Exhibit 10.10
L E A S E
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417 FS REALTY LLC
Landlord
-with-
POLESTAR FIFTH PROPERTY ASSOCIATES LLC
Tenant
Premises: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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INDEX
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Article Page
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1. DEFINITIONS.............................................................1
2. DEMISE AND TERM; STATUS OF TITLE........................................7
3. RECORDATION OF LEASE....................................................8
4. LANDLORD COVENANTS RE: COOPERATION/POWER OF ATTORNEY...................9
5. FIXED RENT.............................................................10
6. NET LEASE..............................................................11
7. PAYMENT OF IMPOSITIONS.................................................11
8. DEPOSITS FOR REAL ESTATE TAXES.........................................14
9. USE; COMPLIANCE WITH LAWS; ETC.........................................14
10. UTILITIES AND SERVICES.................................................17
11. INDEMNIFICATION........................................................17
12. MAINTENANCE AND REPAIRS................................................18
13. MECHANICS' AND OTHER LIENS.............................................19
14. ALTERATIONS............................................................20
15. CONDITIONS FOR TENANT'S WORK...........................................20
16. INSURANCE..............................................................21
17. DAMAGE OR DESTRUCTION..................................................24
18. CONDEMNATION...........................................................28
19. APPORTIONMENTS.........................................................29
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20. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS...........................30
21. QUIET ENJOYMENT........................................................34
22. SURRENDER OF PREMISES..................................................34
23. ASSIGNMENT AND SUBLETTING..............................................35
24. LEASEHOLD MORTGAGES....................................................36
25. SUBLEASES - ATTORNMENT.................................................44
26. ESTOPPEL CERTIFICATES..................................................45
27. WAIVER OF JURY TRIAL...................................................46
28. SUBORDINATION/NON-DISTURBANCE..........................................46
29. NON-MERGER.............................................................47
30. EXCAVATION ON ADJOINING PROPERTY; ENCROACHMENTS........................47
31. LIMITATION OF LIABILITY................................................47
32. EXHIBITION OF DEMISED PREMISES.........................................48
33. BROKER.................................................................48
34. LANDLORD COVENANTS/REFINANCING.........................................48
35. NOTICES, ETC...........................................................50
36. INDEX AND CAPTIONS.....................................................52
37. VAULTS.................................................................52
38. RIGHT OF SET-OFF/TENANT REMEDIES.......................................52
39. INVALIDITY OF PARTICULAR PROVISION.....................................55
40. AUTOMATIC EXTENSION OF TERM............................................55
41. MISCELLANEOUS PROVISIONS...............................................56
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42. FURTHER ASSURANCES.....................................................57
43. COVENANTS BINDING ON RESPECTIVE PARTIES................................58
44. ARBITRATION............................................................58
45. RIGHT TO PURCHASE AFTER TERMINATION....................................58
EXHIBITS
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Exhibit A - Description of Land...............................................
Exhibit B - Memorandum of Lease...............................................
Exhibit C - Exceptions to Non-Recourse........................................
Exhibit D - Pre-Existing Environmental Matters................................
Exhibit E - Jewish Holidays...................................................
Exhibit F - Permitted Encumbrance.............................................
Schedules
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Schedule A - Fixed Annual Rent
Schedule B - Fixed Annual Rent During Extension Term
Schedule C - Leases
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THIS LEASE (this "Lease") made as of the ____ day of February, 1998
between 417 FS REALTY LLC, a Delaware limited liability company having an office
c/o Prince Management Corp., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called "Landlord"), and POLESTAR FIFTH PROPERTY ASSOCIATES LLC, a
Delaware limited liability company having an office c/o NorthStar Capital
Partners LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
"Tenant").
W I T N E S S E T H :
ARTICLE 1. DEFINITIONS
Section 1.1. For the purposes of this lease, unless the context otherwise
requires, the following words and terms shall have the meanings indicated:
1.1.1. Additional Rent (whether or not the initial letters are
capitalized): All rent, additional rent and other charges and sums
payable by Tenant under or in respect of this lease, whether payable
to Landlord or any other Person, including but not limited to
interest, principal and other charges to be paid to the Fee
Mortgagee, pursuant to the terms of the Fee Mortgage, but excluding
Fixed Annual Rent.
1.1.2. Affiliate: A Person directly or indirectly controlling,
controlled by or under common control with any other Person; or, in
the case of an individual, a member of that Person's immediate
family.
1.1.3. Agreement: That certain Agreement dated as of January 14,
1998 between FS and The 44th B.C. Realty Corp., as owners, and NS
417/44 LLC, an affiliate of Tenant, pursuant to which the parties
agreed, among other things, to execute this lease and the Option
Agreement.
1.1.4. Air Rights: All air rights or development rights, or both, if
any, now pertaining to or hereinafter transferred to the Land.
1.1.5. Building: All buildings, structures and improvements
heretofore or hereinafter erected on the Land or any part thereof,
together with all alterations, additions, improvements, repairs,
restorations and replacements thereof (including, without
limitation, vaults).
1.1.6. Building Equipment: All machinery, apparatus, equipment and
fixtures of every kind and nature whatsoever heretofore or hereafter
attached to or used in connection with the operation or maintenance
of the Building, including, but not limited to, all heating,
lighting, and power equipment, engines, pipes, pumps, tanks, motors,
conduits, plumbing, cleaning, fire prevention, refrigeration,
ventilating, air-cooling and air-conditioning equipment and
apparatus, elevators, ducts and compressors, and any and all
alterations, additions, improvements, restorations and replacements
of any thereof; but excluding, however, (i) property of any
subtenant or other occupant of any portion of the Building, other
than Tenant, which each such subtenant or other occupant may be
authorized to remove from the Building upon and subject to the terms
and conditions of its sublease, (ii) property of contractors
servicing the Building, and (iii) improvements for water, gas and
electricity and other similar equipment or improvements owned by any
public utility company or any governmental agency or body.
1.1.7. Business Days: Mondays, Tuesdays, Wednesdays, Thursdays and
Fridays that do not fall on Holidays.
1.1.8. Commencement Date: Defined in Section 2.1.
1.1.9. Control: Possessing directly or indirectly, the power to
direct or to cause the directing of the management policies of the
entity in question, whether through the ownership of a majority of
voting securities or a majority of partnership interests.
1.1.10. Demised Premises: The Land, the Building and the Building
Equipment, together with (i) all rights, benefits (xxxxxx or
inchoate) privileges and easements now or hereafter pertaining
thereto including, without limitation, all copyrights, trademarks,
service names and other marks and any claims or awards in favor of
Landlord in respect of the Land, the Building and/or the Building
Equipment from and after the date of this Lease except as otherwise
apportioned hereunder; (ii) all Air Rights, including the right to
use said Air Rights in connection with the construction, operation
and maintenance of the Building, or any addition to the Building;
(iii) all leases, agreements, tenant files and all correspondence
relating to the Demised Premises in Landlord's possession; (iv) all
permits, certificates, approvals, authorizations, variances and
covenants; and (v) all architectural, mechanical, engineering and
other plans and specifications in Landlord's possession pertaining
to the use, operation and maintenance of the Land, Building and
Building Equipment or any part thereof.
1.1.11. Depository: a Lending Institution having its principal
office in the City of New York which is designated by the Person
Entitled to Demand Security, or the Tenant.
1.1.12. Event of Default: Defined in Section 20.1.
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1.1.13. Fee Mortgage: Any present or future mortgage(s) on all or
any part of the fee title to the Demised Premises or any loan to
Landlord that has been effectuated by Tenant (it being understood
that Tenant has the ability to obtain one or more Fee Mortgages,
provided such Fee Mortgages comply with the provisions of Article 34
hereof), and any holder thereof (or of any one of them) or any
holder of a loan to Landlord that has been effectuated by Tenant is
herein sometimes called a "Fee Mortgagee".
1.1.14. Fixed Annual Rent: Defined in Section 5.1.
1.1.15. 417 Premises: That certain premises, including all
improvements thereon, located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx.
1.1.16. FS: F.S. Realty Corp., a New York corporation that is the
99% managing member of Landlord.
1.1.17. Holidays: Those days listed on Exhibit E attached hereto as
well as New Year's Day, Xxxxxx Xxxxxx Xxxx, Xx. Day, Presidents'
Day, Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans Day, Thanksgiving Day and Christmas, and any other days on
which there is no regular United States postal service and the New
York Stock Exchange (or any successor thereto) is closed.
1.1.18. Immediate Family: A parent, spouse or child or a trust for
the benefit of any of them.
1.1.19. Impositions: Defined in Section 7.1.
1.1.20. Insurance Requirements: The requirements of any insurer of
the Demised Premises, and the requirements of the local Board of
Fire Underwriters insofar as they pertain to the Demised Premises.
1.1.21. Land: All that certain plot, piece or parcel of land
situate, lying and being in the City, County and State of New York
described in Exhibit A attached hereto and made a part hereof.
1.1.22. Landlord: The owner at the time in question of Landlord's
interest under this lease so that, in the event of any permitted
transfer of Landlord's entire interest in the Demised Premises, the
transferor, grantor or assignor shall be and hereby is entirely
relieved and freed of all of its obligations hereunder, and it shall
be deemed without further agreement between the parties that such
grantee, transferee or assignee has assumed and agreed to perform
and observe all
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obligations of the transferor, grantor or assignor hereunder,
whether then accrued or thereafter accruing.
1.1.23. Lease Interest Rate: Defined in Section 5.4 hereof.
1.1.24. Landlord Deficiency Amount: Defined in the Option Agreement.
1.1.25. Leasehold Mortgage: Any mortgage which is a lien on the
leasehold estate created under this lease or any subleasehold estate
as contemplated in Section 24.1 hereof, as the same may be renewed,
extended, modified, consolidated and replaced from time to time,
provided that such mortgage and any renewal, extension,
modification, consolidation or replacement thereof, has been made in
accordance with and complies with the provisions and conditions of
Article 24; and the holder thereof is herein sometimes called a
"Leasehold Mortgagee." The first lien Leasehold Mortgage is referred
to herein as the "First Leasehold Mortgage," and the holder thereof
is sometimes referred to herein as the "First Leasehold Mortgagee."
1.1.26. Legal Requirements: All laws, statutes and ordinances
(including, but not limited to, building codes and zoning
regulations and ordinances), and the orders, rules, regulations and
requirements of all Federal, State and municipal governments, and
the appropriate agencies, officers, departments, boards and
commissions thereof, whether now or hereafter in force, which may be
applicable to the Demised Premises, or any part thereof, or the use
or manner of use of all or any part of the Demised Premises, or the
sidewalks or curbs adjacent thereto.
1.1.27. Lending Institution: (i) Any savings bank or commercial
bank, trust company, savings and loan association, insurance
company, bulge bracket investment bank, real estate investment trust
or pension fund, or any other Person whose loans are regulated by
any Federal or State law, agency or department thereof, having
assets in excess of One Hundred Million ($100,000,000) Dollars or
any wholly owned subsidiary of any of the foregoing and (ii) Tenant
or an Affiliate of Tenant.
1.1.28. Master Sublease: Defined in Section 23.1 hereof.
1.1.29. Master Sublessee: The owner at the time in question of the
Master Sublessee's interest under the Master Sublease or any
Leasehold Mortgagee or any nominee or designee of such Leasehold
Mortgagee which shall have obtained a new lease pursuant to Article
24 hereof in respect of such Master Sublease and the successors and
assigns of such Leasehold Mortgagee, nominee or designee, so that
from and after any sale, assignment or other transfer of any Master
Sublessee's interest in this lease, as permitted pursuant to the
provisions hereof,
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the transferor, grantor or assignor shall be and hereby is entirely
relieved and freed of all of its obligations hereunder, and it shall
be deemed without further agreement between the parties that such
grantee, transferee or assignee has assumed and agreed to perform
and observe all obligations of the transferor, grantor or assignor
hereunder, whether then accrued or thereafter accruing.
1.1.30. Mortgage: Any Fee Mortgage and/or any Leasehold Mortgage, as
the case may be.
1.1.31. Mortgagee: The holder of any Fee Mortgage (or the holder of
any loan to Landlord that has been effectuated by Tenant), and/or
the holder of any Leasehold Mortgage, as the context shall require.
1.1.32. NS Member: PoleStar Fifth Holding LLC, a Delaware limited
liability company that is the one (1%) percent member of Landlord,
its successors and assigns.
1.1.33. Non-Permitted Encumbrance: shall mean any title matter other
than a Permitted Encumbrance.
1.1.34. Operating Agreement: The Amended and Restated Limited
Liability Company Agreement of Landlord dated of even date herewith
between FS and NS Member.
1.1.35. Option: as defined in the definition for Option Agreement
hereunder.
1.1.36. Option Agreement: shall mean that certain agreement dated of
even date herewith between Landlord, as Optionor and Optionee,
pursuant to which Landlord has granted Optionee an irrevocable
Option (the "Option") to purchase the Demised Premises pursuant to
the terms thereof.
1.1.37. Option Closing: shall mean the closing under the Option
Agreement pursuant to the terms thereof.
1.1.38. Option Payments: shall have the meaning given such term in
the Option Agreement.
1.1.39. Optionee: shall mean PoleStar Fifth Optionee LLC, a Delaware
limited liability company, its successors and assigns.
1.1.40. Permitted Encumbrance: shall mean the matters listed on
Exhibit F attached hereto.
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1.1.41. Person (whether or not the initial letter is capitalized): A
natural person or persons, a partnership, a limited liability
company or partnership, a corporation, and any other form of
business or legal association or entity.
1.1.42. Person Entitled to Demand Security: the holder of any
Mortgage (or loan to Landlord that has been effectuated by Tenant,
as the context shall so require).
1.1.43. possession of Landlord: shall be deemed to include
possession by Landlord and any managing agent at the Demised
Premises and their respective employees, agents, counsel and
representatives.
1.1.44. Purchase Right: shall mean that certain Interest Purchase
Option in favor of the NS Member pursuant to the terms of Section
10.07 of the Operating Agreement.
1.1.45. Refinancing: shall mean, with respect to any Mortgage or
loan, as the context shall so require, an amendment, modification,
supplement or refinancing of such Mortgage or loan; and if there is
no Mortgage or loan at any point in time, shall mean obtaining such
Mortgage or loan.
1.1.46. Sublease (whether or not the initial letter is capitalized):
All subleases and lettings written and oral, licenses, concessions,
easements, occupancies or any other agreement for use or hire of all
or any portion of the Demised Premises; and any person entitled to
use all or any portion of the Demised Premises under any Sublease is
herein sometimes called a "Subtenant."
1.1.47. Tenant: Tenant shall mean the owner at the time in question
of Tenant's interest under this lease or any Leasehold Mortgagee or
any nominee or designee of such Leasehold Mortgagee which shall have
obtained a new lease pursuant to Article 24 hereof and the
successors and assigns of such Leasehold Mortgagee, nominee or
designee, so that from and after any sale, assignment or other
transfer of Tenant's interest in this lease, as permitted pursuant
to the provisions hereof, the transferor, grantor or assignor shall
be and hereby is entirely relieved and freed of all of its
obligations hereunder, and it shall be deemed without further
agreement between the parties that such grantee, transferee or
assignee has assumed and agreed to perform and observe all
obligations of the transferor, grantor or assignor hereunder,
whether then accrued or thereafter accruing.
1.1.48. Tenant Transfer: shall mean any pledge, encumbrance,
hypothecation, assignment, subletting or other transfer (whether
voluntarily or by operation of law, directly or indirectly) by a
Tenant, Master Sublessee or any subtenant.
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1.1.49. Title Objection: shall mean a Title Objection, as defined in
the Option Agreement.
1.1.50. Unavoidable Delays: Any delays resulting from any acts of
God, governmental restrictions or preemption, acts of war or public
enemy, riot, rationing, civil commotion, storms, fire, floods,
earthquakes, strikes, lockouts, embargoes and any other matter which
shall be beyond the reasonable control of the party required to
perform.
Section 1.2. Various other words or terms which are defined in other
Articles of this lease shall have the meanings specified in such other Articles
for all purposes of this lease, unless the context otherwise requires.
ARTICLE 2. DEMISE AND TERM; STATUS OF TITLE
Section 2.1. Landlord, for and in consideration of the rents, additional
rents, terms, covenants and conditions herein reserved and contained, does
hereby demise, lease and grant to Tenant, and Tenant does hereby take and hire
from Landlord, the Demised Premises upon and subject to the terms, covenants and
conditions herein set forth and the following:
(a) Conditions shown on survey by Xxxxxxx X. Xxxxxxx dated February
21, 1963 redated February 25, 1994 by Xxxx X. Xxxxxx, X.X. Xxxxxxx ("Xxxxxx")
and updated by visual examination by Xxxxxx on December 9, 1997 and subject to
any changes since said date;
(b) Rights, if any, of tenants or occupants under the leases more
particularly set forth in Schedule C (collectively, the "Leases");
(c) Terms, Covenants and Restrictions recorded in Liber 635 Cp 426,
Liber 695 Cp 584 and Liber 890 Cp 268;
(d) Right or easement to maintain telephone wires, pipes, conduits,
and other facilities, used by the City of New York or for public utilities,
which enter or cross the Demised Premises;
(e) Building restrictions and regulations in resolutions or
ordinances adopted by the Board of Estimate and Apportionment of the City of New
York, or any successor body, and all the amendments and additions thereto, now
in force;
(f) Present and future zoning laws, ordinances, resolutions and
regulations of the City of New York and all present and future ordinances, laws,
regulations and orders of all boards, bureaus, commissions and bodies of any
municipal, county, state or federal sovereigns now or hereafter having or
acquiring jurisdiction of the Demised Premises and the use and improvement
thereof;
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(g) Right, if any, to maintain vaults, vault spaces, tunnels,
basements and sub-basement spaces, areas, structures, marquees or signs, beyond
the building lines, to the extent not revoked by law or governmental authority;
(h) The condition and state of repair of the Demised Premises as the
same may be on the date of the commencement of the term of this lease;
(i) All taxes, assessments, business improvement or similar district
charges, water charges and sewer rents, accrued or unaccrued, fixed or not
fixed, not yet due and payable;
(j) The effect of all present and future municipal, state and
federal laws, orders and regulations relating to lessees, sublessees or
occupants of the Demised Premises, their rights and rentals to be charged for
the use of the Demised Premises or any portion or portions thereof;
(k) Violations of law, ordinances, orders or requirements that might
be disclosed by an examination and inspection or search of the Demised Premises
by any federal, state or municipal departments or authority having jurisdiction,
as the same may exist on the date of the commencement of the term of this lease;
TO HAVE AND TO HOLD the Demised Premises for a term of twenty-five (25) years
and twenty (20) days (the "Initial Term"), commencing on February 9, 1998 (the
"Commencement Date") and expiring on February 28, 2023, unless this lease shall
sooner terminate as hereinafter provided.
Section 2.2. Tenant shall not permit any portion of the Demised Premises
to be used by any person or persons or by the public, as such, at any time or
times during the term of this lease, in such manner as might make possible a
claim or claims of adverse use, adverse possession, prescription, dedication, or
other similar claims of, in, to or with respect to the Demised Premises or any
part thereof.
Section 2.3. Landlord shall deliver possession of the Demised Premises to
Tenant on the Commencement Date vacant and free of occupants, tenancies and
rights to possession and enjoyment of others, subject to the Leases.
ARTICLE 3. RECORDATION OF LEASE
Section 3.1. At Tenant's option, Tenant may record this lease and any
amendments hereto. Concurrently with the execution and delivery of this lease,
the parties shall execute, acknowledge and deliver a memorandum hereof in
recordable form, prepared by Tenant, in the form annexed hereto as Exhibit B.
With respect to each modification of this lease, the parties
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shall also execute, acknowledge and deliver a memorandum in recordable form,
prepared by Tenant and containing such additional provisions as either party may
reasonably require.
ARTICLE 4. LANDLORD COVENANTS
RE: COOPERATION/POWER OF ATTORNEY
Section 4.1. Landlord hereby covenants, acknowledges and agrees that,
subject to the terms of this lease, Tenant shall have the right and authority to
use, occupy and operate the Demised Premises as determined by Tenant in its sole
discretion as permitted by law. In addition to Landlord's specific affirmative
obligations set forth herein and in connection therewith, Landlord covenants and
agrees that Landlord shall, in good faith, cooperate with Tenant in any manner
reasonably required by Tenant, at no cost or expense to Landlord, in connection
with any matter related to Tenant's use, occupancy and possession of the Demised
Premises, including, without limitation, the leasing, operation, maintenance and
financing of the Demised Premises, as well as with any Alterations (hereinafter
defined).
Section 4.2. In connection with Landlord's obligations set forth in
Section 4.1, and without in any way limiting the obligations in said Section
4.1, Landlord hereby irrevocably constitutes and appoints Tenant the free and
lawful attorney of Landlord, from time to time, to execute, acknowledge, swear
to and file any of the following:
(a) Any memorandum of lease pursuant to the terms of Article 3
hereof or any other documents necessary for the recordation of same;
(b) Any contests by Tenant of Impositions, or Legal Requirements and
any certiorari proceedings, as provided in Sections 7.4, 7.7 and 9.4 hereof,
respectively;
(c) Settlements and collection of proceeds with respect to casualty
and condemnation, as provided in Articles 17 and 18 hereof;
(d) Estoppel Certificates as provided in Article 26 hereof;
(e) Any utility easements or other easements reasonably deemed
necessary by Tenant to use, occupy and operate the Demised Premises; and
(f) Any building permit, applications, applications required by
applicable law or other documents required in connection with any Alterations or
the use, occupancy and operation of the Premises.
(g) Any agreements required in order to merge any zoning lots with
or over the Demised Premises;
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(h) Any documents evidencing or securing any Fee Mortgage, provided
such Fee Mortgage is non-recourse to Landlord except for those items set forth
on Exhibit C ( as well as any ancillary documents executed in connection
therewith), as and to the extent Tenant is authorized to obtain same pursuant to
Article 34 hereof; and
(i) any non-disturbance agreement to the extent Landlord is required
to execute same pursuant to Article 28 hereof.
It is expressly acknowledged by Landlord that the foregoing power of
attorney is coupled with an interest and irrevocable and shall survive until the
stated expiry date of this lease (as same may be extended pursuant to Article 40
hereof) or earlier legal and valid termination thereof pursuant to its terms and
shall (i) not be affected by the dissolution, liquidation or bankruptcy of
Landlord and (ii) extend to the Landlord's successors, assigns and legal
representatives.
ARTICLE 5. FIXED RENT
Section 5.1. Tenant agrees to pay to Landlord during the term of this
lease, over and above the other rents, sums, charges and additional payments to
be made by Tenant hereunder, a fixed rent (hereinafter called "Fixed Annual
Rent") at the rate set forth on Schedule A annexed hereto.
Section 5.2. The Fixed Annual Rent shall be payable as provided in
Schedule A. Said installments of Fixed Annual Rent shall be paid promptly when
due, without notice or demand therefor and without deduction, abatement or
set-off of any amount for any reason whatsoever, except as otherwise provided in
this lease. If Tenant shall be required by law to deduct and withhold income or
other similar Taxes (as hereinafter defined) from rentals or other amounts
payable hereunder to Landlord, as a result of such Landlord constituting a
Foreign Person (as hereinafter defined), Tenant shall be entitled to do so,
provided it shall provide a statement setting forth the amount of Taxes
withheld, the applicable rate and other information which may reasonably be
requested for the purposes of assisting Landlord to obtain any allowable credits
or deductions for the Taxes so withheld in each jurisdiction in which Landlord
is subject to tax. Upon Tenant's request, Landlord will execute any affidavits
reasonably required by Tenant to confirm that Landlord is not a Foreign Person.
A "Foreign Person" is any person who, or entity that, is, for U.S. federal
income tax purposes, a foreign corporation or foreign partnership, a nonresident
alien or foreign fiduciary of an estate or trust, or a nonresident alien
individual, which does not have on file with Tenant for the year in question the
duly-executed forms or statements which may, from time to time, be prescribed by
law and which, pursuant to applicable provisions of (a) an income tax treaty
between the United States and the country of residence of such person or entity,
(b) the United States Internal Revenue Code of 1954, as amended, or (c) any
applicable rules or regulations in effect under (a) or (b) above, permit Tenant
to make such payments free of any obligation or liability for withholding of
Taxes. "Taxes" are any taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature, now or hereafter
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imposed by the United States or by any department, agency, state or other
political subdivision thereof or therein.
Section 5.3. The Fixed Annual Rent, and, in any event, all other amounts
payable by Tenant to Landlord under the terms of this lease, shall be paid at
the office of the Landlord set forth above, or at such other place or to such
other person as Landlord may from time to time designate by notice to Tenant.
The Fixed Annual Rent, and all other amounts payable by Tenant to Landlord
hereunder, shall be paid in lawful money of the United States which shall be
legal tender for the payment of all debts and dues, public and private, at the
time of payment.
Section 5.4. If any installment or installments of Fixed Annual Rent or
Additional Rent shall not be paid within five (5) days after the same shall
become due hereunder, then, in addition to, and without waiving or releasing,
any other rights and remedies of Landlord, such unpaid amount shall bear
interest at a rate per annum (the "Lease Interest Rate") equal to the lesser of
(a) the rate announced by Citibank, N.A. or its successor from time to time as
its prime or base rate (the "Prime Rate"), plus 4%, or (b) the maximum
applicable rate allowed by law, from the date such Fixed Accrued Rent or
Additional Rent became due and payable to the date of payment thereof by Tenant.
Such interest shall be due and payable on demand.
ARTICLE 6. NET LEASE
Section 6.1. Except as herein expressly provided to the contrary, this
lease is intended to be, and shall be construed as, an absolutely net lease,
whereby under all circumstances and conditions (whether now or hereafter
existing or within the contemplation of the parties) the Fixed Annual Rent shall
be a completely net return to Landlord throughout the term of this lease; and
Tenant shall indemnify and hold harmless Landlord from and against any and all
expenses, costs, liabilities, obligations and charges whatsoever, which shall
arise or be incurred or shall become due, during the term of this lease, with
respect to or in connection with, the Demised Premises and the operation,
management, maintenance and repair thereof, including but not limited to
interest, principal and all other charges required to be paid pursuant to Fee
Mortgage(s).
ARTICLE 7. PAYMENT OF IMPOSITIONS
Section 7.1. Except as otherwise expressly provided to the contrary in
Sections 7.2 and 7.6 hereof, and subject to Section 5.2 hereof, Tenant shall
pay, as Additional Rent, throughout the term of this lease, directly to the
appropriate taxing or other governmental authorities having jurisdiction, at
least five (5) days before the first day on which any interest or penalty will
accrue or be assessed as the result of non-payment, all real estate taxes,
assessments, business improvement district fees, water and sewer charges or
rents, vault charges, and all other taxes and governmental charges, general or
special, ordinary or extraordinary, foreseen or unforeseen, of any kind or
nature whatsoever, whether similar or dissimilar, levied or imposed upon or
relating to, or a lien against, all or part of the Demised Premises, or arising
from or levied against
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the ownership, leasing, operation, use, occupancy or possession of all or part
of the Demised Premises, and all interest, penalties or like charges in
connection therewith (all of which taxes, assessments, charges, interest,
penalties or like charges are sometimes hereinafter referred to collectively as
"Impositions" and individually as "Imposition"). Tenant shall submit to Landlord
the copies of official receipts, or other proof reasonably satisfactory to
Landlord, showing the payment thereof, but failure to do so shall not constitute
a default hereunder unless (i) Tenant has received notice from Landlord that
Landlord has not received said copies and (ii) Tenant has not forwarded said
copies within ten (10) Business Days of receipt of said notice, which failure
shall constitute a default under this lease. Any refund with respect to
Impositions paid by Tenant and any interest accrued thereon shall be the
property of Tenant.
Section 7.2. If by law any Imposition is or may be payable, at the option
of the taxpayer, in installments, Tenant may pay such Imposition in installments
(with any accrued interest due and payable on the unpaid balance of the
Imposition) and shall pay each such installment at least five (5) days before
the first day on which if it is not paid, further interest would accrue.
Section 7.3. Impositions, whether or not a lien upon the Demised Premises,
shall be apportioned between Landlord and Tenant at the beginning and at the
expiration or sooner termination of the term of this lease, so that Tenant shall
pay only the portion of such Impositions which are allocable to the term of this
lease; provided, however, Landlord need not make any apportionment in Tenant's
favor if this lease shall be terminated by reason of a default on the part of
Tenant.
Section 7.4. Tenant, at its own cost and expense, may contest the amount
or validity of any Imposition in any manner permitted by law, in Tenant's name,
and whenever necessary, in Landlord's name, provided that Tenant does so with
due diligence and in good faith. Tenant shall advise Landlord, but shall not be
required to obtain the consent of Landlord, with respect to actions taken
pursuant to the preceding sentence. Landlord will cooperate with Tenant and
execute any documents or pleadings reasonably required for such purposes,
provided that the same shall be without cost, liability or expense to Landlord.
Such contest may include appeals from any judgment, decree or order until a
final determination is made by a court or governmental department or authority
having final jurisdiction in the matter. However, notwithstanding such contest,
Tenant shall pay the contested Imposition in the manner and on the dates
provided for in this Article, unless such payment would operate as a bar to such
contest or materially interfere with the prosecution thereof; and in such case,
Tenant may defer the payment of the contested Imposition upon condition that any
contest by Tenant of the amount or validity of any Imposition shall be subject
to the terms of the Fee Mortgage. Landlord shall have no right to contest any
Impositions on its own unless requested to do so by Tenant and in such event, in
the manner prescribed by Tenant.
Section 7.5. The certificate, advice or xxxx of the appropriate official,
designated by law to make or issue the same or to receive payment of any
Imposition, may be relied upon by
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Landlord as prima facie evidence that such Imposition is due and unpaid at the
time of the making or issuance of such certificate, advice or xxxx.
Section 7.6. Tenant shall not be obligated or required hereunder to pay,
and Impositions shall not include, any franchise, corporate, estate,
inheritance, succession, gift, transfer, capital levy or capital stock taxes
imposed upon Landlord or any successor of Landlord, or any municipal, state or
federal income, profit or revenue tax upon the income or receipts of Landlord,
or any tax imposed solely because of the nature of the business entity of
Landlord, or any other tax, assessment, charge or levy upon the Fixed Annual
Rent or Additional Rent imposed upon Landlord except to the extent hereinafter
provided in this Section 7.6, all of which Landlord shall promptly pay when due;
provided, however, that if at any time during the term of this lease the methods
of taxation prevailing on the date hereof shall be altered or changed so as to
cause the whole or any part (by type, not amount) of the taxes, assessments,
levies, impositions or charges now levied, assessed or imposed upon real estate
and the improvements thereon to be levied, assessed or imposed, wholly or
partially, on the rents received under this lease or upon or by reason of the
occupancy of the Demised Premises, then, any such taxes, excises, assessments
and impositions shall be deemed to be Impositions to the extent that the same is
imposed upon all owners of comparable real estate in Manhattan and would be
payable if the Demised Premises were the only property of Landlord and shall be
paid and discharged by Tenant, as Additional Rent, on or before the last day on
which the same may be paid without penalty or interest.
Section 7.7. (a) Tenant shall have the right to seek reductions in the
valuation of the Premises assessed for tax purposes and to prosecute any action
or proceeding in connection therewith from time to time. Tenant shall be
authorized to collect any tax refund obtained by reason thereof and, to the
extent such refund is for Impositions paid in whole or in part by Tenant, to
retain the same or so much thereof as relates to the payment made by Tenant
previously.
(b) Landlord shall not be required to join in any such proceedings
unless the provisions of any law, rule or regulation at the time in effect shall
require that such proceedings be brought by and/or in the name of Landlord, in
which event Landlord shall, at the request and expense of Tenant, join in such
proceedings or permit the same to be brought in its name, provided such joinder
shall not subject Landlord to any cost or expense for which Tenant is unwilling
to reimburse Landlord.
(c) Landlord agrees that whenever Landlord's cooperation is required
in any of the proceedings brought by Tenant as aforesaid, Landlord will
reasonably cooperate therein at the request and expense of Tenant, provided same
shall not subject Landlord to any cost or expense.
(d) Landlord shall have no right to institute or prosecute any tax
reduction proceedings for the period after the 1997/98 tax year unless requested
to do so by Tenant, and
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Tenant shall have no right to institute, prosecute or settle any tax reduction
proceedings for the period prior to the 1997/98 tax year.
ARTICLE 8. DEPOSITS FOR REAL ESTATE TAXES
Section 8.1. If the Person Entitled to Demand Security (as hereinafter
defined) shall require that sums be deposited with it to pay when due real
estate taxes levied or assessed against the Demised Premises, then, at such
times and intervals as the Person Entitled to Demand Security shall require,
Tenant shall deposit with the Depository (as hereinafter defined) such amounts
as may be reasonably required by the Person Entitled to Demand Security to
provide a fund sufficient for the payment, when due, of the amount of the then
annual real estate taxes, subject to adjustment as and when the amount of such
real estate taxes shall change. If the amount of any real estate tax shall not
have been fixed at the time any such deposit is required to be made, the deposit
shall be made on the basis of the amount thereof for the next preceding tax
year, or on the basis of the reasonable estimate of the Person Entitled to
Demand Security, subject to adjustment when the amount of such real estate tax
shall have been fixed. If the amount of the deposits for any real estate tax
shall be insufficient to pay the same when due, Tenant shall, on notice from the
Person Entitled to Demand Security, forthwith deposit with the Depository an
additional sum, which when added to the installments theretofore made on account
of such real estate tax shall be sufficient to pay the same in full.
Section 8.2. To the extent that Tenant shall have made any deposits with
the Depository, on account of any real estate taxes, the same shall be in lieu
of payment thereof by Tenant under Article 7 of this lease, unless and to the
extent such deposits are made with the Fee Mortgagee or a Lending Institution
designated by the Fee Mortgagee and are applied for a purpose other than for
which they were made in accordance with the documents evidencing the loan made
by such Lending Institution. Upon the expiration or sooner termination of this
lease, the deposits for real estate taxes, if any, then held by the Depository,
shall be paid over to Tenant, after being apportioned in the manner and upon the
conditions set forth in Section 7.3 above.
Section 8.3. If the Depository is the Fee Mortgagee or a Lending
Institution designated by the Fee Mortgagee, Tenant shall simultaneously send
Landlord a true copy of each check used to make a payment on account of real
estate taxes, but failure to do so shall not constitute a default hereunder
unless (i) Tenant has received notice from Landlord that Landlord has not
received said copies and (ii) Tenant has not forwarded said copies within ten
(10) Business Days of receipt of said notice, which failure shall constitute a
default under this lease.
ARTICLE 9. USE; COMPLIANCE WITH LAWS; ETC.
Section 9.1. The Demised Premises shall be used and occupied only for any
lawful purpose. Tenant shall not use, improve, permit or suffer the use,
improvement or occupancy of, the Demised Premises, or any part thereof (a) in
any unlawful manner, or for any illegal purpose, or in any manner which will
constitute a nuisance, and (b) other than for the purposes, and in the
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manner and to the extent, permitted by the Legal Requirements, the Insurance
Requirements and any Certificate of Occupancy now or hereafter applicable or
issued with respect to the Demised Premises.
Section 9.2. Tenant shall, throughout the term, at Tenant's own cost and
expense, promptly comply, or cause compliance, with all Legal Requirements and
Insurance Requirements, foreseen or unforeseen, ordinary as well as
extraordinary, and whether or not the same shall presently be within the
contemplation of the parties or shall involve any change of governmental policy
or require structural or extraordinary repairs, alterations or additions, and
irrespective of the cost thereof. The provisions and conditions of Article 15
shall also apply to any work required to be performed by Tenant under this
Article. Tenant further agrees that it will, at its own cost and expense,
promptly and fully perform and observe, or cause to be fully performed and
observed, all requirements, obligations and conditions of all instruments of
record described in Section 2.1 and the Fee Mortgage now, or hereafter to be
placed on the Demised Premises insofar as the same shall be in force and shall
affect or be applicable to the Demised Premises or any portion thereof or shall
impose any obligation upon Landlord or the fee owner of the Demised Premises or
upon any tenant or other occupant of the Demised Premises.
Section 9.3. Tenant has examined the Demised Premises and is fully
familiar with the physical condition thereof, and Tenant accepts the same "as
is" on the date hereof. Tenant assumes all risks, if any, resulting from any
latent or patent defects in the Demised Premises or from any failure of the same
to comply with any Legal Requirements applicable thereto.
Section 9.4. Tenant, after notice to Landlord, may contest by appropriate
Legal Proceedings at Tenant's own cost and expense, the validity of any Legal
Requirement, and Tenant may defer compliance therewith during the pendency of
such contest; provided, however, and upon condition that (a) such non-compliance
shall not constitute a crime on the part of Landlord or any agent, servant,
employee, trustee, beneficiary or principal of Landlord, (b) such non-compliance
will not result in any lien, charge or other liability of any kind against the
Demised Premises or against Landlord or Tenant's interest in this lease unless
Tenant obtains a bond insuring against enforcement of such lien against the
Premises, and (c) Tenant shall prosecute such contest with due diligence and in
good faith to a final determination by the court, department or governmental
authority or body having final jurisdiction, and (d) provided same shall be
required by the holder of the Fee Mortgage, Tenant shall first deposit with the
Depository such security (in the form of a surety company bond or otherwise) as
the Person Entitled to Demand Security shall reasonably require to assure
compliance by Tenant with such Legal Requirement. Landlord agrees to cooperate
reasonably with Tenant and to execute any documents or pleadings reasonably
required for the purpose of any such contest, provided that the same shall be
without cost, expense or liability to Landlord. Tenant may, at its option,
terminate any such contest at any time, and in such event Tenant shall promptly
pay or perform all of the requirements of the contested Legal Requirement and
Tenant shall indemnify and hold harmless Landlord against and from any and all
liability, loss and damage which Landlord may sustain by reason of Tenant's
delay in complying therewith. Upon the termination of any such
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contest and the payment and performance of all the requirements of the contested
Legal Requirement (as the same may have been modified as a result of such
contest), the Depository shall promptly return or cause to be returned to
Tenant, the security deposited by Tenant on account thereof.
Section 9.5. Tenant shall, at its sole cost and expense, obtain and keep
in full force and effect any and all necessary permits, licenses, certificates
or other authorizations required in connection with the lawful and proper
construction of the Building, the Building Equipment, the use, occupancy,
operation and management of the Demised Premises and the signs thereat; and
Tenant shall indemnify and hold harmless Landlord from and against all claims,
liability, damages, loss, costs and expenses (including, without limitation,
reasonable attorneys' fees) in connection therewith. Upon the expiration or
sooner termination of the term of this lease, Tenant shall promptly deliver all
permits, licenses, certificates and authorizations to Landlord which relate to
the Demised Premises and which were obtained by or issued to Tenant and are then
in force, together with an assignment or conveyance thereof to Landlord, in such
form and substance as Landlord shall reasonably require, but without
representation or warranty.
Section 9.6. If reasonably required for an Alteration (as defined in
Section 14.1) or for the construction, installation, maintenance, operation,
restoration or replacement of the Building, or Building Equipment, Tenant shall
have the right to create or grant utility easements to public or private utility
companies in connection with furnishing gas, electricity, steam or other utility
services to the Demised Premises or, if not reasonably required in connection
therewith, such utility easements which terminate on or before any termination
of this lease, whether by reason of Tenant's default or otherwise; provided,
however, that (a) any such easement which is acquired by Tenant shall become
part of the Demised Premises for all of the purposes of this lease, and (b) no
such easement, whether acquired, granted or created, may impose any charge on
Landlord or lien upon the Demised Premises in respect of any cost or charges in
connection therewith, other than for unpaid charges for utilities supplied to
the Demised Premises by governmental authorities through such easement. At
Tenant's request, Landlord will join with Tenant, at Tenant's sole cost and
expense, in the creation or granting of any such utility easement.
Section 9.7. Subject to the provisions of Article 18, no abatement,
diminution or reduction of the Fixed Annual Rent, or of any Additional Rent,
shall be claimed by, or allowed to, Tenant for any inconvenience, interruption,
cessation or loss of business or otherwise caused, directly or indirectly, by
any present or future laws, rules, requirements, orders, directions, ordinances
or regulations of the United States of America, or of the State, county or
municipal or other local government, or of any other municipal, governmental or
lawful authority whatsoever, or by priorities, rationing or curtailment of labor
or materials, or by war, civil commotion, lockouts, strikes or riots, or any
matter or thing resulting therefrom, or by any other cause or causes beyond the
control of Landlord, nor shall this lease be affected by any such causes.
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Section 9.8. Notwithstanding any provision of this lease to the contrary,
unless and until an enforcement proceeding with respect thereto has been
commenced by an appropriate governmental agency, Tenant shall not be required to
cure any violation of Legal Requirements existing on the date hereof, including,
without limitation, any of the environmental matters set forth on Exhibit D
annexed hereto (the "Pre-Existing Environmental Matters").
Section 9.9. Landlord agrees that Tenant shall be permitted to make any
changes in the present use, occupancy and operation of the Building, provided
such change is made in compliance with all Legal Requirements.
ARTICLE 10. UTILITIES AND SERVICES
Section 10.1. Tenant agrees to pay or cause to be paid all charges for
gas, water, sewer, electricity, light, heat, power, telephone or other
communication service or other utility or service used, rendered or supplied to,
upon or in connection with the Demised Premises throughout the term of this
lease, and to indemnify and hold harmless Landlord against and from any claims,
liability, damage, loss, cost or expense on such account.
Section 10.2. Tenant expressly agrees that Landlord is not, nor shall it
be, required to furnish to Tenant or any other occupant of the Demised Premises,
during the term of this lease, any water, sewer, gas, heat, electricity, light,
power or any other facilities, equipment, labor, materials or any services of
any kind whatsoever, whether similar or dissimilar.
ARTICLE 11. INDEMNIFICATION
Section 11.1. Tenant agrees, at its sole cost and expense, to indemnify
and hold harmless Landlord against and from any and all claims in respect of the
Demised Premises for actions (or failures to act) occurring during the term of
this lease by or on behalf of any Person arising from or in connection with (a)
the demolition of all or any part of the Building, the construction and
installation of all or any part of the Building and the Building Equipment or
the conduct or management of, and the payment for, any work or thing whatsoever
done in or about the Demised Premises by or on behalf of Tenant (or any person
holding or claiming through or under Tenant) during the term of this lease; (b)
the condition of the Demised Premises during the term of this lease, whether or
not such condition existed before the term of this lease commenced; (c) any
breach or default on the part of Tenant in the performance of any of Tenant's
covenants or obligations under this lease; (d) any act, negligence or fault of
Tenant, or any of its agents, servants, employees, contractors, invitees or
licensees, or of any person holding or claiming through or under Tenant; (e) any
accident, injury or damage whatsoever caused to any person or persons or any
property damage occurring during the term of this lease, in or about the Demised
Premises, or upon or under the streets and sidewalks adjacent thereto, in the
case of each of the foregoing clauses (a) through (e) excluding those caused by
the wrongful intentional acts of Landlord or its agents, servants, employees,
contractors, invitees or licensees occurring at any time. Further, Tenant agrees
to indemnify and hold harmless Landlord against and from all
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costs, reasonable counsel fees, expenses and liabilities incurred in connection
with or in defending any such claim or any action or proceeding brought thereon;
and in case any action or proceeding be brought against Landlord by reason of
any such claim, Tenant, upon notice from Landlord, agrees to resist or defend
such action or proceeding unless Tenant causes the same to be discharged and
satisfied. In addition, Tenant shall indemnify and hold harmless Landlord
against and from any costs and expenses paid or incurred by Landlord (including
reasonable counsel fees) in obtaining possession of the Demised Premises after
an Event of Default by Tenant or upon the expiration or sooner termination of
this lease, or in enforcing any of Tenant's obligations hereunder.
Section 11.2. Tenant agrees that, except for matters caused by the
wrongful intentional acts of Landlord or its agents, servants, employees,
invitees or licensees (provided, however, present tenants of the Demised
Premises shall not be deemed to include any of the foregoing), Landlord shall
not be responsible or liable to Tenant, or any other Person for, or by reason of
any of the following, to the extent same occurs during the term of this lease:
(a) any defect in the Land, the Building, the Building Equipment, or any other
equipment, machinery, wiring, apparatus or appliances whatsoever now or
hereafter situate in, at, or upon the Demised Premises, or (b) any failure or
defect of water, heat, electric light or power supply, or of any apparatus or
appliance in connection therewith, or from any injury or loss or damage to
property resulting therefrom, or (c) any injury, loss or damage to any person or
to the Demised Premises, or to any property of Tenant, or of any other Person,
contained in, upon or about the Demised Premises, or the streets and sidewalks
adjacent thereto, caused by or arising or resulting from the electric wiring or
plumbing, water, steam, sewerage or other pipes, or by or from any machinery or
apparatus, or by or from any defect in or leakage, bursting or breaking up of
same, or by or from any leakage, running or overflow of water or sewerage in any
part of the Demised Premises, or by or from any other defect whatsoever, or (d)
any injury or damage caused by, arising or resulting from lightning, wind,
tempest, water, snow or ice, in or upon or coming through or falling from the
roof, skylight, trapdoors, walls, windows or otherwise, or by or from other
actions of the elements, or from any injury or damage caused by or arising, or
resulting from acts, omissions or negligence of any occupant or occupants of the
Demised Premises or of any Subtenant, licensee, invitee or contractor of Tenant
(or of any other Person holding or claiming through or under Tenant).
Section 11.3 In connection with the aforesaid indemnification Landlord
agrees that Tenant shall not be liable for any consequential damages arising out
of the items which are the subject matter of the indemnification nor shall
Tenant indemnify Landlord in connection with any Pre-Existing Environmental
Matter, other than with respect to any claim arising from the disturbance of any
hazardous substance as the result of work performed at the Demised Premises
during the term of this lease.
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ARTICLE 12. MAINTENANCE AND REPAIRS
Section 12.1. Tenant shall, throughout the term of this lease, at Tenant's
sole cost and expense, maintain in good and lawful order, condition and repair
the Demised Premises and the sidewalks and curbs adjacent thereto, and, subject
to the rights of Tenant under Article 14 hereof, shall not commit or suffer any
waste with respect thereto. Tenant shall promptly make all repairs, interior and
exterior, structural and non-structural, ordinary as well as extraordinary,
foreseen as well as unforeseen, necessary to keep the Demised Premises and the
sidewalks and curbs adjacent thereto in good and lawful order and condition.
When used in this Article, the term "repairs" as applied to Building Equipment
shall be deemed to include replacements, restorations and/or renewals when
necessary. In any event, Tenant shall have the right, at any time and from time
to time, to remove and dispose of Building Equipment which may become obsolete
or unfit for use or which is no longer useful in the operation of the Demised
Premises. If any Building Equipment shall be removed, Tenant shall promptly
replace the same with other equipment, not necessarily of the same character but
of at least equal utility and value, except that if (a) by reason of
technological or other developments in the operation and maintenance of
buildings of the general character of the Building, no replacement of the
Building Equipment so removed or disposed of is necessary or desirable in the
proper operation or maintenance of the Building, or (b) the portion of the
Building in which such Building Equipment is located or which it serves is to be
demolished, Tenant shall not be required to replace the same. Tenant shall have
the right to sell or otherwise dispose of any Building Equipment which it is
required to replace or elects to replace pursuant to the provisions of this
Section, and may retain as its sole property the proceeds of any such sale or
disposition. The provisions and conditions of Article 15 shall apply to repairs
required to be done by Tenant under this Article. Subject to Tenant's rights to
make Alterations, Tenant shall keep and maintain all portions of the Demised
Premises and the curbs and sidewalks adjoining the Demised Premises, in a clean
and orderly condition, free of accumulation of dirt, rubbish, snow and ice, and
Tenant shall not permit or suffer any overloading of the floors of the Building.
Except as otherwise provided in Article 22, nothing herein contained shall be
construed to prevent Tenant or any subtenant, sublessee, or other occupant
claiming under or through Tenant from removing from the Demised Premises its
trade fixtures, furniture and equipment (other than Building Equipment), on the
condition, however, that Tenant shall do so without cost or expense to Landlord.
Subject to the exception which is set forth in clause (b) of this Section,
Tenant hereby agrees to promptly repair or cause to be repaired any and all
damages to the Demised Premises resulting from or caused by such removal.
ARTICLE 13. MECHANICS' AND OTHER LIENS
Section 13.1. If any mechanics' lien shall at any time be filed against
the Demised Premises, Tenant shall cause the same to be discharged of record
within sixty (60) days after actual notice of such filing is given to Tenant, by
either payment, deposit, bond or otherwise. If Tenant shall fail to discharge
any such mechanics' lien within such period, then, in addition to any other
right or remedy of Landlord, Landlord may, on notice to Tenant, but shall not be
obligated to, procure the discharge of the same of record by bonding. Any amount
paid by
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Landlord for same, and all reasonable legal and other expenses of Landlord,
including reasonable counsel fees, in defending any such action or in procuring
the discharge of any such lien, together with interest at the Lease Interest
Rate from the date of payment or deposit shall become due and payable forthwith
by Tenant to Landlord, upon submission of evidence of payment by Landlord and
shall constitute Additional Rent.
Section 13.2. Landlord hereby gives notice to all persons who may furnish
labor or materials to Tenant at the Demised Premises that Landlord does not
consent to the filing of any mechanic's or other lien against Landlord's
interest or estate in the Demised Premises, and that all persons furnishing
labor and materials to Tenant shall look only to Tenant's credit and such
security as Tenant may furnish for the payment of all such labor and materials.
ARTICLE 14. ALTERATIONS
Section 14.1. Tenant shall have the right at any time and from time to
time during the term of this lease to (a) make, at its sole cost and expense,
changes, alterations, additions, replacements or improvements in or to the
Demised Premises, whether structural or non-structural in nature and (b)
demolish, rebuild and reconfigure the Building (any such activity described in
either clause (a) or (b) is hereinafter called an "Alteration" and all such
activities are hereinafter called "Alterations"), provided Tenant complies with
Article 15 of this lease, and further provided that, in the event Tenant shall
elect to demolish the Building and not rebuild same, then Tenant shall satisfy
the Fee Mortgage and remove all other monetary liens encumbering the Demised
Premises other than those caused or created by Landlord unless same were created
pursuant to the provisions of Article 34 hereof.
Section 14.2. The parties shall cooperate in the preparation and
prosecution of all applications. Each party shall promptly join in the execution
of all documents which may be reasonably required in the prosecution of such
applications and shall provide to the other party such information within its
control as may be useful in obtaining governmental approvals.
ARTICLE 15. CONDITIONS FOR TENANT'S WORK
Section 15.1. Tenant agrees that all Alterations, repairs and other work
which Tenant shall be required or permitted to do under the provisions of this
lease, including the provisions of Articles 9, 12, 14, 17 and 18 (each
hereinafter in this Article called the "Work") shall be done in all cases upon
and subject to all of the following terms and conditions:
15.1.1. All Work shall be commenced only after all required
municipal and other governmental permits, authorizations and
approvals shall have been obtained by Tenant, at its own cost and
expense. Landlord will, on Tenant's written request, execute any
documents necessary to be signed by Landlord to obtain any such
permits, authorizations and approvals, provided that Tenant shall
discharge any reasonable expense or liability of Landlord in
connection therewith.
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15.1.2. All work shall be performed in accordance with all Legal
Requirements and Insurance Requirements. All Work shall be commenced
and completed with reasonable diligence, subject to Unavoidable
Delays.
15.1.3. The cost of all work shall be paid promptly, in cash, so
that the fee title to the Demised Premises shall at all times be
free from (a) liens for labor or materials supplied or claimed to
have been supplied to the Demised Premises or Tenant subject to
Section 13.1, (b) chattel mortgages, conditional sales contracts,
title retention agreements except for bona fide leases for Building
Equipment and any other similar liens and encumbrances incurred by
owners and operators of premises similar to the Demised Premises,
and (c) security interests and agreements, and financing agreements
and statements, except those given to any Mortgagee as collateral
security for its mortgage and any financing statements for any
equipment or improvements of a subtenant.
15.1.4. At all times when any Work is in progress, Tenant shall
maintain or cause to be maintained worker's compensation insurance
covering all persons employed in connection with the work, in an
amount at least equal to the minimum amount of such insurance
required by law.
Section 15.2. Title to the Work, when erected, constructed, installed or
placed upon the Demised Premises, shall automatically pass to, vest in and
belong to Landlord without further action on the part of either party and
without cost or charge to Landlord. Notwithstanding the foregoing, during the
term of this lease Tenant alone shall be entitled to claim depreciation on or
any investment tax credit or other tax deduction or credit now or hereafter
available with respect to the work, for all taxation purposes. Upon completion
of the Work, Tenant shall deliver to Landlord a true copy of any "as-built"
plans for the Work, which Tenant at Tenant's election has caused to be
prepared..
ARTICLE 16. INSURANCE
Section 16.1. Tenant shall, at its own cost and expense, provide and keep
in force the following insurance:
16.1.1. Commercial general public liability insurance against claims
for bodily injury, death or property damage occurring in or about
the Demised Premises (including, without limitation, bodily injury,
death or property damage resulting directly or indirectly from any
change, alteration, improvement or repair thereof), with a combined
single annual aggregate limit of not less than Ten Million and
NO/100 ($10,000,000.00) Dollars.
16.1.2. Insurance (with provision for deduction of not more than
$50,000) covering the Building and Building Equipment against loss
or damage by fire and
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such risks as are customarily included in extended coverage
endorsements attached to fire insurance policies covering similar
property in the City, County and State of New York, in an amount not
less than the greater of (i) ninety (90) percent of the full
insurable value thereof, (ii) the amount required by any Fee
Mortgagee, or (iii) an amount sufficient to prevent Landlord or
Tenant from becoming a co-insurer within the terms of the applicable
policies. The term "full insurable value" as used in this Article
shall mean the cost of actual replacement, without deduction for
depreciation, less the cost of excavations, foundations and footings
below the lowest basement floor.
16.1.3. Rent insurance in an amount equal to at least the aggregate
of one year's (a) Fixed Annual Rent, (b) Additional Rent (c)
Impositions and (d) premiums for the insurance referred to in
Section 16.1.2, and such other insurance, including, but not limited
to, worker's compensation and boiler and machinery insurance, and in
such amount as may from time to time be reasonably required by
Landlord or any Fee Mortgagee, against other insurable hazards which
at the time are commonly insured against in the case of similar
properties similarly situated in the City, County and State of New
York, with due regard to the height and type of building, its
construction, use and occupancy.
Section 16.2. All insurance to be provided and kept in force by Tenant
under the provisions of this lease (except worker's compensation insurance)
shall name Landlord and any Mortgagee as additional insureds, and, in addition,
the insurance described in Section 16.1.1 may also name as additional insureds
any Subtenants or other Persons having an insurable interest and designated by
Tenant. In addition, the proceeds of loss under the policies of insurance
required to be obtained by Tenant under Sections 16.1.2 and 16.1.3 (except
worker's compensation insurance) shall be payable as provided in Section 16.3
under standard non-contributing mortgagee clauses attached to such policies.
Said policies shall be obtained by Tenant upon the commencement of the term of
this lease, and shall be taken in responsible companies of recognized
responsibility licensed to do business in the State of New York, rated A or
better by Best's or any successor or from highly rated insurers generally
writing such insurance for similar properties in Manhattan). A certificate for
each such policy of insurance shall be delivered to Landlord and to each
Leasehold Mortgagee. Said policies shall be for a period of not less than one
year and shall contain a provision whereby the same cannot be canceled or
modified unless Landlord (and each Fee and Leasehold Mortgagee named as an
insured thereunder) is given at least thirty (30) days' prior written notice of
such cancellation or modification. Tenant shall procure and pay for renewals of
such insurance from time to time at least thirty (30) days before the expiration
thereof, and Tenant shall promptly deliver to such Mortgagees and to Landlord
the renewal policies or certificates thereof, as required above, together with
receipted bills or other reasonably satisfactory evidence of the payment of the
premiums therefor.
Section 16.3. In case damage to the Demised Premises by fire or otherwise,
and subject to the rights of any Mortgagee, provided there is then no uncured
Event of Default, (a) the loss, if
22
any, shall be adjusted only with Tenant and (b) the proceeds thereof shall be
paid to Tenant if One Million and NO/100 ($1,000,000.00) Dollars or less, and to
the Depository if more than One Million and NO/100 ($1,000,000.00) Dollars. The
holder of such insurance proceeds shall hold same as a trust fund for the
purpose of paying the cost of the work required to be performed by Tenant under
Article 17 hereof, and, with respect to any rent insurance provided under
Section 16.1, to the payment of the Fixed Annual Rent, Additional Rent and other
charges payable by the Tenant under this lease, and the Depository shall
disburse such monies as provided in Article 17. The Depository shall be entitled
to reasonable compensation for its services as such, payable out of such monies.
Notwithstanding anything contained in this Article to the contrary, (i) provided
there is no continuing Event of Default hereunder, all proceeds of any rent
insurance, business interruption insurance or similar insurance shall be paid to
Tenant, and (ii) the terms of the Fee Mortgage, if any, shall govern the
disposition of insurance proceeds.
Section 16.4. To the extent permitted by law, the parties hereby release
each other from any and all liability or responsibility to their insurers by way
of subrogation or otherwise, for any loss or damage caused by or arising from
any occurrence, casualty or event covered by policies of insurance (including
endorsements) required to be maintained pursuant to this lease.
Section 16.5. Tenant shall not carry any duplicate insurance unless such
coverage names Landlord as an additional insured and such insurance is permitted
under the primary policy.
Section 16.6. Landlord shall not carry any insurance with respect to the
Demised Premises, provided Tenant is in compliance with the provisions of
Section 16.1 above.
Section 16.7. Landlord may from to time, but not more frequently than once
every sixty (60) months, require that the amount of the public liability
insurance to be provided and kept in force by Tenant under Section 16.1.1 be
increased, so that the amount thereof shall be that commonly carried in the case
of similar properties similarly situated in the City, County and State of New
York and with due regard to the height and type of building, its construction,
use and occupancy. Tenant shall, thereafter, carry the insurance as determined
by such arbitration to be adequate and required, but in no event shall the
amount of public liability insurance be less than the amount specified under
Section 16.1.1.
Section 16.8. Any of the insurance coverages required under this Article
may be included within a so-called "blanket policy" covering other properties
owned or leased by Tenant or one or more Affiliates and such blanket policy may
have a single limit for the fire and extended coverage casualties, provided such
single limit is not less than that required for the Demised Premises under
Section 16.1.2. Additionally, at Tenant's option, such insurance coverages may
be included in umbrella policies.
Section 16.9. Notwithstanding anything contained in this Article to the
contrary, in the event any Fee Mortgage shall require greater amounts of
coverage or additional types of coverage than required by this lease, then the
terms of such Fee Mortgage shall govern and a
23
failure on the part of Tenant to comply with such requirements shall constitute
a default on the part of Tenant under this lease. Notwithstanding anything in
this Article 16 to the contrary, any insurance carrier selected by Tenant to
provide the insurance required hereby shall meet the rating criteria required by
a Fee Mortgage.
ARTICLE 17. DAMAGE OR DESTRUCTION
Section 17.1. If the Building or the Building Equipment shall be damaged
or destroyed by fire or other casualty ("Casualty"), whether or not covered by
insurance, unless Tenant elects not to repair, restore, replace or rebuild the
Demised Premises (such election, the "Non-Restoration Election") and (i)
satisfies the Fee Mortgage; (ii) removes all other monetary liens encumbering
the Demised Premises other than those caused or created by Landlord unless same
were created pursuant to the provisions of Article 34 hereof; and (iii) complies
with applicable law in respect of the physical condition and maintenance of the
Demised Premises after such casualty, including, if necessary, demolishing the
Building and bringing the site to grade, Tenant shall, with reasonable
diligence, repair, restore, replace or rebuild the same to as nearly as may be
practicable its condition and character immediately prior to such damage or
destruction. Such alterations, additions, replacements and improvements shall be
made under and in accordance with the provisions and conditions of Articles 14
and 15. The work required under this Section 17.1 is herein called the
"Restoration".
Section 17.2 In the event Tenant shall make the Non-Restoration Election
and shall fulfill the conditions set forth in clauses (i) through (iii) of
Section 17.1, then any insurance proceeds remaining shall be retained by, or
paid over to, Tenant, subject to the rights of any Leasehold Mortgagee.
Section 17.3. If Tenant does not make the Non-Restoration Election, the
net amount of the insurance monies paid over to the Depository, shall be applied
by the Depository in the following manner:
(a) there shall be paid to Tenant from said insurance monies
such part thereof as shall equal the cost to Tenant incurred in
making such temporary repairs or doing such other work as was
reasonably necessary in order to protect the Demised Premises
pending adjustment of the insurance loss and the completion of the
Restoration;
(b) there shall be paid to Tenant from said insurance monies
such part thereof as shall equal the cost to Tenant incurred in
performing the Restoration;
(c) payment to Tenant pursuant to subdivision (a) or (b) of
this Section 17.3 from such insurance monies and any deposit
required under Section 17.4 (hereinafter collectively called the
"Restoration Fund") shall be made by the Depository to Tenant from
time to time as the Restoration
24
progresses, but not more frequently than monthly, in amounts equal
to ninety (90%) percent of the value of labor, fixtures, equipment
and material then incorporated into and used in such work, and
builders', architects' and engineers' fees, and other charges in
connection with the Restoration, upon delivery to Landlord and the
Depository of a certificate of a registered architect or licensed
professional engineer, certifying (i) that the amounts so to be paid
to the Tenant are payable to Tenant in accordance with the
provisions of this Section 17.3 and that such amounts are then due
and payable by Tenant or have theretofore been paid by Tenant; (ii)
the progress of the work; (iii) that the Restoration has been done
in accordance with the plans and specifications therefor and all
applicable Legal Requirements and Insurance Requirements; (iv) that
the sum requested when added to all sums previously paid out under
this Section 17.3 for the Restoration does not exceed the value of
the labor, fixtures, equipment and material done or installed to the
date of such certificate; and (v) the estimated cost of completing
the Restoration and that in the opinion of such architect or
engineer the remaining amount of the Restoration Fund will be
sufficient upon completion of the Restoration to pay for the same in
full. The ten percent (10%) retainage provided for above shall be
paid to Tenant upon delivery to Landlord and the Depository of a
certificate signed by such architect or engineer stating that the
Restoration has been fully completed in accordance with the plans
and specifications therefor and all applicable Legal Requirements
and Insurance Requirements;
(d) at the request of Landlord (which shall not be made more
often than once every thirty (30) days) or the Depository, Tenant
shall furnish to Landlord and the Depository, at the time of any
such payment, an official search or other evidence reasonably
satisfactory to the Depository that (i) there has not been filed
with respect to the Demised Premises any mechanic's or other lien
which has not been discharged of record, in respect of any work,
labor, services or materials performed, furnished or supplied, in
connection with the Restoration, and (ii) all of said materials have
been purchased free and clear of any chattel mortgage or title
retention or other security agreement. The Depository shall not pay
out any such sum when the Demised premises shall be encumbered with
any such lien or agreement, or when Tenant is in default under this
lease and such default has not been remedied by Tenant or any
Leasehold Mortgagee within the applicable grace period, if any,
provided therefor. The Depository shall be entitled to rely upon any
written notice to it from Landlord to the effect that neither Tenant
nor any Leasehold Mortgagee is entitled to any payment hereunder.
Upon the termination of this lease or the recovery of possession of
the Demised Premises by Landlord pursuant to Article 20, any monies
then held by the Depository shall be paid over to Landlord, subject
to the rights of any Fee Mortgagee; and
25
(e) there shall be paid to Landlord and to the other Persons
respectively entitled thereto under the provisions of this lease
from time to time the proceeds of any rent insurance provided under
Section 16.1 insofar as required in order to pay the Fixed Annual
Rent and Impositions, Additional Rent, and other charges payable by
Tenant under this lease; or, insofar as Tenant shall have paid any
of the foregoing, then, and provided there is then no uncured Event
of Default, there shall be paid to Tenant so much of such proceeds
as are required to reimburse Tenant for the amounts so paid by
Tenant.
(f) Notwithstanding anything contained in this Section 17.3.
to the contrary, the terms of the Fee or Leasehold Mortgage relating
to disbursement of insurance proceeds shall govern, with the
provisions of the Fee Mortgage controlling over the provisions of
the Leasehold Mortgage.
Section 17.4. If the insurance proceeds collected on account of damage or
destruction to the Demised Premises shall be insufficient to pay the total cost
of the Restoration, Tenant shall, prior to commencing the Restoration, deposit
with the Depository the amount of the deficiency, and thereafter from time to
time such additional amounts as shall be needed to meet any increases in the
total cost of the Restoration. In any case, Tenant agrees that if said insurance
monies shall be insufficient to pay the entire cost of the Restoration, Tenant
will pay the deficiency.
Section 17.5. If any of the insurance monies paid by the insurance company
to the Depository as hereinabove provided, shall remain after the completion of
the Restoration and the payment to Tenant of the retainage described above, the
excess shall be retained by or paid over to Tenant, subject to the rights of any
Mortgagee.
Section 17.6. In the event of any such damage or destruction by fire or
other casualty, the provisions of this lease shall be unaffected and Tenant
shall remain and continue liable for the payment of all Fixed Annual Rent and
Additional Rent required hereunder to be paid by Tenant, as though no such
damage or destruction had occurred, except to the extent that payments are
received by Landlord derived from the rental insurance provided under Section
16.1.
Section 17.7. Subject to Tenant's right to deliver the Non-Restoration
Election, if Tenant shall fail to commence the Restoration within one hundred
eighty (180) days from the date of such damage or destruction (as such one
hundred eighty (180) day period may be extended by Unavoidable Delays) or having
commenced the Restoration shall fail to complete the same in accordance with the
provisions of this lease with reasonable diligence as same may be extended by
Unavoidable Delays, and such failure shall continue for a period of thirty (30)
days, as same may be extended by Unavoidable Delays, any Leasehold Mortgagee
may, at its option and upon serving notice upon Landlord and Tenant that it
elects to do so, perform the Restoration. In such event, such Leasehold
Mortgagee shall have the right, subject to compliance with this Article, to
receive the insurance proceeds otherwise payable to Tenant and to apply the same
to the cost of
26
the Restoration to the extent that the same shall not theretofore have been
applied to the payment or reimbursement of the costs and expenses of Tenant as
aforesaid or otherwise applied pursuant to the provisions of this Article.
Section 17.8. Subject to Tenant's right to deliver the Non-Restoration
Election, if neither Tenant nor the holder of any Mortgage shall commence the
Restoration within one hundred eighty(180) days from the date of such damage or
destruction (as such one hundred eighty (180)-day period may be extended by
Unavoidable Delays) or having commenced the Restoration, shall fail to complete
it in accordance with the provisions of this lease and with reasonable
diligence, and such failure shall continue for a period of forty-five (45) days
after notice by Landlord (as such forty-five (45) day period may be extended by
Unavoidable Delays), Landlord may, at its option and upon serving written notice
upon Tenant and each such Mortgagee that it elects to do so, make and complete
such work. In such event, and whether or not this lease may have theretofore
been terminated by reason of such default or any other default by Tenant, any
insurance proceeds shall be paid over to Landlord subject to the rights of any
Fee Mortgagee.
Section 17.9. Landlord and Tenant each agrees that it will cooperate with
the other, to such extent as such other party may reasonably require, in
connection with the prosecution or defense of any action or proceeding arising
out of, or for the collection of any insurance monies that may be due in the
event of any loss or damage, and that they will execute and deliver to such
other parties such instruments as may be required to facilitate the recovery of
any insurance monies.
Section 17.10. The Depository may keep uninvested such amount of the
monies paid over to it as it deems sufficient to make timely payments thereof.
However, if the Depository, in its sole discretion, shall deem any portion of
such monies available for investment, such portion shall be invested in
certificates of deposit or bankers' acceptances of any United States commercial
bank having a net worth in excess of One Hundred Million and NO/100
($100,000,000.00) Dollars. Investments may also be made in United States
Treasury Bills or Notes. The Depository will not be liable for any loss which
may be incurred by reason of any such investment of the funds which it holds
thereunder. Any net income resulting from such investments, including any gains
realized on sale thereof, shall be added to and deemed to be part of the monies
paid over to the Depository. To the extent practicable, the Depository will
schedule maturities of investments to meet the needs of the person conducting
the Restoration, pursuant to monthly estimates of expected needs furnished by
such person. To the extent that the Depository becomes liable for the payment of
taxes, including withholding taxes, in respect of income derived from the
investment of funds hereunder or any payment made hereunder, the Depository may
pay such taxes as if such income were the Depository's sole income. The
Depository may withhold from any payment of monies held by it hereunder such
amount as it estimates to be sufficient to provide for the payment of such taxes
not yet paid, and may use the amount withheld for that purpose. Notwithstanding
anything contained in Section 17.10 of this
27
lease to the contrary, the terms of the Fee Mortgage with respect to the subject
matter of this Section shall govern.
Section 17.11. Tenant agrees to give prompt notice to Landlord with
respect to all fires and other casualties occurring in, on, at or about the
Demised Premises which result in any death or serious personal injury or in any
material damage or destruction to the Building or Building Equipment.
Section 17.12. To the extent that the provisions of this Article shall
conflict with the provisions of any laws of the State of New York, or any agency
or political subdivision thereof, controlling the rights and obligations of
parties to leases in the event of damage by fire or other casualty to leased
space, the provisions of this Article shall govern and control and such
conflicting laws shall be deemed waived by the parties hereto. To the extent
that the provisions of this Article shall conflict with the provisions of any
Fee Mortgage, the provisions of such Fee Mortgage shall govern.
ARTICLE 18. CONDEMNATION
Section 18.1. If, at any time during the term of this lease, title to the
whole or materially all of the Demised Premises shall be taken by the exercise
of the right of condemnation or eminent domain, this lease shall terminate and
expire upon the later of (a) the vesting of title to the Demised Premises in the
condemning authority or (b) transfer of possession of the Demised Premises to
the condemning authority. Until the later of such dates, Tenant shall not be
relieved of its obligation to pay Fixed Annual Rent and Additional Rent. In such
event, the total award made with respect to the Demised Premises shall be
determined by aggregating the respective values of the leasehold and fee estates
therein, and, after making the payments to Landlord required by the Option
Agreement in respect of the Option, the balance of the award, subject to the
rights of any Mortgage, shall be paid to the Tenant. For the purposes of this
lease, "materially all of the Demised Premises" shall be deemed to have been
taken if, in the reasonable opinion of Tenant, the Building can no longer be
operated in an economically viable manner.
Section 18.2. If at any time during the term of this lease, title to less
than the whole or materially all of the Demised Premises shall be taken as
aforesaid, or if there shall be any change of grade, then the entire award,
after the payment of the reasonable costs and expenses incurred by the parties
in connection with such proceeding, shall be paid towards the cost of
demolition, repair and restoration, substantially in the manner and subject to
the same terms and conditions as those provided in Section 16.3 and Article 17,
hereof. Any balance remaining after payment of such costs of demolition, repair
and restoration as aforesaid, shall be paid to the Tenant.
Section 18.3. In the event of a negotiated sale of all or a portion of the
Demised Premises in lieu of condemnation, the proceeds shall be distributed as
herein provided in cases of condemnation.
28
Section 18.4. Notwithstanding anything to the contrary herein contained,
in the event of a permanent or temporary taking of all or any part of the
Demised Premises, Tenant and its subtenants shall have the exclusive right to
assert claims for any trade fixtures and personal property so taken which were
the property of Tenant or its Affiliates or subtenants and/or relocation
expenses of Tenant or its Affiliates as subtenants, and all awards and damages
in respect thereof shall belong to Tenant, its Affiliates and subtenants, and
Landlord hereto waives any and all claims to any part thereof.
ARTICLE 19. APPORTIONMENTS
Section 19.1. Landlord shall have the right to continue to prosecute
and/or settle any pending tax reduction proceedings in respect of the Demised
Premises. However, Landlord shall have no right to enter into any settlement
affecting any tax years after the 1997-1998 tax year without Tenant's prior
written consent, which may be withheld in its sole discretion. Any refunds of
savings in the payment of taxes resulting from tax reduction proceedings
applicable to the period prior to the Commencement Date shall belong to and be
the property of Landlord, and any refunds or savings in the payment of taxes
applicable to the period from and after the Commencement Date shall belong to
and be the property of Tenant; provided, however, that if any refund creates an
obligation to reimburse any tenants for any rents paid for a period of time
prior to the Commencement Date, that portion of such refund equal to the amount
of such required reimbursement (after deduction of allocable expenses as may be
provided in this lease to such tenant) shall be paid to Tenant from the
Landlord's portion and Tenant shall disburse the same to such tenants. All
attorneys' fees and other expenses incurred in obtaining such refunds or savings
shall be apportioned between Landlord and Tenant in proportion to the gross
amount of such refunds or savings payable to Landlord and Tenant, respectively
(without regard to any amounts reimbursable to tenants).
Section 19.2. Landlord and Tenant shall promptly apportion any rent
payments delivered to either party pursuant to the Leases in respect of periods
prior to the Commencement Date as follows:
19.2.1. Any fixed rents collected subsequent to the Commencement
Date shall be apportioned as of the date of the Commencement Date,
and applied, first, to the costs of collection; second, to the month
in which the Commencement Date occurs; third, on account of any
period for which rent is due from and after the month in which the
Commencement Date occurs; fourth, to the extent Tenant shall have
received such rent from any tenant certified by Landlord on the
Commencement Date, as provided below (the "Late Tenant
Certification") to be in arrears, to payment of rent due on account
of the month immediately preceding the month in which the
Commencement Date occurs; and, fifth, to the extent Tenant shall
have received from any tenant covered by a Late Tenant
Certification, monies in excess of all rents then due from such
tenant, to payment of rents due on account of any period prior to
the one month period preceding the
29
month in which the Commencement Date occurs. On the Commencement
Date, Landlord shall deliver to Tenant a list of all tenants who are
delinquent in the payment of rents, the nature and amount of each
such delinquency and the period to which each such delinquency
relates.
19.2.2. Any rents payable by any tenants by reason of taxes,
operating expenses (whether calculated directly, and/or based upon
increases in the xxxxxx'x wage or other formula), shall be allocated
as and when collected on the basis of the respective periods with
respect to which such operating expenses were incurred or such taxes
were payable or such cost of living increases related,
notwithstanding the date(s) on which such rents become payable, and
the receiving party shall promptly pay over to the other party any
portion of such rents (if and when received) to which the other
party is entitled. Landlord, on reasonable notice and at reasonable
times, shall make available to Tenant any records (to the extent not
previously delivered to Tenant on the Commencement Date) which are
necessary to allow Tenant to xxxx tenants for such rents, whether
due or applicable to periods prior to subsequent to Commencement
Date.
Section 19.3. Landlord and Tenant shall apportion amounts due under any
service contracts and sums paid or payable for utilities, including, without
limitation, telephone, steam, electricity, and gas, on the basis of the most
recent bills therefor. Any sums on deposit with any utility company which will
remain on deposit after the Commencement Date as verified in writing by such
utility company shall be credited to Landlord.
Section 19.4 After the date hereof, if any party believes there has been
an incorrect apportionment, it shall so notify the other party, which notice
shall include the calculations for correcting the prior apportionment. If as a
result of the incorrect apportionment Landlord is entitled to more money, such
amount shall be payable as Additional Rent hereunder. If Tenant is entitled to
more money, Tenant shall have a right of Set-Off (hereinafter defined) in
respect of said amount. If the parties are in disagreement as to the correct
apportionment amount, Landlord shall not be entitled to the benefit of the
provisions of Section 20.1.4 and Tenant shall not exercise its right of Set-Off
with respect thereto and the parties shall submit such dispute to arbitration,
as provided in Article 44 hereof.
ARTICLE 20. CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS
Section 20.1. This lease and the term of this lease are subject to the
limitations that if, at any time prior to or during the term of this lease, any
one or more of the following events (herein called an "Event of Default") shall
occur, that is to say:
20.1.1. If Tenant shall make an assignment for the benefit of its
creditors; or
30
20.1.2. If any petition shall be filed against Tenant in any court,
whether or not pursuant to any statute of the United States or of
any State, in any bankruptcy, reorganization, composition,
extension, arrangement or insolvency proceeding, and if any such
proceeding shall not be dismissed within ninety (90) days after the
institution of the same; or if any such petition shall be so filed
by Tenant; or
20.1.3. If, in any proceeding, a receiver or trustee be appointed
for all or any portion of Tenant's property, and such receivership
or trusteeship shall not be vacated or set aside within ninety (90)
days after the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed
Annual Rent or any Additional Rent (subject to Sections 20.1.5 and
20.1.6 below), or any part thereof, when the same shall become due
and payable, and such failure shall continue for ten (10) days after
notice thereof from Landlord to Tenant, provided, however, that
Landlord shall be required to give Tenant notice of failure to pay
only for the first two (2) times in any twelve (12) month period,
and further provided that, with respect to any payment to be made to
a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2)
business days prior to the expiration of the grace or cure period
contained in such Fee Mortgage, (ii) proof of payment by facsimile
transmission shall be sent to Landlord immediately upon payment by
Tenant and (iii) no notice of failure to pay such payment to a Fee
Mortgagee shall be given by Landlord to Tenant. A failure on the
part of Tenant to pay such requisite amounts under a Fee Mortgage in
accordance with this provision (unless Fee Mortgagee waives any
resulting default or reinstates the Fee Mortgage following such
default) shall constitute an Event of Default. However, the failure
on the part of Tenant to submit proof of payment thereof shall
constitute an Event of Default under this lease only if (i) Tenant
has received notice from Landlord that Landlord has not received
said copies and (ii) Tenant has not forwarded said copies within ten
(10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee
Mortgagee agrees to waive all default interest and penalties
("Penalties") in respect of such failure to refinance the Fee
Mortgage or extend the maturity date thereof or Tenant pays such
Penalties to the Fee Mortgagee or escrows same with the Landlord's
counsel (provided, however, if, thereafter, the Fee Mortgagee waives
the Penalties or Tenant refinances the Fee Mortgage or extends the
maturity date of the Fee Mortgage as required by Section 34.2, such
escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, and the Fee
Mortgagee commences a foreclosure proceeding or sends written notice
to Landlord that it intends to commence a foreclosure proceeding
(provided, however, if the Fee
31
Mortgagee rescinds any notice of foreclosure or discontinues, or
agrees in writing to discontinue, any foreclosure proceeding once it
is commenced, such default shall be deemed waived by the Landlord);
or
20.1.7. If Tenant shall fail to perform or observe any other
requirement of this lease (not hereinbefore in this Section 20.1
specifically referred to) on the part of Tenant to be performed or
observed (other than the payment of a sum of money) and such failure
shall continue for thirty (30) days after notice thereof from
Landlord to Tenant (subject, however, to the provisions of Sections
20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when the
same shall become due and payable, and such failure shall continue
for ten (10) Business Days after notice thereof from Landlord to
Tenant;
Then, upon the happening of any one or more of the aforementioned
Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver
by Fee Mortgagee of any default under the Fee Mortgage as provided in Section
20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice
of termination") terminating this lease at the expiration of five (5) business
days from the date of Tenant's receipt of such notice of termination, and at the
expiration of such five (5) business days, this lease and the term of this
lease, as well as all of the right, title and interest of the Tenant hereunder,
shall wholly cease and expire in the same manner and with the same force and
effect as if the date of expiration of such five (5) day period were the date
originally specified herein for the expiration of the term of this lease, and
Tenant shall then quit and surrender the Demised Premises to Landlord, and
Landlord or Landlord's agents or servants may, either by summary process or by
any suitable action or proceeding at law, immediately or at any time thereafter
re-enter the Demised Premises and remove therefrom Tenant, its agents,
employees, servants, licensees, and any Subtenants and other persons, and all or
any of its or their property therefrom, and repossess and enjoy the Demised
Premises, together with all additions, alterations and improvements thereto; but
Tenant shall remain liable as hereinafter provided, subject to the provisions of
Article 31.
Section 20.2. Subject to the rights of any Mortgagee, if this lease shall
be terminated as provided in Section 20.1, all of the right, title, estate and
interest of Tenant (a) in and to the Building and the Building Equipment, all
changes, additions and alterations therein, and all renewals and replacements
thereof, (b) in and to all rents, income, receipts, revenues, issues and profits
issuing from the Demised Premises, or any part thereof, whether then accrued or
to accrue, (c) in and to all insurance policies and all insurance monies
premiums or awards paid or payable thereunder, and (d) in the then entire
undisbursed balance of any funds in the hands of the Depository, shall
automatically pass to, vest in and belong to Landlord, without further action on
the part of either party, free of any claim thereto by Tenant.
32
Section 20.3. Subject to the provisions of Article 31, if this lease is
terminated under the provisions of Section 20.1 or in the event of the
termination of this lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of an Event of
Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair
rental value of any space in the Demised Premises occupied by Tenant or an
Affiliate after such termination or re-entry, without thereby creating a
landlord-tenant relationship and Tenant shall be liable for no other damages. In
the event of a breach or threatened breach by Tenant of any of the covenants or
provisions hereof beyond the applicable grace period, if any, Landlord shall
have the right to seek an injunction and the right to invoke any remedy allowed
at law or in equity as if re-entry, summary proceedings and other remedies were
not herein provided for. Mention in this lease of any particular remedy shall
not preclude Landlord from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Landlord obtaining possession of the Demised
Premises by reason of the violation by Tenant of any of the covenants and
conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through
or under Tenant, including its creditors, upon the termination of this lease and
of the term of this lease in accordance with the terms hereof, or in the event
of entry of judgment for the recovery of the Possession of the Demised Premises
in any action or proceeding, or if Landlord shall enter the Demised Premises by
process of law hereby waives any right of redemption provided or permitted by
any statute, law or decision now or hereafter enforce, and does hereby waive,
surrender and give up all rights or privileges which it or they may or might
have under and by reason of any present or future law or decision, to redeem the
Demised Premises or for a continuation of this lease for the term of this lease
hereby demised after having been dispossessed or ejected therefrom by process of
law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding
it is expressly understood that with respect to any Event of Default within the
purview of Section 20.1.7 only, if such Event of Default cannot with the
exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be
cured within the period of thirty (30) days provided for in said Section,
Landlord shall not be entitled to serve a notice of termination upon Tenant, as
provided in Section 20.1, if Tenant shall commence the curing of such Event of
Default promptly after notice thereof from Landlord and shall thereafter proceed
with reasonable diligence to complete the curing of such Event of Default,
subject to Unavoidable Delays, it being the intention hereof that in connection
with any Event of Default within the purview of Section 20.1.7 only, which is
not susceptible of being cured with due diligence within said thirty (30) days,
the time of Tenant within which to cure the same shall be extended for such
period as may be necessary to complete the same with reasonable diligence,
subject to Unavoidable Delays. If at any time Landlord has reasonably determined
that Tenant has not proceeded with reasonable diligence to complete the curing
of such Event of Default, Landlord shall not be entitled to serve a notice of
termination unless Landlord has notified Tenant of such determination and Tenant
has failed to respond
33
within five (5) business days after its receipt of such notice. Any dispute
between Landlord and Tenant with respect to the subject matter hereof shall be
submitted to arbitration pursuant to Article 44.
Section 20.6. The words "re-enter" and "re-entry" as used herein are not
restricted to their technical legal meanings.
Section 20.7. If (a) there shall be an Event of Default and (b) Tenant
shall not be attempting to cure such Event of Default with reasonable diligence,
then Landlord may, but shall not be obligated to do so, after written notice to
Tenant and without waiving or releasing Tenant from any obligations of Tenant in
this lease contained, make such payment or perform such act which Tenant is
obligated to perform under this lease in such manner and to such extent as may
be necessary to cure such Event of Default, and, in exercising any such rights,
pay any necessary and incidental costs and expenses, employ counsel and incur
and pay reasonable attorneys' fees. All sums so paid by Landlord and all
necessary costs and expenses of Landlord incidental thereto, together with
interest thereon at the Lease Interest Rate from the date of the making of such
expenditures by Landlord, shall be deemed to be Additional Rent and, except as
otherwise in this lease expressly provided, shall be payable to the Landlord
twenty (20) days after demand, and if not promptly paid shall be added to any
rent then due or thereafter becoming due under this lease, and Tenant covenants
to pay any such sum or sums with interest as aforesaid and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of the non-payment thereof by Tenant as in the case of
default by Tenant in the payment of the Fixed Annual Rent.
Section 20.8. Upon an Event of Default and only during the continuance of
an Event of Default, the provisions of that certain Lockbox Agreement between
Landlord and Tenant shall become effective, subject to the rights of any Fee
Mortgagee and shall only be instituted if the Leasehold Mortgagee fails to cure
such Event of Default as provided in Article 24 hereof.
ARTICLE 21. QUIET ENJOYMENT
Section 21.1. Landlord agrees that Tenant, upon paying the rent herein
reserved, and performing and observing the covenants, conditions and agreements
hereof upon the part of Tenant to be performed and observed, shall and may
peaceably hold, enjoy and possess the Demised Premises during the term of this
lease, without any interruption or disturbance from Landlord or Persons claiming
through or under Landlord. This covenant shall be construed as running with the
land to and against subsequent owners and successors in interest, and is not,
nor shall it operate or be construed as, a personal covenant of Landlord, except
to the extent of the Landlord's interest in the Demised Premises and only so
long as such interest shall continue, and thereafter this covenant shall be
binding only upon such subsequent owners and successors in interest of
Landlord's interest under this lease, to the extent of their respective
interests as and when they shall acquire the same, and only so long as they
shall retain such interest.
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ARTICLE 22. SURRENDER OF PREMISES
Section 22.1. Tenant shall, upon the expiration or sooner termination of
this lease pursuant to its terms, surrender to Landlord any Building and
Building Equipment then upon the Demised Premises, together with all alterations
and replacements thereof then on the Demised Premises, in good order, condition
and repair, except for reasonable wear and tear, subject to Tenant's rights
under Article 14, 17 and 18 to demolish the Building.
Section 22.2. Title to all trade fixtures, furniture, equipment (other
than Building Equipment), installed in the Demised Premises shall remain in
Tenant or Subtenants, as the case may be, and, upon expiration or sooner
termination of this lease, the same may and, upon notice from Landlord, shall,
be removed promptly and any resultant damage to the Demised Premises shall be
repaired promptly, by and at the expense of Tenant. The provisions of this
Section shall survive the expiration or sooner termination of this lease.
Section 22.3. Any personal property of Tenant or (subject to Article 25)
Subtenants which shall remain in, at or upon the Demised Premises for ten (10)
days after the expiration or sooner termination of this lease may, at the option
of Landlord, be deemed to be abandoned property, and the same may be retained by
Landlord, as its sole property, or disposed of by Landlord at Tenant's expense
in such manner as Landlord may see fit, without accountability or liability
therefor.
ARTICLE 23. ASSIGNMENT AND SUBLETTING
Section 23.1. (a) Tenant shall have the right, without Landlord's consent,
to assign this lease or to sublet the Demised Premises as an entirety pursuant
to a sublease (the "Master Sublease") in a form agreed to by Tenant and the
sublessee thereunder (the "Master Sublessee"), provided:
23.1.1. Such assignee of this lease shall assume and agree in
writing (subject to the provisions of Section 31.1 hereof), duly
executed and acknowledged and in form for recording, to perform and
observe, from and after the effective date of such assignment, all
of the terms, covenants, and conditions of this lease to be observed
and performed by the Tenant and to be bound by all of the other
provisions of this lease, and that any Master Sublessee shall agree
in writing, duly executed and acknowledged and in form for
recording, to comply with and be subject to all the provisions of
this lease; and
23.1.2. A duplicate original of such assignment or Master Sublease
and the assumption agreement shall be delivered to the Landlord
promptly after the execution and delivery thereof, and no such
assignment or Master Sublease shall be effective unless and until
the foregoing conditions have been complied with. In the event of
any such assignment in conformity with the foregoing, Tenant
35
shall be released from the obligations of this lease accruing after
the effective date of such assignment. All subsequent assignments of
this lease or Master Sublease shall likewise be subject to the terms
and conditions of this Section.
(b) Any Master Sublessee shall have the right to (i) mortgage,
pledge, hypothecate or encumber its interest under a Master Sublease and (ii)
assign or further sublease the Demised Premises in the same manner as Tenant may
assign or sublease the Demised Premises as herein provided. In connection
therewith, any mortgagee of the Master Sublessee's subleasehold interest in the
Master Sublease shall have the same benefits afforded to any Leasehold Mortgagee
of Tenant's leasehold interest as provided in Article 24 hereof. Additionally,
any Master Sublease shall be entitled to the benefits set forth in Section 25.1
and, in connection therewith, shall not be required to comply with the
provisions of Article 25.
Section 23.2. Notwithstanding anything to the contrary contained herein,
this lease may be assigned at any time without Landlord's consent pursuant to
the provisions of Article 24.
Section 23.3. Tenant shall have the right to sublet portions of the
Demised Premises at any time and from time to time without Landlord's consent,
provided, and Tenant hereby agrees, that (a) each sublease of any portion of the
Demised Premises which is hereafter made shall be in writing, (b) each sublease
shall be made on an arms' length basis, on reasonable rentals and terms, (c) no
such sublease shall in any way affect or reduce any of the obligations of Tenant
under this lease and (d) a true copy of each sublease shall be delivered by
Tenant to Landlord promptly after the execution and delivery thereof. In the
event that Tenant wishes to let the Demised Premises or any portion thereof for
a term extending beyond the term hereof, or to grant any subtenant the option to
extend the terms of its letting beyond the terms of this lease, Landlord hereby
covenants to enter into a direct lease for such additional term, or extension,
as the case may be, with such subtenant on the same terms and conditions as set
forth in such sublease, other than the term of such direct lease.
Section 23.4. If this lease shall be sublet in part by Tenant, Landlord
may, after default by Tenant, collect rent from the subtenant and apply the net
amount collected to the Fixed Annual Rent and Additional Rent payable under this
lease, but no such subletting or collection shall be deemed a waiver of the
provisions of this Section, or acceptance of the subtenant as a tenant.
ARTICLE 24. LEASEHOLD MORTGAGES
Section 24.1. Tenant and every successor and assignee of Tenant (including
the Master Sublessee and any subtenants, but only with Tenant's prior consent)
shall have the right, at any time and from time to time during the term of this
lease, to mortgage the leasehold estate created by this lease and any Master
Sublease, without Landlord's consent, provided Tenant is not in default after
the expiry of all notice and cure periods and further provided in respect of any
Leasehold Mortgage that:
36
24.1.1. A copy of such Leasehold Mortgage, and the note secured
thereby, shall be delivered to Landlord within thirty (30) days
after the execution and delivery thereof; and
24.1.2. Such Leasehold Mortgage shall fully comply with the
provisions and conditions of Section 24.2 hereof.
Section 24.2. Each such Leasehold Mortgage shall contain covenants to the
effect that:
24.2.1. The net proceeds of all insurance policies and of
condemnation awards shall be held, used and applied for the purposes
and in the manner provided in this lease;
24.2.2. Subject to the provisions of Section 24.4.5 if an action is
brought to foreclose such Leasehold Mortgage, the rents, income,
receipts, revenues, issues and profits issuing from the Demised
Premises or from any occupancy, lease or leases thereof, shall be
collected, either through a receiver appointed by a court, or by the
Leasehold Mortgagee, but only if the Leasehold Mortgagee is a
Lending Institution, and, in either case, the monies so collected by
the receiver or Leasehold Mortgagee shall be first applied and used
for the payment of the Fixed Annual Rent then due and owing
hereunder or to become due and owing to Landlord, then for any
Additional Rent then due and payable under this lease including debt
service on any fee mortgage (but not including debt service on any
leasehold mortgage), and then for all other maintenance and
operating charges and disbursements incurred in connection with the
operation and maintenance of the Demised Premises, and any balance
remaining after such application may be applied on account of such
mortgage indebtedness.
Section 24.3. Notwithstanding anything contained to the contrary in this
lease, Tenant shall have the right to assign to any Leasehold Mortgagee or to
the designee or nominee of such Leasehold Mortgagee, without the consent of
Landlord if the Leasehold Mortgagee or its designee or nominee shall acquire
ownership of the leasehold estate, either following foreclosure of such
Leasehold Mortgage or in liquidation of the indebtedness and in lieu of
foreclosure thereof, this lease and any or all of the following collateral: (a)
Tenant's interest in the Building Equipment, (b) the rents, income, receipts,
revenues, issues and profits issuing to the Tenant from the Demised Premises,
(c) the Subleases, (d) Tenant's right of election to vacate or remain in
possession of the Demised Premises following any rejection of this lease
pursuant to a bankruptcy proceeding affecting Landlord, and (e) Tenant's
interest in this lease. In such event, the Leasehold Mortgagee or its designee
or nominee shall have the further right, without the consent of Landlord to
further assign this lease and such collateral and upon such assignment shall be
released from the obligations of this lease thereafter arising.
37
Section 24.4. If Tenant shall execute and deliver a Leasehold Mortgage,
and if the provisions and conditions of Sections 24.1 and 24.2 above shall have
been fully complied with and observed to the extent applicable to such Leasehold
Mortgage, then if Tenant or the holder of such Leasehold Mortgage shall have
notified Landlord in writing of the making thereof and of the name and address
of such Leasehold Mortgagee:
24.4.1. This lease may not be modified, amended, canceled,
surrendered or terminated pursuant to a separate agreement between
Landlord and Tenant without the prior written consent of such
Leasehold Mortgagee;
24.4.2. There shall be no merger of this lease or of the leasehold
estate created hereby with the fee title of the Demised Premises,
notwithstanding that this lease or said leasehold estate and said
fee title shall be owned by the same person or persons, without the
prior written consent of such Leasehold Mortgagee;
24.4.3. Landlord shall serve upon each such Leasehold Mortgagee a
copy of each notice of default and each notice of termination given
to Tenant under this lease, within a reasonable time after such
notice is served upon Tenant. No such notice to Tenant shall be
effective unless a copy thereof is thus served upon each Leasehold
Mortgagee;
24.4.4. Each Leasehold Mortgagee shall have the same period of time
after the service of such notice upon it within which to remedy or
cause to be remedied the default which is the basis of the notice as
that which is provided for the payment or other remedy by Tenant of
the matter in default (including, without limitation, any late
charge or interest payable by Tenant in connection therewith and any
extension of time to cure a default as provided in Section 20.5),
plus, if such Leasehold Mortgagee is the first Leasehold Mortgagee
and a Lending Institution, an additional period of thirty (30) days,
and Landlord shall accept performance by such Leasehold Mortgagee
within the time specified herein as timely performance by Tenant;
24.4.5. In case of default by Tenant under this lease, except a
default in the payment of Fixed Annual Rent or Additional Rent, and
provided the Leasehold Mortgagee shall actually cure any then
defaults in the payment of Fixed Annual Rent or Additional Rent
(including by reinstatement of the Fee Mortgage) Landlord shall,
other than in an initial notice identifying the nature of such
default, take no action to effect a termination of this lease, by
service of a notice or otherwise, without first giving to such
Leasehold Mortgagee a reasonable time within which either: (a) to
obtain possession of the Demised Premises and to remedy such
default, in the case of a default which is susceptible of being
cured when such Leasehold Mortgagee has obtained possession of the
Demised Premises (which possession shall be deemed to include
possession by a receiver),
38
or (b) to institute, and with reasonable diligence to complete,
foreclosure proceedings or otherwise acquire Tenant's leasehold
estate under this lease in the case of a default which is not
susceptible of being cured when such Leasehold Mortgagee has
obtained possession of the Demised Premises, provided that (i) the
Leasehold Mortgagee shall deliver to Landlord within thirty (30)
days after the expiration of the grace period of Tenant applicable
to the particular default an instrument in writing duly executed and
acknowledged wherein the Leasehold Mortgagee agrees that (x) until
(1) the interest of Tenant in this lease shall terminate, or (2)
conditions (a), (b) and (c) of Section 24.4.7 have been satisfied,
whichever is first, it shall pay or cause to be paid to Landlord all
sums from time to time becoming due under this lease for Fixed
Annual Rent and Additional Rent, as the same become due, and (y) if
delivery of possession of the Demised Premises shall be made to the
Leasehold Mortgagee or to its nominee or designee, whether
voluntarily or pursuant to any foreclosure or other proceedings or
otherwise, the Leasehold Mortgagee shall, promptly following such
delivery of possession, perform or cause such nominee or designee to
perform, as the case may be, all the covenants and agreements herein
contained on Tenant's part to be performed to the extent that Tenant
shall have failed to perform the same to the date of delivery of
possession, as aforesaid, except such covenants and agreements which
cannot with the exercise of due diligence be performed by the
Leasehold Mortgagee or such nominee, and (ii) if the Leasehold
Mortgagee delivering such instrument is not a Lending Institution,
that such Leasehold Mortgagee furnish such security as Landlord
shall reasonably require to assure the remedying of such default.
24.4.6. If Landlord shall elect to terminate this lease by reason of
any default of Tenant, each Leasehold Mortgagee shall not only have
the right to nullify any notice of termination by agreeing to cure
such default as aforesaid, but shall also have the separate right to
postpone and extend the specified date for the termination of this
lease as fixed by Landlord in its notice of termination, for a
period of not more than twelve months, provided that such Leasehold
Mortgagee shall within sixty (60) days cure or cause to be cured any
then existing monetary defaults and thereafter pay or cause to be
paid the Fixed Annual Rent and Additional Rent, and provided further
that the Leasehold Mortgagee shall forthwith take steps to acquire
or sell Tenant's interest in this lease by foreclosure of the
Leasehold Mortgage or otherwise and shall prosecute the same to
completion with reasonable diligence. If at the end of said 12-month
period the Leasehold Mortgagee shall be actively engaged in steps to
acquire or sell Tenant's interest in this lease, the time of said
Leasehold Mortgagee to do so shall be extended for such period as
shall be reasonably necessary to complete such steps with reasonable
diligence. If the Leasehold Mortgagee is prohibited by any process
or injunction issued by any court or by reason of any action by any
court having jurisdiction of any bankruptcy, debtor rehabilitation
or insolvency
39
proceedings involving Tenant from commencing or prosecuting
foreclosure or other appropriate proceedings, the said 12-month
period shall be extended for the period of such prohibition,
provided that the Leasehold Mortgagee shall diligently attempt to
remove any such prohibition. If Tenant's interest is acquired or
sold as aforesaid by foreclosure of the Leasehold Mortgage or
otherwise during said 12-month period, as same may be extended as
aforesaid, the intended termination of this lease by Landlord under
the aforesaid notice will be automatically nullified and this lease
will continue as if said notice of termination had never been given,
provided Leasehold Mortgagee has complied with its obligations under
this Section 24.4.6.
24.4.7. Nothing herein contained shall be deemed to require the
Leasehold Mortgagee to continue with any foreclosure or other
proceedings or, in the event the Leasehold Mortgagee shall otherwise
acquire possession of the Demised Premises, to continue such
possession if the default in respect of which Landlord shall have
given the notice provided for in this Section 24.4 shall be
remedied. However, at any time after the execution and delivery of
the instrument referred to in subdivision (i) of Section 24.4.5, any
such Leasehold Mortgagee may notify Landlord that it does not intend
to continue in possession of the Premises or institute foreclosure
proceedings, or, if such proceedings have been commenced, that it
will discontinue them, and in such event the Leasehold Mortgagee
shall have no further liability under such instrument from and after
the date the Leasehold Mortgagee relinquishes possession or
discontinues the foreclosure proceedings, as the case may be (other
than obligations provided for under such instrument or other
undertaking of the Leasehold Mortgagee, which shall have accrued as
of the date of such relinquishment of possession or discontinuance
of foreclosure proceedings, as the case may be, for payment of Fixed
Annual Rent, Additional Rent, insurance premiums and Impositions and
the performance of the obligation to remit to Landlord any insurance
proceeds then held by the Leasehold Mortgagee and assign to Landlord
any claims under insurance policies). Thereupon Landlord shall have
the right to terminate this lease and to take any other action it
deems appropriate by reason of Tenant's default. No Leasehold
Mortgagee shall be required to commence or continue any foreclosure
or other proceedings or to obtain or continue possession of the
Premises. If prior to any sale pursuant to any proceeding brought to
foreclose any Leasehold Mortgage, or if prior to the date on which
Tenant's interest in this lease and the Demised Premises shall
otherwise be extinguished, (a) the default in respect of which
Landlord shall have given the notice provided for in this Section
shall have been remedied, (b) all Fixed Annual Rent and Additional
Rent then due shall have been paid to the date possession of the
Demised Premises has been restored to Tenant, and (c) possession of
the Demised Premises shall have been restored to Tenant, then any
further obligation of the Leasehold Mortgagee pursuant to the
instrument referred to in Section 24.4.5 shall be null and void and
of no further effect;
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24.4.8. If this lease shall terminate prior to the expiration of the
term of this lease, (and whether or not the instrument referenced in
clause (i) of Section 24.4.5 has been delivered) Landlord shall
enter into a new lease for the Demised Premises with any such
Leasehold Mortgagee, or its designee, for the remainder of the term,
effective as of the date of such termination, at the Fixed Annual
Rent and Additional Rent and with the same priority and upon the
same terms, covenants and conditions contained herein, except that
(a) Landlord shall have no obligation to put the new tenant in
possession of the Demised Premises as against Tenant or anyone
claiming under Tenant, and (b) Landlord, simultaneously with the
execution and delivery of such new lease, shall turn over to the new
tenant all monies, if any, then held by Landlord under this lease on
behalf of Tenant to which Tenant would have been entitled but for
the termination of this lease or the default which resulted in such
termination and the same shall apply to funds then being held by a
Depository, on condition that: (i) such Leasehold Mortgagee shall
make written request for such new lease within forty five (45) days
after the date of such termination; (ii) prior to the commencement
date of the term of the new lease, such Leasehold Mortgagee shall
cure or, in the case of defaults not involving the payment of Fixed
Annual Rent or Additional Rent, shall commence action to cure and
thereafter prosecute such action with all reasonable diligence) all
defaults of Tenant under this lease (susceptible of being cured by
such Leasehold Mortgagee) which remain uncured on that date, and
shall pay or cause to be paid all unpaid sums which at such time
would have been payable under this lease but for such termination,
and shall pay or cause to be paid to Landlord on that date all
expenses, including reasonable counsel fees, court costs and
disbursements, incurred by Landlord in connection with any such
default and termination as well as in connection with the execution
and delivery of such new lease; and (iii) Landlord agrees that the
Fee Mortgagee may deliver to the Tenant under such new lease a
non-disturbance agreement in the form required by Section 28.1 with
respect to this lease or as may otherwise be agreed to between the
Tenant and the Fee Mortgagee.
If more than one Leasehold Mortgagee shall request such new lease,
such new lease shall be made with and delivered to the Leasehold Mortgagee (or
its nominee or designee) whose mortgage is prior in lien to those of any others,
without regard to the time of request;
24.4.9. Tenant and each Leasehold Mortgagee and each designee of a
Leasehold Mortgagee which shall succeed to the rights of Tenant
under this lease, shall be deemed to have agreed to apply the rents,
issues and profits of the Demised Premises to fulfill its
obligations under this lease before applying the same for any other
purpose.
24.4.10 Landlord may exercise any of its rights or remedies with
respect to any other default by Tenant occurring during the period
of such forbearance provided
41
for under Section 24.4.5, subject to the rights of each Leasehold
Mortgagee under this Article as to such other defaults, if any.
Section 24.5. Upon the execution and delivery of a new lease under Section
24.4.8 Landlord shall assign and transfer to the tenant under the new lease,
without recourse, any and all of Landlord's rights, title and interest in and to
all subleases, if any, and each sublessee whose sublease is in effect
immediately prior to the execution of the new lease shall be deemed to have
attorned to the new tenant and the new tenant shall at its option be deemed to
have accepted same.
Section 24.6. In the event any prospective Leasehold Mortgagee requires as
a condition to the making of a Leasehold Mortgage loan satisfactory to Tenant,
the amendment of one or more provisions of this lease and/or the addition of one
or more clauses hereto and said amendment or amendments and/or addition or
additions required by such Leasehold Mortgagee do not materially affect
Landlord's or Tenant's rights, privileges and indemnities hereunder, Landlord
and Tenant agree to cooperate with such Leasehold Mortgagee in connection
therewith and Landlord and Tenant shall so amend this lease from time to time.
Section 24.7. In the event any prospective Fee Mortgagee requires as a
condition to the making of a Fee Mortgage loan as contemplated by Article 34
hereof, the amendment of one or more provisions of this lease and/or the
addition of one or more clauses hereto and said amendment or amendments and/or
addition or additions required by such Fee Mortgagee do not materially affect
Landlord's or Tenant's rights, privileges and indemnities hereunder, Landlord,
Tenant and Leasehold Mortgagee agree to cooperate with such Fee Mortgagee in
connection therewith and Landlord and Tenant shall so amend this lease from time
to time.
Section 24.8. Any Leasehold Mortgage that is bifurcated into a project
loan mortgage and a building loan mortgage shall be deemed to be a single
Leasehold Mortgage.
Section 24.9. Anything herein to the contrary notwithstanding, upon the
completion of any Leasehold Mortgage foreclosure proceedings pursuant to which
the Leasehold Mortgagee, its nominee or another person acquires the Tenant's
interest in this lease, Landlord shall be deemed to have waived any Event of
Default by the prior Tenant which is not reasonably susceptible of being cured
by such Leasehold Mortgagee, nominee or other person; provided, however, that,
subject to the provisions of Section 24.4.4, (x) during the pendency of such
proceedings all insurance required to be maintained by Tenant under this lease
shall have been maintained in full force and effect and all payments of Fixed
Annual Rent and Additional Rent due under the terms of this lease shall have
been paid and, (y) upon the completion of such proceedings there shall exist no
uncured Event of Default with respect to the payment of Fixed Annual Rent,
Additional Rent or other sums due and payable to Landlord under this lease.
Without limiting the generality of the foregoing, an Event of Default of the
prior Tenant not "susceptible" of being cured or performed by such a Leasehold
Mortgagee, nominee, or other person shall include, but not be limited to: (i)
the failure of the prior Tenant to comply with the time requirements of any term
or
42
provision of this lease (but not the failure to comply with the underlying term
or provision itself); (ii) any bankruptcy, insolvency or receivership or similar
event related to the prior Tenant; or (iii) failure of the prior Tenant to give
any required notices or certificates to Landlord. In no event shall any Event of
Default in the payment of Fixed Annual Rent or Additional Rent or other sums due
Landlord from Tenant under this lease ever be deemed an Event of Default which
is not "susceptible" of being cured or performed by such a Leasehold Mortgagee,
nominee, or other person.
Section 24.10. If Tenant shall have mortgaged this lease then Landlord
agrees, for the benefit of the Leasehold Mortgagee, to the extent permitted by
applicable law, the right of election arising under Section 365(h)(1) of the
Bankruptcy Code, 11 U.S.C. ss. 365(h)(1), shall be exercisable by such Leasehold
Mortgagee and not by Tenant, and any exercise or attempted exercise by Tenant of
such right of election in violation of the immediately preceding provision of
this sentence shall be void. Any rejection of this lease by any trustee of
Tenant in any bankruptcy, reorganization, arrangement or similar proceeding
which would otherwise cause this lease to terminate, shall, without any action
or consent by Landlord, Tenant or any Leasehold Mortgagee, effect the transfer
of Tenant's interest hereunder to the Leasehold Mortgagee or its nominee. Such
Leasehold Mortgagee may terminate this lease upon such transfer upon giving
notice thereof to Landlord no later than forty-five (45) days after notice from
Landlord of such transfer. The Leasehold Mortgagee shall thereupon have no
further obligations hereunder. Alternatively, the senior Leasehold Mortgagee may
request a new lease upon the same terms and conditions as this lease within
forty-five (45) days after notice from Landlord of such transfer, in which event
all obligations accruing pursuant to this lease prior to the effective date of
the new lease shall be payable at the date of its effectiveness notwithstanding
the earlier rejection and termination.
Section 24.11. Except where the Leasehold Mortgagee has become the Tenant,
no liability for the payment of rent or the performance of any of Tenant's
covenants and agreements under this lease shall attach to or be imposed upon the
Leasehold Mortgagee, all such liability as against the Leasehold Mortgagee being
hereby expressly waived by Landlord, and if the Leasehold Mortgagee or its
nominee or designee becomes the Tenant under this lease, all of the obligations
and such liabilities of the Leasehold Mortgagee or its nominee or designee shall
cease and terminate upon assignment of this lease or abandonment of the Demised
Premises.
Section 24.12. Notwithstanding any provision to the contrary, foreclosure
of a Leasehold Mortgage or any sale of Tenant's interest in this lease and the
Demised Premises in connection with a foreclosure, whether by judicial
proceedings or by virtue of any power of sale contained in the Leasehold
Mortgage, or any conveyance of Tenant's interest in this Lease and the Demised
Premises from Tenant to the Leasehold Mortgagee or its nominee or designee by
virtue of or in lieu of foreclosure or other appropriate proceedings, or any
conveyance of Tenant's interest in this lease and the Demised Premises by the
Leasehold Mortgagee or its nominee or designee, shall not require the consent or
approval of Landlord or constitute a breach of any provision of or a default
under this lease.
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Section 24.13. Notwithstanding anything contained in this Article 24 to
the contrary, in the event the Leasehold Mortgagee is the Tenant or an Affiliate
of the Tenant, such Leasehold Mortgagee shall not be entitled to the benefits
granted to a Leasehold Mortgagee pursuant to this Article 24.
Section 24.14. If the Mortgagor is the Master Sublessee, then, solely for
the purposes of this Article 24, the term "Master Sublessee" shall be
substituted for the term "Tenant" and the term "Master Sublease" shall be
substituted for the term "this lease", as the context shall require.
ARTICLE 25. SUBLEASES - ATTORNMENT
Section 25.1. Landlord hereby agrees, for the benefit of any subtenant
which (i) is not an Affiliate of Tenant (ii) has a bona fide sublease covering
either retail space on the street level of the Building or two thousand (2000)
square feet or more above the street level of the Building and either (A) an
initial term of twenty (20) or fewer years or (B) if more than twenty (20)
years, provided the Fixed Annual Rent together with Additional Rent is no less
than ninety (90%) percent of the prevailing market rate for such sublease at the
time executed and (iii) agrees to make full and complete attornment to Landlord
for the balance of the term of such sublease that in the event of the
cancellation or termination of this lease in accordance with the terms hereof
(unless such termination shall arise under Article 18 hereof) or of the
surrender thereof whether voluntary, involuntary or by operation of law, prior
to the expiration date of such subtenant's sublease, including extensions and
renewals granted thereunder and subject to the observance and performance by
such subtenant of all of the terms, covenants and conditions under such sublease
within the time frames provided therein, including any applicable notice and
cure periods, as follows:
25.1.1. That such subtenant upon paying the rent reserved under such
sublease, and performing and observing the covenants, conditions and
agreements thereof upon the part of such subtenant to be performed
and observed, shall and may peaceably hold and enjoy the premises
sublet to the subtenant under such sublease during the term of such
sublease, without any interruption or disturbance from Landlord or
Persons claiming through or under Landlord, and Landlord shall not
terminate such sublease, subject, however, to the terms of such
sublease. This covenant shall be construed as running with the land
to and against subsequent owners and successors in interest, and is
not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of the Landlord's interest in the
Demised Premises and only so long as such interest shall continue,
and thereafter this covenant shall be binding upon such subsequent
owners and successors in interest of Landlord's interest in the
Demised Premises, to the extent of their respective interests, as
and when they shall acquire the same, and only so long as they shall
retain such interest.
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25.1.2. That the sublease shall continue in full force and effect
and Landlord shall recognize the sublease and the subtenant's rights
thereunder and will thereby establish direct privity of estate and
contract as between Landlord and the subtenant under said sublease
with the same force and effect as though the sublease were
originally made from Landlord in favor of the subtenant thereunder,
subject to the limitations set forth in Section 25.1.3.
25.1.3. To assume such obligations on the part of the sublessor
under such sublease arising from and after the date of such
attornment, provided, however, Landlord shall not be (a) liable in
any way to the subtenant for any act of omission, neglect or default
on the part of Tenant, as sublandlord under said sublease, (b)
responsible for any monies owing by or on deposit with Tenant to the
credit of the subtenant, whether in the nature of security or
otherwise, unless and to the extent such monies are delivered to
Landlord, (c) subject to any counterclaim or set-off which
theretofore accrued to the subtenant against Tenant, as such
sublandlord, (d) bound by any previous prepayment of subrents for
more than two (2) months which was not approved in writing by
Landlord or its predecessors in interest in respect of this lease,
(e) liable to the subtenant beyond Landlord's interest in the
Building and the rents, income, receipts, revenues, issues and
profits issuing from the Building, (f) responsible for the
performance of any work to be done by the sublandlord under such
sublease to render the subleased premises ready for occupancy by the
sublessee, or (g) required to remove any person occupying the
subleased premises or any part thereof, except if such person claims
by, through or under Landlord.
Section 25.2. Within thirty (30) days after request from Landlord, which
shall not be made more frequently than once in any calendar year, Tenant shall
notify Landlord with respect to each sublease which then qualifies for the
benefits afforded under Section 25.1. Such notice shall set forth with respect
to each such sublease, the name of the subtenant, the date of such sublease and
the space covered thereby. If requested by Tenant or such subtenant Landlord
will enter into an agreement in recordable form prepared by Tenant or such
subtenant confirming Landlord's obligations to such subtenant pursuant to
Section 25.1.
ARTICLE 26. ESTOPPEL CERTIFICATES
Section 26.1. Landlord and Tenant each agree at any time and from to time,
upon not less than ten (10) days' prior request by the other party, any
Mortgagee to execute, acknowledge and deliver to the other party or any
Mortgagee, a statement in writing certifying (a) that this lease is unmodified
and in full force and effect (or if there have been modifications that the same
is in full force and effect as modified and stating the modifications), (b) the
dates to which the Fixed Annual Rent and Additional Rent have been paid in
advance, if any, (c) whether or not, to the actual knowledge of the signer of
such certificate, there is any existing default or Event of Default under this
lease on the part of either party thereto and, if so, specifying each such
default,
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and (d) whether or not, to the actual knowledge of the signer of such
certificate, any event has occurred, which with the passage of time or the
giving of notice, or both, would constitute such a default and, if so,
specifying each such event, it being intended that any such statement delivered
pursuant to this Section may be relied upon by any prospective purchaser or
Mortgagee of the fee of the Demised Premises or of the leasehold estate created
under this lease, the prospective assignees of any Leasehold Mortgage or Fee
Mortgage and any such subtenant. Landlord also agrees to add any information
reasonably requested by a Mortgagee.
Section 26.2. If a party shall fail or refuse to execute, acknowledge and
deliver the statement required under Section 26.1 within ten (10) days after
request from the other party, and if the party requesting such statement shall
give the other party a further five (5) day notice requesting such statement but
such failure and refusal shall continue during such five (5) day period, then it
shall be deemed that the party in default has certified that (i) this lease is
unmodified and in full force and effect, (ii) Fixed Annual Rent and Additional
Rent have not been paid for any period subsequent to the billing period then in
progress, (iii) to its actual knowledge there are then no defaults or Events of
Default on the part of either party to this lease, and (iv) no event has
occurred which, with the passage of time or the giving of notice, or both would
constitute such a default or Event of Default. Notwithstanding the foregoing,
such deemed certification may not be relied upon by Landlord or Tenant, but only
by their heirs, successors and assigns.
Section 26.3. Neither party shall be required to provide more than four
(4) statements under this Article 26 in any twelve (12) month period, unless
Tenant needs additional statements in connection with a financing.
ARTICLE 27. WAIVER OF JURY TRIAL
Section 27.1. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matter whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto, except where such waiver is barred by
law.
ARTICLE 28. SUBORDINATION/NON-DISTURBANCE
Section 28.1. Unless Tenant otherwise agrees with the Fee Mortgagee, which
agreement shall be evidenced by a written instrument, this lease and the
leasehold estate created hereby shall be superior to any Fee Mortgage now or
hereafter a lien upon the Demised Premises.
Section 28.2. If Tenant has agreed that this lease and the leasehold
estate created hereby is subject and subordinate to any Fee Mortgage now or
hereafter a lien upon the Demised Premises, such subordination shall be
effective for only so long as there shall be and remain in full force and effect
between the holder of such Fee Mortgage and Tenant a subordination and
46
non-disturbance agreement in the form reasonably required by such Fee Mortgagee,
and further provided that:
28.2.1 The Fee Mortgage is a lien on the Demised Premises; and
28.2.2 The Fee Mortgagee is a Lending Institution.
Upon notice from Landlord or the holder of such Fee Mortgage, Tenant
shall (i) promptly execute, acknowledge and deliver such agreement and (ii)
request such holder to do likewise.
ARTICLE 29. NON-MERGER
Section 29.1. There shall be no merger of this lease, nor of the leasehold
estate created by this lease, with the fee estate in the Demised Premises by
reason of the fact that this lease or the leasehold estate created by this lease
or any interest in this lease or any such leasehold estate may be held, directly
or indirectly, by or for the account of any person or persons who shall own the
fee estate in the Demised Premises, or any interest in such fee estate, and no
such merger shall occur unless and until all persons at the time having an
interest in the fee estate in the Demised Premises and all persons (including
Leasehold Mortgagees) having an interest in this lease, or in the leasehold
estate created by this lease, shall join in a written instrument effecting such
merger and shall duly record the same.
ARTICLE 30. EXCAVATION ON ADJOINING PROPERTY; ENCROACHMENTS
Section 30.1. If any adjoining building or structure encroaches or shall
at any time encroach upon the Demised Premises, no claim or demand or objection
of any kind shall be made by Tenant against Landlord by reason of any such
encroachment (unless such encroachment shall have been caused or approved by
Landlord without Tenant's consent after the Commencement Date of this lease,
which consent or approval shall be deemed a default by Landlord under this
lease) and no claim for abatement of rent and of other charges which may become
due under this lease shall be made by reason of any such encroachment or in
connection with the removal thereof, and the rights, liabilities and obligations
of the parties hereto shall be the same as if there were no such encroachment,
and in any legal proceedings relating thereto, the Demised Premises may properly
and without prejudice be described according to the description hereinbefore
contained without reference to any such encroachments. Landlord agrees to
cooperate with Tenant in any proceedings brought by Tenant to remove any such
encroachments, provided that the same shall be without cost, liability or
expense to Landlord.
ARTICLE 31. LIMITATION OF LIABILITY
Section 31.1. Notwithstanding anything contained to the contrary in this
lease, whether express or implied, it is agreed that each party will look only
to the other's interest in and to the
47
Demised Premises for the collection of any judgment (or other judicial process)
requiring the payment of money by the other in the event of a breach or default
under this lease by the other, and no other property or assets of the party
committing such breach or default or its directors, officers, shareholders,
partners or other principals (disclosed or undisclosed) shall be subject to
levy, execution or other enforcement procedures for the satisfaction of any such
judgment (or other judicial process). The interest in and to the Demised
Premises of a party under this lease shall include, without limitation, the
rents, income, receipts, revenues, issues and profits issuing from the Demised
Premises, any insurance policies carried under this lease and the premiums or
proceeds thereof, any money or securities deposited by Tenant with Landlord or
any escrow agent hereunder, any surety or performance bonds provided by Tenant
hereunder and the proceeds therefrom, and any award to which Tenant may be
entitled in any condemnation proceedings or by reason of a temporary taking of
the Demised Premises and any real estate tax refunds. In confirmation of the
foregoing a party acquiring a lien on such other property or asset, by judgment
or otherwise, shall promptly release such lien by executing, acknowledging and
delivering an instrument in recordable form to that effect prepared by the other
party, but such instrument of release shall not release any such lien on the
interest of the other party in the Demised Premises.
Section 31.2. The provisions and conditions of Section 31.1 above are not
intended to, and shall not in any way whatsoever, affect or limit any right or
remedy which any party may have against the other under any agreement, matter,
claim, or thing which is extrinsic to, and does not arise out of, this lease.
ARTICLE 32. EXHIBITION OF DEMISED PREMISES
Section 32.1. Tenant shall, subject to the applicable provisions of
subleases, permit Landlord and its authorized representatives to enter the
Demised Premises at all times during usual business hours and upon reasonable
notice for any reasonable purpose and subject to the provisions of the
subleases.
ARTICLE 33. BROKER
Section 33.1. Tenant and Landlord shall indemnify and save each other
harmless from and against any claims for commissions, fees, compensation or
reimbursement of expenses, asserted by any Person other than Judmart Realty
Corp. (the "Broker") who dealt with or claims to have dealt with either Landlord
or Tenant or any Affiliate of either such party in connection with this lease,
and any reasonable cost or expense incurred by either such party in defending
such claim. Landlord agrees to pay the Broker pursuant to a separate agreement.
Section 33.2. Each party represents and warrants to the other that the
only broker with whom it dealt in connection with this lease is the Broker.
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Section 33.3. Each party under Section 33.1 may, at its option, designate
the counsel which shall defend the indemnified party, subject to such party's
approval, which shall not be unreasonably withheld.
ARTICLE 34. LANDLORD COVENANTS/REFINANCING
Section 34.1 From and after the date hereof, Landlord covenants and agrees
that it will not enter into any agreement, other than this lease and other
agreements with Tenant's affiliates, to sell, transfer, convey, lease, assign,
finance, mortgage, hypothecate, encumber or dispose of (directly or indirectly)
(voluntarily or by operation of law) this lease, all or any portion of the
Demised Premises or any interest in either this lease or the Demised Premises or
with respect to landlord's reversionary or fee interest in the Demised Premises
or portion thereof (any such event, a "Transfer"). For purposes of this Article
34, a Transfer shall be deemed to include any change in the ownership interests
of Landlord or in FS provided that inter vivos or testamentary transfers or
issuance of capital stock in FS to one or more family members of Xxxxx Xxxxxxx,
or trusts in which all of the beneficial interest is held by one or more of such
family members or a partnership or limited liability company in which all the
capital and profits interests are held by such family members shall not be
deemed a Transfer. As used herein, "family members" shall be limited to parents,
siblings, children and grandchildren of Xxxxx Xxxxxxx and their respective
spouses or any entity owned or controlled by any of them. Any Transfer in
violation of this Article 34 shall be void ab initio.
Section 34.2 (a) Tenant shall be obligated to either refinance or
extend the maturity date of the Fee Mortgage at its stated maturity or upon
acceleration of such Fee Mortgage (other than on account of a default by
Landlord), at its sole cost and expense, and the failure to do so shall be a
default under this lease, as more specifically provided in Article 20 hereof.
(b) Landlord agrees that Tenant, at Tenant's sole cost and expense,
shall have the right at any time and from time to time to Refinance the Fee
Mortgage and that Landlord shall have no right or obligation in connection
therewith, except as specifically stated in this Article 34. Such Refinancing
shall:
(i) be one or more loans made by Lending Institution(s) and,
at Tenant's option, may be secured by one or more mortgage
liens on the Demised Premises (and at Tenant's election may
also be a lien on the 44 Premises and may or may not at
Tenant's election be cross-collateralized and cross-defaulted
with the mortgage(s) on the 44 Premises, as well as, if Tenant
so elects, other premises as well, provided that a default
under the mortgage on such other premises shall not constitute
a default under the Fee Mortgage on the Premises or the 44
Premises);
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(ii) be non-recourse to Landlord except for those items
set forth on Exhibit C;
(iii) be in the aggregate principal amount of no more than
$55,000,000 as an encumbrance on Landlord's fee interest in
the Demised Premises and, as the case may be, on the fee
interest of the owner of the 44 Premises;
(iv) not permit the Lender to participate in the income
derived by Landlord from the Demised Premises; and
(v) for so long as and only to the extent that the Lending
Institution is Tenant (or an Affiliate thereof), no default
interest shall be charged by such Lending Institution in
respect of the Fee Mortgage or the portion thereof held by
Tenant or its Affiliate.
(c) Landlord authorizes Tenant, at any time Tenant deems it
necessary or desirable, to seek to obtain any Refinancing of the Fee Mortgage,
at any time and from time to time, and, in connection therewith, covenants and
agrees to cooperate with Tenant and, if a mere confirmation of the effectiveness
of the power of attorney granted Tenant is insufficient, to provide any
information and to deliver any documentation reasonably required by the Fee
Mortgagee in connection therewith. Except as provided in Exhibit C, nothing
contained herein shall be deemed to impose any obligation on Landlord to execute
and deliver any documents imposing personal liability on Landlord's principals.
Accordingly, Landlord covenants and agrees that:
(i) Landlord shall execute and deliver the documents
evidencing and/or securing each Fee Mortgage (collectively,
the "Loan Documents") and shall also execute and deliver any
other documents or affidavits reasonably required by each Fee
Mortgagee and its title company in connection therewith (the
"Loan Transaction Documents"); and
(ii) Landlord shall cooperate in satisfying any reasonable
requests by each Fee Mortgagee that are part of its conditions
precedent to closing the financing, including, without
limitation, causing Landlord's counsel to deliver any opinions
with respect to Landlord and, provided Tenant's counsel shall
have delivered an opinion to Landlord that the Loan Documents
are enforceable, which Landlord's counsel is specifically
authorized to rely upon, an opinion as to the enforceability
of the Loan Documents that may be reasonably required by each
Fee Mortgagee, which opinion(s) shall be deemed part of the
Loan Transaction Documents.
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(d) Tenant agrees that it shall pay all costs in connection with
obtaining and closing such refinancing, including, without limitation,
Landlord's reasonable counsel fees, and recording the Loan Documents.
(e) Notwithstanding anything to the contrary in any Fee Mortgage,
Landlord agrees that, whenever any Fee Mortgage provides for the release to
Mortgagor of any (i) deposits held by such Mortgagee, (ii) condemnation awards,
(iii) insurance proceeds or (iv) any other amounts held by such Mortgagee
(collectively, the "Released Funds"), such Released Funds are to be delivered to
Tenant and, if same are delivered to Landlord, such Released Funds will be held
in trust by Landlord and promptly delivered to Tenant.
ARTICLE 35. NOTICES, ETC
Section 35.1. All notices, consents, demands and requests (collectively,
"notices" and individually, a "notice") which are required or desired to be
given by either party to the other shall be in writing. All notices by either
party to the other shall be sent by United States registered or certified mail,
return receipt requested, postage prepaid, addressed to the other party at its
address set forth below, personally delivered or sent by prepaid, overnight,
national overnight courier ("Courier") to such address or at such other single
address as it may from time to time designate in a notice to the other party.
All notices to Landlord shall be addressed to 417 FS Realty LLC, c/o Prince
Management Corp., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Copies of all
notices to Landlord shall be given in the same manner to Xxxxxxx, Xxxxx & Graff,
P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxx,
Esq. All notices to Tenant shall be addressed to PoleStar Fifth Property
Associates LLC, c/o NorthStar Capital Partners, LLC, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: W. Xxxxxx Xxxxxxx. Copies of all
notices to Tenant shall be given in the same manner to Xxxxxx X. Xxxxxxxxxx,
Esq., Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Telephone: (000) 000-0000 and Facsimile (000) 000-0000 and to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxx X. Xxxxxxx, Esq., Telephone: (000) 000-0000 and Facsimile
(000) 000-0000 or in either case, to such other one person or address as the
party giving such notice shall have been previously notified from time to time
by the party to whom such notice is given. Notices which are served upon
Landlord or Tenant by Courier shall be deemed to have been given or served for
all purposes hereunder on the business day next following the date on which such
notice shall have been sent by Courier or personally served as aforesaid.
Notices sent by certified mail shall be deemed delivered three (3) business days
after same have been mailed. As a matter of convenience only, notices may be
sent by telecopier, provided a hard copy is delivered as stated above, but the
delivery by telecopy shall not accelerate the date delivery of such notice is
deemed to have been received.
Section 35.2. All notices which are required or desired to be given by
either party to any Mortgagee shall be in writing. All notices to any Mortgagee
shall be sent by United States registered or certified mail, return receipt
requested, postage prepaid, addressed to such
51
Mortgagee at its address set forth in its respective mortgage of which, in the
case of Leasehold Mortgages Landlord shall have been notified, and in case of
Fee Mortgages Tenant shall have been notified, or personally delivered to such
address, or at such other address as the Mortgagee in question may from time to
time designate in a written notice to the party giving such notice. Notices,
which are served upon any Mortgagee in the manner aforesaid, shall be deemed to
have been given or served for all purposes hereunder on the business day next
following the date on which such notice shall have been mailed or personally
served as aforesaid.
Section 35.3. The parties hereby confer jurisdiction upon the Supreme
Court of the State of New York, County of New York (or any successor court of
similar jurisdiction) with respect to any judicial action or proceeding arising
out of this lease or the relationship of the parties as landlord and tenant.
Service of process in any such action or proceeding may be accomplished in the
same manner as the giving of a notice under Section 35.1.
ARTICLE 36. INDEX AND CAPTIONS
Section 36.1. The index and captions of this lease are for convenience and
reference only, and in no way define, limit or describe the scope or intent of
this lease, nor in any way affect this lease.
ARTICLE 37. VAULTS
Section 37.1. This lease includes, as appurtenant to the Demised Premises
but subject to such laws, permits, orders, rules and regulations as may be
imposed by appropriate governmental authorities with respect thereto, any rights
of Landlord, or which Landlord has authority to grant, in or to any vaults or
other space in, under or over any adjoining avenue, street, highway or property,
and Tenant shall take or cause to be taken all such action as may be appropriate
to maintain the same, but if use of the same shall be discontinued, such
discontinuance shall in no way affect the liability of Tenant to pay the rent
and perform all the covenants contained in this lease. If any license or permit
to use such vault or other space shall be revoked, Tenant shall, at its sole
cost and expense, do and perform all such work as may be necessary to comply
with any lawful order revoking the same.
Section 37.2. No diminution of the amount of vault space used by Tenant or
any subtenant shall entitle Tenant to any reduction or abatement of rent.
ARTICLE 38. RIGHT OF SET-OFF/TENANT REMEDIES
Section 38.1 (a) Landlord acknowledges and agrees that there exists the
right to set off (the "Set-Off") against any Fixed Annual Rent due under this
lease and any Additional Payments due to FS by NS Member under the Operating
Agreement (as such term is defined in the Operating Agreement) for an amount
equal to the actual damages incurred by Tenant in connection with:
52
(i) any incorrect information in the Rent Roll attached as
Schedule 1 to the Agreement, any inaccurate representation or
warranty in the Lease Assignment Agreement or the Security
Deposit Agreement delivered by Landlord on the date hereof
pursuant to the Agreement, or any claim arising under the
Landlord's Estoppel delivered in connection with the closing
under the Agreement, subject to the provisions of the second
sentence of Section 8(e)(ii) of the Agreement releasing FS
from liability as Conforming Tenant Estoppels (as defined in
the Agreement) are delivered;
(ii) any claims in respect of the Demised Premises for the
period prior to the Commencement Date, including, without
limitation, any obligation of Landlord under any of the
Leases, which shall, in turn, include, without limitation, any
unfinished Landlord work under the Leases, any payments due
and owing any Tenant under any Leases in respect of or any
inducements given to such tenants in respect of the execution
and delivery of their Leases;
(iii) any fees or commissions payable to (A) X.X. Xxxxx
Management Corp. and/or in connection with any Leases or any
management agreement or other understanding or agreement for
the Demised Premises (including, without limitation, any
management or leasing fees and any termination or other fee or
expense reimbursement payable pursuant to the terms of the
existing Management Agreement), (B) any broker or consultant,
(C) any employees (or their union(s)) with respect to services
rendered at the Premises prior to the Commencement Date,
including, without limitation, claims made by such employees
(or their unions) with respect to wages, fringe benefits, if
any and pension, retirement and hospitalization plans, if any;
and/or (D) any other service provider at the Demised Premises
(any such Person, a "Prior Service Provider"), whether
pursuant to a written or oral agreement with Landlord, its
Affiliates, agents or representatives, which fees or
commissions were on account of services provided prior to the
date of this lease, and which were not paid in full by FS (all
amounts due under subparagraph (ii) above and under this
subparagraph (iii), a "Prior Fee"); and
(iv) any credits to Tenant in respect of the Apportionments
set forth in Article 19 hereof.
(b) With respect to any Set-Offs by Tenant pursuant to its rights
under Section 38.1(a)(i) above, the following shall apply:
(i) If the right to Set-Off is on account of (A) any monetary
matter, including, but not limited to, (I) the rent obligation
(which shall include
53
both fixed and additional rent obligations) of a tenant being
lower than as stated in either the Rent Roll or the related
Landlord Estoppel or (II) a misstatement in respect of a
monetary obligation of Landlord (any such monetary matter, as
provided in clauses (I) and/or (II) above,, a "Monetary
Deficiency"), Tenant shall have a dollar-for-dollar right of
Set-Off in the amount of, but not exceeding, such Monetary
Deficiency, during the period of the stated term of the lease
to which such Monetary Deficiency corresponds, or (B) a
non-monetary matter which has been misstated in either the
Rent Roll or the related Landlord Estoppel (a "Non-Monetary
Matter"), Landlord shall indemnify Tenant with respect
thereto, but only to the extent of actual damages.
(ii) Unless a dispute exists, if Landlord shall fail to
reimburse Tenant for any loss, cost or expense incurred by
Tenant in connection with a Non-Monetary Matter (which shall
include, without limitation, reasonable attorneys' fees)
within twenty (20) days after Landlord's receipt of written
request therefor from Tenant, which request shall include a
reasonably detailed statement of the costs incurred by Tenant,
Tenant shall have a right of Set-Off in respect of any amounts
that are due and owing to Tenant in respect of said
reimbursement; and
(iii) Any disputes between Landlord and Tenant with respect to
the amount of the Set-Off in respect of a Monetary Matter or a
Non-Monetary Matter shall be submitted to arbitration as
provided in Article 44 hereof.
(c) Any invoice or other claim or demand in respect of a Prior Fee
shall be delivered to Landlord and Landlord shall have sixty (60) days from
receipt of same to resolve same to Tenant's reasonable satisfaction. If Landlord
is unable to resolve same in such sixty (60) day period, Tenant shall have the
right to (i) pay the full amount (the "Offset Escrow Amount") of such invoice,
claim or demand as demanded by such party into escrow with Landlord's counsel to
be held pursuant to the provisions of Exhibit B of the Agreement in respect of
the Downpayment, pending issuance of a judgment by a court of competent
jurisdiction in such dispute or after settlement between Landlord and such Prior
Service Provider and (ii) set off an amount equal to such payment against the
Fixed Annual Rent. As a condition precedent to Tenant exercising its right of
Set-Off, Tenant shall submit to Landlord reasonably satisfactory evidence that
Tenant made such payment into escrow. Landlord shall be responsible for all
costs and expenses in connection with said dispute, including, without
limitation, all reasonable attorneys' fees and all costs incurred by Tenant with
respect to such dispute and Tenant shall have a right of Set-Off with respect
thereto if such costs and expenses are not promptly reimbursed to Tenant by
Landlord after Tenant has (I) made a demand upon Landlord for such reimbursement
and (II) submitted evidence reasonably satisfactory to Landlord that such
expense has been incurred. If Landlord settles or pays in full the invoice,
claim or demand in respect of the Prior Fee, Landlord shall be entitled to the
Offset Escrow Amount relating to such invoice,
54
claim or demand upon submission to Tenant of evidence, reasonably satisfactory
to Tenant, that the Prior Fee has either been paid in full or settled.
(d) In addition to the aforesaid Set-Off Rights, in the event of a
breach or a threatened breach by Landlord of any of its covenants hereunder,
Tenant shall have the right to seek injunctive relief and the right to invoke
the remedy of specific performance, as determined by Tenant in its sole
discretion.
(e) If (i) Tenant is unable to consummate a Refinancing, (ii) Master
Sublessee or any sublessee is unable to consummate a Refinancing, or (iii)
Tenant, Master Sublessee or any sublessee is unable to make a Tenant Transfer as
a result of a Title Objection which has not been removed or cured by Landlord
within sixty (60) days after Landlord's receipt of notice in connection
therewith, the amount to remove or cure such Title Objection shall be treated as
if it was a Prior Fee under Section 38.1(c) above.
(f) Except as specifically set forth in this Article 38, Tenant
shall have no other right of Set-Off.
ARTICLE 39. INVALIDITY OF PARTICULAR PROVISION
If any term or provision of this lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this lease, or the application of such term or provision to persons
or circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby and each term and provision of this lease shall be
valid and be enforced to the fullest extent permitted by law, with the parties
hereto covenanting to nonetheless negotiate in good faith, in order to agree the
terms of a mutually satisfactory provision to be substituted for the term or
provision which is void or unenforceable.
ARTICLE 40. AUTOMATIC EXTENSION OF TERM
Section 40.1.
(a) In the event that there is a Non-Permitted Encumbrance and as a
result thereof (i) Landlord is unable to deliver title to the Demised Premises
in accordance with the terms of the Option Agreement (unless FS is ready,
willing and able to deliver the Purchase Right pursuant to Section 10.07 of the
Operating Agreement); (ii) FS is unable to deliver the Purchase Right pursuant
to Section 10.07 of the Operating Agreement (unless Landlord is ready, willing
and able to deliver title to the Demised Premises in accordance with the terms
of the Option Agreement); (iii) Tenant, Master Sublessee or any subtenant is
unable to effectuate a Refinancing or a Tenant Transfer; or (iv) there has been
a Material Breach of Representation (as defined in Section 10(d) of the Option
Agreement) (and such Non-Permitted Encumbrance or Material Breach of a
Representation is not resolved in the manner provided in Section 38.1(c) with
respect to a Prior Fee) (any such event, a "Landlord Title Failure"), then the
term of this
55
lease is automatically extended for an additional period of seventy-four (74)
years (the "Extended Term") at the Fixed Rent set forth on Schedule B. The
Extended Term shall commence on February 9, 2023 and end on February 8, 2097.
(b) Notwithstanding anything contained herein to the contrary, until
such time as Landlord has cured or removed such Landlord Title Failure, the
Fixed Annual Rent as provided in Schedule A or Schedule B, as the case may be,
for the period commencing on the date of such failure shall be paid to and held
in escrow by Landlord's counsel and shall be paid over to Landlord (together
with any interest accrued thereon) only upon the closing of title in accordance
with the terms of the Option, the consummation of the Purchase Right pursuant to
the Operating Agreement, or the closing of the Refinancing or Tenant Transfer,
as the case may be, all subject to the provisions of Article 38 hereof,
provided, however, if Landlord or FS has wilfully caused the Landlord Title
Failure, as determined by a court of competent jurisdiction, then the payments
required to be made by Tenant pursuant to this lease as shown on Schedule A or
Schedule B, as the case may be, for the period from the time of such failure
shall be waived by Landlord and shall not be required to be paid by Tenant
notwithstanding any other provision in this lease to the contrary and if
previously deposited in escrow prior to such determination shall be returned to
Tenant (together with any interest accrued thereon).
Section 40.2 The extension shall be upon the same terms, covenants and
conditions as are contained in this lease, except for the Fixed Annual Rent
which shall be as set forth on Schedule B annexed hereto, duration of the term
and such provisions in this lease which by their terms are only applicable to
the Initial Term of this lease.
ARTICLE 41. MISCELLANEOUS PROVISIONS
Section 41.1. Every term, condition, agreement or provision contained in
this lease shall be deemed to be also a covenant.
Section 41.2. The specified remedies to which either party may resort
under the terms of this lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which that party may be
lawfully entitled in case of any breach or threatened breach by the other party
of any provision of this lease, and either party shall be entitled to the
restraint by injunction of any violation or attempted or threatened violation of
any of the terms or provisions of this lease.
Section 41.3. The failure of either party to insist in any one or more
cases upon the strict performance of any of the terms, covenants, conditions,
provisions or agreements of this lease, or to exercise any option herein
contained, shall not be construed as a waiver or a relinquishment for the future
of any such term, covenant, condition, provision, agreement or option. A receipt
and acceptance by Landlord of rent or any other payment, or the acceptance or
performance by either party of anything required by this lease to be performed,
with knowledge of the breach of any term, covenant, condition, provision or
agreement of this lease, shall not be deemed a waiver
56
of such breach, nor shall any such acceptance of rent in a lesser amount than is
herein provided for (regardless of any endorsement on any check, or any
statement in any letter accompanying any payment of rent or other charge)
operate or be construed either as an accord and satisfaction or in any manner
other than as a payment on account of the earliest rent or other charge then
unpaid by Tenant. No waiver by either party of any term, covenant, condition,
provision or agreement of this lease shall be deemed to have been made unless
expressed in writing and signed by that party.
Section 41.4. This lease may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of the change,
modification or discharge is sought.
Section 41.5. In the event of any Unavoidable Delays under this lease, the
time of performance of the covenants and obligations under this lease in
question (which shall in no event include any requirement for the payment of a
sum of money) shall automatically be extended for a period of time equal to the
aggregate period of the Unavoidable Delays.
Section 41.6. Any notice, waiver, certificate under Article 26, or
modification of this lease, signed on behalf of a party by one of its general
partners (if such party is a general or limited partnership or by one of its
directors or its president, executive vice president, vice-president or
secretary (if such party is a corporation) shall be binding upon that party and
the other party may rely thereon (as well as any third party expressly entitled
under this lease to rely thereon) without any inquiry into or evidence of the
authority of the signatory.
Section 41.7. This lease shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York and without aid of any
canon or rule of law requiring construction against the party drawing or causing
this lease or any provision thereof to be drawn.
Section 41.8. All terms and words used in this lease, regardless of the
number or gender in which they are used, shall be deemed to include-any other
number, or any other gender, as the context may require.
Section 41.9. The terms "herein," "hereby," "hereof," "hereunder," and
words of similar import, shall be construed to refer to this lease as whole, and
not to any particular Article or Section, unless expressly so stated.
Section 41.10. If either party shall be in default in the performance of
any of its obligations under this lease after the applicable grace period, if
any, then and in addition to any other right or remedy of the non-defaulting
party, the defaulting party shall promptly reimburse the non-defaulting party
for any reasonable counsel fees and disbursements incurred by the non-defaulting
party in enforcing its rights hereunder or at law or in equity.
57
Section 41.11. The provisions of this lease shall not be construed for the
benefit of any third party, except as otherwise provided herein.
Section 41.12. This lease may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument.
Section 41.13. Nothing contained in this lease shall be deemed to create a
partnership or other joint venture between the parties.
ARTICLE 42. FURTHER ASSURANCES
Section 42.1. From time to time, each party hereto shall, within five (5)
Business Days after a request therefor by the other party and at such party's
sole cost and expense, furnish such additional consents and other instruments
and information as may be reasonably required to implement the provisions of
this lease and the intentions of the parties or to confirm or perfect any right
to be created or transferred hereunder.
ARTICLE 43. COVENANTS BINDING ON RESPECTIVE PARTIES
Section 43.1. Subject to the provisions of Articles 23 and 31, the terms,
conditions, covenants, provisions and undertakings herein contained shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, personal representatives, successors and assigns.
ARTICLE 44. ARBITRATION
Section 44.1. In such cases where this lease provides for the settlement
of a dispute by arbitration, such arbitration shall be made by the American
Arbitration Association (or any successor body of comparable function reasonably
satisfactory to the parties) in the City, County, and State of New York in
accordance with the rules then obtaining of said Association (or such successor)
and a judgment upon the award may be entered in any court, federal or state,
having jurisdiction therefor. Any Fee Mortgagee and any Leasehold Mortgagee
shall have the right to participate in any such arbitration, and prompt notice
thereof shall be given to each Fee Mortgagee and each Leasehold Mortgagee by the
party requesting such arbitration, provided and to the extent such party shall
have been previously notified of the name and address of such Mortgagees. The
fees and expenses of any arbitration shall be borne by the parties equally, but
each party shall bear the expense of its own attorneys and experts and of
presenting its own proof and each party shall act in good faith and in a
commercially reasonable manner in respect of its obligations under this Article
44. The arbitrators shall (i) have at least ten (10) years experience in real
estate matters similar to the matter being arbitrated and (ii) not be affiliated
with any party.
58
ARTICLE 45. RIGHT TO PURCHASE AFTER TERMINATION
Section 45.1. If there is a valid and legal termination of this lease
pursuant to its terms, which termination occurs on or after April 1, 2008, and
no Leasehold Mortgagee has exercised the right pursuant to Article 24 hereof to
obtain a new lease, Landlord will so notify Optionee and NS Member at the
address set forth above for Tenant (or to such other person and at such other
address as Landlord shall have been previously notified by Optionee at its
address for notices). In such event, either Optionee shall have the right to
exercise the Option and to acquire the Demised Premises pursuant to the terms of
the Option Agreement, or NS Member shall have the right to acquire the Acquired
Interests as provided in Section 10.07 of the Operating Agreement, provided,
however, (i) if within thirty (30) days of Optionee's or NS Member's actual
receipt of such notice, Optionee fails to exercise its right to the Option or,
as the case may be, NS Member fails to exercise its right to acquire the
Acquired Interest or (ii) in the alternative, if Landlord fails to notify
Optionee and/or NS Member and Optionee or NS Member has not, within sixty (60)
days from the date of the valid and legal termination of the lease, exercised
the Option, or, as the case may be, its right to acquire the Acquired Interest
Optionee's right to exercise the Option shall be deemed terminated.
59
IN WITNESS WHEREOF, the parties hereto have duly executed this lease
as of the day and year first above written.
LANDLORD:
417 FS REALTY LLC
By: F.S. REALTY CORP.
By:_______________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
Signatures Continued on Next Page of Lease - 000 Xxxxx Xxxxxx
60
TENANT:
POLESTAR FIFTH PROPERTY
ASSOCIATES LLC
By:_______________________
Name: W. Xxxxxx Xxxxxxx
Title: President
Final Signature Page of Lease - 000 Xxxxx Xxxxxx
00
Xxxxx xx Xxx Xxxx )
) ss.:
County of New York )
On the __th day of February in the year 1998, before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxxxxx
Xxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the same individual whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his capacity, and
that by his signature on the instrument, the individual, or the person on behalf
of which the individual acted, executed the instrument.
------------------------------
[Seal]
00
Xxxxx xx Xxx Xxxx )
) ss.:
County of New York )
On the __th day of February in the year 1998, before me, the
undersigned, a Notary Public in and for said State, personally appeared W.
Xxxxxx Xxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the same individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.
------------------------------
[Seal]
63
Exhibit A
Description of Land
64
Exhibit B
Memorandum of Lease
65
Exhibit C
Exceptions to Non-Recourse
Landlord shall be personally liable at all times for (i) the
misapplication of (a) any insurance proceeds paid under any insurance policies
by reason of damage, loss, or destruction to the Premises or (b) proceeds or
awards resulting from condemnation or other taking in lieu of condemnation of
any portion of the Premises or (c) tenant security deposits, but solely to the
extent any of the foregoing items have actually been received and misapplied by
Landlord, and (ii) any damages to Lender resulting from any fraud or intentional
misrepresentation made by Landlord.
66
Exhibit D
Pre-Existing Environmental Matters
Those matters shown on the Property Condition Assessment and the Phase I
Environmental Site Assessment, both dated December 15, 1997, in respect of the
Premises prepared by Certified Environments Inc.
67
Exhibit E
JEWISH HOLIDAYS
Rosh Hashanah (Both Days)
Yom Kippur
Succot (First 2 Days)
Shemini Atzeret
Simchat Torah
Passover (First 2 Days and Last 2 Days)
Shavuot (Both Days)
68
Schedule A
Fixed Annual Rent
69
Schedule B
Fixed Annual Rent During Extension Term
70
Schedule C
LEASES
71
