Applicable Financing Term"). Tenant shall pay the cost of obtaining (and
maintaining during the Term) any such second financial rating from the Second
Rating Agency. If Tenant obtains such second financial rating from the Second
Rating Agency, then (i) Tenant shall provide appropriate financial information
regarding Tenant to the Second Rating Agency from time to time to the extent
necessary for the Second Rating Agency to rate Tenant during the Term, and (ii)
Tenant shall provide to Landlord, promptly after Landlord's request from time to
time, a statement of the rating then issued by the Second Rating Agency in
respect of Tenant. If (x) Landlord so requests that Tenant obtain a second
financial rating from the Second Rating Agency as contemplated by this Section
7.13(B), and (y) Tenant does not obtain such second financial rating from the
Second Rating Agency within one hundred twenty (120) days after Landlord's
aforesaid request, then Tenant shall pay to Landlord, as additional rent, on a
monthly basis during the Applicable Financing Term, an amount equal to the
excess of (a) the financing costs that Landlord incurs for the Premises during
the Applicable Financing Term, over (b) the
84
89
financing costs that Landlord would have incurred for the Premises under the
Applicable Financing for the Applicable Financing Term if Tenant had obtained
such second financial rating from the Second Rating Agency as contemplated by
this Section 7.13(B) (it being understood that if the Mortgage granted by
Landlord in connection with such financing encumbers portions of the Building
that do not constitute the Premises, then the costs of such financing shall be
allocated reasonably to the Premises for purposes of determining the aforesaid
amount due from Tenant to Landlord). Landlord shall provide Tenant from time to
time reasonable supporting documentation for the aforesaid amount due from
Tenant to Landlord under this Section 7.13(B). Tenant shall not be required to
obtain or maintain a financial rating from the Second Rating Agency during the
Term if Tenant's financial condition deteriorates to the extent that the Second
Rating Agency would no longer provide a financial rating for Tenant (it being
understood that if Tenant is not required to obtain or maintain such financial
rating, then Tenant shall not be required to thereafter make the payments to
Landlord as provided in this Section 7.13(B)).
(C) Either Landlord or Tenant shall have the right to submit
to an Expedited Arbitration Proceeding any dispute between the parties arising
under this Section 7.13.
ARTICLE 8
RULES AND REGULATIONS
Section 8.1 Tenant shall comply with, and Tenant shall cause Tenant's
contractors, employees, agents, visitors, invitees and licensees to comply with,
the Rules and Regulations. Tenant shall have the right to dispute the
reasonableness of any additional Rule or Regulation hereafter adopted by
Landlord. If Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter adopted by Landlord, then the dispute shall be determined
by an Expedited Arbitration Proceeding pursuant to the provisions of Section
35.6 hereof. Landlord shall (i) not unreasonably withhold or delay its consent
to any approval required under the Rules and Regulations, and (ii) exercise its
judgment in good faith in any instance providing for the exercise of its
judgment in the Rules and Regulations. If any conflict or inconsistency exists
between the Rules and Regulations and the provisions of this Lease, then the
provisions of this Lease shall control. Landlord shall not have the right to
adopt Rules and Regulations that affect Tenant's performance of the Initial
Alterations as contemplated hereby.
Section 8.2 Subject to the terms of this Section 8.2, Landlord shall have
no duty or obligation to enforce the Rules and Regulations against any other
occupant of the Building, and Landlord shall not be liable to Tenant for
violation thereof by any other occupant, its employees, agents, visitors or
licensees. If a particular Rule or Regulation is of a nature that applies to
portions of the Building other than the Premises, then Landlord shall not
enforce such Rule or Regulation against Tenant if such Rule or Regulation is not
then being enforced against the other occupants of the Building. If (i) another
occupant in the Building fails to comply with a Rule and Regulation that is (x)
applicable to Tenant under this Lease, and (y) is applicable to such other
occupant because such Rule or Regulation is of a nature that applies to portions
of the Building other than the Premises, (ii) such failure by such other
occupant either (a) violates the terms of a lease between Landlord and such
occupant, or (b) violates such other occupant's obligations to the Condominium,
(iii) such failure by such other occupant has a material adverse effect on
85
90
Tenant's ability to conduct business in the Premises, (iv) Tenant is then in
compliance with such Rule or Regulation, and (v) Tenant requested that Landlord
enforce Landlord's rights (or to cause the Condominium Association to enforce
the Condominium Association's rights) against such other occupant in respect of
such failure, then Landlord shall use due diligence to enforce Landlord's rights
(or to cause the Condominium Association to enforce the Condominium
Association's rights) against such other occupant in respect of such failure
(including, if necessary, the institution of appropriate proceedings against
such other occupant) promptly after Tenant's request to Landlord therefor.
Tenant shall reimburse Landlord (or the Condominium Association), from time to
time, for the reasonable out-of-pocket costs and expenses incurred by Landlord
(or the Condominium Association) in connection with Landlord's using due
diligence to enforce Landlord's rights (or the Condominium Association's using
due diligence to enforce the Condominium Association's rights) against such
other occupant as contemplated by this Section 8.2. Landlord shall include in
any such request for reimbursement reasonable supporting information therefor.
Landlord shall consult (or shall cause the Condominium Association to consult)
from time to time with Tenant in connection with Landlord's using due diligence
(or the Condominium Association's using due diligence) to enforce the aforesaid
rights of Landlord or the Condominium Association against such other occupant as
contemplated by this Section 8.2.
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 9.1 (A) Any employee of Landlord to whom any property is entrusted
by or on behalf of Tenant (other than in the performance of Landlord's
obligations hereunder) shall be deemed to be acting as Tenant's agent with
respect to such property and Landlord shall not be liable for any damage to or
theft of property of Tenant (other than in the performance of Landlord's
obligations hereunder or to the extent deriving from negligence or willful
misconduct on the part of Landlord (or an employee of Landlord acting within the
scope of his or her employment)).
(B) Subject to the terms of this Section 9.1(B), if at any
time any windows of the Premises are closed, darkened or bricked-up due to any
Requirement or by reason of repairs, maintenance, alterations, or improvements
to the Building, then Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor,
nor abatement or diminution of Rental, nor shall the same release Tenant from
its obligations hereunder, nor constitute an actual or constructive eviction, in
whole or in part, by reason of inconvenience or annoyance to Tenant, or injury
to or interruption of Tenant's business, or otherwise, nor impose any liability
upon Landlord or its agents. Landlord shall not have the right to close, darken
or brick-up any window of the Premises permanently except to the extent required
by Requirements. If at any time the windows of the Premises are closed, darkened
or bricked-up, and such closing, darkening or bricking-up is not permanent,
then, unless Tenant is required pursuant to the Lease to perform the repairs,
maintenance, alterations, or improvements, or to comply with the Requirements
which resulted in such windows being closed, darkened or bricked-up, Landlord
shall perform such repairs, maintenance, alterations or improvements and comply
with the applicable Requirements with all reasonable diligence and otherwise
take such action as may be reasonably necessary to minimize the period during
which
86
91
such windows are closed, darkened, or bricked-up. Landlord shall not have
the right to install any signage, billboards or other similar elements designed
for purposes of promotion on the exterior of the Building which interferes with
the views from the windows of the Premises.
(C) Tenant shall promptly notify Landlord of any fire or
other casualty in the Premises promptly after Tenant has knowledge thereof,
provided (i) such fire or other casualty results in damages for which the cost
to repair is reasonably expected to exceed Twenty-Five Thousand Dollars
($25,000), (ii) Landlord is required to repair (or cause to be repaired) the
damage caused thereby pursuant to the terms hereof, or (iii) such fire or other
casualty has an adverse effect in any material respect on a Remote Building
System or a Shared Building System.
Section 9.2 Tenant shall obtain and keep in full force and effect (i) an
"all risk" insurance policy for the Tenant Restoration Items in an amount equal
to one hundred percent (100%) of the replacement value thereof (the insurance
policy described in this clause (i) being referred to herein as "Tenant's
Property Policy"), (ii) a policy of commercial general liability and property
damage insurance on an occurrence basis, with a broad form contractual liability
endorsement (the invoice policy described in this clause (ii) being referred to
herein as "Tenant's Liability Policy"), and (iii) an "all risk" insurance policy
for Tenant's Property in an amount equal to one hundred percent (100%) of the
replacement value thereof (the insurance policy described in this clause (iii)
being referred to herein as "Tenant's Personal Property Policy"). The deductible
under each of Tenant's Liability Policy, Tenant's Property Policy and Tenant's
Personal Property Policy shall not exceed the Permitted Deductible Amount.
Landlord shall reasonably cooperate with Tenant and its insurance company in the
adjustment of any claims with the issuer of Tenant's Property Policy for any
damage to the Tenant Restoration Items. Tenant's Property Policy, Tenant's
Personal Property Policy and Tenant's Liability Policy shall provide that Tenant
is named as the insured. Landlord, Landlord's managing agent, the Condominium
Association (and the individual members of the Board of Managers and any
Subordinate Board of Managers), the managing agent for the Condominium
Association, and any Lessors and any Mortgagees (whose names have been furnished
to Tenant) shall be added as additional insureds, as their respective interests
may appear, with respect to Tenant's Liability Policy. Tenant shall cause a
Mortgagee to be named as a mortgagee under Tenant's Property Policy promptly
after Landlord's request from time to time, and provide Landlord with reasonable
evidence that such Mortgagee has been so named under Tenant's Property Policy.
Tenant's Liability Policy shall provide primary coverage for the Persons
required to be named as additional insureds pursuant to this Section 9.2. Tenant
shall have the right to obtain Tenant's Property Policy and Tenant's Personal
Property Policy using the same insurance policy, provided that such policy
otherwise complies with the requirements set forth in this Article 9. Tenant's
Liability Policy shall contain a provision that (a) no act or omission of Tenant
shall affect or limit the obligation of the insurer to pay the amount of any
loss sustained to any Person entitled thereto (other than Tenant or Tenant's
Affiliates), and (b) the policy shall be non-cancelable with respect to
Landlord, Landlord's managing agent, the Condominium Association (and the
individual members of the Board of Managers and any Subordinate Board of
Managers), the managing
87
92
agent for the Condominium Association, and such Lessors and Mortgagees (whose
names and addresses shall have been furnished to Tenant) unless at least thirty
(30) days of prior written notice has been given to Landlord and such other
Persons by certified mail, return receipt requested, which notice shall contain
the policy number and the names of the insured and additional insureds, except
that such thirty (30) day period shall be reduced to ten (10) days in respect of
a cancellation that derives from Tenant's failure to pay the premium for such
policy when due. Upon receipt by Tenant of any notice of cancellation or any
other notice from the issuer of Tenant's Liability Policy or Tenant's Property
Policy which may adversely affect the coverage of the insureds thereunder,
Tenant shall immediately deliver to Landlord and any other additional insured
hereunder a copy of such notice. The minimum amounts of liability under the
Tenant's Liability Policy shall be a combined single limit with respect to each
occurrence in an amount of Five Million Dollars ($5,000,000) for injury (or
death) to persons and damage to property, which amount, at Landlord's request,
shall be increased from time to time (but not more frequently than once in any
particular period of three (3) years) to that amount of insurance which is then
being customarily required by prudent landlords of office buildings that comply
with the Building Standard. All insurance required to be carried by Tenant
pursuant to the terms of this Lease (other than Tenant's Personal Property
Policy) shall be effected under valid and enforceable policies issued by
reputable and independent insurers permitted to do business in the State of New
York, and rated in Best's Insurance Guide, or any successor thereto (or if there
be none, an organization having a national reputation) as having a general
policyholder rating of "A" and a financial rating of at least "X". Tenant shall
have the right to satisfy Tenant's obligation to carry insurance as described in
this Section 9.2 with blanket or umbrella insurance policies, provided that such
blanket or umbrella insurance policies (x) contain an aggregate per location
endorsement that provides the required level of protection for the Premises, and
(y) provide that a loss that relates to any other location does not impair or
reduce the level of protection available for the Premises below the amount
required by this Lease. Landlord shall have the right to require that the issuer
of Tenant's Property Policy pay any proceeds thereof to an independent trustee
or depository that is reasonably designated by a Mortgagee and that has net
assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) by
giving notice thereof to Tenant (any such trustee or depository designated by a
Mortgagee being referred to herein as the "Proceeds Depository"); provided,
however, that Landlord shall not have the right to require Tenant to deposit
such proceeds with a Proceeds Depository unless the Mortgagee constitutes an
Institutional Lender that is not an Affiliate of Landlord. Tenant, in all cases,
shall have the right to retain the proceeds of Tenant's Personal Property
Policy. Tenant shall have the right to name itself (or any other Person) as loss
payee for purposes of Tenant's Property Policy prior to the date that Landlord
gives such notice to Tenant (in which case any proceeds of Tenant's Property
Policy that are collected by Tenant or such other Person shall be held in trust
and applied in accordance with the terms hereof). If Landlord gives such notice
to Tenant, then Tenant shall cause Tenant's Property Policy to name the Proceeds
Depository as loss payee. If (i) Landlord gives such notice to Tenant, and (ii)
this Lease terminates by reason of the applicable fire or other casualty, then
Landlord shall cause the Proceeds Depository to disburse such proceeds as
provided in Section 9.6(B) hereof. If (x) Landlord gives such notice to Tenant,
and (y) this Lease does not terminate by reason of the applicable fire or other
casualty, then Landlord shall cause the Proceeds Depository to disburse such
proceeds to Tenant, from time to time as Tenant's restoration work progresses,
in accordance with customary and reasonable procedures therefor as
88
93
designated by the Mortgagee; provided, however, that Landlord shall cause the
Proceeds Depository to disburse such proceeds to Tenant promptly after the
Proceeds Depository's receipt thereof if the aggregate amount of such proceeds
arising out of a particular fire or other casualty is less than Five Hundred
Thousand Dollars ($500,000). Either party shall have the right to submit to an
Expedited Arbitration Proceeding any dispute between the parties regarding the
identity of the Proceeds Depository or the aforesaid procedures designated by
the Proceeds Depository for the disbursement of such proceeds.
Section 9.3 Landlord shall obtain and keep in full force and effect,
and/or cause the Condominium Association to obtain and keep in full force and
effect, (x) insurance against loss or damage by fire and other casualty to the
Landlord Restoration Items (other than foundations and footings), as may be
insurable under then available standard forms of "all-risk" insurance policies,
in an amount equal to one hundred percent (100%) of the replacement value
thereof (with a deductible in an amount not to exceed the Permitted Deductible
Amount), and (y) insurance against rental loss deriving from a fire or other
casualty described in clause (x) above in an amount that is reasonably expected
to cover thirty-six (36) months of rental loss from the Premises (the insurance
described in clause (x) and clause (y) above being collectively referred to
herein as "Landlord's Property Policy"); provided, however, that during the
period prior to the date that Landlord Substantially Completes the Pre-Delivery
Work, Landlord shall instead carry builder's risk insurance, in customary form,
for the Landlord Restoration Items, in an amount equal to one hundred percent
(100%) of the replacement value thereof. Tenant shall reasonably cooperate with
Landlord, the Condominium Association, and their respective insurance companies
in the adjustment of any claims for any damage to the Landlord Restoration
Items. Landlord shall obtain and keep in full force and effect during the Term a
valid and enforceable policy ("Landlord's Liability Policy") of commercial
general liability insurance on an occurrence basis, with a broad form
contractual liability endorsement. Landlord's Liability Policy and Landlord's
Property Policy shall be issued by reputable and independent insurers permitted
to do business in the State of New York, and rated in Best's Insurance Guide, or
any successor thereto (or if there be none, an organization having a national
reputation) as having a general policyholder rating of "A" and a financial
rating of at least "X". The minimum amount of liability covered by Landlord's
Liability Policy shall be a combined single limit with respect to each
occurrence in the amount of Fifty Million Dollars ($50,000,000) for injury (or
death) to persons and damage to property, which minimum amount shall be subject
to reasonable and customary increases from time to time (but not more frequently
than once in any particular period of three (3) years) to that amount of
insurance which is then being carried by prudent landlords of office buildings
that comply with the Building Standard. The deductible under Landlord's
Liability Policy shall not exceed the Permitted Deductible Amount. Landlord
shall name Tenant and Affiliates of Tenant that occupy the Premises and of which
Tenant gives notice to Landlord as an additional insured on Landlord's Liability
Policy. Landlord's Liability Policy shall contain a provision that (a) no act or
omission of Landlord shall affect or limit the obligation of the insurer to pay
the amount of any loss sustained to any Person entitled thereto (other than
Landlord or Landlord's Affiliates), and (b) the policy shall be non-cancelable
with respect to Tenant unless at least thirty (30) days of prior written notice
has been given to Tenant by certified mail, return receipt requested, which
notice shall contain the policy number and the names of the insured and
additional insureds, except that such thirty (30) day period shall be reduced to
ten (10) days in
89
94
respect of a cancellation that derives from Landlord's failure to pay the
premium for such policy when due. Upon receipt by Landlord of any notice of
cancellation or any other notice from the issuers of Landlord's Property Policy
or Landlord's Liability Policy which may adversely affect the coverage of the
insureds under such policy of insurance, Landlord shall immediately deliver to
Tenant a copy of such notice. Landlord, during the period prior to the date that
the Statutory Condominium Declaration becomes effective, shall cause any Lessor
or Mortgagee to be named as loss payee for Landlord's Property Policy (so that
the net proceeds of Landlord's Property Policy are actually made available to
such Lessor or Mortgagee for purposes of clause (ii) of Section 7.1(B)(5)
hereof).
Section 9.4 On or prior to the First Commencement Date, Tenant shall
deliver to Landlord appropriate certificates of insurance, including evidence of
waivers of subrogation required pursuant to Section 10.3 hereof, required to be
carried by Tenant pursuant to this Article 9. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least
fifteen (15) days prior to the expiration of such policy. On or prior to the
First Commencement Date, Landlord shall deliver to Tenant appropriate
certificates of insurance, including evidence of waivers of subrogation required
pursuant to Section 10.3 hereof, required to be carried by Landlord pursuant to
this Article 9. Evidence of renewal or replacements of a policy shall be
delivered by Landlord to Tenant at least fifteen (15) days prior to the
expiration of such policy.
Section 9.5 Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for damage to, Tenant's Restoration Items, and
that Landlord shall not carry insurance against, or be responsible for any loss
suffered by Tenant due to, interruption of Tenant's business, except as
expressly set forth herein.
Section 9.6 (A) If (i) Tenant obtains property insurance for any of the
Landlord Restoration Items, (ii) after the occurrence of a fire or other
casualty, Tenant recovers insurance proceeds for such Landlord Restoration
Items, and (iii) Tenant's recovery of such proceeds for the Landlord Restoration
Items diminishes the insurance proceeds to which Landlord or the Condominium
Association is entitled under its respective property insurance policies for the
Landlord Restoration Items, then Tenant shall pay promptly to Landlord such
insurance proceeds recovered by Tenant to the extent that the aforesaid
insurance recovery of Landlord or the Condominium Association is diminished. If
(i) Landlord or the Condominium Association obtains property insurance for any
of the Tenant Restoration Items, (ii) after the occurrence of a fire or other
casualty, Landlord or the Condominium Association recovers insurance proceeds
for such Tenant Restoration Items, and (iii) the recovery by Landlord or the
Condominium Association of such proceeds for Tenant Restoration Items diminishes
the insurance proceeds to which Tenant is entitled under Tenant's property
insurance policy for the Tenant Restoration Items, then Landlord shall pay
promptly to Tenant (or Landlord shall cause the Condominium Association to pay
promptly to Tenant) such insurance proceeds recovered by Landlord or the
Condominium Association to the extent that Tenant's aforesaid insurance recovery
is diminished.
90
95
(B) If (x) this Lease terminates by reason of the occurrence
of a fire or other casualty pursuant to Article 10 hereof, and (y) a Mortgagee
that constitutes an Institutional Lender then holds a Mortgage on Landlord's
interest in the Premises, then Tenant shall pay (or Landlord shall cause the
Proceeds Depository to pay, as the case may be) the proceeds of Tenant's
Property Policy (and any other proceeds to which Tenant is entitled under
Section 9.6(A) hereof) to the extent deriving from such fire or other casualty
as follows:
(i) first, to Landlord (or, at Landlord's option,
to such Mortgagee), until the aggregate
amount paid to Landlord (or such Mortgagee)
from such proceeds equals the excess of (I)
the lesser of (x) the amount of the
outstanding indebtedness secured by such
Mortgage, and (y) eighty percent (80%) of the
fair market value of the Premises on the date
that such Mortgagee initially funded the debt
secured by such Mortgage, over (II) the
proceeds of Landlord's Property Policy that
are available to Landlord (or such Mortgagee)
by reason of such fire or other casualty to
the Landlord Restoration Items (or would have
been available to Landlord (or such
Mortgagee) if Landlord or the Condominium
Association carried Landlord's Property
Policy in accordance with the terms hereof);
and
(ii) second, to Tenant, until the aggregate amount
paid to Tenant from such proceeds equals
Tenant's Unamortized Alterations Cost; and
(iii) finally, one-half (1/2) of the remainder to
Landlord and one-half (1/2) of the remainder to
Tenant.
Landlord and Tenant shall give the other party reasonable access to the such
party's books and records to the extent reasonably necessary to determine the
amount due from Tenant to Landlord under this Section 9.6(B). Either party shall
have the right to submit any dispute between the parties regarding the amount
due from Tenant to Landlord under this Section 9.6(B) to an Expedited
Arbitration Proceeding.
91
96
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE
Section 10.1 (A) Subject to the terms of this Section 10.1, if the
Landlord Restoration Items are damaged by fire or other casualty, then Landlord,
at Landlord's sole cost and expense, shall diligently repair, or shall cause the
Condominium Association to diligently repair, with reasonable dispatch, the
Landlord Restoration Items to substantially the condition prior to the damage,
with such modifications as are required in order to comply with Requirements
(with the understanding that if applicable Requirements require that the
Premises, after the performance of such restoration by Landlord or the
Condominium Association, be comprised of less Usable Area than the Usable Area
of the Premises immediately prior to the occurrence of such fire or other
casualty, then the Fixed Rent that is otherwise due hereunder from and after the
date of such fire or other casualty shall be adjusted to reflect the reduction
in Rentable Area that derives from the restoration of the Premises being
performed in compliance with such Requirements). Landlord shall have no
obligation to repair (or to cause the Condominium Association to repair) any
damage to, or to replace (or to cause the Condominium Association to replace),
Tenant Restoration Items. Subject to the terms of this Section 10.1, if such
fire or other casualty renders all of the Premises untenantable or inaccessible,
then the Rental due hereunder shall xxxxx until the date that is two hundred
seventy (270) days after the date that Landlord (or the Condominium Association)
Substantially Completes the restoration of the Landlord Restoration Items.
Subject to the terms of this Section 10.1, if such fire or other casualty
renders part (but not all) of the Premises untenantable or inaccessible, then
the Fixed Rent due hereunder, and the Escalation Rent that would have otherwise
been due hereunder assuming that such fire or other casualty did not occur,
shall xxxxx in the proportion that (i) the Rentable Area of the portion so
rendered untenantable or inaccessible, bears to (ii) the Rentable Area of the
Premises, until the date that is two hundred seventy (270) days after the date
that Landlord (or the Condominium Association) Substantially Completes the
restoration of the Landlord Restoration Items. Tenant shall not be entitled to
an abatement of Rental pursuant to this Section 10.1 that extends (a) for more
than thirty-six (36) calendar months in respect of a particular fire or other
casualty, or (b) beyond the date that a Permitted Occupant uses the Premises (or
the applicable portion thereof) for the conduct of business. The Premises (or
the applicable portion thereof) shall be deemed untenantable for purposes of
this Section 10.1 if, by reason of such fire or other casualty, Tenant could not
be reasonably expected to use the Premises as offices for the ordinary conduct
of Tenant's business. The Premises, or the applicable portion thereof, shall be
deemed to be tenantable for purposes of this Article 10 to the extent that a
Permitted Occupant uses the Premises (or such portion thereof) after the
applicable fire or after casualty for the conduct of such Permitted Occupant's
business. If a fire or other casualty occurs in a Deliverable Unit during the
period from the Commencement Date therefor to the Rent Commencement Date
therefor, then the Rent Commencement Date for such Deliverable Unit shall be
extended for a number of days equal to the sum of (x) the number of days in the
period from the date of the applicable fire or other casualty to the date that
Landlord Substantially Completes the restoration of the Landlord Restoration
Items, and (y) the number of days in the period beginning on the date that
Landlord Substantially Completes the Landlord Restoration Items and ending on
the date that Tenant restores the Initial Alterations to the condition that
existed immediately prior to such fire or other casualty; provided, however,
that in no event shall the number described in this clause (y) exceed two
hundred seventy (270). If (A) after the Statutory Condominium Declaration
becomes effective, the unit owners of the Condominium do not make the election
contemplated by Section 339-cc of the Real Property Law to restore the
92
97
Building after the occurrence of a fire or other casualty (to the extent that
such election is required to be made by such unit owners), or (B) applicable
Requirements prohibit Landlord from restoring the Landlord Restoration Items,
then (x) Landlord shall give Tenant prompt notice thereof, and (y) this Lease
shall thereupon terminate, in which case (I) Tenant shall surrender possession
of the Premises to Landlord in accordance with the terms of Article 20 hereof,
(II) any Rental due hereunder shall be apportioned as of the date of such
termination, and (III) any portion of the Rental that is then prepaid by Tenant
and relates to the period after the date of such termination shall be promptly
refunded by Landlord to Tenant (with the understanding that Landlord's
obligation to make any such refund shall survive such termination of this
Lease).
(B) (1) Subject to the terms of this Section 10.1(B), within
ninety (90) days after notice to Landlord of any damage to the Landlord
Restoration Items, Landlord shall deliver to Tenant a statement prepared by an
independent reputable contractor setting forth such contractor's estimate as to
the time required to repair such damage to the Landlord Restoration Items (such
statement being referred to herein as the "Casualty Statement"). Landlord shall
not designate a particular Person as the aforesaid independent contractor unless
(i) such Person has at least five (5) years of experience in providing such
estimates, and (ii) such Person has not been employed by Landlord or Tenant (or
their respective Affiliates) for a period of three (3) years prior to the date
of the Casualty Statement; provided, however, that if, in Landlord's reasonable
judgment, there exists no such Person that satisfies the provisions of this
clause (ii), then Landlord shall have the right to designate a Person that
complies only with the provisions of clause (i) above, if such Person is
otherwise reputable and Landlord and Tenant receive reasonable assurances from
such Person that such Person is preparing the Casualty Statement impartially.
Tenant shall have the right to dispute the estimated time period as set forth in
the Casualty Statement by giving notice thereof to Landlord not more than
fifteen (15) days after the date that Landlord gives the Casualty Statement to
Tenant. Either party shall have the right to submit a dispute between the
parties regarding the aforesaid estimated time period to an Expedited
Arbitration Proceeding. If (X) the estimated time period exceeds thirty-six (36)
months from the date of the applicable fire or other casualty, or (Y) (i) the
estimated time period exceeds twelve (12) months from the date of the applicable
fire or other casualty, and (ii) such estimate indicates that the Substantial
Completion of such repairs will not occur until a date that is within eighteen
(18) months before the Fixed Expiration Date or the last day of the Renewal
Term, as the case may be, then Tenant may elect to terminate this Lease by
notice given to Landlord not later than thirty (30) days after the date that
Landlord gives the Casualty Statement to Tenant.
(2) If, at any time during Landlord's restoration
of the Landlord Restoration Items, Landlord determines that or otherwise has
notice that applicable Requirements will require that the Usable Area of the
Premises following Landlord's performance of the Landlord Restoration Items will
be comprised of less than ninety percent (90%) of the Usable Area of the
Premises immediately prior to the occurrence of the applicable fire or other
casualty, then (x) Landlord shall give prompt notice thereof to Tenant, and (y)
Tenant may elect to terminate this Lease by notice given to Landlord not later
than thirty (30) days after the date that Landlord gives such notice to Tenant.
93
98
(3) Subject to the terms of this Section
10.1(B)(3), if (i) a fire or other casualty occurs, and, by reason thereof,
Landlord has an obligation to perform (or to cause the Condominium Association
to perform) a restoration of the Landlord Restoration Items as contemplated by
this Section 10.1, (ii) Tenant does not exercise Tenant's right to terminate
this Lease under Section 10.1(B)(1) hereof in connection with such fire or other
casualty (or Tenant does not have the right to terminate this Lease under
Section 10.1(B)(1) hereof in connection with such fire or other casualty), (iii)
Landlord (or the Condominium Association) fails to Substantially Complete the
performance of the Landlord Restoration Items on or prior to the later to occur
of (I) thirty-six (36) months after the date of the applicable fire or other
casualty, and (II) the date that is sixty (60) days after the last day of the
estimated time period set forth in the Casualty Statement (the later of the
dates described in clause (I) and clause (II) above being referred to herein as
the "Second Bite Date"), (iv) Tenant gives Landlord notice to the effect that
Tenant reserves its right to terminate this Lease under this Section 10.1(B)(3)
in connection with such fire or other casualty (with the understanding that any
such notice given by Tenant to Landlord prior to the Second Bite Date shall be
ineffective for purposes hereof) (such notice given by Tenant to Landlord being
referred to herein as the "Second Bite Warning Notice"), and (v) Landlord (or
the Condominium Association) fail to Substantially Complete the restoration of
the Landlord Restoration Items within twenty (20) days after the date that
Tenant gives the Second Bite Warning Notice to Landlord, then Tenant shall have
the right to terminate this Lease by giving notice thereof (the "Second Bite
Termination Notice") to Landlord not later than the tenth (10th) day after the
last day of such period of twenty (20) days. Tenant shall not have such right to
terminate this Lease if Landlord (or the Condominium Association) Substantially
Completes the restoration of the Landlord Restoration Items prior to the date
that Tenant gives the Second Bite Termination Notice to Landlord. If Landlord
(or the Condominium Association) encounters an Unavoidable Delay in the
performance of the Landlord Restoration Items, then the Second Bite Date shall
be deemed to be extended by the number of days of delay in performing the
Landlord Restoration Items that derives from the occurrence of such Unavoidable
Delay; provided, however, that such extension of the Second Bite Date that
derives from the occurrence of Unavoidable Delays shall not exceed one hundred
eighty (180) days in the aggregate. If Tenant does not exercise Tenant's rights
to terminate this Lease after a fire or other casualty as provided in this
Section 10.1, then Landlord shall complete the performance of the Landlord
Restoration Items with reasonable diligence and in accordance with good
construction practice after Landlord Substantially Completes the Landlord
Restoration Items.
(4) If Tenant makes any such election to
terminate this Lease pursuant to this Section 10.1(B), then (I) the Term shall
expire upon the thirtieth (30th) day after notice of such election is given by
Tenant, and Tenant shall vacate the Premises and surrender the same to Landlord
on such date in accordance with the provisions of Article 20 hereof, (II) any
Rental due hereunder shall be apportioned as of the date of such termination,
and (III) any portion of the Rental that is then prepaid by Tenant and relates
to the period after the date of such termination shall be promptly refunded by
Landlord to Tenant (with the understanding that Landlord's obligation to make
any such refund shall survive such termination of this Lease).
(5) If a part (and not all) of the Premises is
damaged by fire or other casualty, then Landlord shall perform (or shall cause
the Condominium Association to
94
99
perform) the restoration of the Landlord Restoration Items in a manner that
minimizes, to the extent reasonably practicable, the interference with each
Permitted Occupant's conduct of business in the remainder of the Premises.
Landlord, at Tenant's request, shall use (or shall cause the Condominium
Association to use) overtime labor to perform such restoration of the Landlord
Restoration Items. If Tenant so requires Landlord (or the Condominium
Association) to use overtime labor to perform the Landlord Restoration Items,
then Tenant shall pay to Landlord an amount equal to the incremental costs that
Landlord (or the Condominium Association) incurs in connection therewith, within
thirty (30) days after demand therefor made by Landlord or the Condominium
Association and submission to Tenant of reasonable supporting documentation for
such costs.
(6) If (i) the estimated time period for the
performance of the Landlord Restoration Items exceeds twelve (12) months from
the date of the Casualty Statement, and (ii) such estimate indicates that the
Substantial Completion thereof will not occur until a date that is within
eighteen (18) months before the Fixed Expiration Date or the last day of the
Renewal Term, as the case may be, then Landlord may elect to terminate this
Lease by notice given to Tenant not later than thirty (30) days after the date
that Landlord gives the Casualty Statement to Tenant. If Landlord makes such
election to terminate this Lease pursuant to this Section 10.1(B), then (I) the
Term shall expire upon the thirtieth (30th) day after notice of such election is
given by Landlord, and Tenant shall vacate the Premises and surrender the same
to Landlord on such date in accordance with the provisions of Article 20 hereof,
(II) any Rental due hereunder shall be apportioned as of the date of such
termination, and (III) any portion of the Rental that is then prepaid by Tenant
and relates to the period after the date of such termination shall be promptly
refunded by Landlord to Tenant (with the understanding that Landlord's
obligation to make any such refund shall survive such termination of this
Lease).
(7) Either party shall have the right to submit a
dispute between the parties arising under this Section 10.1(B) to an Expedited
Arbitration Proceeding.
(C) Prior to the Substantial Completion of the restoration
of the Landlord Restoration Items, Landlord shall provide Tenant and Tenant's
Contractors with access to the Premises (or the applicable portion thereof) to
perform any restoration work that Landlord is not obligated to perform (or to
cause the Condominium Association to perform) hereunder, on the following terms
and conditions (but not to occupy the same for the conduct of business):
(1) Tenant shall not commence work in any portion
of the Premises until Landlord provides notice to Tenant stating that the
restoration required to be made by Landlord has been or will be completed to the
extent reasonably necessary, in Landlord's reasonable discretion, to permit the
commencement of Tenant's work then prudent to be performed in accordance with
good construction practice in the portion of the Premises in question without
interference with, and consistent with the performance of, the repairs remaining
to be performed by Landlord (it being understood that Landlord shall give such
notice to Tenant not later than the date that the restoration of the Landlord
Restoration Items is Substantially Completed).
95
100
(2) Such access by Tenant shall be deemed to be
subject to all of the applicable provisions of this Lease (including, without
limitation, the provisions of Article 3 hereof), except that there shall be no
obligation on the part of Tenant solely because of such access to pay any Fixed
Rent or Escalation Rent with respect to the affected portion of the Premises.
(3) To the extent Landlord is delayed from
Substantially Completing the restoration of the Landlord Restoration Items due
to any acts or omissions of Tenant, its agents, servants, employees or
Contractors, including, without limitation, by reason of the performance of
Tenant's work, by reason of Tenant's failure or refusal to comply or to cause
its architects, engineers, designers and Contractors to comply with any of
Tenant's obligations described or referred to in this Lease, then such
restoration shall be deemed Substantially Completed on the date that the
restoration would have been Substantially Completed but for such delay and the
expiration of the abatement of the Tenant's obligations hereunder shall not be
postponed by reason of such delay. Any additional costs to Landlord (or the
Condominium Association) to complete any restoration occasioned by such delay
shall be paid by Tenant to Landlord within thirty (30) days after Landlord's
demand and after Landlord submits to Tenant reasonable supporting documentation
therefor.
(D) If (i) Tenant occupies for the conduct of business less
than Three Hundred Fifty Thousand (350,000) square feet of Rentable Area, (ii)
the Building is destroyed or damaged in whole or in part by fire or other
casualty, (iii) the time period required to repair the damage to the Building
caused by such fire or other casualty as reflected on the Casualty Statement
exceeds eighteen (18) months, and (iv) leases for at least eighty percent (80%)
of the remaining space in the Building that is used for commercial office
purposes are terminated by reason of such fire or other casualty, then Landlord
shall have the right to terminate this Lease by giving notice thereof to Tenant
not later than the thirtieth (30th) day after the occurrence of such fire or
other casualty. Either party shall have the right to submit a dispute between
the parties regarding Landlord's aforesaid right to terminate this Lease to an
Expedited Arbitration Proceeding. If Landlord exercises Landlord's aforesaid
right to terminate this Lease, then (I) the Term shall expire upon the thirtieth
(30th) day after notice of such election is given by Landlord, and Tenant shall
vacate the Premises and surrender the same to Landlord on such date in
accordance with the provisions of Article 20 hereof, (II) any Rental due
hereunder shall be apportioned as of the date of such termination, and (III) any
portion of the Rental that is then prepaid by Tenant and relates to the period
after the date of such termination shall be promptly refunded by Landlord to
Tenant (with the understanding that Landlord's obligation to make any such
refund shall survive such termination of this Lease).
Section 10.2 This Article 10 constitutes an express agreement governing
any case of damage or destruction of the Premises or the Building by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force, shall have no application in any such case.
Section 10.3 Landlord and Tenant shall procure (and Landlord shall cause
the Condominium Association to procure) an appropriate clause in, or endorsement
on, any property
96
101
insurance that Landlord, Tenant or the Condominium Association carries
(including, without limitation, rent insurance, business interruption insurance,
or other similar insurance policies that protect a party from damage deriving
from a fire or other casualty) pursuant to which the insurance companies waive
subrogation or consent to a waiver of right of recovery (against each of
Landlord, Tenant and the Condominium Association (and the individual members of
its board of managers) to the extent such party is not the insured), and,
provided that its right of full recovery under its insurance policies is not
adversely affected thereby, each of Landlord and Tenant having obtained such
clauses or endorsements of waiver of subrogation or consent to a waiver of right
of recovery, will not make (and Landlord agrees to cause the Condominium
Association not to make) any claim against or seek to recover from the other
parties (i.e., Landlord, the Condominium Association (and the individual members
of its board of managers) and/or Tenant, as applicable) for any loss or damage
to its property or the property of others resulting from fire or other hazards.
The waivers of subrogation, waivers of recovery and release of claims provided
in this Section 10.3 shall extend to Landlord's Indemnitees and Tenant's
Indemnitees, as applicable. If the payment of an additional premium is required
for the inclusion of such waiver of subrogation provision, then Landlord or
Tenant shall advise the other party and the Condominium Association (and
Landlord shall cause the Condominium Association to advise Tenant) of the amount
of any such additional premiums and the party(ies) to benefit from the inclusion
of such waiver of subrogation provision, at its own election may, but shall not
be obligated to, pay the same. If such party(ies) do not elect to pay such
additional premium, then the party obtaining the insurance shall not be required
to obtain such waiver of subrogation provision. If Landlord, Tenant, or the
Condominium Association is unable to obtain the inclusion of such clause even
with the payment of an additional premium, then Landlord or Tenant (as the case
may be) shall attempt to name (or Landlord shall cause the Condominium
Association to name) the other parties as an additional insured (but not a loss
payee) under the policy. If the payment of an additional premium is required for
naming the other parties as an additional insured (but not a loss payee),
Landlord or Tenant (as the case may be) shall advise the other party and the
Condominium Association (and Landlord shall cause the Condominium Association to
advise Tenant) of the amount of any such additional premium and each party to be
named an additional insured at its own election may, but shall not be obligated
to, pay the same. If such party does not elect to pay such additional premium or
if it is not possible to have such party named as an additional insured (but not
loss payee), even with the payment of an additional premium, then (in either
event) such party shall so notify the party procuring the insurance and the
party procuring insurance shall not have the obligation to name the other party
as an additional insured.
97
102
ARTICLE 11
EMINENT DOMAIN
Section 11.1 If (i) the Premises (including, without limitation, the
Exclusive Lobby Area), or all reasonable means of access thereto, is acquired or
condemned by a Governmental Authority for any public or quasi-public use or
purpose, or (ii) (I) more than ten percent (10%) of the Usable Area of the
Premises is so acquired or condemned (or all reasonable means of access to more
than ten percent (10%) of the Usable Area of the Premises is so acquired or
condemned), and (II) either Landlord or Tenant elect to terminate this Lease by
giving notice thereof to the other party on or prior to the tenth (10th) day
after the vesting of title, then this Lease and the Term shall end as of the
date of the vesting of title with the same effect as if said date were the
Expiration Date, it being agreed that Tenant shall be responsible to perform all
of its obligations hereunder (including, without limitation, the obligation to
pay Rental) which accrue through and including the date the Term so ends (it
being understood that (i) any prepaid portion of the Rental shall be refunded by
Landlord to Tenant promptly after such termination, and (ii) Landlord's
obligation to make any such refund shall survive such termination). If a part of
the Premises (or all reasonable means of access to a part of the Premises) is so
acquired or condemned (and this Lease does not terminate pursuant to the terms
of this Section 11.1), then this Lease and the Term shall continue in force and
effect, except that from and after the effective date of such acquisition or
condemnation, the Fixed Rent shall be recalculated based on the Rentable Area of
the portion of the Premises that remains after such acquisition or condemnation
(or the portion of the Premises to which Tenant has reasonable means of access
after such acquisition or condemnation) (it being understood that (x) the
portion of the Premises affected by such acquisition or condemnation shall be
deleted from the Premises on the effective date of such acquisition or
condemnation, and (y) the Fixed Rent shall be recalculated using the rental
rates set forth in the definition of Comparison Amount, except that for purposes
of such recalculation for the period prior to Fixed Expiration Date, the
aforesaid rental rates shall each be reduced by Two and 85/100 Dollars ($2.85)).
Landlord, at Landlord's expense, shall cause the Condominium Association to
restore that part of the Premises not so acquired or condemned (or to which
Tenant has reasonable means of access) to a self-contained rental unit. If this
Lease terminates pursuant to the provisions of this Section 11.1, then the
Rental shall be apportioned as of the date of such termination, and any prepaid
portion of the Rental shall be refunded promptly by Landlord to Tenant (it being
understood that Landlord's obligation to make any such refund shall survive the
Expiration Date).
Section 11.2 If any such acquisition or condemnation of all or any part of
the Premises pursuant to Section 11.1 hereof occurs, then Landlord, subject to
the provisions of this Section 11.2, shall be entitled to receive the entire
award for any such acquisition or condemnation, and Tenant shall have no claim
against Landlord or the condemning authority for, and Tenant hereby expressly
assigns to Landlord, all of its right in and to, any such award. Subject to the
terms of this Section 11.2, if this Lease terminates by reason of any such
condemnation or acquisition as described in Section 11.1 hereof, then Tenant
shall have the right to make a separate claim in any condemnation proceedings
for (i) the then value of any Tenant's Property included in such taking, (ii)
Tenant's moving expenses, and (iii) Tenant's Unamortized Alterations Cost. If,
at the time this Lease terminates with respect to all or a portion of the
98
103
Premises pursuant to Section 11.1 hereof, Mortgagees then hold a Mortgage on
Landlord's interest in the Premises, then Tenant shall not have the right to any
portion of such award until Landlord (or such Mortgagee) has received from such
award an amount equal to the lesser of (x) the amount of the outstanding
indebtedness secured by such Mortgage (or the portion of such indebtedness that
is allocated reasonably to the portion of the Premises in respect of which this
Lease terminates), and (y) eighty percent (80%) of the fair market value of the
Premises (or the applicable portion thereof) on the date that such Mortgagee
initially funded the debt secured by such Mortgage (it being understood that
either party shall have the right to submit any dispute between the parties
regarding the calculation of the aforesaid amount to an Expedited Arbitration
Proceeding). If (x) Tenant is barred from making a separate claim in any such
proceeding, and (y) Tenant requests that Landlord prosecute Tenant's claim in
conjunction with Landlord's claim, then Landlord, with due diligence, shall
prosecute Tenant's claim in conjunction with Landlord's claim in any such
proceeding (with the understanding that Tenant shall pay a share of the costs
incurred by Landlord in prosecuting such proceeding based on the proportion that
the amount of Tenant's recovery bears to the aggregate amount of Tenant's
recovery and Landlord's recovery). Tenant, at Tenant's sole cost and expense,
shall have the right to participate with Landlord in any such proceeding in
which Landlord prosecutes Tenant's claim in conjunction with Landlord's claim,
and, in connection therewith, retain counsel, attend hearings, present
arguments, and generally participate in the conduct of the proceeding (but in no
event shall Tenant have the right to take any action that diminishes or
otherwise impairs Landlord's claim). Landlord shall cause any condemnation
proceeds to which Landlord is entitled to be paid to a Lessor or Mortgagee (so
that such proceeds are actually made available to such Lessor or Mortgagee for
purposes of clause (ii) of Section 7.1(B)(5) hereof).
Section 11.3 Subject to the terms of this Section 11.3, if the entire
Premises (or any portion thereof) is acquired or condemned temporarily by a
Governmental Authority during the Term for any public or quasi-public use or
purpose, then (i) Landlord shall be entitled to the full amount of any payment
or award made in connection therewith, (ii) this Lease shall continue in full
force and effect, (iii) all items of Rental payable by Tenant hereunder shall be
abated as to the Premises (or such portion thereof) for the period of such
taking, and (iv) if any such temporary acquisition or condemnation occurs with
respect to any Deliverable Unit during the period from the Commencement Date
therefor to the Rent Commencement Date therefor, then Tenant shall have the
right to apply against the Rental due hereunder, from and after such Rent
Commencement Date, a credit in an amount equal to the abatement of Fixed Rent to
which Tenant would have been entitled hereunder for the period from the date
that the Deliverable Unit (or the applicable portion thereof) is so acquired or
condemned temporarily to such Rent Commencement Date (assuming that the Tenant's
obligation to pay Fixed Rent commenced on such Commencement Date rather than on
such Rent Commencement Date). If (X) the temporary use or occupancy is for a
period of greater than one (1) year, and (Y) either (a) the portion of the
Premises so taken contains more than ten percent (10%) of the total Rentable
Area of the Premises immediately prior to such acquisition, or (b) Tenant has no
reasonable means of access to more than ten percent (10%) of the total Rentable
Area of the Premises immediately prior to such acquisition, then either party
hereto, at such party's option, may give to the other party, within twenty (20)
days next following the date upon which such party receives notice of such
taking, a notice of termination of this Lease as of a date set forth in such
notice, which date shall
99
104
not be less than thirty (30) nor more than one hundred eighty (180) days from
the date of such notice. If Landlord or Tenant give such notice of termination,
then this Lease and the Term shall come to an end and expire upon the
termination date set forth in such notice as if such termination date were the
date originally set forth in this Lease as the Expiration Date. If a part of the
Premises is so temporarily acquired or condemned, or all reasonable means of
access to a part of the Premises is so temporarily acquired or condemned, and
this Lease is not terminated pursuant to this Section 11.3, then Landlord, at
Landlord's expense, shall cause the Condominium Association to restore that part
of the Premises not so acquired or condemned to a self-contained rental unit. If
this Lease terminates pursuant to the provisions of this Section 11.3, then the
Rental shall be apportioned as of the date of such termination, and any prepaid
portion of the Rental shall be refunded promptly by Landlord to Tenant (it being
understood that Landlord's obligation to make any such refund shall survive such
termination).
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
Section 12.1 (A) Except as expressly permitted herein, Tenant, without the
prior consent of Landlord in each instance, shall not (a) assign its rights or
delegate its duties under this Lease (whether by operation of law, transfers of
interests in Tenant, or otherwise), or mortgage or encumber its interest in this
Lease or the Premises, in whole or in part, (b) sublet, or permit the subletting
or further subletting of, the Premises or any part thereof, (c) permit a
Qualifying Subtenant to assign its rights or delegate its duties under the
applicable sublease (whether by operation of law, transfers of interests in such
Qualifying Subtenant, or otherwise), or mortgage or encumber its interest in
such sublease or the Premises, or (d) permit the Premises or any part thereof to
be occupied or used for desk space, mailing privileges or otherwise, by any
Person other than Tenant. Except for transfers of Control that are permitted
under Section 12.4 hereof, the transfer of Control of any entity that
constitutes Tenant or a Qualifying Subtenant, however accomplished, whether in a
single transaction or in a series of related or unrelated transactions, shall be
deemed an assignment of this Lease, or of the applicable sublease, as the case
may be.
(B) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
Section 12.2 (A) If Tenant's interest in this Lease is assigned in
violation of the provisions of this Article 12, such assignment shall be void
and of no force and effect against Landlord; provided, however, that Landlord
may collect an amount equal to the then Rental from the assignee as a fee for
its use and occupancy, and shall apply the amount so collected to the Rental
reserved in this Lease. If the Premises or any part thereof are sublet to, or
occupied by, or
100
105
used by, any Person other than Tenant, whether or not in violation of this
Article 12, then Landlord, after the occurrence of and during the continuation
of an Event of Default, may collect any item of Rental or other sums paid by the
subtenant, user or occupant as a fee for its use and occupancy, and shall apply
the amount so collected to the Rental reserved in this Lease. No such
assignment, subletting, occupancy or use, whether with or without Landlord's
prior consent, nor any such collection or application of Rental or fee for use
and occupancy, shall be deemed a waiver by Landlord of any term, covenant or
condition of this Lease or the acceptance by Landlord of such assignee,
subtenant, occupant or user as tenant hereunder. The consent by Landlord to any
assignment, subletting, occupancy or use shall not relieve Tenant from its
obligation to obtain the express prior consent of Landlord (to the extent
required under this Article 12) to any further assignment, subletting, occupancy
or use.
(B) Tenant shall pay to Landlord, within thirty (30) days
after demand therefor, an amount equal to the reasonable out-of-pocket costs
that Landlord incurs in connection with any proposed assignment of the interest
of Tenant in this Lease or the interest of a Qualifying Subtenant under the
applicable sublease or any proposed subletting or further subletting of the
Premises or any part thereof, including, without limitation, reasonable
attorneys' fees and disbursements and the reasonable costs of making
investigations as to the acceptability of the proposed subtenant or the proposed
assignee.
(C) Neither any assignment of Tenant's interest in this
Lease nor any subletting, occupancy or use of the Premises or any part thereof
by any Person other than Tenant, nor any collection of Rental by Landlord from
any Person other than Tenant as provided in this Section 12.2, nor any
application of any such Rental as provided in this Section 12.2 shall, in any
circumstances, relieve Tenant of its obligations under this Lease on Tenant's
part to be observed and performed (including without limitation, Tenant's
obligation to pay Rental to Landlord in accordance with the terms hereof).
(D) Any Person to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall execute and deliver
to Landlord upon demand an instrument confirming such assumption. No assignment
of this Lease shall relieve Tenant of its obligations hereunder and, subsequent
to any assignment, Tenant's liability hereunder shall continue in accordance
with the terms hereof on the date that Tenant so assigns this Lease
notwithstanding any subsequent modification or amendment hereof or the release
of any subsequent tenant hereunder from any liability, to all of which Tenant
hereby consents in advance (it being understood, however, that Tenant shall not
be liable for any increase in Tenant's obligations hereunder that derive from
any such modification or amendment).
(E) If (i) Bloomberg assigns the interest of the tenant
hereunder to a third party that is not a Bloomberg Party in accordance with the
terms of this Article 12, (ii) Tenant subsequently defaults hereunder, and (iii)
such default is of a nature that does not become an Event of Default unless and
until Landlord gives Tenant notice thereof, then such default shall not become
an Event of Default for purposes hereof until Landlord gives to Bloomberg a copy
of any such notice. Landlord shall accept from Bloomberg (on behalf of Tenant) a
tender of a cure
101
106
of any such default (to the extent that Bloomberg makes such tender to Landlord
during the period that Tenant has the right to cure such default pursuant to the
terms hereof, with the understanding, however, that such period during which
Bloomberg has the right to tender such cure shall not be shorter than five (5)
Business Days). If (a) Bloomberg assigns the interest of the tenant hereunder to
a third party that is not a Bloomberg Party in accordance with the terms of this
Article 12, (b) an Event of Default subsequently occurs hereunder, and (c)
Landlord has not theretofore given Bloomberg a copy of the notice of the
applicable default under the first sentence of this Section 12.2(E), then
Landlord shall not exercise Landlord's rights to terminate this Lease by reason
of such Event of Default unless (x) Landlord gives to Bloomberg an additional
notice to the effect that such Event of Default has occurred, and (y) Bloomberg
fails to remedy such Event of Default within two (2) Business Days after
Landlord gives Bloomberg such notice (with respect to Events of Default that
derive from Tenant's failure to make a payment of money) or within five (5)
Business Days after Landlord gives Bloomberg such notice (with respect to Events
of Default that do not derive from Tenant's failure to make a payment of money).
The provisions of this Section 12.2(E) shall survive the termination of this
Lease.
Section 12.3 (A) If Tenant assumes this Lease and proposes to assign the
same pursuant to the provisions of the Bankruptcy Code to any Person who has
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then notice of such proposed assignment shall be given to Landlord by
Tenant no later than twenty (20) days after receipt by Tenant, but in any event
no later than ten (10) days prior to the date that Tenant makes application to a
court of competent jurisdiction for authority and approval to enter into such
assignment and assumption. Such notice shall set forth (a) the name and address
of such Person, (b) all of the material terms and conditions of such offer, and
(c) adequate assurance of future performance by such Person under the Lease as
set forth in Section 12.3(B) hereof, including, without limitation, the
assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord
shall have the prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed assignment, to accept
an assignment of this Lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such Person. If Landlord
so accepts an assignment of this Lease, then Landlord shall also pay to such
Person a "break-up" fee (to the extent, if any, that (x) Tenant is required to
pay such fee to such Person, and (y) such court of competent jurisdiction has
theretofore approved such fee).
(B) The term "adequate assurance of future performance" as
used in this Lease shall mean that any proposed assignee shall, among other
things, (a) deposit with Landlord on the assumption of this Lease an amount
equal to the then annual Fixed Rent as security for the faithful performance and
observance by such assignee of the terms and obligations of this Lease, which
amount shall be held by Landlord, (b) furnish Landlord with financial statements
of such assignee for the prior three (3) fiscal years, as finally determined
after an audit and certified as correct by a certified public accountant, which
financial statements shall show a net worth for each of such three (3) years of
at least six (6) times the then annual Fixed Rent, (c) grant to Landlord a
security interest in such property of the proposed assignee as Landlord shall
deem necessary to secure such assignee's future performance under this Lease,
and (d) provide such other information or take such action as Landlord, in its
reasonable judgment
102
107
shall determine is necessary to provide adequate assurance of the performance by
such assignee of its obligations under the Lease.
Section 12.4 (A) Tenant shall have the right to assign the entire interest
of the tenant hereunder to an Affiliate of Tenant without Landlord's prior
approval and without Landlord having the right to consummate an Assignment
Recapture in respect thereof, provided that (i) Tenant gives to Landlord, not
later than the tenth (10th) Business Day after any such assignment is
consummated, an instrument, duly executed by the assigning Tenant and the
aforesaid Affiliate of Tenant, in form reasonably satisfactory to Landlord, to
the effect that such Affiliate assumes all of the obligations of Tenant arising
hereunder from and after the date of such assignment, and (ii) Tenant, with such
notice, provides Landlord with reasonable evidence to the effect that the Person
to which Tenant is so assigning the Lease constitutes an Affiliate of Tenant.
(B) A Qualifying Subtenant shall have the right to assign
the entire interest of the subtenant under the applicable sublease to an
Affiliate of such Qualifying Subtenant without Landlord's prior approval (and
without Landlord having the right to consummate a Subleasehold Assignment
Recapture in respect thereof), provided that (i) Tenant gives to Landlord, not
later than the tenth (10th) Business Day after any such assignment is
consummated, an instrument, duly executed by the assigning Qualifying Subtenant
and the aforesaid Affiliate of such Qualifying Subtenant, in form reasonably
satisfactory to Landlord, to the effect that such Affiliate assumes all of the
obligations of the Qualifying Subtenant arising under such sublease from and
after the date of such assignment, and (ii) Tenant, with such notice, provides
Landlord with reasonable evidence to the effect that the Person to which such
Qualifying Subtenant is so assigning such sublease constitutes an Affiliate of
such Qualifying Subtenant.
(C) The merger or consolidation of Tenant into or with
another Person shall be permitted without Landlord's prior approval and without
Landlord having the right to consummate an Assignment Recapture in respect
thereof, provided that (i) such merger or consolidation is not principally for
the purpose of transferring the leasehold estate created by this Lease, (ii)
Tenant gives Landlord notice of such merger or consolidation not later than the
tenth (10th) Business Day after the occurrence thereof, and (iii) Tenant
provides Landlord with reasonable evidence that the requirement described in
clause (i) above has been satisfied, promptly after Landlord's request therefor.
(D) The merger or consolidation of a Qualifying Subtenant
into or with another Person shall be permitted without Landlord's prior approval
(and without Landlord having the right to consummate a Subleasehold Assignment
Recapture in respect thereof), provided that (i) such merger or consolidation is
not principally for the purpose of transferring the subleasehold estate created
by such sublease, (ii) Tenant gives Landlord notice of such merger or
consolidation not later than the tenth (10th) Business Day after the occurrence
thereof, and (iii) Tenant provides Landlord with reasonable evidence that the
requirement described in clause (i) above has been satisfied, promptly after
Landlord's request therefor.
103
108
(E) The assignment of Tenant's entire interest hereunder in
connection with the sale of all or substantially all of the assets of Tenant
shall be permitted without Landlord's prior approval and without Landlord having
the right to consummate an Assignment Recapture in respect thereof, provided
that (i) Tenant gives to Landlord, not later than the tenth (10th) Business Day
after any such assignment is consummated, an instrument, duly executed by the
assigning Tenant and the assignee, in form reasonably satisfactory to Landlord,
to the effect that such assignee assumes all of the obligations of the tenant
arising hereunder from and after the date of such assignment, (ii) such sale of
all or substantially all of the assets of Tenant is not principally for the
purpose of transferring the leasehold estate created by this Lease, and (iii)
Tenant provides Landlord with reasonable evidence that the requirement described
in clause (ii) above has been satisfied, promptly after Landlord's request
therefor.
(F) The assignment of a Qualifying Subtenant's entire
interest under the applicable sublease in connection with the sale of all or
substantially all of the assets of such Qualifying Subtenant shall be permitted
without Landlord's prior approval (and without Landlord having the right to
consummate a Subleasehold Assignment Recapture in respect thereof), provided
that (i) Tenant gives to Landlord, not later than the tenth (10th) Business Day
after any such assignment is consummated, an instrument, duly executed by the
assigning Qualifying Subtenant and the assignee, in form reasonably satisfactory
to Landlord, to the effect that such assignee assumes all of the obligations of
the Qualifying Subtenant arising under such sublease from and after the date of
such assignment, (ii) such sale of all or substantially all of the assets of the
Qualifying Subtenant is not principally for the purpose of transferring the
leasehold estate created by such sublease, and (iii) Tenant provides Landlord
with reasonable evidence that the requirement described in clause (ii) above has
been satisfied, promptly after Landlord's request therefor.
(G) The direct or indirect transfer of shares or equity
interests of Tenant (or any Affiliate of Tenant) (including, without limitation,
the issuance of treasury stock, the creation or issuance of a new class of
stock, in the context of an initial public offering or in the context of a
subsequent offering of equity securities) shall not require Landlord's prior
approval (and Landlord shall not have the right to consummate an Assignment
Recapture in respect thereof), provided that (i) such transfer is not
principally for the purpose of transferring the leasehold estate created hereby,
(ii) Tenant gives Landlord notice of such transfer not later than the tenth
(10th) Business Day after the occurrence thereof, and (iii) Tenant provides
Landlord with reasonable evidence that the requirement described in clause (i)
has been satisfied, promptly after Landlord's request therefor.
(H) The direct or indirect transfer of shares or equity
interests of a Qualifying Subtenant (or any Affiliate of a Qualifying Subtenant)
(including, without limitation, the issuance of treasury stock, the creation or
issuance of a new class of stock, in the context of an initial public offering
or in the context of a subsequent offering of equity securities) shall not
require Landlord's prior approval (and Landlord shall not have the right to
consummate a Subleasehold Assignment Recapture in respect thereof), provided
that (i) such transfer is not principally for the purpose of transferring the
subleasehold estate created by such sublease, (ii) Tenant gives Landlord notice
of such transfer not later than the tenth (10th) Business Day
104
109
after the occurrence thereof, and (iii) Tenant provides Landlord with reasonable
evidence that the requirement described in clause (i) above has been satisfied,
promptly after Landlord's request therefor.
(I) Tenant shall have the right to sublease or license the
Premises, or any portion thereof, to an Affiliate of Tenant, and a Qualifying
Subtenant shall have the right to further sublease the Premises, or a part
thereof, to an Affiliate of such Qualifying Subtenant, in either case without
Landlord's prior approval and without Landlord having the right to consummate a
Sublease Recapture in respect thereof, provided that (i) Tenant gives to
Landlord a copy of such sublease or license, not later than the tenth (10th)
Business Day after any such sublease is consummated, (ii) Tenant, with such copy
of such sublease or license, provides Landlord with reasonable evidence to the
effect that the Person to which Tenant (or such Qualifying Subtenant) is so
subleasing or licensing the Premises or a portion thereof constitutes an
Affiliate of Tenant (or such Qualifying Subtenant), and (iii) such sublease
otherwise complies with the terms of clauses (2), (3)(x), (4), (5) and (6) of
Section 12.6(A) hereof.
Section 12.5 If, at any time after Tenant has assigned Tenant's interest
in this Lease, this Lease is disaffirmed or rejected in any proceeding of the
types described in paragraph (D) of Section 16.1 hereof, or in any similar
proceeding, or if this Lease terminates by reason of any such proceeding or by
reason of lapse of time following notice of termination given pursuant to said
Article 16 based upon any Event of Default, then any prior Tenant, including,
without limitation, Bloomberg, upon request of Landlord given within thirty (30)
days next following any such disaffirmance, rejection or termination (and actual
notice thereof to Landlord in the event of a disaffirmance or rejection or in
the event of termination other than by act of Landlord), shall (1) pay to
Landlord all Rental due and owing by the assignee to Landlord under this Lease
to and including the date of such disaffirmance, rejection or termination (it
being agreed that (i) Landlord shall thereupon assign to Tenant all of
Landlord's rights and claims therefor against the assignee, (ii) such rights and
claims shall be subordinate to any rights and claims Landlord may have against
such assignee, and (iii) if this Lease is amended (without such prior Tenant's
consent) from and after the date that such prior Tenant assigned its interest in
this Lease, then the Rental for which such prior Tenant is liable, as aforesaid,
shall not exceed the Rental that would have been due under this Lease to such
date of disaffirmance, rejection or termination, without taking any such
amendment into account), and (2) as "tenant", enter into a new lease with
Landlord for the Premises for a term commencing on the effective date of such
disaffirmance, rejection or termination and ending on the Expiration Date,
unless sooner terminated as in such lease provided, at the same Fixed Rent and
upon the then executory terms, covenants and conditions as are contained in this
Lease as of the date that such prior Tenant so assigned the Tenant's interest
hereunder, except that (a) Tenant's rights under the new lease shall be subject
to the possessory rights of the assignee under this Lease and the possessory
rights of any person claiming through or under such assignee or by virtue of any
statute or of any order of any court (it being agreed that (x) Landlord shall,
at the request of Tenant and at Tenant's expense, cooperate with Tenant in any
effort made by Tenant to obtain possession of the Premises, and (y) if (i)
Landlord has the legal right to recover possession of the Premises from the
assignee, and (ii) the prior Tenant does not have the legal right to recover
possession of the Premises from the assignee, then (A) Landlord shall institute
appropriate proceedings to so recover possession of
105
110
the Premises from the assignee, (B) Landlord shall prosecute such proceedings
diligently and in good faith, (C) Landlord shall consult with the prior Tenant
from time to time in connection therewith, and (D) the prior Tenant shall
reimburse Landlord for the reasonable out-of-pocket costs that Landlord incurs
in connection therewith, within thirty (30) days after Landlord's demand
therefor from time to time), (b) such new lease shall require all defaults
existing under this Lease (that are susceptible to being cured) to be cured by
Tenant with due diligence, and (c) such new lease shall require Tenant to pay
all Escalation Rent reserved in this Lease which, had this Lease not been so
disaffirmed, rejected or terminated, would have accrued under the provisions of
Article 26 hereof after the date of such disaffirmance, rejection or termination
with respect to any period prior thereto. If any such prior Tenant defaults in
its obligation to enter into said new lease for a period of thirty (30) days
next following Landlord's request therefor, then, in addition to all other
rights and remedies by reason of such default, either at law or in equity,
Landlord shall have the same rights and remedies against such Tenant as if such
Tenant had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of such Tenant's
default thereunder. Landlord shall enter into such a new lease on the terms set
forth in this Section 12.5(E) with Bloomberg as the tenant thereunder if (x)
this Lease terminates under Section 16.1(C) hereof or Section 16.1(D) hereof,
(y) a Bloomberg Party is not Tenant hereunder on the date that this Lease so
terminates, and (z) Bloomberg gives Landlord notice to the effect that Bloomberg
elects to enter into such a new lease not later than the fifth (5th) Business
Day after the date that Landlord gives Bloomberg notice of such termination.
Section 12.6 (A) Notwithstanding the provisions of Section 12.1 hereof, if
Landlord is not entitled to or does not exercise its rights to consummate a
Sublease Recapture, then Landlord shall not unreasonably withhold, delay, or
condition its consent to any subletting (or further subletting) of the Premises
by a Permitted Occupant, in whole or in part, provided that:
(1) no Event of Default has occurred and is
continuing;
(2) upon the date the Permitted Occupant delivers
the Sublease Statement to Landlord and upon the date immediately preceding the
commencement date of any sublease approved (or deemed approved) by Landlord, the
proposed subtenant is of a character, engaged in a business, and proposes to use
the Premises, in each case in a manner that is consistent with the Building
Standard;
(3) the subletting is expressly subject to all of
the terms, covenants, conditions and obligations on Tenant's part to be
observed and performed under this Lease;
(4) the term of the subletting is not less than
two (2) years;
(5) such subletting is for no less than ten
thousand (10,000) contiguous square feet of Rentable Area and there are not more
than five (5) occupants, including Tenant, on any one (1) floor of the Premises;
106
111
(6) subject to the terms of a Recognition
Agreement theretofore executed and delivered by Landlord, such sublease shall
expressly provide that in the event of termination, re-entry or dispossession of
Tenant by Landlord under this Lease, Landlord may, at its option, take over all
of the right, title and interest of the Permitted Occupant, as sublessor under
such sublease, and such subtenant, at Landlord's option, shall attorn to
Landlord pursuant to the then executory provisions of such sublease, except that
Landlord shall not be:
(i) liable for any act or omission of such
Permitted Occupant under such sublease, or
(ii) subject to any credits, defenses or offsets
which such subtenant may have against such Permitted Occupant, except expressly
as set forth in such sublease, or
(iii) subject to clauses (vii) and (viii) of
this Section 12.6(A)(6), bound by any previous payment which such subtenant may
have made to such Permitted Occupant more than thirty (30) days in advance of
the date upon which such payment was due, unless previously approved by
Landlord, or
(iv) subject to clauses (vii) and (viii) of this
Section 12.6(A)(6), bound by any obligation to make any payment to or on behalf
of such subtenant, or
(v) bound by any provision of such sublease to
perform any work or to make improvements to the Premises, or the portion thereof
demised by such sublease (except for repairs to be made or other work to be
performed by Landlord under Articles 4, 5 or 6 hereof, and restorations to be
performed by Landlord (or restorations that Landlord is required to cause the
Condominium Association to perform) under Articles 10 or 11 hereof), or
(vi) bound by any amendment or modification of
such sublease made without its consent (provided that communications between
such Permitted Occupant and such subtenant of an administrative nature relating
to the ordinary course of operation or tenancy of the subleased premises that do
not purport to be amendments or modifications of such sublease and do not
materially and adversely affect the rights of such Permitted Occupant or
Landlord shall not be deemed amendments or modifications for purposes of this
clause (vi)), or
(vii) bound to return such subtenant's security
deposit, if any, until such deposit has come into its actual possession and such
subtenant would be entitled to such security deposit pursuant to the terms of
such sublease, or
(viii) bound to credit or refund to such
subtenant as provided in such sublease any prepayment of rent or other charges
paid by subtenant, until such prepayment is actually received by Landlord.
107
112
(B) Except as otherwise provided in Section 12.4 hereof and
subject to the terms of this Section 12.6(B), if (x) a Permitted Occupant
proposes to sublet (or further sublet) all or any portion of the Premises in
respect of which Landlord does not have the right to consummate a Sublease
Recapture, or (y) a Permitted Occupant proposes to sublet (or further sublet)
all or any portion of the Premises in respect of which (I) Landlord had the
right to consummate a Sublease Recapture, (II) such Permitted Occupant gave a
Recapture Statement to Landlord as contemplated by Section 12.6(C) hereof, and
(III) Landlord did not exercise Landlord's rights to consummate a Sublease
Recapture in respect thereof, then Tenant shall (or shall cause the applicable
Permitted Occupant to) submit a statement to Landlord (a "Sublease Statement")
containing the following information: (a) a description of the Premises (or a
portion thereof) to be sublet (or further sublet), (b) the name of the proposed
subtenant, (c) the material terms and conditions of the proposed subletting,
including, without limitation, the rent payable, the free rent period (if any)
and the reasonable estimate of the cost (including overhead and supervision) of
any improvements (including any demolition to be performed) to the Premises for
occupancy by the proposed subtenant, and (d) any other information that Landlord
may reasonably request within ten (10) Business Days after Landlord's receipt of
the Sublease Statement, together with a statement specifically directing
Landlord's attention to the provisions of this Section 12.6(B) requiring
Landlord to respond to the Sublease Statement within fifteen (15) Business Days
after Landlord's receipt of the Sublease Statement. If Landlord fails to notify
Tenant within fifteen (15) Business Days after the date that the Permitted
Occupant gives the Sublease Statement to Landlord of Landlord's consent to or
disapproval of the proposed subletting (or further subletting) pursuant to the
Sublease Statement as contemplated by Section 12.6(A) hereof, or if Landlord
consents to such subletting as provided in Section 12.6(A) hereof, then the
Permitted Occupant shall have the right to sublease (or further sublease) the
Premises (or the applicable portion thereof) to the proposed subtenant on
substantially the same terms and conditions set forth in the Sublease Statement.
If such Permitted Occupant does not enter into such sublease (or further
sublease) within one hundred eighty (180) days after the delivery of the
Sublease Statement to Landlord, then the provisions of Section 12.1 hereof and
this Section 12.6 shall again be applicable to any other proposed subletting. If
such Permitted Occupant enters into such sublease (or further sublease) within
one hundred eighty (180) days as aforesaid, then Tenant shall deliver (or shall
cause the applicable Permitted Occupant to deliver) a true, complete and fully
executed counterpart of such sublease (or further sublease) to Landlord within
ten (10) days after execution thereof. If Landlord consents (or is deemed to
have consented) to a sublease (or further sublease) by a Permitted Occupant as
contemplated by this Section 12.6, then Landlord shall have the right to require
the Permitted Occupant (and Tenant, if applicable) and the subtenant to execute
and deliver a Consent to Sublease with respect to such sublease (or further
sublease) in substantially the form of the Consent to Sublease set forth in
Exhibit 12.6 attached hereto and made a part hereof (it being understood that
nothing contained in said Consent to Sublease shall permit Landlord to double
count the costs and expenses to which Landlord is entitled to reimbursement
under Section 12.2(B) hereof).
(C) Subject to Section 12.4 hereof and Section 12.16 hereof,
if a Permitted Occupant proposes to sublease (or further sublease) all or any
portion of the Premises
108
113
for the balance of the Term (or the Renewal Term, if Tenant has exercised the
Renewal Option) (it being agreed that for purposes of this Article 12, any
proposed sublease (or further sublease) shall be deemed to be for the balance of
the Term (or the Renewal Term) if the last day of the term (or any renewal term)
of the proposed sublease (or further sublease) occurs (or could occur) later
than eighteen (18) months prior to the last day of the Term (or the Renewal
Term)) (any such sublease or further sublease that is deemed to extend for the
balance of the Term being referred to herein as a "Long Term Sublease"), then
Tenant shall submit (or shall cause the applicable Permitted Occupant to submit)
a statement to Landlord (a "Recapture Statement") containing the following
information: (a) a description of the Premises (or portion thereof) to be sublet
(or further sublet) (the "Recapture Space"), (b) the material terms and
conditions of the proposed subletting (or further subletting), including,
without limitation, the term of such proposed subletting (or further
subletting), the rent payable, the free rent period (if any), and the reasonable
estimate of the cost (including general conditions, overhead and supervision) of
any improvements (including any demolition) to be performed in the Recapture
Space to prepare the Recapture Space for occupancy by a subtenant, and (c) any
other information that Landlord may reasonably request within ten (10) Business
Days after Landlord's receipt of the Recapture Statement (but excluding the
identity of the proposed subtenant), together with a statement specifically
directing Landlord to respond to the Recapture Statement within (i) thirty (30)
days after Tenant (or the applicable Permitted Occupant) gives to Landlord the
Recapture Statement, if the number of square feet of Rentable Area in the
Recapture Space is less than fifty thousand (50,000), or (ii) ninety (90) days
after Tenant (or the applicable Permitted Occupant) gives to Landlord the
Recapture Statement, if the number of square feet of Rentable Area in the
Recapture Space is equal to or greater than fifty thousand (50,000). Landlord
shall have the right, exercisable within thirty (30) days or ninety (90) days
(as the case may be) after Tenant (or the applicable Permitted Occupant) gives
to Landlord the Recapture Statement, to terminate this Lease with respect to the
Recapture Space by giving notice thereof to Tenant. If Landlord exercises such
right, then the Term shall expire with respect to the Recapture Space on the
earlier to occur of (I) the date that is the term commencement date under a
lease in respect of the Recapture Space that Landlord consummates with a third
party (except that the date described in this clause (I) shall not be earlier
than the ninetieth (90th) day after the date that Landlord exercises such
right), and (II) a date set by Landlord that is no sooner than one hundred
eighty (180) days, and no later than two hundred seventy (270) days, after the
date of Landlord's notice, and Tenant shall vacate (or shall cause the Permitted
Occupant to vacate) the Recapture Space and surrender possession thereof to
Landlord on such date in accordance with the provisions of Article 20 hereof
(any such termination of the Lease with respect to the Recapture Space pursuant
to this Section 12.6(C) being referred to herein as a "Sublease Recapture").
From and after the date that a Sublease Recapture becomes effective, (i) this
Lease shall remain in full force and effect, (ii) the Recapture Space shall be
deleted from the Premises, (iii) the Fixed Rent shall be recalculated based on
the Rentable Area of the portion of the Premises that remains after such
Sublease Recapture, (iv) if the Recapture Space does not comprise the entire
Premises, then Tenant, at Tenant's sole cost and expense, shall demise the
Recapture Space separately from the remainder of the Premises, and (v) Tenant
shall pay to Landlord on the first day of each month for the remainder of the
Term the amount, if any, by which (a) the Rental which would have been due
hereunder in respect of the Recapture Space for such month, exceeds (b) the
aggregate rental that Tenant (or such Permitted Occupant) would have realized
under the sublease transaction
109
114
described in the Recapture Statement for such month (it being understood that
(i) for purposes of determining such aggregate rental, the brokerage commission,
improvement allowances and free rent that Tenant (or such Permitted Occupant)
would have incurred under the sublease transaction described in the Recapture
Statement shall be amortized in equal monthly installments, with interest at the
Base Rate, over the term of such sublease, and the monthly installments shall be
deducted from the monthly rental that would have been realized under such
sublease transaction, and (ii) if the Recapture Space comprises the entire
Premises, then Tenant's obligation to pay the aforesaid amount to Landlord shall
survive the Sublease Recapture). If (x) Tenant (or such Permitted Occupant)
gives a Recapture Statement to Landlord as contemplated by this Section 12.6(C),
(y) Landlord does not exercise Landlord's rights to effect a Sublease Recapture
in respect thereof, and (z) Tenant (or the applicable Permitted Occupant) does
not give a Sublease Statement in respect of such subletting within two hundred
seventy (270) days after the delivery of the Recapture Statement to Landlord,
then the provisions of Section 12.1 hereof and this Section 12.6 shall again be
applicable to any other proposed subletting therefor (including, without
limitation, the requirement that Tenant (or the applicable Permitted Occupant)
deliver to Landlord a Recapture Statement therefor). If, at any time during the
period of two hundred seventy (270) days commencing on the date that Tenant (or
the applicable Permitted Occupant) gives a Recapture Statement to Landlord, the
sublease rental, the term, the portion of the Premises that Tenant proposes to
sublet, or any other term set forth in such Recapture Statement, changes such
that there is a decrease by more than ten percent (10%) in the economic value to
Tenant of the terms of the proposed sublease specified in the Recapture
Statement (taking into account, without limitation, work to be performed, work
allowances, and free rent periods, and determined using a discount rate of three
hundred (300) basis points over the then current yield on obligations of the
United States Treasury having a term approximately equal to the term of the
proposed sublease, but not less than ten (10) years), then Tenant (or the
applicable Permitted Occupant) shall not have the right to enter into any
sublease unless Tenant (or the applicable Permitted Occupant) gives Landlord a
revised Recapture Statement in respect thereof, and the procedure described in
this Section 12.6(C) shall again apply. The submission by Tenant or such
Permitted Occupant of such revised Recapture Statement shall be accompanied by a
statement directing Landlord to respond thereto on or prior to the later of (x)
the fifteenth (15th) Business Day after the date that Tenant (or the applicable
Permitted Occupant) gives such revised Recapture Statement to Landlord, and (y)
either (I) the thirtieth (30th) day after the date that Tenant (or the
applicable Permitted Occupant) gives the initial Recapture Statement to Landlord
(if the Recapture Space is comprised of Rentable Area of fifty thousand (50,000)
square feet or less), or (II) the ninetieth (90th) day after the date that
Tenant gives the initial Recapture Statement to Landlord (if the Recapture Space
is comprised of Rentable Area of more than fifty thousand (50,000) square feet)
(the later of the dates described in clause (x) and clause (y) being referred to
herein as the "Revised Deadline"); provided, however, that the fifteen (15)
Business Day period described in clause (x) above shall be increased to thirty
(30) days (if the Recapture Space is comprised of fifty thousand (50,000) square
feet of Rentable Area or less) or ninety (90) days (if the Recapture Space is
comprised of more than fifty thousand (50,000) square feet of Rentable Area) if
Tenant (or the applicable Permitted Occupant) does not identify the proposed
subtenant in such revised Recapture Statement. Landlord shall have the right,
exercisable on or prior to the Revised Deadline, to effect a Sublease Recapture
in accordance with the provisions of this Section 12.6(C).
110
115
(D) The failure by Landlord to exercise its option under
Section 12.6(C) with respect to any subletting shall not be deemed a waiver of
such option with respect to any extension of such subletting (or further
subletting) or any subsequent subletting (or further subletting) of the Premises
affected thereby (other than, in either case, pursuant to the express terms of a
sublease theretofore approved, or deemed approved, by Landlord).
(E) Tenant shall have the right to terminate any sublease
that Tenant consummates with a Qualifying Subtenant in accordance with this
Article 12 without Landlord's prior approval; provided, however, that (x) if an
Event of Default has occurred and is continuing, then Tenant shall not terminate
any such sublease (other than a sublease that Tenant consummates pursuant to
Section 12.4 hereof) without Landlord's prior approval, and (y) Tenant shall not
have the right to so terminate any sublease after the date that Tenant gives to
Landlord a Recapture Statement or a Subleasehold Assignment Statement in
connection with the Qualifying Subtenant's proposed further subletting or
assignment of such Qualifying Subtenant's interest under the applicable
sublease, unless Landlord's right to exercise a Sublease Recapture or a
Subleasehold Assignment Recapture in respect thereof has lapsed without being
exercised. Landlord acknowledges that Tenant may exercise Tenant's right to
terminate a sublease under this Section 12.6(E) in connection with the
Qualifying Subtenant's proposed further subleasing of the Premises or the
applicable portion thereof or the Qualifying Subtenant's proposed assignment of
its interest under the applicable sublease, in either case prior to the date
that Tenant gives to Landlord a Recapture Statement or a Subleasehold Assignment
Statement in respect thereof, in which case Landlord shall not have the right to
consummate a Sublease Recapture or a Subleasehold Assignment Recapture in
connection therewith.
Section 12.7 (A) Subject to the terms of this Section 12.7(A) and Section
12.14 hereof, in connection with any subletting of all or any portion of the
Premises, Tenant shall pay to Landlord an amount equal to fifty percent (50%) of
any Sublease Profit derived therefrom. Tenant shall not be entitled to any
proceeds derived from or relating to (directly or indirectly) any leasing of the
Recapture Space by Landlord. All sums payable by Tenant to Landlord on account
of Sublease Profit shall be paid to Landlord, as additional rent, within ten
(10) days after receipt thereof by Tenant (or the applicable Permitted
Occupant). Tenant shall not be required to make payments to Landlord on account
of Sublease Profit to the extent deriving from Tenant's subleasing of the
Premises or a portion thereof to Tenant's Affiliate, or a Qualifying Subtenant's
further subleasing of the Premises or a portion thereof to such Qualifying
Subtenant's Affiliate, in either case without Landlord's consent pursuant to
Section 12.4 hereof.
(B) For purposes of this Lease:
(1) "Escalation Rent Per Square Foot" shall mean,
at any particular time, the quotient obtained by dividing (I) the Escalation
Rent payable hereunder at such time, by (II) the Rentable Area of the Premises
at such time.
111
116
(2) "Rent Per Square Foot" shall mean, at any
particular time:
(i) with respect to the First Price Space, the Second Price
Space or the Third Price Space, the sum of (I) the amount
applicable at such time, as set forth on Exhibit
Definitions-E attached hereto, and (II) the Escalation Rent
Per Square Foot;
(ii) with respect to any Applicable Option Space with respect to
which Tenant has exercised the Option, the sum of (I) the
quotient obtained by dividing (A) the Fixed Rent due
hereunder in respect of such Applicable Option Space at such
time, by (B) the number of square feet of Rentable Area
comprising such Applicable Option Space, and (II) the
Escalation Rent Per Square Foot; and
(iii) with respect to any space that is added to the Premises
by reason of Tenant's exercise of the Shortage Option or
the Early Option in accordance with the terms hereof, the
sum of (I) the quotient obtained by dividing (A) the
Fixed Rent due hereunder in respect of such space at such
time, by (B) the number of square feet of Rentable Area
comprising such space, and (II) the Escalation Rent Per
Square Foot;
provided, however, that if the sublessor under the applicable sublease is a
Permitted Occupant (other than Tenant), then the Rent Per Square Foot shall mean
the quotient obtained by dividing (x) the aggregate rental payable by such
Permitted Occupant for the Premises (or the portion thereof that has been
demised to such Permitted Occupant), by (y) the number of square feet of
Rentable Area in the Premises (or such portion thereof).
(3) "Sublease Profit" shall mean the product
obtained by multiplying (x) the excess, if any, of the Sublease Rent Per Square
Foot over the Rent Per Square Foot, by (y) the number of square feet of Rentable
Area constituting the portion of the Premises sublet by Tenant (or the
applicable Permitted Occupant).
(4) "Sublease Rent" shall mean any rent or other
consideration paid to Tenant (or the applicable Permitted Occupant) directly or
indirectly by any subtenant or any other amount received by Tenant (or the
applicable Permitted Occupant) from or in connection with any subletting or
further subletting (including, but not limited to, sums paid for the sale or
rental, or consideration received on account of any contribution, of Tenant's
Property or sums paid in connection with the supply of electricity or HVAC) less
the Sublease Expenses.
(5) "Sublease Expenses" shall mean: (i) in the
event of a sale of Tenant's Property or the personal property of the applicable
Permitted Occupant, as the case may be, the then unamortized or undepreciated
cost thereof determined on the basis of Tenant's federal income tax returns,
(ii) the out-of-pocket costs and expenses of Tenant (or the applicable Permitted
Occupant) in making such sublease, such as brokers' fees, attorneys' fees,
architects'
112
117
and space planning fees, and advertising fees paid to unrelated third parties,
(iii) any sums paid to Landlord pursuant to Section 12.2(B) hereof, (iv) the
cost of improvements or alterations made by Tenant (or the applicable Permitted
Occupant) expressly and solely for the purpose of preparing that portion of the
Premises for such subtenancy less the present value (calculated using a discount
rate equal to the Base Rate) of the reasonable residual value thereof at the
expiration of such sublease (which reasonable residual value shall be determined
after taking into account the portion of the Term (if any) that remains after
the expiration of such sublease), (v) the unamortized or undepreciated cost of
any Tenant's Property (or any such personal property of such Permitted Occupant,
as the case may be) leased to and used by such subtenant less the present value
(calculated using a discount rate equal to the Base Rate) of the reasonable
residual value thereof at the expiration of such sublease; (vi) any moving
expenses of the subtenant paid for by Tenant (or the applicable Permitted
Occupant), (vii) any "takeover" expenses paid by Tenant (or the applicable
Permitted Occupant) in connection with such subtenant's then existing leases,
(viii) any payments required to be, and actually made, by Tenant (or the
applicable Permitted Occupant) in connection with such sublease for any real
property transfer tax, transfer gains tax or similar tax of the United States or
the City or State of New York (other than any income tax), (ix) the costs of
Tenant (or the applicable Permitted Occupant) in connection with the supply of
electricity or HVAC or any other utilities or other services provided to the
subtenant, and (x) any other reasonable tenant inducement costs incurred by
Tenant (or the applicable Permitted Occupant) (other than inducements
constituting rent credits or free rent periods). In determining Sublease Rent,
the costs set forth above shall be amortized (together with interest thereon
calculated at the Base Rate) on a straight-line basis over the term of such
sublease.
(6) "Sublease Rent Per Square Foot" shall mean
the quotient obtained by dividing (I) the Sublease Rent, by (II) the number of
square feet of Rentable Area of the space demised under the sublease in
question.
Sublease Profit shall be recalculated from time to time to reflect any
corrections in the prior calculation thereof due to (i) subsequent payments
received or made by Tenant (or the applicable Permitted Occupant), (ii) the
final adjustment of payments to be made by or to Tenant (or the applicable
Permitted Occupant), and (iii) mistake. Promptly after receipt or final
adjustment of any such payments or discovery of any such mistake, Tenant shall
submit (or Tenant shall cause such Permitted Occupant to submit) to Landlord a
recalculation of the Sublease Profit, and, if required, an adjustment shall be
made between Landlord and Tenant, on account of prior payments made or credits
received pursuant to this Section 12.7.
113
118
Section 12.8 (A) Notwithstanding the provisions of Section 12.1 hereof,
Landlord shall not unreasonably withhold, condition or delay its consent to (x)
an assignment of Tenant's interests under this Lease in its entirety (if
Landlord does not exercise Landlord's right to consummate an Assignment
Recapture in respect thereof), or (y) an assignment of a Qualifying Subtenant's
entire interest as subtenant under the applicable sublease (if Landlord does not
exercise Landlord's right to consummate a Subleasehold Assignment Recapture in
respect thereof), provided that in either case:
(1) no Event of Default has occurred and is
continuing;
(2) upon the date Tenant (or the applicable
Permitted Occupant) delivers the Assignment Statement (or the Subleasehold
Assignment Statement) to Landlord and upon the date immediately preceding the
date of any assignment approved (or deemed approved) by Landlord, the proposed
assignee is of a character, engaged in a business, and proposes to use the
Premises, in each case in a manner that is consistent with the Building
Standard; and
(3) the assignee agrees to assume all of the
obligations of Tenant under this Lease, or the Qualifying Subtenant under the
applicable sublease, to the extent accruing from and after the date of the
assignment.
(B) (1) Subject to the terms of Section 12.4 hereof and this
Section 12.8(B), if Tenant proposes to assign the tenant's interest hereunder in
its entirety, then Tenant shall submit a statement to Landlord (the "Assignment
Statement") containing the following information: (i) the essential terms and
conditions of the proposed assignment, including, without limitation, the
consideration payable either by Tenant or the assignee for such assignment and
the value (including cost, overhead and supervision) of any improvements
(including any demolition to be performed) to the Premises proposed to be made
by Tenant to prepare the Premises for occupancy by the proposed assignee, and
(ii) other information that Landlord may reasonably request within ten (10)
Business Days after receipt of the Assignment Statement, together with a
statement specifically directing Landlord's attention to the provisions of this
Section 12.8(B) requiring Landlord to respond to the Assignment Statement within
ninety (90) days after Landlord's receipt of the Assignment Statement (it being
understood that Tenant shall not be required to identify the proposed assignee
in the Assignment Statement).
(2) Landlord shall have the right, exercisable by
notice given by Landlord to Tenant within ninety (90) days after Landlord's
receipt of the Assignment Statement, to terminate this Lease, in which event the
Term shall expire on the date designated by Tenant in the Assignment Statement,
and Tenant shall vacate the Premises and surrender possession thereof to
Landlord on such date in accordance with the provisions of Article 20 hereof. If
(i) the Assignment Statement contemplates that Tenant would pay consideration to
the assignee to induce such assignee to take the tenant's interest hereunder by
assignment, and (ii) Landlord exercises Landlord's right to so terminate this
Lease, then Tenant shall pay such consideration to Landlord on the date or dates
that Tenant would have otherwise paid such sums to its assignee (any such
termination of this Lease as contemplated by this Section 12.8(B)(2)
114
119
being referred to herein as an "Assignment Recapture") (it being understood that
Tenant's obligation to pay such consideration shall survive the Assignment
Recapture).
(3) If Tenant does not enter into an assignment
of the tenant's interest under this Lease in accordance with the terms of this
Section 12.8 within two hundred seventy (270) days after the earlier to occur of
(x) the ninetieth (90th) day after Tenant gives the Assignment Statement to
Landlord, and (y) the date that Landlord advises Tenant that Landlord is not
exercising Landlord's rights to consummate an Assignment Recapture in respect of
the assignment contemplated by the Assignment Statement, then the provisions of
this Section 12.8 shall again be applicable in their entirety to any proposed
assignment. If, at any time after delivery of an Assignment Statement, the
consideration payable to or by Tenant pursuant to the terms of the assignment
transaction as set forth in the Assignment Statement changes in any material
respect such that there is a decrease by more than ten percent (10%) in the
economic value to Tenant of the terms of the proposed assignment specified in
the Assignment Statement (determined using a discount rate of three hundred
(300) basis points over the then current yield on 10-year obligations of the
United States Treasury), then Tenant shall promptly notify Landlord of such
change by giving to Landlord a revised Assignment Statement and Landlord shall
have the right, exercisable within fifteen (15) Business Days after Landlord's
receipt of such revised Assignment Statement, to consummate an Assignment
Recapture in respect thereof; provided, however, that (i) such period of fifteen
(15) Business Days shall be extended to ninety (90) days if Tenant does not
identify the proposed assignee in such revised Assignment Statement, and (ii) in
no event shall Landlord be required to indicate whether Landlord elects to
exercise Landlord's rights to consummate an Assignment Recapture earlier than
the ninetieth (90th) day after the date that Tenant gives the initial Assignment
Statement to Landlord. Prior to entering into any such assignment, Tenant shall
notify Landlord of the identity of the proposed assignee (if not identified in
the Assignment Statement) so that Landlord may exercise its reasonable approval
rights pursuant to this Section 12.8. If Landlord fails to notify Tenant within
fifteen (15) Business Days of Landlord's receipt of such notice identifying the
proposed assignee of Landlord's objections thereto, then Tenant shall have the
right to assign the tenant's interest under this Lease to such proposed assignee
on substantially the same terms set forth in the Assignment Statement (as the
same may have been modified, as aforesaid) pursuant to an assignment which shall
otherwise be subject to the terms and conditions of this Lease; provided,
however, that in no event shall Landlord be deemed to have approved a proposed
assignee earlier than the ninetieth (90th) day after Tenant gives the initial
Assignment Statement to Landlord. If Landlord consents (or is deemed to have
consented) to an assignment by Tenant as contemplated by this Section 12.8, then
Landlord shall have the right to require Tenant and the assignee to execute and
deliver a Consent to Assignment with respect to such assignment in substantially
the form of the Consent to Assignment set forth in Exhibit 12.8 attached hereto
and made a part hereof (it being understood that nothing contained in said
Consent to Assignment shall permit Landlord to double count the costs and
expenses to which Landlord is entitled to reimbursement under Section 12.2(B)
hereof).
(C) If Tenant assigns the tenant's interest under this Lease
as contemplated by this Section 12.8, then Tenant shall deliver to Landlord,
within seven (7) days after the date that such assignment becomes effective, (x)
a duplicate original instrument of
115
120
assignment, duly executed by Tenant, and (y) an instrument, duly executed by the
assignee, in which such assignee assumes observance and performance of all of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed from and after the date of such assignment.
(D) Except with respect to assignments made by Tenant
pursuant to Section 12.4 hereof, Tenant shall pay to Landlord, upon receipt
thereof, an amount equal to fifty percent (50%) of all Assignment Proceeds. As
used herein, the term "Assignment Proceeds" shall mean all consideration payable
to Tenant, directly or indirectly, by any assignee, or any other amount received
by Tenant from or in connection with any assignment (including, but not limited
to, sums paid for the sale or rental, or consideration received on account of
any contribution, of Tenant's Property) after deducting therefrom: (i) in the
event of a sale (or contribution) of Tenant's Property, the then unamortized or
undepreciated cost thereof determined in accordance with generally accepted
accounting principles, (ii) the out-of-pocket costs and expenses of Tenant in
making such assignment, including, without limitation, brokers' fees, attorneys'
fees, and advertising fees paid to unrelated third parties, (iii) any payments
required to be made, and actually made, by Tenant in connection with the
assignment of its interest in this Lease pursuant to any real property transfer
tax or real property transfer gains tax (or similar tax) of the United States or
the City or State of New York (other than any income tax), (iv) any sums paid by
Tenant to Landlord pursuant to Section 12.2(B) hereof, (v) the cost of
improvements or alterations made by Tenant expressly and solely for the purpose
of preparing the Premises for such assignment (or cash allowance given to such
assignee in lieu thereof), (vi) the then unamortized or undepreciated cost of
any Tenant's Property leased to and used by such assignee, as determined in
accordance with generally accepted accounting principles, (vii) Tenant's
Unamortized Alterations Cost, (viii) any moving expenses of the assignee paid
for by Tenant, (ix) any "takeover" expenses incurred by Tenant in connection
with such assignee's then existing lease, and (x) any other reasonable tenant
inducement costs paid by Tenant. If Landlord exercises its rights to consummate
an Assignment Recapture, then Tenant shall not be entitled to any proceeds
derived from or relating to (directly or indirectly) any lease of the Premises
by Landlord following Landlord's exercise of such rights.
(E) (1) Subject to the terms of Section 12.4 hereof, Section
12.16 hereof and this Section 12.8(E), if (I) a Qualifying Subtenant occupies
the Premises or a portion thereof under a sublease that constitutes a Long Term
Sublease, and (II) such Qualifying Subtenant proposes to assign the Qualifying
Subtenant's interest under such sublease in its entirety, then Tenant shall
submit (or shall cause the Qualifying Subtenant to submit) a statement to
Landlord (the "Subleasehold Assignment Statement") containing the following
information: (i) the essential terms and conditions of the proposed assignment,
including, without limitation, the consideration payable either by the
Qualifying Subtenant or the assignee for such assignment and the cost (including
overhead and supervision) of any improvements (including any demolition to be
performed) to the Premises (or the applicable portion thereof) proposed to be
made by the Qualifying Subtenant to prepare the Premises (or the applicable
portion thereof) for occupancy by the proposed assignee, and (ii) other
information that Landlord may reasonably request within ten (10) Business Days
after receipt of the Subleasehold Assignment Statement, together with a
statement specifically directing Landlord's attention to the provisions of this
116
121
Section 12.8(E) requiring Landlord to respond to the Subleasehold Assignment
Statement within thirty (30) days after Landlord's receipt of the Subleasehold
Assignment Statement (if the applicable Long Term Sublease demises Fifty
Thousand (50,000) square feet of Rentable Area or less) or within ninety (90)
days after Landlord's receipt of the Subleasehold Assignment Statement (if the
applicable Long Term Sublease demises more than Fifty Thousand (50,000) square
feet of Rentable Area) (it being understood that Tenant (or the Qualifying
Subtenant) shall not be required to identify the proposed assignee in the
Subleasehold Assignment Statement).
(2) Landlord shall have the right, exercisable by
notice given by Landlord to Tenant within ninety (90) days after Landlord's
receipt of the Subleasehold Assignment Statement (with respect to a Long Term
Sublease that demises more than Fifty Thousand (50,000) square feet of Rentable
Area), or within thirty (30) days after Landlord's receipt of the Subleasehold
Assignment Statement (with respect to a Long Term Sublease that demises Fifty
Thousand (50,000) square feet of Rentable Area or less), to terminate this Lease
with respect to the Premises or the applicable portion thereof demised by the
applicable Long Term Sublease (the Premises or such portion thereof being
referred to herein as the "Subleasehold Assignment Space"), in which case the
Term shall expire with respect to the Subleasehold Assignment Space on the date
designated by Tenant (or the Qualifying Subtenant) in the Subleasehold
Assignment Statement, and Tenant shall cause the applicable Qualifying Subtenant
to vacate the Subleasehold Assignment Space and surrender possession thereof to
Landlord on such date in accordance with the provisions of Article 20 hereof
(any such termination of the Lease with respect to the Subleasehold Assignment
Space pursuant to this Section 12.8(E) being referred to herein as a
"Subleasehold Assignment Recapture"). From and after the date that a
Subleasehold Assignment Recapture becomes effective, (i) this Lease shall remain
in full force and effect, (ii) the Subleasehold Assignment Space shall be
deleted from the Premises, (iii) the Fixed Rent shall be recalculated based on
the Rentable Area of the portion of the Premises that remains after such
Subleasehold Assignment Recapture, (iv) if the Subleasehold Assignment Space
does not comprise the entire Premises, then Tenant, at Tenant's sole cost and
expense, shall demise the Subleasehold Assignment Space separately from the
remainder of the Premises, and (v) Tenant shall pay to Landlord, on the first
day of each month for the remainder of the Term the amount, if any, by which (a)
the Rental which would have been due hereunder in respect of the Subleasehold
Assignment Space for such month, exceeds (b) the aggregate sublease rental that
would have been payable by the applicable Qualifying Subtenant under the
applicable Long Term Sublease (it being understood that (i) for purposes of
determining such aggregate rental, the brokerage commission, improvement
allowances, and free rent that the sublessor incurs for the applicable sublease
transaction shall be amortized in equal monthly installments, with interest at
the Base Rate, over the term of such sublease, and (ii) if the Subleasehold
Assignment Space comprises the entire Premises, then Tenant's obligation to pay
the aforesaid amount shall survive the Subleasehold Assignment Recapture). If
the Subleasehold Assignment Statement contemplates that the applicable
Qualifying Subtenant would pay consideration to the assignee to induce such
assignee to take the subtenant's interest under the applicable Long Term
Sublease by assignment, then Tenant shall pay (or shall cause such Qualifying
Subtenant to pay) such consideration to Landlord on the date or dates that such
Qualifying Subtenant would have otherwise paid such sums to its assignee (it
being understood that if the Subleasehold Assignment Space comprises the entire
Premises, then Tenant's
117
122
obligation to pay (or to cause such Qualifying Subtenant to pay) such
consideration shall survive the Subleasehold Assignment Recapture).
(3) If such Qualifying Subtenant does not enter
into an assignment of the subtenant's interest under the applicable Long Term
Sublease in accordance with the terms of this Section 12.8(E) within two hundred
seventy (270) days after the earlier to occur of (x) the ninetieth (90th) day
after Tenant (or the applicable Qualifying Subtenant) gives the Subleasehold
Assignment Statement to Landlord, and (y) the date that Landlord advises Tenant
that Landlord is not exercising Landlord's rights to consummate a Subleasehold
Assignment Recapture in respect of the assignment contemplated by the
Subleasehold Assignment Statement, then the provisions of this Section 12.8(E)
shall again be applicable in their entirety to any proposed assignment of the
Qualifying Subtenant's interest under such Long Term Sublease. If, at any time
after delivery of a Subleasehold Assignment Statement, the consideration payable
to or by the Qualifying Subtenant pursuant to the terms of the assignment
transaction as set forth in the Subleasehold Assignment Statement changes in any
material respect such that there is a decrease by more than ten percent (10%) in
the economic value to the Qualifying Subtenant of the terms of the proposed
assignment specified in the Subleasehold Assignment Statement (determined using
a discount rate of three hundred (300) basis points over the then current yield
on 10-year obligations of the United States Treasury), then Tenant shall
promptly notify (or shall cause the applicable Qualifying Subtenant to notify)
Landlord of such change by giving to Landlord a revised Subleasehold Assignment
Statement and Landlord shall have the right, exercisable within fifteen (15)
Business Days after Landlord's receipt of such revised Subleasehold Assignment
Statement, to consummate a Subleasehold Assignment Recapture in respect thereof;
provided, however, that (i) such period of fifteen (15) Business Days shall be
extended to (I) ninety (90) days if Tenant (or the applicable Qualifying
Subtenant) does not identify the proposed assignee in such revised Subleasehold
Assignment Statement and the applicable Long Term Sublease demises more than
Fifty Thousand (50,000) square feet of Rentable Area, or to (II) thirty (30)
days if Tenant (or the applicable Qualifying Subtenant) does not identify the
proposed assignee in such revised Subleasehold Assignment Statement and the
applicable Long Term Sublease demises Fifty Thousand (50,000) square feet of
Rentable Area or less, and (ii) in no event shall Landlord be required to
indicate whether Landlord elects to exercise Landlord's rights to consummate a
Subleasehold Assignment Recapture earlier than the ninetieth (90th) day after
the date that Tenant (or the applicable Qualifying Subtenant) gives the initial
Subleasehold Assignment Statement to Landlord (if the applicable Long Term
Sublease demises more than Fifty Thousand (50,000) square feet of Rentable
Area), or the thirtieth (30th) day after the date that Tenant (or the applicable
Qualifying Subtenant) gives the initial Subleasehold Assignment Statement to
Landlord (if the applicable Long Term Sublease demises Fifty Thousand (50,000)
square feet of Rentable Area or less).
(4) Subject to Section 12.4 hereof, Tenant shall
not permit a Qualifying Subtenant to assign the subtenant's interest under the
applicable sublease unless Tenant first notifies (or first causes the applicable
Qualifying Subtenant to notify) Landlord of the identity of the proposed
assignee so that Landlord may exercise its reasonable approval rights pursuant
to this Section 12.8. If Landlord fails to notify Tenant within fifteen (15)
Business Days of Landlord's receipt of such notice identifying the proposed
assignee of Landlord's objections
118
123
thereto, then the applicable Qualifying Subtenant shall have the right to assign
the subtenant's interest under the applicable sublease to such proposed assignee
pursuant to an assignment which shall otherwise be subject to the terms and
conditions of this Lease; provided, however, that if such proposed assignment
relates to a Long Term Sublease, then Landlord shall not be deemed to have
approved a proposed assignee earlier than the ninetieth (90th) day after Tenant
(or the applicable Qualifying Subtenant) gives the initial Subleasehold
Assignment Statement to Landlord (if such Long Term Sublease demises more than
Fifty Thousand (50,000) square feet of Rentable Area) or the thirtieth (30th)
day after Tenant (or the applicable Qualifying Subtenant) gives the initial
Subleasehold Assignment Statement to Landlord (if such Long Term Sublease
demises Fifty Thousand (50,000) square feet of Rentable Area or less). If
Landlord consents (or is deemed to have consented) to an assignment by a
Qualifying Subtenant as contemplated by this Section 12.8, then Landlord shall
have the right to require the Qualifying Subtenant, Tenant and the assignee to
execute and deliver a Consent to Assignment with respect to such assignment in
substantially the form of the Consent to Assignment set forth in Exhibit 12.8
attached hereto and made a part hereof.
(5) If a Qualifying Subtenant assigns the
subtenant's interest under the applicable sublease as contemplated by this
Section 12.8, then Tenant shall deliver (or shall cause the applicable
Qualifying Subtenant to deliver) to Landlord, within seven (7) days after the
date that such assignment becomes effective, (x) a duplicate original instrument
of assignment, duly executed by the Qualifying Subtenant, and (y) an instrument,
duly executed by the assignee, in which such assignee assumes observance and
performance of all of the terms, covenants and conditions of the applicable
sublease on such Qualifying Subtenant's part to be observed and performed from
and after the date of such assignment.
(6) Except with respect to assignments made by
Tenant pursuant to Section 12.4 hereof, Tenant shall pay (or shall cause the
applicable Qualifying Subtenant to pay) to Landlord, upon receipt thereof, an
amount equal to fifty percent (50%) of all Subleasehold Assignment Proceeds. As
used herein, the term "Subleasehold Assignment Proceeds" shall mean all
consideration payable to a Qualifying Subtenant, directly or indirectly, by any
assignee, or any other amount received by such Qualifying Subtenant from or in
connection with any assignment of the subtenant's interest under the applicable
sublease (including, but not limited to, sums paid for the sale or rental, or
consideration received on account of any contribution, of the personal property
of such Qualifying Subtenant) after deducting therefrom: (i) in the event of a
sale (or contribution) of such Qualifying Subtenant's personal property, the
then unamortized or undepreciated cost thereof determined in accordance with
generally accepted accounting principles, (ii) the out-of-pocket costs and
expenses of the Qualifying Subtenant in making such assignment, including,
without limitation, brokers' fees, attorneys' fees, and advertising fees paid to
unrelated third parties, (iii) any payments required to be made, and actually
made, by the Qualifying Subtenant in connection with the assignment of its
interest in such sublease pursuant to any real property transfer tax or real
property transfer gains tax (or similar tax) of the United States or the City or
State of New York (other than any income tax), (iv) any sums paid by Tenant or
such Qualifying Subtenant to Landlord pursuant to Section 12.2(B) hereof, (v)
the cost of improvements or alterations made by such Qualifying Subtenant
expressly and solely for the purpose of preparing the Premises (or the
applicable
119
124
portion thereof) for such assignment (or cash allowance given to such assignee
in lieu thereof), (vi) the then unamortized or undepreciated cost of any
personal property of such Qualifying Subtenant that is leased to and used by
such assignee, as determined in accordance with generally accepted accounting
principles, (vii) any moving expenses of the assignee paid for by the Qualifying
Subtenant, (ix) any "takeover" expenses incurred by the Qualifying Subtenant in
connection with such assignee's then existing lease, and (x) any other
reasonable tenant inducement costs paid by the Qualifying Subtenant. If Landlord
exercises its rights to consummate a Subleasehold Assignment Recapture, then
Tenant shall not be entitled to any proceeds derived from or relating to
(directly or indirectly) any lease of the Premises (or the applicable portion
thereof) by Landlord following Landlord's exercise of such rights.
Section 12.9 Notwithstanding any other provision of this Lease, neither
Tenant nor any direct or indirect assignee or subtenant of Tenant may enter into
any lease, sublease, license, concession or other agreement for use, occupancy
or utilization of space in the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the property leased, occupied
or utilized, or which would require the payment of any consideration which would
not fall within the definition of "rents from real property", as that term is
defined in Section 856(d) of the Internal Revenue Code of 1986, as amended.
Section 12.10 If Tenant enters into a Major Sublease, then, subject to the
terms of this Section 12.10, Landlord, promptly after Tenant's request, shall
execute and deliver to the applicable subtenant under such Major Sublease an
agreement (a "Recognition Agreement"), in form and substance reasonably
satisfactory to Landlord, to the effect that if this Lease terminates during the
term of the applicable Major Sublease for any reason other than pursuant to
Articles 10 or 11 hereof, Landlord will not evict such subtenant, disturb such
subtenant's possession or terminate or disturb such subtenant's leasehold estate
or rights thereunder, and will recognize such subtenant as the direct tenant of
Landlord on the Applicable Terms. Tenant shall not have the right to request a
Recognition Agreement as contemplated by this Section 12.10 (w) if the subtenant
under the applicable Major Sublease is a Bloomberg Party, (x) if an Event of
Default has occurred and is then continuing, or (y) if the financial condition
of the applicable subtenant is not reasonably satisfactory to Landlord (it being
understood that if the tangible net worth of such subtenant or any applicable
Major Sublease Guarantor, determined in accordance with generally accepted
accounting principles, is equal to or greater than fifteen (15) times the annual
Rental that would be reasonably expected to be payable by the applicable
subtenant to Landlord pursuant to the Applicable Terms, then such subtenant's
financial condition shall be deemed to be reasonably satisfactory to Landlord).
Section 12.11 As used herein, the term "Applicable Terms" shall mean all
of the terms and conditions set forth in this Lease, except that:
120
125
(i) the annual Fixed Rent payable by the applicable
subtenant at any time from and after the Recognition Effective Date shall be an
amount equal to the greater of (A) the rental that would have been payable by
the applicable subtenant under the Major Sublease at such time if the applicable
Major Sublease remained in effect, and (B) the Comparison Amount for the
Rentable Area demised by the applicable Major Sublease (except that the amount
described in this clause (B) shall be the Fixed Rent payable hereunder for
Applicable Option Space, to the extent that the portion of the Premises demised
by the applicable Major Sublease includes Applicable Option Space);
(ii) the term of the applicable subtenant's direct tenancy
shall expire, with respect to each portion of Rentable Area demised by the
applicable Major Sublease, on the date that the term of this Lease applicable to
such portion of Rentable Area would have expired had this Lease not terminated;
provided, however, in no event shall such subtenant have the right to extend the
term of such direct tenancy by exercise of the Renewal Option pursuant to
Article 37 hereof;
(iii) if, on the Recognition Effective Date, the tangible
net worth of the applicable subtenant or the applicable Major Sublease
Guarantor, determined in accordance with generally accepted accounting
principles, is less than fifteen (15) times the annual Rental that is reasonably
expected to be payable by the subtenant in connection with such direct tenancy,
then, on the Recognition Effective Date, the applicable subtenant shall deposit
with Landlord an amount equal to such annual Rental as of such Recognition
Effective Date as security for such subtenant's obligations to Landlord in
respect of such direct tenancy;
(iv) the applicable subtenant shall have no right to
exercise Tenant's right to lease any Lower Option Space or any Upper Option
Space, or to exercise the Renewal Option, in either case pursuant to the terms
hereof;
(v) for purposes of such direct tenancy, references herein
to the Premises shall be deemed to be references to the portion of the Premises
demised by the applicable Major Sublease;
(vi) the applicable subtenant shall not be deemed to
constitute a Bloomberg Party for purposes of such direct tenancy;
(vii) the applicable subtenant shall not have the right to
such direct tenancy (and accordingly, the applicable subtenant, at Landlord's
option, shall have no right to remain in occupancy of the applicable portion of
the Premises from and after the Recognition Effective Date) if (v) this Lease is
terminated by reason of an Event of Default that derives from the applicable
subtenant's default under the applicable Major Sublease, (w) on the day
immediately preceding the Recognition Effective Date, the applicable Major
Sublease would not satisfy the requirements for a Major Sublease as set forth in
the definition thereof, (x) on the day immediately preceding the Recognition
Effective Date, the applicable subtenant does not occupy at least seventy
percent (70%) of the Rentable Area demised by the Major Sublease for the conduct
of business, or (y) the applicable subtenant is the Person, or an Affiliate of
the Person, that constituted Tenant immediately prior to the Recognition
Effective Date;
121
126
(viii) the applicable subtenant shall not have the right to
the exclusive use of the Premises Elevators or the Exclusive Lobby Area (but
shall have the right to use passenger and freight elevators serving the
applicable portion of the Premises, and lobby areas in the Building, that in
either case conform with the Building Standard);
(ix) Landlord shall have the right to limit the applicable
subtenant's rights to use the Basic Amenities to the extent reasonably required
by Landlord to operate the Building in accordance with the Building Standard;
provided, however, that if the applicable Major Sublease demises more than One
Hundred Thousand (100,000) square feet of Rentable Area, then the portion of the
Basic Amenities that the applicable subtenant has the right to use (other than
the exclusive loading bays described in Section 2.5(A)(b) hereof) shall not be
less than the ratio that the Rentable Area of the space demised by the Major
Sublease bears to the aggregate area of the Premises immediately prior to the
Recognition Effective Date;
(x) Landlord shall have the right to limit the applicable
subtenant's rights to use the Tenant Mechanical Areas to the extent reasonably
required by Landlord to operate the Building in accordance with the Building
Standard; provided, however, that if the applicable Major Sublease demises more
than One Hundred Thousand (100,000) square feet of Rentable Area, then the
portion of the Tenant Mechanical Areas that the applicable subtenant has the
right to use shall not be less than the ratio that the Rentable Area of the
space demised by the Major Sublease bears to the aggregate area of the Premises
immediately prior to the Recognition Effective Date;
(xi) the applicable subtenant shall not have the right to
use the Terrace Area if the portion of the Premises demised by the applicable
sublease is not adjacent thereto;
(xii) Landlord shall have the right to limit the applicable
subtenant's rights to use the shaftways in the Building as contemplated by
Section 2.9 hereof to the extent reasonably required by Landlord to operate the
Building in accordance with the Building Standard; provided, however, that if
the applicable Major Sublease demises more than One Hundred Thousand (100,000)
square feet of Rentable Area, then the portion of the Tenant Mechanical Areas
that the applicable subtenant has the right to use shall not be less than the
ratio that the Rentable Area of the space demised by the Major Sublease bears to
the aggregate area of the Premises immediately prior to the Recognition
Effective Date;
(xiii) Landlord shall have the right to limit the applicable
subtenant's rights to install and operate the Emergency Generator System to the
extent reasonably required by Landlord to operate the Building in accordance
with the Building Standard;
(xiv) the applicable subtenant shall not have any rights to
gain access to the Third Floor Deck as contemplated by Section 3.10 unless the
portion of the Premises demised by the applicable sublease includes the Rentable
Area on the third (3rd) floor of the Lexington Avenue Building;
122
127
(xv) the applicable subtenant shall not have the rights
described in Section 3.11 hereof to gain access to the underside of the slab
that constitutes the fourth (4th) floor of the Bridge Building unless the
portion of the Premises demised by the applicable sublease includes the Rentable
Area on the fourth (4th) floor of the Building;
(xvi) Landlord shall not have any obligation to consummate
Recognition Agreements with further subtenants of any such subtenant;
(xvii) the applicable subtenant shall not have the right to
use the Antennae Site if the portion of the Premises demised by the applicable
sublease is less than Two Hundred Thousand (200,000) square feet of Rentable
Area; and
(xviii) Landlord shall not be:
(1) liable for any act or omission of such subtenant's
lessor immediately prior to the Recognition
Effective Date;
(2) subject to any credits, defenses or offsets which
the applicable subtenant may have against any prior
lessor;
(3) bound by any payment of rental which the applicable
subtenant may have made to any prior lessor more than
thirty (30) days in advance of the month in which such
payment was due; or
(4) bound by any of the provisions of the applicable
Major Sublease.
As used herein, the term "Recognition Effective Date" shall mean the date that
Landlord becomes the direct lessor of the applicable subtenant under a Major
Sublease as contemplated by a Recognition Agreement.
Section 12.12 (A) Tenant shall submit to Landlord, with each request for a
Recognition Agreement, financial information regarding the subtenant for whose
benefit such agreement is requested, including, without limitation,
documentation of such subtenant's net worth, determined in accordance with
generally accepted accounting principles.
(B) Tenant shall reimburse Landlord for the reasonable
out-of-pocket costs incurred by Landlord in consummating a Recognition Agreement
within thirty (30) days after Landlord's request therefor. Landlord shall
include with any such request reasonable supporting documentation for the
charges described therein.
Section 12.13 Notwithstanding the provisions of Section 12.1 hereof,
Tenant may permit portions of the Premises to be occupied, at any time and from
time to time, by Persons who are not members, officers or employees of Tenant
(such persons who shall be permitted to occupy portions of the Premises pursuant
to this Section 12.13 being each referred to individually as a "Permitted
Person", or collectively as the "Permitted Persons"), without the consent of
Landlord and without compliance with any of the other provisions of this Article
12 but subject to the other provisions of this Lease, provided that (i) no
demising walls are erected in the
123
128
Premises separating the space used by a Permitted Person from the remainder of
the Premises, (ii) the Permitted Persons use the Premises in conformity with all
applicable provisions of this Lease, (iii) in no event shall the use of any
portion of the Premises by any Permitted Person create or be deemed to create
any right, title or interest of the Permitted Person in or to the Premises, (iv)
the portion of the Premises used by all Permitted Persons shall not exceed eight
percent (8%) of the Rentable Area of the Premises, (v) such Permitted Person
maintains a business relationship with Tenant (other than by virtue of such
occupancy) and such business relationship extends during the term of such
occupancy, (vi) the fees paid by such Permitted Person to Tenant for such
occupancy rights do not exceed the portion of the Rental that is reasonably
allocable to the portion of the Premises so occupied by such Permitted Person
(it being understood that such reasonable allocation shall be made based on the
proportion that the Rentable Area of the portion of the Premises so occupied by
such Permitted Person bears to the Rentable Area of the Premises), and (vii) at
least ten (10) days prior to a Permitted Person taking occupancy of a portion of
the Premises, Tenant gives notice to Landlord (1) advising Landlord of the name
and address of such Permitted Person, (2) advising Landlord of the character and
nature of the business to be conducted by such Permitted Person, (3) advising
Landlord of the Rentable Area to be occupied by such Permitted Person, (4)
advising Landlord of the duration of such occupancy, (5) advising Landlord of
the nature of such Permitted Person's business relationship with Tenant, and (6)
certifying that Tenant derives no profit from Tenant's granting of such
occupancy rights to such Permitted Person. Within ten (10) days after request by
Landlord from time to time, Tenant shall provide Landlord with a list of the
names of all Permitted Persons then occupying any portion of the Premises.
Section 12.14 (A) If Tenant exercises the Option to lease Applicable
Option Space that constitutes Lower Option Space, then neither Tenant nor
another Permitted Occupant shall have the right to give to Landlord a Sublease
Statement in respect thereof (which contemplates that the subtenant will use
such Applicable Option Space (or a portion thereof) for retail purposes) as
provided in Section 12.14(B) hereof, unless (x) Tenant gives to Landlord a
Recapture Statement therefor (as contemplated by Section 12.6(C) hereof),
regardless of whether the term of Tenant's proposed sublease extends for the
balance of the Term, and (y) Landlord does not elect to consummate a Sublease
Recapture for such Applicable Option Space (or such portion thereof) as provided
in Section 12.6(C) hereof.
(B) If (i) Tenant exercises the Option to lease Applicable
Option Space that constitutes Lower Option Space, (ii) Tenant gives Landlord a
Sublease Statement in connection with a Permitted Occupant's proposed subleasing
of such Applicable Option Space or a portion thereof, and (iii) Landlord has not
elected to consummate a Sublease Recapture in respect thereof, then (a) Landlord
shall not have the right to withhold consent to the proposed sublease solely by
reason of the proposed subtenant's intending to use such Applicable Option Space
(or such portion thereof) for retail purposes (provided that such use is
consistent with the Building Standard and otherwise reasonably satisfactory to
Landlord), (b) such subtenant's using such Applicable Option Space (or such
portion thereof) for such retail purposes (assuming that Landlord approves such
sublease in accordance with the terms of this Article 12) shall not constitute a
default by Tenant under Article 2 hereof, and (c) if Landlord approves such
proposed sublease in accordance with the terms of this Article 12, Tenant shall
pay to Landlord the
124
129
Sublease Profit that derives therefrom. Landlord shall be permitted to withhold
Landlord's consent to any such subletting of the Lower Option Space for retail
purposes if such sublease permits the use of such Lower Option Space in a manner
that conflicts with the exclusive rights benefitting any other Person occupying
space in the Building for retail trade. If (x) Tenant subleases Lower Option
Space for retail purposes as contemplated by this Section 12.14(B) with
Landlord's approval as aforesaid, and (y) such sublease contemplates that the
parties will determine the rental payable by the subtenant thereunder using an
arbitration procedure or another mechanism for resolving differences between the
parties, then Landlord shall have the right to control the determination of such
procedure or mechanism (and Tenant shall cooperate reasonably with Landlord in
connection therewith); provided, however, that Landlord shall not have the right
to settle such procedure or mechanism at a rental that is less than the Rental
payable hereunder for the applicable sublease space without Tenant's prior
approval, which approval Tenant shall not unreasonably withhold, condition or
delay. Either party shall have the right to submit a dispute between the parties
regarding this Section 12.14(B) to an Expedited Arbitration Proceeding. Nothing
contained in this Section 12.14 shall expand the purposes for which Tenant has
the right to use the Premises under Article 2 hereof.
Section 12.15 If Landlord exercises Landlord's right to consummate a
Sublease Recapture or a Subleasehold Assignment Recapture pursuant to the terms
of this Article 12, then Landlord, during the Term, shall not permit the
Recapture Space or the Subleasehold Assignment Space to be used (1) for the
business of photographic, multilith or multigraph reproductions or offset
printing, except in connection with, either directly or indirectly, the
occupant's own business and/or activities (provided that such occupant's
principal business is not photographic, multilith, or multigraph reproductions
or offset printing), (2) for a business that conducts retail trade on an
off-the-street basis, (3) as a restaurant or bar or for the sale of
confectionery, soda or other beverages, sandwiches, ice cream or baked goods or
for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, except for consumption by the occupant's partners,
principals, members, agents, officers, employees and business guests, (4) as an
employment agency, executive search firm or similar enterprise, labor union,
school, or vocational training center (except for the training of employees of
such occupant), or (5) for any purpose that is inconsistent with the Building
Standard.
Section 12.16 (A) Subject to Section 12.4 hereof, if (i) Tenant (or any
other Permitted Occupant) proposes to sublease (or further sublease) all or any
portion of the Premises for a term of ten (10) years or more (including the term
of any renewal options that the sublessor or the subtenant has the right to
exercise), (ii) such proposed sublease does not otherwise constitute a Long Term
Sublease, and (iii) the term of such sublease is proposed to commence at any
time during the period of two (2) years from the date that the construction of
the Building reaches the Fourth Construction Milestone Stage, then (I) Tenant
shall give (or shall cause the Permitted Occupant to give) to Landlord a
Recapture Statement in respect thereof in accordance with Section 12.6(C) hereof
as if such proposed sublease constituted a Long Term Sublease, and (II) Landlord
shall have the right to consummate a Sublease Recapture in respect of such
sublease in accordance with the terms of Section 12.6(C) hereof, except that if
Landlord exercises Landlord's rights to consummate a Sublease Recapture for the
applicable portion of the Premises that Tenant (or such Permitted Occupant)
intends to demise under such sublease, then
125
130
Landlord (or Landlord's designee) shall sublease the applicable portion of the
Premises from Tenant (or the applicable Permitted Occupant) on the terms set
forth in the Recapture Statement (it being understood that if Landlord (or
Landlord's designee) so subleases the Recapture Space from Tenant (or the
applicable Permitted Occupant), then (i) this Lease shall remain in effect for
the applicable Recapture Space (and, accordingly, Tenant shall remain obligated
to pay to Landlord, for the term of such sublease to Landlord, the Rental due
hereunder for the Recapture Space), (ii) the subtenant's default under such
sublease shall not constitute an Event of Default hereunder (and, accordingly,
any rental that the subtenant under such sublease fails to pay to Tenant (or the
applicable Permitted Occupant) when due shall be offset against the Rental due
from Tenant to Landlord hereunder), (iii) Tenant shall pay (or shall cause to be
paid) to Landlord any portion of Sublease Profit that derives from such sublease
to which Landlord is entitled under Section 12.7 hereof, and (iv) Tenant shall
not be required to otherwise make the payments described in Section 12.6(C)
hereof for the amount of the excess of the Rental due hereunder over the rental
payable under the terms set forth in the Recapture Statement).
(B) Subject to Section 12.4 hereof, if (w) a Qualifying
Subtenant proposes to assign the subtenant's interest under a sublease for all
or a portion of the Premises, (x) such sublease does not otherwise constitute a
Long Term Sublease, (y) the term of such sublease extends (or could extend) for
a term of ten (10) years or more, and (z) the term of such sublease commences at
any time during the period of two (2) years from the date that the construction
of the Building reaches the Fourth Construction Milestone Stage, then (i) Tenant
shall cause the applicable Qualifying Subtenant to give to Landlord a
Subleasehold Assignment Statement in respect of such assignment (as if such
sublease constituted a Long Term Sublease), and (ii) Landlord shall have the
right to consummate a Subleasehold Assignment Recapture in respect thereof,
except that if Landlord exercises Landlord's rights to consummate a Subleasehold
Assignment Recapture for the applicable portion of the Premises, then Landlord
(or Landlord's designee) shall take the subtenant's interest under the
applicable sublease by assignment on the terms set forth in the applicable
Subleasehold Assignment Statement (it being understood that if Landlord (or
Landlord's designee) so takes by assignment the subtenant's interest under the
applicable sublease, then (i) this Lease shall remain in effect for the
applicable Subleasehold Assignment Space (and, accordingly, Tenant shall remain
obligated to pay to Landlord, for the term of such sublease, the Rental due
hereunder for the Subleasehold Assignment Space), (ii) the subtenant's default
under such sublease shall not constitute an Event of Default hereunder (and,
accordingly, any rental that the subtenant under such sublease fails to pay to
Tenant (or the applicable Permitted Occupant) when due shall be offset against
the Rental due from Tenant to Landlord hereunder), and (iii) Tenant shall pay
(or shall cause to be paid) to Landlord any portion of Sublease Profit that
derives from such sublease to which Landlord is entitled under Section 12.7
hereof).
126
131
ARTICLE 13
ELECTRICITY
Section 13.1 Tenant shall at all times comply with the rules, regulations,
terms and conditions applicable to service, equipment, wiring and requirements
of the utility company supplying electricity to the Building. Landlord shall not
be liable in any way to Tenant for any failure or defect in the supply or
character of electric service furnished to the Premises (including, without
limitation, the electricity to be provided by Landlord pursuant to Section 13.3
hereof) by reason of any requirement, act or omission of the utility company
serving the Building or for any other reason not attributable to the negligence
or wilful misconduct of Landlord or Landlord's employees acting within the scope
of their employment.
Section 13.2 Subject to Section 13.3 hereof, Tenant, at Tenant's sole cost
and expense, shall contract directly with the utility company serving the
Building to obtain electricity for the Premises; provided, however, that Tenant
shall have the right to contract directly with any other supplier of electricity
if Tenant's doing so does not have a material and adverse effect on the electric
service available to any portion of the Building other than the Premises.
Landlord shall have no obligation to provide any electricity for the Premises or
Tenant's use and occupancy thereof, but Landlord shall maintain throughout the
Term (i) the demand load electrical capacity per rentable square foot for the
Premises at the capacity which is required to be initially made available to the
Premises per rentable square foot as part of the Work in accordance with the
terms of Article 22 hereof (the "Base Capacity"), and (ii) the Building Systems
that deliver the Base Capacity to the Premises. Tenant shall have the right to
perform Alterations (in accordance with Article 3 hereof) to allocate the Base
Capacity within the Premises as Tenant desires (with the understanding, however,
that Tenant shall not have the right to perform Alterations to unreasonably
allocate the Base Capacity from a portion of the Premises in respect of which
Tenant then has a reasonable expectation will constitute Recapture Space or
Subleasehold Assignment Space). Tenant shall not use any electrical equipment
which, in Landlord's reasonable judgment, would result in Tenant's use of
electricity exceeding the Base Capacity. If (x) in Landlord's reasonable
judgment, Tenant's use of electricity exceeds the Base Capacity, and (y)
Landlord gives Tenant notice thereof, then Tenant, within five (5) Business Days
after Landlord gives such notice, shall either (i) cease such use of such excess
capacity, or (ii) request that Landlord make available to Tenant additional
electrical capacity (specifying the amount of additional capacity that Tenant
reasonably requires). In addition, Tenant, at any time after the fifth (5th)
anniversary of the Last Commencement Date, may request that Landlord make
available additional electrical capacity to Tenant for the future electrical
requirements that Tenant then reasonably anticipates. Any such request made by
Tenant for additional electrical capacity shall not be effective for purposes
hereof unless Tenant includes therewith a report, issued by a reputable and
independent electrical consultant, at Tenant's sole cost and expense, which
outlines in reasonable detail Tenant's additional electrical requirements.
Subject to the terms of this Section 13.2, Landlord shall make available to
Tenant the additional electrical capacity as reasonably requested by Tenant to
the extent that such additional electrical capacity is available in the Building
or is reasonably obtainable from the utility company; provided, however, that
Landlord (or the Condominium Association) shall at all times be entitled to
maintain a reasonable reserve of electrical capacity (taking into account the
anticipated electrical needs of present and prospective occupants of the
Building) through the then existing risers and electrical equipment at the
Building and shall not be required to make available to Tenant any such reserve
electrical capacity. If making such additional electrical capacity available to
Tenant necessitates
127
132
the installation of an additional riser or any other proper and necessary
equipment, including, without limitation, any switchgear, then Landlord shall
perform such installation with reasonable diligence and in accordance with good
construction practice. Any such installation shall be made at Tenant's sole cost
and expense, based on actual out-of-pocket costs incurred by Landlord, and shall
be chargeable and collectible as additional rent and paid within thirty (30)
days after the rendition of a xxxx to Tenant therefor. Tenant shall also pay any
charges imposed by the utility company in connection with providing such
additional electrical capacity to the Building. Either party shall have the
right to submit a dispute between the parties under this Section 13.2 to an
Expedited Arbitration Proceeding.
Section 13.3 If prior to the electrical meters for the Premises becoming
operational for the purpose of measuring Tenant's consumption of electricity in
such Deliverable Unit as contemplated by Section 13.2 hereof, Tenant enters upon
a Deliverable Unit or a portion thereof for the purpose of performing Initial
Alterations or to occupy such Deliverable Unit for the conduct of business, then
Tenant shall pay to Landlord a fee (the "Electricity Fee") in consideration of
Landlord furnishing electricity to such Deliverable Unit. Tenant shall make
arrangements with the utility company for the installation of direct meters as
promptly as reasonably practicable during Tenant's performance of the Initial
Alterations. The Electricity Fee shall only be payable with respect to the
period prior to the installation of such meters for the applicable Deliverable
Unit and such meters becoming operational. The Electricity Fee shall be
calculated at the rate per annum of (x) Seventy-Five Cents ($0.75) per square
foot of Rentable Area in such Deliverable Unit in which Tenant is performing its
Initial Alterations, and (y) Two Dollars ($2.00) per square foot of Rentable
Area in such Deliverable Unit that Tenant is occupying for the conduct of
business. Landlord shall render a xxxx to Tenant for the Electricity Fee from
time to time, but not more frequently than monthly, and Tenant shall pay such
Electricity Fee to Landlord, as additional rent, within thirty (30) days after
receipt of such xxxx. Tenant shall reimburse Landlord for the actual
out-of-pocket costs that Landlord incurs, during the period prior to such meters
becoming operational, in engaging personnel to operate or supervise the
electrical system in the Building to the extent attributable to Tenant's use of
electricity at times other than during the hours of 8:00 A.M. and 3:30 P.M. on
Business Days; provided, however, that such actual out-of-pocket costs shall not
include (and Tenant shall not be required to so reimburse Landlord for) the
costs that Landlord incurs in purchasing electrical current during such times
(it being the parties' intention that the cost of electrical current during such
times is included in the aforesaid rate per annum). Tenant shall make any such
reimbursement to Landlord within thirty (30) days after Landlord's request
therefor from time to time. Landlord shall include in Landlord's request for any
such reimbursement reasonable supporting documentation for the costs described
therein.
Section 13.4 (A) Subject to the terms of this Section 13.4, Landlord shall
cooperate reasonably with Tenant in connection with Tenant's making arrangements
to participate in any incentive programs provided at any time and from time to
time by the utility company serving the Building (or such other supplier of
electricity with which Tenant contracts as contemplated by Section 13.2 hereof).
Landlord shall cooperate reasonably with Tenant in arranging Tenant's
participation in any such incentive programs in a manner that allows Tenant to
realize the entire benefit thereof. Tenant shall pay to Landlord an amount equal
to the out-of-
128
133
pocket costs incurred by Landlord in so cooperating with Tenant, within thirty
(30) days after Landlord's request therefor from time to time.
(B) Tenant shall cooperate reasonably with
Landlord, the Condominium Association or any other Person that occupies any
portion of the Building other than the Premises in connection with Landlord's
making, the Condominium Association making, or such other Person making,
arrangements to participate in any such incentive programs provided at any time
and from time to time by the utility company serving the Building, in a manner
that allows Landlord and the Condominium Association (or such other Person that
occupies the applicable portion of the Building) to realize the entire benefit
thereof. Landlord shall pay (or shall cause the Condominium Association or such
other Person to pay) to Tenant an amount equal to the out-of-pocket costs
incurred by Tenant in so cooperating with Landlord, the Condominium Association
or such other Person, within thirty (30) days after Tenant's request therefor
from time to time.
129
134
ARTICLE 14
ACCESS TO TENANT AREAS; UNTENANTABILITY
Section 14.1 (A) Subject to the terms of this Section 14.1 and Section
14.3 hereof, Landlord and the Condominium Association, and the agents,
representatives, contractors, and employees of Landlord and the Condominium
Association, shall have the right to enter the Tenant Areas to examine the
Tenant Areas, or to show the Tenant Areas to prospective purchasers, or existing
or prospective Mortgagees or Lessors, in either case on not less than five (5)
Business Days of advance notice to Tenant (which notice may be given orally to a
responsible person employed by Tenant with whom Landlord or Landlord's agent
ordinarily has day-to-day contact regarding the operation of the Premises),
during Tenant's ordinary operating hours and at times reasonably designated by
Tenant (any such entry into the Tenant Areas as contemplated by this sentence
being referred to herein as an "Inspection Access"). In addition, subject to the
terms of this Section 14.1 and Section 14.3 hereof, each of Landlord and the
Condominium Association and their respective agents, representatives,
contractors, and employees shall have the right to enter the Tenant Areas, upon
at least seven (7) Business Days of advance notice to Tenant (which may be given
orally as aforesaid), and during hours that are not Tenant's ordinary operating
hours and that are reasonably designated by Tenant, for the purpose of
performing (x) repairs or other installations in the Building (including,
without limitation, (I) the Work, (II) repairs or other installations that are
required to comply with applicable Requirements, and (III) the installations
described in Section 14.1(C) hereof), or (y) repairs on behalf of Tenant as
contemplated by Section 4.1 hereof; provided, however, that (a) if an Emergency
exists, then (I) Landlord shall only be required to give such advance notice to
the extent reasonably practicable, and (II) Landlord shall not be precluded from
entering the Tenant Areas during Tenant's ordinary operating hours (any such
entry into the Tenant Areas as contemplated by this sentence being referred to
herein as a "Work Access") (it being understood, however, that if an Emergency
exists, then Landlord, to the extent practicable under the circumstances, shall
comply with reasonable Emergency notification procedures theretofore established
by Tenant in a notice given to Landlord), and (b) if Landlord requires Work
Access to a Long Lead Area, then Landlord shall be required to give Tenant at
least ten (10) Business Days of advance notice thereof, unless an Emergency
exists, in which case the provisions of clause (a) above shall apply. As used
herein, the term "Long Lead Area" shall mean portions of the Premises designated
from time to time by Tenant on not less than thirty (30) days of advance notice
to Landlord; provided, however, that in no event shall the Long Lead Area be
comprised of more than fifty thousand (50,000) square feet of Rentable Area.
Nothing contained in this Section 14.1(A) limits the provisions of Section
22.7(C) hereof. Subject to Section 14.5 hereof, Landlord and the Condominium
Association (and their respective agents, representatives, contractors, and
employees) shall be allowed to take all material into and upon the Tenant Areas
that may be reasonably required in connection with any Work Access without the
same constituting an eviction or constructive eviction of Tenant in whole or in
part and the Fixed Rent (and any other item of Rental) shall not xxxxx while
said repairs, alterations, improvements, additions or restorations are being
made, by reason of loss or interruption of business of Tenant, or otherwise.
Tenant shall not be required to permit an Inspection Access into portions of the
Premises that Tenant designates from time to time as an area (a) to which Tenant
otherwise limits access to only particular employees who have a particular need
to gain access to the materials or equipment stored in such area, and (b)
contains materials or equipment in respect of which Tenant has a substantial
interest in limiting access thereto (any such area designated by Tenant from
time to time being referred to
130
135
herein as a "Secure Area"); provided, however, that in no event shall the
aggregate Rentable Area of the Secure Areas exceed sixteen percent (16%) of the
Rentable Area of the Premises.
(B) Subject to Section 10.3 hereof, any work performed or
installations made pursuant to this Article 14 shall be made with due diligence
and otherwise pursuant to the provisions of Section 4.1 hereof and Section 4.3
hereof. Landlord shall (i) promptly repair any damage to the Tenant Areas,
Alterations or Tenant's Property (including, without limitation, any finish work
in the Premises) caused by the work or installations in the Tenant Areas as
described in Section 14.1(A) hereof or as described in Section 14.1(C) hereof,
(ii) take reasonable care to safeguard the affected portion of the Tenant Areas
and Tenant's Property, (iii) upon completion of such activity, restore the
portion of the Tenant Areas that is the subject of such activity to
substantially the condition existing before such activity, and (iv) not cause a
reduction in the Usable Area of the Premises beyond a de minimis amount.
(C) Subject to the terms of this Section 14.1(C) and Section
14.1(E) hereof, Tenant shall permit (i) the Condominium Association, (ii)
Landlord, (iii) other occupants of the Building, and (iv) utility companies
serving the Building to install, use and maintain concealed ducts, pipes and
conduits in and through the Tenant Areas. Subject to the terms of this Section
14.1(C), such Persons shall not have the right to install any such ducts, pipes
or conduits in the Premises as contemplated by this Section 14.1 unless (a) no
space in the Building core and shaft space is reasonably available and usable
therefor on a commercially reasonable basis, (b) the installation of any such
ducts, pipes or conduits, and the use thereof, does not have a material and
adverse effect on Tenant's Alterations (including, without limitation, the
aesthetics thereof), or Tenant's use and occupancy of the Premises for the
conduct of Tenant's business, and (c) such ducts, pipes or conduits comply with
the requirements set forth in the Work Exhibit with respect to ducts, pipes and
conduits being installed as part of the Work. Landlord shall have the right to
install electrical conduit through the Premises to accommodate any lighting
apparatus that Landlord installs to highlight the exterior of the Building, to
the extent that (i) Landlord reasonably requires to route such electrical
conduit through the Premises, and (ii) Landlord installs such electrical conduit
in a manner that minimizes to the extent reasonably practicable any adverse
impact on the Alterations; provided, however, that (x) Tenant shall have the
right to approve the route that Landlord intends to use for Landlord's
installation of such conduit, which approval Tenant shall not unreasonably
withhold, condition or delay, and (y) Tenant, at Tenant's sole cost and expense,
shall have the right, during the Term, to perform an Alteration to relocate such
electrical conduit in a manner that otherwise complies with Article 3 hereof, to
the extent that such relocation does not have any material and adverse effect on
such lighting apparatus or the operation thereof. If Landlord exercises
Landlord's aforesaid right to install electrical conduit through the Premises to
accommodate such lighting apparatus, then Landlord and Tenant shall consult with
each other in good faith to design such installation in a manner that satisfies
the requirements of each party. Nothing contained in this Section 14.1(C) shall
modify any of Landlord's obligations in respect of the ducts, pipes or conduits
that Landlord is installing as part of the Work. Any pipes, ducts, or conduits
installed in or through the Premises pursuant to this Section 14.1(C) shall (i)
be concealed behind, beneath or within partitioning, columns, ceilings or floors
located or to be located in the Premises, (ii) be located in close proximity to
the core of the Building located on the applicable floor of the Premises (taking
into account the visibility of
131
136
such pipes, ducts, or conduits from the finished portions of such Premises and
the aesthetics thereof), (iii) be furred at points immediately adjacent to
partitioning columns or ceilings located or to be located in the Premises, and
(iv) not reduce the Usable Area of the Premises beyond a de minimis amount when
completed. Landlord shall not exercise Landlord's rights under this Section 14.1
after the Commencement Date for each Deliverable Unit to install any wet pipes
in, over or under Tenant's computer, telecommunications, or broadcast-related
areas (collectively, "Sensitive Areas"), unless (x) such location is the only
practical and available location therefor, and (y) Landlord takes all necessary
steps (in accordance with good construction practice) to protect the applicable
Sensitive Area. If any wet pipes are located over any area which are
subsequently designated by Tenant as Sensitive Areas, then Tenant, at Tenant's
sole cost and expense, shall have the right to relocate such wet pipes to a
suitable alternate location, in accordance with good construction practice and
otherwise in accordance with the provisions of Article 3 hereof, and subject to
Landlord's prior approval thereof (which approval Landlord shall not
unreasonably withhold, condition or delay). All costs and expenses in connection
with any installation pursuant to this Section 14.1(C) (other than Tenant's
aforesaid relocation of wet pipes), including the costs for repairing and
restoring any portions of the Premises affected by any such installation, shall
be borne by Landlord, if performed by Landlord (subject in each case to
recoupment by Landlord to the extent provided in Article 26 hereof).
(D) Subject to the terms of this Section 14.1(D), Landlord,
during the Term, shall have the right to install elevator pits or escalator pits
(or both elevator pits and escalator pits) through the floor slab above the
Lower Level Space on Lower Level 2 of the Building to the extent reasonably
necessary to service Lower Level 1 of the Building. Landlord shall not have the
right to install such elevator pits or escalator pits in the portions of the
Lower Level Space on Lower Level 2 of the Building designated as space "C" and
space "D" on the Schematic Drawing for Lower Level 2 of the Building (the Lower
Level Space, other than such space "C" and space "D", being collectively
referred to herein as the "Permitted Pit Areas"). Landlord shall make any such
installation of an elevator pit or an escalator pit in accordance with the terms
of this Section 14.1 that apply to a Work Access, except that Landlord shall be
required to give Tenant at least forty-five (45) days of advance notice thereof.
Landlord acknowledges that the provisions of Section 14.1(B) hereof apply in
respect of Landlord's right to install elevator pits and escalator pits in the
Permitted Pit Area as contemplated by this Section 14.1(D).
(E) Subject to the terms of this Section 14.1(E), Landlord
shall not install, or permit to be installed, any wet pipes (including, without
limitation, kitchen drains and grease traps) or any slab penetrations above the
portions of the Lower Level Space on Lower Level 2 of the Building shown as
space "A", space "B", and space "C" on the Schematic Drawing for Lower Level 2
of the Building. This Section 14.1(E) shall not result in Landlord being
responsible for any such wet pipes or slab penetrations installed by Tenant or
any other Person claiming by, through or under Tenant. This Section 14.1(E)
shall only apply during the period that Tenant (or another Permitted Occupant)
uses such space "A", space "B" or space "C" for a purpose that reasonably
requires Tenant to avoid wet pipes or slab penetrations therein (it being
understood that Tenant's use of such spaces for Tenant's UPS system, Tenant's
electrical switchgear or Tenant's telecommunications equipment shall constitute
a use in respect of which Tenant has a reasonable requirement to avoid wet pipes
and slab perforations therein). This
132
137
Section 14.1(E) shall not limit Landlord's right to install a waterproof
escalator or elevator pit in such space "A", and a drain for such escalator or
elevator pit, provided that such drain is not used for pressurized water.
Section 14.2 During the period of twenty-four (24) months prior to the
Expiration Date, Landlord may exhibit, during Tenant's regular business hours,
the Premises (other than Secure Areas) to prospective tenants thereof in a
manner that minimizes to the extent reasonably practicable interference with
Tenant's use and occupancy of the Premises, provided Tenant shall be given in
each case not less than three (3) Business Days of advance notice (which notice
may be given orally to a responsible person employed by Tenant with whom
Landlord or Landlord's agent ordinarily has day-to-day contact regarding the
operation of the Premises).
Section 14.3 Notwithstanding anything to the contrary contained herein,
neither Landlord nor the Condominium Association (nor their respective agents,
representatives, contractors and employees) shall enter the Premises unless a
representative of Tenant is present; provided, however, that such entry may
occur without a representative of Tenant being present to the extent that the
occurrence of an Emergency requires such entry to occur on a more immediate
basis, or if Tenant fails to make such representative available on at least
seven (7) Business Days of advance notice to Tenant (or on at least ten (10)
Business Days of advance notice in connection with Work Access to a Long Lead
Area, as the case may be) (which notice in either case may be given orally as
provided in Section 14.1(A) hereof). Subject to Sections 4.1, 4.3 and 10.3
hereof, Landlord shall (a) use (and Landlord shall cause the Condominium
Association, and the agents, representatives, contractors and employees of
Landlord and the Condominium Association to use) reasonable care under the
circumstances to avoid damage to the Premises, Alterations, or Tenant's Property
(including without limitation, any finish work in the Premises) in connection
with any such entry into the Premises and (b) repair any such damage with
reasonable diligence in accordance with good construction practice, and
otherwise in conformity with the Building Standard.
Section 14.4 Subject to the terms of this Section 14.4, each of Landlord
and the Condominium Association shall have the right, at any time, without the
same constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, upon not less than fifteen (15) days of prior
notice to Tenant, to change the arrangement or location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, toilets, or other
public parts of the Building and, subject to Articles 39 and 40 hereof, to
change the name, number or designation by which the Building (other than the
Premises) is commonly known. Landlord shall not have the right to change the
arrangement or location of the Premises Elevators or the Exclusive Lobby Area
pursuant to this Section 14.4 (with the understanding, however, that Landlord
retains the right to change the Exclusive Lobby Area and the Premises Elevators
to the extent otherwise expressly set forth herein). Neither Landlord nor the
Condominium Association shall have the right to make any such change to the
entrances, passageways, doors, elevators, stairs, toilets or other public parts
of the Building as contemplated by this Section 14.4 to the extent that such
change (a) unreasonably reduces, interferes with or deprives Tenant of access to
or egress from the Building or the Premises, (b) reduces the Rentable Area of
the Premises (except by a de minimis amount), (c) otherwise unreasonably affects
any other rights of Tenant
133
138
under this Lease, or (d) adversely affects Tenant's Alterations or the use
thereof in any material respect. All parts (except surfaces facing the interior
of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Premises, and each of Landlord, the Condominium Association and
other occupants of the Building shall have the use thereof, as well as
reasonable access thereto through the Premises for the purposes of operation,
maintenance, alteration and repair, in either case as provided in Section 14.1
hereof; provided, however, that nothing contained in this Section 14.4 limits
Tenant's rights as expressly set forth herein (including, without limitation,
Tenant's rights under Sections 2.5 and 2.11 hereof). Landlord shall not have the
right to gain (and Landlord shall not permit the Condominium Association to
gain) access to the rooms on Lower Level 2 of the Building that contain the
Building Systems that constitute telephone or electrical systems through the
Lower Level Space on Lower Level 2 of the Building (it being understood that
Landlord shall gain access to such rooms through corridors that are demised
separately from the Lower Level Space on Lower Level 2 of the Building);
provided, however, that Landlord shall have the right to install access doors
that comply with applicable Requirements to provide Emergency egress from such
rooms into the Lower Level Space on Lower Level 2 of the Building (it being
understood that to the extent permitted by applicable Requirements, Landlord
shall install on any such doors an appropriate alarm mechanism to deter the use
of such doors except in the case of an Emergency).
Section 14.5 Subject to the terms of this Section 14.5, if:
(1) Landlord (i) performs any alterations, restorations, work,
installation, or repair in the Building or the Premises (other than (a)
any such alteration, restoration, work, installation or repair that
Landlord performs in accordance with the terms hereof on Tenant's behalf
by reason of Tenant's failure to perform such alterations, restorations,
work, installation or repair, and (b) any restoration of the Landlord
Restoration Items after the occurrence of a fire or other casualty), or
(ii) fails to perform any of its obligations hereunder (including, without
limitation, (a) Landlord's failure to perform Landlord's obligations to
provide the services described in Article 27 hereof, and (b) any such
failure that derives from an Unavoidable Delay) (any circumstance of the
nature described in this clause (1) being referred to herein as an
"Abatement Event"),
(2) the Abatement Event occurs from and after the Rent Commencement
Date for the applicable Deliverable Unit, and
(3) the Abatement Event has a material and adverse effect on
Tenant's ability to operate its business in the Premises (or a portion
thereof) during a substantial portion of Tenant's primary business hours
on a particular Business Day (any such Business Day being referred to
herein as an "Interference Day"; the Premises, or the portion thereof with
respect to which the Abatement Event has a material and adverse effect on
Tenant's ability to operate its business therein, as the case may be,
being referred to herein as the "Interference Area"),
134
139
then Tenant shall be entitled to a credit to apply against the Rental otherwise
due hereunder in an amount equal to the product obtained by multiplying (w) the
Abatement Percentage, by (x) the quotient obtained by dividing (a) the Rent Per
Square Foot, by (b) Three Hundred Sixty-Five (365), by (y) the number of square
feet of Rentable Area in the Interference Area, by (z) either (i) the number of
Business Days in the period beginning on the sixth (6th) consecutive Business
Day that constitutes an Interference Day and ending on the day immediately
preceding the first subsequent Business Day that is not an Interference Day, or
(ii) the excess of the number of Interference Days in any particular period of
twenty (20) consecutive Business Days over five (5), as the case may be. Tenant
acknowledges that the utility company's failure to provide electricity, gas,
steam or other similar service shall not constitute the basis for an Abatement
Event. As used herein, the term "Abatement Percentage" shall mean fifty percent
(50%), except that if Tenant does not use the Interference Area for the
operation of Tenant's business on an Interference Day solely by reason of the
occurrence of the applicable Abatement Event, then the Abatement Percentage in
respect of such Interference Day shall be one hundred percent (100%). Either
party shall have the right to submit a dispute between the parties regarding the
Rental credit described in this Section 14.5 to an Expedited Arbitration
Proceeding.
135
140
ARTICLE 15
CERTIFICATE OF OCCUPANCY
Section 15.1 Subject to the terms of this Section 15.1, Landlord, at
Landlord's sole cost and expense, shall obtain the Zero Occupancy Certificate of
Occupancy for each Deliverable Unit on or prior to the one hundred twentieth
(120th) day after the Commencement Date therefor; provided, however, that if
Tenant interferes with Landlord's obtaining a Zero Occupancy Certificate of
Occupancy on or prior to such date, then (i) Landlord's aforesaid obligation to
obtain the Zero Occupancy Certificate of Occupancy shall be extended for the
number of days of delay caused by Tenant's aforesaid interference, and (ii)
Tenant, at Tenant's sole cost and expense, shall take such steps to remove the
cause of such interference as promptly as reasonably practicable and in
accordance with good construction practice. If a Zero Occupancy Certificate of
Occupancy obtained by Landlord pursuant to this Section 15.1 constitutes a
temporary certificate of occupancy, then (x) Landlord shall cause such Zero
Occupancy Certificate of Occupancy to be renewed from time to time prior to the
expiration thereof, and (y) Tenant, in the course of the performance of Tenant's
Alterations, shall not interfere therewith. If Landlord fails to so obtain the
Zero Occupancy Certificate of Occupancy for a Deliverable Unit on or prior to
the one hundred twentieth (120th) day after the Commencement Date therefor (or
such later date, as aforesaid), then Tenant shall be entitled to a credit
against the Fixed Rent otherwise due hereunder in an amount equal to the Fixed
Rent that accrues hereunder in respect of such Deliverable Unit for the period
commencing on the one hundred twentieth (120th) day after the Commencement Date
therefor (or such later date, as aforesaid) and ending on the day immediately
preceding the date that Landlord obtains such Zero Occupancy Certificate of
Occupancy. After the Initial Alterations have been completed to the extent
required under Requirements to enable Tenant to obtain a temporary or permanent
certificate of occupancy for the Initial Alterations, Tenant shall obtain such a
certificate of occupancy covering the Premises and permitting the Premises to be
used for Tenant's purposes. Landlord shall not be required to obtain a Zero
Occupancy Certificate of Occupancy for a particular Deliverable Unit from and
after the date that Tenant obtains a permanent or temporary certificate of
occupancy for such Deliverable Unit; provided, however, that Landlord's being
relieved of Landlord's obligation to obtain such Zero Occupancy Certificate of
Occupancy shall not diminish Landlord's obligation to perform the Work in
accordance with the terms hereof. Following its issuance, Landlord shall not
cause such permanent or temporary certificate of occupancy to be amended or
modified at any time during the Term so as to cause Tenant's use or occupancy of
the Premises in accordance with the terms of this Lease to violate such
certificate of occupancy. Tenant shall obtain any amendments to such certificate
of occupancy that are required by reason of any Alterations that Tenant performs
after the Initial Alterations. No certificate of occupancy obtained by Landlord
or Tenant, nor any provision of this Lease, nor any act or omission of Landlord,
shall be deemed to constitute a representation or warranty that the Premises, or
any part thereof, lawfully may be used or occupied for any particular purpose or
in any particular manner.
Section 15.2 Subject to Section 6.3(B) hereof, Tenant shall not at any
time use or occupy the Premises in violation of the certificate of occupancy
issued for the Premises, except to the extent that (i) Tenant obtains the
appropriate permit from the applicable Governmental Authority to use the
Premises on a temporary basis in violation of such certificate of occupancy, and
(ii) such use of the Premises is otherwise permitted hereunder. If any
Governmental Authority hereafter contends or declares by notice, violation,
order or in any other manner whatsoever that the Premises are used for a purpose
which is a violation of such certificate of
136
141
occupancy, then, subject to Section 6.3(B) hereof, Tenant, upon notice from
Landlord or any Governmental Authority, shall immediately discontinue such use
of the Premises. Tenant shall have the right, at Tenant's sole cost and expense,
on prior notice to Landlord and subject to any then pending applications, to
amend the certificate of occupancy from time to time in effect for the Premises,
provided that (i) any such amendment is accomplished in accordance with all
Requirements, (ii) any such amendment does not permit any use of the Premises
not permitted under this Lease, and (iii) any such amendment does not materially
and adversely affect any portion of the Building other than the Premises, or the
use of such other portions of the Building. Landlord, at Tenant's sole cost and
expense, shall reasonably cooperate with Tenant's efforts under this Section
15.2.
ARTICLE 16
DEFAULT
Section 16.1 Each of the following events shall be an "Event of Default"
hereunder:
(A) If Tenant defaults in the payment when due of (x) any
monthly installment of Fixed Rent or Escalation Rent and such default continues
for three (3) Business Days after notice of such default is given to Tenant, or
(y) any other payment of Rental and such default continues for ten (10) Business
Days after notice of such default is given to Tenant; or
(B) if the entire Premises become abandoned for sixty (60)
days (it being understood that Tenant's mere vacating of the Premises shall not
constitute an Event of Default); or
(C) if Tenant's interest in this Lease or any portion
thereof devolves upon or passes to any Person, whether by operation of law or
otherwise, except as expressly permitted under Article 12 hereof; or
(D) (1) Tenant is generally not paying its debts as such
debts become due (unless such debts are the subject of a bona fide dispute)
(within the meaning of Section 303(h)(1) of the Bankruptcy Code); or
(2) if Tenant commences or institutes any case,
proceeding or other action (A) seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property; or
(3) if Tenant makes a general assignment for the
benefit of creditors; or
137
142
(4) if any case, proceeding or other action is
commenced or instituted against Tenant (A) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, which in either of such
cases (i) results in any such entry of an order for relief, adjudication of
bankruptcy or insolvency or such an appointment or the issuance or entry of any
other order having a similar effect, and (ii) remains undismissed or unstayed
for a period of one hundred twenty (120) days; or
(5) if any case, proceeding or other action
seeking monetary relief in excess of Twenty Million ($20,000,000) Dollars is
commenced or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its property which results in the entry of an order for any
such relief which is not vacated, discharged, or stayed or bonded pending appeal
within sixty (60) days from the entry thereof; or
(6) if Tenant takes any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is
appointed for any substantial part of the assets of Tenant which appointment
is not vacated or stayed within forty-five (45) days; or
(E) if Tenant defaults in the observance or performance of
any other term, covenant or condition of this Lease on Tenant's part to be
observed or performed and Tenant fails to remedy such default within thirty (30)
days after notice by Landlord to Tenant of such default, or, if such default is
of such a nature that it cannot with due diligence be completely remedied within
said period of thirty (30) days, Tenant does not commence within said period of
thirty (30) days, or thereafter diligently prosecute to completion, all steps
reasonably necessary to remedy such default; provided, however, that the period
during which Tenant has the right to remedy any such default pursuant to this
Section 16.1(E) shall not be extended beyond the initial period of thirty (30)
days to the extent that such default derives from (i) Tenant's failure to make a
payment of money, or any other event that derives from Tenant's lack of funds,
or (ii) weather conditions that are reasonably anticipatable by Tenant as to
frequency, duration and severity in their season of occurrence.
Section 16.2 (A) If an Event of Default (i) described in Section 16.1(D)
hereof occurs, or (ii) described in Sections 16.1(A), (B), (C), or (E) occurs
and Landlord, at any time thereafter, at its option gives a notice to Tenant
stating that this Lease and the Term shall expire and terminate on the third
(3rd) Business Day after the date that Landlord gives Tenant such notice, then
this Lease and the Term and all rights of Tenant under this Lease shall expire
and terminate as if the date on which the Event of Default described in clause
(i) above occurred or
138
143
the third (3rd) Business Day after the date of such notice, pursuant to clause
(ii) above, as the case may be, were the Fixed Expiration Date and Tenant
immediately shall quit and surrender the Premises, but Tenant shall nonetheless
be liable for all of its obligations hereunder, as provided for in Articles 17
and 18 hereof. Anything contained herein to the contrary notwithstanding, if
Landlord's right to so terminate this Lease is stayed by order of any court
having jurisdiction over any proceeding described in Section 16.1(D) hereof, or
by federal or state statute, then, following the expiration of any such stay, or
if the trustee appointed in any such proceeding, Tenant or Tenant as
debtor-in-possession fails to assume Tenant's obligations under this Lease
within the period prescribed therefor by law or within one hundred twenty (120)
days after entry of the order for relief or as may be allowed by the court, or
if said trustee, Tenant or Tenant as debtor-in-possession fails to provide
adequate protection of Landlord's right, title and interest in and to the
Premises or adequate assurance of the complete and continuous future performance
of Tenant's obligations under this Lease as provided in Section 12.3(B) hereof,
then Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on five (5) Business Days of advance notice to Tenant,
Tenant as debtor-in-possession or said trustee and upon the expiration of said
period of five (5) Business Days this Lease shall cease and expire as aforesaid
and Tenant, Tenant as debtor-in-possession or said trustee shall immediately
quit and surrender the Premises as aforesaid.
(B) If an Event of Default described in Section 16.1(A)
hereof occurs, or this Lease is terminated as provided in Section 16.2(A)
hereof, then Landlord, without notice and to the extent permitted by
Requirements, may reenter and repossess the Premises using legal means and may
dispossess Tenant by summary proceedings or otherwise.
Section 16.3 If, at any time, (i) Tenant is comprised of two (2) or more
Persons, or (ii) Tenant's obligations under this Lease have been guarantied by
any person other than Tenant, then the word "Tenant", as used in Section 16.1(D)
hereof, shall be deemed to mean any one or more of the Persons primarily or
secondarily liable for Tenant's obligations under this Lease. Any monies
received by Landlord from or on behalf of Tenant during the pendency of any
proceeding of the types referred to in Section 16.1(D) shall be deemed paid as
compensation for the use and occupancy of the Premises and the acceptance of any
such compensation by Landlord shall not be deemed an acceptance of Rental or a
waiver on the part of Landlord of any rights under Section 16.2 hereof.
139
144
ARTICLE 17
REMEDIES AND DAMAGES
Section 17.1 (A) If any Event of Default occurs, and this Lease and the
Term shall expire and come to an end as provided in Article 16 hereof, then:
(1) Tenant shall quit and peacefully surrender
the Premises to Landlord, and Landlord and its agents may re-enter the Premises
or any part thereof, without notice, either by summary proceedings, or by any
other legal action or proceeding, and may repossess the Premises and dispossess
Tenant and any other persons from the Premises and remove any and all of their
property and effects from the Premises; and
(2) Landlord, at Landlord's option, may relet the
whole or any portion or portions of the Premises from time to time, either in
the name of Landlord or otherwise, to such tenant or tenants, for such term or
terms ending before, on or after the Expiration Date, at such rental or rentals
and upon such other conditions, which may include concessions and free rent
periods, as Landlord, in its sole discretion, may determine; provided, however,
that Landlord shall have no obligation to relet the Premises or any part thereof
and shall in no event be liable for refusal or failure to relet the Premises or
any part thereof, or, in the event of any such reletting, for refusal or failure
to collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability; and
(3) Tenant, on its own behalf and on behalf of
all persons claiming through or under Tenant, including all creditors, does
further hereby waive any and all rights which Tenant and all such persons might
otherwise have under any present or future law to redeem the Premises, or to
re-enter or repossess the Premises, or to restore the operation of this Lease,
after (a) Tenant has been dispossessed by a judgment or by warrant of any court
or judge, or (b) any re-entry by Landlord, or (c) any expiration or termination
of this Lease and the Term, whether such dispossession, re-entry, expiration or
termination is by operation of law or pursuant to the provisions of this Lease.
The words "re-enter," "re-entry" and "re-entered" as used in this Lease shall
not be deemed to be restricted to their technical legal meanings. In the event
of a breach or threatened breach by Tenant, or any persons claiming through or
under Tenant, of any term, covenant or condition of this Lease, Landlord shall
have the right to seek to enjoin such breach and the right to invoke any other
remedy allowed by law or in equity as if re-entry, summary proceedings and other
special remedies were not provided in this Lease for such breach. The right to
invoke the remedies hereinbefore set forth are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in equity.
140
145
Section 17.2 (A) If this Lease and the Term expires and comes to an end as
provided in Article 16 hereof, or by or under any summary proceeding or any
other action or proceeding, or if Landlord re-enters the Premises as provided in
Section 17.1 hereof, or by or under any summary proceeding or any other action
or proceeding, then, in any of said events:
(1) Tenant shall pay to Landlord all Fixed Rent,
Escalation Rent and other items of Rental payable under this Lease by Tenant to
Landlord to the date upon which this Lease and the Term expires and comes to an
end or to the date of re-entry upon the Premises by Landlord, as the case may
be;
(2) Tenant also shall be liable for and shall pay
to Landlord, as damages, any deficiency (referred to as "Deficiency") between
the Rental for the period which otherwise would have constituted the unexpired
portion of the Term and the net amount, if any, of rents collected under any
reletting effected pursuant to the provisions of clause (2) of Section 17.1(A)
for any part of such period (first deducting from the rents collected under any
such reletting all of Landlord's expenses in connection with the termination of
this Lease and Landlord's re-entry upon the Premises and with such reletting,
including, but not limited to, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees and disbursements, alteration costs, and
contribution to work and other expenses of preparing the Premises for such
reletting; provided, however, that if Landlord pays a brokerage commission for a
reletting the term of which extends beyond the Expiration Date, then only the
portion of such commission that is allocable to the period of time that would
otherwise have constituted the unexpired portion of the Term may be so deducted
(it being understood that to determine the portion of such brokerage commission
that is allocable to such period of time, the amount of such brokerage
commission shall be amortized on a straight-line basis over the term of such
reletting)); any such Deficiency shall be paid in monthly installments by Tenant
on the days specified in this Lease for payment of installments of Fixed Rent;
Landlord shall be entitled to recover from Tenant each monthly Deficiency as the
same shall arise, and no suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
(3) whether or not Landlord has collected any
monthly Deficiency as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency as and for liquidated and agreed final damages, a sum equal to the
amount by which the Rental for the period which otherwise would have constituted
the unexpired portion of the Term (commencing on the date immediately succeeding
the last date with respect to which a Deficiency, if any, was collected) exceeds
the then fair and reasonable rental value of the Premises for the same period,
both discounted to present worth at the Base Rate; if, before presentation of
proof of such liquidated damages to any court, commission or tribunal, the
Premises, or any part thereof, have been relet by Landlord to an independent
third party, in an arm's length transaction, for the period which otherwise
would have constituted the unexpired portion of the Term, or any part thereof,
the amount of rent reserved upon such reletting shall be deemed, prima facie, to
be the fair and reasonable rental value for the part or the whole of the
Premises so relet during the term of the reletting.
141
146
(B) If the Premises, or any part thereof, are relet together
with other space in the Building, then the rents collected or reserved under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Nothing contained
in Article 16 hereof or this Article 17 shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section
17.2, except to the extent expressly set forth herein.
ARTICLE 18
FEES AND EXPENSES
Section 18.1 If an Event of Default has occurred and is continuing, then
Landlord may (1) as provided in Section 14.1 hereof, remedy such Event of
Default for the account of Tenant, or (2) make any reasonable expenditure or
incur any reasonable obligation for the payment of money, including, without
limitation, reasonable attorneys' fees and disbursements, in instituting,
prosecuting or defending any action or proceeding, and the cost thereof, with
interest thereon at the Applicable Rate, shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Landlord within thirty (30) days after
rendition of any xxxx or statement to Tenant therefor, together with copies of
relevant bills, receipts, invoices and other backup documentation in reasonable
detail, and proof of payment thereof, and if the Term has expired at the time of
making of such expenditures or incurring of such obligations, then such sums
shall be recoverable by Landlord as damages. Landlord shall incur only those
costs and expenses as are reasonably necessary under the circumstances and shall
receive no profit in connection therewith.
Section 18.2 If Tenant fails to pay any installment of Fixed Rent,
Escalation Rent or any other item of Rental within ten (10) days after the date
that such payment is due, then Tenant shall pay to Landlord, in addition to such
installment of Fixed Rent, Escalation Rent or other item of Rental, as the case
may be, as additional rent, interest at the Applicable Rate on the amount
unpaid, computed from the date such payment was due to and including the date of
payment. If Landlord fails to pay any amount to Tenant hereunder within ten (10)
days after the date that such payment is due, then Landlord shall pay to Tenant,
in addition to such amount, interest at the Applicable Rate on the amount
unpaid, computed from the date such payment was due to and including the date of
payment. If (i) Landlord fails to pay any such amount to Tenant when due
hereunder, and (ii) such failure continues for thirty (30) days after Tenant
gives Landlord notice thereof, then Tenant shall have the right to offset such
amount against the Fixed Rent thereafter coming due hereunder, together with
interest thereon at the Applicable Rate from the date that such payment was due
to the date that Tenant so applies such amount the Fixed Rent; provided,
however, that in no event shall Tenant have the right to so offset more than
thirty percent (30%) of the Fixed Rent due hereunder for any particular calendar
month (with the understanding that any portion of such amount that Tenant does
not have the right to offset against the Fixed Rent in any particular month may
be offset against the Fixed Rent for a
142
147
subsequent month, subject, however, to the aforesaid limit on Tenant's right to
offset any such amount against more than thirty percent (30%) of the Fixed Rent
due hereunder for any particular month). Nothing contained in this Section 18.2
limits Tenant's rights to offset against Rental as otherwise expressly set forth
herein.
Section 18.3 (A) As used herein, the term "Landlord Default" shall mean a
default by Landlord in the performance of its obligations under this Lease (to
the extent expressly required to be performed by Landlord herein) to repair and
maintain the Premises (including, without limitation, the Premises Systems) or
the Shared Building Systems which (a) impairs Tenant's ability to use the
Premises for the normal conduct of its business (other than to a de minimis
extent), (b) poses a material threat of harm to persons, or (c) poses a material
and imminent threat to Tenant's Property; provided that, in any such instance,
Landlord's failure to repair or maintain the Premises (or the Premises Systems)
or the Shared Building Systems is not due directly or indirectly to any act or
omission by Tenant or the installation or maintenance of Alterations or the
repairs or maintenance of the Premises (or the Premises Systems) or the Shared
Building Systems by Tenant or Tenant's particular manner of use of the Premises.
(B) (1) If (i) a Landlord Default occurs, (ii) Tenant gives
Landlord notice thereof (which directs Landlord's attention to the provisions of
this Section 18.3) (it being understood that such notice may be given to
Landlord orally to the extent required by reason of the occurrence of an
Emergency), (iii) Landlord fails (I) within thirty (30) days after receipt of
such notice (or, in the case of an Emergency, such shorter period after delivery
of a notice (which may be telephonic), if any, as is reasonable under the
circumstances) to (x) cure the Landlord Default, or (y) initiate the cure
thereof (if the Landlord Default is of such a nature that it cannot with
reasonable diligence be cured within such period), or (II) to diligently take
all steps necessary to cure such Landlord Default (after Landlord so initiates
the cure of any such Landlord Default that cannot with reasonable diligence be
cured within such period), and (iv) such Landlord's Default may be cured by
actions taken within the Premises (or with respect to Premises Systems or Shared
Building Systems which in either case are immediately adjacent to the Premises),
then Tenant may (a) cure such Landlord Default for the account of Landlord, (b)
pay any third party (in all circumstances where such Landlord Default may be
cured by the payment of a fixed sum to a third party) as may be required to
effect the cure of the Landlord Default, or (c) make any reasonable expenditure
or incur any reasonable obligation for the payment of money, including, without
limitation, reasonable attorneys' fees and disbursements in instituting,
prosecuting or defending any action or proceeding, in order to cure such
Landlord Default. Tenant shall incur only those costs and expenses as are
reasonably necessary under the circumstances and shall receive no profit in
connection with its performance of such work. To the extent that Tenant incurs
any cost or expense in connection with curing a Landlord Default as aforesaid,
Tenant shall submit to Landlord copies of relevant bills, receipts, invoices and
other backup documentation, together with proof of payment thereof, and Landlord
shall reimburse Tenant for such costs, with interest thereon at the Applicable
Rate, within thirty (30) days after submission of such bills, receipts,
invoices, documentation and proof of payment. If Landlord fails to pay such
amount to Tenant on or prior to the thirtieth (30th) day after the date that
Tenant makes such submission to Landlord, then Tenant shall have the right to
offset against the Rental thereafter due hereunder an amount equal to such
payment due from Landlord to Tenant
143
148
(including, without limitation, the aforesaid interest calculated at the
Applicable Rate, as provided in Section 18.2 hereof).
(C) Landlord and Tenant acknowledge and agree that an event
shall not constitute a Landlord's Default during the pendency of any legal
proceeding or arbitration regarding such event. Landlord shall retain the right
to cure any default of Landlord within the remaining applicable cure period set
forth in Section 18.3 hereof for any such default after such dispute has been
finally determined adversely to Landlord.
(D) Except as expressly provided in this Lease, all of
Tenant's rights and remedies under this Lease shall be cumulative and
non-exclusive, and no exercise by Tenant of any of its rights and remedies under
any provision of this Lease shall be deemed to limit the exercise by Tenant of
its rights and remedies under any other provision of this Lease. In the event of
a breach or threatened breach by Landlord of any term, covenant or condition of
this Lease, Tenant shall have the right to seek to enjoin such breach (except to
the extent expressly otherwise provided herein). The right to invoke the
remedies hereinbefore set forth are cumulative and shall not preclude Tenant
from invoking any other remedy allowed at law or in equity (except to the extent
expressly otherwise provided herein). Landlord acknowledges that if Landlord
defaults in respect of Landlord's obligation to construct the Work in accordance
with the Article 22 hereof, then the damages to which Tenant is entitled by
reason thereof may include, without limitation, an amount to compensate Tenant
for the diminution in the efficiency of the floor plan of the Premises for
Tenant's purposes.
ARTICLE 19
NO REPRESENTATIONS BY LANDLORD
Except as expressly set forth herein, Landlord and Landlord's agents and
representatives have made no representations or promises with respect to the
Building or the Premises and no rights, easements or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth herein.
Landlord shall have no obligation to perform any work or make any installations
in order to prepare the Premises or the Building for Tenant's occupancy, and
Tenant shall accept the Premises in its "as is" condition on the Commencement
Date, except in each case as expressly provided in this Lease. Landlord shall
provide Tenant with a copy of any environmental survey prepared by or for a
Mortgagee that finances the construction of the Building, to the extent that
Landlord obtains a copy of such report from the Mortgagee or the consultant that
prepares such report.
144
149
ARTICLE 20
END OF TERM
Upon the expiration or earlier termination of this Lease, Tenant shall
quit and surrender to Landlord the Premises, vacant, broom clean, and otherwise
in compliance with the provisions of Article 3 hereof. Tenant expressly waives,
for itself and for any person claiming through or under Tenant, any rights which
Tenant or any such person may have under the provisions of Section 2201 of the
New York Civil Practice Law and Rules and of any successor law of like import
then in force in connection with any holdover summary proceedings which Landlord
may institute to enforce the foregoing provisions of this Article 20. Tenant
acknowledges that possession of the Premises must be surrendered to Landlord on
the Expiration Date. Tenant shall indemnify and save Landlord harmless from and
against all claims, losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys' fees and disbursements) resulting from the delay
by Tenant in so surrendering the Premises, including, without limitation, (x)
any claims made by any succeeding tenant founded on such delay, or (y) any
damages sustained by Landlord by reason of Tenant's failure to deliver
possession of the Premises to Landlord; provided, however, that Tenant shall not
be so obligated to indemnify and save Landlord harmless unless Tenant fails to
surrender possession of the Premises within one hundred twenty (120) days after
the Expiration Date. If possession of the Premises is not surrendered to
Landlord on the Expiration Date, then, in addition to any other rights or
remedies Landlord may have hereunder or at law to obtain possession of the
Premises, Tenant shall pay to Landlord on account of use and occupancy of the
Premises for each month and for each portion of any month during which Tenant
holds over in the Premises after the Expiration Date, an amount equal to the
greater of (I) one hundred twenty-five percent (125%) of the Rental which was
payable under this Lease during the last month of the Term, and (II) the fair
market rent for the Premises; provided, however, that with respect to the period
from and after the forty-fifth (45th) day after the Expiration Date, said
monthly amount payable by Tenant to Landlord on account of use and occupancy of
the Premises shall be an amount equal to the greater of (I) one hundred fifty
percent (150%) of the Rental which was payable under this Lease during the last
month of the Term, and (II) the fair market rent for the Premises. Nothing
herein contained shall be deemed to permit Tenant to retain possession of the
Premises after the Expiration Date or to limit in any manner Landlord's right to
regain possession of the Premises through summary proceedings, or otherwise, and
no acceptance by Landlord of payments from Tenant after the Expiration Date
shall be deemed to be other than on account of the amount to be paid by Tenant
in accordance with the provisions of this Article 20. The provisions of this
Article 20 shall survive the Expiration Date.
ARTICLE 21
QUIET ENJOYMENT
Landlord covenants that Tenant may peaceably and quietly enjoy the
Premises for the Term, subject, nevertheless, to the terms and conditions of
this Lease.
145
150
ARTICLE 22
CONSTRUCTION OF THE BUILDING AND THE PREMISES
Section 22.1 (A) Subject to the terms of this Article 22, Landlord shall
use commercially reasonable diligent efforts to cause to be performed in a good
and workerlike manner, in accordance with the Building Standard and good
construction practice, and in compliance with all applicable Requirements, the
construction of the Building (i) in general conformity with the schematic
drawings listed in Exhibit 22.1 attached hereto and made a part hereof (such
drawings being collectively referred to herein as the "Schematic Drawings"), and
(ii) in conformity with the provisions described in the Work Exhibit (the
construction of the Building in a manner that complies with the requirements set
forth in clause (i) and clause (ii) above being referred to herein as the
"Work"; each particular component of the Work being referred to herein as a
"Work Component"). Landlord and Tenant acknowledge that the Schematic Drawings
constitute a preliminary design plan for the Building, and, accordingly,
Landlord shall have the right to construct the Building in a manner that results
in the Work not being in strict conformity with the Schematic Drawings;
provided, however, that Landlord shall not have the right to construct the
Building in a manner that (X) does not conform with the provisions described in
the Work Exhibit, or (Y) results in the basic perimeter footprint of each floor
of the Premises not being in compliance with the Schematic Drawings. Landlord
and Tenant shall confirm in writing the occurrence of the Commencement Date for
a particular Deliverable Unit within ten (10) days after the occurrence thereof
(with the understanding, however, that the parties' failure to execute and
deliver any such confirmation shall not affect the validity of the Commencement
Date for such Deliverable Unit). Landlord shall also construct the portion of
the Building that does not constitute a Tenant Area and that is located at or
above grade and below the Premises to the extent necessary so that the curtain
wall is installed thereon on or prior to the Rent Commencement Date that first
occurs (it being understood that Landlord shall not be required to have
installed the individual storefronts for the retail locations in the Building on
or prior to the Rent Commencement Date that first occurs). Landlord shall engage
a qualified and reputable construction company to perform the Work (it being
understood that Bovis LendLease constitutes a qualified and reputable
construction company for purposes hereof). Landlord shall not have the right to
engage as the construction company performing the Work the same construction
company that Tenant engages as the principal construction company performing the
Initial Alterations; provided, however, that (i) Landlord shall not be so
precluded from engaging Bovis LendLease as the construction company for the
Work, and (ii) Landlord shall not be so precluded from engaging any other
construction company to perform the Work unless, prior to the date that Landlord
engages such other construction company, Tenant gives Landlord a Construction
Notice to the effect that Tenant has engaged such construction company as the
principal construction company performing the Work.
(B) (1) Tenant shall have the right to give to Landlord,
within fifteen (15) Business Days after the date that Landlord delivers
possession of a Deliverable Unit to Tenant, a Construction Notice indicating
whether Tenant disputes the occurrence of the Commencement Date for such
Deliverable Unit on the date that Landlord delivered possession thereof to
Tenant. If Tenant fails to give such Construction Notice to Landlord within such
period of fifteen (15) Business Days, then the Commencement Date for such
Deliverable Unit shall be deemed to be the date that Landlord delivers
possession thereof to Tenant. If Tenant gives such Construction Notice to
Landlord within such period of fifteen (15) Business Days,
146
151
then either Landlord or Tenant shall have the right to submit any dispute
between the parties with respect thereto to an Expedited Arbitration Proceeding.
(2) Tenant shall have the right to give to
Landlord, within fifteen (15) Business Days after the date that Landlord
delivers possession of a Deliverable Unit to Tenant, a Construction Notice
identifying the items of the Pre-Delivery Work for such Deliverable Unit that
then remain incomplete or improperly performed in accordance with generally
accepted construction industry standards for work in buildings that conform with
the Building Standard (such items of the Pre-Delivery Work identified by Tenant
with respect to a particular Deliverable Unit being collectively referred to
herein as the "Pre-Delivery Punch List Items"). Landlord shall not be required
to perform any items of Pre-Delivery Work in the applicable Deliverable Unit
after the date that Landlord delivers possession thereof to Tenant unless Tenant
so identifies the Pre-Delivery Punch List Items within such period of fifteen
(15) Business Days; provided, however, that Landlord shall remain obligated to
complete or repair items of the Pre-Delivery Work in such Deliverable Unit which
Tenant could not be reasonably expected to discover in reasonably inspecting
such Deliverable Unit during such period of fifteen (15) Business Days (such
items of the Pre-Delivery Work in such Deliverable Unit which Tenant could not
be reasonably expected to discover, as aforesaid, being collectively referred to
herein as the "Pre-Delivery Latent Items"). Landlord and Tenant shall each have
the right to submit to an Expedited Arbitration Proceeding any dispute between
the parties regarding the Pre-Delivery Punch List Items or the Pre-Delivery
Latent Items.
(3) Landlord shall proceed to complete or repair
the Pre-Delivery Punch List Items (to the extent that Landlord is obligated to
perform such items of Pre-Delivery Work hereunder) promptly after the date that
Tenant gives to Landlord a Construction Notice thereof as contemplated by
Section 22.1(B)(2) hereof. Landlord shall complete or repair the Pre-Delivery
Latent Items promptly after the date that Tenant gives to Landlord a
Construction Notice describing in reasonable detail the applicable Pre-Delivery
Latent Item. Landlord shall perform the Pre-Delivery Punch List Items (to the
extent that Landlord is obligated hereunder to perform such Pre-Delivery Punch
List Items) and the Pre-Delivery Latent Items with reasonable diligence, and in
accordance with good construction practice, and shall coordinate Landlord's
required access to the applicable Deliverable Unit with Tenant or Tenant's
contractors and shall use reasonable measures to minimize disruption to Tenant
in connection therewith.
(4) If (i) Tenant identifies (A) a Pre-Delivery
Punch List Item in accordance with Section 22.1(B)(2) hereof, or (B) a
Pre-Delivery Latent Item in accordance with Section 22.1(B)(3) hereof, (ii) such
Pre-Delivery Punch List Item or Pre-Delivery Latent Item is located in a
particular Deliverable Unit, (iii) Landlord is obligated hereunder to perform
such Pre-Delivery Punch List Item or such Pre-Delivery Latent Item, and (iv)
Landlord fails to perform such Pre-Delivery Punch List Item or such Pre-Delivery
Latent Item within thirty (30) days after the date that Tenant gives to Landlord
the Construction Notice of the Pre-Delivery Punch List Item or the Pre-Delivery
Latent Item, as the case may be, then Tenant shall have the right to (a) perform
the applicable Pre-Delivery Punch List Item or Pre-Delivery Latent Item, and (b)
recover from Landlord the reasonable out-of-pocket costs incurred by Tenant in
performing
147
152
such Pre-Delivery Punch List Item or such Pre-Delivery Latent Item;
provided, however, that (I) if (A) such Pre-Delivery Punch List Item or such
Pre-Delivery Latent Item is of a nature that Landlord could not be reasonably
expected to complete the performance thereof within such period of thirty (30)
days, and (B) Landlord commences Landlord's performance of such Pre-Delivery
Punch List Item or such Pre-Delivery Latent Item promptly after the date that
Tenant gives to Landlord the Construction Notice of the Pre-Delivery Punch List
Item or the Pre-Delivery Latent Item, as the case may be, then such period of
thirty (30) days shall be extended to the extent that Landlord continues to
prosecute with reasonable diligence the performance of such Pre-Delivery Punch
List Item or such Pre-Delivery Latent Item to completion, and (II) such period
of thirty (30) days shall also be extended to the extent that Tenant materially
impedes Landlord's performance of such Pre-Delivery Punch List Item or such
Pre-Delivery Latent Item. Landlord shall make such payment to Tenant of the
aforesaid costs that Tenant incurs in performing such Pre-Delivery Punch List
Item or such Pre-Delivery Latent Item within thirty (30) days after Tenant makes
a demand on Landlord therefor (including reasonable documentation that supports
Tenant's calculation of such costs). If Landlord fails to make such payment to
Tenant within such period of thirty (30) days, then Tenant, in addition to
Tenant's other rights and remedies at law or in equity or as otherwise provided
herein, shall have the right to offset such costs against the Rental otherwise
due hereunder, together with interest thereon at the Applicable Rate calculated
from the date that such payment first became due to Tenant hereunder.
(C) (1) Tenant shall have the right to give to Landlord,
within fifteen (15) Business Days after the date that Landlord gives a
Construction Notice to Tenant contending that Landlord has Substantially
Completed the Post-Delivery Work, a Construction Notice identifying the items of
the Post-Delivery Work that then remain incomplete or improperly performed in
accordance with generally accepted construction industry standards for work in
buildings that conform with the Building Standard (such items of the
Post-Delivery Work identified by Tenant being collectively referred to herein as
the "Post-Delivery Punch List Items"). Landlord shall not be required to perform
any items of Post-Delivery Work after the date that Landlord gives such
Construction Notice to Tenant unless Tenant identifies the Post-Delivery Punch
List Items within such period of fifteen (15) Business Days; provided, however,
that Landlord shall remain obligated to complete or repair items of the
Post-Delivery Work which Tenant could not be reasonably expected to discover in
reasonably inspecting the Premises during such period of fifteen (15) Business
Days (such items of the Post-Delivery Work which Tenant could not be reasonably
expected to discover, as aforesaid, being collectively referred to herein as the
"Post-Delivery Latent Items"). Landlord and Tenant shall each have the right to
submit to an Expedited Arbitration Proceeding any dispute between the parties
regarding the Post-Delivery Punch List Items or the Post-Delivery Latent Items.
(2) Landlord shall proceed to complete or repair
the Post-Delivery Punch List Items (to the extent that Landlord is obligated to
perform such items of Post-Delivery Work hereunder) promptly after the date that
Tenant gives to Landlord a Construction Notice thereof as contemplated by
Section 22.1(C)(1) hereof. Landlord shall complete or repair the Post-Delivery
Latent Items promptly after the date that Tenant gives to Landlord a
Construction Notice describing in reasonable detail the applicable Post-Delivery
148
153
Latent Item. Landlord shall perform the Post-Delivery Punch List Items (to the
extent that Landlord is obligated hereunder to perform such Post-Delivery Punch
List Items) and the Post-Delivery Latent Items with reasonable diligence, and in
accordance with good construction practice, and shall coordinate Landlord's
required access to the Premises with Tenant or Tenant's contractors and shall
use reasonable measures to minimize disruption to Tenant in connection
therewith.
(3) If (i) Tenant identifies (A) a Post-Delivery
Punch List Item in accordance with Section 22.1(C)(1) hereof, or (B) a
Post-Delivery Latent Item in accordance with Section 22.1(C)(2) hereof, (ii)
such Post-Delivery Punch List Item or Post-Delivery Latent Item is located in
the Premises, (iii) Landlord is obligated hereunder to perform such
Post-Delivery Punch List Item or such Post-Delivery Latent Item, and (iv)
Landlord fails to perform such Post-Delivery Punch List Item or such
Post-Delivery Latent Item within thirty (30) days after the date that Tenant
gives to Landlord the Construction Notice of the Post-Delivery Punch List Item
or the Post-Delivery Latent Item, as the case may be, then Tenant shall have the
right to (a) perform the applicable Post-Delivery Punch List Item or
Post-Delivery Latent Item, and (b) recover from Landlord the reasonable
out-of-pocket costs incurred by Tenant in performing such Post-Delivery Punch
List Item or such Post-Delivery Latent Item; provided, however, that (I) if (A)
such Post-Delivery Punch List Item or such Post-Delivery Latent Item is of a
nature that Landlord could not be reasonably expected to complete the
performance thereof within such period of thirty (30) days, and (B) Landlord
commences Landlord's performance of such Post-Delivery Punch List Item or such
Post-Delivery Latent Item promptly after the date that Tenant gives to Landlord
the Construction Notice of the Post-Delivery Punch List Item or the
Post-Delivery Latent Item, as the case may be, then such period of thirty (30)
days shall be extended to the extent that Landlord continues to prosecute the
performance of such Post-Delivery Punch List Item or such Post-Delivery Latent
Item to completion, and (II) such period of thirty (30) days shall also be
extended to the extent that Tenant materially impedes Landlord's performance of
such Post-Delivery Punch List Item or such Post-Delivery Latent Item. Landlord
shall make such payment to Tenant of the aforesaid costs that Tenant incurs in
performing such Post-Delivery Punch List Item or such Post-Delivery Latent Item
within thirty (30) days after Tenant makes a demand on Landlord therefor
(including reasonable documentation that supports Tenant's calculation of such
costs). If Landlord fails to make such payment to Tenant within such period of
thirty (30) days, then Tenant, in addition to Tenant's other rights and remedies
at law or in equity, shall have the right to offset such costs against the
Rental otherwise due hereunder, together with interest thereon at the Applicable
Rate calculated from the date that such payment first became due to Tenant
hereunder.
(D) Landlord, after the Commencement Date for a particular
Deliverable Unit, shall conduct Landlord's testing, adjusting and balancing of
the Shared Building Systems and the Premises Systems at times reasonably
required and in a manner that minimizes, to the extent reasonably practicable,
interference with Tenant's performance of the Initial Alterations and Tenant's
occupancy of the Premises for the conduct of business. Landlord shall give
Tenant at least ten (10) days of advance Construction Notice of any such
testing, adjusting and balancing.
149
154
(E) (1) Landlord shall not have the right to cause the
Commencement Date for a particular Deliverable Unit in the Lexington Avenue
Building to occur unless the Commencement Date has theretofore occurred for all
of the Deliverable Units (other than Deliverable Units in the Lower Level Space)
that are located on floors of the Lexington Avenue Building that are lower than
such particular Deliverable Unit.
(2) Landlord shall not have the right to cause
the Commencement Date for a particular Deliverable Unit in the Third Avenue
Building to occur unless the Commencement Date has theretofore occurred for all
of the Deliverable Units (other than Deliverable Units in the Lower Level Space)
that are located on floors of the Third Avenue Building that are lower than such
particular Deliverable Unit.
(3) Landlord shall not have the right to cause
the Commencement Date for a Deliverable Unit located on the fourth (4th), fifth
(5th) or sixth (6th) floors of the Third Avenue Building to occur unless (x) the
Commencement Date for the Deliverable Unit located on the corresponding floor of
the Lexington Avenue Building has occurred, and (y) either (I) the Commencement
Date for the Deliverable Unit located on the corresponding floor of the Bridge
Building has theretofore occurred, or (II) Landlord makes available for Tenant's
use, on such floor of the Bridge Building, from and after such Commencement Date
for such Deliverable Unit in the Third Avenue Building, (X) the above-ceiling
locations where Tenant reasonably proposes to make its installation of the
mechanical, electrical, sprinkler and/or plumbing systems in the Bridge Building
that will service such Deliverable Unit in the Third Avenue Building, and (Y) an
access tunnel, constructed by Landlord at Landlord's sole cost and expense and
in accordance with good construction practice and applicable Requirements, that
provides a reasonable means of access from the Lexington Avenue Building to the
Third Avenue Building for construction purposes (any such access tunnel that
Landlord constructs at Landlord's sole cost and expense and in accordance with
good construction practice and that provides a reasonable means of access from
the Lexington Avenue Building to the Third Avenue Building being referred to
herein as an "Access Tunnel"). If Landlord provides Tenant with the use of an
Access Tunnel as contemplated by this Section 22.1(E)(3), then the Pre-Delivery
Work for the Deliverable Unit in the Bridge Building where such Access Tunnel is
located shall be deemed to include, without limitation, the removal of such
Access Tunnel in accordance with good construction practice and applicable
Requirements. Either party shall have the right to submit a dispute between the
parties regarding the reasonableness of the Access Tunnel to an Expedited
Arbitration Proceeding.
(4) If (x) Landlord causes the Commencement Date
for a Deliverable Unit located on the fourth (4th), fifth (5th) or sixth (6th)
floors of the Third Avenue Building to occur prior to the date that the
Commencement Date for the corresponding Deliverable Unit in the Bridge Building
occurs, and (y) the Commencement Date for such corresponding Deliverable Unit in
the Bridge Building does not occur on or prior to the ninetieth (90th) day after
the Commencement Date for such Deliverable Unit in the Third Avenue Building,
then the Rent Commencement Date for such Deliverable Unit in the Third Avenue
Building shall be extended for the number of days in the period from the
ninety-first (91st) day after the Commencement Date for such Deliverable Unit in
the Third Avenue Building to the day
150
155
immediately preceding the Commencement Date for such corresponding Deliverable
Unit in the Bridge Building.
(5) If Landlord exercises Landlord's rights as
described in Section 22.1(E)(3) hereof to cause the Commencement Date for a
Deliverable Unit on the fourth (4th), fifth (5th) or sixth (6th) floors of the
Third Avenue Building to occur by providing Tenant with the use of an Access
Tunnel and the use of the above-ceiling slab locations in the Bridge Building
where Tenant reasonably proposes to make its installation of mechanical,
electrical, sprinkler and/or plumbing systems in the Bridge Building that will
service such Deliverable Unit in the Third Avenue Building, then the Rent
Commencement Date for the Deliverable Unit that constitutes the floor of the
Bridge Building on which Landlord has so constructed the Access Tunnel shall be
the earlier to occur of (x) the date that a Permitted Occupant uses such
Deliverable Unit in the Bridge Building for the conduct of such Permitted
Occupant's business, and (y) the date that corresponds to the Commencement Date
for such Deliverable Unit in the Bridge Building in the sixth (6th) calendar
month following the calendar month during which said Commencement Date occurs,
except that if there is no day in such sixth (6th) calendar month that
corresponds to the Commencement Date for such Deliverable Unit in the Bridge
Building, then the date described in this clause (y) shall be the first day of
the seventh (7th) calendar month following the calendar month during which such
Commencement Date occurs; provided, however, that in no event shall the Rent
Commencement Date for such Deliverable Unit in the Bridge Building occur earlier
than the Rent Commencement Date for the Deliverable Unit in the Third Avenue
Building to which such Access Tunnel provides access.
(6) Landlord shall have the right to cause the
Commencement Date to occur for a Deliverable Unit notwithstanding that the
curtain wall therefor is not then installed to the extent reasonably necessary
to accommodate a Construction Hoist or Construction Hoists, provided that
Landlord has then installed, in accordance with applicable Requirements and good
construction practice, an appropriate weather-tight partition to separate the
applicable hoist landing and hoist tie-backs from the applicable Deliverable
Unit. Landlord shall minimize, to the extent reasonably practicable, the extent
of the impact of the tie-backs for the Construction Hoists on the Premises,
subject, however, to the bounds of good engineering practice. If Landlord
exercises Landlord's aforesaid right to deliver possession of a Deliverable Unit
to Tenant without a portion of the curtain wall installed thereon, then Landlord
shall (i) use Landlord's reasonable efforts to protect Tenant's installations in
such Deliverable Unit in connection with Landlord's subsequently installing such
curtain wall, and (ii) repair any damage to Tenant's installations in such
Deliverable Unit that results from Landlord's aforesaid subsequent installation
of such curtain wall. If Landlord exercises Landlord's aforesaid right to cause
the Commencement Date for a Deliverable Unit to occur without the curtain wall
being installed thereon to accommodate a Construction Hoist (other than the
Shared Hoist), then the Rent Commencement Date for the applicable Deliverable
Unit shall be extended by one (1) day for each day in the period beginning on
the first (1st) anniversary of the First Commencement Date and ending on the day
immediately preceding the date that Landlord so installs the curtain wall for
such Deliverable Unit; provided, however, that in no event shall such extension
of the Rent Commencement Date for a Deliverable Unit result in such Rent
Commencement Date occurring later than the date that Tenant occupies such
Deliverable Unit for the conduct of
151
156
business. If a Construction Hoist is located in the Lexington Place Courtyard on
the Rent Commencement Date that first occurs, then, to the extent permitted by
good construction practice and applicable Requirements, Landlord shall install
(and keep in use until such Construction Hoist is removed) a suitable access
tunnel that provides pedestrian access to the Exclusive Lobby Area from Xxxx
00xx Xxxxxx. If Landlord exercises Landlord's aforesaid right to cause the
Commencement Date for a Deliverable Unit to occur without the curtain wall being
installed thereon to accommodate the Shared Hoist, then the Rent Commencement
Date for the applicable Deliverable Unit shall be extended by one (1) day for
each day in the period beginning on the ninetieth (90th) day after the last day
of Tenant's Exclusive Hoist Period and ending on the date that Landlord so
installs such curtain wall; provided, however, that in no event shall such
extension of the Rent Commencement Date for a Deliverable Unit result in such
Rent Commencement Date occurring later than the date that Tenant occupies such
Deliverable Unit for the conduct of business.
(7) Landlord shall have the right to cause the
Commencement Date to occur for a Deliverable Unit notwithstanding that the
curtain wall therefor that fronts on the Lexington Place Courtyard is not then
installed, provided that Landlord has then installed a temporary weather-tight
wall in accordance with applicable Requirements and good construction practice
at the perimeter of such Deliverable Unit. If (x) Landlord so causes the
Commencement Date to occur for a Deliverable Unit with such temporary
weather-tight wall, and (y) Landlord fails to cause the curtain wall for such
Deliverable Unit that fronts on the Lexington Place Courtyard to be installed on
or prior to the ninetieth (90th) day after the Commencement Date for such
Deliverable Unit, then the Rent Commencement Date for the applicable Deliverable
Unit shall be extended for one (1) day for each day in the period beginning on
the ninetieth (90th) day after the Commencement Date for such Deliverable Unit
and ending the day immediately preceding that date that Landlord so installs the
curtain wall for such Deliverable Unit; provided, however, that in no event
shall such extension of the Rent Commencement Date for a Deliverable Unit extend
beyond the date that Tenant occupies such Deliverable Unit for the conduct of
business. If Landlord exercises Landlord's aforesaid right to deliver possession
of a Deliverable Unit to Tenant without a portion of the curtain wall installed
thereon, then Landlord shall (i) use Landlord's reasonable efforts to protect
Tenant's installations in such Deliverable Unit in connection with Landlord's
subsequently installing such curtain wall, and (ii) repair any damage to
Tenant's installations in such Deliverable Unit that results from Landlord's
aforesaid subsequent installation of such curtain wall.
(8) Landlord shall cause the Commencement Date
for the Lower Level Space located on Lower Level 3 of the Building to occur no
later than the First Commencement Date.
(9) Subject to the terms of this Section
22.1(E)(9) and Article 14 hereof, Landlord shall deliver to Tenant exclusive
possession of portions of the Lower Level Space located on Lower Level 2 of the
Building that are designated as space "A", space "B" and space "C" on the
Schematic Drawing for Lower Level 2 of the Building no later than the First
Commencement Date (such portion of the Lower Level Space located on Lower Level
2 of the Building being referred to herein as the "First Lower Level Space").
Landlord and
152
157
Tenant acknowledge that the exact dimensions of the First Lower Level Space may
differ in immaterial respects from the First Lower Level Space as depicted on
the Schematic Drawing for Lower Level 2 of the Building (with the further
understanding that Landlord has the right to change the configuration of the
First Lower Level Space designated as space "B" on the aforesaid Schematic
Drawing, provided that Tenant's electric switch room is adjacent to the utility
company's electrical transformer vault and that the interior dimensions of the
room conform to applicable Requirements and the requirements of the electric
utility company). Landlord shall deliver to Tenant exclusive possession of the
remaining portion of the Lower Level Space located on Lower Level 2 of the
Building, with the Pre-Delivery Work therein Substantially Completed, on or
prior to the one hundred eightieth (180th) day after the First Commencement
Date; provided, however, that Landlord shall have the right to delay Landlord's
delivery to Tenant of exclusive possession of no more than fifty percent (50%)
of the Lower Level Space located on Lower Level 2 of the Building, with the
Pre-Delivery Work therein Substantially Completed, until a date that occurs no
later than the two hundred seventieth (270th) day after the First Commencement
Date (the portion of the Lower Level Space located on Lower Level 2 of the
Building (other than the First Lower Level Space) that Landlord delivers to
Tenant on or prior to the one hundred eightieth (180th) day after the First
Commencement Date being referred to herein as the "Second Lower Level Space";
the portion of the Lower Level Space located on Lower Level 2 of the Building
for which Landlord exercises Landlord's aforesaid right to delay the delivery of
possession thereof to Tenant being referred to herein as the "Third Lower Level
Space"). Landlord shall not have the right to deliver to Tenant the Third Lower
Level Space on a date later than the Second Lower Level Space as contemplated by
this Section 22.1(E)(9) unless the Second Lower Level Space constitutes one (1)
contiguous block of space that is reasonably accessible for the performance of
the Initial Alterations. Landlord shall consult with Tenant from time to time in
connection with the design of the Building to identify as promptly as
practicable the Third Lower Level Space. If the aforesaid date of delivery by
Landlord to Tenant of exclusive possession of the First Lower Level Space, the
Second Lower Level Space or the Third Lower Level Space does not occur on the
same date, then, for purposes of determining the Rent Commencement Date for the
Lower Level Space located on Lower Xxxxx 0 of the Building, each of the First
Lower Level Space, the Second Lower Level Space and the Third Lower Level Space
shall be deemed to be a separate Deliverable Unit.
(10) Landlord shall not have the right to cause
the Commencement Date for a Deliverable Unit to occur earlier than October 1,
2002.
(11) Landlord shall not have the right to cause
the Commencement Date for the Deliverable Unit constituting the third (3rd)
floor in the Lexington Avenue Building to occur unless Landlord has theretofore
made available to Tenant the Tenant Mechanical Areas that constitute the shaft
space running to the Lower Level Space on Lower Level 2 of the Building.
(12) If Landlord fails to make available to Tenant
the Tenant Mechanical Areas located on the eleventh (11th) and twelfth (12th)
floors of the Lexington Avenue Building, and the Tenant Mechanical Areas located
on the ninth (9th) floors of the Third Avenue Building, in each case on or prior
to the ninetieth (90th) day after the First
153
158
Commencement Date, then the Rent Commencement Date for each Deliverable Unit in
the Base Premises shall be extended for the number of days in the period
beginning on the ninety-first (91st) day after the First Commencement Date and
ending on the date that Landlord makes such Tenant Mechanical Areas available to
Tenant; provided, however, that (a) in no event shall such extension result in
the Rent Commencement Date occurring after the date that Tenant occupies the
applicable Deliverable Unit for the conduct of business, and (b) Landlord shall
have the right to make such Tenant Mechanical Areas available to Tenant without
the curtain wall installed thereon (provided that on the date that Landlord
makes such Tenant Mechanical Areas available to Tenant, Landlord has installed a
weather-tight temporary partition in lieu of such curtain wall in accordance
with applicable Requirements and good construction practice). If (i) Landlord
exercises Landlord's aforesaid right to deliver possession of such Tenant
Mechanical Areas on the eleventh (11th) or twelfth (12th) floors of the
Lexington Avenue Building or the ninth (9th) floors of the Third Avenue Building
without the curtain wall installed thereon, and (ii) Landlord fails to install
such curtain wall on or prior to the one hundred eightieth (180th) day after the
First Commencement Date, then the Rent Commencement Date for the Base Premises
shall be extended for the number of days in the period beginning on the one
hundred eighty-first (181st) day after the First Commencement Date and ending on
the date that Landlord installs such curtain wall; provided, however, that in no
event shall such extension result in the Rent Commencement Date occurring after
the date that Tenant occupies the applicable Deliverable Unit for the conduct of
business. If Landlord exercises Landlord's aforesaid right to deliver possession
of such Tenant Mechanical Areas without the curtain wall installed thereon, then
Landlord shall (i) use Landlord's reasonable efforts to protect Tenant's
installations in such Tenant Mechanical Areas in connection with Landlord's
subsequently installing such curtain wall within such period of one hundred
eighty (180) days after the First Commencement Date, and (ii) repair any damage
to Tenant's installations in such Tenant Mechanical Areas that results from
Landlord's aforesaid subsequent installation of such curtain wall. Landlord
shall permit Tenant to gain access to the Tenant Mechanical Areas located on the
eleventh (11th) and twelfth (12th) floors of the Lexington Avenue Building, and
on the ninth (9th) floor of the Third Avenue Building, during the period from
the First Commencement Date to the ninetieth (90th) day after the First
Commencement Date, for purposes of Tenant's performing its initial installation
therein, on the terms and subject to the terms of this Lease that govern
Tenant's use of the Tenant Mechanical Areas; provided, however, that (i) Tenant,
in gaining such access to such Tenant Mechanical Areas, and in performing such
installation, in either case during such period of ninety (90) days after the
First Commencement Date, shall not have the right to delay or impede Landlord's
performance of the Work or the construction of the remainder of the Building,
and (ii) Tenant shall schedule such access, and Tenant's performance of such
initial installation, with Landlord in good faith and in accordance with good
construction practice.
(13) Landlord shall not have the right to cause
the Commencement Date to occur for the Second Lower Level Space unless Landlord
has theretofore made available to Tenant the Tenant Mechanical Areas located on
Lower Xxxxx 0 of the Building.
(14) Landlord shall not have the right to cause
the Commencement Date to occur for the portion of the Lower Level Space on Lower
Xxxxx 0 of the
154
159
Building unless Landlord has theretofore made available to Tenant the Tenant
Mechanical Area located on Lower Xxxxx 0 of the Building.
(15) The Rent Commencement Date for each
Deliverable Unit in the Base Premises shall be extended by one (1) day for each
day in the period beginning on the two hundred seventieth (270th) day after the
First Commencement Date and ending on the day immediately preceding the date
that Landlord Substantially Completes the Work Component consisting of the
initial installation in the Shared Lobby Area.
(16) Landlord shall not have the right to cause
the Commencement Date for a Deliverable Unit in the Third Avenue Building to
occur unless Landlord has made available for Tenant's use either (x) the Shared
Hoist, or (y) the freight elevator in the Third Avenue Building, in either case
as contemplated by Section 22.14 hereof.
(17) Landlord shall not have the right to cause
the Commencement Date for a Deliverable Unit in the Lexington Avenue Building to
occur unless Landlord has made available for Tenant's use either (x) one (1) car
of a Construction Hoist on the Lexington Avenue Building to the extent otherwise
permitted hereunder for three (3) consecutive hours on each Business Day, or (y)
the Premises Elevator that constitutes the freight elevator in the Lexington
Avenue Building, in either case as contemplated by Section 22.15(G) hereof.
(18) If Landlord fails to cause the central HVAC
System to be operational on or prior to the one hundred twentieth (120th) day
after the First Commencement Date, then the Rent Commencement Date for each
Deliverable Unit in respect of which the Commencement Date has theretofore
occurred shall be extended by one (1) day for each day in the period beginning
on the one hundred twenty-first (121st) day after the First Commencement Date
and ending on the day immediately preceding the date that the central HVAC
System is operational; provided, however, that in no event shall such extension
of the Rent Commencement Date for a Deliverable Unit extend beyond the date that
Tenant uses such Deliverable Unit for the conduct of business. Landlord and
Tenant acknowledge that the central HVAC System shall be deemed to be
operational for purposes of this Section 22.1(E)(18) notwithstanding that (I)
the controls for such central HVAC System are not yet installed (so long as the
HVAC can be operated in the "hand" mode), and (II) such central HVAC System is
not yet balanced. Landlord shall have the right to interrupt the operation of
the central HVAC System from time to time during the first sixty (60) days after
Landlord causes the central HVAC System to be operational for purposes of this
Section 22.1(E)(18) to the extent reasonably necessary for the completion of the
installation of the central HVAC System. Tenant acknowledges that Operating
Expenses shall include, without limitation, the incremental costs that Landlord
incurs in engaging construction and Building management personnel to operate the
central HVAC System for the period commencing on the date that Landlord causes
the central HVAC System to be operational for purposes of this Section
22.1(E)(18) and ending on the earlier to occur of (x) the sixtieth (60th) day
after such date that Landlord causes the central HVAC System to be operational
for purposes of this Section 22.1(E)(18), and (y) the date that the controls for
the central HVAC System have been installed to the extent necessary so that
Landlord no longer requires such construction and Building management personnel
to operate the central HVAC System; provided, however, that if the First
Commencement Date occurs later than December 1, 2003,
155
160
then Operating Expenses shall not include any of the costs that Landlord incurs
in engaging such construction and Building maintenance personnel for the period
from and after June 1, 2004. If Landlord fails to Substantially Complete the
Work Component consisting of the installation of the central HVAC System
(including, without limitation, the installation of the controls for the central
HVAC System) on or prior to the one hundred eightieth (180th) day after the
First Commencement Date, then the Rent Commencement Date for each Deliverable
Unit in respect of which the Commencement Date has theretofore occurred shall be
extended by one (1) day for each day in the period beginning on the one hundred
eightieth (180th) day after the First Commencement Date and ending on the date
that Landlord Substantially Completes the installation of the central HVAC
System; provided, however, that in no event shall such extension of the Rent
Commencement Date for a Deliverable Unit extend beyond the date that Tenant uses
such Deliverable Unit for the conduct of business.
(19) If (i) the Work Exhibit requires Landlord to
Substantially Complete a Work Component that constitutes Post-Delivery Work in a
particular Deliverable Unit within nine (9) months after the Commencement Date
for such Deliverable Unit, and (ii) Landlord fails to Substantially Complete
such Work Component on or prior to the date that would have otherwise
constituted the Rent Commencement Date hereunder for such Deliverable Unit, then
the Rent Commencement Date for such Deliverable Unit shall be adjourned until
the date that Landlord Substantially Completes such Work Component; provided,
however, that in no event shall such adjournment of the Rent Commencement Date
for such Deliverable Unit extend beyond the date that Tenant occupies such
Deliverable Unit for the conduct of business.
Section 22.2 (A) Landlord shall pay the cost of all of the Work, except
that, subject to Section 22.2(C) hereof, Tenant shall pay to Landlord the cost
of the Work Components as indicated in the Work Exhibit on the terms and subject
to the conditions set forth in this Section 22.2 (such Work Components for which
Tenant is required to pay the cost thereof are collectively referred to herein
as the "Tenant Work Components").
156
161
(B) Tenant shall pay to Landlord the cost of performing
Tenant Work Components on the terms set forth in this Section 22.2(B). Landlord
shall initiate the procedure described in this Section 22.2(B) by giving
Construction Notice thereof to Tenant in which Landlord describes with
reasonable particularity the Tenant Work Component for which Landlord wishes to
determine the amount to be paid by Tenant therefor (any such Construction Notice
from Landlord to Tenant being referred to herein as a "Pricing Procedure
Notice"). Landlord shall give the Pricing Procedure Notice to Tenant in respect
of a particular Tenant Work Component as soon as reasonably practicable after
the Building Plans have been developed to the extent necessary to price the
applicable Tenant Work Component. Landlord and Tenant shall each have the right
to give to the other, simultaneously, on the tenth (10th) Business Day after the
date that Landlord gives the Pricing Procedure Notice to Tenant (as to which ten
(10) Business Day period time shall be of the essence), a Construction Notice
that sets forth such party's determination of the "hard" construction cost of
performing the Tenant Work Component (any such Construction Notice given by a
party being referred to herein as a "Pricing Notice"; the amount set forth in a
party's Pricing Notice being referred to herein as such party's "Price").
Landlord and Tenant acknowledge that if the Tenant Work Component is defined on
the Work Exhibit as Work that upgrades a particular component of the Building
above the Building Standard, then the Price for such Tenant Work Component shall
be the cost of such upgrade above Building Standard (rather than the entire cost
of the particular component of the Building) (any such Tenant Work Component
that upgrades a particular component of the Building above the Building Standard
being referred to herein as a "Tenant Upgrade Work Component"; any Tenant Work
Component that is not a Tenant Upgrade Work Component being referred to herein
as a "Tenant Entire Cost Component"); provided, however, that if the Work
Exhibit describes the Tenant Upgrade Work Component with more specificity than
the upgrade of the applicable Work Component over Building Standard, then such
more specific description shall apply for purposes hereof. If a party fails to
give a Pricing Notice to the other party, then the cost to be paid by Tenant for
the applicable Tenant Work Component shall be based on the Price designated by
the other party. If both parties fail to give a Pricing Notice to the other
party, then the procedure described in this Section 22.2(B) for such Tenant Work
Component shall be deemed canceled (subject, however, to Landlord's having the
right to institute another such procedure therefor by giving a new Pricing
Procedure Notice to Tenant as contemplated by this Section 22.2(B)). If (x) each
party gives a Pricing Notice to the other party, and (y) the Price designated by
Landlord is lower than the Price designated by Tenant, then the Price designated
by Landlord shall be the Price on which is based the amount to be paid by Tenant
hereunder for the applicable Tenant Work Component. If (i) each party gives a
Pricing Notice to the other party, and (ii) the Price designated by Tenant is
lower than the Price designated by Landlord, then either party shall have the
right to institute an Expedited Arbitration Proceeding for the sole purpose of
designating an independent third-party individual with at least fifteen (15)
years of experience as a construction manager for construction projects in
Manhattan of a size and scope similar to the Building who has not been employed
by Landlord or Tenant or any of their respective Affiliates during the
immediately preceding period of three (3) years (the "Construction Expert") to
select either the Price designated by Landlord or the Price designated by Tenant
as the better estimate of the "hard" cost of performing the applicable Tenant
Work Component. Landlord and Tenant shall not provide to the Construction Expert
the work schedule that the parties generated for a prior design of the Building
(which set forth the parties' prior agreement as to the costs that Tenant
157
162
would have paid to Landlord for certain components of the work that Landlord was
planning to perform). The parties shall instruct the Construction Expert to take
into account whether Landlord could be reasonably expected to engage a
Contractor (other than the Contractor already engaged by Landlord to perform the
applicable Work Component) to perform the applicable Tenant Work Component. The
parties shall also instruct the Construction Expert to make the aforesaid
selection within ten (10) Business Days after the Construction Expert is so
designated. The party whose Price is not selected by the Construction Expert
shall pay the fee of the Construction Expert. Subject to the terms of this
Section 22.2(B), Tenant shall pay to Landlord, for each Tenant Work Component,
an amount equal to the sum of:
(i) the Price for such Tenant Work Component (as
determined in accordance with this Section 22.2(B))
(without adding thereto the amounts described in
clauses (ii), (iii), (iv), (v), (vi), and (vii)
below);
(ii) the product obtained by multiplying (x) a fraction
(expressed as a percentage), the numerator of which is
the cost of general conditions incurred by Landlord in
performing the Work, and the denominator of which is
the "hard" cost of construction incurred by Landlord
in performing the Work, by (y) such Price; provided,
however, that the fraction described in clause (x)
above shall not exceed eight percent (8%);
(iii) the product obtained by multiplying (x) seventy-five
one hundredths of one percent (0.75%), by (y) the sum
of (I) such Price, and (II) the amount described in
clause (ii) above (the parties intending that the
amount described in this clause (iii) shall constitute
the amount required to reimburse Landlord or the
construction manager for the construction manager's
insurance costs in respect of such Tenant Work
Component);
(iv) the actual construction bond fee incurred by Landlord
in connection with such Tenant Work Component;
provided, however, that the amount described in this
clause (iv) shall not exceed an amount equal to the
product obtained by multiplying (I) two and
five-tenths percent (2.5%), by (II) the sum of (A)
such Price, and (B) the amount described in clause
(ii) above;
(v) the actual construction management fee incurred by
Landlord in connection with such Tenant Work
Component; provided, however, that the amount
described in this clause (v) shall not exceed an
amount equal to the product obtained by multiplying
(I) two and five-tenths percent (2.5%), by (II) the
sum of (A) such Price, and (B) the amount described
in clause (ii) above;
158
163
(vi) the product obtained by multiplying (x) a fraction
(expressed as a percentage), the numerator of which is
the aggregate amount of fees of architects and
engineers incurred by Landlord in performing the Work,
and the denominator of which is the sum of (A) the
"hard" cost of construction incurred by Landlord in
performing the Work, and (B) the cost of general
conditions incurred by Landlord in performing the
Work, by (y) the sum of (A) such Price, and (B) the
amount described in clause (ii) above; provided,
however, that the fraction described in clause (x)
above shall not exceed (I) four percent (4%) in
respect of Tenant Work Components that are currently
contemplated by the Work Exhibit, and (II) seven
percent (7%) in respect of additional Tenant Work
Components that Landlord and Tenant hereafter agree to
include in the Tenant Work Components; and
(vii) the product obtained by multiplying (x) four percent
(4%), by (y) the sum of (I) such Price, and (II) the
amounts described in clauses (ii), (iii), (iv), (v)
and (vi) above (the parties intending that the amount
described in this clause (vii) shall constitute
Landlord's charge for supervision and administration
for such Tenant Work Component); provided, however,
that the amount described in clause (x) of this clause
(vii) shall be increased to five percent (5%) in
respect of any additional Tenant Work Component that
Landlord and Tenant hereafter agree to include in the
Tenant Work Components.
Landlord shall not double count any particular item in computing the aforesaid
amount due to Landlord for a Tenant Work Component. Landlord acknowledges that
for purposes of determining the aforesaid amount due from Tenant to Landlord for
a Tenant Upgrade Work Component, the amounts described in clauses (iv), (v) and
(vi) above shall be only the applicable costs associated with the upgrade of the
particular component of the Building above the Building Standard, rather than
the applicable costs associated with performing the entire component of the
Building (the amount due from Tenant to Landlord for a Tenant Upgrade Work
Component being referred to herein as the "Tenant Upgrade Cost"). Landlord and
Tenant acknowledge that the aggregate Tenant Upgrade Cost due from Tenant to
Landlord for the Tenant Upgrade Work Component consisting of the construction of
the Multi-Purpose Room (as described in the Work Exhibit) (including, without
limitation, the Tenant Upgrade Cost for the Tenant Upgrade Work Component
consisting of making structural changes to the Lexington Avenue Building to
accommodate the increased structural height for the Multi-Purpose Room in the
Third Avenue Building) shall not exceed Six Hundred Thousand Dollars ($600,000).
If the Work Exhibit contemplates that Landlord will make available to Tenant an
allowance for a particular Tenant Work Component, then the amount otherwise
payable by Tenant to Landlord in respect thereof as provided in this Section
22.2(B) shall be reduced by the amount of such allowance. Either party shall
have the right to submit a dispute between the parties regarding the aforesaid
calculation of such amount due from Tenant to Landlord for a Tenant Work
Component to an Expedited
159
164
Arbitration Proceeding. Tenant shall pay such amount for each Tenant Work
Component in equal monthly installments, on the first (1st) day of each month,
commencing on the first (1st) day of the calendar month succeeding the calendar
month during which Landlord begins the performance of such Tenant Work Component
and ending on the date that Landlord reasonably estimates such Tenant Work
Component will be Substantially Complete (it being understood that Landlord
shall notify Tenant of such date prior to the commencement of the performance of
the construction of such Tenant Work Component). If, at any time and from time
to time, the performance of any Tenant Work Component does not reasonably
correspond to the monthly payments being made by Tenant in respect thereof, then
the parties shall adjust such payment schedule to correspond to Landlord's
performance of such Tenant Work Component. If the parties are unable to agree as
to whether such payment schedule should be adjusted or the extent to which such
payment schedule should be adjusted, in either case pursuant to the terms of
this Section 22.2(B), then either party may submit the dispute to an Expedited
Arbitration Proceeding. If (x) Tenant fails to make a payment to Landlord on
account of a Tenant Work Component as contemplated by this Section 22.2(B), and
(y) such failure continues for more than ten (10) Business Days after Landlord
gives Tenant notice thereof, then Landlord shall have all rights and remedies at
law, in equity or as otherwise set forth herein. Landlord shall certify to
Tenant that Landlord has paid the applicable Contractor for the applicable
Tenant Work Component, not later than the thirtieth (30th) day after Tenant's
request therefor; provided, however, that (i) Tenant shall not make any such
request until the thirtieth (30th) day after the date that Landlord
Substantially Completes the applicable Tenant Work Component, and (ii) Landlord
shall not be required to give such certification to Tenant during the pendency
of a bona fide dispute between Landlord and such Contractor regarding the Work
(or Work Components thereof).
(C) Tenant shall be entitled to credit against the first (1st)
amounts otherwise becoming due and payable by Tenant to Landlord under Section
22.2(B) hereof an aggregate amount equal to Three Million Two Hundred Sixty-Five
Thousand Dollars ($3,265,000).
Section 22.3 (A) Subject to the terms of this Section 22.3, Landlord,
during the period from and after the date hereof, shall provide to Tenant from
time to time (as a Construction Notice) copies of the design documents,
construction plans and specifications, and shop drawings for the Building
(including, without limitation, Landlord's "for bid" and "for construction"
plans) in each case to the extent relevant and applicable in any material
respect to the Tenant Areas (such construction documents, plans and
specifications, and drawings being collectively referred to herein as the
"Building Plans"). Landlord, in the Building Plans, shall indicate any locations
in the Permitted Pit Area where Landlord intends to install initially elevator
pits or escalator pits (to the extent that Landlord has theretofore identified
such locations). Tenant (and its project manager, construction manager and/or
architect) shall have the right to review the Building Plans from time to time
during the construction of the Building at Landlord's offices, during Landlord's
regular business hours, by giving reasonable advance Construction Notice thereof
to Landlord. Landlord shall not be required to give to Tenant the Building Plans
that constitute shop drawings unless and until Tenant gives Construction Notice
160
165
thereof to Landlord which sets forth with reasonable particularity the shop
drawings that Tenant wishes to review, except that Landlord shall provide to
Tenant the shop drawings for the Tenant Design Components. Landlord shall give
to Tenant Building Plans that constitute revisions to shop drawings with respect
to which Tenant had the right to review the initial draft thereof under this
Section 22.3. Landlord shall make available to Tenant from time to time the shop
drawings schedule (so that Tenant can compile the list of shop drawings that
Tenant wishes to review, as aforesaid). Landlord shall cooperate with Tenant in
good faith from time to time to provide Tenant with such other information
relating to the construction of the Building that is relevant and applicable to
Tenant's preparation of the plans and specifications for the Initial
Alterations. Tenant (with its project manager, construction manager and
architect) shall have the right to review the Building Plans as contemplated by
this Section 22.3(A) during Tenant's weekly site visits (it being understood
that Tenant's aforesaid right to review the Building Plans during Tenant's
weekly site visits shall be in addition to Tenant's other rights to review the
Building Plans as contemplated by this Section 22.3). Tenant shall have the
right to approve the shop drawings for the Tenant Design Components, which
approval Tenant shall not unreasonably withhold, condition or delay (it being
understood that either party shall have the right to submit a dispute between
the parties regarding such shop drawings to an Expedited Arbitration
Proceeding). Landlord shall engage as Landlord's design architect for the
preparation of the Building Plans a design architect that has substantial
experience in designing office buildings that conform with the Building Standard
(it being agreed that Xxxxx Xxxxx & Associates qualifies as Landlord's design
architect for purposes hereof). Landlord and Tenant, during the period that
Landlord is constructing the Building, shall arrange regularly-scheduled weekly
design and construction meetings, at mutually convenient times and locations,
for their respective consultants and representatives to discuss matters relating
to the construction of the Building, to the extent that such meetings are
reasonably necessary (it being understood that either party shall have the right
to submit to an Expedited Arbitration Proceeding a dispute between the parties
relating to whether such weekly meetings are reasonably necessary). Landlord
shall provide Tenant with a draft of the minutes of such weekly design and
construction meetings within three (3) Business Days after each such meeting,
and Tenant shall provide Landlord with Tenant's comments to such minutes prior
to the next such weekly design and construction meeting. Landlord shall consult
with Tenant from time to time during Tenant's development of the design for the
Initial Alterations in a good faith effort to coordinate the Work with the
Initial Alterations (it being understood that the topics covered by such
consultations shall include, without limitation, (i) the coordination of the
drainage piping for the installation of Building Systems with the ductwork that
Tenant plans to install as part of the Initial Alterations, and (ii) the
coordination of the air supply and smoke exhaust openings in the Bridge
Building).
(B) Subject to the terms of this Section 22.3(B), Landlord
shall have the right to change the Work to the extent reasonably required by
applicable Requirements (any changes to the Work that are required by applicable
Requirements being collectively referred to herein as "Permitted Work Changes").
Landlord shall not make any Permitted Work Changes without first providing to
Tenant (as a Construction Notice) (x) a reasonable description thereof, and (y)
the applicable Building Plans relating thereto, at least fifteen (15) Business
Days before Landlord commences construction of the Permitted Work Change;
provided, however, that (i) Landlord shall have the right to give Tenant less
than fifteen (15) Business Days of advance
161
166
notice of a Permitted Work Change to the extent required by reason of an
Emergency, (ii) Landlord shall have the right to give Tenant no less than three
(3) Business Days of advance notice of a Permitted Work Change that is not
material, and (iii) Landlord shall have the right to perform de minimis
Permitted Work Changes without giving Tenant advance notice thereof, provided
that Landlord gives Tenant notice of such de minimis Permitted Work Changes with
reasonable promptness after Landlord's performance thereof. If Landlord and
Tenant dispute whether any change to the Work proposed by Landlord constitutes a
Permitted Work Change, then either party shall have the right to submit such
dispute to an Expedited Arbitration Proceeding. If (a) Landlord makes a
Permitted Work Change as contemplated by this Section 22.3(B), (b) the Work,
after taking such Permitted Work Change into account, would not otherwise comply
with the requirements set forth in this Article 22 and the Work Exhibit, and (c)
such Permitted Work Change is of such significance that Tenant cannot be
reasonably expected to adapt its design plans therefor so that Tenant could
reasonably occupy the Premises for the conduct of Tenant's business as
contemplated hereby, then Tenant shall have the right to terminate this Lease by
giving notice thereof on or prior to the tenth (10th) Business Day after
Landlord gives Tenant the aforesaid Construction Notice describing such
Permitted Work Change; provided, however, that if Tenant so elects to terminate
this Lease, then Landlord shall have the right to declare Tenant's election
ineffective by giving notice thereof to Tenant on or prior to the tenth (10th)
day after the date that Tenant gives such notice to Landlord, in which case
Landlord, at Landlord's sole cost and expense, shall make appropriate
alternative arrangements (including, without limitation, demising additional
space in the Building to Tenant that is contiguous to the Initial Premises) to
the extent necessary to offset the effect of the Permitted Work Change (it being
understood that (X) Landlord shall only have such right to declare Tenant's
aforesaid election ineffective if Landlord's alternative arrangements alleviate
in all material respects the adverse effect of such Permitted Work Change, (Y)
either party shall have the right to submit to an Expedited Arbitration
Proceeding any dispute between the parties regarding Tenant's aforesaid right to
terminate this Lease or the aforesaid appropriate alternative arrangements made
by Landlord, and (Z) Landlord shall only have such right to declare Tenant's
aforesaid election ineffective if the Permitted Work Change derives from a
Requirement that is first enacted after the date hereof, or that is first
interpreted by a Governmental Authority after the date hereof in a manner that
differs materially from the interpretation thereof prior to the date hereof). If
Tenant so terminates this Lease (and Landlord does not so declare Tenant's
termination ineffective, as aforesaid), then neither Landlord nor Tenant shall
have any continuing rights or obligations hereunder, except to the extent
otherwise expressly set forth herein.
(C) If (x) Landlord provides Tenant with Building Plans as
contemplated by this Section 22.3, and (y) Tenant fails to object thereto in a
Construction Notice within the Applicable Review Period, then Tenant shall be
deemed to have accepted such Building Plans (including, without limitation, any
changes to the Work as reflected thereon to the extent that Landlord has (i)
noted any such changes that are material on the applicable Building Plans, and
(ii) highlighted such changes in a cover memorandum that Landlord submits to
Tenant with such Building Plans). As used herein, the term "Applicable Review
Period" shall mean fifteen (15) Business Days, except that Landlord shall have
the right to shorten such period to the extent reasonably necessary (but in no
event to a period of less than ten (10) Business Days) for Tenant's review of
Building Plans that constitute shop drawings by giving Construction Notice
162
167
thereof to Tenant simultaneously with Landlord's submission of such shop
drawings to Tenant. Tenant shall not have the right to object to Building Plans
unless the Work contemplated thereby (i) is not in general conformity with the
Schematic Drawings, or (ii) is not in conformity with the Work Exhibit.
(D) Landlord shall give to Tenant, on or prior to the first
(1st) anniversary of the date hereof, a Construction Notice setting forth
Landlord's estimate in good faith of the construction schedule for the Work. At
monthly intervals, or sooner if a material change occurs, Landlord shall submit
to Tenant updated or revised schedules for the Work. If any such updated or
revised schedule indicates that there exists a material likelihood that
Landlord's Substantial Completion of the Work will be delayed in a material
respect, then Tenant may suggest modifications to such schedules. Landlord shall
consider such suggestions in good faith. Tenant, together with its project
manager, construction manager and architect, shall have the right to review such
schedules and to submit to Landlord proposed modifications which may expedite
the performance of the Work and facilitate a greater degree of coordination
between Landlord and Tenant with respect thereto. Landlord shall consider such
proposed modifications in good faith. Tenant acknowledges that Landlord shall
not be bound by the construction schedules that Landlord provides to Tenant
pursuant to this Section 22.3(D), it being understood that Landlord is providing
such schedules to Tenant merely for informational purposes in connection with
Tenant's planning for the Initial Alterations.
(E) Landlord shall give to Tenant a Construction Notice
setting forth the date that Landlord then reasonably expects will constitute the
Commencement Date for a Deliverable Unit at least six (6) months before such
date (such date designated by Landlord at least six (6) months in advance for a
Deliverable Unit being referred to herein as the "Target Delivery Date"). If (x)
the Commencement Date for such Deliverable Unit occurs before the Target
Delivery Date, and (y) Tenant's performance of the Initial Alterations in such
Deliverable Unit is delayed by reason of Landlord's failure to have given Tenant
at least six (6) months of advance notice thereof, then the Rent Commencement
Date for such Deliverable Unit shall be extended for the number of days that
Tenant's performance of the Initial Alterations is so delayed; provided,
however, that in no event shall such extension of such Rent Commencement Date
exceed the number of days in the period beginning on such Commencement Date and
ending on the day immediately preceding the date that is six (6) months after
Landlord gives such Construction Notice to Tenant. If the Commencement Date for
such Deliverable Unit occurs later than the ninetieth (90th) day after the
Target Delivery Date, then Landlord shall pay to Tenant an amount equal to the
excess of (i) the costs that Tenant incurs in performing the Initial Alterations
in such Deliverable Unit, over (ii) the costs that Tenant would have reasonably
expected to incur in performing such Initial Alterations if such Commencement
Date for such Deliverable Unit occurred on the ninetieth (90th) day after the
Target Delivery Date, within thirty (30) days after Tenant's request therefor
and Tenant's submission to Landlord of reasonable documentation supporting
Tenant's calculation thereof (it being understood that Tenant shall not have the
right to make any such request unless and until Tenant actually incurs such
excess). Either party shall have the right to submit to an Expedited Arbitration
Proceeding a dispute between the parties regarding the extension of the Rent
Commencement Date for a particular
163
168
Deliverable Unit, or the amount of the aforesaid payment due from Landlord to
Tenant, in either case as contemplated by this Section 22.3(E).
(F) (1) If (x) the Commencement Date for a Deliverable Unit
that is located in the First Delivery Component occurs during the calendar month
of January, 2004, and (y) Tenant incurs costs in performing the Initial
Alterations in such Deliverable Unit that exceed the costs that Tenant would
have otherwise incurred in performing such Initial Alterations if the
Commencement Date for such Deliverable Unit occurred prior to January 1, 2004,
then Landlord shall pay to Tenant an amount equal to the product obtained by
multiplying (i) such excess, by (ii) twenty-five percent (25%), within thirty
(30) days after Tenant's request therefor (it being understood that Tenant shall
not have the right to make any such request unless and until Tenant actually
incurs such excess). If (x) the Commencement Date for a Deliverable Unit that is
not located in the First Delivery Component occurs during the calendar month of
June, 2004, and (y) Tenant incurs costs in performing the Initial Alterations in
such Deliverable Unit that exceed the costs that Tenant would have otherwise
incurred in performing such Initial Alterations if the Commencement Date for
such Deliverable Unit occurred prior to June 1, 2004, then Landlord shall pay to
Tenant an amount equal to the product obtained by multiplying (i) such excess,
by (ii) twenty-five percent (25%), within thirty (30) days after Tenant's
request therefor (it being understood that Tenant shall not have the right to
make any such request unless and until Tenant actually incurs such excess).
Tenant shall include in any such request reasonable supporting evidence of the
amount of such excess.
(2) If (x) the Commencement Date for a
Deliverable Unit that is located in the First Delivery Component occurs during
the calendar month of February, 2004, and (y) Tenant incurs costs in performing
the Initial Alterations in such Deliverable Unit that exceed the costs that
Tenant would have otherwise incurred in performing such Initial Alterations if
the Commencement Date for such Deliverable Unit occurred prior to January 1,
2004, then Landlord shall pay to Tenant an amount equal to the product obtained
by multiplying (i) such excess, by (ii) fifty percent (50%), within thirty (30)
days after Tenant's request therefor (it being understood that Tenant shall not
have the right to make any such request unless and until Tenant actually incurs
such excess). If (x) the Commencement Date for a Deliverable Unit that is not
located in the First Delivery Component occurs during the calendar month of
July, 2004, and (y) Tenant incurs costs in performing the Initial Alterations in
such Deliverable Unit that exceed the costs that Tenant would have otherwise
incurred in performing such Initial Alterations if the Commencement Date for
such Deliverable Unit occurred prior to June 1, 2004, then Landlord shall pay to
Tenant an amount equal to the product obtained by multiplying (i) such excess,
by (ii) fifty percent (50%), within thirty (30) days after Tenant's request
therefor (it being understood that Tenant shall not have the right to make any
such request unless and until Tenant actually incurs such excess). Tenant shall
include in any such request reasonable supporting evidence of the amount of such
excess.
(3) If (x) the Commencement Date for a
Deliverable Unit that is located in the First Delivery Component occurs during
the calendar month of March, 2004, and (y) Tenant incurs costs in performing the
Initial Alterations in such Deliverable Unit that exceed the costs that Tenant
would have otherwise incurred in performing such Initial Alterations if the
164
169
Commencement Date for such Deliverable Unit occurred prior to January 1, 2004,
then Landlord shall pay to Tenant an amount equal to the product obtained by
multiplying (i) such excess, by (ii) seventy-five percent (75%), within thirty
(30) days after Tenant's request therefor (it being understood that Tenant shall
not have the right to make any such request unless and until Tenant actually
incurs such excess). If (x) the Commencement Date for a Deliverable Unit that is
not located in the First Delivery Component occurs during the calendar month of
August, 2004, and (y) Tenant incurs costs in performing the Initial Alterations
in such Deliverable Unit that exceed the costs that Tenant would have otherwise
incurred in performing such Initial Alterations if the Commencement Date for
such Deliverable Unit occurred prior to June 1, 2004, then Landlord shall pay to
Tenant an amount equal to the product obtained by multiplying (i) such excess,
by (ii) seventy-five percent (75%), within thirty (30) days after Tenant's
request therefor (it being understood that Tenant shall not have the right to
make any such request unless and until Tenant actually incurs such excess).
Tenant shall include in any such request reasonable supporting evidence of the
amount of such excess.
(4) If (x) the Commencement Date for a
Deliverable Unit that is located in the First Delivery Component occurs at any
time after April 1, 2004, and (y) Tenant incurs costs in performing the Initial
Alterations in such Deliverable Unit that exceed the costs that Tenant would
have otherwise incurred in performing such Initial Alterations if the
Commencement Date for such Deliverable Unit occurred prior to January 1, 2004,
then Landlord shall pay to Tenant an amount equal to such excess within thirty
(30) days after Tenant's request therefor (it being understood that Tenant shall
not have the right to make any such request unless and until Tenant actually
incurs such excess). If (x) the Commencement Date for a Deliverable Unit that is
not located in the First Delivery Component occurs during the calendar month of
September, 2004, and (y) Tenant incurs costs in performing the Initial
Alterations in such Deliverable Unit that exceed the costs that Tenant would
have otherwise incurred in performing such Initial Alterations if the
Commencement Date for such Deliverable Unit occurred prior to June 1, 2004, then
Landlord shall pay to Tenant an amount equal to such excess, within thirty (30)
days after Tenant's request therefor (it being understood that Tenant shall not
have the right to make any such request unless and until Tenant actually incurs
such excess). Tenant shall include in any such request reasonable supporting
evidence of the amount of such excess.
(5) Either party shall have the right to submit
to an Expedited Arbitration Proceeding a dispute between the parties regarding
any amount due from Landlord to Tenant under this Section 22.3(F).
(G) Subject to the terms of this Section 22.3(G), Landlord
shall permit Tenant to have access to each Deliverable Unit from time to time
prior to the Commencement Date therefor solely for the purpose of taking
measurements and otherwise preparing plans and specifications for the Initial
Alterations. Tenant shall not have the right to access any Deliverable Unit as
contemplated by this Section 22.3(G) unless Tenant gives Landlord a notice
(which may be given orally to Xxxx Xxxxxxx or Xxx Xxxxx, or such other Person
that Landlord designates from time to time) requesting such access at least one
(1) Business Day before the date that Tenant intends to so access such
Deliverable Unit. Tenant shall schedule Tenant's access to a Deliverable Unit as
contemplated by this Section 22.3(G) at
165
170
reasonable times and otherwise in a manner that does not interfere with
Landlord's performance of the Work.
(H) Subject to the terms of this Section 22.3(H), Tenant
shall have the right to delete a Tenant Work Component from the Work required to
be performed by Landlord by giving Construction Notice thereof to Landlord (any
such Construction Notice given by Tenant to Landlord being referred to herein as
a "Tenant Work Deletion Notice"). Any Tenant Work Deletion Notice given by
Tenant to Landlord, once given, shall be irrevocable. If Tenant gives a Tenant
Work Deletion Notice to Landlord in respect of a particular Tenant Work
Component as contemplated by this Section 22.3(H), then Tenant shall pay to
Landlord an amount equal to the actual out-of-pocket costs that Landlord has
theretofore incurred in connection with such Tenant Work Component, within
thirty (30) days after Landlord's request therefor and Landlord's submission to
Tenant of reasonable supporting documentation therefor; provided, however, that
(I) if Tenant gives a Tenant Work Deletion Notice to Landlord after the date
that Landlord has performed fifty percent (50%) of the construction of the
applicable Tenant Work Component, then such amount payable by Tenant to Landlord
shall be the excess of (i) the amount that Tenant would have been required to
pay to Landlord under Section 22.2 hereof for the applicable Tenant Work
Component (assuming that Tenant had not given such Tenant Work Deletion Notice),
over (ii) the actual out-of-pocket costs that Landlord is not required to expend
by reason of Landlord's not being required to complete such Tenant Work
Component, and (II) if Tenant gives a Tenant Work Deletion Notice to Landlord
after the date that Landlord has commenced the construction of the applicable
Tenant Work Component (but before Landlord has performed fifty percent (50%) of
the construction of the applicable Tenant Work Component), then Tenant shall
also pay to Landlord an equitable share of Landlord's charge for supervision and
administration for the applicable Tenant Work Component (as contemplated by
Section 22.2(B)(vii) hereof). Either party shall have the right to submit a
dispute between the parties under this Section 22.3(H) to an Expedited
Arbitration Proceeding. A Tenant Work Deletion Notice shall not be effective for
purposes hereof if the Work has theretofore progressed to the point that
Landlord's removal of the applicable Tenant Work Component (to the extent
theretofore performed) would have a material and adverse effect on Landlord's
performance of the remainder of the Work. If (a) Tenant gives a Tenant Work
Deletion Notice to Landlord as contemplated by this Section 22.3(H), and (b)
applicable Requirements or good construction practice requires Landlord to
remove the applicable Tenant Work Component (to the extent theretofore
performed), then Tenant shall pay to Landlord an amount equal to the reasonable
out-of-pocket costs incurred by Landlord to perform such removal, within thirty
(30) days after Landlord's demand therefor (it being understood that Landlord
shall include with any such demand reasonable supporting documentation for the
costs described therein).
(I) Landlord and Tenant acknowledge that Tenant may require
Landlord to perform additional Tenant Work Components as Tenant develops its
design for the Initial Alterations. If (i) Tenant determines that Tenant
requires Landlord to perform an additional Tenant Work Component, and (ii)
Tenant gives Landlord a Construction Notice that describes in reasonable detail
the nature and scope of such Tenant Work Component, then, subject to the terms
of this Section 22.3(I), Landlord, with due diligence, shall cooperate and
consult with Tenant in good faith to determine whether and the extent to which
Landlord can be
166
171
reasonably expected to expand the Work to include such additional Tenant Work
Component. Landlord shall not be required to agree to perform any such
additional Tenant Work Component if Landlord has a reasonable expectation that
such additional Tenant Work Component will delay to a material extent Landlord's
performance of the Work (other than such additional Tenant Work Component),
unless Tenant agrees that (i) the dates set forth in this Lease that apply to
Landlord's performance of the Work shall be adjourned to the extent that such
additional Tenant Work Component delays Landlord's performance thereof, and (ii)
Landlord shall have the right to cause the Commencement Date to occur for a
particular Deliverable Unit without Landlord's having performed such additional
Tenant Work Component or Work Components of Pre-Delivery Work that are delayed
by reason of Landlord's performance of such additional Tenant Work Component.
Landlord shall not be required to perform any such additional Tenant Work
Component if Landlord has a reasonable expectation that such additional Tenant
Work Component would delay materially Landlord's construction of the Building
(other than the portion thereof that constitutes the Work). Landlord and Tenant,
in so cooperating and consulting regarding any such additional Tenant Work
Component, shall also determine whether such additional Tenant Work Component
will constitute a Tenant Design Component for purposes hereof. If (x) Landlord
performs any such additional Tenant Work Component, and (y) such additional
Tenant Work Component reduces the Usable Area of the applicable Deliverable
Unit, then (I) such reduction in the Usable Area shall not be taken into account
for purposes of measuring the Rentable Area of such Deliverable Unit for
purposes hereof, and (II) Landlord shall not use such reduction in the Usable
Area of the applicable Deliverable Unit to increase the area of the Building
outside of the Premises to the extent otherwise permitted under applicable
Requirements. Landlord shall perform any such additional Tenant Work Component
that Landlord agrees to perform as contemplated by this Section 22.3(I) with due
diligence and in accordance with good construction practice. Landlord
acknowledges that an additional Tenant Work Component to be performed by
Landlord as contemplated by this Section 22.3(I) may include, without
limitation, the installation of a continuous opening in the sixth (6th) floor
slab that extends around the Lexington Place Courtyard to create an
architectural slot between the curtain wall and the edge of the floor slab;
provided, however, that such additional Tenant Work Component remains subject to
Landlord's prior approval, which approval Landlord shall not unreasonably
withhold, condition or delay (it being understood that Landlord, in considering
the design for such Tenant Work Component, shall have the right to take into
account the aesthetic impact thereof on the Lexington Place Courtyard. Landlord
also acknowledges that an additional Tenant Work Component to be performed by
Landlord as contemplated by this Section 22.3(I) (with respect to which Landlord
shall cooperate in good faith with Tenant as provided in this Section 22.3(I))
may include, without limitation, changes to the Work to accommodate an occupancy
density of more than one (1) person for each eighty (80) square feet of Usable
Area, provided that (i) any such additional Tenant Work Component shall be
subject to Landlord's prior approval, which approval Landlord shall not
unreasonably withhold, condition or delay, (ii) Landlord shall not be required
to expand the Incremental Areas to accommodate any such Tenant Work Component
beyond one (1) internal staircase that extends, at most, from the ground floor
of the Lexington Avenue Building to the fifth (5th) floor of the Lexington
Avenue Building, (iii) any such internal staircase must be located within one
(1) column bay, (iv) Tenant pays the cost for the installation of any such
staircase as a Tenant Work Component in accordance with the terms hereof, (v)
Tenant compensates Landlord for the space used by such staircase on the
167
172
ground floor and the second (2nd) floor of the Building calculated at the
initial rates of Three Hundred Dollars ($300) per square foot of Usable Area per
annum on the ground floor, and One Hundred Twenty-Five Dollars ($125) per square
foot of Usable Area per annum on the second (2nd) floor, (vi) Landlord shall not
be required to approve any such additional Tenant Work Component that
accommodates such increased occupancy on floors other than the third (3rd),
fourth (4th) and fifth (5th) floors of the Building if such additional Tenant
Work Component requires any material changes to the construction of the Building
other than the Premises (including, without limitation, any installation or
expansion of internal staircases), and (vii) Tenant gives Landlord a
Construction Notice of Tenant's request that Landlord perform any such
additional Tenant Work Component within thirty (30) days after the date hereof.
Landlord acknowledges that if Tenant requests an additional Tenant Work
Component as contemplated by this Section 22.3(I) to increase the occupancy
density of the Premises, then Tenant's use of the Premises at such occupancy
density shall not violate the provisions of Article 2 hereof. Either party shall
have the right to submit a dispute arising under this Section 22.3(I) to an
Expedited Arbitration Proceeding.
(J) Landlord shall not have the right to use any Incremental
Area (which is included in Usable Area for purposes hereof) to increase the
floor area of the remaining portions of the Building (other than the Premises)
that is otherwise permitted under applicable Requirements.
(K) Landlord shall give to Tenant a Construction Notice
setting forth the date that Landlord then expects in good faith that the
superstructure of the Building will reach the eleventh (11th) floor of the
Lexington Avenue Building, at least one (1) year prior to such date. Landlord
shall also give to Tenant a Construction Notice setting forth the date that
Landlord then expects in good faith that the superstructure of the Building will
reach the eleventh (11th) floor of the Lexington Avenue Building, at least six
(6) months prior to such date. Landlord shall make the Tenant Mechanical Areas
on the eleventh (11th) and twelfth (12th) floors of the Lexington Avenue
Building available for Tenant's installation of Tenant's equipment therein as
described in the Work Exhibit before Landlord erects the superstructure of the
Building above such Tenant Mechanical Areas (with the understanding, however,
that Landlord shall not be required to delay Landlord's construction of the
superstructure of the Building if Tenant is not then prepared to install such
equipment in such Tenant Mechanical Areas).
(L) Subject to the terms of this Section 22.3(L), Landlord
shall cooperate reasonably with Tenant in connection with Tenant's making
arrangements to have the tower crane contractor operate for Tenant's use the
tower cranes that Landlord erects for the construction of the Building for
purposes of Tenant's raising materials and equipment to the Premises or other
Tenant Areas in connection with the Initial Alterations. Tenant's use of such
tower cranes shall be at Tenant's sole cost and expense. Tenant shall have the
right to use such tower cranes only to the extent (if any) that Tenant's use
does not impair or delay in any material respect Landlord's construction of the
Building. Tenant acknowledges that the only times during which Tenant may have
the right to use such tower cranes as contemplated by this Section 22.3(L) may
occur during hours that are not ordinary construction business hours. Landlord
168
173
makes no representation that such tower cranes will be adequate for Tenant's
purposes or available for Tenant's use. Tenant shall seek to use such tower
cranes as contemplated by this Section 22.3(L) only for purposes of raising
materials and equipment that Tenant could not reasonably be expected to use the
Construction Hoists, the Shared Hoist or the Premises Elevators (to the extent
that Tenant otherwise has the right to use the Construction Hoists, the Shared
Hoist and the Premises Elevators in accordance with the terms hereof). If
Tenant's use of such tower cranes as contemplated by this Section 22.3(L) delays
Landlord's performance of the Work in any material respect, then such delay
shall constitute an Unavoidable Delay for purposes hereof. Tenant shall pay to
Landlord the amount of any losses, damages, costs or expenses that Landlord
sustains by virtue of Tenant's use of such tower cranes as contemplated by this
Section 22.3(L) (including, without limitation, any such losses, damages, costs
or expenses that derive from any such tower crane being out of service because
of Tenant's use thereof) (it being understood that Tenant shall make any such
payment to Landlord not later than the thirtieth (30th) day after the date that
Landlord makes a request to Tenant therefor, together with reasonable supporting
documentation for such losses, damages, costs or expenses). Landlord shall also
cooperate reasonably with Tenant in connection with Tenant's making arrangements
to use a street crane (for which Tenant contracts separately) for purposes of
raising any such materials or equipment.
Section 22.4 (A) Subject to Article 14 hereof, Landlord shall deliver
exclusive possession of each Deliverable Unit to Tenant promptly after the date
that Landlord Substantially Completes the Pre-Delivery Work therein. Promptly
after the Commencement Date for each such Deliverable Unit, Landlord shall
submit to Tenant Landlord's determination of the Usable Area and the Rentable
Area for the applicable Deliverable Unit, along with appropriate backup
indicating the method of measurement (including, without limitation, CADD
Drawings) which determination shall be conclusive and binding on Tenant unless
Tenant objects thereto by giving notice thereof to Landlord on or prior to the
thirtieth (30th) day after the date that Landlord gives such determination to
Tenant. If Tenant so objects to Landlord's determination of the Usable Area and
Rentable Area for such Deliverable Unit, and the parties are unable to resolve
the dispute within thirty (30) days after Tenant gives Landlord notice of such
objection, then either Landlord or Tenant shall have the right to submit such
dispute to an Expedited Arbitration Proceeding. Landlord and Tenant acknowledge
that for purposes of determining the Incremental Area that is includible in
Usable Area, the parties shall take into account that the parties agreed for a
prior design of the Building that the Incremental Areas included the areas shown
on the drawings described in Exhibit 22.4 and made a part hereof.
(B) (1) Landlord shall give Tenant a Construction Notice,
not later than June 30, 2001, that sets forth Landlord's statement of the Usable
Area for each Deliverable Unit in the Initial Premises (such statement that
Landlord gives to Tenant being referred to herein as the "Usable Area
Statement"). The Usable Area for each Deliverable Unit that Landlord states in
the Usable Area Statement shall satisfy the requirements set forth in the Work
Exhibit.
(2) The Usable Area of each Deliverable Unit shall not be less than
the Usable Area set forth in the Usable Area Statement, except that (i) Landlord
shall have the right
169
174
to reduce the Usable Area of a Deliverable Unit located in the Tower Premises by
no more than One Hundred Twenty-Five (125) square feet by giving Construction
Notice thereof to Tenant on or prior to December 31, 2001, (ii) Landlord shall
have the right to reduce the Usable Area of any particular floor on which is
located the Base Premises by no more than Two Hundred Fifty (250) square feet by
giving Construction Notice thereof to Tenant on or prior to December 31, 2001,
(iii) Landlord shall have the right to reduce the Usable Area of the Lower Level
Space located on Lower Level 2 of the Building by no more than One Thousand
(1,000) square feet by giving Construction Notice thereof to Tenant on or prior
to December 31, 2001, (iv) Landlord shall have the right reduce the Usable Area
of a Deliverable Unit to a de minimis extent (whether before or after December
31, 2001), and (v) Landlord shall not have the right to make any such reductions
in Usable Area as contemplated by clauses (i) through (iv) above except to the
extent reasonably relating to Landlord's requirements in constructing the
Building (including any such requirements of Landlord that derive from changes
to the design for the Building that otherwise comply with the provisions of this
Lease) (it being understood that (I) Landlord shall not have the right to reduce
the Usable Area of any particular Deliverable Unit as contemplated by this
clause (2) to accommodate Landlord's temporary facilities in constructing the
Building, and (II) in no event shall this clause (2) permit Landlord to reduce
the Usable Area of a Deliverable Unit to an extent that would not comply with
the requirements of the Work Exhibit).
Section 22.5 (A) Landlord, prior to the date that Landlord commences the
construction of the superstructure of the Building, shall develop a logistics
plan for the construction of the Building that conforms with good construction
practice (such logistics plan being referred to herein as the "Logistics Plan").
Landlord shall reflect on the Logistics Plan, inter alia, the Construction
Hoists. The Logistics Plan shall be subject to Tenant's approval, which approval
Tenant shall not unreasonably withhold, condition or delay (it being understood,
however, that Tenant shall not have the right to (x) approve elements of the
Logistics Plan which do not materially affect the Initial Premises or the cost
of or scheduling for Tenant's performance of the Initial Alterations therein,
(y) disapprove elements of the Logistics Plan that are required by Requirements,
or (z) disapprove the Logistics Plan to contradict a right expressly granted to
Landlord under this Article 22, including without limitation, Landlord's right
to use the Tower Hoist Area as contemplated by Section 22.15 hereof). Landlord,
in preparing the Logistics Plan, shall take into account Tenant's plans to
install escalators and studios in the portions of the Premises that are adjacent
to the Lexington Place Courtyard, and, accordingly, Landlord shall seek in good
faith and within the bounds of good construction practice and applicable
Requirements to erect a Construction Hoist in the Lexington Place Courtyard that
minimizes to the extent reasonably practicable interference with Tenant
installation of such escalators and studios. Either party shall have the right
to submit a dispute regarding the Logistics Plan to an Expedited Arbitration
Proceeding. Subject to the terms of this Section 22.5(A), Landlord shall not
amend the Logistics Plan in a manner that materially and adversely affects or
materially and adversely delays Tenant's ability to perform the Initial
Alterations or Tenant's use and occupancy of the Premises for the conduct of
business. Landlord shall give to Tenant prompt Construction Notice of any
amendments to the Logistics Plan (and shall consult with Tenant from time to
time in respect of any proposed amendments to the Logistics Plan). Landlord
shall have the right to make changes to the Logistics Plan to the extent
required by Requirements (with the
170
175
understanding that Landlord shall consult with Tenant in respect thereof to the
extent that any such changes materially affect Tenant).
(B) Subject to the terms of this Section 22.5(B), Tenant
shall have the right to request in a Construction Notice that Landlord refrain
from demolishing, on or prior to the Commencement Date for a Deliverable Unit,
the temporary toilet facilities that Landlord installs therein. Landlord shall
not demolish such temporary toilet facilities unless Landlord gives Tenant at
least thirty (30) days of advance Construction Notice thereof. Tenant shall not
have the right to make any such request from and after the date that Landlord
demolishes any such temporary toilet facilities. If Tenant makes any such
request, then (i) Landlord shall not demolish such temporary toilet facilities
prior to the applicable Commencement Date, and (ii) Landlord shall have no
obligation to thereafter demolish, repair or maintain such temporary toilet
facilities. Tenant shall not have the right to require Landlord to refrain from
demolishing such temporary toilet facilities as provided in this Section 22.5(B)
if Landlord makes a reasonable determination that the demolition of such
temporary toilet facilities is required to obtain the Zero Occupancy Certificate
of Occupancy for the applicable Deliverable Unit.
Section 22.6 (A) If Landlord fails to obtain a permit from the applicable
Governmental Authority authorizing Landlord to construct the Building on or
prior to First Milestone Date, then Tenant shall have the right to terminate
this Lease by giving notice thereof to Landlord on or prior to the tenth (10th)
day after the First Milestone Date, as to which date time shall be of the
essence. If Tenant so terminates the Lease, then Landlord shall pay to Tenant an
amount equal to the product obtained by multiplying (i) fifty percent (50%), by
(ii) the actual out-of-pocket costs theretofore incurred by Tenant in connection
with the execution and delivery hereof (including, without limitation, Tenant's
preparation of plans and specifications for the Initial Alterations); provided,
however, that in no event shall such amount due from Landlord to Tenant exceed
Eight Million Dollars ($8,000,000). If Tenant so terminates this Lease, then
Landlord shall pay such amount to Tenant within thirty (30) days after Tenant's
demand therefor (it being understood that Landlord's obligation to make such
payment shall survive Tenant's aforesaid termination hereof). Tenant shall
include with any such demand reasonable supporting information for the costs
described therein. As used herein, the term "First Milestone Date" shall mean
July 1, 2002. Landlord shall file with the appropriate Governmental Authority
the Building Plans for the Lexington Avenue Building, the Bridge Building and
the Third Avenue Building as a single building.
(B) If the construction of the Building has not progressed
to the stage described as the Second Construction Milestone on Exhibit 22.6
attached hereto and made a part hereof (the "Second Construction Milestone
Stage") on or prior to Second Milestone Date, then Tenant shall have the right
to terminate this Lease by giving notice thereof to Landlord on or prior to the
tenth (10th) day after the Second Milestone Date, as to which date time shall be
of the essence. If Tenant so terminates the Lease, then (I) Landlord shall pay
to Tenant an amount equal to the product obtained by multiplying (a) fifty
percent (50%), by (b) the Holdover Excess that Tenant actually incurs for the
period commencing on October 1, 2004, and (II) Landlord shall pay to Tenant an
amount equal to the product obtained by multiplying (x) fifty percent (50%), by
(y) the actual out-of-pocket costs theretofore incurred by Tenant in connection
with the
171
176
execution and delivery hereof (including, without limitation, Tenant's
preparation of plans and specifications for the Initial Alterations); provided,
however, that in no event shall the sum of the amounts payable by Landlord to
Tenant under clause (I) and clause (II) above exceed Ten Million Dollars
($10,000,000). Landlord's obligation to pay the amount described in clause (I)
above shall survive the aforesaid termination of this Lease by Tenant. If Tenant
so terminates this Lease, then Landlord shall pay the amount described in clause
(II) above to Tenant within thirty (30) days after Tenant's demand therefor.
Tenant shall include with any such demand reasonable supporting information for
the costs of the nature described in clause (II) above. As used herein, the term
"Second Milestone Date" shall mean August 1, 2004; provided, however, that (A)
the Second Milestone Date shall be adjourned for a number of days equal to the
sum of (i) the number of days that Landlord is delayed in performing the work
necessary to achieve the Second Construction Milestone Stage by reason of
Unavoidable Delays, except that any such adjournment of the Second Milestone
Date by reason of Unavoidable Delays shall not exceed one (1) year in the
aggregate, and (ii) the number of days in the period beginning on the First
Milestone Date and ending on the date immediately preceding the date that
Landlord receives the permit from the applicable Governmental Authority
authorizing Landlord to construct the Building (the number of days described in
this clause (ii) being referred to herein as the "Second Milestone Slide
Amount"), and (B) the Second Milestone Date shall be adjourned by thirty (30)
days for each Deliverable Unit in respect of which the Commencement Date has
theretofore occurred.
(C) If the construction of the Building has not progressed
to the stage described as the Third Construction Milestone on Exhibit 22.6
attached hereto (the "Third Construction Milestone Stage") on or prior to Third
Milestone Date, then Tenant shall have the right to terminate this Lease by
giving notice thereof to Landlord on or prior to the tenth (10th) day after the
Third Milestone Date, as to which date time shall be of the essence. If Tenant
so terminates the Lease, then (I) Landlord shall pay to Tenant an amount equal
to the product obtained by multiplying (a) seventy-five percent (75%), by (b)
the Holdover Excess that Tenant actually incurs for the period commencing on
October 1, 2004, and (II) Landlord shall pay to Tenant an amount equal to the
product obtained by multiplying (x) seventy-five percent (75%), by (y) the
actual out-of-pocket costs theretofore incurred by Tenant in connection with the
execution and delivery hereof (including, without limitation, Tenant's
preparation of plans and specifications for the Initial Alterations); provided,
however, that in no event shall the sum of the amounts payable by Landlord to
Tenant under clause (I) and clause (II) above exceed Twenty Million Dollars
($20,000,000). Landlord's obligation to pay the amount described in clause (I)
above shall survive the aforesaid termination of this Lease by Tenant. If Tenant
so terminates this Lease, then Landlord shall pay the amount described in clause
(II) above to Tenant within thirty (30) days after Tenant's demand therefor.
Tenant shall include with any such demand reasonable supporting information for
the costs of the nature described in clause (II) above. As used herein, the term
"Third Milestone Date" shall mean April 1, 2005; provided, however, that (A) the
Third Milestone Date shall be adjourned for a number of days equal to the sum of
(i) the number of days that Landlord is delayed in performing the work necessary
to achieve the Third Construction Milestone Stage by reason of Unavoidable
Delays, except that any such adjournment of the Third Milestone Date by reason
of Unavoidable Delays shall not exceed one (1) year in the aggregate, (ii) the
number of days in the period beginning on the Second Milestone
172
177
Date and ending on the date immediately preceding the date that Landlord
achieves the Second Construction Milestone Stage, and (iii) the Second Milestone
Slide Amount (the sum of the number of days described in clauses (ii) and (iii)
above being referred to herein as the "Third Milestone Slide Amount"), and (B)
the Third Milestone Date shall be adjourned by thirty (30) days for each
Deliverable Unit in respect of which the Commencement Date has theretofore
occurred.
(D) If the construction of the Building has not progressed
to the stage described as the Fourth Construction Milestone on Exhibit 22.6
attached hereto (the "Fourth Construction Milestone Stage") on or prior to
Fourth Milestone Date, then Tenant shall have the right to terminate this Lease
by giving notice thereof to Landlord on or prior to the tenth (10th) day after
the Fourth Milestone Date, as to which date time shall be of the essence. If
Tenant so terminates the Lease, then (I) Landlord shall pay to Tenant an amount
equal to the Holdover Excess that Tenant actually incurs for the period
commencing on October 1, 2004, and (II) Landlord shall pay to Tenant an amount
equal to the actual out-of-pocket costs theretofore incurred by Tenant in
connection with the execution and delivery hereof (including, without
limitation, Tenant's preparation of plans and specifications for the Initial
Alterations); provided, however, that in no event shall the sum of the amounts
described in clause (I) and clause (II) above exceed Thirty Million Dollars
($30,000,000). Landlord's obligation to pay the amount described in clause (I)
above shall survive the aforesaid termination of this Lease by Tenant. If Tenant
so terminates this Lease, then Landlord shall pay the amount described in clause
(II) above to Tenant within thirty (30) days after Tenant's demand therefor.
Tenant shall include with any such demand reasonable supporting information for
the costs of the nature described in clause (II) above. As used herein, the term
"Fourth Milestone Date" shall mean November 1, 2005; provided, however, that (A)
the Fourth Milestone Date shall be adjourned for a number of days equal to the
sum of (i) the number of days that Landlord is delayed in performing the work
necessary to achieve the Fourth Construction Milestone Stage by reason of
Unavoidable Delays, except that any such adjournment of the Fourth Milestone
Date by reason of Unavoidable Delays shall not exceed one (1) year in the
aggregate, (ii) the number of days in the period beginning on the Third
Milestone Date and ending on the date immediately preceding the date that
Landlord achieves the Third Construction Milestone Stage, and (iii) the Third
Milestone Slide Amount, and (B) the Fourth Milestone Date shall be adjourned by
thirty (30) days for each Deliverable Unit in respect of which the Commencement
Date has theretofore occurred.
(E) Landlord shall not have the right to extend Second
Milestone Date, the Third Milestone Date or the Fourth Milestone Date in each
case as contemplated by this Section 22.6 by reason of the occurrence of an
Unavoidable Delay unless Landlord (x) gives Tenant Construction Notice thereof
not later than the fifteenth (15th) day after the occurrence of such Unavoidable
Delay, and (y) to the extent reasonably practicable, sets forth in such
Construction Notice Landlord's reasonable estimate of the extension of the
Second Milestone Date, the Third Milestone Date or the Fourth Milestone Date
that derives therefrom (it being understood that Landlord shall have the right
to supplement such Construction Notice from time to time to the extent that
Landlord in good faith revises such statement of the extension of the Second
Milestone Date, the Third Milestone Date or the Fourth Milestone Date that
derives from such Unavoidable Delay).
173
178
(F) Landlord shall be deemed to have used commercially
reasonable diligent efforts in performing the Work for purposes of Section
22.1(A) hereof if the Work progresses without Tenant having the right to
terminate the Lease as provided in this Section 22.6. Tenant's right to
terminate the Lease as provided in this Section 22.6 shall be Tenant's sole
remedy for Landlord's failure to use commercially reasonable diligent efforts to
perform the Work, except that (x) Tenant shall retain the right to exercise
Tenant's rights as expressly set forth in this Article 22 for Landlord's failure
to perform the Work (or certain Work Components thereof) on or prior to the
dates set forth herein, and (y) Tenant shall have the right to pursue any other
remedies against Landlord that are available to Tenant at law, in equity or as
otherwise set forth herein if Landlord abandons the performance of the Work for
a reason other than an Unavoidable Delay, in wilful and blatant disregard for
Landlord's obligation to perform the Work hereunder (it being understood that
Landlord's failure to commence construction of the structural steel of the
Building because Landlord determines that the Building is not economically
feasible shall be deemed to constitute Landlord's wilful and blatant disregard
for Landlord's obligation to perform the Work hereunder).
(G) If (x) the Commencement Date for a particular
Deliverable Unit or for particular Deliverable Units does not occur on or prior
to the Fourth Milestone Date, and (y) Tenant does not (or does not have the
right to) terminate this Lease pursuant to the provisions of this Section 22.6,
then Tenant shall have the right to terminate this Lease solely with respect to
such Deliverable Unit or such Deliverable Units by giving Construction Notice
thereof to Landlord not later than the tenth (10th) day after the Fourth
Milestone Date, as to which date time shall be of the essence. If Tenant so
terminates this Lease with respect to any such Deliverable Unit or Deliverable
Units, then such Deliverable Unit or Deliverable Units shall be deemed to be
deleted from the Entire Premises for all purposes hereof (it being understood
that such Deliverable Unit or Deliverable Units shall also be deemed to be
deleted from the Partial Renewal Space).
Section 22.7 (A) If Landlord fails to Substantially Complete the Timed
Post-Delivery Work Components for the applicable Deliverable Unit on or prior to
the applicable Post-Delivery Work Date, then Landlord shall pay to Tenant an
amount equal to the excess of (i) the costs that Tenant incurs in performing the
Initial Alterations in such Deliverable Unit, over (ii) the costs that Tenant
would have incurred in performing such Initial Alterations in such Deliverable
Unit but for Landlord's failure to Substantially Complete the Timed
Post-Delivery Work Components in the applicable Deliverable Unit on or prior to
the Post-Delivery Work Date. As used herein, the term "Post-Delivery Work Date"
shall mean, with respect to a particular Timed Post-Delivery Work Component, the
date indicated on the Work Exhibit for the Substantial Completion of such Timed
Post-Delivery Work Component. As used herein, the term "Timed Post-Delivery Work
Components" shall mean the Work Components of Post-Delivery Work identified as
Timed Post-Delivery Work Components on the Work Exhibit. Landlord shall pay to
Tenant the amount described in this Section 22.7 within thirty (30) days after
Tenant's request therefor. Tenant shall include with any such request reasonable
documentation supporting Tenant's calculations as set forth therein. Either
party shall have the right to submit to an Expedited Arbitration Proceeding a
dispute between the parties regarding any such payment.
174
179
(B) Landlord shall Substantially Complete the Work
Components of Post-Delivery Work that (i) do not constitute Timed Post-Delivery
Work Components, and (ii) are included in the Post-Delivery Work pursuant to
Section 22.3(I) hereof, with due diligence after the Commencement Date for the
applicable Deliverable Unit.
(C) (1) Subject to the terms of this Section 22.7(C),
Landlord and Tenant shall cooperate with each other in good faith to sequence
the performance of the Post-Delivery Work and the Initial Alterations in
accordance with good construction practice. In so scheduling the performance of
the Post-Delivery Work and the Initial Alterations, Landlord shall have
reasonable priority to accomplish the Timed Post-Delivery Work Components. From
and after the First Commencement Date, Tenant shall have reasonable priority
with respect to the Initial Alterations being performing within the Premises (it
being understood that Tenant's aforesaid reasonable priority (x) shall apply
only for the Deliverable Units in respect of which the Commencement Date has
occurred, and (y) shall not limit Landlord's reasonable priority for the Timed
Post-Delivery Work Components). Landlord and Tenant shall attempt in good faith
to resolve promptly any conflict that arises between Landlord's contractors and
Tenant's contractors with respect to work being performed in the Premises.
Landlord and Tenant shall each use diligent efforts to cause their respective
contractors to accommodate and work harmoniously with the other party's
contractors (including, without limitation, in making arrangements for the
storage of tools and materials, in avoiding labor unrest or jurisdictional
disputes, or other similar occurrences that may delay the parties' respective
contractors in performing, or may prevent the parties' respective contractors
from performing, the Work or the Initial Alterations). Either party shall have
the right to submit to an Expedited Arbitration Proceeding any dispute between
the parties regarding the proper sequencing of the Post-Delivery Work and the
Initial Alterations.
(2) Subject to the terms of this Lease, Tenant
(and its contractors) shall have reasonable access to each Deliverable Unit for
which the Commencement Date has occurred at all times and for all purposes
(including, without limitation, for the performance of the Initial Alterations).
Tenant shall have the right to use the Premises Elevators and the loading docks,
loading bays (in addition to the loading bays that Tenant has the right to use
exclusively under Section 2.5 hereof), and truck elevator during Tenant's
performance of the Initial Alterations on the same terms and conditions
applicable to Landlord's contractors (with the understanding, however, that
nothing contained in this Section 22.7(C)(2) limits Landlord's reasonable
priority with respect to the performance of the Timed Post-Delivery Work
Components as set forth in Section 22.7(C)(1) hereof). Tenant shall comply with
the procedures and regulations as are uniformly and reasonably prescribed and
enforced by Landlord from time to time for Landlord's contractors and Tenant's
contractors with respect to coordinating their respective work and activities
with any other work or activity in the Premises or the Building.
Section 22.8 (A) Subject to the terms of this Section 22.8, if (x) the
Commencement Date for a particular Deliverable Unit does not occur on or prior
to Commencement Cutoff Date for such Deliverable Unit, or (y) Landlord does not
Substantially Complete a Timed Post-Delivery Work Component for a particular
Deliverable Unit on or prior to the Post-Delivery Work Date therefor, then
Landlord shall pay to Tenant an amount equal to the product obtained by
multiplying (a) the Applicable Percentage, by (b) the Holdover Excess
175
180
for the period (the "Work Holdover Period") from October 1, 2004 and extending
thereafter for the number of days in the period (i) commencing on the
Commencement Cutoff Date for the applicable Deliverable Unit and ending on the
day immediately preceding the Commencement Date for such Deliverable Unit, or
(ii) commencing on the applicable Post-Delivery Work Date and ending on the day
immediately preceding the date that Landlord Substantially Completes the
applicable Timed Post-Delivery Work Component, as the case may be. If the
Commencement Date for a particular Deliverable Unit occurs before the
Commencement Cutoff Date, then Landlord shall not be required to make the
payment to Tenant as contemplated by this Section 22.8 in respect of Landlord's
failure to Substantially Complete a Timed Post-Delivery Work Component, unless
Landlord fails to Substantially Complete the applicable Timed Post-Delivery Work
Component on or prior to the applicable Post-Delivery Work Date that would have
applied if the Commencement Date for such Deliverable Unit was the Commencement
Cutoff Date. As used herein, the term "Commencement Cutoff Date" shall mean June
1, 2004, except that in respect of the First Delivery Component, the
Commencement Cutoff Date shall be January 1, 2004. As used herein, the term
"Applicable Percentage" shall mean (i) fifty percent (50%) for Holdover Excess
that accrues during the period of one (1) year commencing on October 1, 2004,
(ii) fifty percent (50%) for Holdover Excess that accrues during the period of
one (1) year commencing on October 1, 2005, (iii) seventy-five percent (75%) for
Holdover Excess that accrues during the period of one (1) year commencing on
October 1, 2006, and (iv) one hundred percent (100%) for Holdover Excess that
accrues from and after October 1, 2007. The aggregate amount that Landlord pays
to Tenant under this Section 22.8(A) shall not exceed (I) the greater of (X)
Eight Hundred Seventy-Six Thousand Dollars ($876,000), and (Y) the product
obtained by multiplying (A) Four Thousand Eight Hundred Dollars ($4,800), by (B)
the number of days in the Work Holdover Period (or the portion thereof) that
occur during the period of one (1) year commencing on October 1, 2004, (II) the
greater of (X) One Million Three Hundred Eighty-One Thousand Fourteen Dollars
($1,381,014), and (Y) the product obtained by multiplying (A) Seven Thousand
Five Hundred Sixty-Seven and 20/100 Dollars ($7,567.20), by (B) the number of
days in the Work Holdover Period that occur during the period of one (1) year
commencing on October 1, 2005, (III) the greater of (X) Three Million Three
Hundred Sixty-One Thousand Six Hundred Fifty Dollars ($3,361,650), and (Y) the
product obtained by multiplying (A) Eighteen Thousand Four Hundred Twenty
Dollars ($18,420), by (B) the number of days in the Work Holdover Period that
occur during the period of one (1) year commencing on October 1, 2006, (IV) the
greater of (X) Four Million Nine Hundred Twenty-Three Thousand Nine Hundred
Ninety-Six Dollars ($4,923,996), and (Y) the product obtained by multiplying (A)
Twenty-Six Thousand Nine Hundred Eighty and 80/100 Dollars ($26,980.80), by (B)
the number of days in the Work Holdover Period that occur during each period of
one (1) year from and after October 1, 2007. Landlord shall make any such
payment to Tenant on or prior to the thirtieth (30th) day after Tenant's demand
therefor. Tenant shall include with any such demand reasonable supporting
information for the charges specified therein. Either party shall have the right
to submit to an Expedited Arbitration Proceeding any dispute between the parties
regarding any such payment.
(B) As used herein, the term "Existing Leases" shall mean
the leases described on Exhibit 22.8 attached hereto and made a part hereof. As
used herein, the term "Holdover Costs" shall mean the actual rent, penalties and
damages that Tenant is required to pay
176
181
to the landlords under the Existing Leases by reason of Tenant's failure to
vacate the Holdover Premises (it being understood that Holdover Costs shall
include, without limitation, liability that Tenant has to indemnify the
landlords under the Existing Leases for losses sustained by such landlords in
connection with Tenant's failure to vacate the Holdover Premises). As used
herein, the term "Holdover Premises" shall mean the premises demised by the
Existing Leases that Tenant fails to vacate at or prior to the expiration of the
term thereof by reason of Landlord's failure to (x) Substantially Complete the
Timed Post-Delivery Work Components on or prior to applicable Post-Delivery Work
Date, or (y) cause the Commencement Date for a particular Deliverable Unit to
occur on or prior to the Commencement Cutoff Date, as the case may be (it being
understood that for purposes of calculating the amounts due from Landlord to
Tenant under Section 22.6 hereof, the "Holdover Premises" shall mean the
premises demised under the Existing Leases with respect to which Tenant has
liability to the landlords thereof by reason of Tenant's failure to vacate such
premises at or prior to the expiration of the term thereof by reason of (i)
Landlord's failure to obtain a permit from the applicable Governmental Authority
authorizing Landlord to construct the Building on or prior to the First
Milestone Date, (ii) Landlord's failure to cause the Work to achieve the Second
Construction Milestone Stage on or prior to the Second Milestone Date, (iii)
Landlord's failure to cause the Work to achieve the Third Construction Milestone
Stage on or prior to the Third Milestone Date, or (iv) Landlord's failure to
cause the Work to achieve the Fourth Construction Milestone Stage on or prior to
the Fourth Milestone Date, as the case may be). As used herein, the term
"Holdover Excess" shall mean, with respect to a particular period, the excess,
if any, of (x) the Holdover Costs for such period, over (y) the fair market
rental value of the Holdover Premises for such period. Tenant hereby represents
and warrants to Landlord that the information set forth in Exhibit 22.8 attached
hereto summarizing the terms of the Existing Leases regarding Tenant's failure
to surrender possession to the Landlord of the premises demised thereby is true,
correct and complete (such terms being referred to herein as the "Holdover
Terms"). Tenant acknowledges that Landlord shall be entitled to negotiate
jointly with Tenant with respect to the Holdover Terms, including, without
limitation, the Holdover Costs. Landlord and Tenant shall cooperate with each
other in all respects in connection with any such negotiations conducted jointly
by Landlord and Tenant. Landlord and Tenant shall also conduct jointly the
defense of any lawsuit or other similar proceeding brought by the landlords
under the Existing Leases to recover or liquidate Holdover Costs. Neither
Landlord nor Tenant shall accept a proposed settlement or compromise of a
dispute relating to the Holdover Costs without the consent of the other party.
If (i) the landlords under the Existing Leases propose to settle or otherwise
compromise a dispute regarding the Holdover Costs, (ii) either Landlord or
Tenant proposes to accept such settlement or compromise, (iii) the other party
does not wish to accept such settlement or compromise, (iv) such dispute is
subsequently settled or determined, and (v) the Holdover Costs, as so
subsequently settled or determined, exceed the Holdover Costs that would have
been payable if the parties had initially accepted such proposed settlement or
compromise, then (I) such excess shall be payable solely by the party that
refused to accept such compromise or settlement, and (II) such excess shall not
constitute part of Holdover Costs for purposes of determining the Holdover
Excess under this Section 22.8(B). If Tenant, at any time from and after the
date hereof, makes an agreement with any of the landlords under the Existing
Leases that modifies any of the Holdover Terms in a manner that is adverse to
Tenant, then Landlord shall have no obligation to make any payments to Tenant as
contemplated by this Section 22.8 to the extent
177
182
that such agreement increases Landlord's liability under this Section 22.8;
provided, however, that if (i) Tenant hereafter enters into an agreement with a
landlord under an Existing Lease to expand for a good business purpose the space
demised to Tenant in the applicable buildings, (ii) Tenant gives Landlord notice
thereof (together with a true, correct and complete copy of such agreement with
such landlord), and (iii) the terms of such agreement regarding such landlord's
rights in the event of Tenant's holdover in such expansion space are not
materially less favorable to Tenant than the Holdover Terms, then Tenant shall
be entitled to include Holdover Costs that Landlord incurs in connection
therewith in its calculation of the Holdover Excess for purposes hereof. Tenant
shall take reasonable steps to minimize, to the extent reasonably practicable,
the Holdover Costs that Tenant incurs.
Section 22.9 Landlord shall permit Tenant to move into the Premises its
furniture, furnishings, equipment, supplies and other items of personal property
that Tenant requires for its initial occupancy of the Premises for the conduct
of business over one or more weekends, between 6:00 P.M. on Friday and 6:00 A.M.
on Monday, and during weekday evening hours between 6:00 P.M. and 6:00 A.M.,
through the entrance to the Exclusive Lobby Area on the Lexington Place
Courtyard, in each case to the extent that Tenant's doing so does not interfere
in any material respect with the operation or construction of other portions of
the Building.
Section 22.10 Landlord and Tenant acknowledge that the labor unions
involved in the performance of the Initial Alterations by Tenant and the
construction of the Building by Landlord (including, without limitation, the
performance of the Work by Landlord) may require the presence of certain
personnel on site to supplement the union laborers actively engaged in the
performance of the Initial Alterations for Tenant or such construction for
Landlord (such as, for example, a union requirement that a standby elevator
operator and operating engineer be on-site when four (4) or more elevator
operators are on-site). Tenant shall bear the cost of any such supplemental
personnel that may be required to be engaged by Tenant for purposes of Tenant's
performance of the Initial Alterations. Landlord shall bear the cost of any such
supplemental personnel that is required to be engaged by Landlord for purposes
of Landlord's construction of the Building (including, without limitation,
Landlord's performance of the Work).
Section 22.11 (A) Landlord shall cause at least two (2) of the Low Rise
Office Elevators to be available for Tenant's exclusive use as contemplated by
Section 27.1 hereof and in conformity with the Work Exhibit to gain access to a
particular Deliverable Unit in the Base Premises not later than fourteen (14)
days after the date that all of the following events have occurred: (i) the
Commencement Date has occurred for such Deliverable Unit, (ii) Tenant has
completed its installation of a raised floor or a temporary elevator landing
ramp, in either case in accordance with applicable Requirements, to accommodate
the Low Rise Office Elevators that serve such Deliverable Unit, and (iii) Tenant
gives Landlord a Construction Notice to the effect that the event described in
clause (ii) above has occurred. Subject to the terms of this Section 22.11(A),
Landlord shall cause at least one (1) of the Low Rise Office Elevators that have
not theretofore been delivered by Landlord to Tenant to be available for
Tenant's exclusive use as contemplated by Section 27.1 hereof and in conformity
with the Work Exhibit within each succeeding period of fourteen (14) days from
the day that the first two (2) of such passenger elevators were made available
for Tenant's use as contemplated by this Section 22.11(A).
178
183
Landlord shall have the right to retain the right to use no more than two (2) of
the Low Rise Office Elevators to accommodate Landlord's requirements in
constructing the Building (with the understanding that Landlord shall have the
right to retain exclusive use of such Low Rise Office Elevators); provided,
however, that if (x) Landlord so retains the right to use one (1) of the Low
Rise Office Elevators, then Landlord shall cause such Low Rise Office Elevator
to be available for Tenant's exclusive use as contemplated by Section 27.1
hereof and in conformity with the Work Exhibit not later than the two hundred
fortieth (240th) day after the First Commencement Date, and (y) Landlord so
retains the right to use two (2) of the Low Rise Elevators, then Landlord shall
cause (I) one (1) of such Low Rise Office Elevators to be available for Tenant's
exclusive use as contemplated by Section 27.1 hereof not later than the two
hundred tenth (210th) day after the First Commencement Date, and (II) the other
of such Low Rise Office Elevators to be available for Tenant's exclusive use as
contemplated by Section 27.1 hereof and in conformity with the Work Exhibit not
later than the two hundred fortieth (240th) day after the First Commencement
Date. If Landlord retains the use of any of the Low Rise Office Elevators as
contemplated by this Section 22.11(A), then (x) Landlord shall have reasonable
access thereto through the Exclusive Lobby Area in a manner that does not
interfere in any material respect with Tenant's performance of the Initial
Alterations in the Exclusive Lobby Area or the Premises, and (y) Landlord shall
comply with the procedures and regulations as are uniformly and reasonably
prescribed and enforced by Tenant from time to time for Tenant's contractors and
Landlord's contractors with respect to coordinating their respective
requirements to gain access to such Low Rise Office Elevators through the
Exclusive Lobby Area.
(B) Landlord shall cause at least two (2) of the Mid Rise
Office Elevators to be available for Tenant's use as contemplated by Section
27.1 hereof and in conformity with the Work Exhibit to gain access to a
particular Deliverable Unit in the Tower Premises not later than fourteen (14)
days after the date that all of the following events have occurred: (i) the
Commencement Date has occurred for such Deliverable Unit, (ii) Tenant has
completed its installation of a raised floor or a temporary elevator landing
ramp, in either case in accordance with applicable Requirements, to accommodate
the Mid Rise Office Elevators that serve such Deliverable Unit, and (iii) Tenant
gives Landlord a Construction Notice to the effect that the event described in
clause (ii) above has occurred. Landlord shall cause at least one (1) of the Mid
Rise Office Elevators that have not theretofore been delivered by Landlord to
Tenant for Tenant's use as contemplated by this Section 22.11 to be available
for Tenant's use as contemplated by Section 27.1 hereof and in conformity with
the Work Exhibit within each succeeding period of fourteen (14) days from the
day that the first two (2) of such passenger elevators were made available for
Tenant's use as contemplated by this Section 22.11(B). Landlord shall have the
right to retain the right to use no more than two (2) of the Mid Rise Office
Elevators to accommodate Landlord's requirements in constructing the Building
(with the understanding that Landlord shall have the right to retain exclusive
use of such Mid Rise Office Elevators); provided, however, that if (x) Landlord
so retains the right to use one (1) of the Mid Rise Office Elevators, then
Landlord shall cause such Mid Rise Office Elevator to be available for Tenant's
exclusive use as contemplated by Section 27.1 hereof and in conformity with the
Work Exhibit not later than the two hundred fortieth (240th) day after the first
Commencement Date that occurs for a Deliverable Unit in the Tower Premises, and
(y) Landlord so retains the right to use two (2) of the Mid Rise Office
Elevators, then Landlord shall cause (I) one (1) of
179
184
such Mid Rise Office Elevators to be available for Tenant's exclusive use as
contemplated by Section 27.1 hereof and in conformity with the Work Exhibit not
later than the two hundred tenth (210th) day after the first Commencement Date
that occurs for a Deliverable Unit in the Tower Premises, and (II) the other of
such Mid Rise Office Elevators to be available for Tenant's exclusive use as
contemplated by Section 27.1 hereof and in conformity with the Work Exhibit not
later than the two hundred fortieth (240th) day after such Commencement Date. If
Landlord retains the use of any of the Mid Rise Office Elevators as contemplated
by this Section 22.11(B), then (x) Landlord shall have reasonable access thereto
through the Exclusive Lobby Area in a manner that does not interfere in any
material respect with Tenant's performance of the Initial Alterations in the
Exclusive Lobby Area or the Premises, and (y) Landlord shall comply with the
procedures and regulations as are uniformly and reasonably prescribed and
enforced by Tenant from time to time for Tenant's contractors and Landlord's
contractors with respect to coordinating their respective requirements to gain
access to such Mid Rise Office Elevators through the Exclusive Lobby Area.
(C) Landlord shall cause the Premises Elevator that
constitutes a freight elevator in the Lexington Avenue Building to be available
for Tenant's exclusive use as contemplated by Section 27.1 hereof not later than
the one hundred eightieth (180th) day after the First Commencement Date (with
the understanding that such freight elevator shall service Lower Level 3 of the
Building not later than the one hundred eightieth (180th) day after the First
Commencement Date).
(D) Landlord shall cause the Premises Elevator that
constitutes the freight elevator in the Third Avenue Building to be available
for Tenant's non-exclusive use as contemplated by Section 27.1 hereof not later
than the ninetieth (90th) day after the First Commencement Date.
Section 22.12 Landlord and Tenant acknowledge that certain of the Work
Components as described in the Work Exhibit (such Work Components being
collectively referred to herein as the "Tenant Design Components") require that
Tenant will submit to Landlord the design therefor. Landlord shall have the
right to approve the plans that Tenant designs for the Tenant Design Components,
which approval Landlord shall not unreasonably withhold, condition or delay.
Landlord shall not have any obligation to perform the Tenant Design Components
as part of the Work unless Tenant delivers the appropriate documentation
required for the construction thereof in accordance with good construction
practice on or prior to the dates indicated on the Work Exhibit (it being
understood that the time periods for Tenant to deliver such documentation to
Landlord shall not commence unless and until Landlord has given to Tenant a
Construction Notice to the effect that such time period has commenced);
provided, however, that if Tenant submits such documentation for any Tenant
Design Component after the applicable date set forth in the Work Exhibit, then
(x) Landlord shall nevertheless accommodate Tenant and perform the applicable
Tenant Design Component to the extent that Landlord's performance of the Work is
not otherwise materially and adversely affected thereby, and (y) Tenant shall
reimburse Landlord for the actual incremental out-of-pocket costs that Landlord
incurs in so accommodating Tenant and that derive from Tenant's delay in making
such submission to Landlord (in addition to the cost of the applicable Tenant
Work Component as contemplated by Section 22.2 hereof), within
180
185
thirty (30) days after Landlord's request therefor from time to time (it being
understood that Landlord, in any such request for reimbursement, shall include
reasonable supporting documentation therefor), except that the provisions of
clause (y) above shall not apply to the extent that Tenant's failure to submit
the design for a Tenant Design Component derives from Landlord's failure to act
in good faith and with reasonable diligence in consulting with Tenant in
connection with Tenant's aforesaid design. If (i) the Work Exhibit contemplates
that Tenant is required to submit plans for a Tenant Design Component within a
particular period of time after Landlord submits the applicable Building Plans
to Tenant, and (ii) Landlord modifies such Building Plans in any material
respect after issuing such Building Plans to Tenant, then the date by which
Tenant is required to submit to Landlord to such plans for the applicable Tenant
Design Component shall be extended to the extent reasonably necessary for Tenant
to adapt Tenant's plans for such Tenant Design Component to Landlord's revised
Building Plan. Either party shall have the right to submit a dispute between the
parties under this Section 22.12 to an Expedited Arbitration Proceeding.
Section 22.13 Subject to the terms of this Section 22.13, if Landlord does
not commence the erection of the structural steel for the Building above ground
level on or prior to the fifth (5th) anniversary of the date hereof, then
Landlord shall have the right to terminate this Lease by giving notice thereof
to Tenant not later than the fifteenth (15th) day after such fifth (5th)
anniversary (as to which period of fifteen (15) days time shall be of the
essence), in which case neither Landlord nor Tenant shall have any continuing
rights or obligations hereunder, except to the extent that this Lease expressly
provides that the respective rights and obligations of the parties survive the
termination hereof. If Landlord exercises Landlord's right to terminate this
Lease pursuant to this Section 22.13, then Landlord shall pay to Tenant,
simultaneously with Landlord's aforesaid notice to Tenant, the amount to which
Tenant would have otherwise been entitled if Tenant exercised Tenant's rights to
terminate this Lease under Section 22.6(D) hereof by reason of Landlord's
failure to have reached the Fourth Construction Milestone Stage on or prior to
the Fourth Milestone Date. Tenant shall cooperate reasonably with Landlord,
promptly after Landlord's request, to provide Landlord with the information that
Landlord requires to calculate the aforesaid amount due from Landlord to Tenant
if Landlord so terminates this Lease.
Section 22.14 (A) Landlord and Tenant acknowledge that Landlord intends to
erect a construction hoist to service the Third Avenue Building (such hoist
being referred to herein as the "Shared Hoist").
(B) Landlord shall erect the Shared Hoist to the extent
permitted by applicable Requirements, in substantial accordance with the
Logistics Plan and in accordance with good construction practice as the
construction of the Building progresses. Landlord shall not consummate the
rental agreement with the supplier of the Shared Hoist unless Landlord has
theretofore given Tenant a reasonable opportunity to consult with Landlord in
connection therewith. Tenant shall reimburse Landlord for fifty percent (50%) of
the actual out-of-pocket costs incurred by Landlord in connection with the
installation of the Shared Hoist within thirty (30) days after Landlord's
request therefor from time to time (it being understood, however, that such
costs shall not include the costs associated with staffing and operating the
Shared Hoist). Landlord shall include in any such request reasonable supporting
documentation for the costs described therein. If (i) Tenant fails to make any
such payments to Landlord when due, and
181
186
(ii) such failure continues for more than ten (10) Business Days after Landlord
gives Tenant notice thereof, then Landlord shall have all rights and remedies of
law, in equity or as otherwise set forth herein. Landlord shall cause the Shared
Hoist to be priced separately from the remainder of the Construction Hoists.
Landlord, in consummating the contract for the Shared Hoist, shall use
reasonable efforts to provide for Landlord or Tenant having the right to use the
Shared Hoist at times other than ordinary construction hours.
(C) Subject to the terms of this Section 22.14(C), Landlord
shall have the right to use the Shared Hoist exclusively for the period ending
on the First Commencement Date (such period being referred to herein as
"Landlord's Exclusive Hoist Period"). Landlord shall pay the costs associated
with renting, staffing and operating the Shared Hoist during Landlord's
Exclusive Hoist Period. If (i) Tenant requires access to the Shared Hoist during
Landlord's Exclusive Hoist Period, and (ii) Tenant gives Construction Notice
thereof to Landlord, then Landlord and Tenant shall consult with each other in
good faith to arrange for Tenant's use of the Shared Hoist during Landlord's
Exclusive Hoist Period to the extent that Tenant's use of the Shared Hoist does
not interfere in any material respect with Landlord's use of the Shared Hoist
during Landlord's Exclusive Hoist Period. Tenant shall not have the right to
place a standing order for time on the Shared Hoist during Landlord's Exclusive
Hoist Period. If Tenant uses the Shared Hoist during Landlord's Exclusive Hoist
Period as contemplated by this Section 22.14(C), then Tenant shall pay to
Landlord an amount equal to Tenant's equitable share of the actual out-of-pocket
costs incurred by Landlord (without overhead, profit or markup to Landlord) in
renting, staffing and operating the Shared Hoist for the period that Tenant so
uses the Shared Hoist, within thirty (30) days after Landlord's request therefor
from time to time (the hourly charge that Landlord imposes on Tenant for
Tenant's use of the Shared Hoist during Landlord's Exclusive Hoist Period being
referred to herein as the "Hourly Hoist Rate"). If (i) Tenant fails to make any
such payments to Landlord when due, and (ii) such failure continues for more
than ten (10) Business Days after Landlord gives Tenant notice thereof, then
Landlord, shall have all rights and remedies of law, in equity or as otherwise
set forth herein.
(D) Subject to the terms of this Section 22.14(D), Tenant
shall have the right to use the Shared Hoist exclusively for the period
commencing on the day immediately following the last day of Landlord's Exclusive
Hoist Period and ending on a date designated by Landlord on no less than
forty-five (45) days of advance Construction Notice thereof (such period being
referred to herein as "Tenant's Exclusive Hoist Period"). Landlord shall not
have the right to designate that the last day of Tenant's Exclusive Hoist Period
occurs earlier than the later to occur of (I) the one hundred eightieth (180th)
day after the Commencement Date that first occurs for a Deliverable Unit in the
Third Avenue Building, and (II) the date that the freight elevator in the Third
Avenue Building is available for Tenant's non-exclusive use; provided, however,
that if (a) Landlord executes and delivers a lease with a tenant for space on
the ground level or the second (2nd) floor of the Third Avenue Building, and (b)
the freight elevator in the Third Avenue Building is then available for Tenant's
non-exclusive use, then Landlord shall have the right to terminate Tenant's
Exclusive Hoist Period at any time from and after the one hundred twentieth
(120th) day after the Commencement Date that first occurs for a Deliverable Unit
in the Third Avenue Building to the extent Landlord reasonably requires to
accommodate such tenant. If Landlord exercises Landlord's aforesaid right to
terminate Tenant's Exclusive
182
187
Hoist Period earlier than the one hundred eightieth (180th) day after the
Commencement Date that first occurs for a Deliverable Unit in the Third Avenue
Building, then, during the period commencing on the last day of Tenant's
Exclusive Hoist Period and ending on the one hundred eightieth (180th) day after
such Commencement Date, Landlord shall permit Tenant to have exclusive use of
the freight elevator in the Third Avenue Building during at least three (3)
hours per Business Day (during ordinary construction business hours) (with the
understanding that Tenant also shall have non-exclusive use of such freight
elevator in reasonable cooperation with Landlord during hours other than the
aforesaid three (3) hours per Business Day with respect to which Tenant has
exclusive use of such freight elevator). Tenant shall have the right to
terminate Tenant's Exclusive Hoist Period by giving Landlord not less than
ninety (90) days of advance Construction Notice thereof. Tenant shall pay the
costs associated with renting, staffing and operating the Shared Hoist during
Tenant's Exclusive Hoist Period. If (i) Landlord requires access to the Shared
Hoist during Tenant's Exclusive Hoist Period, and (ii) Landlord gives
Construction Notice thereof to Tenant, then Landlord and Tenant shall consult
with each other in good faith to arrange for Landlord's use of the Shared Hoist
during Tenant's Exclusive Hoist Period to the extent that Landlord's use of the
Shared Hoist does not interfere in any material respect with Tenant's use of the
Shared Hoist during Tenant's Exclusive Hoist Period. Landlord shall not have the
right to place a standing order for time on the Shared Hoist during Tenant's
Exclusive Hoist Period. If Landlord uses the Shared Hoist during Tenant's
Exclusive Hoist Period as contemplated by this Section 22.14(D), then Landlord
shall pay to Tenant an amount equal to Landlord's equitable share of the actual
out-of-pocket costs incurred by Tenant (without overhead, profit, or markup) in
renting, staffing and operating the Shared Hoist for the period that Landlord so
uses the Shared Hoist, within thirty (30) days after Tenant's request therefor
from time to time (it being understood that if Tenant uses the Shared Hoist
during Landlord's Exclusive Hoist Period as contemplated by Section 22.14(C)
hereof, then such amount charged to Landlord for Landlord's use of the Shared
Hoist during Tenant's Exclusive Hoist Period shall be calculated using the
Hourly Hoist Rate). Landlord and Tenant shall accomplish the transfer from
Landlord to Tenant of primary responsibility for the Shared Hoist on the first
day of Tenant's Exclusive Hoist Period by assigning (or causing Landlord's
general contractor to assign) to Tenant the hoist contract for the Shared Hoist.
Tenant shall re-assign such hoist contract to Landlord (or such general
contractor, if so designated by Landlord) not later than the date that the
removal of the Shared Hoist must commence in accordance with good construction
practice so that the Shared Hoist is removed completely not later than the
sixtieth (60th) day after the last day of Tenant's Exclusive Hoist Period.
Tenant shall remain responsible for the costs of staffing and operating the
Shared Hoist for the entire Tenant's Exclusive Hoist Period as contemplated by
this Section 22.14, notwithstanding Tenant's aforesaid re-assignment of the
hoist contract to Landlord (or Landlord's general contractor), provided that
Landlord does not use the Shared Hoist for the construction of the Building
following such re-assignment. Tenant shall reimburse Landlord for fifty percent
(50%) of the actual out-of-pocket costs incurred by Landlord in connection with
the removal of the Shared Hoist within thirty (30) days after Landlord's request
therefor (provided that Landlord includes in any such request reasonable
supporting documentation for the costs described therein).
(E) Tenant shall indemnify and save the Landlord Indemnitees
harmless from and against any claims made by third parties relating to the
operation of the
183
188
Shared Hoist that accrue during the period that the contract for the Shared
Hoist is held by Tenant. Landlord shall indemnify and save the Tenant
Indemnitees harmless from and against any claims made by third parties relating
to the erection, operation or removal of the Shared Hoist that accrue during the
period that the contract for the Shared Hoist is held by Landlord (or Landlord's
contractor).
(F) Either party shall have the right to submit to an
Expedited Arbitration Proceeding any dispute between the parties relating to the
Shared Hoist.
Section 22.15 (A) Subject to the terms of this Section 22.15, Landlord
shall be deemed to have delivered possession of a Deliverable Unit for purposes
hereof (and, accordingly, the Commencement Date for such Deliverable Unit shall
be deemed to have occurred) notwithstanding that Landlord retains a portion of
each floor of the Base Premises that is located in the Lexington Avenue Building
to accommodate a construction hoist that Landlord intends to erect for the
construction of the Lexington Avenue Building (such construction hoist being
referred to herein as the "Tower Hoist"; the portion of a Deliverable Unit that
Landlord retains as aforesaid to accommodate the Tower Hoist being referred to
herein as the "Tower Hoist Area"). The Tower Hoist Area that Landlord so retains
shall be located only (i) west of column line 5 (as reflected on the Schematic
Drawings) (to accommodate a Tower Hoist that is erected adjacent to East 59th
Street), (ii) north of column line D and south of column line E (as reflected on
the Schematic Drawings) (to accommodate a Tower Hoist that is erected adjacent
to Lexington Avenue), or (iii) at a location that is between column line 1 and
column line 4 (as reflected on the Schematic Drawings) (to accommodate a Tower
Hoist that is erected adjacent to Xxxx 00xx Xxxxxx). The Tower Hoist Area shall
not be comprised of more than nine hundred (900) square feet of Usable Area.
Landlord shall not have the right to use more than one Tower Hoist Area within
the Premises as contemplated by this Section 22.15.
(B) Subject to the terms of this Section 22.15, if Landlord
so delivers possession of a Deliverable Unit to Tenant without the Tower Hoist
Area, then (i) Landlord shall use due diligence in accordance with good
construction practice to deliver to Tenant possession of the Tower Hoist Area
(with the Pre-Delivery Work therein Substantially Completed) as promptly as
reasonably practicable, (ii) Tenant shall be entitled to reduce the Fixed Rent
that is otherwise due hereunder from and after the Rent Commencement Date for
such Deliverable Unit based on the proportion that the Rentable Area of the
Tower Hoist Area for such Deliverable Unit and any adjacent area in such
Deliverable Unit that Tenant could not be reasonably expected to use for office
purposes by reason of Landlord's use of the Tower Hoist Area bears to the
Rentable Area of such Deliverable Unit until the earlier to occur of (x) the one
hundred eightieth (180th) day after the date that Landlord delivers possession
of the Tower Hoist Area to Tenant (with the Pre-Delivery Work therein
Substantially Completed), and (y) the date that Tenant uses the Tower Hoist Area
or such adjacent area for the conduct of business, (iii) Landlord, at Landlord's
sole cost and expense, shall construct and maintain in accordance with good
construction practice weather-tight demising walls to enclose the Tower Hoist
Area during the period ending on the date that Landlord so delivers possession
of the Tower Hoist Area to Tenant, and (iv) Landlord shall remove such demising
walls prior to the date that Landlord so delivers possession of the Tower Hoist
Area to Tenant.
184
189
(C) If Landlord fails to deliver possession of the Tower
Hoist Area to Tenant as provided in Section 22.15(B) hereof on or prior to the
first (1st) anniversary of the First Commencement Date (with the Pre-Delivery
Work therein Substantially Completed), then, without limiting Tenant's right to
the abatement of Rental to which Tenant is entitled under Section 22.15(B)
hereof, Landlord shall pay to Tenant, from time to time, within thirty (30) days
after Tenant's request therefor, an amount equal to the sum of:
(i) the decrease (if any) in the value to Tenant of the
Premises (other than the Tower Hoist Area) that
derives from Landlord's retention of the Tower Hoist
Area;
(ii) the actual out-of-pocket costs that Tenant sustains to
perform Alterations in the Premises to accommodate
Landlord's retention of the Tower Hoist Area
(including, without limitation, Alterations that
Tenant performs to re-stack Tenant's business
operations to the extent reasonably necessary to
accommodate Landlord's retention of the Tower Hoist
Area); and
(iii) any other reasonable out-of-pocket costs actually
incurred by Tenant to the extent resulting from
Landlord's retention of the Tower Hoist Area.
Any request made by Tenant for payment under this Section 22.15(C) shall not be
effective unless Tenant includes therein reasonable supporting documentation for
the amount set forth therein.
(D) If (x) Landlord fails to make a payment to Tenant as
required by Section 22.15(C) hereof, and (y) such failure continues for more
than ten (10) days after the date that Tenant gives Landlord notice thereof,
then Tenant, in addition to Tenant's other rights at law or in equity or as
otherwise set forth herein, shall have the right to offset the amount of such
payment against the Rental thereafter coming due hereunder, together with
interest thereon calculated at the Applicable Rate from the date that such
payment first became due and payable to Tenant hereunder to the date that Tenant
makes such offset against Rental.
(E) Either party shall have the right to submit a dispute
between the parties under this Section 22.15 to an Expedited Arbitration
Proceeding.
(F) Tenant shall use Tenant's reasonable efforts to design
the Initial Alterations in a manner that seeks to accommodate, to the extent
reasonably practicable, Landlord's right to retain the Tower Hoist Area as
contemplated by this Section 22.15.
(G) Subject to the terms of this Section 22.15(G), Landlord
shall permit Tenant to use one (1) car of the Tower Hoist (or, at Landlord's
option, one (1) car of another Construction Hoist that Landlord erects to
accommodate Landlord's construction of the Lexington Avenue Building) for three
(3) consecutive hours per Business Day during the period from the First
Commencement Date to the date that Landlord delivers to Tenant for Tenant's
185
190
exclusive use the Premises Elevator that constitutes a freight elevator in the
Lexington Avenue Building. Tenant shall have the right to use the Tower Hoist
(or such other Construction Hoist) solely for purposes of accommodating Tenant's
performance of the Initial Alterations in the Base Premises. Landlord shall have
the right to designate the aforesaid period of three (3) consecutive hours on
each Business Day; provided, however, that such period of three (3) consecutive
hours shall occur only during ordinary construction business hours. Tenant shall
pay to Landlord, within thirty (30) days after Landlord's request from time to
time, an amount equal to the costs incurred by Landlord in operating the Tower
Hoist (or such Construction Hoist) during such period. Landlord shall include
with any such request for payment reasonable supporting documentation for the
costs described therein.
Section 22.16 Landlord and Tenant acknowledge that if the Work
contemplates the existence of an opening between the fifth (5th) and sixth (6th)
floors of the Building, then applicable Requirements may require that a solid
wall exist at the points where the seventh (7th) floor of the Lexington Avenue
Building meets the Bridge Building, and where the seventh (7th) floor of the
Third Avenue Building meets the Bridge Building. Subject to the terms of this
Section 22.16, if the Work contemplates such openings between the fifth (5th)
and sixth (6th) floors of the Building, then Landlord shall use Landlord's
reasonable efforts to apply to the appropriate Governmental Authority for
permission to change the solid wall that encloses and separates the seventh
(7th) floor of the Lexington Avenue Building and the seventh (7th) floor of the
Third Avenue Building from the sixth (6th) floor of the Bridge Building to a
full-height wall composed of herculite interior glazing with closely-spaced
sprinklers that constitute a water curtain. If Landlord is successful in
obtaining such permission, then, subject to the terms of this Section 22.16, (x)
the Work shall be deemed to be so modified, and (y) the installation of such
wall shall be deemed to be a Tenant Work Component for purposes hereof, except
that Tenant shall be entitled to a credit against the aggregate amount due for
such Tenant Work Component in an amount equal to the cost that Landlord would
have incurred in constructing the aforesaid solid enclosing wall. Landlord shall
not be required to make any such application unless Tenant cooperates reasonably
with Landlord in connection therewith. If Landlord is successful in obtaining
such permission of the appropriate Governmental Authority to change such wall,
then Landlord shall have the right to require Tenant to perform the installation
of the aforesaid water curtain as part of the Initial Alterations (in which case
the Work shall be amended to include the installation of such herculite interior
wall and not the installation of such water curtain); provided, however, that
Landlord shall not have the right to so require Tenant to install such water
curtain to the extent that Requirements require that such water curtain is
installed as a condition precedent to the issuance of the Zero Occupancy
Certificate of Occupancy.
Section 22.17 (A) Landlord and Tenant acknowledge that for federal, state
and local income tax purposes (x) Landlord shall own and depreciate the Work
(other than the Tenant Entire Cost Components), and (y) Tenant shall own and
depreciate the Tenant Entire Cost Components. Landlord and Tenant shall not take
positions for federal, state and local income tax purposes that are inconsistent
with this Section 22.17(A). Any portions of the Work that Landlord owns and
depreciates shall be leased to Tenant as otherwise contemplated hereby for the
Term. Landlord and Tenant acknowledge that the Work Component constituting the
186
191
Building's central HVAC System is not a Tenant Entire Cost Component, and,
accordingly, Landlord shall own and depreciate such central HVAC System.
(B) Landlord shall have the right to delegate Landlord's obligations
to perform all or any portion of the Tenant Work Components to an Affiliate of
Landlord (it being understood, however, that Landlord's delegating such
obligations to an Affiliate of Landlord shall not diminish Landlord liability
for the performance of the Tenant Work Components in accordance with the terms
of this Article 22). Landlord shall also have the right to assign to such
Affiliate of Landlord the rights of Landlord hereunder to receive from Tenant
the payments for the performance of the Tenant Work Components (or portions
thereof) as provided in Section 22.2(B) hereof (it being understood that if (i)
Landlord so assigns such rights to such Affiliate of Landlord, and (ii) Landlord
gives Tenant notice thereof, then Tenant shall pay directly to such Affiliate
any such amounts otherwise due and payable to Landlord hereunder).
ARTICLE 23
NO WAIVER
Section 23.1 No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall not
operate as a termination of this Lease or a surrender of the Premises. If Tenant
at any time desires to have Landlord sublet the Premises for Tenant's account,
then Landlord or Landlord's agents are authorized to receive said keys for such
purpose without releasing Tenant from any of the obligations under this Lease,
and Tenant hereby relieves Landlord of any liability for loss of or damage to
any of Tenant's effects in connection with such subletting, except to the extent
resulting from Landlord's negligence or wilful misconduct.
Section 23.2 The failure of Landlord to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations, shall not prevent a subsequent act,
which would have originally constituted a violation of the provisions of this
Lease, from having all of the force and effect of an original violation of the
provisions of this Lease. The receipt by Landlord of Rental with knowledge of
the breach of any covenant of this Lease shall not be deemed a waiver of such
breach. The failure of Landlord to enforce any of the Rules and Regulations
against Tenant shall not be deemed a waiver of any such Rules and Regulations.
No provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver is in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or other item
of Rental herein stipulated shall be deemed to be other than on account of the
earliest stipulated Fixed Rent or other item of Rental, or as Landlord may elect
to apply same, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Fixed Rent or other item of Rental be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such
187
192
Fixed Rent or other item of Rental or to pursue any other remedy provided in
this Lease or otherwise available to Landlord at law or in equity.
Section 23.3 The failure of Tenant to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
on Landlord's part to be performed, shall not be deemed a waiver of such breach
or prevent a subsequent act which would have originally constituted a violation
of the provisions of this Lease from having all of the force and effect of an
original violation of the provisions of this Lease. The payment by Tenant of
Rental or performance of any obligation of Tenant hereunder with knowledge of
any breach of any covenant of this Lease shall not be deemed a waiver of such
breach, and payment of the same by Tenant shall be without prejudice to Tenant's
right to pursue any remedy against Landlord in this Lease provided or otherwise
available to Tenant at law or in equity (except as otherwise expressly provided
herein). No provision of this Lease shall be deemed to have been waived by
Tenant, unless such waiver is in writing signed by Tenant. No payment by
Landlord or receipt by Tenant of a lesser amount than any amounts required
hereunder to be paid by Landlord to Tenant shall be deemed to be other than on
account of the earliest amounts owing from Landlord to Tenant, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as any such amount be deemed an accord and satisfaction, and Tenant may
accept such check or payment without prejudice to Tenant's right to recover the
balance of such amount or to pursue any other remedy provided in this Lease or
otherwise available to Tenant at law or in equity.
ARTICLE 24
WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
or for the enforcement of any remedy under any statute, emergency or otherwise.
If Landlord commences any summary proceeding against Tenant, then Tenant shall
not interpose any counterclaim of whatever nature or description in any such
proceeding (unless failure to impose such counterclaim would preclude Tenant
from asserting in a separate action the claim which is the subject of such
counterclaim), and shall not seek to consolidate such proceeding with any other
action which may have been or will be brought in any other court by Tenant.
188
193
ARTICLE 25
BILLS AND NOTICES
Section 25.1 Except as otherwise expressly provided in this Lease, any
bills, statements, consents, notices, demands, requests or other communications
given or required to be given under this Lease shall be in writing and shall be
deemed sufficiently given or rendered if delivered by hand (against a signed
receipt) or if sent by registered or certified mail (return receipt requested)
or by a nationally recognized overnight courier addressed in each case:
if to Tenant at Tenant's address set forth in this
Lease, Attn.: Xxxx X. Xxxxxx, Xx., Director of Real
Estate, if mailed prior to Tenant's taking possession
of the Premises for the regular conduct of its
business (and thereafter at the Premises), or (b) at
any place where Tenant may be found if mailed
subsequent to Tenant's vacating, deserting,
abandoning or surrendering the Premises, in each case
with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attn.: Xxxxxx
X. Xxxxx, Esq., or
if to Landlord c/o MRC Management LLC, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xx. Xxxxx
X. Xxxxxxxxx, and with copies to (x) Vornado Realty
Trust, 000 Xxxxx 0 Xxxx, Xxxxxxx, Xxx Xxxxxx 00000,
Attn: Xx. Xxxxxx Xxxxxx, (y) Proskauer Rose LLP,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.:
Xxxxxxxx X. Xxxxxx, Esq., and (z) each Mortgagee and
Lessor which shall have requested same, by notice
given in accordance with the provisions of this
Article 25 at the address designated by such
Mortgagee or Lessor, or
to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 25. If Bloomberg has
theretofore assigned the interest of the tenant under this Lease to a Person
that is not a Bloomberg Party, then copies of all default notices to Tenant
shall be given in like manner to Bloomberg. Any such xxxx, statement, consent,
notice, demand, request or other communication shall be deemed to have been
rendered or given on the date that it has been hand delivered or four (4)
Business Days from when it has been mailed or on the following Business Day if
delivered by a nationally recognized overnight courier as provided in this
Section 25.1.
189
194
Section 25.2 As used herein, the term "Construction Notice" shall mean a
notice, in writing, given by a party by personal delivery (against a signed
receipt) as follows:
if to Tenant at Tenant's address set forth in this
Lease, Attn: Xxxx X. Xxxxxx, Xx., Director of Real
Estate, if given prior to Tenant's taking possession
of the Premises for the regular conduct of business
(and thereafter at the Premises), with a copy to (i)
Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attn: Xxxxxx X. Xxxxx,
Esq., and to (ii) Ferzan, Xxxxxxx & Associates, 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxx Xxxxxxx, or
if to Landlord c/o MRC Management, LLC, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X.
Xxxxxxxxx, and with copies to (i) Vornado Realty
Trust, 000 Xxxxx 0 Xxxx, Xxxxxxx, Xxx Xxxxxx 00000,
Attn: Xxxxxx Xxxxxx, (ii) Proskauer Rose LLP, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxxx X.
Xxxxxx, Esq., and (iii) Vornado Realty Trust, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxxx Xxxx.
Either party shall have the right to change its address for purposes of
this Section 25.2 by giving not less than ten (10) days of advance notice
thereof to the other party.
ARTICLE 26
ESCALATION
Section 26.1 For the purposes of this Article 26, the following terms
shall have the meanings set forth below.
(A) "Actual Tax Amount" shall mean Taxes that are allocable
to the Premises in accordance with the provisions hereof, except that the
Section 421-a Tax Benefits shall be taken into account in connection with the
determination thereof.
(B) "Assessed Valuation" shall mean the amount for which the
applicable Tax Lot is assessed pursuant to applicable provisions of the New York
City Charter and of the Administrative Code of The City of New York for the
purposes of calculating the Taxes with respect thereto (it being understood that
the lower of the transitional assessment and the actual assessment is currently
used for purposes of calculating Taxes for a particular Tax Year).
(C) "Average Comparable Property Increase Rate" shall mean,
with respect to any Tax Year, the average of the Comparable Property Change
Rates for all of the Comparable Properties for such Tax Year.
190
195
(D) "Comparable Properties" shall mean properties described
in Exhibit 26.1 attached hereto and made a part hereof.
(E) "Comparable Property Change Rate" shall mean, with
respect to each Comparable Property for a particular Tax Year, the rate of
change (expressed as a percentage) in the Assessed Valuation for such Comparable
Property for such Tax Year, from the Assessed Valuation for such Comparable
Property for the Tax Year immediately preceding such Tax Year.
(F) "Firm Renewal Date" shall mean the date, following
Tenant's exercise of the Renewal Option in respect of the Renewal Premises, on
which Tenant is no longer entitled to give the Rescission Notice in respect
thereof.
(G) "First Tenant Tax Year" shall mean the Tax Year during
which occurs the First Commencement Date.
(H) "Joint Protest Period" shall mean (i) the period from
the Last Commencement Date to the day immediately preceding the first day of the
Tenant Protest Period, and (ii) the two (2) year period succeeding the Tenant
Protest Period (or such shorter period as may result if the Tenant Protest
Period recommences following Tenant's exercise of the Renewal Option).
(I) "Landlord Protest Period" shall mean the three (3) year
period ending on the Fixed Expiration Date, or the last day of the Renewal Term,
as the case may be.
191
196
(J) "Operating Expenses" shall mean, for any particular
period of time, the aggregate amount of all costs and expenses (and taxes, if
any, thereon, including, without limitation, sales and value added taxes),
without duplication, paid or incurred by or on behalf of Landlord (whether
directly or through independent contractors) in respect of the maintenance,
repair, operation and management of the Premises during such period, except to
the extent expressly provided herein. Operating Expenses shall include, without
limitation, (i) Tenant's equitable share of the costs of maintaining, repairing,
operating and managing the common elements of the Building (subject, however, to
the limitations set forth herein) with respect to the period prior to the date
that the Statutory Condominium Declaration becomes effective (it being
understood that Tenant's equitable share of such costs for the period prior to
date that the Statutory Condominium Declaration becomes effective shall
correspond in all material respects to Tenant's share of such costs that would
have applied if such costs were incurred after the date that the Statutory
Condominium Declaration becomes effective), (ii) charges that are allocable to
the Premises and that are the responsibility of the owner of the Premises Unit
under the Statutory Condominium Declaration (including, without limitation, (w)
monthly condominium charges, (x) metered charges for steam, chilled water and
other similar services, and (y) charges that are otherwise imposed on the owner
of the Premises Unit by the Condominium Association by reason of a Permitted
Occupant's use of common elements of the Building) (such charges described in
this clause (ii) being collectively referred to herein as the "Common Charges"),
(iii) the costs of gas, oil, steam, water, sewer rental, HVAC and other
utilities furnished to the Premises and utility taxes thereon (in each case,
unless paid separately by Tenant) (with the understanding that said costs shall
be calculated based on meter readings as contemplated by Section 7.7(C)(4)
hereof), (iv) subject to Section 26.4(E) hereof, replacement, capital
improvement, repair, maintenance, cleaning and operational costs with respect to
the Shared Building Systems and the Premises Systems, (v) insurance premiums
(including, without limitation, the insurance premium for Landlord's Liability
Policy and Landlord's Property Policy), (vi) reasonable attorneys' fees and
disbursements, and auditing and other professional fees and expenses (such as,
for example, fees of engineers, architects, project managers, and other similar
consultants that provide services relating to the maintenance repair, operation
or management of the Premises), and (vii) all expenses (including reasonable
attorneys' fees and disbursements, experts' and other witnesses' fees) incurred
in contesting the validity or amount of any Taxes. Neither Operating Expenses
nor the Common Charges for which Tenant is responsible hereunder shall include
the following items:
(i) Taxes (it being understood, however, that (x)
Common Charges may include Taxes during the period from and after the date that
the Statutory Condominium Declaration becomes effective to the extent that Taxes
are not then separately levied on the tax lots corresponding to the various
units of the Condominium, and (y) the amount that Tenant pays for such Taxes in
Common Charges shall not exceed the Taxes that Tenant would have otherwise been
required to pay for the Combined Tax Lot Area in respect of the Combined Tax Lot
Period under Section 26.2(B) hereof);
(ii) franchise, transfer, inheritance, gains, estate,
occupancy, succession, gift, corporation, unincorporated business, gross
receipts, excise, profits, or income taxes imposed upon Landlord;
192
197
(iii) debt service and financing costs, including,
without limitation, sums paid under Mortgages and related agreements with
respect to secured and unsecured loans (other than (x) financing costs for
capital improvements as provided in Section 26.4(E) hereof, and (y) financing
costs that the Condominium includes in Common Charges);
(iv) rent paid under Superior Leases (other than in the
nature of additional rent consisting of Operating Expenses);
(v) any expense for which (a) Landlord is otherwise
compensated through the proceeds of insurance, (b) Landlord would have been
compensated by insurance had it carried the coverage required hereunder, or (c)
Landlord receives compensation from any other source (other than Operating
Payments or Tax Payments);
(vi) all leasing costs applicable to this Lease,
including, without limitation, leasing and brokerage commissions and similar
fees, and the cost of the Work and legal and other professional services in
connection with the execution and delivery hereof;
(vii) costs incurred in operating any sign or other
similar device designed principally for purposes of promotion to the extent that
Landlord leases or licenses to a third party such sign or device, or the portion
of the Building where such sign or device is installed;
(viii) advertising, entertainment and promotional
costs for the Building or the Premises;
(ix) costs incurred with respect to a sale or transfer
of all or any portion of the Building or the Premises or any direct or indirect
interest therein;
(x) legal fees, expenses and disbursements in each case
incurred in connection with leasing, sales, financing or refinancing or disputes
with Tenant;
(xi) the cost of any judgment, settlement, or
arbitration award resulting from any liability of Landlord (other than a
liability for amounts otherwise includible in Operating Expenses hereunder) and
all expenses incurred in connection therewith;
(xii) amounts payable by Landlord for withdrawal
liability to a multi-employer pension plan (under Title IV of the Employee
Retirement Income Security Act of 1974, as amended) due to a complete or partial
withdrawal that occurs during the Term due to events within the control of
Landlord (by way of example and not limitation, the sale of Landlord's interest
in the Premises);
(xiii) any interest, fine, penalty or other late
charges payable by Landlord incurred as a result of late payments, except to the
extent the same was incurred with respect to a payment, part or all of which was
the responsibility of Tenant hereunder and with respect to which Tenant did not
make in a timely fashion or did not make at all;
193
198
(xiv) costs incurred by Landlord which result from
Landlord's breach of this Lease or Landlord's negligence or wilful misconduct;
(xv) management fees for the Premises, which exceed,
with respect to any particular period of one (1) year, the product of (a) Sixty
Cents ($0.60), and (b) the number of square feet of Rentable Area comprising the
Premises (it being understood that (x) Landlord shall have the right to include
such management fee for the Premises in Operating Expenses, regardless of
whether Landlord pays such management fee to a third party, (y) the provisions
of clause (xvi) below shall not apply in respect of such management fee, and (z)
the provisions of this clause (xv) shall not limit the amount of any management
fee that is includible in Common Charges for any manager that the Condominium
Association engages for the Condominium);
(xvi) costs and expenditures payable to (a) any
Affiliate of Landlord, (b) any Person that would constitute an Affiliate of
Landlord if the reference to "fifty percent (50%)" in the definition of the term
"Control" was changed to "twenty percent (20%)"; or (c) any Person who is a
relative by blood or marriage of any of the Persons described in clauses (a) and
(b) above, in each case, in excess of the amount which would be paid in the
absence of such relationship (a Person of the nature described in clauses (a),
(b) or (c) above being referred to herein as a "Landlord Party");
(xvii) costs incurred during the period ending on the
fifteenth (15th) anniversary of the Last Commencement Date to repair or replace
any portion of the Work that was defective at the time of its installation;
(xviii) costs incurred to remedy violations of
Requirements to the extent that (i) such Requirements are in effect on the date
that Landlord performs a Work Component, and (ii) Landlord failed to comply with
such Requirements in connection with Landlord's performance of such Work
Component;
(xix) costs incurred in connection with the acquisition
or sale of air rights, transferable development rights, easements or other real
property interests;
(xx) the cost of repairs or replacements or
restorations by reason of fire or other casualty or condemnation (other than the
Permitted Deductible Amount);
(xxi) costs and expenses incurred by Landlord in
indemnifying the Tenant's Indemnitees, and holding the Tenant Indemnitees
harmless, pursuant to Article 33 hereof;
(xxii) the cost of tools and equipment that Landlord
uses to perform the Work;
(xxiii) salaries of Landlord's personnel, or the
personnel of the property manager for the Premises, in either case above the
grade of building manager;
194
199
(xxiv) subject to Section 26.4(E) hereof, (i)
expenditures that are required to be capitalized under generally accepted
accounting principles, and the depreciation or amortization thereof, and (ii)
Common Charges to the extent deriving from expenditures that are required to be
capitalized under generally accepted accounting principles, and the depreciation
or amortization thereof;
(xxv) the cost of providing any service customarily
provided by a managing agent to the extent that such cost is customarily
included in management fees (such as, for example, bookkeeping and accounting
costs);
(xxvi) costs paid or incurred in connection with the
removal, replacement, enclosure, encapsulation or other treatment of any
hazardous materials in the Building to the extent required by Environmental Laws
that are in effect on the date hereof;
(xxvii) expenses incurred in connection with services
or other benefits of a type that are not provided to Tenant (or are provided at
separate or additional charge) but that are provided to another tenant or
occupant of the Building (or a group of tenants or occupants of the Building)
without separate or additional charge;
(xxviii) the cost of acquiring or replacing any
separate electrical meter that is provided to other tenants or occupants of the
Building (and does not constitute part of the Premises Systems or the Shared
Building Systems);
(xxix) the cost of installing, operating, and
maintaining any specialty facility such as an observatory, broadcasting
facility, luncheon club, athletic or recreational club, childcare facility,
auditorium, cafeteria, dining facility or conference center;
(xxx) the cost of acquiring, leasing, restoring,
removing or replacing (a) sculptures, (b) paintings, and (c) other objects of
art located within or outside of the Building, except (I) for the cost of
routine maintenance of such objects in public areas of the Building, and (II) to
the extent that applicable Requirements require the installation of any such
items in the public portions of the Building;
(xxxi) expenses allocable directly and solely to the
retail, hotel, health club or residential spaces of the Building (including,
without limitation, any basement storage space) (if any such other portions of
the Building exist) (including, without limitation, plate glass insurance) and
to any garage space in the Building;
(xxxii) costs incurred in connection with making
additions to the Usable Area of the Building or in otherwise increasing the
floor area of any of the plazas, mechanical rooms, or other structures
comprising the Building or located on the Land (except to the extent that any
such plazas, mechanical rooms or other structures are required by Requirements
in order to perform the Work (other than Requirements that apply for purposes of
allowing Landlord to increase the Usable Area of the Building) or otherwise
reasonably necessary for the operation of the Building generally (and not
exclusively for the benefit of occupants of the Building other than Tenant));
and
195
200
(xxxiii) the amount of any actual incremental costs
incurred by Landlord in the operation, maintenance, or repair of any Building
System as the result of non-standard installations made by other tenants or
occupants of the Building.
Any insurance proceeds received with respect to any item of Operating Expenses
for which Tenant reimbursed Landlord pursuant to the provisions of this Article
26 shall be promptly remitted by Landlord to Tenant. Operating Expenses shall be
"net" only, and shall be reduced by the amount of any reimbursement, refund or
credit received by Landlord (net of the reasonable out-of-pocket costs and
expenses of obtaining such reimbursement, refund or credit) with respect to any
item of cost that is included in Operating Expenses. If any expenses incurred by
Landlord relate to the Premises and other portions of the Building (and/or other
properties) (including, without limitation, salaries, fringe benefits and other
compensation of Landlord's personnel who, in each case, provide services to the
Premises and the other portions of the Building (and/or other properties)), then
such expenses shall be allocated equitably among the Premises and such other
portions of the Building (and/or such other properties), and, accordingly, only
such portion of such expenses that are properly allocable to the Premises shall
be included in Operating Expenses for purposes hereof.
(K) "Operating Payment" shall mean, with respect to any
Operating Period, an amount equal to the Operating Expenses for such Operating
Period.
(L) "Operating Period" shall mean a period of no less than
thirty (30) days and of no more than one (1) year with respect to which all or a
part thereof occurs within the Term.
(M) "Operating Statement" shall mean a statement, prepared
by a certified public accountant in accordance with generally accepted
accounting principles (and verified as correct in a certificate signed by
Landlord or a duly authorized representative of Landlord ), in reasonable
detail, setting forth the Operating Expenses for an Operating Period.
(N) "Section 421-a Costs" shall mean (I) all costs and
expenses incurred by Landlord in connection with obtaining benefits for the
Building under Section 421-a of the Real Property Tax Law, including, without
limitation, (i) the purchase price paid by Landlord for certificates that permit
Landlord to use such benefits for the Building, (ii) the fees and charges that
Landlord pays to the applicable Governmental Authority to have such benefits
apply to portions of the Building that do not constitute a Multiple Dwelling (as
such term is defined in Section 421-a(1)(c) of the Real Property Tax Law), and
(iii) the reasonable legal fees and disbursements that Landlord incurs in
obtaining such benefits (with the understanding that the costs and expenses
described in this clause (I) shall not include such legal fees and disbursements
that Landlord incurred prior to the date hereof), and (II) interest calculated
at the Base Rate on the amounts described in clause (I) above for the period
from the date that Landlord paid such amounts to the Section 421-a Start Date.
(O) "Section 421-a Start Date" shall mean the first date
that Landlord uses the benefits afforded by Section 421-a of the Real Property
Tax Law to reduce the Taxes for the Building.
196
201
(P) "Section 421-a Tax Benefits" shall mean the tax
exemption benefits allocable to the Premises under Section 421-a of the Real
Property Tax Law that derive from the construction of a portion of the Building
as a Multiple Dwelling (as such term is defined in Section 421-a(1)(c) of the
Real Property Tax Law).
(Q) "Section 421-a Tax Factor" shall mean, with respect to
any particular Tax Year beginning with the First Tenant Tax Year, an amount
equal to the product obtained by multiplying (x) the Assessed Valuation for the
Premises for such Tax Year, by (y) the Taxation Rate that is in effect for such
Tax Year; provided, however, that (X) for any Tax Year during the Combined Tax
Lot Period, the Section 421-a Tax Factor shall be an amount equal to the product
obtained by multiplying (i) the Assessed Valuation for the Combined Tax Lot for
such Tax Year, by (ii) the Taxation Rate that is in effect for such Tax Year, by
(iii) a fraction, the numerator of which is the Usable Area of the Premises, and
the denominator of which is the Usable Area of the Combined Tax Lot, and (Y) if
(x) the Section 421-a Tax Factor for any Tax Year is determined as provided in
clause (X) above, and (y) the Combined Tax Lot Area is subsequently separately
assessed as a Tax Lot or Tax Lots for purposes of Taxes, then the Section 421-a
Tax Factor for the Combined Tax Lot Period shall be recalculated as the product
obtained by multiplying (i) the Assessed Valuation for the Combined Tax Lot, by
(ii) the Taxation Rate that is in effect for the applicable Tax Year, by (iii) a
fraction, the numerator of which is the Assessed Valuation for the Combined Tax
Lot Area for the Tax Year that the Combined Tax Lot Area is so separately
assessed, and the denominator of which is the sum of (I) the Assessed Valuation
for the Combined Tax Lot Area for such Tax Year, and (II) the Assessed Valuation
for such Tax Year for the portion of the Combined Tax Lot that does not
constitute the Combined Tax Lot Area.
(R) "Taxation Rate" shall mean, with respect to any
particular Tax Year, the annual tax rate announced publicly by the applicable
Governmental Authority for purposes of determining Taxes for the Premises.
(S) "Taxes" shall mean, subject to the terms of this Section
26.1(S), the aggregate amount of real estate taxes and any general or special
assessments (exclusive of penalties and interest thereon, except to the extent
the same derive from Tenant's failure to make a Tax Payment when due hereunder)
imposed upon a Tax Lot (including, without limitation, (i) any fee, tax or
charge imposed by any Governmental Authority for any vaults or vault space
relating to the Building, whether within or outside the boundaries of the Tax
Lot, (ii) any taxes or assessments levied after the date of this Lease in whole
or in part for public benefits to the Tax Lot, including, without limitation,
any business improvement district taxes and assessments, and (iii) rent paid
under Superior Leases to the extent attributable to and in lieu of amounts that
would otherwise constitute Taxes hereunder); provided, however, that if because
of any change in the taxation of real estate, any other tax or assessment,
however denominated (including, without limitation, any franchise, income,
profit, sales, use, occupancy, gross receipts or rental tax) is imposed upon the
owner of the Tax Lot, or the occupancy, rents or income therefrom, in
substitution for any of the foregoing Taxes, such other tax or assessment to the
extent substituted shall be deemed part of Taxes. Taxes shall not be deemed to
include (s) any taxes or assessments that are separately assessed for any sign
or billboard installed in the Tax Lot, to the extent that
197
202
Landlord leases such sign or billboard (or the space used thereby) to a third
party, (t) any capital gains or mortgage recording taxes, (u) any occupancy
taxes which are or may be required to be paid by Landlord by reason of
Landlord's tenancy in the Building, (v) any taxes on the income of Landlord, or
any Mortgagee or Lessor, (w) transfer taxes, (x) corporation, unincorporated
business, or franchise taxes, (y) estate, gift, succession or inheritance taxes,
or (z) any similar taxes imposed on Landlord by a Mortgagee or a Lessor, unless
in each case such taxes are levied, assessed or imposed in lieu of or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions which now constitute Taxes but only to the extent substituted. Taxes
also shall not include any penalties or interest that derive from Landlord's
failure to pay Taxes to the applicable Governmental Authority on a timely basis,
except to the extent Landlord incurred such penalties or interest because Tenant
failed to make a Tax Payment hereunder when due. Taxes shall be calculated
without taking into account any Section 421-a Tax Benefits.
(T) "Tax Statement" shall mean a statement in reasonable
detail setting forth the Taxes for a Tax Year and the calculation of the Tax
Payment, together with copies of the relevant tax bills for the relevant period,
unless Landlord previously provided Tenant with copies of such tax bills (it
being understood that if the applicable Governmental Authority has not provided
Landlord with any set tax xxxx, then (x) Landlord shall not be required to
include such tax xxxx with the Tax Statement, and (y) Landlord shall thereafter
provide Tenant with a copy of such tax xxxx promptly after Landlord's receipt
thereof).
(U) "Tax Year" shall mean the period July 1 through June 30
(or such other period as hereinafter may be duly adopted by the Governmental
Authority then imposing Taxes as its fiscal year for real estate tax purposes),
any portion of which occurs during the Term.
(V) "Tenant Protest Period" shall mean the period beginning
on the date that the Initial Premises are assessed as a separate Tax Lot (or
separate Tax Lots), and ending on the date that is five (5) years prior to the
Fixed Expiration Date; provided, however, that if Tenant exercises the Renewal
Option with respect to the entire Basic Premises, then the Tenant Protest Period
shall also extend from the Firm Renewal Date and end on the date that is five
(5) years prior to the expiration of the Renewal Term.
(W) "Threshold Amount" shall mean the product obtained by
multiplying (x) Thirteen and 25/100 Dollars ($13.25), by (y) the number of
square feet of Rentable Area in the Premises; provided, however, that (i) the
Threshold Amount shall increase for each Tax Year following the First Tenant Tax
Year by the percentage increase in the Assessed Valuation for the Initial
Premises from the Tax Year immediately preceding such Tax Year to such Tax Year
(except that such percentage increase shall not exceed the Average Comparable
Property Increase Rate for such Tax Year), (ii) the Threshold Amount shall also
increase for each Tax Year by an amount equal to the Threshold Credit for all
prior Tax Years during the Term (to the extent that the Threshold Credit for
prior Tax Years has not been used previously to increase the Threshold Amount),
and (iii) the Threshold Amount shall decrease for each Tax Year by an amount
equal to the Threshold Debit for all prior Tax Years during the Term (to the
extent that the Threshold Debit for prior Tax Years has not been used previously
to decrease the Threshold Amount).
198
203
(X) "Threshold Credit" shall mean, with respect to any
particular Tax Year, the excess, if any, of (i) the Threshold Amount for such
Tax Year, over (ii) the Section 421-a Tax Factor for such Tax Year.
(Y) "Threshold Debit" shall mean, with respect to any
particular Tax Year, the excess, if any, of (i) the Available Reduction Amount
for such Tax Year, over (ii) the Section 421-a Tax Benefits that are available
to reduce the Tax Payment otherwise due hereunder for such Tax Year.
Section 26.2 (A) Subject to the terms of this Section 26.2, Tenant shall
pay to Landlord an amount equal to the Taxes that are allocable to the Premises
with respect to the period during the Term occurring from and after the First
Commencement Date (such amount payable by Tenant to Landlord on account of Taxes
that are allocable to the Premises being referred to herein as the "Tax
Payment"); provided, however, that the Tax Payment for each Deliverable Unit
shall be reduced by fifty percent (50%) in respect of Taxes that accrue during
the period commencing on the Commencement Date therefor and ending on the day
immediately preceding the Rent Commencement Date therefor. If the Commencement
Date for a Deliverable Unit occurs on a day that is not the first day of a Tax
Year, or the Expiration Date occurs on a day that is not the last day of a Tax
Year, then the Tax Payment for any such Tax Year shall be adjusted appropriately
so that Tenant only pays the Tax Payment in respect of Taxes that accrue during
the Term (based on the number of days in each Tax Year that occur during the
Term). Tenant shall pay to Landlord, in two (2) equal installments, in advance,
on or before December 15th and June 15th of each year, the Tax Payment shown on
the Tax Statement delivered by Landlord. Tenant shall have the right, with
respect to each Tax Year from and after the Tax Year for which the Initial
Premises are separately assessed as a Tax Lot or Tax Lots, to pay the Tax
Payment directly to the applicable Governmental Authority (in lieu of the
aforesaid payment of the Tax Payment to Landlord), in the two (2) equal
installments required by such Governmental Authority, not later than the
fifteenth (15th) day before the date that the Actual Tax Amount is due;
provided, however, that if the Tax Payment exceeds the Actual Tax Amount, then
Tenant shall pay (x) such Actual Tax Amount to the applicable Governmental
Authority on or prior to the fifteenth (15th) day before the date that the
applicable installment of the Actual Tax Amount is due to such Governmental
Authority, and (y) such excess to Landlord within thirty (30) days thereafter.
If Tenant makes the aforesaid payment of the Actual Tax Amount directly to such
Governmental Authority, then Tenant shall give Landlord notice thereof not later
than three (3) Business Days after Tenant makes such payment (including
reasonable evidence of Tenant's payment thereof).
(B) If the Premises, or a portion thereof, constitutes a
separate Tax Lot, then the Tax Payment therefor shall be an amount equal to the
Taxes assessed against such Tax Lot with respect to the Tax Year from and after
the Tax Year in respect of which such separate assessment is made. If the
Premises, or a portion thereof, does not constitute a separate Tax Lot, then,
subject to the terms of this Section 26.2(B), the Tax Payment therefor shall be
an amount equal to the product obtained by multiplying (x) the Taxes assessed
against such Tax Lot, by (y) a fraction, the numerator of which is the Usable
Area of the Premises, or the portion thereof, that comprises part of such Tax
Lot, and the denominator of which is the Usable Area of
199
204
the portion of the Building included in such Tax Lot (such Tax Lot that
comprises the Premises (or portions thereof) and other portions of the Building
being referred to herein as a "Combined Tax Lot"; the Premises, or the portion
thereof, that constitutes part of the Combined Tax Lot being referred to herein
as the "Combined Tax Lot Area"; and the portion of the Term in respect of which
the Combined Tax Lot Area constitutes part of a Combined Tax Lot being referred
to herein as the "Combined Tax Lot Period"). Landlord shall pay the Taxes for
the portion of the Combined Tax Lot that does not constitute the Combined Tax
Lot Area with respect to the Combined Tax Lot Period. If (i) the Tax Payment for
any Tax Year is determined in whole or in part as aforesaid because the Combined
Tax Lot Area constitutes part of a Combined Tax Lot, and (ii) the Combined Tax
Lot Area is subsequently separately assessed as a Tax Lot or Tax Lots for
purposes of Taxes, then the Tax Payment for the Combined Tax Lot Area in respect
of the Combined Tax Lot Period shall be recalculated as the product obtained by
multiplying (x) the Taxes for the Combined Tax Lot for the Combined Tax Lot
Period, by (y) a fraction, the numerator of which is the Assessed Valuation for
the Combined Tax Lot Area for the Tax Year that the Combined Tax Lot Area is so
separately assessed, and the denominator of which is the sum of (x) the Assessed
Valuation for the Combined Tax Lot Area for such Tax Year, and (y) the Assessed
Valuation for such Tax Year for the portion of the Combined Tax Lot that does
not constitute the Combined Tax Lot Area. If the Tax Payments made by Tenant for
the Combined Tax Lot Area during the Combined Tax Lot Period exceed the Tax
Payments therefor as so recalculated, then Landlord shall pay such excess to
Tenant within thirty (30) days after Tenant's request therefor, together with
interest thereon at the Base Rate for the period commencing on the date that
Tenant makes any such overpayment and ending on the date that Landlord makes
such payment. If the Tax Payments as so recalculated exceed the Tax Payments
made by Tenant for the Combined Tax Lot Area during the Combined Tax Lot Period,
then Tenant shall pay such excess to Landlord within thirty (30) days after
Landlord's request therefor, together with interest thereon at the Base Rate for
the period commencing on the date that such deficiency would have first become
due if the recalculated Tax Payment had applied initially and ending on the date
that Tenant makes such payment.
(C) Tenant shall be obliged to pay the Tax Payment
regardless of whether Tenant is exempt, in whole or part, from the payment of
any Taxes by reason of Tenant's diplomatic status or for any other reason
whatsoever, except to the extent Taxes are reduced by reason of Tenant's being
exempt from the payment of Taxes.
(D) The Tax Payment shall be computed initially on the basis
of the Assessed Valuation in effect at the time the Tax Statement is rendered
(as the Taxes may have been settled or finally adjudicated prior to such time)
regardless of any then pending application, proceeding or appeal respecting the
reduction of any such Assessed Valuation, but shall be subject to subsequent
adjustment as provided in Section 26.3 hereof.
(E) If the Actual Tax Amount is required to be paid on any
other date or dates than as presently required by the Governmental Authority
imposing the same, then Tenant's due date for payment of the installments of the
Tax Payment shall be correspondingly accelerated or revised so that such Tax
Payment (or the two (2) installments thereof) are due at least fifteen (15) days
prior to the date the corresponding payment is due to the Governmental
200
205
Authority. If the Tax Year established by the applicable Governmental Authority
is changed, then any Taxes for the Tax Year prior to such change which are
included within the new Tax Year and which were the subject of a prior Tax
Statement shall be equitably apportioned for the purpose of calculating the Tax
Payment payable by Tenant with respect to such new Tax Year. If applicable
Requirements permit payments of the Actual Tax Amount to be made in more than
two (2) installments without penalty, interest or premium, then Tenant shall be
entitled to make Tax Payments in such number of installments, provided that each
such installment shall be paid to Landlord (or the Governmental Authority
collecting the Actual Tax Amount, to the extent that Tenant has the right to pay
the Actual Tax Amount to such Governmental Authority under this Section 26.2) at
least fifteen (15) days prior to the date that the applicable payment is due to
such Governmental Authority (it being understood that if the Term expires or
earlier terminates prior to the date that all such installments have been paid,
then Tenant shall pay such unpaid installments on or prior to the tenth (10th)
day after the last day of the Term). If (i) applicable Requirements permit
payments of the Actual Tax Amount to be made in more than two (2) installments
with interest or other premium, (ii) the payment of such Actual Tax Amount in
such installments does not subject the Building or the Premises to a lien that
arises by reason of the non-payment of the Actual Tax Amount when due, (iii) the
payment of such Actual Tax Amount in such installments does not result in the
Building or the Premises as being listed in the public records as being in
default or delinquent in the payment of Taxes, (iv) the payment of such Actual
Tax Amount does not result in Landlord being in default under any Mortgage in
respect of which the Mortgagee is not an Affiliate of Landlord, or under any
Superior Lease in respect of which the Lessor is not an Affiliate of Landlord,
and (v) Tenant satisfies the Credit Requirement, then Tenant shall be entitled
to make Tax Payments in such number of installments, with the appropriate
interest or premium, to Landlord (or to the Governmental Authority collecting
the Actual Tax Amount, to the extent that Tenant has the right to pay the Actual
Tax Amount to such Governmental Authority under this Section 26.2), at least
fifteen (15) days prior to the date that the applicable payment is due to such
Governmental Authority; provided, however, that if the Term expires or earlier
terminates, or any of the conditions described in clauses (i) through (v) of
this Section 26.2(E) are not satisfied, in either case at any time prior to the
date that all such installments have been paid, then Tenant shall pay such
unpaid installments to Landlord or the applicable Governmental Authority (as the
case may be) on or prior to the tenth (10th) day after the last day of the Term,
or the tenth (10th) day after any of such conditions are not satisfied, as the
case may be.
(F) Landlord's failure to render a Tax Statement during or
with respect to any Tax Year shall not prejudice Landlord's right to render a
Tax Statement during or with respect to any subsequent Tax Year, and shall not
eliminate or reduce Tenant's obligation to pay the Tax Payment for such Tax
Year.
(G) (1) Subject to the terms of this Section 26.2(G), Tenant
shall have the right to use the Section 421-a Tax Benefits to reduce the Tax
Payment otherwise due hereunder for a Tax Year by an amount that is not greater
than the excess, if any, of (i) the Section 421-a Tax Factor for such Tax Year,
over (ii) the Threshold Amount for such Tax Year (the excess of the amount
described in clause (i) above over the amount described in clause (ii) above
being referred to herein as the "Available Reduction Amount"). Tenant shall have
the
201
206
right to make the election described in this Section 26.2(G) (a "Section 421-a
Election") only by giving notice thereof to Landlord on or prior to the first
(1st) day of the Tax Year for which Tenant intends to use the Section 421-a Tax
Benefits (the aforesaid reduction in the Tax Payment for a particular Tax Year
by reason of Tenant's making the Section 421-a Election being referred to herein
as the "Section 421-a Reduction"). If Tenant makes a Section 421-a Election for
a Tax Year, then the Tax Payment in respect of such Tax Year shall be reduced by
an amount equal to the Section 421-a Reduction. The parties acknowledge that an
illustration of the calculation of the Section 421-a Reduction is attached
hereto as Exhibit 26.2 and made a part hereof. If the Section 421-a Tax Factor
is recalculated with respect to the Combined Tax Lot Period, then Tenant shall
have the right to use any additional Section 421-a Reduction that derives
therefrom by giving notice thereof to Landlord not later than the thirtieth
(30th) day after the date that Landlord gives Tenant notice of such
recalculation.
(2) Subject to the terms of this Section 26.2(G), if
Tenant makes a Section 421-a Election, then Tenant shall pay to Landlord an
amount (the "Section 421-a Payment Amount") equal to the product obtained by
multiplying (I) the Section 421-a Annual Amortization Amount, by (II) a
fraction, the numerator of which is the Section 421-a Tax Benefits for such Tax
Year to the extent Tenant uses the Section 421-a Tax Benefits to realize a
Section 421-a Reduction, and the denominator of which is the total amount of tax
exemption benefits applicable to the Building for such Tax Year under Section
421-a of the Real Property Tax Law. Tenant shall pay the Section 421-a Payment
Amount to Landlord within thirty (30) days after Landlord's request therefor.
Landlord shall provide to Tenant a statement in reasonable detail describing the
Section 421-a Costs and Landlord's calculation of the Section 421-a Payment
Amount promptly after Tenant's request therefor.
(3) As used herein, the term "Section 421-a Annual
Amortization Amount" shall mean the amount that amortizes the Section 421-a
Costs in equal annual installments, with interest thereon calculated at the Base
Rate, over the period commencing on the Section 421-a Start Date and ending on
the date that the benefits afforded to the Building by Section 421-a of the Real
Property Tax Law expire.
(4) Landlord shall use Landlord's diligent efforts to
obtain for the Building the benefits afforded by Section 421-a of the Real
Property Tax Law (to the extent that (i) a portion of the Building includes a
Multiple Dwelling, and (ii) such benefits are available to the Building under
applicable Requirements).
(5) Either party shall have the right to submit to an
Expedited Arbitration Proceeding a dispute between the parties regarding a
Section 421-a Election made by Tenant.
(H) If (x) Landlord leases a sign or billboard on the
Building to a third party, and (y) Tenant has a reasonable basis for concluding
that the Assessed Valuation for the Premises is higher than such Assessed
Valuation would otherwise be by reason of Landlord's so leasing a sign or
billboard on the Building to a third party, then Landlord shall cooperate
reasonably with Tenant in connection with Tenant's making a petition to the
appropriate Governmental Authority to make a separate assessment for such sign
or billboard (in which case
202
207
the Taxes for such sign or billboard shall be excluded from Taxes allocable to
the Premises as provided in Section 26.1(S) hereof).
Section 26.3 (A) Subject to the terms of this Section 26.3, (i) Tenant
(but not Landlord) shall be eligible to institute a tax reduction or other
proceedings to reduce the Assessed Valuation for the Premises with respect to
any Tax Year which occurs in its entirety during the Tenant Protest Period, (ii)
Landlord (but not Tenant) shall be eligible to institute such proceedings to
reduce the Assessed Valuation for the Premises with respect to any Tax Year
which occurs (in part or in its entirety) during the Joint Protest Period, and
(iii) Landlord (but not Tenant) shall be eligible to institute such proceedings
to reduce the Assessed Valuation for the Premises with respect to any Tax Year
which occurs in its entirety during the Landlord Protest Period.
(B) Subject to the terms of this Section 26.3(B), either
party hereto (the "Requesting Party") shall have the right from time to time to
request (a "Tax Protest Request") that the other party (the "Responding Party")
indicate whether the Responding Party intends to file a notice of protest with
respect to a particular Tax Year (to the extent that the Responding Party is
eligible to institute a proceeding to reduce the Assessed Valuation pursuant to
Section 26.3(A) hereof). The Requesting Party shall not have the right to give a
Tax Protest Request earlier than the sixtieth (60th) day before, or later than
the twentieth (20th) day before, the last day that a notice of protest may be
filed for such Tax Year under applicable Requirements. If the Requesting Party
gives a Tax Protest Request to the Responding Party, then the Responding Party
shall give to the Requesting Party making such Tax Protest Request, not later
than the tenth (10th) day before the last day on which a notice of protest may
be filed under applicable Requirements, a notice indicating whether the
Responding Party intends to file a notice of protest for the applicable Tax
Year. If the Responding Party so indicates that the Responding Party intends to
file such notice of protest, then the Responding Party shall do so in accordance
with applicable Requirements. If (i) the Responding Party so indicates that the
Responding Party does not intend to file such notice of protest, or (ii) the
Responding Party fails to respond to the Tax Protest Request on or prior to the
tenth (10th) day before the last day on which a notice of protest may be filed,
as aforesaid, then the Requesting Party may (x) file a notice of protest for the
applicable Tax Year in accordance with applicable Requirements, and (y)
institute and prosecute a tax certiorari proceeding for the applicable Tax Year.
If (i) a Requesting Party gives a Tax Protest Request to the Responding Party as
contemplated by this Section 26.3(B), (ii) the Responding Party indicates in
response to the Tax Protest Request that the Responding Party intends to file a
notice of protest, and (iii) the Responding Party subsequently elects not to
file a tax certiorari proceeding for the applicable Tax Year, then (A) the
Responding Party shall give the Requesting Party notice thereof not later than
the twentieth (20th) day before the last day on which such tax certiorari
proceeding may be instituted under applicable Requirements, and (B) the
Requesting Party shall have the right to prosecute a tax certiorari proceeding
for the applicable Tax Year (except to the extent that the Responding Party has
settled such tax protest or such tax certiorari proceeding as contemplated by
Section 26.3(C) hereof).
203
208
(C) Subject to the terms of this Section 26.3(C), each of
Landlord and Tenant may settle any tax protest or tax certiorari proceeding with
respect to a Tax Year that occurs entirely within the Landlord Protest Period or
the Tenant Protest Period, as the case may be, to the extent that Landlord or
Tenant instituted such tax protest or such tax certiorari proceeding (the party
proposing any such settlement being referred to herein as the "Settling Party").
The Settling Party shall not have the right to consummate any such settlement
unless the Settling Party gives the other party at least fifteen (15) days of
advance notice thereof. Tenant shall not settle any tax protest or tax
certiorari proceeding to the extent that any such settlement increases the Taxes
for the Premises for the period from and after the Expiration Date, without
Landlord's prior consent. If (i) Tenant files a tax protest or institutes a tax
certiorari proceeding with respect to a Tax Year within the Landlord Protest
Period, (ii) Landlord files a tax protest or institutes a tax certiorari
proceeding with respect to a Tax Year within the Tenant Protest Period, or (iii)
Landlord or Tenant files a tax protest or institutes a tax certiorari proceeding
with respect to a Tax Year within the Joint Protest Period, in each case
pursuant to the terms of this Section 26.3, then such party shall not settle
such tax protest or such tax certiorari proceeding without the prior consent of
the other party, which consent may not be unreasonably withheld, delayed or
conditioned. Landlord may institute and settle, without any notice to or consent
from Tenant, a tax protest or a tax certiorari proceeding in respect of any Tax
Year which occurs in its entirety or in part prior to the first Joint Protest
Period that occurs, or after the Landlord Protest Period, provided that in
either case the results of such proceeding or such settlement do not increase
the Taxes for the Premises during the Term. If the Joint Protest Period that
occurs before the Tenant Protest Period extends for a period of more than one
(1) year, then Tenant shall have the right to appear with Landlord at any tax
certiorari proceeding brought by Landlord in the remainder of such Joint Protest
Period (with the understanding that Landlord retains the right to prosecute and
settle such proceeding, subject, however, to the terms of this Section 26.3(C)).
(D) If, after a Tax Statement has been sent to Tenant, an
Assessed Valuation for the Premises which had been used in computing the Taxes
for a Tax Year is reduced (as a result of settlement, final determination of
legal proceedings or otherwise), and as a result thereof a refund of Taxes is
actually received by, or credited to, or on behalf of, Landlord, then, promptly
after receipt or credit of such refund, Landlord shall send Tenant a Tax
Statement adjusting the Taxes for such Tax Year and setting forth, based on such
adjustment, the refund to which Tenant is entitled, which refund shall be paid
promptly by Landlord to Tenant; provided, however, that (x) such refund shall be
limited to the portion of the Taxes, if any, which Tenant had theretofore paid
to Landlord attributable to Taxes for the Tax Year to which the refund is
applicable on the basis of the Assessed Valuation before it had been reduced,
and (y) the amount paid by Tenant on account of Taxes for such Tax Year (after
taking into account such refund) shall not be less than the Taxes that Tenant
would have paid hereunder if the Assessed Valuation used in computing Taxes for
such Tax Year had reflected initially the aforesaid reduction thereof that
yielded such refund. Landlord's obligations with respect to any refund payable
to Tenant hereunder shall survive the expiration or earlier termination of the
Lease.
(E) If (i) Tenant makes a Section 421-a Election in respect
of a particular Tax Year, (ii) the Assessed Valuation for the Premises that the
parties used for such Tax Year to calculate the Tax Payment is subsequently
reduced, and (iii) the Section 421-a
204
209
Reduction that Tenant used initially for such Tax Year exceeds the Section 421-a
Reduction that Tenant would have had the right to use initially if the Assessed
Valuation for such Tax Year was the Assessed Valuation, as so subsequently
reduced, then (x) the parties shall recalculate the Section 421-a Reduction and
the Section 421-a Payment Amount due from Tenant to Landlord for such Tax Year,
and (y) the parties shall make an appropriate adjustment for any overpayment of
the Section 421-a Payment Amount theretofore made by Tenant to Landlord for such
Tax Year. If the Section 421-a Tax Benefits for a particular Tax Year are
increased or granted subsequent to such Tax Year by remission or otherwise, then
Tenant shall have the right to use such Section 421-a Tax Benefits as
contemplated by Section 26.2(G) hereof as if such Section 421-a Tax Benefits had
been available initially during such particular Tax Year.
(F) If (x) the last day of the Combined Tax Lot Period
occurs after the date that a party has the right to institute a tax certiorari
proceeding for the Tax Year during which the Tax Lot or Tax Lots comprising the
Premises are separately assessed, and (y) Landlord has theretofore instituted a
tax certiorari proceeding in respect of such Tax Year, then Landlord shall
assign to Tenant the right to continue to prosecute such tax certiorari
proceeding within ten (10) days after Tenant's request therefor.
Section 26.4 (A) Landlord may render to Tenant at any time from and after
the First Commencement Date an Operating Statement for an Operating Period.
Landlord's failure to render an Operating Statement to Tenant during or with
respect to any Operating Period shall not prejudice Landlord's right to render
an Operating Statement during or with respect to any other Operating Period, and
shall not limit or impair Tenant's obligation to pay the Operating Payment for
any Operating Period, except that if Landlord renders an Operating Statement to
Tenant with respect to any Operating Period more than (1) year after the last
day thereof, then Tenant shall not be obligated to make an Operating Payment in
respect of such Operating Period.
(B) No later than thirty (30) days after the date on which
Landlord delivers to Tenant an Operating Statement, Tenant shall pay to Landlord
the Operating Payment shown thereon to be due for the Operating Period covered
thereby. If an Operating Statement covers an Operating Period with respect to
which a portion thereof occurs before the Term or after the Term, then the
Operating Payment shall be adjusted appropriately so that Tenant pays as the
Operating Payment only the Operating Expenses that are properly attributable to
the Term.
(C) (1) Subject to the terms of this Section 26.4(C),
Landlord shall have the right, from time to time, to give an Operating Statement
to Tenant, on a prospective basis, for an Operating Period of no more than one
(1) year, based on Landlord's reasonable good faith estimate of Operating
Expenses for such Operating Period. In no event may any such estimate of
Operating Expenses exceed, by more than eight percent (8%), the actual Operating
Expenses for the immediately preceding Operating Period (of the same duration as
the Operating Period for which Landlord renders such estimate), if any;
provided, however, that such estimate may exceed such actual Operating Expenses
by more than eight percent (8%) to the extent Landlord has included in such
estimate a bona fide liquidated payment (constituting an Operating Expense)
which Landlord expects to make during the Operating Period covered thereby (any
such Operating Statement that Landlord gives to Tenant on a prospective basis as
contemplated by this Section 26.4(C) being referred to herein as a "Prospective
Operating
205
210
Statement"). If Landlord gives to Tenant a Prospective Operating Statement, then
Tenant shall pay to Landlord, on a monthly basis, as additional rent, on account
of the Operating Payment due hereunder for such Operating Period, an amount
equal to Landlord's reasonable good faith estimate of monthly Operating Expenses
as shown on such Prospective Operating Statement. Tenant shall make such monthly
payments to Landlord for the period, and in the amounts, as reflected on the
applicable Prospective Operating Statement. Landlord shall also have the right
to give to Tenant from time to time a Prospective Operating Statement for a
particular Operating Expense or particular Operating Expenses that Landlord is
required to pay within the next sixty (60) days. Tenant shall pay to Landlord
the amount stated in any such Prospective Operating Statement on or prior to the
thirtieth (30th) day after the date that Landlord gives such Prospective
Operating Statement to Tenant.
(2) If Landlord gives to Tenant a Prospective
Operating Statement, then Landlord shall also provide to Tenant, within one
hundred eighty (180) days after the last day of the Operating Period covered by
such Prospective Operating Statement, an Operating Statement for such Operating
Period. If the aggregate amount of the Operating Payment as reflected on such
Operating Statement exceeds the aggregate amount of the aforesaid monthly
installments that Tenant pays to Landlord pursuant to the Prospective Operating
Statement, then Tenant shall pay to Landlord the amount of such excess not later
than the thirtieth (30th) day after the date that Landlord gives such Operating
Statement to Tenant. If the aggregate amount of the aforesaid monthly
installments that Tenant pays to Landlord pursuant to the Prospective Operating
Statement exceeds the aggregate amount of the Operating Payment as reflected on
such Operating Statement, then Landlord shall pay promptly to Tenant the amount
of such excess. If the aggregate amount of the aforesaid monthly installments
that Tenant pays to Landlord pursuant to the Prospective Operating Statement
exceeds the aggregate amount of the Operating Payment as reflected on such
Operating Statement by an amount greater than ten percent (10%) of the amount of
such Operating Payment, then Landlord shall also pay to Tenant an amount equal
to interest computed at the Applicable Rate on the amount of such excess from
the date that the aggregate amount of the monthly payments made by Tenant to
Landlord pursuant to the Prospective Operating Statement first exceeded such
Operating Payment until the date that Landlord pays such excess to Tenant.
Landlord's obligations with respect to any refund payable to Tenant under this
Section 26.4(C)(2) shall survive the expiration or earlier termination of this
Lease.
(D) Subject to the terms of this Section 26.4(D), any
Operating Statement sent to Tenant shall be conclusively binding upon Tenant
unless, within one (1) year after such Operating Statement is sent, Tenant gives
a notice to Landlord objecting to such Operating Statement and specifying the
respects in which such Operating Statement is disputed. Landlord shall disclose
to Tenant, in connection with Tenant's review of each Operating Statement,
whether any Person to which Landlord has paid amounts that Landlord has included
in Operating Expenses constitutes a Landlord Party. If Tenant gives such notice
to Landlord, then Tenant (together with its reputable legal counsel, consultants
and/or independent public accountants) may promptly examine Landlord's books and
records relating to such Operating Statement to determine the accuracy thereof.
Tenant recognizes the confidential nature of such books and records and shall
deliver to Landlord a confidentiality statement signed by an officer
206
211
of Tenant (and a partner, principal or officer of Tenant's legal counsel,
consultants and/or certified public accountants to which such books and records
have been delivered) wherein Tenant and its legal counsel, consultants and/or
certified public accountants agree to maintain the information obtained from
such examination in strict confidence, except that Tenant and such legal
counsel, consultants and/or certified public accountants may reveal such
documentation to their agents, representatives and employees who are actively
involved in such investigation during the course of its review, or to an
arbitrator (provided that such agents and representatives and, if permitted, any
such arbitrator, shall at such time deliver to Landlord a confidentiality
statement signed by an officer, partner or principal authorized to bind such
party) or to a court of competent jurisdiction in the event of a dispute
relating to the subject matter contained in whole or in part in such records or
as otherwise may be required by any Requirement. If, after such examination,
Tenant still disputes such Operating Statement, then either party may elect to
have the decision of the issues determined by an Expedited Arbitration
Proceeding (it being understood that the arbitrator in such matter shall be a
qualified, disinterested and impartial person (x) who is, and has been for the
last ten (10) years, a partner in a reputable accounting firm that is regularly
engaged in and familiar with the accounting concepts applicable to the
computation of operating expenses for office buildings that conform with the
Building Standard, and (y) who has not been employed by either party during the
previous three (3) years). If such decision shows that Tenant has overpaid with
respect to such Operating Statement by more than three percent (3%), then
Landlord shall also reimburse Tenant for the reasonable out-of-pocket costs of
Tenant's audit of Landlord's books and records (provided, however, that
notwithstanding Tenant's fee arrangements with its auditor, Landlord shall only
reimburse Tenant for the actual hours of service provided by such auditor at the
then reasonable and customary hourly rate for such services) within thirty (30)
days after demand therefor. If such decision shows that Tenant overpaid with
respect to any particular item of Operating Expenses by more than five percent
(5%), then Tenant may examine Landlord's books and records covering the
Operating Periods three (3) years prior to such decision, but only in respect of
such particular item and only to the extent that Tenant has not theretofore
examined Landlord's books and records in respect of such Operating Periods. Any
examination of Landlord's books and records pursuant to the immediately
preceding sentence (and any dispute arising out of such inspection) shall be
made (and resolved) in accordance with the terms of this Section 26.4(D).
Notwithstanding the giving of such notice by Tenant, and pending the resolution
of any such dispute, Tenant shall pay to Landlord when due all undisputed
amounts shown on any such Operating Statement. Nothing contained in this Section
26.4(D) shall constitute an extension of the date by which Tenant is required to
pay Escalation Rent to Landlord hereunder.
(E) (1) Subject to Section 26.4(E)(4) hereof, if any capital
improvement is made during any Operating Period in order to comply with a
Requirement that is enacted or first made applicable to the Premises after the
Commencement Date for the applicable Deliverable Unit, then the cost of such
capital improvement shall be included in Operating Expenses for the Operating
Period in which such improvement was made; provided, however, that to the extent
the cost of such capital improvement is required to be capitalized under
generally accepted accounting principles, such cost together with interest
thereon at the then Base Rate shall be amortized on a straight-line basis over
the useful economic life of such improvement (and such interest) under generally
accepted accounting principles, and the annual
207
212
amortization of such improvement shall be deemed an Operating Expense in each of
the Operating Periods during which such cost of the improvement is amortized.
(2) Subject to Section 26.4(E)(4) hereof, if any
capital improvement is made during any Operating Period for the purpose of
saving or reducing Operating Expenses (as, for example, a labor-saving
improvement), then the cost of such improvement shall be included in Operating
Expenses for the Operating Period in which such improvement was made; provided,
however, that to the extent the cost of such capital improvement is required to
be capitalized under generally accepted accounting principles, (I) such cost
together with interest thereon at the then Base Rate shall be amortized on a
straight-line basis over such period of time as Landlord reasonably estimates
such savings or reduction in Operating Expenses will equal the cost of such
improvement and the annual amortization of such improvement (and such interest)
shall be deemed an Operating Expense in each of the Operating Periods during
which such cost of the improvement is amortized, (II) the amounts of such annual
amortization (and such interest) shall not exceed the aforesaid savings or
reduction in Operating Expenses, and (III) Landlord shall not have the right to
include in Operating Expenses the cost of any capital improvements that Landlord
or the Condominium Association performs to the roof of the Building, the curtain
wall of the Building or the structural components of the Building.
(3) Subject to Section 26.4(E)(4) hereof, if any
capital improvement is made during any Operating Period in lieu of a repair,
then the cost of such improvement shall be included in Operating Expenses for
the Operating Period in which such improvement was made; provided, however, that
to the extent the cost of such capital improvement is required to be capitalized
under generally accepted accounting principles, (I) such cost together with
interest thereon at the then Base Rate shall be amortized on a straight-line
basis over the useful economic life of such improvement (and such interest)
under generally accepted accounting principles and the annual amortization of
such improvement (and such interest) shall be deemed an Operating Expense in
each of the Operating Periods during which such cost of the improvement is
amortized, (II) Landlord shall not have the right to include in Operating
Expenses the cost of any capital improvements that Landlord or the Condominium
Association performs to the roof of the Building, the curtain wall of the
Building or the structural components of the Building, and (III) Landlord shall
not have the right to include in Operating Expenses pursuant to this Section
26.4(E)(3) the cost of any capital improvements that Landlord or the Condominium
Association performs during the period commencing on the First Commencement Date
and ending on the fifteenth (15th) anniversary of the Last Commencement Date,
except to the extent such capital improvements are required by reason of
Tenant's use of Premises Systems or Shared Building Systems in a manner that
exceeds the use thereof that would be reasonably expected if such Premises
Systems or Shared Building Systems were used in a manner that conforms with the
ordinary uses for which such Premises Systems or Shared Building Systems were
designed.
(4) Tenant shall not have any obligation under
this Section 26.4 to pay the cost of capital improvements performed by Landlord
in constructing the Work or the remainder of the Building. Landlord shall have
the right to include in Operating Expenses the cost of any capital improvement
(or the amortization thereof) only to the extent that the
208
213
applicable cost would otherwise constitute an Operating Expense under Section
26.1(J) hereof (but for such cost's constituting a capital improvement cost).
(F) Landlord, before consummating a service and repair
agreement for the Premises Elevators with a service company, shall use due
diligence to obtain bids from no less than three (3) independent and reputable
service companies that have significant experience in servicing elevators in
office buildings that conform to the Building Standard. Landlord shall give
Tenant notice of Landlord's receipt of such bids from time to time, and permit
Tenant to participate in the opening thereof. Landlord shall engage as the
service company for the Premises Elevators the service company that submits the
lowest qualified bid; provided, however, that if (i) Tenant has a reasonable
objection to Landlord's engaging the service company that provides the lowest
qualified bid, and (ii) Tenant gives notice thereof to Landlord, then Landlord
shall consult with Tenant before engaging such service company.
(G) Tenant acknowledges that if the Statutory Condominium
Declaration is declared effective before the date that Taxes are separately
assessed to the owners of the units of the Condominium, then Tenant will
nevertheless pay the Tax Payment as contemplated hereby (by virtue of the Actual
Tax Amount being included in Common Charges).
Section 26.5 Subject to the terms of this Article 26, the expiration or
termination of this Lease during any Operating Period or Tax Year shall not
affect the rights or obligations of the parties hereto respecting any payments
of Operating Payments for such Operating Period and any Tax Payments for such
Tax Year, and any Operating Statement relating to such Operating Payment and any
Tax Statement relating to such Tax Payment, may be sent to Tenant subsequent to,
and all such rights and obligations shall survive, any such expiration or
termination.
ARTICLE 27
SERVICES
Section 27.1 (A) Subject to the terms of this Section 27.1, Section 22.11
hereof and Section 36.11 hereof, Landlord shall provide passenger and freight
elevator service to the Basic Premises at all times (using the Premises
Elevators). Landlord acknowledges that Tenant, during the Term, shall have
exclusive use of the passenger and freight elevators that service the Basic
Premises and that are being installed as part of the Work (collectively, the
"Premises Elevators"), except that Tenant shall use the Premises Elevator that
constitutes the freight elevator in the Third Avenue Building in common with
other occupants of the Third Avenue Building. Tenant acknowledges that only one
(1) of the two (2) freight elevators in the Lexington Avenue Building shall
constitute a Premises Elevator. Landlord shall reprogram the Premises Elevators
(other than the freight elevator in the Third Avenue Building) in accordance
with Tenant's instructions from time to time during the Term.
209
214
(B) Subject to the terms of this Section 27.1(B), if (x)
Landlord exercises Landlord's right to consummate a Sublease Recapture or a
Subleasehold Assignment Recapture, or (y) Tenant exercises the Renewal Option
for the Partial Renewal Space, then Landlord shall have the right to use the
Recovered Elevators from and after the date that the Sublease Recapture or
Subleasehold Assignment Recapture becomes effective, or the first day of the
Renewal Term, as the case may be. If the Recapture Space, the Subleasehold
Assignment Space or the Removed Space is the portion of the Tower Premises that
is added thereto by reason of Tenant's exercise of the Early Option or the
Shortage Option, then Landlord shall not have the right to use the Recovered
Elevators in respect thereof (with the understanding that Landlord shall have
the right to continue to use the High Rise Office Elevators in common with
Tenant as contemplated by Section 36.11 hereof). If the Recapture Space, the
Subleasehold Assignment Space or the Removed Space, as the case may be, is (x)
not located in the Tower Premises, and (y) not already served by another
passenger elevator to which Landlord has access, then the term "Recovered
Elevators" with respect thereto shall mean one (1) of the Premises Elevators
that constitute passenger elevators serving (I) the Recapture Space or the
Subleasehold Assignment Space (if Landlord's right to use the Recovered
Elevators arises by virtue of Landlord's exercising Landlord's rights to
consummate a Sublease Recapture or a Subleasehold Assignment Recapture), or (II)
the Removed Space (if Landlord's rights to use the Recovered Elevators arises by
virtue of Tenant's exercising the Renewal Option for the Partial Renewal Space);
provided, however, that:
(i) if the aggregate Rentable Area of (X) the
portions of the Premises described in clauses (I) or (II) above, and (Y) any
other portions of the Premises that have access to the applicable Recovered
Elevator, exceeds Sixty-Two Thousand Five Hundred (62,500) square feet of
Rentable Area and is equal to or less then One Hundred Fifty-Six Thousand
(156,000) square feet of Rentable Area, then the term "Recovered Elevators"
shall mean two (2) of the Premises Elevators that constitute passenger elevators
serving such portions of the Premises described in clauses (I) or (II) above,
and
(ii) one (1) additional Premises Elevator that
constitutes a passenger elevator serving the portions of the Premises described
in clauses (I) or (II) above shall constitute a Recovered Elevator for each
increment of Sixty-Two Thousand Five Hundred (62,500) square feet of Rentable
Area in excess of One Hundred Fifty-Six Thousand (156,000) square feet of
Rentable Area that constitutes either (X) the portions of the Premises described
in clauses (I) or (II) above, or (Y) any other portions of the Premises that
have access to the Recovered Elevators (so that, for example, if the aggregate
Rentable Area of (A) the portions of the Premises described in clauses (I) or
(II) above, and (B) the other portions of the Premises that have access to the
Recovered Elevators, exceeds One Hundred Fifty-Six Thousand (156,000) square
feet of Rentable Area and is equal to or less than Two Hundred Eighteen Thousand
Five Hundred (218,500) square feet of Rentable Area, then there shall be an
aggregate of three (3) Recovered Elevators).
210
215
If the Recapture Space, the Subleasehold Assignment Space or the Removed Space,
as the case may be, is (x) located in the Tower Premises (other than the portion
thereof that is added thereto by reason of Tenant's exercise of the Shortage
Option or the Early Option), or (y) already served by another passenger elevator
to which Landlord has access, then the term "Recovered Elevators" with respect
thereto shall mean one (1) of the Premises Elevators that constitute passenger
elevators serving (AA) the Recapture Space or the Subleasehold Assignment Space
(if Landlord's right to use the Recovered Elevators arises by virtue of
Landlord's exercising Landlord's rights to consummate a Sublease Recapture or a
Subleasehold Assignment Recapture), or (BB) the Removed Space (if Landlord's
rights to use the Recovered Elevators arises by virtue of Tenant's exercising
the Renewal Option for the Partial Renewal Space); provided, however, that:
(i) if the aggregate Rentable Area of (X) the
portions of the Premises described in clauses (AA) or (BB) above, and (Y) any
other portions of the Premises that have access to the applicable Recovered
Elevator, exceeds One Hundred Thousand (100,000) square feet of Rentable Area
and is equal to or less then One Hundred Fifty Thousand (150,000) square feet of
Rentable Area, then the term "Recovered Elevators" shall mean two (2) of the
Premises Elevators that constitute passenger elevators serving such portions of
the Premises described in clauses (AA) or (BB) above,
(ii) one (1) additional Premises Elevator that
constitutes a passenger elevator serving the portions of the Premises described
in clauses (AA) or (BB) above shall constitute a Recovered Elevator for each
increment of Fifty Thousand (50,000) square feet of Rentable Area in excess of
One Hundred Fifty Thousand (150,000) square feet of Rentable Area that
constitutes either (X) the portions of the Premises described in clauses (AA) or
(BB) above, or (Y) any other portions of the Premises that have access to the
Recovered Elevators (so that, for example, if the aggregate Rentable Area of (A)
the portions of the Premises described in clauses (AA) or (BB) above, and (B)
the other portions of the Premises that have access to the Recovered Elevators,
exceeds One Hundred Fifty Thousand (150,000) square feet of Rentable Area and is
equal to or less than Two Hundred Thousand (200,000) square feet of Rentable
Area, then there shall be an aggregate of three (3) Recovered Elevators), and
(iii) Landlord shall not have the right to the use of
any Recovered Elevator for the applicable portion of the Premises described in
clauses (AA) or (BB) above if the Rentable Area of (X) such portion of the
Premises, and (Y) any other portions of the Premises that have access to the
Recovered Elevators, is less than Twenty-Five Thousand (25,000) square feet of
Rentable Area.
Tenant shall designate the Recovered Elevators in the Recapture Statement, the
Subleasehold Assignment Statement or the Renewal Notice, as the case may be.
(C) Subject to the terms of this Section 27.1(C), if (I)
Landlord exercises Landlord's right to consummate a Sublease Recapture or a
Subleasehold Assignment Recapture, or (II) Tenant exercises the Renewal Option
for the Partial Renewal Space, then Landlord shall have the right to use, in
common with Tenant, the Premises Elevators that constitute freight elevators
serving the Recapture Space, the Subleasehold Assignment Space, or the Removed
Space, as the case may be. Tenant acknowledges that Landlord, in exercising
211
216
Landlord's rights under this Section 27.1(C), shall have the right to gain
access to such freight elevator in the Xxxxxxxxx Xxxxxx Xxxxxxxx xx Xxxxx Xxxxx
0 of the Building. Tenant shall have the right to impose reasonable restrictions
on Landlord's use of such Premises Elevators that constitute freight elevators
to maintain the security envelope of the Premises (it being understood, however,
that Tenant shall not unreasonably interfere with Landlord's use of the freight
elevators in a manner that satisfies the Building Standard). Landlord shall not
have the right to use a Premises Elevator that is a freight elevator under this
Section 27.1(C) that is otherwise for the exclusive use of Tenant pursuant to
the terms hereof unless the Rentable Area of the Partial Renewal Space or the
portion of the Premises that remains after taking into account such Sublease
Recapture or Subleasehold Assignment Recapture is less than Four Hundred Fifty
Thousand (450,000) square feet of Rentable Area.
(D) If Landlord has the right to use the Recovered Elevators
as contemplated by this Section 27.1, then Landlord shall also have the right to
use the Recovered Lobby Area. As used herein, the term "Recovered Lobby Area"
shall mean a portion of the Exclusive Lobby Area, as reasonably designated by
Tenant, that (x) constitutes a reasonable lobby area for the space in the
Building that is served by the Recovered Elevators, and (y) provides reasonable
access to the Recovered Elevators, that in either case conforms to the Building
Standard. If the Recovered Elevators constitute the Mid Rise Office Elevators,
then the Recovered Lobby Area shall be the corresponding portion of the corridor
that runs between the Mid Rise Office Elevators (so that Landlord gains access
to such Recovered Elevator through the Building Lobby). Tenant shall designate
the Recovered Lobby Area in the Recapture Statement, the Subleasehold Assignment
Statement, or the Renewal Notice, as the case may be. Tenant, at Tenant's sole
cost and expense, shall demise the Recovered Lobby Area separately from the
remainder of the Exclusive Lobby Area, not later than the date that Landlord has
the right to so use the Recovered Lobby Area as contemplated by this Section
27.1(D) (it being understood that if the Exclusive Lobby Area cannot be
configured in a manner that provides Landlord with lobby access that conforms
with the Building Standard, as aforesaid, then Tenant shall relinquish Tenant's
right to use the Exclusive Lobby Area on an exclusive basis as contemplated by
Section 2.3 hereof, in which case Tenant shall not be required to so separately
demise the Recovered Lobby Area). Landlord and Tenant shall cooperate reasonably
with each other in seeking to arrange a configuration of the Exclusive Lobby
Area that (i) addresses Tenant's security concerns, (ii) seeks to preserve
Tenant's right to maintain its right to use the Exclusive Lobby Area, or at
least a portion thereof, exclusively as contemplated by Section 2.3 hereof, and
(iii) provides Landlord with lobby access to the Recovered Elevators in a manner
that conforms with the Building Standard.
(E) Either party shall have the right to submit to an
Expedited Arbitration Proceeding a dispute between the parties regarding the
Recovered Elevators or the Recovered Lobby Area.
Section 27.2 Subject to Article 22 hereof, Landlord shall operate (or
shall cause the Condominium Association to operate) at all times the HVAC System
that Landlord is installing as part of the Work, as set forth in the Work
Exhibit.
212
217
Section 27.3 Subject to Article 22 hereof, Landlord shall provide (or
cause the Condominium Association to provide) at all times cold water to the
Premises at all times.
Section 27.4 Tenant shall have the right to arrange for Tenant's purchase
of natural gas from the utility company providing natural gas service for the
Building using the applicable elements of the Work constructed by Landlord in
accordance with the terms hereof. Landlord shall have no obligation to provide
natural gas service for the Premises or Tenant's use and occupancy thereof.
Section 27.5 Subject to the terms of this Section 27.5, Landlord reserves
the right to stop or reduce service of the Building Systems when necessary by
reason of accident or Emergency, or for repairs, additions, alterations,
replacements or improvements which in the reasonable judgment of Landlord are
desirable or necessary to be made, until said repairs, alterations, replacements
or improvements have been completed (which repairs, additions, alterations,
replacements and improvements shall be performed in accordance with Section 4.3
hereof). Landlord shall coordinate with Tenant any temporary stoppage or
reduction of Building System service to minimize to the extent reasonably
practicable any interference with Tenant's business in the Premises. Landlord
shall only stop or reduce Building System service during non-business hours on
Business Days or on days that are not Business Days if such stoppage or
reduction would materially interfere with Tenant's conduct of business in the
Premises; provided, however, that the time periods during which Landlord has the
right to stop or reduce Building System service shall not be so limited to the
extent (a) reasonably necessary by reason of the occurrence of an Emergency, or
(b) otherwise required by applicable Requirements. Landlord shall give Tenant at
least ten (10) Business Days of advance notice of Landlord's plans to stop or
reduce Building System service as contemplated by this Section 27.5; provided,
however, that Landlord shall not be required to give such advance notice to the
extent such stoppage or reduction is required by reason of the occurrence of an
Emergency (in which case Landlord shall give Tenant such advance notice of such
stoppage or reduction that is reasonable under the circumstances). Landlord
shall set forth in any such notice Landlord's estimate in good faith of the
duration of the stoppage or reduction of Building System services as described
therein (it being understood Landlord shall in no event be liable to Tenant if
the actual duration of such stoppage or reduction exceeds Landlord's estimate
thereof, provided that Landlord proceeds with due diligence to remedy the
condition which required Landlord to stop or reduce such Building System
services). Subject to Section 14.5 hereof, Landlord shall have no responsibility
or liability for interruption, curtailment or failure to supply Building System
services when prevented by Unavoidable Delays or by any Requirement or due to
the exercise of Landlord's right to stop or reduce service as provided in this
Article 27. The exercise of such right or such failure by Landlord shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any compensation or to any abatement or diminution of Rental, or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise, except
as otherwise provided in this Lease (including, without limitation, Section 14.5
hereof).
213
218
Section 27.6 Landlord shall have no responsibility to clean the Premises.
Tenant, at Tenant's sole cost and expense, shall clean the Premises in
conformity with the Building Standard. In addition, Tenant, at Tenant's sole
cost and expense, shall cause all portions of the Premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned daily in
a manner reasonably satisfactory to Landlord, and to be exterminated against
infestation by vermin, rodents or roaches regularly and, in addition, whenever
there is evidence of any infestation. Any such exterminating shall be done at
Tenant's sole cost and expense, and in a manner reasonably satisfactory to
Landlord. Tenant shall comply with any recycling program and/or refuse disposal
program (including, without limitation, any program related to the recycling,
separation or other disposal of paper, glass or metals) which is required
pursuant to any Requirements.
Section 27.7 Subject to Section 27.5 hereof, services expressly and
specifically required to be provided by Landlord in this Article 27 shall be
provided by Landlord in conformity with the Building Standard.
ARTICLE 28
LIMITATION ON TENANT'S LIABILITY
This Lease and the obligations of Tenant hereunder shall be fully
recourse to Tenant and the assets of Tenant; provided, however, that
notwithstanding anything to the contrary contained herein, no recourse shall be
had for the payment of Rental or other payments due or for any claim under this
Lease or based on the failure of performance or observance of any of the terms
and conditions of this Lease against any partner comprising Tenant, any
Affiliate of any partner comprising Tenant (other than Tenant itself) or any
principal, partner, member, manager, shareholder, controlling person, officer,
director, agent or employee of any of the aforesaid Persons or any of their
respective assets other than such partner's interest in Tenant or assets of
Tenant to which such partner is entitled under any rule of law, statute or
constitution, or by the enforcement of any assessment or penalty, or otherwise,
it being expressly understood that the sole remedies of Landlord with respect to
such amounts and claims shall be against such interest in Tenant and the assets
of the Tenant to which such partner is entitled and as otherwise expressly set
forth in this Lease, and that all such liability of the aforesaid Persons,
except as expressly provided in this Article 28, is expressly waived and
released; provided, however, that nothing contained in this Lease (including,
without limitation, the provisions of this Article 28) (i) shall be taken to
prevent recourse to and the enforcement against such partner's interest in
Tenant and the assets of Tenant to which such partner is entitled for all of the
respective liabilities, obligations and undertakings of the aforesaid Persons
contained in this Lease, or (ii) shall be taken to limit or restrict any action
or proceeding against any of the aforesaid Persons which does not seek damages
or a money judgment or does not seek to compel payment of money (or the
performance of obligations which would require the payment of money) by any of
the aforesaid Persons.
214
219
ARTICLE 29
PARKING
Section 29.1 Subject to the terms of Section 29.1, Tenant shall be
entitled to the use of ten (10) parking spaces in the portion of the Building
that Landlord designates for garage purposes (the "Garage Area"), provided and
for so long as (i) such parking spaces are permitted to be designated for
Tenant's use under the applicable Requirements, (ii) Tenant pays each month to
Landlord (or the operator of the Garage Area) the fee for the use of such
parking spaces, which fee shall be charged at the posted monthly rate (or, if
there are no posted monthly rates, at market rates), and (iii) Tenant executes
and delivers to Landlord (or such operator) the form of parking agreement
required to be signed by the other Persons using parking spaces at the Garage
Area. In no event shall Tenant be entitled to more than eight percent (8%) of
the parking spaces in the Garage Area. Landlord shall not be required to provide
Tenant with reserved parking spaces under this Section 29.1 (it being understood
that Landlord will satisfy Landlord's obligations under this Section 29.1 by
accommodating the number of vehicles that corresponds to the number of parking
spaces to which Tenant is entitled under this Section 29.1). Landlord shall not
be required to accommodate vehicles in the Garage Area other than ordinary
passenger vehicles (so that, for example, Landlord shall not be required to
accommodate limousines in the Garage Area). This Section 29.1 shall not apply if
Landlord constructs the Building without a Garage Area.
Section 29.2 Subject to the terms of this Section 29.2, Landlord shall
provide (or cause the Condominium Association to provide) space in the Lexington
Place Courtyard (or, at Landlord's option, in the driveway leading from the
Lexington Place Courtyard to Xxxx 00xx Xxxxxx) for four (4) black cars or taxis
to wait on a short-term basis for Tenant's officers, directors, employees and
guests. This Section 29.2 shall apply only during the period that Tenant
satisfies that Minimum Square Footage Requirement. Tenant shall not have the
right to use or permit to be used the aforesaid space in the Lexington Place
Courtyard (or such driveway) for parking. Landlord shall not charge Tenant for
Tenant's rights as set forth in this Section 29.2 (it being understood, however,
that nothing contained in this Section 29.2 limits Tenant's obligation to pay
Operating Expenses in accordance with the terms of Section 26.3 hereof). Tenant
shall not have the right to permit any of the aforesaid black cars or taxis to
be left unattended at any time. Landlord shall not be required to reserve (or to
cause the Condominium Association to reserve) particular space in the Lexington
Place Courtyard (or such driveway) for such black cars or taxis. Tenant's use of
such space in the Lexington Place Courtyard (or such driveway) shall be subject
to the Rules and Regulations.
ARTICLE 30
CAPTIONS
The captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof.
215
220
ARTICLE 31
PARTIES BOUND
The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
legal representatives, successors, and, except as otherwise provided in this
Lease, their assigns.
ARTICLE 32
BROKER
Each party represents and warrants to the other that it has not
dealt with any broker or Person in connection with this Lease other than Newmark
& Company Real Estate, Inc. ("Broker"). The execution and delivery of this Lease
by each party shall be conclusive evidence that such party has relied upon the
foregoing representation and warranty. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims for commission, fee or other
compensation by any Person (including, without limitation, Broker) who claims to
have dealt with Tenant in connection with this Lease and for any and all costs
incurred by Landlord in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements; provided, however,
that Tenant shall not be required to so indemnify Landlord and hold Landlord
harmless for any claims for commission, fee or other compensation made by Broker
in connection with Tenant's exercise of the Option or the Renewal Option in
either case in accordance with the terms hereof. Landlord shall indemnify and
hold Tenant harmless from and against any and all claims for commission, fee or
other compensation by any Person who claims to have dealt with Landlord in
connection with this Lease (other than Broker) and for any and all costs
incurred by Tenant in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements; provided, however that
Landlord shall so indemnify Tenant and hold Tenant harmless for any claims for
commission, fee or other compensation made by Broker in connection with Tenant's
exercise of the Option or the Renewal Option in either case in accordance with
the terms hereof. The provisions of this Article 32 shall survive the Expiration
Date.
216
221
ARTICLE 33
INDEMNITY
Section 33.1 (A) Subject to Section 10.3 hereof, Article 28 hereof,
Section 35.13 hereof, and this Article 33, Tenant shall indemnify and save the
Landlord Indemnitees harmless from and against (a) all claims made by third
parties of whatever nature against the Landlord Indemnitees arising from any act
or omission of a Tenant Indemnitee in or about a Tenant Area during the Term,
(b) all claims made by third parties against the Landlord Indemnitees arising
from any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in or about a Tenant Area,
(c) all claims made by third parties against the Landlord Indemnitees arising
from any accident, injury or damage caused to any person or to the property of
any person occurring outside of a Tenant Area but anywhere within or about the
Building, where such accident, injury or damage caused to any person or to the
property of any person results from any negligent act or omission or willful
misconduct of a Tenant Indemnitee, (d) all claims made by third parties against
the Landlord Indemnitees deriving from any breach, violation or non-performance
of any covenant, condition or agreement in this Lease set forth and contained on
the part of Tenant to be fulfilled, kept, observed and performed, (e) any claims
made by third parties against the Landlord Indemnitees that derive from Landlord
cooperating with a Permitted Occupant in obtaining permits, licenses or
certificates as contemplated by Section 2.4 hereof, (f) any claims made by third
parties against the Landlord Indemnitees that derive from Landlord cooperating
with Tenant in connection with Tenant's obtaining permits for Alterations as
contemplated by Section 3.3 hereof, (g) any claims made by third parties against
the Landlord Indemnitees that derive from Tenant's filing a notice of protest or
prosecuting a tax certiorari proceeding as contemplated by Section 26.4 hereof,
(h) any claims made by third parties against the Landlord Indemnitees that
derive from any action taken by or on behalf of Tenant under Section 18.3
hereof, (i) any claims made by third parties against the Landlord Indemnitees
that derive from Tenant's use of the Terrace Area, (j) any claims made by third
parties against the Landlord Indemnitees by reason of Tenant's contesting a
Requirement, or failing to comply therewith, as contemplated by Section 6.3(A)
hereof, or (k) any claims made by third parties against the Landlord Indemnitees
by reason of Tenant's access to the Third Floor Deck as contemplated by Section
3.10 hereof. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature (including, without limitation, reasonable
attorneys' fees and disbursements) incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof. Tenant shall have
no obligation to indemnify or hold harmless Landlord's Indemnitees pursuant to
this Section 33.1(A) to the extent that any of the aforesaid claims of third
parties result from the negligence or willful misconduct of Landlord's
Indemnitees.
(B) Subject to Section 10.3 hereof, Section 35.2 hereof,
Section 35.13 hereof, and this Article 33, Landlord shall indemnify and save the
Tenant Indemnitees harmless from and against all claims made by third parties
against the Tenant Indemnitees arising from (i) any act or omission of a
Landlord Indemnitee in or about the Building during the Term, (ii) any damage in
or to a Tenant Area and any bodily injury to a Tenant Indemnitee resulting from
any act or omission of a Landlord Indemnitee, (iii) any breach, violation or
non-performance of any covenant, condition or agreement in this Lease set forth
and contained on the part of Landlord to be fulfilled, kept, observed and
performed, (iv) Landlord's contesting a Requirement, or failing to comply
therewith, as contemplated by Section 6.3(B) hereof, (v) Landlord's entry upon
the Premises as contemplated by Article 14 hereof,
217
222
(vi) Tenant's cooperating with Landlord in connection with Landlord's obtaining
permits for work in the Building as contemplated by Section 3.3 hereof, (vii)
Landlord's filing a notice of protest or prosecuting a tax certiorari proceeding
as contemplated by Section 26.4 hereof, (viii) Tenant's cooperating with
Landlord in connection with a zoning lot merger or transfer of development
rights as contemplated by Section 7.6 hereof, or (ix) Landlord's using the Tower
Hoist Area pursuant to Section 22.15 hereof. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines,
suits, demands, costs and expenses of any kind or nature (including, without
limitation, reasonable attorneys' fees and disbursements) incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof. Landlord shall have no obligation to indemnify or hold harmless
Tenant's Indemnitees pursuant to this Section 33.1(B) to the extent any such
claims of third parties result from the negligence or willful misconduct of
Tenant's Indemnitees.
Section 33.2 (A) If at any time a claim is made or threatened, or an
action or proceeding is commenced or threatened, against a Landlord Indemnitee
or a Tenant Indemnitee (the "Indemnitee") which could result in liability of the
other party (the "Indemnitor") pursuant to this Article 33, than the Indemnitee
shall give to the Indemnitor notice of such claim, action or proceeding;
provided, however, that such Indemnitee's failure to provide such notice shall
not be deemed a failure to comply with the procedures set forth in this Section
33.2 unless the Indemnitor is materially prejudiced thereby. Such notice shall
state the basis for the claim, action or proceeding and the amount thereof (to
the extent such amount is determinable at the time that such notice is given),
and shall permit the Indemnitor to assume the defense of such claim, action or
proceeding, using such attorneys as the Indemnitor reasonably selects (provided,
however, that attorneys for the Indemnitor's insurer shall be deemed approved
for purposes hereof). Failure by the Indemnitor to notify the Indemnitee of the
Indemnitor's election to defend any such claim, action or proceeding within a
reasonable time, but in no event more than thirty (30) days after notice thereof
has been given to the Indemnitor, shall be deemed a waiver by the Indemnitor of
its right to defend such claim, action or proceeding.
(B) If the Indemnitor assumes the defense of such claim,
action or proceeding, then each Indemnitee may participate, at its expense, in
the defense of such claim, action or proceeding, provided that, subject to the
other terms hereof, the Indemnitor shall direct and control the defense of such
claim, action or proceeding. Without limiting any other obligation under this
Lease, each Indemnitee agrees to cooperate and make available to the Indemnitor
all books and records and such partners, principals, officers, directors,
employees and agents as are reasonably necessary in connection with such
defense. The Indemnitor shall not, in the defense of such claim, action or
proceeding, consent to the entry of any judgment or award, or enter into any
settlement, except in either event with the prior consent of each Indemnitee,
which consent shall not be unreasonably withheld or delayed. To the extent any
Indemnitee declines to consent to a bona fide offer of settlement or compromise,
the Indemnitor shall continue to defend, but the amount of such offer shall be
the limit of the Indemnitor's liability with respect to such claim, action or
proceeding with respect to the Indemnitee that declined such offer. Unless each
Indemnitee otherwise consents, such judgment, award or settlement shall include
as an unconditional term thereof the giving by the claimant or the plaintiff to
each Indemnitee of a
218
223
release from all liability in respect of such claim, action or proceeding and
such settlement shall entail no adverse effects upon each Indemnitee, either
directly or indirectly.
(C) If the Indemnitor does not assume the defense of any
such claim, action or proceeding, then an Indemnitee may defend against, or
settle, such claim, action or proceeding in such manner as it may deem
appropriate. Without limiting any other obligation under this Lease, the
Indemnitor agrees to cooperate and make available to each Indemnitee all books
and records and such partners, principals, officers, directors, employees and
agents as are reasonably necessary in connection with the defense or settlement
of such claim, action or proceeding.
(D) If the Indemnitor or an Indemnitee cooperates in the
defense or makes available books, records, partners, principals, directors,
officers, employees or agents, then the party that requested such cooperation
shall pay the out-of-pocket costs and expenses (including, without limitation,
legal fees and disbursements) of the party providing such cooperation and of its
partners, principals, officers, directors, employees and agents reasonably
incurred in connection with providing such cooperation. The term "legal fees",
as used in this Section 33.2(D), shall include the fair value of services
provided by Tenant's employees and other personnel (acting as would outside
counsel and not as principals).
ARTICLE 34
ADJACENT EXCAVATION-SHORING
Subject to the terms of this Article 34, if an excavation is made upon
land adjacent to the Land, or is authorized to be made, then Tenant, upon
reasonable advance notice, 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 deems necessary to preserve the Building from
injury or damage and to support the same by proper foundations, without any
claim for damages or indemnity against Landlord, or diminution or abatement of
Rental. Landlord shall use reasonable efforts to cause the person performing
such excavation to perform such work (i) diligently, (ii) in a manner that does
not impair Tenant's access to the Premises in a material respect, (iii) in a
manner that minimizes to the extent reasonably practicable interference with
Tenant's use, enjoyment and occupancy of the Premises, and (iv) in a manner that
does not reduce the Usable Area of the Premises; provided, however, that in no
event shall Landlord be required to limit such person's access to the Premises
to an extent that limits, repairs, releases or otherwise impairs such person's
obligation under applicable Requirements to repair any damage to the Building
that is caused by such excavation.
219
224
ARTICLE 35
ADDITIONAL PROVISIONS
Section 35.1 This Lease shall not be binding upon Landlord or Tenant
unless and until Landlord and Tenant have executed and unconditionally delivered
a fully executed copy of this Lease to each other. This Lease may be executed in
counterparts, it being understood that such counterparts, taken together, shall
constitute one and the same agreement.
Section 35.2 The obligations of Landlord under this Lease shall not be
binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent Landlord after the sale,
conveyance, assignment or transfer by such subsequent Landlord) of its interest
in the Premises, to the extent such obligations accrue from and after the date
of such sale, conveyance, assignment or transfer, and accordingly, if any such
sale, conveyance, assignment or transfer occurs, then the transferring Landlord
shall be and hereby is entirely freed and relieved of all obligations of
Landlord hereunder accruing from and after such sale, conveyance, assignment or
transfer; provided, however, that the transferring Landlord shall not be so
freed and relieved of obligations that (x) do not run with the land, (y) the
transferee does not assume, and (z) Tenant identifies as such transferring
Landlord being in default thereof within thirty (30) days after such
transferring Landlord gives notice to Tenant of such sale, conveyance,
assignment or transfer (it being understood that the transferring Landlord may
give such notice to Tenant up to sixty (60) days before any such sale,
conveyance, assignment or transfer occurs). Nothing contained in this Section
35.2 limits the effectiveness of a statement that Tenant gives under Section 7.3
hereof. The members, managers, partners, shareholders, directors, officers and
principals, direct and indirect, comprising Landlord (collectively, the
"Parties") shall not be liable for the performance of Landlord's obligations
under this Lease (unless a Party executes and delivers an agreement expressly
providing therefor). Tenant shall look solely to Landlord to enforce Landlord's
obligations hereunder and shall not seek any damages against any of the Parties
(except as expressly set forth in the Reimbursement Agreement or any other
written instrument executed and delivered by a Party). The liability of Landlord
for Landlord's obligations under this Lease shall be limited to Landlord's
interest in the Premises and the proceeds thereof and Tenant shall not look to
any other property or assets of Landlord or the property or assets of any of the
Parties in seeking either to enforce Landlord's obligations under this Lease or
to satisfy a judgment for Landlord's failure to perform such obligations (except
as expressly set forth in the Reimbursement Agreement or any other written
instrument executed and delivered a Party). Landlord, during the period ending
on the First Rent Commencement Date, shall not permit a Mortgage to encumber the
Premises that secures an aggregate outstanding principal indebtedness of more
than eighty percent (80%) of the fair market value of the Premises (which is
determined on the date that the loan secured by such Mortgage is consummated
assuming that such loan is fully funded, that the construction of the Building
as contemplated hereby has been Substantially Completed, and that the Rent
Commencement Date has occurred hereunder for the Initial Premises).
Section 35.3 Notwithstanding anything contained in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not
220
225
expressly denominated Fixed Rent, Escalation Rent, additional rent or Rental,
shall constitute rent for the purposes of Section 502(b)(7) of the Bankruptcy
Code.
Section 35.4 Tenant's liability for all items of Rental, and Landlord's
liability to make refunds to Tenant to the extent expressly provided herein,
shall survive the Expiration Date.
Section 35.5 This Lease shall not be recorded; however, at the request of
either party, Landlord and Tenant shall promptly execute, acknowledge and
deliver (a) a memorandum with respect to this Lease sufficient for recording in
the form of Exhibit 35.5 attached hereto and made a part hereof, and (b) any
transfer tax returns that are required to accompany such memorandum for
recording purposes (it being understood that the party making such request shall
pay the recording charges and Landlord shall pay any transfer taxes or fees due
in connection therewith). Such memorandum shall not, in any circumstance, be
deemed to change the provisions of, or be deemed a construction of, this Lease.
After the terms set forth in such memorandum are supplemented (by including,
without limitation, the fixing of the Commencement Dates or Tenant's exercise of
the Option) or if the terms in this Lease change (as a result of including,
without limitation, the addition of space to the Premises), promptly after the
request of either party hereto, the other party shall execute, acknowledge and
deliver an amendment to such memorandum for recording (it being understood that
the party making the request shall be responsible for the recording charges).
Section 35.6 (A) Subject to the terms of Section 35.6(B) hereof, Tenant
hereby waives any claim against Landlord which Tenant may have based upon any
assertion that Landlord has unreasonably withheld, unreasonably delayed, or
unreasonably conditioned any consent or approval requested by Tenant (in cases
where Landlord has agreed to not unreasonably withhold, unreasonably delay, or
unreasonably condition Landlord's consent), and Tenant agrees that its sole
remedy shall be an action or proceeding to enforce any related provision or for
specific performance, injunction or declaratory judgment. In the event of a
determination that such consent or approval has been unreasonably withheld,
unreasonably delayed, or unreasonably conditioned, the requested consent or
approval shall be deemed to have been granted; however, Landlord shall have no
liability to Tenant for its refusal or failure to give such consent or approval
(except to the extent set forth in Section 35.6(B) hereof). Tenant's sole remedy
for Landlord's unreasonably withholding, unreasonably delaying, or unreasonably
conditioning its consent or approval shall be as provided in this Section 35.6.
(B) If Landlord withholds, delays or conditions its consent
with respect to any matter under this Lease for which Landlord's consent is
required and Tenant believes that Landlord did so unreasonably (in cases where
Landlord has agreed to not unreasonably withhold, delay or condition such
consent), or if Landlord adopts a Rule or Regulation that Tenant deems
unreasonable, then Tenant may (but shall not be obligated to), within twenty
(20) days after its receipt of Landlord's notice of rejection or conditional
approval of Tenant's proposal (time being of the essence), or at any time during
the period beginning on the thirtieth (30th) day after the date that Tenant
first requested Landlord's approval and ending on the date that Landlord gives
Tenant notice of such rejection or conditional approval, or within ninety (90)
days after receipt by Tenant of notice of the adoption of any such additional
Rule or Regulation (time being of the essence), notify Landlord of its desire to
submit Landlord's
221
226
withholding, delaying or conditioning of its consent thereto or such Rule or
Regulation to an Expedited Arbitration Proceeding (and no other issue whether
related thereto or otherwise). Such notice shall set forth Tenant's claim.
Landlord and Tenant shall execute all documents and do all other things
necessary to submit Tenant's claim to an Expedited Arbitration Proceeding. The
sole decisions to be made in the Expedited Arbitration Proceeding shall be
whether or not Landlord unreasonably withheld, delayed or conditioned its
consent with respect to the particular matter being arbitrated or whether such
Rule or Regulation is unreasonable. The arbitrators shall have no right to vary,
modify or waive any provision of this Lease. If the decision in the Expedited
Arbitration Proceeding is that Landlord unreasonably withheld, conditioned, or
delayed consent with respect to such matter, then Landlord shall promptly
consent to such matter (it being understood that if Landlord fails to so consent
following such decision, then Tenant shall be entitled to bring an action
against Landlord in a court of competent jurisdiction to specifically enforce
such decision or for money damages (to the extent damages were sustained by
Tenant as a result of Landlord's failure to so consent)). Nothing contained in
this Section 35.6 limits Tenant's rights to recover actual damages sustained by
Tenant in a court of competent jurisdiction (x) to the extent deriving from
Landlord's unreasonably withholding, unreasonably delaying or unreasonably
conditioning Landlord's consent (in cases where Landlord has expressly agreed
not to so unreasonably withhold, unreasonably delay or unreasonably condition
such consent), and (y) if such court makes a final determination that Landlord
so unreasonably withheld, unreasonably delayed or unreasonably conditioned such
consent capriciously and arbitrarily.
Section 35.7 This Lease contains the entire agreement between the parties
and supersedes all prior understandings, if any, with respect thereto. This
Lease shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties.
Section 35.8 Landlord and Tenant hereby (a) irrevocably consent and submit
to the jurisdiction of any Federal, state, county or municipal court sitting in
the State of New York in respect to any action or proceeding brought therein by
Landlord against Tenant or by Tenant against Landlord in either case concerning
any matters arising out of or in any way relating to this Lease; (b) irrevocably
waive all objections as to venue and any and all rights each party may have to
seek a change of venue with respect to any such action or proceedings; (c) agree
that the laws of the State of New York shall govern in any such action or
proceeding and waive any defense to any action or proceeding granted by the laws
of any other country or jurisdiction unless such defense is also allowed by the
laws of the State of New York; and (d) agree that any final judgment rendered
against each party in any such action or proceeding shall be conclusive and may
be enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Landlord and Tenant further agree that any action or
proceeding by Tenant against Landlord in respect to any matters arising out of
or in any way relating to this Lease shall be brought only in the State of New
York, County of New York. In furtherance of the foregoing, Landlord and Tenant
hereby agree that its address for notices given by Landlord or by Tenant, as the
case may be, and service of process under this Lease, shall be as set forth in
Section 25.1 hereof (as such address may be changed from time to time as
provided in Section 25.1 hereof).
222
227
Section 35.9 Landlord hereby represents and warrants to Tenant that (i)
Landlord is duly organized and validly existing in good standing under the laws
of the State of New York, and possesses all licenses and authorizations
necessary to carry on its business, (ii) Landlord has full power and authority
to carry on its business, enter into this Lease and consummate the transaction
contemplated hereby, (iii) the individual executing and delivering this Lease on
Landlord's behalf has been duly authorized to do so, (iv) this Lease has been
duly executed and delivered by Landlord, (v) this Lease constitutes a valid,
legal, binding and enforceable obligation of Landlord (subject to bankruptcy,
insolvency or creditor rights laws generally, and principles of equity
generally), (vi) the execution, delivery and performance of this Lease by
Landlord will not cause or constitute a default under, or conflict with, the
organizational documents of Landlord or any agreement and or otherwise
materially and adversely affect the performance of Landlord's obligations
thereunder, (vii) the execution, delivery and performance of this Lease by
Landlord does not violate any Requirement, (viii) all consents, approvals,
authorizations, orders or filings of or with any court or governmental agency or
body, if any, required on the part of Landlord for the execution, delivery and
performance of this Lease have been obtained or made, (ix) there is no pending
action, suit or proceeding, arbitration or governmental investigation against
Landlord, an adverse outcome of which would materially affect Landlord's
performance of its obligations under this Lease, and (x) to Landlord's knowledge
(without any independent investigation), as of the date hereof, there is no
condition on the Land which violates any Environmental Laws.
Section 35.10 Tenant hereby represents and warrants to Landlord that (i)
Tenant is duly organized and validly existing in good standing under the laws of
the State of Delaware, and possesses all licenses and authorizations necessary
to carry on its business, (ii) Tenant has full power and authority to carry on
its business, enter into this Lease and consummate the transaction contemplated
hereby, (iii) the individual executing and delivering this Lease on Tenant's
behalf has been duly authorized to do so, (iv) this Lease has been duly executed
and delivered by Tenant, (v) this Lease constitutes a valid, legal, binding and
enforceable obligation of Tenant (subject to bankruptcy, insolvency or creditor
rights laws generally, and principles of equity generally), (vi) the execution,
delivery and performance of this Lease by Tenant will not cause or constitute a
default under, or conflict with, the organizational documents of Tenant or any
agreement and or otherwise materially and adversely affect the performance of
Tenant's obligations thereunder, (vii) the execution, delivery and performance
of this Lease by Tenant will not violate any Requirement, (viii) all consents,
approvals, authorizations, orders or filings of or with any court or
governmental agency or body, if any, required on the part of Tenant for the
execution, delivery and performance of this Lease have been obtained or made,
and (ix) there is no pending action, suit or proceeding, arbitration or
governmental investigation against Tenant, an adverse outcome of which would
materially affect Tenant's performance of its obligations under this Lease.
Section 35.11 All references in this Lease to the consent or approval of
Landlord or Tenant shall be deemed to mean the written consent or approval of
Landlord or Tenant, as applicable, and no consent or approval of Landlord or
Tenant shall be effective for any purpose unless such consent or approval is set
forth in a written instrument executed by Landlord or Tenant, as applicable.
223
228
Section 35.12 If any term, covenant, condition or provision of this Lease,
or the application thereof to any person or circumstance, shall ever be held to
be invalid or unenforceable, then in each such event the remainder of this Lease
or the application of such term, covenant, condition or provision to any other
Person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
Section 35.13 Tenant shall have no liability for any consequential damages
suffered either by Landlord or by any other party claiming through Landlord
(except to the extent otherwise provided in Article 20 hereof). Landlord shall
have no liability for any consequential damages suffered either by Tenant or by
any party claiming through Tenant (except to the extent otherwise expressly
provided in Article 22 hereof).
Section 35.14 Landlord acknowledges that as of the date hereof VRT and
Vornado Realty L.P. constitute Affiliates of Landlord.
Section 35.15 Subject to the terms of this Section 35.15, Landlord and
Tenant shall each keep confidential the terms of this Lease. Landlord and Tenant
shall each have the right to make disclosures of the terms of this Lease (i) to
the extent required by Requirements, (ii) to the extent reasonably required to
enforce such party's rights hereunder, (iii) to the extent reasonably necessary
in connection with such party's financing, selling, leasing, or otherwise
transferring or capitalizing its assets or its business (or any such transaction
consummated by such party's Affiliate) (including, without limitation,
disclosures that are reasonably necessary to comply with rules of the Securities
and Exchange Commission or any stock exchange), (iv) to the extent reasonably
required in connection with such party's books and records being audited, and
(v) to the extent reasonably required in constructing, operating, maintaining,
repairing or restoring the Premises or the other portions of the Building. If
applicable Requirements require Landlord or Tenant to file a copy of this Lease
in a manner that provides the general public with access thereto, then such
party shall file a copy hereof that is redacted to remove the material economic
terms hereof to the extent reasonably practicable and to the extent permitted by
applicable Requirements. Neither Landlord nor Tenant shall unreasonably
withhold, condition or delay its approval of any disclosure of the terms of this
Lease that is not otherwise authorized by this Section 35.15 and that the other
party proposes to make. Either party shall have the right to submit a dispute
between the parties arising under this Section 35.15 to an Expedited Arbitration
Proceeding. Landlord and Tenant shall cooperate reasonably to issue a joint
press release regarding the execution and delivery of this Lease promptly after
the date hereof.
Section 35.16 If, and to the extent that, any of the provisions of this
Lease conflict, or are otherwise inconsistent with, any of the exhibits attached
hereto, then, whether or not such conflict or inconsistency is noted in this
Lease, the provisions of this Lease shall prevail, except that (I) if there
exists a conflict or inconsistency between the terms of this Lease and the
provisions of the Work Exhibit, then the provisions of the Work Exhibit shall
control, and (II) if there exists a conflict between the terms of this Lease and
the Financial Disclosure Provisions, then the Financial Disclosure Provisions
shall control.
224
229
ARTICLE 36
OPTION SPACE
Section 36.1 Subject to the terms of this Section 36, Landlord shall not
lease (or permit to be leased) to any party other than Tenant or Landlord's
Affiliate (a) the Upper Option Space (or a part thereof) at any time, or (b) the
Lower Option Space (or a part thereof) at any time from and after the period
beginning on the fifteenth (15th) anniversary of the Last Commencement Date,
without, in either case, first instituting the procedure described in this
Article 36. As used herein, the term "Upper Option Space" shall mean any space
in the Lexington Avenue Building that is (i) located at or above the
twenty-second (22nd) floor of the Lexington Avenue Building, (ii) comprised of
at least Six Thousand Five Hundred (6,500) contiguous square feet of Rentable
Area, and (iii) being marketed to the general public as space that is to be used
for general office purposes. As used herein, the term "Lower Option Space" shall
mean any space on the second (2nd) floor of the Building; provided, however,
that if such space on the second (2nd) floor of the Building is then being
marketed as retail space as part of a bona fide plan to integrate the space on
the second (2nd) floor of the Building with the retail space on the ground floor
of the Building, then such space on the second (2nd) floor of the Building shall
not constitute Lower Option Space for purposes hereof, unless the portion of the
ground floor of the Building that such plan intends to integrate with such space
on the second (2nd) floor of the Building is comprised of less than One Thousand
Five Hundred (1,500) square feet of Usable Area, in which case such space on the
ground floor of the Building that is comprised of less than One Thousand Five
Hundred (1,500) square feet of Usable Area, and such space on the second (2nd)
floor of the Building, shall together constitute Lower Option Space for purposes
hereof. Tenant acknowledges that if Tenant leases the Lower Option Space (or a
part thereof) or the Upper Option Space (or a part thereof) pursuant to the
terms of this Article 36, then, subject to Section 36.5 hereof, Tenant may only
have access thereto from a contiguous portion of the Premises.
Section 36.2 Landlord shall institute the procedure described in this
Article 36 by giving notice thereof (the "Option Notice") to Tenant, which
Option Notice shall (i) describe the Upper Option Space (or the applicable
portion thereof) or the Lower Option Space (or the applicable portion thereof)
(the Upper Option Space (or such portion thereof) or the Lower Option Space (or
such portion thereof) described in a particular Option Notice being referred to
herein as the "Applicable Option Space"), (ii) set forth Landlord's calculation
of the number of square feet of Usable Area contained in the Applicable Option
Space, (iii) have annexed thereto a floor plan depicting the Applicable Option
Space, and (iv) set forth the date that Landlord reasonably expects the
Applicable Option Space to be vacant and available for Tenant's occupancy (such
date designated by Landlord being referred to herein as the "Scheduled Option
Space Commencement Date").
Section 36.3 Tenant shall have the option (the "Option") to lease the
Applicable Option Space for a term (the "Option Term") commencing on the Option
Space Commencement Date and expiring on the Option Space Expiration Date by
giving notice thereof (the "Response Notice") to Landlord not later than the
thirtieth (30th) day after the date that Landlord gives the Option Notice to
Tenant. Time shall be of the essence as to the date by which Tenant must give
225
230
the Response Notice to Landlord to exercise the Option. If Tenant does not give
the Response Notice to Landlord on or prior to the thirtieth (30th) day after
the date that Landlord gives the Option Notice to Tenant, then, subject to
Article 40 hereof, Landlord shall thereafter have the right to lease the
Applicable Option Space (or any part thereof) to any other party on terms
acceptable to Landlord in Landlord's sole discretion without being required to
make any other offer to Tenant regarding the Applicable Option Space under this
Article 36, except that if Landlord does not lease the Applicable Option Space
(or a part thereof) to another party (which is not an Affiliate of Landlord)
within two (2) years after the date that Landlord gives the applicable Option
Notice to Tenant, then Landlord shall not thereafter lease (or permit to be
leased) such Applicable Option Space (or such part thereof) to another party
without first again complying with the procedure set forth in this Article 36.
Tenant shall not have the right to revoke a Response Notice given to Landlord
pursuant to this Article 36. As used herein, the term "Option Space Expiration
Date" shall mean, with respect to any Applicable Option Space, the Expiration
Date, except that if the Scheduled Option Space Commencement Date is less than
ten (10) years prior to the Fixed Expiration Date (or, if Tenant has exercised
the Renewal Option on or prior to the date that Tenant gives the Response Notice
to Landlord, the Scheduled Option Space Commencement Date is less than ten (10)
years prior to the scheduled expiration date of the Renewal Term), then the
Option Space Expiration Date shall mean the date which immediately precedes the
tenth (10th) anniversary of Option Space Commencement Date (or such earlier date
on which the Option Term with respect to the Applicable Option Space expires
pursuant to any of the terms, conditions, or covenants of this Lease or pursuant
to law).
Section 36.4 Tenant shall not have the right to exercise the Option (and,
accordingly (x) Landlord shall have no obligation to give an Option Notice to
Tenant, and (y) Landlord shall have the right to lease the Applicable Option
Space to any other party without first offering the Applicable Option Space to
Tenant as contemplated by this Article 36) if the Minimum Square Footage
Requirement is not then satisfied. Tenant shall not have the right to exercise
the Option with respect to all or any portion of the Lower Option Space in
connection with such Lower Option Space's being leased (y) to any tenant that
then occupies such Lower Option Space (or a portion thereof) (whether or not
pursuant to an option or right contained in such tenant's lease), or (z) to any
tenant that then occupies any other space on the second (2nd) floor or the
ground floor of the Building (whether or not pursuant to an option or right
contained in such tenant's lease), and, accordingly, (I) Landlord shall have no
obligation to give an Option Notice to Tenant with respect to such Lower Option
Space (or such portion thereof), and (II) subject to Article 40 hereof, Landlord
shall have the right to lease such Lower Option Space (or such portion thereof)
to any such party described in clauses (y) or (z) above without first offering
the Lower Option Space (or the applicable portion thereof) to Tenant as
contemplated by this Article 36. Tenant shall not have the right to exercise the
Option with respect to all or any portion of the Lower Option Space that is
located on the second (2nd) floor of the Lexington Avenue Building if (x) Tenant
has theretofore exercised the Renewal Option for the Partial Renewal Space
(rather than the entire Basic Premises), and (y) no portion of the Partial
Renewal Space is located on the third (3rd) floor of the Lexington Avenue
Building and, accordingly, from and after the date that Tenant exercises the
Renewal Option for such Partial Renewal Space, (I) Landlord shall have no
obligation to give an Option Notice to Tenant with respect to such Lower Option
Space (or such portion thereof), and (II) subject to Article 40 hereof, Landlord
shall have the right to lease such
226
231
Lower Option Space (or such portion thereof) to any other party without first
offering such Lower Option Space (or the applicable portion thereof) to Tenant
as contemplated by this Article 36. Tenant shall not have the right to exercise
the Option with respect to all or any portion of the Upper Option Space in
connection with the Upper Option Space's being leased (W) to the first tenant
after the Building is constructed, (X) to any tenant that then occupies such
Upper Option Space and exercises an option or right to extend such tenant's
lease therefor, (Y) to any tenant that then occupies the Upper Option Space (or
a portion thereof comprised of at least one (1) full floor of the Building)
(whether or not pursuant to an option or right contained in such tenant's
lease), or (Z) to any tenant that then occupies any other portion of the Upper
Option Space comprised of at least one (1) full floor of the Building (whether
or not pursuant to an option or right contained in such tenant's lease), and,
accordingly, (I) Landlord shall have no obligation to give an Option Notice to
Tenant with respect to such Upper Option Space (or such portion thereof), and
(II) Landlord shall have the right to lease such Upper Option Space (or such
portion thereof) to any such party described in clause (W), (X), (Y) or (Z)
above without first offering the Upper Option Space (or the applicable portion
thereof) to Tenant as contemplated by this Article 36. Tenant's exercise of the
Option shall be ineffective if, on the date that Tenant gives the Response
Notice, an Event of Default has occurred and is continuing. If (i) Tenant
exercises the Option, and (ii) at any time prior to the Option Space
Commencement Date, (x) an Event of Default has occurred and is continuing, or
(y) the Minimum Square Footage Requirement is not satisfied, then, at any time
prior to the Option Space Commencement Date, Landlord shall have the right to
declare Tenant's exercise of the Option ineffective by giving notice thereof to
Tenant, in which case Landlord shall have the right to lease the Applicable
Option Space (or any portion thereof) to any other Person on terms acceptable to
Landlord in Landlord's sole discretion.
Section 36.5 If Tenant exercises the Option in accordance with the
provisions of this Article 36, then, on the Option Space Commencement Date for
the Applicable Option Space, (i) the Applicable Option Space shall be added to
the Premises for purposes of this Lease (except as otherwise provided in this
Section 36.5); (ii) the term of this Lease for the Applicable Option Space shall
extend for the Option Term; (iii) Landlord shall not be obligated to perform any
work or make any installations in the Applicable Option Space or grant Tenant a
work allowance therefor (except to the extent otherwise expressly provided in
this Section 36.5); (iv) in connection with Tenant's exercising Tenant's rights
as set forth in this Article 36 to lease Applicable Option Space that consists
of Upper Option Space, the Fixed Rent for the Applicable Option Space shall be
an amount equal to the Fair Market Rent therefor as determined in accordance
with the provisions of Article 38 hereof, and (iv) in connection with Tenant's
exercising Tenant's rights as set forth in this Article 36 to lease Applicable
Option Space that consists of Lower Option Space, the Fixed Rent for the
Applicable Option Space shall be an amount equal to the greatest of (x) the Fair
Market Rent therefor, determined in accordance with Article 38 hereof, assuming
that such Applicable Option Space is being leased for retail purposes, (y) the
Fair Market Rent therefor, determined in accordance with Article 38 hereof,
assuming that such Applicable Option Space is being leased for office purposes,
and (z) the Blended Comparison Amount that is in effect from time to time. If
Tenant exercises the Option for Applicable Option Space, then Tenant shall have
the right to dispute Landlord's calculation of the Usable Area thereof as set
forth in the Option Notice only by giving notice thereof to
227
232
Landlord on or prior to the thirtieth (30th) day after the date that Tenant
gives the Response Notice to Landlord. If Tenant gives any such notice to
Landlord within such period of thirty (30) days, then either party shall have
the right to submit to an Expedited Arbitration Proceeding a dispute between the
parties regarding the Usable Area of the Applicable Option Space. If Tenant
exercises the Option to lease Applicable Option Space, then Landlord shall use
Landlord's reasonable efforts to reconfigure (or, at Landlord's option, to
permit Tenant to reconfigure) the Building Systems (including, without
limitation, the Premises Elevators) to the extent reasonably necessary so that
the Shared Building Systems and Premises Systems that serve the Premises (other
than the Applicable Option Space) integrate with the Shared Building Systems and
Premises Systems that serve the Applicable Option Space; provided, however, that
Landlord shall not have any obligation to so reconfigure (or to permit Tenant to
reconfigure) Building Systems to the extent that such reconfiguration has a
material and adverse effect on such Building Systems. Tenant shall reimburse
Landlord for any actual out-of-pocket costs that Landlord incurs in so using
reasonable efforts to reconfigure the Building Systems, within thirty (30) days
after Landlord's request therefor (together with reasonable supporting
documentation for such costs). If Tenant exercises the Option to lease the
Applicable Option Space, then (i) Landlord shall cause the Applicable Option
Space to be delivered to Tenant in a condition that complies with all applicable
Requirements (for unoccupied space) and in broom-clean condition, and (ii)
Landlord shall deliver to Tenant (X) a reasonable number of counterparts of Form
ACP-5 for the Applicable Option Space promptly after the date that Tenant gives
to Landlord such documentation and information that Landlord reasonably requires
before providing such counterparts of Form ACP-5, and (Y) other reasonable
evidence to the effect that Tenant's performance of Alterations in the
Applicable Option Space will constitute a "non-asbestos project" (as defined for
purposes of the aforesaid Form ACP-5); provided, however, that Landlord shall
only be required to provide the items described in this clause (ii) to the
extent that Tenant reasonably requires such items under applicable Requirements
for presentation to applicable Governmental Authorities to permit Tenant to
perform Alterations in the Applicable Option Space or to conduct Tenant's
business therein (the items to be provided by Landlord under clause (i) and
clause (ii) above being collectively referred to herein as the "Applicable
Option Space Items"). Nothing contained in this Section 36.5 limits Tenant's
obligation to comply with the provisions of Article 3 hereof in connection with
any Alterations that Tenant intends to perform in the Premises (including,
without limitation, the Applicable Option Space).
Section 36.6 If, at any time prior to the Scheduled Option Space
Commencement Date, Landlord has a reasonable expectation that Landlord will be
unable to deliver possession of the Applicable Option Space to Tenant on the
Scheduled Option Space Commencement Date because of the holding over or
retention of possession thereof by any tenant, undertenant or other occupant,
then Landlord shall give prompt notice thereof to Tenant (any such notice given
by Landlord to Tenant being referred to herein as an "Option Space Holdover
Notice"). Landlord shall include in the Option Space Holdover Notice Landlord's
good faith estimate of the delay in Landlord's delivery to Tenant of possession
of the Applicable Option Space that Landlord then expects to result from any
such holding over or retention of possession. If (a) Landlord gives an Option
Space Holdover Notice to Tenant, and (b) Landlord thereafter in good faith
determines that Landlord's initial estimate of the extent of such delay is no
longer accurate, then Landlord shall give promptly to Tenant a replacement
Option Space Holdover Notice (which includes
228
233
Landlord's revised estimate of such delay). Subject to the terms of this Section
36.6, if Landlord is unable to deliver possession of the Applicable Option Space
on the Scheduled Option Space Commencement Date because of the holding over or
retention of possession of any tenant, undertenant or occupant in the Applicable
Option Space without the consent of Landlord, then (i) Landlord shall not be
subject to any liability for Landlord's failure to give possession on said date
(except as otherwise provided in this Section 36.6), (ii) the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be
construed to extend the term of this Lease with respect to such Applicable
Option Space or otherwise, (iii) Tenant waives any right to rescind this Lease
under Section 223-a of the New York Real Property Law or any successor statute
of similar nature and purpose then in force, and (provided Landlord fulfills its
obligation under the following clause hereof) further waives the right to
recover any damages which may result from Landlord's failure to deliver
possession of the Applicable Option Space to Tenant on the Scheduled Option
Space Commencement Date and agrees that the provisions of this Section 36.6
shall constitute an "express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law, (iv) provided Tenant is not
responsible for such inability to deliver possession, the Fixed Rent and
Escalation Rent payable with respect to the Applicable Option Space shall be
abated and the date that the Applicable Option Space is demised to Tenant
pursuant to this Article 36 shall be postponed until fifteen (15) Business Days
after Landlord gives Tenant notice that the Applicable Option Space is vacant
and available for Tenant's occupancy or will be vacant and available for
occupancy at the end of such period of fifteen (15) Business Days, and (v)
Landlord, at Landlord's expense, shall use its reasonable efforts to deliver
possession of the Applicable Option Space to Tenant and in connection therewith,
if necessary, shall promptly institute and diligently and in good faith
prosecute holdover and any other appropriate proceedings against the occupant of
the Applicable Option Space (the date that the Applicable Option Space is added
to the Premises pursuant to this Article 36 being referred to herein as the
"Option Space Commencement Date"). If Landlord fails to deliver possession of
the Applicable Option Space to Tenant within one hundred twenty (120) days after
the Scheduled Option Space Commencement Date, then Tenant may elect not to lease
the Applicable Option Space by notice to Landlord no later than fifteen (15)
days after the expiration of such one hundred twenty (120) day period (it being
understood that if Tenant makes such election, then subject to Article 40
hereof, Landlord shall have the right to lease the Applicable Option Space to
any third party without Tenant having any rights thereto under this Article 36).
If (i) Tenant has not theretofore exercised Tenant's rights to terminate this
Lease with respect to the Applicable Option Space as contemplated by this
Section 36.6, (ii) Tenant waives Tenant's right to thereafter terminate this
Lease with respect to the Applicable Option Space as contemplated by this
Section 36.6, and (iii) Landlord recovers from any such tenant, undertenant or
occupant of the Applicable Option Space any rental or other amounts for use and
occupancy of the Applicable Option Space, then Landlord shall pay such rental or
other amounts to Tenant to the extent that such rental or other amounts exceed
the sum of (I) the Rental that would have otherwise been due hereunder for the
Applicable Option Space (assuming that the Option Space Commencement Date had
theretofore occurred), and (II) the reasonable out-of-pocket costs that Landlord
actually incurs in pursuing Landlord's rights against such tenant undertenant or
occupant. Either party shall have the right to submit to an Expedited
Arbitration Proceeding any dispute between the parties regarding the amount of
any such payment due from Landlord to Tenant.
229
234
Section 36.7 If (i) Tenant exercises Tenant's rights as set forth in this
Article 36 with respect to Applicable Option Space, (ii) the Scheduled Option
Space Commencement Date is less than ten (10) years prior to the Fixed
Expiration Date (and Tenant has not exercised the Renewal Option in accordance
with the terms of Article 37 hereof prior to the date that Tenant gives the
Response Notice to Landlord), and (iii) Tenant subsequently exercises the
Renewal Option for the Premises in accordance with the terms of Article 37
hereof, then the Option Term for such Applicable Option Space shall be extended
automatically until the scheduled expiration date of the Renewal Term (the
period from the day immediately following the Option Space Expiration Date, as
initially determined for the Applicable Option Space pursuant to Section 36.3
hereof, to the scheduled expiration date of the Renewal Term, being referred to
herein as the "Extended Option Term"). If the Option Term for Applicable Option
Space that constitutes Upper Option Space is extended for the Extended Option
Term, then the terms governing Tenant's occupancy of such Upper Option Space
during the Option Term shall continue to apply during the Extended Option Term,
except that the Fixed Rent for such Upper Option Space for the Extended Option
Term shall be an amount equal to the product obtained by multiplying (i) the
number of square feet of Rentable Area in such Upper Option Space, by (ii) the
quotient obtained by dividing (I) the annual Fixed Rent due hereunder for the
Basic Premises as of the first (1st) day of the Extended Option Term, and (II)
the number of square feet of Rentable Area in the Basic Premises as of the first
(1st) day of the Extended Option Term (with the understanding, however, that in
no event shall the Fixed Rent for such Upper Option Space during the Extended
Option Term be less than (A) the product obtained by multiplying (X) the number
of square feet of Rentable Area in the Applicable Option Space, by (Y)
Ninety-Seven and 99/100 Dollars ($97.99) for the period from the first (1st) day
of the Renewal Term to the day immediately preceding the twenty-eighth (28th)
anniversary of the Last Commencement Date, (B) the product obtained by
multiplying (X) the number of square feet of Rentable Area in such Upper Option
Space, by (Y) One Hundred Eight and 77/100 Dollars ($108.77) for the period from
the twenty-eighth (28th) anniversary of the Last Commencement Date to the day
immediately preceding the thirty-second (32nd) anniversary of the Last
Commencement Date, and (C) the product obtained by multiplying (X) the number of
square feet of Rentable Area in such Upper Option Space, by (Y) One Hundred
Twenty and 73/100 Dollars ($120.73) for the period from and after the
thirty-second (32nd) anniversary of the Last Commencement Date. If the Option
Term for Applicable Option Space that constitutes Lower Option Space is extended
for the Extended Option Term, then the terms governing Tenant's occupancy of
such Lower Option Space during the Option Term shall continue to apply during
the Extended Option Term, except that (a) the Fixed Rent for such Lower Option
Space for the Extended Option Term shall be increased as of the first (1st) day
of the Extended Option Term by an amount equal to eleven percent (11%) of the
Fixed Rent due hereunder for such Lower Option Space immediately prior to the
Extended Option Term, and (b) the Fixed Rent for the Extended Option Term for
such Lower Option Space shall not at any time be less than the product obtained
by multiplying (I) the number of square feet of Rentable Area comprising such
Lower Option Space, by (II) the quotient obtained by dividing (A) the Fixed Rent
for the Basic Premises at such time, by (B) the number of square feet of
Rentable Area comprising the Basic Premises at such time.
Section 36.8 (A) If (i) the Option Term for any Applicable Option Space
extends beyond the Fixed Expiration Date, and (ii) Tenant does not exercise the
Renewal Option, then
230
235
Landlord shall have the right to declare that the Option Term for such
Applicable Option Space shall terminate on the Fixed Expiration Date, by giving
notice thereof to Tenant not later than the later to occur of (x) two (2) years
and two (2) months prior to the Fixed Expiration Date, and (y) the tenth (10th)
day after the Option Space Commencement Date. Time shall be of the essence as to
the date by which Landlord has the right to give such notice to Tenant. If
Landlord gives such notice to Tenant, then the Option Space Expiration Date for
such Applicable Option Space shall be deemed to be the Fixed Expiration Date.
(B) If (i) Tenant exercises the Renewal Option, and (ii) the
Option Term for any Applicable Option Space extends beyond the last day of the
Renewal Term, then Landlord shall have the right to declare that the Option Term
for such Applicable Option Space shall terminate on the last day of the Renewal
Term, by giving notice thereof to Tenant not later than the later to occur of
(i) one (1) year prior to the last day of the Renewal Term, and (ii) the tenth
(10th) day after the Option Space Commencement Date.
Section 36.9 If Tenant exercises Tenant's right to lease any of the Upper
Option Space or the Lower Option Space as provided in this Article 36, then
Landlord and Tenant shall execute and deliver an amendment to this Lease, in
reasonable form, promptly after Tenant exercises such rights, setting forth the
terms of Tenant's leasing of the Applicable Option Space (it being understood
that the failure or refusal of Landlord or Tenant to so execute and deliver any
such amendment shall not impair the effectiveness of Tenant's exercise of such
rights).
Section 36.10 Tenant's exercise of (or failure to exercise) the Option
with respect to any Applicable Option Space shall in no event impair Tenant's
rights to exercise the Option with respect to any other Applicable Option Space
in accordance with the terms of this Article 36.
Section 36.11 (A) Subject to the terms of this Section 36.11(A), if the
Initial Premises is comprised of less than Five Hundred Twenty Thousand
(520,000) square feet of Usable Area, then Tenant shall have the right to
include in the Tower Premises for all purposes hereof the entire Rentable Area
on the Shortage Floor, by giving notice thereof (the "Shortage Option Notice")
to Landlord on or prior to the thirtieth (30th) day after the date that Landlord
gives Tenant notice that the Initial Premises (other than such space on the
Shortage Floor) is comprised of less than Five Hundred Twenty Thousand (520,000)
square feet of Usable Area. Nothing contained in this Section 36.11 diminishes
Landlord's obligation to perform the Work in accordance with the terms of
Article 22 hereof. Time shall be of the essence as to the date by which Tenant
must give the Shortage Option Notice to Landlord in order to exercise Tenant's
aforesaid right to lease the entire Rentable Area on the Shortage Floor
(Tenant's aforesaid option to lease the entire Rentable Area on the Shortage
Floor being referred to herein as the "Shortage Option"). The date by which
Tenant must give the Shortage Option Notice to Landlord in order to exercise the
Shortage Option shall not occur prior to October 1, 2001. If Tenant exercises
the Shortage Option in accordance with the terms of this Section 36.11(A), then
the Fixed Rent for the Rentable Area on the Shortage Floor shall be determined
as follows:
(i) for the 1st Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Forty-Nine and 5,402/10,000 Dollars ($49.5402);
231
236
(ii) for the 2nd Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Fifty-Five and 3,031/10,000 Dollars ($55.3031);
(iii) for the 3rd Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Sixty-One and 7,000/10,000 Dollars ($61.7000);
(iv) for the 4th Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Sixty-Eight and 8,005/10,000 Dollars ($68.8005);
(v) for the 5th Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Seventy-Six and 6,820/10,000 Dollars ($76.6820);
(vi) for the 6th Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Eighty-Five and 4,305/10,000 Dollars ($85.4305); and
(vii) for the 7th Rental Period, the product obtained by multiplying (x)
the number of square feet of Rentable Area on the Shortage Floor, by
(y) Ninety-Five and 1,414/10,000 Dollars ($95.1414).
If Tenant exercises the Shortage Option as provided in this Section 36.11(A),
then Exhibit Definitions-E attached hereto shall be deemed to be modified to
include, for purposes of the entire Rentable Area on the Shortage Floor,
references to (a) the aforesaid rate per square foot of Rentable Area for each
of the 1st Rental Period, the 2nd Rental Period, the 3rd Rental Period, the 4th
Rental Period, the 5th Rental Period, the 6th Rental Period and the 7th Rental
Period, (b) a rate per square foot of Rentable Area of Ninety-Seven and
9,910/10,000 Dollars ($97.9910) for the period from the twenty-fifth (25th)
anniversary of the Last Commencement Date to the day immediately preceding the
twenty-eighth (28th) anniversary of the Last Commencement Date, (c) a rate per
square foot of Rentable Area of One Hundred Eight and 7,700/10,000 Dollars
($108.7700) for the period from the twenty-eighth (28th) anniversary of the Last
Commencement Date to the day immediately preceding the thirty-second (32nd)
anniversary of the Last Commencement Date, and (d) a rate per square foot of
Rentable Area of One Hundred Twenty and 7,347/10,000 Dollars ($120.7347) for the
period from the thirty-second (32nd) anniversary of the Last Commencement Date
to the day immediately preceding the thirty-fifth (35th) anniversary of the Last
Commencement Date. As used herein, the term "Shortage Floor" shall mean the
twenty-second (22nd) floor of the Lexington Avenue Building; provided, however,
that if Tenant exercises the Early Option prior to the date that Tenant has the
right to exercise the Shortage Option, then the Shortage Floor shall be the
entire Rentable Area on the floor of the Lexington Avenue Building that is
immediately above the highest floor in the Lexington Avenue Building with
respect to which Tenant exercises the Early Option. If Tenant exercises the
Shortage Option for the Shortage Floor, then the entire Rentable Area on the
Shortage Floor shall constitute a Deliverable Unit for purposes hereof.
232
237
(B) Subject to the terms of this Section 36.11(B), Tenant
shall have the right to include in the Tower Premises either (x) the entire
Rentable Area on the twenty-second (22nd) floor of the Lexington Avenue
Building, (y) the entire Rentable Area on the twenty-second (22nd) floor of the
Lexington Avenue Building and on the twenty-third (23rd) floor of the Lexington
Avenue Building, or (z) the entire Rentable Area on the twenty-second (22nd)
floor of the Lexington Avenue Building, the twenty-third (23rd) floor of the
Lexington Avenue Building, and the twenty-fourth (24th) floor of the Lexington
Avenue Building, by giving notice thereof (the "Early Option Notice") to
Landlord on or prior to June 30, 2002 (Tenant's aforesaid option to lease such
space in the Lexington Avenue Building as provided in this Section 36.11(B)
being referred to herein as the "Early Option"). An Early Option Notice shall
not be effective to exercise the Early Option unless Tenant identifies therein
the space with respect to which Tenant exercises the Early Option as provided in
this Section 36.11(B). Time shall be of the essence as to the aforesaid date by
which Tenant must give the Early Option Notice to Landlord in order to exercise
the Early Option. If Tenant exercises the Shortage Option prior to the date that
Tenant exercises the Early Option, then the aforesaid space with respect to
which Tenant has the right to exercise the Early Option shall be either (x) the
entire Rentable Area on the twenty-third (23rd) floor of the Lexington Avenue
Building, (y) the entire Rentable Area on the twenty-third (23rd) floor of the
Lexington Avenue Building and on the twenty-fourth (24th) floor of the Lexington
Avenue Building, or (z) the entire Rentable Area on the twenty-third (23rd)
floor of the Lexington Avenue Building, on the twenty-fourth (24th) floor of the
Lexington Avenue Building, and on the twenty-fifth (25th) floor of the Lexington
Avenue Building. The Fixed Rent for the space in the Lexington Avenue Building
with respect to which Tenant exercises the Early Option as provided in this
Section 36.11(B) shall be determined as if such space constituted Second Price
Space. The space with respect to which Tenant exercises the Early Option as
provided in this Section 36.11(B) shall be treated as Second Price Space for
purposes of Exhibit Definitions-E attached hereto. The entire Rentable Area on
each floor of the Lexington Avenue Building with respect to which Tenant
exercises the Early Option under this Section 36.11(B) shall each constitute a
Deliverable Unit for purposes hereof.
(C) If Tenant exercises the Early Option or the Shortage
Option as contemplated by this Section 36.11, then (I) Landlord shall cause at
least two (2) of the High Rise Office Elevators to be available for Tenant's use
as contemplated by Section 27.1 hereof and in conformity with the Work Exhibit
to gain access to the Shortage Floor or the portion of the Tower Premises with
respect to which Tenant exercises the Early Option, as the case may be, not
later than the Commencement Date for the applicable Deliverable Unit, and (II)
Landlord shall cause the remainder of the High Rise Office Elevators to be
available for Tenant's use as contemplated by Section 27.1 hereof on or prior to
earlier to occur of (a) the Rent Commencement Date for the applicable
Deliverable Unit, and (b) the date that Tenant occupies the applicable
Deliverable Unit for the conduct of business (except that the date described in
this clause (b) shall not occur earlier than the one hundred eightieth (180th)
day after the Commencement Date for the applicable Deliverable Unit). Tenant
acknowledges that Tenant's right to use the High Rise Office Elevators shall be
in common with other occupants of the portion of the Building served thereby
(the portion of the Building at and above the twenty-second (22nd) floor of the
Building that is served by the High Rise Office Elevators is referred to herein
as the "High Rise Portion"); provided, however, that if another tenant of the
High Rise
233
238
Portion occupies the entire rentable area on at least five (5) floors thereof,
then Landlord shall have the right to dedicate exclusively to such other tenant
no more than two (2) of the High Rise Office Elevators. Tenant shall have the
right to use the Building Lobby in common with other occupants of the High Rise
Portion to gain access to the High Rise Office Elevators (with the understanding
that Landlord shall have the right to restrict Tenant's access to the Building
Lobby and the High Rise Office Elevators to the extent reasonably required in
providing such other occupant of at least five (5) floors of the High Rise
Portion with exclusive use of no more than two (2) of the High Rise Office
Elevators). If Tenant has the right to so use the Building Lobby as contemplated
by this Section 36.11(C), then Landlord shall maintain the Building Lobby in
accordance with the Building Standard.
ARTICLE 37
RENEWAL TERM
Section 37.1 (A) Subject to the terms of this Article 37, Tenant shall
have the option (the "Renewal Option") to extend the term of this Lease for the
Renewal Premises for one (1) additional period of ten (10) years (the "Renewal
Term"), which Renewal Term shall commence on the day immediately succeeding the
Fixed Expiration Date and end on the day immediately preceding the tenth (10th)
anniversary of the Fixed Expiration Date, provided that (a) this Lease has not
been previously terminated, (b) no Event of Default has occurred and is
continuing on the date that Tenant gives Landlord notice (the "Renewal Notice")
of Tenant's election to exercise the Renewal Option, and (c) the Minimum Square
Footage Requirement is satisfied on the date that Tenant gives the Renewal
Notice to Landlord. The Renewal Option shall be exercisable only by Tenant
delivering the Renewal Notice to Landlord not less than two (2) years and one
(1) month prior to the Fixed Expiration Date (as to which date time shall be of
the essence). Landlord shall have the right to declare Tenant's exercise of the
Renewal Option ineffective if (a) an Event of Default has occurred and is
continuing as of the Fixed Expiration Date, or (b) the Minimum Square Footage
Requirement is not satisfied as of the Fixed Expiration Date, in either case by
giving notice thereof to Tenant during the period commencing on the Fixed
Expiration Date and ending on the date that is fifteen (15) days after the Fixed
Expiration Date (it being understood that (x) if Landlord so declares Tenant's
exercise of the Renewal Option ineffective, then the Term shall terminate on the
fifteenth (15th) day after the date that Landlord gives Tenant notice of such
declaration (with the understanding that Tenant shall pay the Rental due
hereunder in respect of the Renewal Term to the extent accruing during the
period commencing on the first day of the Renewal Term and ending on the date
that the Term so terminates), and (y) nothing contained in this Section 37.1(A)
limits Landlord's other rights or remedies after the occurrence of an Event of
Default).
(B) Subject to the terms of Section 37.1(C) hereof, Tenant
shall have the right to renew the term hereof for the Renewal Term with respect
to either (x) the entire Basic Premises demised hereby on the Fixed Expiration
Date, (y) (I) the entire portion of the Lower Level Space that is located on
Lower Xxxxx 0 xx xxx Xxxxxxxx, (XX) the entire portion of the Basic Premises
that is then located on the third (3rd) floor of the Lexington Avenue Building
(if any), and (III) additional portions of the Basic Premises above the third
(3rd) floor of the Lexington Avenue Building that (X) constitute all of the
Rentable Area on particular floors of the Building,
234
239
and (Y) are vertically contiguous to portions of the Basic Premises for which
Tenant exercises the Renewal Option, so that the portion of the Premises with
respect to which Tenant exercises the Renewal Option comprises at least Three
Hundred Fifty Thousand (350,000) square feet of Rentable Area, or (z) (I) the
entire portion of the Lower Level Space that is located on Lower Xxxxx 0 xx xxx
Xxxxxxxx, (XX) the entire portion of the Basic Premises that is then located on
the Highest Basic Floor, and (III) additional portions of the Basic Premises
below the Highest Basic Floor that (X) constitute all of the Rentable Area on
particular floors of the Building, and (Y) are vertically contiguous to portions
of the Basic Premises for which Tenant exercises the Renewal Option, so that the
portion of the Basic Premises with respect to which Tenant exercises the Renewal
Option comprises at least Three Hundred Fifty Thousand (350,000) square feet of
Rentable Area; provided, however, that (A) for purposes of clause (y) and clause
(z) above, two (2) floors of the Building shall be deemed to be vertically
contiguous notwithstanding that there is located between such two (2) floors a
mechanical floor or a floor on which there is no portion of the Premises, (B)
Tenant shall not have the right to exercise the Renewal Option for the portion
of the Premises on the sixth (6th) floor of the Building unless Tenant also
exercises the Renewal Option for the portion of the Premises on the seventh
(7th) floor of the Building, and (C) Tenant shall not have the right to exercise
the Renewal Option for the portion of the Premises on the seventh (7th) floor of
the Building unless Tenant also exercises the Renewal Option for the portion of
the Premises on the sixth (6th) floor of the Building (the portion of the
Premises described in clause (y) above and clause (z) above being referred to
herein as the "Partial Renewal Space"; the Basic Premises, or the Partial
Renewal Space, with respect to which Tenant exercises the Renewal Option being
referred to herein as the "Renewal Premises"; the portion of the Basic Premises
that does not constitute the Partial Renewal Space is referred to herein as the
"Removed Space"). If (x) Tenant gives the Renewal Notice to Landlord, and (y)
Tenant fails to indicate therein that Tenant is exercising the Renewal Option
for only the Partial Renewal Space, then Tenant shall be deemed to have
designated that the Renewal Premises constitutes the entire Basic Premises
demised hereby as of the Fixed Expiration Date. If Tenant exercises the Renewal
Option for only the Partial Renewal Space as contemplated by this Section 37.1,
then (x) on the Fixed Expiration Date, Tenant shall surrender to Landlord
possession of the Removed Space in accordance with the provisions of this Lease
that govern Tenant's obligations in respect of the delivery of possession of the
Premises to Landlord upon the expiration or earlier termination of the Term, and
(y) on or prior to the Fixed Expiration Date, Tenant, at Tenant's sole cost and
expense and otherwise in accordance with the terms of Article 3 hereof, shall
demise the Removed Space separately from the Partial Renewal Space.
(C) If Landlord exercises Landlord's right to consummate a
Sublease Recapture or a Subleasehold Assignment Recapture prior to Tenant's
exercise of the Renewal Option, then Landlord shall have the right to declare
that the applicable Recapture Space or the applicable Subleasehold Assignment
Space shall constitute part of the Basic Premises during the Renewal Term by
giving notice thereof to Tenant not later than two (2) years and two (2) months
before the Fixed Expiration Date. If (w) Landlord so declares that the Recapture
Space or the Subleasehold Assignment Space shall constitute part of the Basic
Premises, (x) Tenant exercises the Renewal Option, (y) the Recapture Space or
the Subleasehold Assignment Space is part of the Renewal Premises, and (z)
Landlord (or Landlord's tenant) made material alterations in the Recapture Space
or the Subleasehold Assignment Space, then Landlord, on or prior to the
235
240
thirtieth (30th) day of the Renewal Term, shall demolish, at Landlord's sole
cost and expense, the interior installation in the Recapture Space or the
Subleasehold Assignment Space in accordance with good construction practice and
remove the debris so that such Recapture Space or Subleasehold Assignment Space
is broom-clean.
(D) (1) Subject to the terms of this Section 37.1(D), if (i)
the Option Space Expiration Date for any Applicable Option Space is the Fixed
Expiration Date (any such Applicable Option Space being referred to herein as
"Initial Term Option Space"), and (ii) Tenant exercises the Renewal Option, then
Tenant shall also be deemed to have renewed the Option Term for the Renewal Term
for such Initial Term Option Space.
(2) If (A) Tenant gives the Renewal Notice to
Landlord, and (B) no portion of the Renewal Premises is located on the third
(3rd) floor of the Lexington Avenue Building, then Landlord shall have the right
to declare that the Option Term for the Initial Term Option Space that is
located on the second (2nd) floor of the Lexington Avenue Building shall not be
so extended for the Renewal Term by giving notice thereof to Tenant on or prior
to the forty-fifth (45th) day after the date that Tenant gives the Renewal
Notice to Landlord. If (a) Tenant gives the Renewal Notice to Landlord, and (b)
Landlord gives the aforesaid notice to Tenant to declare that the Option Term
for the Initial Term Option Space that is located on the second (2nd) floor the
Lexington Avenue Building shall not be so extended for the Renewal Term, then
Tenant shall have the right to either (x) declare the Renewal Notice ineffective
(in which case Tenant shall not be deemed to have exercised the Renewal Option
for purposes hereof), or (y) modify the Renewal Notice to cover the entire Basic
Premises (if Tenant theretofore exercised the Renewal Option only for the
Partial Renewal Space), by giving notice thereof to Landlord on or prior to the
tenth (10th) Business Day after the date that Landlord gives such notice to
Tenant (it being understood that (I) if Tenant does not elect to proceed under
clause (x) or clause (y) above, then the Renewal Premises shall not include the
Initial Term Option Space on the second (2nd) floor of the Building, and (II) if
(X) Tenant so modifies the Renewal Notice, and (Y) Landlord has the right to
again exercise Landlord's rights under this Section 37.1(D) after taking into
account such modified Renewal Notice, then Landlord shall have the right to
exercise such rights under this Section 37.1(D) only by giving notice thereof to
Tenant within twenty (20) days after the date that Tenant gives such modified
Renewal Notice to Landlord).
(3) If (A) Tenant gives the Renewal Notice to
Landlord, (B) the Renewal Premises is comprised of only the Partial Renewal
Space, and (C) the Initial Term Option Space that is Upper Option Space is not
vertically contiguous to the Renewal Premises (or is not vertically contiguous
to other Initial Term Option Space that is vertically contiguous to the Renewal
Premises), then Landlord shall have the right to declare that the Option Term
for the Initial Term Option Space that is not so vertically contiguous to any
such portion of the Partial Renewal Space shall not be extended for the Renewal
Term by giving notice thereof to Tenant on or prior to the forty-fifth (45th)
day after the date that Tenant gives the Renewal Notice to Landlord. If (a)
Tenant gives the Renewal Notice to Landlord, and (b) Landlord gives the
aforesaid notice to Tenant to declare that the Option Term for such Initial Term
Option Space that is not so vertically contiguous to any such portion of the
Partial Renewal Space shall not be
236
241
so extended for the Renewal Term, then Tenant shall have the right to either (x)
declare the Renewal Notice ineffective (in which case Tenant shall not be deemed
to have exercised the Renewal Option for purposes hereof), or (y) modify the
Renewal Notice to cover the entire Basic Premises, by giving notice thereof to
Landlord on or prior to the tenth (10th) Business Day after the date that
Landlord gives such notice to Tenant (it being understood that if Tenant does
not elect to proceed under clause (x) or clause (y) above, then the Renewal
Premises shall not include such Initial Term Option Space that is Upper Option
Space and that is not vertically contiguous, as aforesaid).
(E) If Tenant gives the Renewal Notice to Landlord in
accordance with the terms hereof, then Tenant shall have the right to rescind
Tenant's exercise of the Renewal Option pursuant thereto by giving notice
thereof (a "Rescission Notice") to Landlord on or prior to the Rescission Date
(as to which date time shall be of the essence). If Tenant gives a Rescission
Notice to Landlord, then Tenant shall not have any further right to exercise the
Renewal Option pursuant to the terms of this Article 37.
Section 37.2 If Tenant exercises the Renewal Option (and does not rescind
Tenant's exercise of the Renewal Option in accordance with the provisions of
Section 37.1 hereof), then the leasing of the Renewal Premises (and any Initial
Term Option Space) during the Renewal Term shall be upon the same terms,
covenants and conditions as those contained in this Lease, except that (i) the
Fixed Rent for the Renewal Premises (and any Initial Term Option Space) during
the Renewal Term shall be the Rental Value as determined pursuant to the
provisions of Article 38 hereof, (ii) Landlord shall have no obligation to
perform any work in connection with Tenant's extension of the Term for the
Renewal Term, (iii) the provisions of Section 3.5 hereof shall not be applicable
during the Renewal Term, it being agreed that Landlord shall have no obligation
to grant to Tenant any work allowance, or to perform any work in the Renewal
Premises (or any Initial Term Option Space), in connection with Tenant's
exercise of the Renewal Option, and (iv) the provisions of Section 37.1 shall
not be applicable to permit Tenant to further extend the Term (or the Option
Term).
ARTICLE 38
RENTAL VALUE
Section 38.1 (A) As used herein, the term "Rental Value" shall mean an
amount equal to the Fair Market Rent of the Renewal Premises and any Initial
Term Option Space on the Fixed Expiration Date; provided, however, that at no
time shall the Rental Value (or the Fixed Rent payable hereunder during the
Renewal Term) be less than the Base Rental Amount.
(B) As used herein, the term "Fair Market Rent", with
respect to any Applicable Area, shall mean the annual fair market rental value
of such Applicable Area.
(C) As used herein, the term "Applicable Area" shall mean
(i) the Renewal Premises and any Initial Term Option Space, in connection with
the determination of Rental Value for the Renewal Term as contemplated by
Article 37 hereof, (ii) the Applicable Option Space, in connection with the
determination of the Fair Market Rent therefor for purposes
237
242
of Article 36 hereof, and (iii) the Additional Antennae Site, in connection with
the determination of the Fair Market Rent therefor for purposes of Article 42
hereof.
(D) As used herein, the term "Applicable Date" shall mean
(i) the Fixed Expiration Date, in connection with the determination of the
Rental Value of the Renewal Premises and any Initial Term Option Space for the
Renewal Term, (ii) the Scheduled Option Space Commencement Date, in connection
with the determination of the Fair Market Rent for the Applicable Option Space,
and (iii) the date that Landlord gives Tenant use of the Additional Antennae
Site as contemplated by Article 42 hereof, in connection with the determination
of the Fair Market Rent for the Additional Antennae Site.
(E) As used herein, the term "Base Rental Amount" shall
mean:
(1) in connection with the determination of the
Rental Value of the Renewal Premises that constitutes First Price Space for the
Renewal Term, the product obtained by multiplying (x) the number of square feet
of Rentable Area in such portion of the Renewal Premises, by (y) (a) Ninety-Four
and 3,387/10,000 Dollars ($94.3387) for the period from the first day of the
Renewal Term to the day immediately preceding the twenty-eighth (28th)
anniversary of the Last Commencement Date, (b) One Hundred Four and 7,159/10,000
Dollars ($104.7159) for the period from the twenty-eighth (28th) anniversary of
the Last Commencement Date to the day immediately preceding the thirty-second
(32nd) anniversary of the Last Commencement Date, and (c) One Hundred Sixteen
and 2,347/10,000 Dollars ($116.2347) for the period from the thirty-second
(32nd) anniversary of the Last Commencement Date to the last day of the Renewal
Term;
(2) in connection with the determination of the
Rental Value of any portion of the Renewal Premises that constitutes Second
Price Space for the Renewal Term (including, without limitation, any portion of
the Premises that Tenant leased from Landlord by virtue of Tenant's exercise of
the Early Option in accordance with the terms hereof), the product obtained by
multiplying (x) the number of square feet of Rentable Area in such portion of
the Renewal Premises, by (y) (a) One Hundred One and 8,203/10,000 Dollars
($101.8203) for the period from the first day of the Renewal Term to the day
immediately preceding the twenty-eighth (28th) anniversary of the Last
Commencement Date, (b) One Hundred Thirteen and 205/10,000 Dollars ($113.0205)
for the period from the twenty-eighth (28th) anniversary of the Last
Commencement Date to the day immediately preceding the thirty-second (32nd)
anniversary of the Last Commencement Date, and (c) One Hundred Twenty-Five and
4,528/10,000 Dollars ($125.4528) for the period from the thirty-second (32nd)
anniversary of the Last Commencement Date to the last day of the Renewal Term;
(3) in connection with the determination of the
Rental Value of any portion of the Renewal Premises that constitutes Third Price
Space for the Renewal Term, the product obtained by multiplying (x) the number
of square feet of Rentable Area in such portion of the Renewal Premises, by (y)
(a) One Hundred and 2,041/10,000 Dollars ($100.2041) for the period from the
first day of the Renewal Term to the day immediately preceding the twenty-eighth
(28th) anniversary of the Last Commencement Date, (b) One Hundred Eleven and
2,265/10,000 Dollars ($111.2265) for the period from the twenty-eighth (28th)
anniversary of the
238
243
Last Commencement Date to the day immediately preceding the thirty-second (32nd)
anniversary of the Last Commencement Date, and (c) One Hundred Twenty-Three and
4,615/10,000 Dollars ($123.4615) for the period from the thirty-second (32nd)
anniversary of the Last Commencement Date to the last day of the Renewal Term;
and
(4) in connection with the determination of the
Rental Value of (x) any Initial Term Option Space, or (y) any portion of the
Renewal Premises that constitutes space that Tenant leased from Landlord by
virtue of Tenant's exercise of the Shortage Option in accordance with the terms
hereof, in either case for the Renewal Term, the Fixed Rent payable hereunder
for such Initial Term Option Space or such space that Tenant leased from
Landlord by virtue of Tenant's exercise of the Shortage Option, in either case
on the Fixed Expiration Date, except that the Base Rental Amount for (A) any
portion of the Lower Option Space, and (B) any such space that Tenant leased
from Landlord by virtue of Tenant's exercise of the Shortage Option, shall not
be less than (i) the product obtained by multiplying (I) the number of square
feet of Rentable Area in such Initial Term Option Space or such other space, by
(II) Ninety-Seven and 9,910/10,000 Dollars ($97.9910), for the period ending on
the day immediately preceding the twenty-eighth (28th) anniversary of the Last
Commencement Date, (ii) the product obtained by multiplying (I) the number of
square feet of Rentable Area in such Initial Term Option Space or such other
space, by (II) One Hundred Eight and 7,700/10,000 Dollars ($108.7700), for the
period from the twenty-eighth (28th) anniversary of the Last Commencement Date
to the day immediately preceding the thirty-second (32nd) anniversary of the
Last Commencement Date, and (iii) the product obtained by multiplying (I) the
number of square feet of Rentable Area in such Initial Term Option Space or such
other space, by (II) One Hundred Twenty and 7,347/10,000 Dollars ($120.7347),
for the period from the thirty-second (32nd) anniversary of the Last
Commencement Date to the last day of the Renewal Term.
Section 38.2 The Fair Market Rent shall be determined assuming that the
Applicable Area is free and clear of all leases and tenancies (including this
Lease), that the Applicable Area is available for general office purposes in the
then rental market, that Landlord has had a reasonable time to locate a tenant
who rents with the knowledge of the uses to which the Applicable Area can be
adapted, and that neither Landlord nor the prospective tenant is under any
compulsion to rent, and taking into account all relevant factors; provided,
however, that (u) for purposes of determining the Fair Market Rent of the Lower
Level Space on Lower Level 2 of the Building for the Renewal Term, the parties
shall consider such Lower Level Space to be rentable as office space (at the
same rates as the other office space comprising the Renewal Premises), (v) for
purposes of determining the Fair Market Rent for the Applicable Option Space,
the parties shall take into account that Landlord is providing to Tenant the
Applicable Option Space Items in respect thereof, (w) for purposes of
determining the Fair Market Rent for Applicable Option Space that constitutes
Lower Option Space for purposes of Section 36.5(x) hereof, the parties shall
assume that such Applicable Option Space is available for general retail
purposes in the then rental market, (x) for purposes of determining Fair Market
Rent, the parties shall assume that the usable area of the Applicable Area is
the Usable Area thereof as determined in accordance herewith, (y) for purposes
of determining the Fair Market Rent for the Additional Antennae Site, the
parties shall take into account (in addition to all other relevant factors) the
particular nature of the Antennae that Tenant intends to install thereon, and
239
244
(z) for purposes of determining the Fair Market Rent of the Renewal Premises and
the Initial Term Option Space for the Renewal Term, the parties shall take into
account that Landlord, in constructing the Building initially, reduced the
Usable Area of Lower Level 1 of the Building, the ground floor of the Building,
and the second (2nd) floor of the Building by the Incremental Areas on such
levels of the Building, and that Tenant, during the Renewal Term, will continue
to have the benefit thereof, and, accordingly, Tenant, during the Renewal Term,
should be required to pay fixed rental calculated at retail rates for such
Usable Area (Landlord and Tenant acknowledging, however, that the fixed rental
that Tenant pays for such Incremental Areas during the Renewal Term shall be
determined assuming that Tenant is not required to pay Taxes that are
attributable to such Incremental Area for the Renewal Term).
Section 38.3 For purposes of determining the Fair Market Rent, the
following procedure shall apply:
(A) Landlord and Tenant shall each contemporaneously deliver
to the other, at Landlord's office, a notice (each, a "Rent Notice"), on a date
mutually agreed upon, but in no event later than (x) two (2) years before the
Fixed Expiration Date, with respect to the Rent Notice for the determination of
the Fair Market Rent for the Renewal Premises (and any Initial Term Option
Space) for the Renewal Term, (y) the later to occur of (I) three (3) months
before the Scheduled Option Space Commencement Date, and (II) the thirtieth
(30th) day after the date that Tenant gives the applicable Response Notice to
Landlord, with respect to the Rent Notice for the determination of the Fair
Market Rent for the Applicable Option Space, and (z) the tenth (10th) Business
Day after Landlord grants Tenant's request to use the Additional Antennae Site
in accordance with Article 42 hereof, with respect to the Rent Notice for the
determination of the Fair Market Rent for the Additional Antennae Site, as the
case may be, which Rent Notice shall set forth each of their respective
determinations of the Fair Market Rent (Landlord's determination of the Fair
Market Rent is referred to as "Landlord's Determination" and Tenant's
determination of the Fair Market Rent is referred to as "Tenant's
Determination").
(B) If Landlord's Determination and Tenant's Determination
are not equal and Tenant's Determination is lower than Landlord's Determination,
then Landlord and Tenant shall attempt to agree upon the Fair Market Rent. If
Tenant's Determination is higher than Landlord's Determination, then the Fair
Market Rent shall be equal to Landlord's Determination. If Landlord and Tenant
mutually agree upon the determination (the "Mutual Determination") of the Fair
Market Rent, then their determination shall be final and binding upon the
parties. If Landlord and Tenant are unable to reach a Mutual Determination
within thirty (30) days after delivery of both the Landlord's Determination and
the Tenant's Determination to each party (the thirtieth (30th) day after the
date that Landlord and Tenant give their respective determinations to each other
being referred to herein as the "Rescission Date"), then Landlord and Tenant
shall jointly select an independent real estate appraiser (the "Appraiser"),
whose fee shall be borne equally by Landlord and Tenant. The Appraiser shall not
be a Person who, during the immediately preceding period of three (3) years, was
employed by Landlord or Tenant or any of their respective Affiliates. If
Landlord and Tenant are unable to jointly agree on the designation of the
Appraiser within ten (10) days after they are requested to do so by either
party, then the parties agree to allow the AAA to designate the Appraiser using
an Expedited
240
245
Arbitration Proceeding. The procedure described in this Section 38.3 that the
parties institute to determine the Fair Market Rent for the Premises (and any
Initial Term Option Space) for the Renewal Term shall terminate if Tenant gives
a Rescission Notice to Landlord in accordance with the terms hereof.
(C) The Appraiser shall conduct such hearings and
investigations as he or she deems appropriate and shall, within thirty (30) days
after the date of designation of the Appraiser, choose either Landlord's
Determination or Tenant's Determination as the better estimate of Fair Market
Rent, and such choice by the Appraiser shall be conclusive and binding upon
Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if
any, in connection with any arbitration under this Article. The Appraiser
appointed pursuant to this Article shall be an independent real estate appraiser
with at least ten (10) years of experience in leasing of properties which are
similar in character to the Building, and a member of the American Institute of
Appraisers of the National Association of Real Estate Boards and a member of the
Society of Real Estate Appraisers. The Appraiser shall not have the power to add
to, modify or change any of the provisions of this Lease.
(D) It is expressly understood that any determination of the
Fair Market Rent pursuant to this Article shall be based on the criteria stated
in Section 38.2 hereof.
(E) After a determination has been made of the Fair Market
Rent, the parties shall execute and deliver to each other an instrument setting
forth the Fixed Rent for the Renewal Term, the Fixed Rent for the Applicable
Option Space, or the License Fee for the Additional Antennae Site, as the case
may be.
(F) If the final determination of the Fair Market Rent is
not made on or before the Applicable Date in accordance with the provisions of
this Article, then, pending such final determination, the Fair Market Rent shall
be deemed to be an amount equal to the average of Landlord's Determination and
Tenant's Determination. If, based upon the final determination hereunder of the
Fair Market Rent, the payments made by Tenant on account of the Fixed Rent for
the period prior to the final determination of the Fair Market Rent were less
than the Fixed Rent payable for such period, then Tenant, not later than the
tenth (10th) day after Landlord's demand therefor, shall pay to Landlord the
amount of such deficiency, together with interest thereon at the Base Rate. If,
based upon the final determination of the Fair Market Rent, the payments made by
Tenant on account of the Fixed Rent for the period prior to the final
determination of the Fair Market Rent were more than the Fixed Rent due
hereunder for such period, then Landlord, not later than the tenth (10th) day
after Tenant's demand therefor, shall pay such excess to Tenant, together with
interest thereon at the Base Rate.
241
246
ARTICLE 39
TENANT'S SIGNS
Section 39.1 (A) Subject to the terms of this Section 39.1, Tenant shall
have the right to erect and maintain signs identifying Tenant as an occupant of
the Building (and for no other purpose) at the locations described in, and in
accordance with the specifications described in, Exhibit 39.1 attached hereto
and made a part hereof (any such signs erected by Tenant being collectively
referred to herein as "Tenant's Signs"). Tenant's installation of Tenant's Signs
shall be performed in accordance with the provisions set forth in Article 3
hereof. Subject to the terms of this Section 39.1, Tenant shall not be permitted
to erect or maintain Tenant's Signs if Tenant does not satisfy the Minimum
Square Footage Requirement. Tenant, at Tenant's sole cost and expense, shall
operate, maintain and repair any Tenant's Signs that Tenant erects pursuant to
this Section 39.1 in accordance with the Building Standard and in compliance
with all applicable Requirements. Tenant, at Tenant's sole cost and expense,
shall remove Tenant's Signs promptly upon the earlier to occur of (x) the
Expiration Date, and (y) the date that Tenant has no further right to erect or
maintain Tenant's Signs pursuant to this Section 39.1, and shall repair any
damage caused by the installation of Tenant's Signs or such removal. If Tenant
does not satisfy the Minimum Square Footage Requirement, then (I) Landlord shall
permit Tenant to erect and maintain such signs that are reasonably necessary to
identify Tenant as the occupant of the Premises in accordance with the Building
Standard (it being understood that (x) the size and dimensions of such signs
shall be subject to Landlord's reasonable approval, and in no event larger than
Tenant's Signs contemplated by Exhibit 39.1 attached hereto, (y) such signs may
provide less exposure for such Tenant than Tenant's Signs that the parties
contemplated initially as set forth in Exhibit 39.1 attached hereto, and (z)
such signs may be installed in locations that differ from the locations
contemplated by Exhibit 39.1 attached hereto), and (II) Tenant shall operate,
maintain and repair such signs in accordance with the terms of this Article 39.
(B) Landlord shall not unreasonably withhold, condition or
delay Landlord's approval of Tenant's design for Tenant's Signs, provided that
such design complies with the specifications set forth in Exhibit 39.1 attached
hereto, and is otherwise consistent with the following principles:
(1) Tenant's Signs and the other signs installed on
or about the Building shall be architecturally
compatible with each other and with the design
of the Building.
(2) Tenant's Signs shall be compatible with the
overall signage program for the Building.
(3) Tenant's Signs shall be consistent with the
concept that Building frontage on Third Avenue
and Lexington Avenue have excitement and
activity, and the concept that the Building
frontage on the Lexington Place Courtyard will
be residential in feel.
Landlord shall consult with Tenant in good faith from time to time during
Tenant's development of the design for Tenant's Signs. Landlord shall also
consult with Tenant in good faith from time to time during Landlord's
development of the design of the overall signage program for the Building (to
the extent that such overall signage program affects Tenant's Signs). Landlord
242
247
acknowledges that Tenant's illumination of Tenant's Signs in a manner that
enables Tenant's Signs to be visible at night shall not constitute, in and of
itself, a basis for Landlord's rejecting Tenant's Signs, provided that such
Tenant's Signs otherwise conform with the provisions of this Section 39.1(B).
Landlord shall develop Landlord's signage program for the entire Building with
due regard for the signage interests of each component of the Building.
(C) (1) Subject to the terms of this Section 39.1(C), Landlord shall
not lease or license (or permit to be leased or licensed) to any party other
than Tenant or Landlord's Affiliate any space on the exterior of the Lexington
Avenue Building that (i) constitutes the exterior of the eleventh (11th) or
twelfth (12th) floors thereof, or (ii) is located above the highest floor of the
Lexington Avenue Building that is designed for commercial or residential
occupancy, in either case for the installation of a sign or other means of
advertising or promotion at any time during the Term without first instituting
the procedure described in this Section 39.1(C). Nothing contained in this
Section 39.1(C) limits the provisions of Section 40.4 hereof.
(2) Landlord shall institute the procedure
described in this Section 39.1(C) by giving notice thereof (the "Signage Option
Notice") to Tenant, which Signage Option Notice shall describe (i) the
applicable portion of the Lexington Avenue Building that Landlord so proposes to
lease or license (or permit to be leased or licensed) (the "Applicable Signage
Option Space"), and (ii) the terms for which Landlord proposes to so lease or
license (or permit to be leased or licensed) the Applicable Signage Option
Space.
(3) Tenant shall have the option (the "Signage
Option") to lease or license the Applicable Signage Option Space on the terms
set forth in the Signage Option Notice by giving notice thereof (the "Signage
Response Notice") to Landlord not later than the thirtieth (30th) day after the
date that Landlord gives the Signage Option Notice to Tenant. Time shall be of
the essence as to the date by which Tenant must give the Signage Response Notice
to Landlord to exercise the Signage Option. If Tenant does not give the Signage
Response Notice to Landlord on or prior to the thirtieth (30th) day after the
date that Landlord gives the Signage Option Notice to Tenant, then Landlord
shall thereafter have the right to lease or license the Applicable Signage
Option Space (or any part thereof) for signage or advertising purposes to any
other party (subject, nevertheless, to Section 40.4 hereof) on terms acceptable
to Landlord in Landlord's sole discretion without being required to make any
other offer to Tenant regarding such Applicable Signage Option Space under this
Section 39.1(C); provided, however, that (X) if Landlord does not so lease or
license such Applicable Signage Option Space (or a part thereof) to another
party (which is not an Affiliate of Landlord) within two (2) years after the
date that Landlord gives the applicable Signage Option Notice to Tenant, then
Landlord shall not thereafter so lease or license (or permit to be so leased or
licensed) such Applicable Signage Option Space (or such part thereof) to another
party without first again complying with the procedure set forth in this Section
39.1(C), and (Y) if Landlord, during such two (2) year period, proposes to so
lease or license (or permit to be so leased or licensed) such Applicable Signage
Option Space to a third party on net economic terms that yield to Landlord less
than ninety percent (90%) of the terms that Landlord set forth in the Signage
Option Notice, then Landlord shall not so lease or license (or permit to be so
leased or licensed) such Applicable Signage Option Space to such third party
without first again offering such Applicable Signage
243
248
Option Space to Tenant on the terms offered by such third party in accordance
with the procedure set forth in this Section 39.1(C)(3), except that the
aforesaid period of thirty (30) days shall be reduced to a period of ten (10)
days. Tenant shall not have the right to revoke a Signage Response Notice given
to Landlord pursuant to this Section 39.1(C).
(4) Tenant shall not have the right to exercise
the Signage Option (and, accordingly (x) Landlord shall have no obligation to
give a Signage Option Notice to Tenant, and (y) Landlord shall have the right to
lease the Applicable Signage Option Space to any other party without first
offering the Signage Option Space to Tenant as contemplated by this Section
39.1(C)) if the Minimum Square Footage Requirement is not then satisfied. If
Tenant exercises the Signage Option, and the term of Tenant's lease or license
of the Applicable Signage Option Space extends beyond the Expiration Date, then
Landlord shall have the right to terminate Tenant's aforesaid lease or license
of the Applicable Signage Option Space effective as of the Expiration Date by
giving notice thereof to Tenant not later than the tenth (10th) day after the
Expiration Date (with the understanding that if Landlord so terminates Tenant's
aforesaid lease or license, then Landlord shall promptly refund to Tenant any
portion of the rental paid by Tenant thereunder that relates to the period from
and after the date that such lease or license so terminates). If Tenant
exercises the Signage Option, and, at any time thereafter, the Minimum Square
Footage Requirement is not then satisfied, then Landlord shall have the right to
terminate Tenant's aforesaid lease or license of the Applicable Signage Option
Space by giving notice thereof to Tenant not later than the tenth (10th) day
after the date that Tenant gives to Landlord notice to the effect that the
Minimum Square Footage Requirement is not then satisfied (with the understanding
that if Landlord so terminates Tenant's aforesaid lease or license, then
Landlord shall promptly refund to Tenant any portion of the rental paid by
Tenant thereunder that relates to the period from and after the date that such
lease or license so terminates).
Section 39.2 Tenant shall be entitled to name the Premises, but not the
Building, it being understood that (i) the name chosen by Tenant for the
Premises shall be subject to Landlord's prior consent, and (ii) Landlord shall
not unreasonably withhold, delay, or condition such consent, provided that the
name proposed by Tenant does not unreasonably conflict with and is not easily
confused with the name that Landlord is then using or intends to use in respect
of the Building (so that if, for example, Landlord intends to name the Building
"Lexington Center," then Tenant could not name the Premises "Bloomberg Center").
Landlord agrees to publicly refer to Tenant's occupancy at the Premises by the
name chosen by Tenant and approved by Landlord pursuant to this Section 39.2.
Section 39.3 Landlord shall cooperate reasonably with Tenant to obtain a
separate Lexington Avenue post office address for the Premises.
Section 39.4 Subject to the terms of this Section 39.4, Tenant, during the
construction of the Building, shall have the right to erect on the construction
barrier reasonable signage solely identifying Bloomberg as a future occupant of
the Building. Landlord shall have the right to approve any such signage that
Tenant proposes to erect on the construction barrier, which approval Landlord
shall not unreasonably withhold, condition or delay, provided that Tenant's
proposed signage for the construction barrier is reasonably consistent with
other signage on the construction barrier. Tenant shall erect any such signage
at Tenant's sole cost and expense and in
244
249
accordance with good construction practice. Tenant shall have the right to erect
such signage on the construction barrier solely to the extent (if any) permitted
by applicable Requirements. Tenant shall maintain any signage that Tenant erects
on the construction barrier as contemplated by this Section 39.4 in a
first-class manner. Tenant, at Tenant's sole cost and expense, shall remove, in
accordance with good construction practice, any such signage that Tenant erects
on the construction barrier, with reasonable promptness after Landlord gives
Tenant a Construction Notice relating thereto (it being understood that Landlord
shall not require Tenant to so remove such signage earlier than the date that
Landlord reasonably requires such signage to be removed in accordance with good
construction practice as the construction of the Building progresses). Tenant
acknowledges that (i) there exists a material likelihood that construction
activities will damage the aforesaid signage that Tenant installs on the
construction barrier, and (ii) accordingly, Tenant assumes the risk that such
damage will occur.
Section 39.5 Subject to the terms of this Section 39.5, Landlord shall not
unreasonably withhold, condition or delay Landlord's approval of Tenant's
installation of a flag or banner in the Lexington Place Courtyard in the area
that is adjacent to the entrance to the Exclusive Lobby Area. Landlord shall
have the right to reject any such flag or banner proposed by Tenant if Landlord
reasonably determines that such flag or banner is inconsistent with the Building
Standard. Tenant shall install any such flag or banner that is approved by
Landlord in accordance with all applicable Requirements, the Rules and
Regulations and the terms of Article 3 hereof (as if such installation
constituted an Alteration). Tenant shall not have the right to install or
maintain any such flag or banner if Tenant does not satisfy the Minimum Square
Footage Requirement. Tenant shall maintain any such flag or banner that is
approved by Landlord in accordance with the Building Standard. Any such
installation of such flag or banner, and the maintenance thereof, in either case
as contemplated by this Section 39.5, shall be at Tenant's sole cost and
expense. Tenant, at Tenant's sole cost and expense, shall remove any such flag
or banner that Tenant installs in accordance with the terms of this Section
39.5, together with the appurtenant flagpole, supports and other similar
apparatus, upon the expiration or earlier termination of the Term, or promptly
after Tenant's right to maintain such flag or banner terminates under this
Section 39.5, as the case may be, and repair any damage to the Building caused
by such removal or the installation thereof; provided, however, that Landlord
shall have the right to require Tenant to not remove such flagpole, supports or
other apparatus by giving notice thereof to Tenant on or prior to the date that
Tenant so removes such flagpole, supports or other apparatus.
ARTICLE 40
CERTAIN RESTRICTIONS
Section 40.1 (A) Subject to the terms of this Article 40, Landlord shall
not sell the fee estate in the Entire Premises (or any portion thereof) to a
Primary Competitor. Subject to the terms of this Article 40, Landlord shall not
permit Direct Equity to be sold to a Primary Competitor. Subject to the terms of
this Article 40, Landlord shall not permit Indirect Equity to be sold to a
Primary Competitor; provided, however, that such limitation on the sale of
Indirect Equity shall not apply from and after the first day of the Public
Information Period.
245
250
(B) Subject to the terms of this Article 40, Landlord shall
not sell the fee estate in the Entire Premises (or any portion thereof) to a
Regular Competitor unless Landlord has first complied with the procedure
described in this Section 40.1(B). Landlord shall institute the procedure
described in this Section 40.1(B) by delivering to Tenant a term sheet which
contains the name of such Regular Competitor and describes all of the material
economic terms of the applicable transaction, including, without limitation, the
selling price, the closing date, the amount of the downpayment, whether the
Regular Competitor's liability is limited to such downpayment if such Regular
Competitor defaults in respect of such proposed transaction, the effect of the
occurrence of an intervening casualty or condemnation on the proposed
transaction, and the party responsible for the payment of the various
transaction costs, in each case to the extent applicable (the transaction
described in such term sheet being referred to herein as the "Proposed
Competitor Asset Transaction"). Tenant shall have the right to consummate the
Proposed Competitor Asset Transaction with Landlord (in lieu of Landlord's
consummating the Proposed Competitor Asset Transaction with the Regular
Competitor) by giving notice thereof (the "Asset Acceptance Notice") to Landlord
on or prior to the twentieth (20th) day after the date that Landlord gives such
notice to Tenant (as to which period of twenty (20) days time shall be of the
essence). If Tenant fails to give Landlord an Asset Acceptance Notice prior to
the expiration of such period of twenty (20) days, then Landlord shall be free
to consummate the Proposed Competitor Asset Transaction with such Regular
Competitor on substantially the same economic terms as those set forth in the
aforesaid term sheet. If, however, (i) Landlord fails to consummate the Proposed
Competitor Asset Transaction within one (1) year after the expiration of such
period of twenty (20) days, or (ii) Landlord desires to consummate the Proposed
Competitor Asset Transaction on terms that are not substantially the same as
those set forth in the aforesaid term sheet, then Landlord shall be required to
again institute the procedure described in this Section 40.1(B) in respect
thereof. If Tenant gives an Asset Acceptance Notice to Landlord in respect of a
Proposed Competitor Asset Transaction, then Landlord and Tenant shall consummate
the Proposed Competitor Asset Transaction on the terms and within the time frame
set forth in the aforesaid term sheet (with the understanding that if Tenant
defaults in respect of Tenant's obligation to consummate the Proposed Competitor
Asset Transaction, then Tenant shall be liable to Landlord therefor, except to
the extent that the Regular Competitor's liability under the Proposed Competitor
Asset Transaction was limited to the downpayment pursuant to the aforesaid term
sheet).
(C) Subject to the terms of this Article 40, Landlord shall
not permit (i) Direct Equity to be sold to a Regular Competitor, or (ii)
Indirect Equity to be sold to a Regular Competitor, unless, in either case,
Landlord has first complied with the procedure described in this Section
40.1(C); provided, however, that the provisions of this Section 40.1(C) shall
not limit the sale of Indirect Equity from and after the first day of the Public
Information Period. Landlord shall institute the procedure described in this
Section 40.1(C) by delivering to Tenant a term sheet which contains the name of
such Regular Competitor, and describes all of the material economic terms of the
applicable transaction, including, without limitation, the selling price, the
closing date, the amount of the downpayment, whether the liability of the
Regular Competitor is limited to such downpayment if such Regular Competitor
defaults in respect of such proposed transaction, the effect of the occurrence
of an intervening casualty or condemnation on the proposed transaction, and the
party responsible for the payment of the various transaction costs,
246
251
in each case to the extent applicable (the transaction described in such term
sheet being referred to herein as the "Proposed Competitor Equity Transaction").
Tenant shall have the right to consummate the Proposed Competitor Equity
Transaction (in lieu of Landlord's consummating the Proposed Competitor Equity
Transaction with the Regular Competitor) by giving notice thereof (the "Equity
Acceptance Notice") to Landlord on or prior to the twentieth (20th) day after
the date that Landlord gives such notice to Tenant (as to which period of twenty
(20) days time shall be of the essence). If Tenant fails to give Landlord an
Equity Acceptance Notice prior to the expiration of such period of twenty (20)
days, then Landlord shall be free to consummate the Proposed Competitor Equity
Transaction with such Regular Competitor on substantially the same economic
terms as those set forth in the aforesaid term sheet. If, however, (i) Landlord
fails to consummate the Proposed Competitor Equity Transaction within one (1)
year after the expiration of such period of twenty (20) days, or (ii) Landlord
desires to consummate the Proposed Competitor Equity Transaction on terms that
are not substantially the same as those set forth in the aforesaid term sheet,
then Landlord shall be required to again institute the procedure described in
this Section 40.1(C) in respect thereof. If Tenant gives an Equity Acceptance
Notice to Landlord in respect of a Proposed Competitor Equity Transaction, then
Landlord and Tenant shall consummate the Proposed Competitor Equity Transaction
on the terms and within the time frame set forth in the aforesaid term sheet
(with the understanding that if Tenant defaults in respect of Tenant's
obligation to consummate the Proposed Competitor Equity Transaction, then Tenant
shall be liable to Landlord therefor, except to the extent that the Competitor's
liability under the Proposed Competitor Equity Transaction was limited to the
downpayment pursuant to the aforesaid term sheet). As used herein, the term
"Direct Equity" shall mean the equity interests in the entity that constitutes
Landlord; provided, however, that Direct Equity shall not include any interests
in Landlord that have been distributed in a public offering of securities. As
used herein, the term "Indirect Equity" shall mean the equity interests in any
entity that directly or indirectly owns Direct Equity; provided, however, that
such equity interests in any such entity shall not constitute Indirect Equity if
such equity interests in such entity have been distributed in a public offering
of securities.
(D) Subject to the terms of Section 40.1(E) hereof and
Section 40.1 (F) hereof, Landlord shall not grant to a Competitor a Mortgage
that encumbers the interest owned by Landlord in the Entire Premises or any
portion thereof. Subject to the terms of Section 40.1(E) hereof and Section
40.1(F) hereof, Landlord shall not permit to be granted to any Competitor a
security interest in any Direct Equity. Subject to the terms of Section 40.1(E)
hereof and Section 40.1(F) hereof, Landlord shall not permit to be granted to
any Competitor a security interest in Indirect Equity.
(E) If Tenant at any time makes its financial information
available to the general public (either directly or by virtue of Tenant's making
filings with the Securities and Exchange Commission or by virtue of Tenant's
making disclosures for a public offering of securities in an offering memorandum
or other similar disclosure document) (the period of time commencing on the date
that Tenant makes its financial information available to the general public
being referred to herein as the "Public Information Period"), then references in
Section 40.1(D) hereof to the term "Competitor" shall be deemed to be references
to the term "Primary Competitor" only. Tenant acknowledges that the Public
Information Period shall be
247
252
deemed to have commenced on the date that Tenant merges or consolidates into an
entity for which financial information is available to the general public
(either directly or by virtue of such entity's making filings with the
Securities and Exchange Commission or by virtue of such entity's making
disclosures for a public offering in securities in an offering memorandum or
other similar disclosure document).
(F) The terms of Section 40.1(A) hereof and Section 40.1(B)
hereof shall not apply to (a) a public or private sale of the Entire Premises
(or any portion thereof) by or on behalf of any Mortgagee, (b) the transfer of
the Entire Premises (or any portion thereof) by a deed in lieu of foreclosure,
or other similar transfer, to a Mortgagee or a Mortgagee's designee, or (c) any
sale of the Entire Premises (or any portion thereof) by any Person who obtained
title thereto in the manner described in clause (a) or clause (b) above (unless
such Person acquired title to the Entire Premises (or such portion thereof) in
such manner for the principal purpose of subsequently conveying the Entire
Premises (or such portion thereof) to a Competitor in contravention of the
provisions of this Section 40.1). The terms of Section 40.1(A) hereof and
Section 40.1(C) hereof shall not apply to (i) a public or private sale of the
Direct Equity (or any portion thereof) or Indirect Equity (or any portion
thereof) in either case by or on behalf of any Person that has a security
interest therein (an "Equity Creditor"), (ii) the transfer of the Direct Equity
(or any portion thereof) or the Indirect Equity (or any portion thereof) to an
Equity Creditor or an Equity Creditor's designee in satisfaction of the
indebtedness or obligations owed to such Equity Creditor in whole or in part, or
(iii) any sale of the Direct Equity (or any portion thereof) or the Indirect
Equity (or any portion thereof) in either case by any Person who obtained title
thereto in the manner described in clause (i) or clause (ii) above (unless such
Person acquired title to the Direct Equity (or such portion thereof) or the
Indirect Equity (or such portion thereof) in such manner for the principal
purpose of subsequently conveying the Direct Equity (or such portion thereof) or
such Indirect Equity (or such portion thereof) to a Competitor in contravention
of the provisions of this Section 40.1). The provisions of Section 40.1(D)
hereof shall not apply to a grant of a Mortgage by (i) a purchaser of the Entire
Premises (or any portion thereof) at a public or private sale held by or on
behalf of a Mortgagee, (ii) a Person that acquires the Entire Premises (or any
portion thereof) by a deed in lieu of foreclosure or other similar transfer, or
(iii) a Person that acquires the Entire Premises (or any portion thereof) from a
Person described in clause (i) or clause (ii) above (unless such Person acquired
title to the Entire Premises (or such portion thereof) in such manner for the
principal purpose of subsequently mortgaging the Entire Premises (or a portion
thereof) to a Competitor in contravention of the provisions of this Section
40.1). The provisions of Section 40.1(D) hereof shall not apply to a grant of a
security interest in the Direct Equity or the Indirect Equity by (I) a purchaser
of the Direct Equity (or any portion thereof) or the Indirect Equity (or any
portion thereof) at a public or private sale held by or on behalf of an Equity
Creditor, (II) a Person that acquires the Direct Equity (or any portion thereof)
or the Indirect Equity (or any portion thereof) in satisfaction of the
indebtedness or obligations owed to an Equity Creditor in whole or in part, or
(III) a Person that acquires the Direct Equity (or any portion thereof) or the
Indirect Equity (or any portion thereof) from a Person described in clause (I)
or clause (II) above (unless such Person acquired title to the Direct Equity (or
such portion thereof) or the Indirect Equity (or such portion thereof) in such
manner for the principal purpose of subsequently granting a security interest in
the Direct
248
253
Equity (or a portion thereof) or the Indirect Equity (or such portion thereof)
to a Competitor in contravention of the provisions of this Section 40.1).
Section 40.2 During the period prior to the Public Information Period,
Landlord shall not engage a Competitor as the property manager for the Premises.
During the period from and after the first day of the Public Information Period,
Landlord shall not engage a Primary Competitor as the property manager for the
Premises.
Section 40.3 Subject to the terms of this Section 40.3, Landlord shall not
permit any Competitor to use for the conduct of its business any portion of the
Entire Premises or any other space located on Lower Xxxxx 0 xx xxx Xxxxxxxx,
Xxxxx Xxxxx 0 of the Building, Lower Level 1 of the Building, the ground floor
of the Building, or the second (2nd) floor of the Building (such other space
located on Lower Xxxxx 0 xx xxx Xxxxxxxx, Xxxxx Xxxxx 0 of the Building, Lower
Level 1 of the Building, the ground floor of the Building, or the second (2nd)
floor of the Building being referred to herein as the "Retail Area"), except
that the portion of the Retail Area located in the Third Avenue Building may be
so used by any Competitor which is not a Primary Competitor, provided such use
is not for a television, radio or Internet studio. Nothing contained in this
Section 40.3 shall require Landlord to prohibit a Person that is a Competitor
from using any portion of the Entire Premises or the Retail Area (a) unless such
Person constitutes a Competitor on the earlier of (x) the date that such Person
entered into occupancy of the applicable space, and (y) the date that such
Person entered into an agreement to occupy the applicable space, or (b) if such
Person occupies a portion of the Premises pursuant to a sublease by Tenant or an
assignment of Tenant's interest hereunder (it being understood that this clause
(b) does not limit Landlord's obligation not to permit any other Person that
constitutes a Competitor to use the Entire Premises or the Retail Area for the
conduct of business as provided in this Section 40.3). Landlord shall not permit
any Primary Competitor to use for the conduct of business any portion of the
Building (other than the Premises) that is being constructed by Landlord as part
of the Work for commercial office purposes (as reflected in the Schematic
Drawings) (including, without limitation, any Recapture Space or Subleasehold
Assignment Space with respect to which Landlord exercises Landlord's rights
under Article 12 hereof); provided, however, that nothing contained in this
Section 40.3 shall require Landlord to prohibit a Person that is a Primary
Competitor from using any such portion of the Building unless such Person
constitutes a Primary Competitor on the earlier of (x) the date that such Person
entered into occupancy of the applicable space, and (y) the date that such
Person entered into an agreement to occupy the applicable space.
Section 40.4 Subject to the terms of this Section 40.4, Landlord shall not
erect, or permit the erection of, any signs on the exterior of the Building that
identify any of the Competitors. Nothing contained in this Section 40.4 shall
require Landlord to prohibit the erection of signs which identify a Person that
is a Competitor unless such Person constitutes a Competitor on the earliest of
(a) the date such signs are first erected on the exterior of the Building, (b)
the date, if any, such Person entered into occupancy of space at the Building,
and (c) the date, if any, that such Person entered into an agreement to occupy
space at the Building. Nothing contained in this Section 40.4 limits Landlord's
rights to install signs on the exterior of the Building for purposes of
identifying the occupant of any of the Retail Areas (provided such
249
254
signs are reasonable and customary for a retail occupant). Landlord shall not
erect, or permit the erection of, any signs on the construction barriers that
are installed during the construction of the Building that identify any of the
Competitors (except to the extent reasonably determined by Landlord in
connection with a Competitor's occupancy or proposed occupancy of a portion of
the Retail Area in accordance with the terms hereof). Landlord shall not install
any signs in the interior of the Recovered Elevators that identify a Competitor.
Section 40.5 Subject to the terms of this Section 40.5, if (i) an
Affiliate of Vornado Realty Trust ("VRT") owns the fee interest in the real
property known by the street address of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, and (ii) VRT Controls Landlord, then Landlord shall not erect, or permit
the erection of, any signs on the exterior of the building located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, which identify any Primary Competitor, except
for a sign that (a) identifies a Primary Competitor which is in occupancy of (or
which, pursuant to a written agreement, is then or will be entitled to be in
occupancy of ) space at such building, and (b) is customary in nature given such
occupancy (or anticipated occupancy pursuant to a written agreement with such
Competitor). Nothing contained in this Section 40.5 shall require Landlord to
prohibit the erection of signs which identify a Person that is a Primary
Competitor unless such Person constitutes a Primary Competitor on the earliest
of (i) the date such signs are first erected on the exterior of the building
located at 000 Xxxx 00xx Xxxxxx, (xx) the date such Person entered into
occupancy of space at such building, if applicable, and (iii) the date such
Person entered into an agreement to occupy space at such building. Landlord
hereby represents and warrants to Tenant that as of the date hereof (x) VRT's
Affiliate owns the fee interest in the real property known by the street address
of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and (y) VRT Controls Landlord.
Section 40.6 Subject to the terms of this Section 40.6, Landlord shall not
name, or permit to be named, the Building for a Competitor. Nothing contained in
this Section 40.6 shall prohibit the naming of the Building in a manner which
identifies a Person that is a Competitor unless such Person constitutes a
Competitor on the earlier of (a) the date on which the entire Building is so
named, and (b) the date on which Landlord (or the Condominium Association)
entered into an agreement to so name the entire Building.
Section 40.7 Tenant shall have the right, from time to time, on no less
than ten (10) days of prior notice to Landlord, to remove any Person from the
List of Regular Competitors and insert thereon any other Person, provided that
(i) the Person that Tenant proposes to insert on the List of Regular Competitors
derives, in such Person's most recently ended fiscal year, more than one-half
(1/2) of its revenues from a business or from businesses in either case in
competition with Tenant's Core Business, and (ii) the number of Persons on the
List of Regular Competitors shall in no event exceed five (5). In no event may
Tenant replace any Person on the List of Primary Competitors or place any other
Person thereon, except that if any Person succeeds to the interest of a Person
on the List of Primary Competitors as a result of a merger or consolidation or
the sale of all or substantially all of the assets of such Primary Competitor,
then the List of Primary Competitors shall be updated to remove such Person
therefrom and place the Person surviving such merger or consolidation or such
sale thereon if such Person surviving such merger or consolidation or such sale
derives, in such Person's most recently ended fiscal year, more than
250
255
one-half (1/2) of its revenues from a business or businesses in either case in
competition with Tenant's Core Business. Landlord may, from time to time,
request that Tenant update the List of Regular Competitors in accordance with
this Section 40.7. No later than ten (10) days after Landlord makes such
request, Tenant shall notify Landlord of any Person or Persons which Tenant
elects to remove from the List of Regular Competitors and any Person or Persons
which Tenant proposes to place thereon. For the nine (9) month period following
the expiration of such ten (10) day period, Tenant shall not be entitled to
update the List of Regular Competitors as contemplated by this Section 40.7.
Section 40.8 Notwithstanding anything to the contrary contained in Section
40.1 hereof through Section 40.7 hereof, the provisions of Section 40.1 through
Section 40.7 hereof shall become ineffective if (i) the Minimum Square Footage
Requirement is not satisfied, or (ii) at any time, Tenant subleases all or any
portion of the Premises or assigns the tenant's interest under this Lease in
either case to a Primary Competitor (or otherwise permits a Primary Competitor
to use or occupy all or any portion of the Premises). If Tenant subleases all or
any portion of the Premises or assigns the tenant's interest under this Lease in
either case to a Competitor on the List of Regular Competitors (or otherwise
permits such Competitor to use or occupy all or any portion of the Premises),
then such Competitor shall no longer constitute a Competitor for purposes of
this Article 40.
Section 40.9 Landlord shall not use or permit the use of any other portion
of the Building for (i) the sale of pornographic or obscene materials or for any
similar purpose or as a "massage parlor," "sex club" or "topless bar" or other
similar establishment, (ii) a facility for the sale of paraphernalia for use
with illicit drugs, or (iii) an off-track betting parlor; provided, however,
that nothing contained in this Section 40.9 limits Landlord's right to use or
permit to be used space in the Building to a newsstand, bookstore or other
similar establishment that constitutes a first-class retail establishment, but
nevertheless stocks books, magazines or other materials which, viewed alone, may
constitute pornography or obscene material, as long as a reasonable customer
would not consider the inventory of such bookstore, newsstand or other
establishment, as a whole, as pornographic or obscene.
Section 40.10 Landlord shall not install, or permit to be installed, any
signs on the exterior of the Building that (x) do not conform with the Building
Standard, or (y) interfere with the views from windows in the Premises (except,
in either case, to the extent otherwise required by applicable Requirements).
Section 40.11 Subject to Section 2.6 hereof, Landlord shall not install,
or permit to be installed, any exterior lighting for the Building that
interferes in any material respect with Tenant's use and occupancy of the
Premises.
Section 40.12 Landlord, during the Term, shall not permit any portion of
the Building that is used for office purposes (other than the Premises) to be
used (1) for the business of photographic, multilith or multigraph reproductions
or offset printing, except in connection with, either directly or indirectly,
the occupant's own business and/or activities (provided that such occupant's
principal business is not photographic, multilith, or multigraph reproductions
or offset printing), (2) for a business that conducts retail trade on an
off-the-street basis, (3) as a restaurant
251
256
or bar or for the sale of confectionery, soda or other beverages, sandwiches,
ice cream or baked goods or for the preparation, dispensing or consumption of
food or beverages in any manner whatsoever, except for consumption by the
occupant's partners, principals, members, agents, officers, employees and
business guests, (4) as an employment agency, executive search firm or similar
enterprise, labor union, school, or vocational training center (except for the
training of employees of such occupant), or (5) for any purpose that is
inconsistent with the Building Standard.
Section 40.13 Subject to the terms of this Section 40.13, Landlord, during
the Term, shall not permit the portion of the facade of the Lexington Avenue
Building that is on the second (2nd) floor thereof and that is immediately above
the Lexington Avenue canopy to be used by the occupant of the second (2nd) floor
of the Lexington Avenue Building to display merchandise or otherwise erect
signage or other material that is intended principally for advertising or
promotion. Landlord shall construct the Building in a manner that integrates
into a single architectural component (i) the entrance to the Shared Lobby Area
on Lexington Avenue, and (ii) the portion of the facade of the Building at the
second (2nd) floor of the Lexington Avenue Building that is immediately above
such entrance to the Shared Lobby Area (with the understanding that Landlord,
during the Term, shall not alter or permit to be altered such portion of the
facade of the Lexington Avenue Building in a manner that would not integrate
such portions of the facade of the Lexington Avenue Building into a single
architectural component).
Section 40.14 Landlord shall not permit any portion of the Retail Area
that fronts on the Lexington Place Courtyard to be used for a purpose that does
not conform with the Building Standard; provided, however, that the provisions
of this Section 40.14 shall not apply at any time that the Minimum Square
Footage Requirement is not satisfied.
Section 40.15 Subject to the terms of this Section 40.15, Landlord shall
not permit another occupant of the Building that conducts retail trade to (i)
gain access to or egress from such occupant's space into the Shared Lobby Area
(except to the extent that (x) such access or egress is required to comply with
Requirements, and (y) such access or egress is used by such occupant only in the
case of an emergency), or (ii) install display windows or otherwise promote or
advertise its business in the Shared Lobby Area (it being the parties' intention
that Landlord shall not permit the Shared Lobby Area to be used for retail
purposes or to otherwise express the identity of retail occupants in the
Building). This Section 40.15 shall only apply during the period with respect to
which Tenant satisfies the Minimum Square Footage Requirement.
252
257
ARTICLE 41
GOVERNMENTAL INCENTIVES
Landlord shall cooperate with Tenant in Tenant's efforts to negotiate,
implement and receive the benefits of an incentive package with various
Governmental Authorities, and to execute and deliver any supplements or
modifications to this Lease that are reasonably required in connection
therewith, provided that no such Lease modification or supplement shall (a)
increase any obligation of Landlord under this Lease, (b) adversely affect any
right of or benefit to Landlord under this Lease (except to a de minimis
extent), (c) relieve Tenant of or reduce any of its obligations under this
Lease, or (d) interfere in any material respect with Landlord's ability to
arrange financing for Landlord's interest in the Premises or to consummate the
Lease Conversion. Any and all fees, costs and expenses imposed by the applicable
Governmental Authority shall be borne solely by Tenant, and Tenant shall
reimburse Landlord within thirty (30) days of Landlord's demand therefor, for
any and all reasonable out-of-pocket fees, costs and expenses actually incurred
by Landlord in connection with Tenant's requests and in cooperating with Tenant
as provided in this Article 41, including, without limitation, the reasonable
costs and expenses of Landlord's counsel, consultants and professionals.
Notwithstanding anything herein contained to the contrary, any benefits obtained
by Tenant (or on behalf of Tenant) at Tenant's sole expense from any
Governmental Authority shall be solely for the benefit of Tenant and to the
extent that any of the same are granted to Landlord, Landlord shall assign (or
pay) the same promptly to Tenant. Nothing contained in this Article 41 limits or
expands Tenant's rights to use Section 421-a Benefits under Section 26.2(G)
hereof.
253
258
ARTICLE 42
ROOF RIGHTS
Section 42.1 Subject to the terms of this Article 42 and Article 22
hereof, Landlord shall not unreasonably withhold, delay or condition its consent
to Tenant's installing on the roof of the Lexington Avenue Building four (4)
microwave dishes with a diameter of three (3) feet each, together with related
equipment, mountings and supports, in a location on the roof of the Lexington
Avenue Building reasonably designated by Landlord for use solely by Tenant
(and/or other Permitted Occupants) (and not for resale purposes) (such four (4)
microwave dishes and such related equipment, mountings and supports being
collectively referred to herein as the "Basic Antennae"). The location on the
roof of the Lexington Avenue Building so reasonably designated by Landlord shall
be sufficient in size to accommodate the Basic Antennae (it being understood
that such location so designated by Landlord may consist of area on the roof of
the Lexington Avenue Building or on an antennae mast that Landlord constructs on
the roof of the Lexington Avenue Building) (the area so reasonably designated by
Landlord being referred to herein as the "Basic Antennae Site"). Landlord shall
not unreasonably withhold, condition or delay (or permit the Condominium
Association to unreasonably withhold, condition or delay) consent to Tenant's
installation of additional antennae and/or microwave and/or satellite dishes,
together with related equipment, mountings and supports (collectively, the
"Additional Antennae") in locations on the roof of the Lexington Avenue Building
other than the Basic Antennae Site (it being understood, however, that Landlord
(or the Condominium Association), in considering any such additional
installations of Additional Antennae in locations other than the Basic Antennae
Site, shall have the right to take into account the requirements of the Building
and the requirements of other occupants of the Building, or any such
requirements that Landlord (or the Condominium Association) reasonably expects
to arise in the foreseeable future) (any such additional location on the roof of
the Lexington Avenue Building where Landlord (or the Condominium Association)
consents to Tenant's installation of Additional Antennae being referred to
herein as the "Additional Antennae Site").
Section 42.2 Tenant's rights to use of the Basic Antennae Site and any
Additional Antennae Site (the Basic Antennae Site and any Additional Antennae
Site being collectively referred to herein as the "Antennae Site") as
contemplated by this Article 42 shall be on a non-exclusive basis. In connection
with Tenant's installation of the Basic Antennae or the Additional Antennae
(collectively, "Antennae") in the Antennae Site, Landlord shall make available
(or shall cause the Condominium Association to make available) to Tenant
reasonable access to the roof of the Lexington Avenue Building for the
construction, installation, maintenance, repair, operation and use of the
Antennae. Except as otherwise expressly set forth in this Article 42, the
Antennae shall be deemed for all purposes of this Lease to be a Specialty
Alteration. Tenant shall perform Tenant's installation of the Antennae as
contemplated by this Section 42.1 in accordance with the provisions of Article 3
hereof. Tenant, as part of such installation, shall reinforce the structure of
the Lexington Avenue Building (including, without limitation, the roof of the
Lexington Avenue Building and the columns on the floors below such roof), to the
extent reasonably required by Landlord. All of the provisions of this Lease with
respect to Tenant's obligations hereunder shall apply to the installation, use
and maintenance of the Antennae, including, without limitation, provisions
relating to compliance with
254
259
Requirements, insurance, indemnity, repairs and maintenance. The rights granted
to Tenant in this Article 42 shall not be assignable by Tenant separate and
apart from this Lease.
Section 42.3 Tenant shall not be required to pay any license fee or other
similar charge for the Basic Antennae Site (it being understood, however, that
Tenant shall remain obligated to pay any other charges that are otherwise due to
Landlord under this Lease in connection therewith, including, without
limitation, amounts that are payable to Landlord under Article 3 hereof in
connection with Tenant's performance of Alterations in the Basic Antennae Site).
Tenant shall pay a fee (the "License Fee") to Landlord for its use of any
Additional Antennae Site in an annual amount equal to the Fair Market Rent
therefor, payable in equal monthly installments commencing on the date that
Landlord gives Tenant the use thereof and ending on the Expiration Date. If
Landlord grants to Tenant the right to install the Additional Antennae in any
Additional Antennae Site, then the parties shall determine the Fair Market Rent
therefor in accordance with Article 38 hereof.
Section 42.4 Landlord retains the right to use the Antennae Site for any
reasonable purpose whatsoever, including, without limitation, for purposes of
running pipes, ducts, or other equipment through the Antennae Site, provided
that Landlord does not unreasonably interfere with the use of the Antennae Site
by Tenant (or the applicable Permitted Occupant) for the operation of the
Antennae. Tenant shall use the Antennae so as not to cause any material
interference to Landlord or other tenants or occupants in the Building, or
material interference with or material disturbance to the reception or
transmission of communication signals by or from any antennae, satellite dishes
or similar equipment installed by Landlord or any other tenant or occupant in
the Building, in either case prior to the date that the Antennae is installed,
or material damage to or material interference with the operation of the
Building or Building Systems. If, after any Antennae is installed by Tenant, it
is discovered that the Antennae causes any such interference, damage or
disturbance to any such antennae, satellite dishes, or similar equipment
installed by Landlord or any other tenant or occupant in the Building prior to
the date that the Antennae is installed, then Tenant, at its sole cost and
expense, shall relocate its Antennae from the Antennae Site to another area on
the roof reasonably designated by Landlord. If such interference or disturbance
still occurs despite such relocation, and, despite Landlord's diligent efforts,
there exists no reasonably practicable site on the roof of the Building for the
relocation of the Antennae, then Tenant, at its sole cost and expense, shall
promptly remove its Antennae from the Antennae Site, whereupon the rights
granted by Landlord to Tenant pursuant to this Article 42 shall terminate (and
any installment of the License Fee paid by Tenant to Landlord hereunder in
respect of any period of time after the date upon which Tenant so removes the
Antennae shall be credited by Landlord against Tenant's next installments of
Rental due hereunder). If Tenant fails to relocate or remove the Antennae as
required hereunder, then Landlord may do so, and Tenant shall reimburse Landlord
for any reasonable costs incurred by Landlord in connection therewith within
thirty (30) days after Landlord's request therefor and Landlord's submission to
Tenant of reasonable supporting documentation for such costs.
Section 42.5 Landlord shall not have any obligations with respect to the
Antennae or compliance with any Requirements relating thereto (including,
without limitation, the obtaining of any required permits or licenses, or the
maintenance thereof). Landlord shall not be
255
260
responsible for any damage that may be caused to Tenant or the Antennae by any
other tenant or occupants of the Building, or for any interference or
disturbance caused to the Antennae by any equipment installed on or in the
Building prior to the Antennae. Notwithstanding the foregoing, Landlord shall
use reasonable efforts to keep other tenants or occupants of the Building from
interfering with Tenant's occupancy of the Antennae Site or use of the Antennae,
provided that Landlord shall not be obligated to expend any funds or to
institute any proceedings in connection with such efforts by Landlord (it being
understood that such reasonable efforts shall include, without limitation,
managing the allocation of roof space among occupants of the Building, seeking
to restrict unauthorized access to the roof, and maintaining the roof free of
debris and other destructions to Tenant's operation and maintenance of the
Antennae to prevent interference from other devices). Landlord makes no
representation that the Antennae will be able to receive or transmit
communication signals without interference or disturbance (whether or not by
reason of the installation or use of similar equipment by others on the roof)
and Tenant agrees that Landlord shall not be liable to Tenant therefor.
Section 42.6 Tenant, at Tenant's sole cost and expense, shall paint and
maintain the Antennae in white or such other color as Landlord shall determine
and shall install such lightning rods or air terminals on or about the Antennae
as Landlord may reasonably require; provided, however, that Landlord shall not
have the right to require Tenant to take steps under this Section 42.6 that have
an adverse effect on the operation of the Antennae.
Section 42.7 Tenant shall (i) be solely responsible for any damage caused
to Landlord or any other Person or property as a result of the installation,
maintenance or use of the Antennae, (ii) promptly pay any tax, license, permit
or other fees or charges imposed pursuant to any Requirements relating to the
installation, maintenance or use of the Antennae, (iii) promptly comply with all
precautions and safeguards recommended by Landlord's insurance company and all
Governmental Authorities, and (iv) perform all necessary repairs or replacements
to, or maintenance of, the Antennae.
Section 42.8 Tenant acknowledges and agrees that the privileges granted
Tenant under this Article 42 shall merely constitute a license and shall not,
now or at any time after the installation of the Antennae, be deemed to grant
Tenant (or any Permitted Occupant) a leasehold or other real property interest
in the Antennae Site or any portion of the roof of the Building. The license
granted to Tenant in this Article 42 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 (it being agreed that the license granted pursuant to
this Article 42 shall not be terminated during any period of time that this
Lease is in full force and effect, except to the extent expressly provided in
this Article 42). The foregoing notwithstanding, upon request by Landlord,
Tenant, at Tenant's sole cost and expense, shall promptly execute and deliver to
Landlord, in recordable form, any certificate or other document confirming the
termination of Tenant's right to use the roof of the Building.
Section 42.9 Landlord shall have the right to terminate Tenant's right to
use all or any portion of the Additional Antennae Site if, at any time after the
Last Rent Commencement Date, this Lease demises less than Three Hundred Fifty
Thousand (350,000) square feet of Rentable
256
261
Area. Landlord shall have the right to terminate Tenant's right to use all or
any portion of the Antennae Site if, any time from and after the Last Rent
Commencement Date, this Lease demises less than One Hundred Thousand (100,000)
square feet of Rentable Area.
257
262
IN WITNESS WHEREOF, Landlord and Tenant have each duly executed and
delivered this Lease as of the day and year first above written.
SEVEN THIRTY ONE LIMITED PARTNERSHIP, Landlord
By: Alexander's Department Stores of Lexington
Avenue, Inc., general partner
By: /s/ Xxxxxxx Xxxxxxxxxx
__________________________________________
Name: Xxxxxxx Xxxxxxxxxx
Title: President
BLOOMBERG L.P., Tenant
By: Bloomberg Inc., general partner
By: /s/ Xxxx X. Xxxxxx, Xx.
__________________________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Director of Real Estate
258
