ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
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AND AMENDMENT TO LEASE
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ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT AND AMENDMENT TO LEASE
(this "Agreement") dated as of October 1, 1999 by and among XXXXXX & XXXXX,
INC., a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Assignor"), XXXXXXXXXXXXXX.XXX LLC, a Delaware limited
liability company, having an office at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Assignee") and 111 CHELSEA LLC, a Delaware limited liability company
("Landlord").
RECITALS
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A. Assignor is the holder of the tenant's interest in that certain
Agreement of Lease (the "Original Lease"), dated as of June 30, 1997, between
Landlord's predecessor-in-interest, P.A. Building Company ("PA") as landlord,
and Assignor, as tenant, which Original Lease was amended by (i) letter
agreement of even date with the Original Lease, between PA and Assignor (the
"PBI Letter"), (ii) letter agreement, dated July 1, 1997, between PA and
Assignor (iii) Modification of Lease Agreement dated as of January 1998, between
Landlord and Assignor and (iv) Amendment of Lease dated as of September 1, 1998,
between Landlord and Assignor, and as so amended, is referred to herein as the
"Lease". The Lease, as so amended, demises a portion of the eleventh (11th)
floor consisting of approximately 76,654 Rentable Square Feet (the "11th Floor
Space"), a portion of the roof space consisting of approximately 000 Xxxxxxxx
Xxxxxx Feet (the "Roof Space") and a portion of the Upper Sub Basement
consisting of approximately 000 Xxxxxxxx Xxxxxx Feet (the "Basement Space")
(collectively, the "Premises") of the building known as 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Building"). For purposes of this Agreement, the term
"Rentable Square Feet" shall mean the deemed rentable area of the Building or
any portion thereof, computed on the basis of the current standard employed by
Landlord on the date hereof with respect to the calculation of the deemed
Rentable Square Foot area of the Building; provided, however, that in no event
shall such deemed Rentable Square Footage constitute or imply any representation
or warranty by Landlord as to the actual size of any floor or other portion of
the Building, including the Premises.
B. Assignor desires to assign unto Assignee all of Assignor's
right, title and interest as tenant in, to and under the Lease, and Assignee
desires to succeed to the interest of Assignor, and to assume the obligations of
Assignor under the Lease.
C. Article 41 of the Lease provides that the Lease may not be
assigned without the written consent of Landlord.
D. Landlord is willing to consent to the assignment of the Lease
from Assignor to Assignee upon the terms and conditions set forth herein.
E. Assignee and Landlord desire to further amend the Lease.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other
good and valuable consideration, paid by each of the parties hereto to each
other party, the receipt and
sufficiency of which is hereby acknowledged, and in further consideration of the
provisions herein, the parties hereto agree as follows:
1. Effective Date. The "Effective Date" of this Agreement shall be
the date upon which all of the following shall have occurred (each of which
shall be a condition concurrent with the others):
(a) Each of Assignor, Assignee and Landlord shall have
unconditionally received a fully executed original counterpart of this
Agreement;
(b) Each of Assignee and Landlord shall have unconditionally
received a fully executed original counterpart of that certain Agreement of
Lease, of even date herewith, between Landlord and Assignee (the "Ninth Floor
Lease");
(c) Landlord shall have unconditionally received from Assignee
the cash Security Deposit by wire transfer of immediately available funds, or
the Letter of Credit (as such terms are defined in Article 32 of the Ninth Floor
Lease); and
(d) Landlord shall have returned to Assignor the Letter of
Credit referred to in Article 72 of the Lease.
It shall be a condition precedent to the occurrence of the
Effective Date that there then exist no Event of Default under the Lease. If for
any reason the Effective Date shall not have occurred on or before October 30,
1999, Landlord shall have the right to terminate this Agreement by written
notice to Assignor and Assignee. Promptly after the occurrence of the Effective
Date, Landlord, Assignor and Assignee shall confirm the Effective Date in
writing.
2. Assignment and Assumption; Indemnities.
Effective as of the Effective Date:
(a) Assignor hereby assigns and transfers to Assignee, its
successors and permitted assigns, all of Assignor's right, title and interest as
tenant in, to and under the Lease, subject to the rent, terms, covenants and
conditions of the Lease.
(b) Assignee hereby assumes the performance of all of the terms,
covenants, conditions and obligations of the tenant under the Lease, arising or
accruing from and after the Effective Date, and agrees to pay all amounts due
thereunder, including, without limitation, the rent and any other charges
reserved by or provided for in the Lease, on the next rent day and monthly
thereafter until the expiration or earlier termination of the Lease and will
perform all of the terms, covenants and conditions of the Lease arising or
accruing from and after the Effective Date, all with the same force and effect
as if Assignee had signed the Lease originally as tenant named therein.
(c) Landlord does hereby release Assignor of and from any and
all claims, damages, obligations, liabilities, actions and causes of action, of
every kind and nature whatsoever arising under, out of or in connection with,
the Lease and the Premises, from and
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after the Effective Date, except that nothing herein contained shall be deemed
to constitute a release or discharge of Assignor with respect to any obligation
or liability accrued or incurred under the Lease up to and including the
Effective Date.
3. Consent. Effective as of the Effective Date, Landlord consents
to the assignment and assumption set forth in Section 2(a) and Section 2(b)
above, subject to and in reliance upon the representations, warranties,
covenants, terms and conditions contained in this Agreement, provided, however,
that notwithstanding such assignment, Assignor shall remain liable for all of
its obligations to be performed or observed under the Lease arising during the
period of time prior to the Effective Date. Nothing contained herein shall be
deemed to release or discharge Assignor from any obligation or responsibility
arising under the Lease during the period prior to the Effective Date.
4. Representations, Warranties and Acknowledgments.
(a) Assignor and Assignee each represents, warrants and
acknowledges to Landlord as follows:
(i) No money or other consideration has been or will be paid
or given to Assignor by Assignee for this assignment or the right to
use or occupy the Premises.
(ii) This Agreement embodies the complete and entire
agreement between Assignor and Assignee with respect to the assignment
of the Lease.
(iii) All landlord work required pursuant to the Lease has
been satisfactorily completed and there are no concessions, inducements
or work to which the tenant under the Lease is entitled (except that
Assignor does not herein waive or release any claims, rights, causes of
action or defenses it may have relating to a construction allowance in
the amount of $1,275,720 which Assignor claims is due to it pursuant to
the PBI Letter).
(iv) To the best of Assignor's and Assignee's knowledge, and
subject to the provisions of Paragraph 4(a)(iii) above, (X) Landlord is
not in default in the performance or observance of any of the terms,
covenants, conditions or obligations on Landlord's part to be performed
or observed under the Lease, (Y) no event has occurred which with the
giving of notice or the passage of time, or both, would constitute a
default by Landlord under the terms of the Lease and (Z) there are no
current rights of off-set, counterclaims, or credits against rent or
other charges under the Lease.
(v) Except for this Agreement and the written instruments
comprising the Lease (as defined above), there are not, as of the date
hereof, any amendments, modifications, written instruments or other
oral or written agreements which amend or modify the provisions of the
Lease.
(vi) Assignee acknowledges that Assignee is fully familiar
with the condition of the Premises, and agrees to accept possession
thereof in its "as is"
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condition on the Effective Date. Assignor's and Assignee's execution of
this Agreement shall be conclusive evidence as against both Assignee
and Assignor that the Premises are in good and satisfactory condition
at the time of such execution.
(b) Landlord hereby represents and warrants to Assignee and,
with respect to clause (ii) below, to Assignor, as follows:
(i) The Lease (except as modified hereby) is unmodified and
in full force and effect as of the date hereof.
(ii) To the best of Landlord's knowledge, Assignor is not in
default in the performance or observance of any of the terms,
covenants, conditions or obligations on Assignor's part to be performed
or observed under the Lease, (Y) no event has occurred which with the
giving of notice or the passage of time, or both, would constitute a
default by Assignor under the terms of the Lease and (Z) there are no
current rights of off-set, counterclaims, or credits against rent or
other charges under the Lease.
(c) Landlord and Assignee mutually acknowledge that, except as
may be expressly set forth herein, the Lease and the Ninth Floor Lease represent
separate and distinct agreements and legal interests.
5. Further Assignment or Subletting. Assignee hereby agrees that
the terms, conditions, restrictions and prohibitions set forth in the Lease
regarding subletting and assignment (as modified hereby), including, without
limitation, as set forth in Exhibit B annexed to this Agreement, shall,
notwithstanding this Agreement, (i) continue to be binding upon Assignee with
respect to all future assignments and transfers of the Lease and all future
sublettings of the Premises, and (ii) apply to Assignee with the same effect as
if Assignee had been the original tenant named in the Lease. This Agreement
shall not be construed either as a consent by Landlord to, or as permitting, any
other or further assignment or transfer of the Lease, whether in whole or in
part, or any further subletting of the Premises or any part thereof, or as a
waiver of the restrictions and prohibitions set forth in the Lease regarding
subletting and assignment.
6. Remedies for Default. In the event of any default by Assignor or
Assignee in the full performance and observance of any of their respective
obligations hereunder or in the event that any representation or warranty of
Assignor or Assignee, or both, made herein shall prove to be false or misleading
in any material respect, such event may, at Landlord's option, be deemed an
event of default under the Lease and the Ninth Floor Lease, and Landlord shall
have the right to and may pursue all of the rights, powers and remedies provided
for in the Lease or in the Ninth Floor Lease or at law or in equity or by
statute or otherwise with respect to defaults.
7. Amendment of Lease. Effective as of the Effective Date, the
Lease shall be deemed amended as follows:
(a) All references to "Tenant herein named on the date of this
Lease", or words of like effect, shall be deemed to mean Assignee on the date of
this Agreement;
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(b) All references in the Lease to "Xxxxxx Xxxxxxxx Company,
Inc." or to "SLC" (except those contained in Article 63 thereof, it being agreed
that Article 63 of the Lease shall not apply to the transactions contemplated by
this Agreement) shall be deemed to refer to Insignia/Xxxxxx X. Xxxxxx Company,
Inc. or any successor thereto as Landlord's managing agent for the Building.
(c) The term of the Lease is hereby extended to be coterminous
with the term of the Ninth Floor Lease, unless the Lease be sooner terminated
pursuant to the provisions of the Lease. Accordingly, all references to the
"Expiration Date" in this Agreement and in the Lease shall be deemed to mean
February 28, 2015.
(d) For the portion of the term of the Lease commencing on the
Effective Date and ending on October 31, 2007, Tenant shall pay all fixed rent
as set forth in the Lease.
(e) For the portion of the term of the Lease commencing on
November 1, 2007 and ending on the Expiration Date, Tenant shall pay fixed rent
as follows:
(i) for the 11th Floor Space, for the portion of the Lease
term commencing on November 1, 2007 and ending one day prior to the
tenth (10th) anniversary of the Space A Delivery Date (as defined in
the Ninth Floor Lease), Two Million Five Hundred Twenty Nine Thousand
Five Hundred Eighty Two and 00/100 Dollars ($2,529,582.00) per annum
($210,798.50 per month);
(ii) for the 11th Floor Space, for the portion of the Lease
term commencing on the tenth (10th) anniversary of the Space A Delivery
Date and ending on the Expiration Date, Two Million Seven Hundred Fifty
Nine Thousand Five Hundred Forty Four and 00/100 Dollars
($2,759,544.00) per annum ($229,962.00 per month);
(iii) subject to Section 7(f) below, for the Basement Space,
for the portion of the Lease term commencing on November 1, 2007 and
ending one day prior to the tenth (10th) anniversary of the Space A
Delivery Date, Eleven Thousand Seven Hundred Eighty One and 00/100
Dollars ($11,781.00) per annum ($981.75 per month); and
(iv) subject to Section 7(f) below, for the Basement Space,
for the portion of the Lease term commencing on the tenth (10th)
anniversary of the Space A Delivery Date and ending on the Expiration
Date, Thirteen Thousand Four Hundred Sixty Four and 00/100 Dollars
($13,464.00) per annum ($1,122.00 per month).
(f) Notwithstanding anything set forth in this Agreement to the
contrary, Tenant shall have the right to terminate this Lease with respect to
the Basement Space only, by notice to Landlord given no later than November 1,
2006, such termination to be effective on October 31, 2007, upon which date this
Lease with respect to the Basement Space only shall come to an end and
terminate, and thereafter neither party shall have any liability to the other
hereunder with respect to the Basement Space.
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(g) For the portion of the term of the Lease commencing on the
Effective Date and ending on October 31, 2007, Tenant shall pay all additional
rent as set forth in the Lease.
(h) For the portion of the term of the Lease commencing on
November 1, 2007 and ending on the Expiration Date, Tenant shall continue to pay
all additional rent due under the Lease, except as follows:
(i) the Emergency Generator Fee, as defined in Section
79.01(ii) of the Lease, shall be Thirty Three Thousand Six Hundred and
00/100 Dollars ($33,600.00) per annum ($2,800.00 per month);
(ii) the provisions of Articles 39 and 40 of the Lease shall
be deleted in their entirety, and the provisions of Article 6 of the
Ninth Floor Lease shall be deemed incorporated into the Lease in their
place and stead, as if such Article 6 were set forth in its entirety in
the Lease (without such incorporation in any way affecting the
application of such Article 6 to the Ninth Floor Lease), except that
(A) in Section 6.1(b) "Tenant's Share" (as it applies to the Lease)
shall be Three and 333/1000ths percent (3.333%) and (B) the factor set
forth in Section 6.4 (a)(ii) (as it applies to the Lease) shall be
76,654; and
(iii) the provisions of Section 78.13(i) of the Lease shall
be deleted in their entirety, and Tenant shall pay to Landlord a
license fee for the Cooling Tower Area in advance on the first day of
each month as follows: (i) during the period from November 1, 2007
through the day before the tenth (10th) anniversary of the Commencement
Date (as defined in the Ninth Floor Lease), the product of the square
foot area of the Cooling Tower Area (hereby deemed and agreed to be 523
square feet), multiplied by Twenty-One and 00/100 Dollars ($21.00), and
(ii) during the period from the tenth (10th) anniversary of such
Commencement Date through the Expiration Date, the product of the
square foot area of the Cooling Tower Area, multiplied by Twenty-Four
and 00/100 Dollars ($24.00).
(i) Upon any default beyond applicable grace and notice periods
under the Ninth Floor Lease, Assignee shall be deemed in default under the Lease
such that (without limiting Landlord's remedies pursuant to the Lease and at
law), (i) Landlord may serve the three (3) days' notice of cancellation of the
Lease and further proceed as provided in Section 17 of the Lease, or (ii)
Landlord may exercise all of its rights under Paragraph 7(j) of this Agreement,
or both.
(j) Upon any default by Assignee under the Lease beyond
applicable grace and notice periods, Landlord may use, apply or retain all or
any part of the Security Deposit (as such term is defined in the Ninth Floor
Lease) for the payment of any rent or any other sum in default under the Lease
or for the payment of any other amount which Landlord may spend or become
obligated to spend by reason of such default under the Lease, or to compensate
Landlord for any other loss, cost or damage to which Landlord is entitled
pursuant to the Lease or applicable legal requirements by reason of a default
beyond applicable grace and notice periods
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under the Lease, and Assignee shall thereupon deposit sums with Landlord
sufficient to restore the Security Deposit, in the same manner as if Landlord
had so used, applied or retained all or such part of the Security Deposit,
pursuant to the provisions of the Ninth Avenue Lease, upon an Event of Default
by Assignee under the Ninth Avenue Lease.
(k) The provisions of Articles 31 and 72 of the Lease shall be
deemed deleted from the Lease, it being agreed by Assignee that the Security
Deposit identified in Paragraph 7(j) of this Agreement shall be security for all
of Assignee's obligations under the Lease in accordance with the provisions of
Paragraph 7(j) of this Agreement.
(l) Article 27 of the Lease shall be deleted in its entirety,
and the following shall be substituted therefor:
ARTICLE 27. BILLS AND NOTICES
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), sent by a nationally
recognized overnight courier service, or sent by registered or
certified mail (return receipt requested) and addressed:
if to Tenant, (a) at Tenant's address at the Premises, Attention: Xxxxx
X. Xxxxxxxxx (or, if a regularly scheduled rent xxxx or rent escalation
statement, Xxxx Xxxxxx), or (b) at any place where Tenant or any agent
or employee or Tenant may be found if mailed subsequent to Tenant's
abandoning or surrendering the demised premises, in either case (except
if a routine xxxx or statement), with a copy to Xxxxxxxx Xxxxxxxxx
Xxxxxx Aronsohn & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.; or
if to Landlord, as follows: 111 Chelsea LLC, c/o Taconic Investment
Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx.
Xxxx X. Xxxxxxx, with a copy to: Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.
Any such xxxx, statement, consent, notice, demand, request or other
communication given as provided in this Article 27 shall be deemed to
have been rendered or given (i) on the date when it shall have been
hand delivered, (ii) three (3) Business Days from the date when it
shall have been mailed, or (iii) one (1) Business Day from the date
when it shall have been sent by overnight courier service.
(m) The first sentence of Footnote 30G. of the Lease shall be
modified by deleting the words "Building Manager (presently Xxxxxx Xxxxxxxxx)
and the Director of
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Leasing at the Building (presently Xxxx Xxxxxxxx)" and substituting therefor the
words "Building Manager (presently Xxxxxxxx Xxxxxxx)".
(n) The words "P.A. Building Company" in Footnote 39D. of the
Lease shall be deleted, and the words "111 Chelsea LLC" substituted therefor.
(o) The Rules and Regulations annexed to the Lease shall be
deleted in their entirety, and the Rules and Regulations annexed as Exhibit A to
this Agreement shall be substituted therefor.
(p) The provisions of Articles 11 and 41 of the Lease shall be
deleted in their entirety, and the provisions annexed as Exhibit B to this
Agreement shall be substituted therefor.
8. Broker. Each of Assignor, Assignee and Landlord represents and
warrants to the others that it has dealt with no broker, agent or other person
other than Insignia/Xxxxxx X. Xxxxxx Company, Inc. ("Broker") in connection with
this Amendment. Each of Assignor, Assignee and Landlord agrees to indemnify and
hold the others harmless from and against any claims by any other broker, agent
or other person claiming a commission or other form of compensation by virtue of
having dealt with the indemnifying party with regard to this Agreement. The
provisions of this Section 8 shall survive the expiration or earlier termination
of the Lease.
9. XXX Incentive Program. Landlord acknowledges that Assignee has
advised Landlord that: (i) Assignee and the New York City Industrial Development
Agency, a New York public benefit corporation (the "XXX"), intend to enter into
an agreement, detailing a package of financial incentives that are to be made
available to Assignee or an Affiliate of Assignee (the "Incentive Program") by
the New York City Economic Development Corp. ("EDC"), (ii) pursuant to the
Incentive Program, Assignee shall be entitled to certain exemptions, abatements
and/or savings in the cost of electricity used by Assignee at the Premises
(including certain savings pursuant to Con Ed's Business Incentive Rate Program)
(collectively, "Electricity Savings"), and (iii) Electricity Savings may be made
available to Assignee pursuant to reductions in the total cost incurred by
Landlord to provide electricity to the Building (whether the Electricity
Provider is Con Ed or any other entity). In connection with the foregoing,
Landlord hereby agrees that if and to the extent the total cost incurred by
Landlord to provide electricity to the Building during a particular billing
period is reduced as a result of Electricity Savings pursuant to the Incentive
Program, then such Electricity Savings shall be for the account of and the sole
property of Assignee, directly payable solely to and/or earned by Assignee. If
and so long as Assignee is paying Landlord for electricity pursuant to the
provisions of the Lease, then any Electricity Savings which are expressly
indicated (including the specific amount of such reduction) on Landlord's
statement from the Electricity Provider, or are otherwise indicated (including
the specific amount of such reduction) in writing from the Electricity Provider
or from the XXX or EDC as arising out of the Incentive Program, shall be for the
account of and the sole property of Assignee, shall be deemed to be directly
payable solely to and/or earned by Assignee during an Electricity Provider's
billing period, and the amount of such Electricity Savings shall be offset
against and deducted from Additional Rent otherwise due from Assignee to
Landlord
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for the next following billing period. If Assignee shall not be paying Landlord
for electricity (including if electricity is obtained by Assignee pursuant to
the provisions of the Lease, then such Electricity Savings shall be for the
account of and the sole property of Assignee, directly payable solely to and/or
earned by Assignee. Landlord agrees (at no cost to Landlord) to cooperate with
Assignee (by, for example, executing any necessary documents, forms,
applications and surveys) to facilitate Assignee's obtaining the Electricity
Savings pursuant to the Incentive Program.
10. Miscellaneous.
(a) When used in this Agreement, the singular includes the
plural and the plural includes the singular, the word "or" is not exclusive and
the word "including" is not limiting. All Article and Section references set
forth herein shall, unless the context otherwise specifically requires, be
deemed references to the Articles and Sections of this Agreement. Whenever the
words "include", "includes", or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
(b) This Agreement will be interpreted and enforced in
accordance with its provisions and without the aid of any custom or rule of law
requiring or suggesting construction against the party drafting or causing the
drafting of the provisions in question.
(c) The provisions of this Agreement shall supersede any
inconsistent provisions contained in the Lease, regardless of whether such
inconsistent provisions are contained in the printed portions of the Lease or in
any rider, exhibit or schedule annexed thereto and made a part thereof, or in
any amendment, modification, letter, notice or other written instrument executed
in connection therewith or sent pursuant thereto.
(d) The covenants, agreements, terms, provisions and conditions
contained in this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(e) The captions contained in this Agreement are for reference
only and shall in no way define, limit or extend the scope or intent of this
Agreement, nor shall such captions affect the construction hereof.
(f) This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement.
(g) Each party hereto represents and warrants that it has full
right, power and authority to enter into this agreement and that the person
executing this Agreement on behalf of such party is duly authorized to do so.
(h) All capitalized terms and words used in this instrument
shall have the same meaning as set forth in the Lease unless a contrary meaning
is expressly set forth herein.
(i) Any notices or other communications given or required to be
given under this Agreement shall be effective only if in writing and delivered
in the manner and to the addresses set forth in the Lease.
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(j) Notwithstanding any provisions of this Agreement to the
contrary, if Landlord fails to deliver to Assignee a Non-Disturbance Agreement
executed by Lender (as such terms are defined in the Ninth Floor Lease) within
thirty (30) days following the execution and delivery of this Agreement, then,
at Assignee's election exercised by notice to Landlord, this Agreement shall be
and be deemed null and void, and the Lease shall continue (and shall be deemed
to have continued) in full force and effect between Assignor and Landlord as if
this Agreement had not been executed, all effective on the date which shall be
thirty (30) days after the date such notice is given. Notwithstanding anything
to the contrary contained herein, if Landlord shall deliver such Non Disturbance
Agreement executed by Lender to Assignee at any time within ten (10) days
following Landlord's receipt of such notice by Assignee, such notice shall be
void and of no force and effect, and Assignee shall have no further right to
make such election pursuant to this Section 9(j).
[No further text on this page - Signature page follows]
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IN WITNESS WHEREOF, Assignor, Assignee and Landlord have
executed this Assignment, Assumption and Consent Agreement and Amendment of
Lease as of the date first set forth above.
XXXXXX & NOBLE, INC.,
a Delaware corporation
By:/s/Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXXXXXXXXXXX.XXX LLC,
a Delaware limited liability company
By:/s/Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
111 CHELSEA LLC,
a Delaware limited liability company
By: Taconic Chelsea Holdings LLC,
a Delaware limited liability company,
managing member
By: Taconic SL Principals LLC,
a Delaware limited liability
company, managing member
By:/s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Member
EXHIBIT A
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators of
the Building are limited to ingress to and egress from tenants' premises for
tenants and their employees, licenses and invitees, and no tenant shall use, or
permit the use of, the entrances, corridors, or elevators for any other purpose.
No tenant shall invite to such tenant's premises, or permit the visit of,
persons in such numbers or under such conditions as to interfere with the use
and enjoyment of any of the entrances, corridors, elevators and other facilities
of the Building by other tenants. Fire exits and stairways are for emergency use
only, and shall not be used for any other purposes by the tenants, their
employees, licensees or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of, any of the sidewalks, entrances,
corridors, elevators, fire exits or stairways of the Building. Landlord reserves
the right to control and operate the public portions of the Building and the
public facilities, as well as facilities furnished for the common use of
tenants, in such manner as it reasonably deems best for the benefit of tenants
generally.
2. Tenant's employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
3. Tenant shall not alter the exterior appearance of the Building
by installing signs, advertisements, notices or other graphics on exterior
walls, or interior surfaces visible from outside, without prior written
permission from Landlord. Similarly, electrical fixtures hung in offices or
other spaces along the perimeter of the Building which affect its exterior
appearance must be fluorescent and a quality, type, design and bulb color,
previously approved in writing by Building management.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
5. The requirements of tenants will be attended to only upon
application at the Building Management Office. Employees of the Building shall
not perform any work or do anything outside of their regular assigned duties,
unless under special instructions from the Building Management Office.
6. Except as specifically provided in the Lease, Tenant shall have
no right of access to the roof of the Building and shall not install, repair or
replace any satellite dish, antennae, fan, air conditioner or other devices on
the roof of the Building without the prior written consent of Landlord. Any such
device installed without such written consent shall be subject to removal, at
Tenant's expense, without notice, at any time.
7. Exterior signs on doors and any directory tablet must be
approved by Landlord.
A-1
8. No awnings or other projections over or around the windows shall
be installed by any tenant and only such window blinds as are permitted by
Landlord shall be used in any tenant's premises.
9. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building.
The water and service closets and other plumbing fixtures in or serving any
tenant's premises shall not be used for any purpose other than the purpose for
which they were designed or constructed and no sweepings, rubbish, rags, acids
or other foreign substances shall be deposited therein. All damages resulting
from any misuse of the fixtures shall be borne by the tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused the same.
10. Tenant shall not disturb others. This rule prohibits any noise
audible from the hallway, adjoining office suites or outside whether created by
musical instruments, radios, television sets, group activities or any other
source.
11. All hand trucks used in the Building shall be equipped with
rubber tires and side guards.
12. No tenant shall install wires, conduit, sleeves or similar
installations in Building shaftways without prior written consent of Landlord,
and as Landlord may direct.
13. Each tenant shall, at its expense, provide artificial light in
the premises demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and making
repairs or alterations therein.
14. Tenants shall not permit any cooking or food odors emanating
from their demised premises to be detectable in any other portions of the
Building.
15. Tenants shall provide Building management provided with keys or
combinations to all locks, bolts or other mechanical security systems except
those protecting high security areas. Upon vacating the Building, tenants must
return keys to storerooms, offices and toilets or pay replacement costs.
16. All entrance doors in each tenant's premises shall be left
locked when the tenant's premises are not in use. Entrance doors shall not be
left open at any time.
17. Tenants shall not keep pets, bicycles, or other vehicles in
their premises without prior written approval by Landlord. Exceptions are made
for seeing-eye dogs and conveyances required by handicapped persons.
18. Regular suppliers of outside services must be approved by
Building management, which may establish hours or other conditions for entrance
to the Building. Such suppliers include vendors of food, spring water, ice,
towels, barbering, shoe shining and other products and services.
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19. Canvassing, soliciting and peddling of products or services are
prohibited in the Building, and tenants shall cooperate with Landlord in
attempting to prevent such acts in the Building.
20. Landlord may refuse admission to the Building outside of normal
hours to any person not having a pass issued by Landlord or not properly
identified, and may require all persons admitted to or leaving the Building
outside of normal business hours to register. Tenant's employees, agents and
visitors shall be permitted to enter and leave the Building whenever appropriate
arrangements have been previously made between Landlord and Tenant. Each tenant
shall be responsible for all persons for whom such person requests such
permission and shall be liable to Landlord for all acts of such persons. Any
person whose presence in the Building at any time shall, in the reasonable
judgment of Landlord, be prejudicial to the safety, character, reputation and
interests of the Building or its tenants may be denied access to the Building or
may be rejected therefrom. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the building. Landlord may require any
person leaving the Building with any package or other object to exhibit a pass
from the tenant from whose premises the package or object is being removed, but
the establishment and enforcement of such requirements shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. Landlord shall in no way be liable
to any tenant for injury or loss arising from the admission, exclusion or
ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule.
21. Tenant, at its sole cost and expense, shall cause the Premises
to be exterminated from time to time to the reasonable satisfaction of the
Building Management Office, and shall employ such exterminators therefor as
shall be approved by the Building Management Office.
22. Tenants shall not serve or permit the serving of alcoholic
beverages in the its premises unless Tenant shall have procured host liquor
liability insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord and its managing agent as additional insureds.
23. The Building loading docks may be used only for loading and
unloading procedures. Tenants may not use the loading dock area for parking.
Tenants may not place any dumpsters at the loading docks or any other portion of
the Building without the prior written approval of Landlord.
24. No shutdowns of any Building systems will be permitted without
prior written approval of Landlord and supervision by the Building engineer.
25. Tenant's contractors or vendors may not use any space within
the Building outside the Premises for storage or moving of materials or
equipment or for the location of a field office or facilities for the employees
of such contractors or vendors without obtaining Landlord's prior written
approval for each such use. Landlord shall have the right to terminate such use
and
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remove all such contractor's or vendor's materials, equipment and other property
from such space, without Landlord being liable to tenant or to such contractor
or vendor, and the cost of such termination and removal shall be paid by Tenant
to Landlord.
26. Tenants are required to have a full service maintenance
contract covering their supplemental HVAC, Uninterrupted Power Supply (UPS) and
Automatic Transfer systems, and to provide copies of such contracts to the
Building management office.
27. The Building reserves the right to restrict the use of certain
materials (i.e., Omega sprinkler heads and piping manufactured in The Republic
of China) in the building based on notifications that declare the materials
unsafe.
28. Trucks using the Tenant Shipping Platforms on the ground floor
of the building, and the upper Floor Truck Lobbies will load and discharge at
the place or places thereat and therein as indicated by the duly authorized
representative of Landlord in charge of such operation.
29. Trucks using the Tenant Shipping Platforms on the ground floor
of the building, and the upper floor truck lobbies, will load and discharge at
the place or places thereat and therein as indicated by the duly authorized
representative of Landlord in charge of such operation.
30. Elevators for freight handling service will be operated during
Business Hours on Business Days, unless special arrangement is made with
Landlord for operation at other times.
31. The use of the private right of way and the truck elevators
will be subject to and under the reasonable direction and control of the duly
authorized representative of Landlord in charge of such operation. When in the
interest of continuity of service or in the interest of the common service,
Tenant's freight departing from or arriving at the building by truck may at the
direction of Landlord be handled over and through the Tenant Shipping Platforms
on the ground floor and the freight elevators. Landlord reserves the right to
direct such handling in lieu of truck elevator service.
32. In the interest of preserving the continuity of freight
elevator service, freight will not be floored upon the freight elevator, but
will at all times be handled and moved upon suitable vehicles of the indoor
industrial xxxxxxx type permitting such freight to be economically and
expeditiously wheeled on and off the freight elevators. Freight which cannot be
handled upon such equipment will be handled in such alternative manner as may be
approved by Landlord.
33. (a) The Tenant Shipping Platforms located on first or ground
floor of the Building are designed to accomplish the immediate transfer and
movement of freight between the freight elevators and trucks. The use of such
facility by Tenant or any of its agents, servants, employees, representatives or
contractors will be confined to such purpose, under the reasonable
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direction and control of the duly authorized representative of Landlord in
charge of such operation.
(b) No storage or holding of freight on such Tenant Shipping
Platforms awaiting the arrival of trucks, or awaiting transfer by Tenant from
such Tenant Shipping Platforms to the Premises, will be permitted. No
automobiles of Tenant or any Tenant Party may enter on or be stored in any
portion of the building, except in areas designated by Landlord, and provided
Tenant pays for such parking at rates designated by Landlord, its agents or
parking lessees.
(c) Any violation of this rule or disregard of directions issued by
Landlord will give Landlord the right to handle, transfer, remove or store such
freight in or to other premises in the building. When such handling, transfer,
removal or storage is performed by Landlord, and when it shall be deemed
necessary by Landlord to preserve the continuity of common service provided by
this facility, any and all expense will be at Tenant's sole cost and expense.
Landlord will not be responsible for any loss or damage which any such freight
may suffer by such handling, removing or storage.
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EXHIBIT B
ASSIGNMENT AND SUBLETTING PROVISIONS
Section 41.1 Except as otherwise expressly provided herein, Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet
(nor underlet), nor suffer, nor permit the Premises or any part thereof to be
used or occupied by others (whether for desk space, mailing privileges or
otherwise), without the prior written consent of Landlord in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, or if this Lease or the Premises are
encumbered (whether by operation of law or otherwise) without Landlord's
consent, then Landlord may, after default by Tenant beyond applicable grace or
notice periods, collect rent from the assignee, subtenant or occupant, and apply
the net amount collected to all fixed rent and additional rent due hereunder,
but no assignment, subletting, occupancy or collection shall be deemed a waiver
by Landlord of the provisions hereof, the acceptance by Landlord of the
assignee, subtenant or occupant as a tenant, or a release by Landlord of Tenant
from the further performance by Tenant its obligations under this Lease, and
Tenant shall remain fully liable therefor. The consent by Landlord to any
assignment or subletting shall not in any way be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or subletting. In no event shall any permitted subtenant assign or
encumber its sublease or further sublet all or any portion of its sublet space,
or otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others, without Landlord's prior written consent in each instance.
Any assignment, sublease, mortgage, pledge, encumbrance or transfer in
contravention of the provisions of this Article 41 shall be void.
Section 41.2 (a) If Tenant shall, at any time or from time to time
during the term of this Lease, desire to assign this Lease or sublet all or part
of the Premises, Tenant shall give notice (a "Tenant's Notice") thereof to
Landlord, which Tenant's Notice shall set forth: (i) with respect to an
assignment of this Lease, the date Tenant desires the assignment to be effective
and any consideration Tenant would receive under such assignment, (ii) with
respect to a sublet of all or a part of the Premises (x) the dates upon which
Tenant desires the sublease term to commence and expire, (y) the rental rate and
other material business terms upon which Tenant would sublet such premises, and
(z) a description of the Premises showing the portion to be sublet, the
effective or commencement date of which shall be not less than thirty (30) nor
more than one hundred and eighty (180) days after the giving of such notice,
(iii) a statement setting forth in reasonable detail the identity of the
proposed assignee or subtenant, the nature of its business and its proposed use
of the Premises, (iv) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial report, and (v) an
agreement by Tenant to indemnify Landlord against liability resulting from any
claims that may be made against Landlord by the proposed assignee or subtenant
or by any other brokers or by any Person ("Person" being defined for purposes of
this Article 41 as an individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in-common or other entity,
or any governmental authority)
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claiming a commission or similar compensation in connection with the proposed
assignment or sublease. Tenant's Notice shall be deemed an offer from Tenant to
Landlord whereby Landlord (or Landlord's designee) may, at its option, (I)
sublease such space (the "Leaseback Space") from Tenant upon the terms and
conditions set forth in Section 41.4, or terminate this Lease with respect to
only the Leaseback Space, or (II) if the proposed transaction is (1) an
assignment of this Lease or (2) a subletting of fifty percent (50%) or more of
the rentable area of the Premises, terminate this Lease.
(b) Landlord agrees to respond to any Tenant's Notice given in
accordance with Section 41.2(a) within twenty (20) days after request, provided
the Tenant's Notice complies in all material respects with the requirements of
Section 41.2(a). If Landlord fails to either approve or disapprove the requested
assignment or subletting on or before the end of such twenty-day period, Tenant
shall have the right to provide Landlord with a second written request for
approval (a "Second Request"), which shall include all material previously
delivered to Landlord together with Tenant's Notice, and set forth in bold
capital letters the following statement: IF LANDLORD FAILS TO RESPOND WITHIN
FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE
ENTITLED TO ENTER INTO THE PROPOSED [ASSIGNMENT] [ SUBLEASE] DESCRIBED IN THE
NOTICE ENCLOSED HEREWITH, WHICH WAS PREVIOUSLY SUBMITTED TO LANDLORD AND TO
WHICH LANDLORD HAS FAILED TO TIMELY RESPOND. In the event that Landlord fails to
respond to a Second Request within five (5) Business Days after receipt by
Landlord, the proposed assignment or sublease as to which the Second Request is
submitted shall be deemed to be approved by Landlord, and Tenant shall be
entitled to enter into such transaction, provided that such assignment or
sublease complies with the requirements of this Article 41 and all other
provisions of this Lease applicable thereto.
Section 41.3 If Landlord exercises its option to terminate this
Lease with respect to all or a portion of the Premises pursuant to Section 41.2,
then this Lease shall terminate and expire (in its entirety or as
it relates to the portion of the Premises identified in the Tenant's Notice, as
applicable) on the date that such assignment or sublease was to be effective or
commence, as the case may be, and the fixed rent and additional rent due
hereunder shall be paid and apportioned to such date. In such event, Landlord
and Tenant, upon request of either party, shall enter into an amendment of this
Lease ratifying and confirming such total or partial termination, and setting
forth appropriate modifications, if any, to the terms and provisions hereof.
Following such termination, Landlord shall be free to and shall have no
liability to Tenant if Landlord should lease the Premises (or any part thereof)
to Tenant's prospective assignee or subtenant.
Section 41.4 If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at a rental rate equal to the product of (i) the lesser of (A) the rental
rate per rentable square foot of fixed rent and additional rent then payable
pursuant to this Lease, or (B) the rental rate per rentable square foot of rent
and additional rent set forth in Tenant's Notice, multiplied by (ii) the number
of rentable square feet of the Leaseback Space, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
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(a) be upon such other terms and conditions as are contained in
Tenant's Notice, and be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease, except such as
are irrelevant or inapplicable, and except as expressly set forth in this
Article 41 to the contrary;
(b) give the subtenant the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the space covered by such sublease or any part or
parts of such space and to make any and all changes, alterations and
improvements in the space covered by such sublease, provided that such
changes, alterations or improvements do not materially adversely affect
Tenant's use and occupancy of the portion of the Premises other than the
Leaseback Space; and if the proposed sublease will result in all or
substantially all of the Premises being sublet, grant Landlord or its
designee the option to extend the term of such sublease for the balance of
the term of this Lease less one day, and provided further that, if the term
of such sublease is twelve (12) or more months shorter than the term of
this Lease, the Premises being sublet shall be suitable for the Permitted
Use upon expiration of the sublease term;
(c) provide that any assignee or further subtenant of Landlord or
its designee, may, at Landlord's option, be permitted to make alterations,
decorations and installations in such space or any part thereof, provided
that such changes, alterations or improvements do not materially adversely
affect Tenant's use and occupancy of the portion of the Premises other than
the Leaseback Space, and shall also provide in substance that any such
alterations, decorations and installations in such space therein made by
any assignee or subtenant of Landlord or its designee may be removed, in
whole or in part, by such assignee or subtenant, at its option, prior to or
upon the expiration or other termination of such sublease; provided,
however, that such assignee or subtenant shall, at its sole cost and
expense, repair any damage and injury caused by such removal; and provided
further that, if the term of such sublease is twelve (12) or more months
shorter than the term of this Lease, the Premises being sublet shall be
suitable for the Permitted Use upon expiration of the sublease term; and
(d) provide that (i) the parties to such sublease expressly negate
any intention that any estate created under such sublease be merged with
any other estate held by either of said parties, (ii) any assignment or
sublease by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's uncontrolled discretion,
shall deem suitable or appropriate, provided that the use of the Leaseback
Space for such purpose or purposes shall not unreasonably interfere with
Tenant's use and occupancy of the portion of the Premises other than the
Leaseback Space, (iii) Tenant shall, at Tenant's sole cost and expense, at
all times provide and permit reasonably appropriate means of ingress to and
egress from such space so sublet by Tenant to Landlord or its designee,
(iv) Landlord may make such alterations as may be required or deemed
necessary by Landlord to physically separate the subleased space from the
balance of the Premises and to comply with any legal or insurance
requirements relating to such separation (all at Tenant's sole cost and
expense, unless such alterations would be the subtenant's obligation to
perform or pay for pursuant to the proposed
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sublease), provided, however, that Landlord shall use reasonable efforts to
minimize the duration of such alterations and interference by reason
thereof with Tenant's access to and use and occupancy of the portion of the
Premises other than the Leaseback Space, (v) at the expiration of the term
of such sublease, Tenant will accept the space covered by such sublease in
its then existing condition, subject to the obligations of the subtenant to
make such repairs thereto as may be necessary to preserve the premises
demised by such sublease in good order and condition, and provided that
Tenant shall have no obligation under this Lease to restore any Alterations
or other changes, decorations or installations made by or on behalf of such
subtenant, or any damage caused by Landlord's removal of alterations,
decorations or installations, and provided further that, if the term of
such sublease is twelve (12) or more months shorter than the term of this
Lease, the Premises being sublet shall be suitable for the Permitted Use
upon expiration of the sublease term; and (vi) Tenant shall have no
obligation to provide services of any kind to the Leaseback Space,
provided, however, that Tenant shall permit Landlord, Landlord's agents and
public utilities servicing the Leaseback Space to erect, use and maintain
all concealed ducts, pipes and conduits in and through the Premises as
Landlord shall reasonably require, provided that the exercise of such
rights shall not materially affect the layout or reduce the floor area of
the Premises.
Section 41.5 (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord, except as to any obligation which arises out of or
results from the negligence or willful misconduct of Tenant or any Affiliate (as
defined in Section 41.6(d)) of Tenant, any subtenant or any other occupant of
the Premises, or any of their respective direct or indirect partners, officers,
shareholders, directors, members, trustees, beneficiaries, employees,
principals, contractors, licensees, servants, agents or representatives (each, a
"Tenant Party").
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease nor
shall Tenant be liable for any default under this Lease or deemed to be in
default hereunder, unless such default is occasioned by or arises from the
negligence or willful misconduct of Tenant or any Tenant Party.
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the term of this Lease, to remove any alteration, installation or
improvement made in the Leaseback Space by Landlord (or Landlord's designee).
(d) Any consent required of Tenant, as Landlord under the sublease,
shall be deemed granted if consent with respect thereto is granted by Landlord
under this Lease, and any failure of Landlord (or its designee) to comply with
the provisions of the sublease other than with respect to the payment of fixed
rent and additional rent to Tenant, shall not constitute a default thereunder or
hereunder if Landlord shall have consented to such non-compliance.
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Section 41.6 In the event Landlord does not exercise either option
provided to it pursuant to Section 41.2, and provided that no Event of Default
shall have occurred and be continuing under this Lease as of the time Landlord's
consent is requested by Tenant, Landlord's consent (which must be in writing,
subject to the provisions of Section 41.2(b)) to the proposed assignment or
sublease shall not be unreasonably withheld or delayed; provided, however, that:
(a) Tenant shall have complied with the provisions of Section 41.2,
and Landlord shall not have exercised any of its options thereunder within
the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant is
engaged in a business or activity, and the Premises, or the relevant part
thereof, will be used in a manner, which (i) is in keeping with the then
standards of the Building, and (ii) does not violate the restrictions set
forth in Article 2 of this Lease;
(c) The proposed assignee or subtenant has sufficient financial
worth considering the responsibility involved, and Landlord has been
furnished with evidence thereof;
(d) In the event Landlord has comparable space in the Building
available for lease, then (i) neither the proposed assignee or subtenant
nor any Affiliate of the proposed assignee or subtenant is then an occupant
of any part of the Building, and (ii) the proposed assignee or subtenant is
not a Person or an Affiliate of a Person with whom Landlord or Landlord's
agent is then, or has been within the previous four (4) month period,
negotiating in connection with rental of space in the Building ("Affiliate"
being defined for purposes of this Article 41 as any Person that, directly
or indirectly, through one or more intermediaries, Controls, is Controlled
by, or is under common Control) ("Control" as to any Person being defined
for purposes of this Article 41 as: (a) the ownership, directly or
indirectly, of more than thirty per cent (30%) of (i) the outstanding
voting stock of a corporation, or (ii) the beneficial ownership interests,
however characterized, of any other entity, or (b) the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities or other ownership interests, by statute, or by
contract);
(e) The form of the proposed sublease or instrument of assignment
shall be reasonably satisfactory to Landlord and shall comply with the
applicable provisions of this Article 41, and Tenant shall deliver a true
and complete original, fully executed counterpart of such sublease or other
instrument to Landlord promptly upon the execution and delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as the case may
be, shall execute and deliver to Landlord an agreement, in form and
substance reasonably satisfactory to Landlord, setting forth the terms and
conditions upon which Landlord shall have granted its consent to such
assignment or subletting, and the agreement of Tenant
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and such subtenant or assignee, as the case may be, to be bound by the
provisions of this Article 41;
(g) There shall not be more than four (4) subtenants of the
Premises;
(h) The amount of the aggregate rent to be paid by the proposed
subtenant shall not be twenty percent (20%) or more below the then current
market rent per rentable square foot for the Premises, determined as though
the Premises were vacant, and the rental and other terms and conditions of
the sublease shall be substantially the same as those contained in Tenant's
Notice;
(i) Tenant shall reimburse Landlord, as additional rent upon
demand, for (A) the reasonable costs and expenses incurred by Landlord in
connection with the assignment or sublease, including the costs of
investigations as to the acceptability of the proposed assignee or
subtenant and the cost of reviewing plans and specifications proposed to be
made in connection therewith, and (B) Landlord's reasonable legal fees and
disbursements incurred in connection with the granting of any requested
consent and the preparation of Landlord's written consent to the sublease
or assignment;
(j) Tenant shall not have (i) advertised or publicized in any way
the availability of the Premises without prior notice of and approval by
Landlord, or (ii) advertised or publicized in any way (or caused or
permitted to be advertised or publicized in any way) the Premises for
sublease or assignment at a rental rate materially less than the fixed rent
and additional rent at which Landlord is then offering to lease comparable
space in the Building for a comparable term;
(k) The proposed occupancy shall not impose a material extra burden
upon services to be supplied by Landlord to Tenant, unless Tenant and such
proposed subtenant or assignee shall agree with Landlord in writing to pay
the costs of such additional services; and
(l) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in, and the jurisdiction of the courts of
New York State.
Except for any sublease by Tenant to Landlord or its designee pursuant to this
Article 41, each sublease pursuant to this Section 41.6 shall be subject to all
of the covenants, agreements, terms, provisions and conditions contained in this
Lease. Notwithstanding any such sublease to Landlord or any such sublease to any
other subtenant, or any acceptance of fixed rent or additional rent by Landlord
from any subtenant, Tenant will remain fully liable for the payment of the fixed
rent and additional rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on Tenant's part to be observed and performed, and for all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or
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if Landlord shall exercise either of its options under Section 2, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all
losses, liabilities, damages, costs, and expenses (including reasonable
attorneys' fees and disbursements) resulting from any claims that may be made
against Landlord by the proposed assignee or subtenant arising from or in
connection with such proposed assignment or subletting, or by any brokers or
other Persons (with whom Tenant or its proposed assignee or subtenant may have
dealt) claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
Section 41.7 In the event that (a) Landlord fails to exercise
either of its options under Section 41.2 and consents to a proposed assignment
or sublease, and (b) Tenant fails to execute and deliver the assignment or
sublease to which Landlord consented within one hundred twenty (120) days after
the giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of Section 41.2 before assigning this Lease or
subletting all or part of the Premises.
Section 41.8 With respect to each and every sublease authorized by
Landlord under the provisions of this Lease, it is further agreed that:
(a) No sublease shall be for a term ending later than one day prior
to the Expiration Date of this Lease;
(b) No sublease shall be delivered, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord and approved in
writing by Landlord (or deemed approved pursuant to Section 41.2(a) or
(b)); and
(c) Each sublease shall be subject and subordinate to this Lease
and to the matters to which this Lease is or shall be subordinate, and each
subtenant by entering into a sublease is deemed to have agreed that in the
event of termination, re-entry or dispossession by Landlord under this
Lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublandlord, under such sublease, and such subtenant
shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (i)
be liable for any previous act or omission of Tenant under such sublease
(except to the extent such act or omission is a default under the Sublease
and continues beyond the date on which Landlord succeeds to Tenant's
interest, provided that the subtenant gives notice of such act or omission
to Landlord prior to such takeover by Landlord), (ii) be subject to any
counterclaim, offset or defense, not expressly provided in such sublease,
which theretofore accrued to such subtenant against Tenant, (iii) be bound
by any previous modification of such sublease not consented to in writing
by Landlord, or by any previous prepayment of more than one month's fixed
rent or of any additional rent, or (iv) be obligated to perform any work in
the subleased space or to prepare it for occupancy, and in connection with
such attornment, the subtenant shall execute and deliver to Landlord any
instruments Landlord may reasonably request to evidence and confirm such
attornment. Each subtenant or licensee of Tenant shall be deemed,
automatically upon and as a condition of its occupying or using the
Premises or any part thereof, to have
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agreed to be bound by the terms and conditions set forth in this Article
41. The provisions of this Article 41 shall be self-operative and no
further instrument shall be required to give effect to this provision.
Section 41.9 If Landlord shall consent to any assignment of this
Lease or to any sublease, or if Tenant shall enter into any other assignment or
sublease permitted hereunder, Tenant shall, in consideration therefor, pay to
Landlord, as additional rent:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to (i) prior to November 1, 2007, one hundred
percent (100%), and (ii) on or after November 1, 2007, fifty percent (50%)
of (i) all sums and other consideration paid to Tenant by the assignee for
or by reason of such assignment, including sums paid for Tenant's movable
fixtures and movable partitions, telephone and other communications
equipment, computer systems, furniture, trade fixtures, furnishings, and
other items of personal property which are removable without material
damage to the Premises or Building ("Tenant's Property"), less, in the case
of a sale thereof, the then net unamortized or undepreciated cost thereof,
determined on the basis of Tenant's federal income tax returns) less (ii)
all actual, reasonable and customary costs and expenses incurred by Tenant
in effectuating a subletting or assignment, including brokerage
commissions, advertising costs, attorney's fees and disbursements,
remodeling and redecorating costs in connection with such subletting or
assignment, rental abatements or concessions to the subtenant or assignee,
and any fees or cost reimbursements paid to Landlord pursuant to this Lease
in connection with Landlord's review or approval of such subletting or
assignment ("Transaction Expenses"), reasonably and actually incurred by
Tenant in connection with such assignment; or
(b) In the case of a sublease, an amount equal to (i) prior to
November 1, 2007, one hundred percent (100%), and (ii) on or after November
1, 2007, fifty percent (50%) of (i) all rents, additional charges or other
consideration payable to Tenant under the sublease in excess of the fixed
rent and additional rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by
Tenant hereunder) pursuant to the terms hereof (including sums paid for the
sale or rental of Tenant's Property, less, in the case of the sale thereof,
the then net unamortized or undepreciated cost thereof, determined on the
basis of Tenant's federal income tax returns) less (ii) all Transaction
Expenses reasonably and actually incurred by Tenant in connection with such
sublease. The sums payable under this clause shall be paid by Tenant to
Landlord as additional rent as and when paid by the subtenant to Tenant.
Section 41.10 (a) Subject to the provisions of Section 41.11, if
Tenant is a corporation, limited liability company, limited partnership, limited
liability partnership, general partnership, business trust, foundation, or any
other legal entity (any of the foregoing, an "Entity"), and a majority of the
outstanding voting stock, membership interests, partnership interests or other
legal or equitable ownership interests of any kind (any of the foregoing,
"Ownership Interests") are not publicly traded on a recognized stock exchange or
over-the-counter market, then any transfer (by one or more transfers), of a
majority of the Ownership Interests of Tenant shall be deemed an assignment of
this Lease for all purposes of this Article 41. The term "transfer" shall be
deemed to include the issuance of new Ownership Interests resulting in a
majority of the Ownership Interests of Tenant being held by Persons (other than
xxxxxxxxxxxxxx.xxx inc.) which do not hold a majority of the Ownership
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Interests of Tenant on the date hereof, except in the case of a public offering
of Ownership Interests on a recognized stock exchange or over-the-counter
market. The transfer of a majority of the Ownership Interests of Tenant through
one or more transfers on a recognized stock exchange or over-the-counter market
shall not be deemed an assignment of this Lease for purposes of this Article 41.
(b) If Tenant is an Entity, and Tenant is merged or consolidated
with another Entity, or if substantially all of Tenant's assets are transferred
to another Entity, then such merger, consolidation or transfer of assets shall
be deemed an assignment of this Lease for all purposes of this Article 41.
Notwithstanding the foregoing, Landlord's consent shall not be required for such
assignment, and the provisions of Sections 41.2, 41.6 and 41.9 shall not be
applicable thereto, so long as each of the following conditions have been
satisfied: (i) such merger, consolidation or transfer of assets shall have been
made for a legitimate independent business purpose and not for the principal
purpose of transferring this Lease, (ii) the successor to Tenant or transferee
of substantially all of Tenant's assets shall have a net worth, computed in
accordance with generally accepted accounting principles consistently applied of
not less than $300,000,000.00 (the "Successor Net Worth"), (unless
xxxxxxxxxxxxxx.xxx inc. is the successor to Tenant or is the transferee of such
assets, in which case xxxxxxxxxxxxxx.xxx inc. shall have a net worth, computed
in accordance with generally accepted accounting principles consistently
applied, at least equal to the net worth of Tenant immediately prior to such
merger, consolidation or transfer) and (iii) proof satisfactory to Landlord of
the Successor Net Worth (or, in the case of xxxxxxxxxxxxxx.xxx inc., a net worth
equal to the net worth of Tenant immediately prior to such merger, consolidation
or transfer) shall have been delivered to Landlord at least ten (10) days prior
to the effective date of any such transaction. Notwithstanding the foregoing, in
the event that the Successor Net Worth shall be less than $300,000,000.00,
Tenant may satisfy the condition set forth in Subsection 41.10(b)(ii) as
follows: (A) if the Successor Net Worth is less than $300,000,000.00 but more
than $250,000,000.00, Tenant shall increase the Security Deposit by $500,000.00
above the Security Deposit then held by Landlord, (B) if the Successor Net Worth
is less than $250,000,000.00 but more than $200,000,000.00, Tenant shall
increase the Security Deposit by $1,000,000.00 above the Security Deposit then
held by Landlord, and (C) if the Successor Net Worth is less than
$200,000,000.00 Tenant shall provide Landlord with a Guaranty, substantially in
the form attached as Exhibit O to the Ninth Floor Lease, of Tenant's obligations
under this Lease executed by Xxxxxx & Xxxxx, Inc., a Delaware corporation, or by
Bertelsmann AG, a business entity organized pursuant to the laws of the Federal
Republic of Germany, provided that at the time of execution and delivery of such
Guaranty, Tenant shall provide to Landlord reasonable evidence that such
Guarantor shall have a net worth, computed in accordance with generally accepted
accounting principles consistently applied, of not less than $300,000,000.00.
(c) The limitations set forth in this Section 41.10 shall be deemed
to apply to assignees of this Lease, if any, and any transfer of Ownership
Interests in, or any merger, consolidation or transfer of assets of, any such
assignee in violation of this Section 41.10 shall be deemed to be an assignment
of this Lease in violation of Section 41.1.
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(d) A material modification or amendment or an extension of a
sublease shall be deemed a sublease for the purposes of Section 41.1, and a
takeover agreement shall be deemed a transfer of this Lease for the purposes of
Section 41.1.
Section 41.11 Tenant may, without Landlord's consent but upon not
less than ten (10) days prior notice to Landlord, assign this Lease or sublet
all or any portion of the Premises to any wholly owned subsidiary, Affiliate or
parent of Tenant, Bertelsmann AG or Xxxxxx & Noble, Inc. (any of the foregoing,
a "Permitted Occupant"), or permit any Permitted Occupant to occupy all or any
portion of the Premises, provided that each Permitted Occupant shall be engaged
in a business or activity which is in keeping with the standards of the Building
and which is a Permitted Use. The provisions of Sections 41.2, 41.6, 41.9 and
41.10 shall not be applicable to any such assignment, subleasing or occupancy.
Any assignment or subleasing to, or occupancy by, any such Permitted Occupant
shall not relieve, release, impair or discharge any of Tenant's obligations
under this Lease. Each notice to Landlord with respect to any assignment,
subleasing or occupancy granted pursuant to this Section 41.11 shall include (i)
the name and the nature of the business or occupation of such Permitted
Occupant, and (ii) the terms of such assignment, subleasing or occupancy.
Section 41.12 (a) Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 41.1 or without Landlord's consent to the
extent permitted under Sections 41.10 and 41.11, shall be made only if, and
shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance reasonably satisfactory
to Landlord whereby the assignee shall assume the obligations of this Lease on
the part of Tenant to be performed or observed from and after the effective date
of such assignment or transfer, and whereby the assignee shall agree that the
provisions in Section 41.1 shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers.
(b) The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord, or any grantee or assignee of Landlord by way of
mortgage or otherwise, extending the time, or modifying any of the obligations
of this Lease, or by any waiver or failure of Landlord, or any grantee or
assignee of Landlord by way of mortgage or otherwise, to enforce any of the
obligations of this Lease.
(c) The listing of any name other than that of Tenant, whether on
the doors of the Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of Premises or to the use or occupancy thereof
by others. Any such listing shall constitute a privilege extended by Landlord,
revocable at Landlord's will by notice to Tenant, provided that Landlord shall
not unreasonably revoke such privilege as to any Affiliate of Tenant, or any
subtenant of Tenant or assignee of this Lease approved by Landlord pursuant to
this Article 41 (or without Landlord's approval, to the extent permitted
pursuant to Section 41.11).
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