Exhibit 10.10
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TST 300 PARK, L.P.,
Landlord
and
XXXXXXXXX & CO. LLC,
Tenant
-----
LEASE
-----
Premises: The Entire Twenty-Third and a Portion
of the Twenty-Fourth Floors
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Dated: February 18, 2000
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TABLE OF CONTENTS
Article 1 Basic Lease Provisions ............................ 1
Article 2 Premises, Term, Rent .............................. 4
Article 3 Use and Occupancy ................................. 5
Article 4 Condition of the Premises ......................... 7
Article 5 Alterations ....................................... 10
Article 6 Floor Load ........................................ 14
Article 7 Repairs ........................................... 14
Article 8 Increases in Taxes and Operating Expenses ......... 16
Article 9 Requirements of Law ............................... 23
Article 10 Subordination ..................................... 25
Article 11 Services .......................................... 28
Article 12 Insurance; Property Loss or Damage; Reimbursement . 32
Article 13 Destruction - Fire or Other Cause ................. 34
Article 14 Eminent Domain .................................... 37
Article 15 Assignment and Subletting ......................... 38
Article 16 Electricity ....................................... 49
Article 17 Access to Premises ................................ 51
Article 18 Default ........................................... 53
Article 19 Remedies and Damages .............................. 55
Article 20 Landlord's Right to Cure; Fees and Expenses ....... 57
Article 21 No Representations By Landlord: Landlord's Approval 58
Article 22 End of Term ....................................... 59
Article 23 Quiet Enjoyment ................................... 60
Article 24 No Surrender; No Waiver ........................... 60
Article 25 Waiver of Trial by Jury ........................... 61
Article 26 Inability to Perform .............................. 61
Article 27 Notices ........................................... 62
Article 28 Rules and Regulations ............................. 62
Article 29 Partnership Tenant ................................ 63
Article 30 Vault Space ....................................... 64
Article 31 Broker ............................................ 65
Article 32 Indemnity ......................................... 65
Article 33 Adjacent Excavation; Shoring ...................... 67
Article 34 Tax Status Of Beneficial Owners ................... 67
Article 35 Security Deposit .................................. 68
Article 36 Miscellaneous ..................................... 72
Article 37 Renewal Option .................................... 75
Article 38 Right of First Offer .............................. 77
Article 39 Satellite Dish .................................... 79
EXHIBITS:
A - Floor Plans
B - Definitions
C - Description of Landlord's Work
D - Heating, Ventilation and Air Conditioning Specifications
E - Cleaning Specifications
F - Rules and Regulations
G - Subordination, Non-Disturbance and Attornment Agreement
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LEASE
LEASE, made as of the 18th of February, 2000, between TST 300 PARK,
L.P. (the "Landlord"), a Delaware limited partnership, having an office c/o
Tishman Speyer Properties, L.P. 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
XXXXXXXXX & CO. LLC, a New York limited liability company (the "Tenant"), having
an office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES The entire 00xx xxxxx (xxx "00xx Xxxxx Premises") and
a portion of the 24th floor (the "24th Floor
Premises" and, together with the 23rd Floor Premises,
collectively the "Premises") of the Building,
substantially as shown on Exhibits A-I and A-2,
respectively.
BUILDING The building, fixtures, equipment and other
improvements and appurtenances now located or
hereafter erected, located or placed upon the land
known as 000 Xxxx Xxxxxx and 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
REAL PROPERTY The Building, together with the plot of land upon
which it stands.
COMMENCEMENT DATE The date on or after July 1, 2000 which is the
earlier to occur of (a) the date upon which items 1,2
and 3 of Landlord's Work (the "Pre-Delivery Work")
shall be Substantially Completed in accordance with
the terms of this Lease, and (b) the date Tenant (or
any person claiming by, through or under Tenant)
occupies any part of the Premises for the conduct of
its business.
RENT COMMENCEMENT The date which is the four (4)-month anniversary of
DATE the Commencement Date.
EXPIRATION DATE The date which is the last day of the month in which
the
tenth anniversary of the Commencement Date occurs or,
if the term of this Lease shall be extended in
accordance with any express provision hereof, the
last day of any renewal or extended term.
TERM The period commencing on the Commencement Date and
ending on the Expiration Date.
PERMITTED USES Executive and general offices for the transaction of
Tenant's business and uses incidentally related
thereto.
BASE TAX YEAR The Tax Year commencing on July 1, 2000 and ending on
June 30, 2001.
BASE EXPENSE YEAR Calendar year 2000.
TENANT'S PROPORTIONATE (a) As to Operating Expenses:
SHARE
3.618 percent.
(b) As to Taxes:
3.469 percent.
AGREED AREA OF (a) As to Operating Expenses:
BUILDING
695,298 rentable square feet.
(b) As to Taxes:
AGREED AREA OF 725,280 rentable square feet.
PREMISES
(a) As to the 23rd Floor Premises:
18,614 rentable square feet;
(b) As to the 24th Floor Premises:
6,544 rentable square feet,
comprising 25,158 rentable square feet in the
aggregate, which rentable square footage has been
mutually determined by Landlord and Tenant for
purposes of this
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Lease and Landlord makes no representation whatsoever
as to the actual square feet contained in the
Premises or the Building or any portions thereof but
the Agreed Area of Building was calculated on a basis
consistent with the calculation of the Agreed Area of
Premises.
FIXED RENT (i) $1,610,112 per annum ($134,176.00 per month) for
the period commencing on the Rent Commencement Date
and ending on the day preceding the 5th anniversary
of the Commencement Date, both dates inclusive; and
(ii) $1,735,902 per annum ($144,658.50 per month) for
the period commencing on the 5th anniversary of the
Commencement Date and ending on the Expiration Date,
both dates inclusive.
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant's Tax
Payment, Tenant's Operating Payment, late charges,
overtime or excess service charges, and interest and
other costs related to Tenant's failure to perform
any of its obligations under this Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) four percent per annum above the
then Current Base Rate charged by Citibank, N.A. or
its successor, or (ii) the maximum rate permitted by
applicable law.
SECURITY DEPOSIT $1,610,112, which amount is subject to adjustment
pursuant to Section 35.5.
BROKER Insignia/ESG, Inc.
LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by
Landlord as Landlord's Agent and their successors and
assigns.
LANDLORD'S $880,530.
CONTRIBUTION
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ALL CAPITALIZED TERMS USED IN THE TEXT OF THIS LEASE WITHOUT DEFINITION ARE
DEFINED IN THIS ARTICLE 1 OR IN EXHIBIT B.
ARTICLE 2
PREMISES, TERM, RENT
Section 2.1 Lease of Premises. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities serving the Premises.
Section 2.2 Payment of Rent. (a) Tenant shall pay to Landlord, without
notice or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank approved by Landlord: (i)
Fixed Rent in equal monthly installments, in advance, on the first (1st) day of
each calendar month during the Term, commencing on the Rent Commencement Date,
and (ii) Additional Rent, at the times and in the manner set forth in this
Lease. If the Rent Commencement Date is not the first day of a month, then on
the Rent Commencement Date Tenant shall pay Fixed Rent for the period from the
Rent Commencement Date through the last day of such month.
(b) Tenant shall make each payment of Fixed Rent and Additional
Rent to Landlord at P. O. Xxx 00000, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and each
such payment shall reference the Building. The payment instructions contained in
the preceding sentence shall not be withdrawn or modified by Landlord without
the prior written consent of SunAmerica Life Insurance Company ("SunAmerica") or
SunAmerica's agent, Xxxxx Xxxxxxxx Mortgage Corporation, or any successor agent
appointed by SunAmerica and of which SunAmerica has notified Tenant (the
"Servicer"), or pursuant to a joint written instruction from Landlord and
SunAmerica or the Servicer. Until Tenant shall receive written instructions to
the contrary from SunAmerica or the Servicer, Tenant shall continue to make all
payments of Fixed Rent and Additional Rent as provided in this Section 2.2(b ).
Section 2.3 Interest. If Tenant shall fail to pay any installment or
other payment of Rent when due, interest shall accrue on such installment or
payment as a late charge, from the date such installment or payment became due
until the date paid at the Interest Rate, except that no such interest shall
accrue in respect of the first two installments or payments that are past due in
any consecutive twelve month period provided that neither such installment nor
payment is past due for more than five days and, if such installment or
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payment is past due for more than five days, interest shall accrue thereon from
the first day such installment or payment became past due.
ARTICLE 3
USE AND OCCUPANCY
Section 3.1 (a) Permitted Uses. Tenant shall use and occupy the
Premises for the Permitted Uses and for no other purpose. Tenant shall not use
or occupy or permit the use or occupancy of any part of the Premises in a manner
constituting a Prohibited Use. If Tenant uses or suffers the use of the Premises
for a purpose which constitutes a Prohibited Use or violates any Requirement, or
which causes the Building to be in violation of any Requirement, then Tenant
shall promptly discontinue such use upon notice of such violation. Tenant's
failure to promptly (and, in all events, within 10 days after such notice)
discontinue such use shall be a material default hereunder and Landlord shall
have the right, without Tenant having any further period in which to cure, (i)
to terminate this Lease immediately, and (ii) to exercise any and all rights and
remedies available to Landlord at law or in equity.
(b) Licenses and Permits. Tenant, at its expense, shall obtain and
at all times maintain and comply with the terms and conditions of all licenses
and permits required for the lawful conduct of the Permitted Uses in the
Premises. Landlord shall during the Term keep in effect at all times a
certificate of occupancy issued for the Building permitting the use of the
Premises as offices.
Section 3.2 Prohibited Uses. (a) Notwithstanding anything in this Lease
to the contrary, in no event shall the Premises be used or occupied by a Person,
the principal business of which at the time such use or occupancy is
contemplated shall be the manufacture or sale of soaps, detergents, laundry
products, toilet articles, pet products or pet food or cosmetics or the
principal business of which shall be that of Colgate-Palmolive Company
("Colgate"), or its parent or one of its significant subsidiaries or affiliates
then occupying any portion of the Building or which includes in the name under
which such Person conducts business or in the name of any of its products or
services either or both of the names "Colgate" or "Palmolive" or the name of any
such subsidiary or affiliate or Person into which Colgate may merge or any
parent company of Colgate or any simulation of any such names.
(b) As long as Matsushita Electric Company of America is a party to
a lease with Landlord for space in the Building, Tenant covenants that it shall
not occupy the Premises, and shall not sublease space in the Premises to any
Person, whose (i) primary use of such space is the display or sale of electronic
equipment, or (ii) primary business is or shall be the sale, manufacture or
distribution of electronic equipment. Landlord's determination that any such use
or business is primary (as opposed to incidental) shall be final and binding on
the parties.
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Section 3.3 Use of Name "Colgate-Palmolive Building." So long as
Colgate (or any of its subsidiaries, affiliates or parents) shall be a tenant in
the Building, the use of the name Colgate- Palmolive Building" as a designation
of the Building has been reserved for the use of Colgate and any other tenants
in the Building which obtain the written consent of Colgate to use the same.
Tenant hereby covenants and agrees that it will not use the name
"Colgate-Palmolive Building," or any simulation or abbreviation thereof, as its
address either on stationery, by listing in the telephone book, or in other
printed matter, publication or picture or rendering or in advertising matter of
any sort unless such use is approved in writing by Colgate and Landlord. Tenant
covenants that any sublease of any space in the Premises shall contain a similar
restriction binding the subtenant.
Section 3.4 Delivery of Premises. (a) Landlord shall not be liable for
failure to deliver possession of the Premises on any specified date, and such
failure shall not impair the validity ofthi8 Lease (except as provided in
Section 3.4(b) but in the case of the holding over or retention of possession by
any tenant of the Premises, Landlord shall, at Landlord's sole expense, within
30 days following the date such holding-over tenant was obligated to vacate the
Premises commence and diligently prosecute a legal action or proceeding to
obtain possession of such Premises. If Landlord delivers possession of the
Premises to Tenant prior to August 1, 2000 Landlord shall provide Tenant with at
least 14 days' prior notice of the date Landlord reasonably anticipates will be
the Commencement Date. If Landlord delivers possession of the Premises to Tenant
after August 1, 2000, Landlord shall provide Tenant with at least 14 days' prior
notice of the date Landlord reasonably anticipates will be the Commencement Date
and the Commencement Date shall in no event occur until 14 days after such
notice is given. Landlord shall be deemed to have delivered possession of the
Premises to Tenant upon the giving of notice by Landlord to Tenant stating that
the Premises are vacant, broom clean and otherwise in the condition required
under this Lease (including, without limitation, the Substantial Completion of
the Pre-Delivery Work), and available for Tenant's occupancy (subject to such
notice being factually correct). Subject to the provisions of Section 3.4(b),
there shall be no postponement of the Commencement Date (or the Rent
Commencement Date) for (i) any delay which results from any Tenant Delay or (ii)
any delay by Landlord in the performance of Landlord' s Work. The provisions of
this Article are intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property Law or any
successor Requirement.
(b) If Landlord fails to Substantially Complete Landlord's
Pre-Delivery Work and deliver vacant possession of the Premises in accordance
with the terms of this Lease prior to October 1, 2001 (the "Outside Delivery
Date"), Tenant shall have the right exercisable by notice given to Landlord on
or before the date that is 90 days after the Outside Delivery Date, as its sole
and exclusive remedy therefor, to cancel this Lease. If Tenant timely delivers
the aforesaid cancellation notice (which notice may not be given prior to the
Outside Delivery Date), this Lease shall terminate 30 days after the date of
such notice, unless Landlord delivers vacant possession of the Premises with
Landlord's Pre-Delivery
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Work Substantially Completed within such 30 day period, in which case Tenant's
cancellation notice shall be void and this Lease shall continue in full force
and effect. Failure by Tenant to exercise such right to cancel this Lease within
90 days after the Outside Date shall constitute a waiver of such right; time
being of the essence with respect thereto.
ARTICLE 4
CONDITION OF THE PREMISES
Section 4.1 Condition. Tenant has inspected the Premises and agrees (a)
subject to Landlord's obligations under Section 3.4, to accept possession of the
Premises in the "as is" condition existing on the Commencement Date, (b) that
neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises or the Building except as expressly set
forth herein, and (c) except for Landlord's Contribution as expressly set forth
in Section 4.2 hereof and except for the work described in Exhibit C
("Landlord's Work"), Landlord has no obligation to perform any work, supply any
materials, incur any expense or make any alterations or improvements to the
Premises to prepare the Premises for Tenant's occupancy. Any work to be
performed by Tenant in connection with Tenant's initial occupancy of the
Premises for the conduct of its business shall be referred to hereinafter as the
"Initial Installations" . Tenant's occupancy of any part of the Premises for the
conduct of its business shall be conclusive evidence, as against Tenant, that
Landlord has Substantially Completed any work to be performed by Landlord under
this Lease, Tenant has accepted possession of the Premises in its then current
condition and at the time such possession was taken, the Premises and the
Building were in a good and satisfactory condition as required by this Lease.
Section 4.2 Landlord's Contribution. (a) Landlord agrees to pay to
Tenant an amount not to exceed Landlord's Contribution toward the cost of the
Initial Installations (excluding any "soft-costs" (other than architectural,
engineering, permit and construction consulting fees not in excess of $88,053)
and Tenant's Property), provided that as of the date on which Landlord is
required to make payment thereof pursuant to Section 4.2(b): (i) this Lease is
in full force and effect, and (ii) no Event of Default then exists. Tenant shall
pay all costs of the Initial Installations in excess of Landlord's Contribution.
Landlord's Contribution shall be payable solely on account of labor directly
related to the Initial Installations and materials delivered to the Premises in
connection with the Initial Installations (excluding any "soft-costs" (other
than architectural, engineering, permit and construction consulting fees not in
excess of $88,053) and Tenant's Property). Tenant shall not be entitled to
receive any portion of Landlord's Contribution not actually expended by Tenant
in the performance of the Initial Installations in accordance with this Section
4.2, nor shall Tenant have any right to apply any unexpended portion of
Landlord's Contribution as a credit against Rent or any other obligation of
Tenant hereunder. Upon the completion of the Initial Installations and
satisfaction of the conditions set forth in Section 4.2, or upon the
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occurrence of the date which is twelve months after the Commencement Date (which
date shall be extended by reason of strikes, labor trouble or any other similar
cause beyond Tenant's control in performing the Initial Installations),
whichever first occurs, any amount of Landlord's Contribution which has not been
previously disbursed shall be retained by Landlord; provided, however, that
notwithstanding anything contained herein to the contrary, the applicable
portion of such retained amounts shall continue to be held for the benefit of
Tenant by Landlord if Tenant delivers a notice to Landlord prior to satisfaction
of the conditions set forth in Section 4.2 that it is in dispute with any
contractors, subcontractors, vendors or other providers of service and refuses
to make payments at such time.
(b) Landlord shall make progress payments to Tenant on a monthly
basis, for the work performed during the previous month, up to 90% of Landlord's
Contribution. Each of Landlord's progress payments shall be limited to an amount
equal to the aggregate amounts theretofore paid by Tenant (as certified by an
authorized officer of Tenant and by Tenant's independent architect) to Tenant's
contractors, subcontractors and material suppliers which have not been subject
to previous disbursements from Landlord's Contribution multiplied by 90%.
Provided that Tenant delivers requisitions to Landlord on or prior to the 10th
day of any month, such progress payments shall be made within 30 days next
following the delivery to Landlord of requisitions therefor, signed by an
authorized officer of Tenant. which requisitions shall set forth the names of
each contractor and subcontractor to whom payment is due, and the amount
thereof, and shall be accompanied by (i) with the exception of the first
requisition, copies of partial waivers of lien from all contractors,
subcontractors, and material suppliers covering all work and materials which
were the subject of previous progress payments by Landlord and Tenant, (ii) a
written certification from Tenant's architect that the work for which the
requisition is being made has been completed substantially in accordance with
the plans and specifications approved by Landlord and (iii) such other documents
and information as Landlord may reasonably request, including in connection with
title drawdowns and endorsements. Any requisition made following the 10th day of
any month shall be paid no later than the last day of the month following the
month in which such requisitions are made. Landlord shall disburse any amount
retained by it hereunder upon submission by Tenant to Landlord of Tenant's
requisition therefor accompanied by all documentation required under this
Section 4.2(b), together with (A) proof of the satisfactory completion of all
required inspections and issuance of any required approvals, permits and
sign-offs for the Initial Installation by Governmental Authorities having
jurisdiction thereover, (B) final plans and specifications for the Initial
Installations as required pursuant to Section 5.l(c) and (C) issuance of final
lien waivers by all contractors, subcontractors and material suppliers covering
all of the Initial Installations. The right to receive Landlord's Contribution
is for the exclusive benefit of Tenant, and in no event shall such right be
assigned to or be enforceable by or for the benefit of any third party,
including any contractor, subcontractor, materialman, laborer, architect,
engineer, attorney or other Person.
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Section 4.3 Landlord's Work. (a) Landlord will commence the performance
of items 4 through 8 of Landlord's Work (the "Post-Delivery Work") reasonably
promptly following the Commencement Date and, subject to Tenant's compliance
with the provisions of this Section 4.3, will complete the Post-Delivery Work in
a good and workmanlike manner consistent with the standards applicable to the
Building. Landlord and its employees, contractors and agents shall have access
to the Premises at all reasonable times for the performance of the Post-Delivery
Work and for the storage of materials reasonably required in connection
therewith, and Tenant will use all commercially reasonable efforts to avoid any
interference with the performance of the Post-Delivery Work. Landlord shall use
reasonable efforts to minimize interference with Tenant's use and occupancy of
the Premises during the performance of the Post-Delivery Work, provided that
Landlord shall have no obligation to employ contractors or labor at overtime or
other premium pay rates or to incur any other overtime costs or additional
expenses whatsoever. There shall be no Rent abatement or allowance to Tenant for
a diminution of rental value, no actual or constructive eviction of Tenant, in
whole or in part, no relief from any of Tenant's other obligations under this
Lease, and no liability on the part of Landlord, by reason of inconvenience,
annoyance or injury to business arising from the performance of the Post-
Delivery Work or the storage of any materials in connection therewith.
(b) Landlord agrees to use reasonable efforts to Substantially
Complete (i) the replacement of the exterior windows in the Premises on or
before September 15, 2000 and (ii) the other Post-Delivery Work as soon as
reasonably practicable after Landlord obtains vacant possession of the Premises,
subject, in either case, to extension due to Unavoidable Delays and/or the
number of days during which any tenant occupying the Premises on the date hereof
holds over and, in the case of the window replacement work, the second sentence
of item 8 of Exhibit C. If Landlord fails to Substantially Complete such window
replacement work on or before September 15, 2000 (as such date may be extended
as provided above) and such other Post-Delivery Work as soon as reasonably
practicable after Landlord obtains possession of the Premises (as extended as
provided above), then, as Tenant's sole and exclusive remedy therefor, to the
extent that Tenant is actually delayed in the Substantial Completion of the
Initial Installations or in the occupancy of the Premises as a consequence of
such Post-Delivery Work not being Substantially Completed, except to the extent
such delay is attributable to the negligence or willful misconduct of Tenant or
Tenant's breach of the terms of this Lease, the Rent Commencement Date shall be
postponed by one day for each day of such delay (without duplication if more
than one item of Post-Delivery Work is not Substantially Completed) in the
Substantial Completion of the Post-Delivery Work.
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ARTICLE 5
ALTERATIONS
Section 5.1 Tenant's Alterations. (a) Tenant shall not make any
alterations, additions or other physical changes in or about the Premises,
including the Initial Installations (collectively, "Alterations"), other than
decorative Alterations such as painting, wall coverings, floor coverings and low
voltage cabling (collectively, "Decorative Alterations"), without Landlord's
prior consent, which may be withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to Alterations so long as such Alterations (i) are non-structural and do
not affect the Building Systems, (ii) are performed only by Landlord's
designated contractors (which shall be set forth on a list (subject to change
from time to time) of at least three contractors per trade, except with respect
to the Building System contractors, and such list shall be submitted to Tenant
promptly after request therefor and if Tenant engages any contractor set forth
on such list, Tenant shall not be required to obtain Landlord's consent to such
contractor unless, prior to the execution of an agreement between Tenant (either
directly or through another contractor or subcontractor) and such contractor
(or, if no written agreement is entered into, prior to the commencement of work
by the contractor), Landlord shall notify Tenant that such contractor has been
removed from such list) or by contractors approved by Landlord to perform such
Alterations, (iii) affect only the Premises and are not visible from outside of
the Premises or the Building, (iv) do not affect the certificate of occupancy
issued for the Building or the Premises, (v) do not adversely affect any service
furnished by Landlord to Tenant or to any other tenant of the Building and (vi)
do not violate any Requirement or cause the Premises or the Building to be
non-compliant with any Requirement.
(b) Plans and Specifications. Prior to making any Alterations, Tenant,
at its expense, shall (i) submit to Landlord for its approval, detailed plans
and specifications (including layout, architectural, mechanical, electrical,
plumbing, sprinkler and structural drawings) of each proposed Alteration (other
than Decorative Alterations), and with respect to any Alteration affecting any
Building System, Tenant shall submit proof that the Alteration has been designed
by, or reviewed and approved by, Landlord's designated engineer for the affected
Building System, (ii) obtain all permits, approvals and certificates required by
any Governmental Authorities, (iii) furnish to Landlord duplicate original
policies or certificates of worker's compensation (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such Alteration) and comprehensive public liability (including property
damage coverage) insurance and Builder's Risk coverage (issued on a completed
value basis) all in such form, with such companies, for such periods and in such
amounts as Landlord may reasonably require, naming Landlord, Landlord's managing
agent, and their respective employees and agents, any Lessor and any Mortgagee
as additional insureds and (iv) furnish to Landlord such other evidence of
Tenant's ability to complete and to fully pay for such Alterations (other than
Decorative Alterations) as is reasonably satisfactory to Landlord. Upon Tenant's
request, Landlord shall
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reasonably cooperate with Tenant in obtaining any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (if the provisions of the applicable Requirement require that
Landlord join in such application), provided that Tenant shall reimburse
Landlord for any cost, expense or liability in connection therewith. Tenant
shall give Landlord not less than 5 Business Days' notice prior to performing
any Decorative Alteration which notice shall contain a description of such
Decorative Alteration. If Landlord shall deny any request for approval to an
Alteration, Landlord shall provide Tenant with a reasonably detailed explanation
of the reason(s) for such denial. Any plans and specifications resubmitted by
Tenant to Landlord for Landlord's approval reflecting changes or additions made
to such plans and specifications as requested by Landlord ("Tenant's
Resubmission") shall be approved or denied by Landlord, subject to Section
5.1(a), within 5 Business Days following Tenant's Resubmission. If Landlord
shall fail to respond to Tenant's request for approval to any Initial
Installations within 10 Business Days following the submission of final and
complete plans and specifications thereof (or within 5 Business Days after
Tenant's Resubmission), as applicable, Landlord shall be deemed to have granted
such approval, provided Landlord fails to respond to Tenant within 5 Business
Days after receipt of a second notice from Tenant (which notice may only be sent
if Landlord failed to respond within said 10 or 5 Business Day period, as
aforesaid, and such notice shall expressly state in bold letters that Landlord's
failure to timely respond thereto shall be deemed approval of the Initial
Installations which are the subject of such notice).
(c) Governmental Approvals. Upon completion of any Alterations,
Tenant, at its expense, shall promptly obtain certificates of final approval of
such Alterations required by any Governmental Authority and shall furnish
Landlord with copies thereof, together with "as-built" plans and specifications
or final plans and specifications with all changes therein attached thereto for
such Alterations (other than Decorative Alterations), prepared on an Autocad
Computer Assisted Drafting and Design system (or such other system or medium as
Landlord may accept) using naming conventions issued by the American Institute
of Architects in June, 1990 (or such other naming convention as Landlord may
accept) and magnetic computer media of such record drawings and specifications,
translated in DXF format or another format acceptable to Landlord.
Section 5.2 Manner and Quality of Alterations. All Alterations shall be
performed (a) in a good and workmanlike manner and free from defects, (b) in
accordance with the plans and specifications as required under Section 5.1, and
by contractors approved by Landlord, (c) under the supervision of a licensed
architect reasonably satisfactory to Landlord (other than Decorative
Alterations) unless such supervision is not required by any Requirement or good
construction practice, and (d) in compliance with all Requirements, the terms of
this Lease, all standard procedures and regulations then prescribed by Landlord
for all work performed in the Building. All materials and equipment to be used
in the Premises shall be of first quality and at least equal to the applicable
standards for the Building then established by Landlord, and no such materials
or equipment (other than Tenant's Property) shall be subject to any lien or
other encumbrance.
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Section 5.3 Removal of Tenant's Property. Tenant's Property shall be
and remain the property of Tenant and Tenant may remove the same at any time on
or before the Expiration Date. On or prior to the Expiration Date or sooner
termination of the Term, Tenant shall, at Tenant's expense, remove all of
Tenant's Property and, unless otherwise directed by Landlord: (a) remove any
Specialty Alteration and (b) close up any slab penetrations in the Premises. At
least 30 days prior to commencing the removal of any Specialty Alterations or
effecting such closings, Tenant shall notify Landlord of its intention to remove
such Specialty Alterations or effect such closings, and if Landlord notifies
Tenant within such 30 day period, Tenant shall not remove such Specialty
Alterations or close such slab penetrations, and the Specialty Alterations not
so removed shall become the property of Landlord upon the Expiration Date or
sooner termination of the Term. Tenant shall repair and restore, in a good and
workmanlike manner, any damage to the Premises or the Building caused by
Tenant's removal of any Specialty Alterations or Tenant's Property or by the
closing of any slab penetrations, and upon default thereof, Tenant shall
reimburse Landlord, on demand, for Landlord's cost of repairing and restoring
such damage. Any Specialty Alterations or Tenant's Property not removed on or
before the Expiration Date or sooner termination of the Term shall be deemed
abandoned and Landlord may either retain the same as Landlord's property or
remove and dispose of same, and repair and restore any damage caused thereby, at
Tenant's cost and without accountability to Tenant. This Section 5.3 shall
survive the expiration or earlier termination of this Lease.
Section 5.4 Mechanic's Liens. Tenant, at its expense, shall discharge
any lien or charge filed against the Premises or the Real Property in connection
with any work claimed or determined in good faith by Landlord to have been done
by or on behalf of, or materials claimed or determined in good faith by Landlord
to have been furnished to, Tenant, within 10 days after Tenant's receipt of
notice thereof by payment, filing the bond required by law or otherwise in
accordance with law.
Section 5.5 Labor Relations. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict or disharmony
with other contractors, mechanics or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others, or the
use and enjoyment of the Building by other tenants or occupants. In the event of
such interference, conflict or disharmony, upon Landlord's request, Tenant shall
cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
Section 5.6 Tenant's Costs. Tenant shall pay to Landlord or its
designee, within 10 days after demand, all reasonable out-of-pocket costs
actually incurred by Landlord in connection with (a) Landlord's review of the
Alterations and plans and specifications in connection therewith requiring
Landlord consent therefor by Landlord's outside structural
12
and/or mechanical engineers and (b) the provision of Building personnel required
to be made available at additional expense during the performance of any
Alteration required by trade union policy or otherwise, to operate elevators or
otherwise to facilitate Tenant's Alterations. In addition, if Tenant's
Alterations (other than Tenant's Property) shall cost more than $25,000, Tenant
shall pay to Landlord or its designee, upon demand, an administrative fee in
respect of the performance of such Alterations and the scheduling of Building
equipment, facilities and personnel in connection therewith equal to three
percent of the total cost of such Alterations in the case of the Initial
Installations (which fee in connection with the Initial Installations shall in
no event exceed $62,500) and five percent of the total cost of any subsequent
Alterations.
Section 5.7 Tenant's Equipment. Tenant shall not move any heavy
machinery, heavy equipment, freight, bulky matter or fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent and
payment to Landlord of any costs incurred by Landlord in connection therewith.
If such Equipment requires special handling, Tenant agrees (a) to employ only
persons holding a Master Rigger's License to perform such work, (b) all work
performed in connection therewith shall comply with all applicable Requirements
and (c) such work shall be done only during hours designated by Landlord.
Section 5.8 Legal Compliance. The approval of plans or specifications,
or consent by Landlord to the making of any Alterations, does not constitute
Landlord's agreement or representation that such plans, specifications or
Alterations comply with any Requirements or the certificate of occupancy issued
for the Building. Landlord shall have no liability to Tenant or any other party
in connection with Landlord's approval of any plans and specifications for any
Alterations, or Landlord's consent to Tenant's performing any Alterations. If as
the result of any Alterations made by or on behalf of Tenant, Landlord is
required to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, whether or not in or near the Premises,
Tenant shall pay all costs and expenses incurred by Landlord in connection with
such alterations or improvements as provided in Article 20.
Section 5.9 Window Pockets. Tenant shall, as part of the Initial
Installations, design and construct the perimeter of the ceiling of each floor
of the Premises which is adjacent to any exterior window with pockets to permit
the windows in the Premises to open, which design and construction shall be
subject to Landlord's prior approval.
Section 5.10 Staircase. Tenant shall have the right, subject to
specific location, manner of installation and to the terms of this Article, to
construct an internal staircase within the Premises between the 23rd floor of
the Premises and the 24th floor of the Premises.
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ARTICLE 6
FLOOR LOAD
Section 6.1 Floor Load. Tenant shall not place a load upon any floor of
the Premises that exceeds 50 pounds per square foot "live load". Landlord
reserves the right to reasonably designate the position of all Equipment which
Tenant wishes to place within the Premises, and to place limitations on the
weight thereof to the extent the same would adversely affect the Building
Systems, the structure of the Building, or the reasonable use and occupancy of
the Building by other tenants or occupants (now or hereafter), in each case
other than to a de minimis extent.
ARTICLE 7
REPAIRS
Section 7.1 Landlord's Repair and Maintenance. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (a) the Building Systems up to
the point of connection to the Premises, (b) the structural components of the
Building, including the roof, and (c) the public portions of the Building, both
exterior and interior, in conformance with standards applicable to first-class
renovated office buildings of comparable age and quality in midtown Manhattan.
Section 7.2 Tenant's Repair and Maintenance. Tenant shall promptly, at
its expense and in compliance with Article 5 of this Lease, (a) make all
nonstructural repairs to the Premises and the fixtures, equipment and
appurtenances therein as and when needed to preserve the Premises in good
working order and condition, except for reasonable wear and tear and damage for
which Tenant is not responsible pursuant to this Lease, and (b) repair (to the
extent feasible and appropriate) or replace scratched or damaged doors, signs
and glass (other than exterior window glass) in and about the Premises. Without
limiting the foregoing, all damage to the Premises or to any other part of the
Building, or to any fixtures, equipment, sprinkler system and/or appurtenances
thereof, whether requiring structural or nonstructural repairs, caused by or
resulting from any act, omission, neglect or improper conduct of, or Alterations
made by, or the moving of Tenant's fixtures, furniture or equipment into, within
or out of the Premises by any Tenant Party, and all damage to any portion of the
Building Systems located in the Premises, shall be repaired at Tenant's expense.
Such repairs shall be made by (i) Tenant, at Tenant's expense, to the extent
that the required repairs are nonstructural in nature and do not affect any
Building System or any portion of the Building outside of the Premises, or (ii)
Landlord, at Tenant's expense, to the extent that the required repairs are
structural in nature, involve replacement of exterior window glass (if damaged
by Tenant) or affect any Building System or any portion of the
14
Building outside of the Premises. All Tenant repairs shall be of a quality at
least equal to the original work or construction utilizing new construction
materials and shall be made in accordance with this Lease. Tenant shall give
Landlord prompt notice of any defective condition of which Tenant is aware in
any Building System located in, servicing or passing through the Premises. If
Tenant fails to proceed with due diligence to make any repairs required to be
made by Tenant, Landlord may make such repairs and all costs and expenses
incurred by Landlord on account thereof shall be paid by Tenant as provided in
Article 20.
Section 7.3 Vermin. Tenant shall, at its expense, cause the Premises to
be exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
Section 7.4 Interruptions Due to Repairs. Landlord reserves the right
to make all changes, alterations, additions, improvements, repairs or
replacements to the Building, including the Building Systems which provide
services to Tenant, as Landlord deems necessary or reasonably desirable,
provided that in no event shall the level of any Building service decrease in
any material respect from the level required of Landlord in this Lease as a
result thereof (other than temporary changes in the level of such services
during the performance of any such work by Landlord). Landlord shall use
reasonable efforts to minimize interference with Tenant's use and occupancy of
the Premises during the making of such changes, repairs, alterations, additions,
improvements, repairs or replacements provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates
or to incur any other overtime costs or additional expenses whatsoever. Except
as otherwise provided in Section 11.9, there shall be no Rent abatement or
allowance to Tenant for a diminution of rental value, no actual or constructive
eviction of Tenant , in whole or in part, no relief from any of Tenant's other
obligations under this Lease, and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to business arising from Landlord, Tenant
or others making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or the Premises, or in or to
fixtures, appurtenances or equipment therein.
Section 7.5 Building Renovation. (a) Tenant acknowledges that Landlord
may change the facade of the Building (the "Building Renovations") at any time
and from time to time during the Term. Tenant understands that if the Building
Renovations are undertaken, during the Building Renovations a construction
bridge may be required to be erected in connection with any Building
Renovations, as necessary at Landlord's discretion. Tenant further understands
and acknowledges that the Building Renovations may cause inconvenience or
annoyance to Tenant, Tenant's employees, customers, invitees and suppliers; and
result in increased noise levels in the Building during the Building
Renovations. Tenant acknowledges and agrees that it is entering into this Lease
with adequate notice of the extent of the Building Renovations and the potential
inconvenience, annoyance and impact on Tenant's' business.
15
(b) Landlord and its employees, contractors and agents shall have
access to the Premises at all times for the performance of the Building
Renovations, and Tenant will use all commercially reasonable efforts to avoid
any interference with the performance of the Building Renovations. Landlord
shall use all commercially reasonable efforts to minimize interference with
Tenant's use and occupancy of the Premises during the performance of the
Building Renovations, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever. Neither Landlord nor its
agents or contractors shall be liable for any damage which Tenant may sustain
resulting from the Building Renovations. Except as otherwise provided in Section
11.9, there shall be no Rent abatement or allowance to Tenant for a diminution
of rental value, no actual or constructive eviction of Tenant , in whole or in
part, no relief from any of Tenant's other obligations under this Lease, and no
liability on the part of Landlord, by reason of inconvenience, annoyance or
injury to business arising from the performance the Building Renovations.
(c) Landlord agrees to use reasonable efforts to Substantially
Complete the Building Renovations substantially in the manner planned by
Landlord on the date hereof, on or before September 30, 2001, subject to
extension due to Unavoidable Delays.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
Section 8.1 Definitions. For the purposes of this Article 8, the
following terms shall have the meanings set forth below;
(a) "Assessed Valuation" shall mean the amount for which the Real
Property is assessed pursuant to applicable provisions of the City Charter and
of the Administrative Code of the City of New York for the purpose of imposition
of Taxes.
(b) "Base Operating Expenses" shall mean the Operating Expenses for
the Base Expense Year.
(c) "Base Taxes" shall mean an amount equal to the Taxes payable on
account of the Base Tax Year.
(d) "Comparison Year" shall mean (a) with respect to Taxes, any
calendar year commencing subsequent to the first day of the Base Tax Year, and
(b) with respect to Operating Expenses, any calendar year commencing subsequent
to the first day of the Base Expense Year.
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(e) "Operating Expenses" shall mean the aggregate of all costs and
expenses (and taxes, if any, thereon) paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the ownership, operation, repair and maintenance of the Building and the
Real Property, such as: (i) insurance premiums, (ii) the cost of electricity,
gas, oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and (iv) the annual depreciation or
amortization, on a straight-line basis over the useful life thereof as Landlord
shall reasonably determine (with interest on the unamortized portion at the Base
Rate plus 2 percent per annum) of any capital costs incurred after the Base
Expense Year for any equipment, device or other improvement made or acquired
which is either (A) intended as a labor-saving measure or cost-saving measure in
the operation, maintenance or repair of the Building (but only to the extent
that the annual benefits anticipated to be realized therefrom are reasonably
related to the annual amounts to be amortized), or (B) required by any
Requirement. Operating Expenses shall not include any Excluded Expenses. If
during all or part of the Base Expense Year or any Comparison Year, Landlord
shall not furnish any particular item(s) of work or service (which would
otherwise constitute an Operating Expense) to any leasable portions of the
Building for any reason, then, for purposes of computing Operating Expenses for
the Base Expense Year or any Comparison Year, as the case may be, the amount
included in Operating Expenses for such period shall be increased by an amount
equal to the costs and expenses that would have been reasonably incurred by
Landlord during such period if Landlord had furnished such item(s) of work or
service to such portion of the Building. In determining the amount of Operating
Expenses for the Base Expense Year or any Comparison Year, if less than 95
percent of the Building rentable area shall have been occupied by tenant(s) at
any time during any such Base Expense Year or Comparison Year, Operating
Expenses shall be determined for such Base Expense Year or Comparison Year to be
an amount equal to the like expenses which would normally be expected to be
incurred had such occupancy been 95 percent throughout such Base Expense Year or
Comparison Year.
(f) "Statement" shall mean a statement containing a comparison of
(1) the Taxes payable for the Base Tax Year and the Taxes payable for any Tax
Year in question, or (2) the Base Operating Expenses and the Operating Expenses
payable for any Comparison Year.
(g) "Tax Year" shall mean the twelve month period from July 1
through June 30 (or such other period as hereinafter may be duly adopted by the
City of New York as its fiscal year for real estate tax purposes).
(h) "Taxes" shall mean (i) all real estate taxes, assessments
(including assessments made as a result of the Building being within a business
improvement district), sewer and water rents, rates and charges and other
governmental levies, impositions or charges, whether general, special, ordinary,
extraordinary, foreseen or unforeseen, which may be assessed, levied or imposed
upon all or any part of the Real Property, and (ii) all
17
expenses (including reasonable attorneys' fees and disbursements and experts'
and other witnesses' fees) incurred in contesting any of the foregoing or in
connection with any application for a reduction of the Assessed Valuation of all
or any part of the Real Property or for a judicial review thereof (but in no
event shall such expenses be included in Taxes payable for the Base Tax Year).
Taxes shall not include (x) interest or penalties incurred by Landlord as a
result of Landlord's late payment of Taxes, except for interest payable in
connection with the installment payment of assessments pursuant to the next
sentence or (y) franchise or net income taxes imposed upon Landlord. If Landlord
elects to pay any assessment in annual installments, then for the purposes of
this Article 8, (A) such assessment shall be deemed to have been so divided and
to be payable in the maximum number of installments permitted by law, and (B)
there shall be deemed included in Taxes for each Comparison Year the
installments of such assessment becoming payable during such Comparison Year,
together with interest payable during such Comparison Year on such installments
and on all installments thereafter becoming due as provided by law, all as if
such assessment had been so divided. If at any time the methods of taxation
prevailing on the date hereof shall be altered so that in lieu of or as an
addition to the whole or any part of Taxes, there shall be assessed, levied or
imposed (1) a tax, assessment, levy, imposition or charge based on the income or
rents received from the Real Property whether or not wholly or partially as a
capital levy or otherwise, (2) a tax, assessment, levy, imposition or charge
measured by or based in whole or in part upon all or any part of the Real
Property and imposed upon Landlord, (3) a license fee measured by the rents, or
(4) any other tax, assessment, levy, imposition, charge or license fee however
described or imposed, then all such taxes, assessments, levies, impositions,
charges or license fees or the part thereof so measured or based shall be deemed
to be Taxes, provided that any tax, assessment, levy, imposition or charge
imposed on income from the Real Property shall be calculated as if the Real
Property were the only asset of Landlord.
Section 8.2 (a) Tenant's Tax Payment. If the Taxes payable for any Tax
Year after the Base Tax Year exceed the Base Taxes, Tenant shall pay to Landlord
Tenant's Proportionate Share of such excess ("Tenant's Tax Payment"). Landlord
may furnish to Tenant, prior to the commencement of each Comparison Year in
which such Tax Year commences, a statement setting forth Landlord's reasonable
estimate of Tenant's Tax Payment for such Tax Year. Subject to the provisions of
this Section 8.2(a), Tenant shall pay to Landlord on the first day of each month
during any such Comparison Year (and on the first day of each month thereafter
in such Comparison Year) an amount equal to 1/12th of Landlord's estimate of
Tenant's Tax Payment for such Tax Year. If Landlord shall not furnish any such
estimate for such Comparison Year or if Landlord shall furnish any such estimate
subsequent to the commencement thereof, then (x) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section 8.2(a) for the last
month of the preceding Comparison Year; (y) after such estimate is furnished to
Tenant, if the installments of Tenant's Tax Payment previously made for such
Comparison Year were greater or less than the
18
installments of Tenant's Tax Payment to be made in accordance with such
estimate, then (1) if there is a deficiency, Tenant shall pay the amount thereof
to Landlord within ten (10) Business Days after such estimate is furnished to
Tenant, or (2) if there is an overpayment, Landlord shall credit such
overpayment against the next installments of Rent (and if such overpayment or
underpayment was more than 10% of the actual amount required to be paid
hereunder other than as a result of a reduction in Taxes following any tax
reduction proceeding prosecuted by Landlord, then such adjustment shall include
interest at the Base Rate on such underpayment or overpayment, as applicable,
from the date originally paid by Tenant until Tenant pays such deficiency to
Landlord or Landlord credits such overpayment against rent, as applicable); and
(z) on the first day of the month following the month in which such estimate is
furnished to Tenant and monthly thereafter throughout such Comparison Year,
Tenant shall pay to Landlord an amount equal to 1/12th of Tenant's Tax Payment
shown on such estimate. Landlord may, during each Comparison Year, furnish to
Tenant a revised Statement of Landlord's estimate of Tenant's Tax Payment for
such Comparison Year, and in such case, Tenant's Tax Payment for such Comparison
Year shall be adjusted and any deficiencies paid or overpayments credited, as
the case may be, substantially in the same manner as provided in the preceding
sentence. After the end of each Comparison Year, Landlord shall furnish to
Tenant a Statement of Taxes applicable to Tenant's Tax Payment payable for such
Comparison Year and (A) if such Statement shall show that the sums so paid by
Tenant were less than Tenant's Tax Payment due for the Tax Year commencing
during such Comparison Year, Tenant shall pay to Landlord the amount of such
deficiency in Tenant's Tax Payment within ten (10) Business Days after such
Statement is furnished to Tenant, or (B) if such Statement shall show that the
sums so paid by Tenant were more than such Tenant's Tax Payment, Landlord shall,
at its election, pay to Tenant such overpayment in Tenant's Tax Payments or
credit such overpayment in Tenant's Tax Payment against subsequent installments
of Rent payable by Tenant. If there shall be any increase in the Taxes for any
Tax Year, whether during or after such Tax Year, or if there shall be any
decrease in the Taxes for any Tax Year, Tenant's Tax Payment for such Comparison
Year shall be appropriately adjusted and any deficiencies paid or overpayments
credited, as the case may be, substantially in the same manner as provided in
the preceding sentence. The benefit of any discount for any early payment or
prepayment of Taxes and of any tax exemption or abatement relating to all or any
part of the Real Property shall accrue solely to the benefit of Landlord and
Taxes shall be computed without subtracting such discount or taking into account
any such exemption or abatement.
(b) Taxes for each real estate tax fiscal year shall be apportioned
on the basis of the number of days in such fiscal year included in any
particular Tax Year subsequent to the Base Tax Year for the purpose of making
the computations under this Section.
(c) Tenant shall not (and hereby waives any and all rights it may
now or hereafter have to) institute or maintain any action, proceeding or
application in any court or other body having the power to fix or review
assessed valuations or tax rates, for the purpose of reducing Taxes. The filing
of any such proceeding by Tenant without Landlord's consent
19
shall be an immediate Event of Default hereunder. If the Taxes payable for the
Base Tax Year are reduced, the Base Taxes shall be correspondingly revised, the
Additional Rent previously paid or payable on account of Tenant's Tax Payment
hereunder for all Comparison Years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord within 10 Business Days after being
billed therefor, any deficiency between the amount of such Additional Rent
previously computed and paid by Tenant to Landlord, and the amount due as a
result of such recomputations. If the Taxes payable for the Base Tax Year are
increased then Landlord shall either pay to Tenant, or at Landlord's election,
credit against subsequent payments of Rent due, the amount by which such
Additional Rent previously paid on account of Tenant's Tax Payment exceeds the
amount actually due as a result of such recomputations. If Landlord receives a
refund or credit of Taxes for any Comparison Year, Landlord shall recalculate
Tenant's Tax Payment for the applicable periods (taking into account the
provisions of Sections 8.2(a) and (b)) and shall, as and when such refund
payment or credit is received, at its election, either pay to Tenant, or credit
against subsequent payments of Rent due hereunder, an amount equal to Tenant's
Proportionate Share of the refund, net of any expenses incurred by Landlord in
achieving such refund and adjustments to Tenant's Tax Payments resulting from
such recalculation, which amount shall not exceed Tenant's Tax Payment paid for
such Comparison Year. Landlord shall not be obligated to file any application or
institute any proceeding seeking a reduction in Taxes or the Assessed Valuation.
(d) Tenant shall be obligated to make Tenant's Tax Payment
regardless of whether Tenant may be exempt from the payment of any taxes as the
result of any reduction, abatement, or exemption from Taxes granted or agreed to
by any Governmental Authority, or by reason of Tenant's diplomatic or other tax
exempt status.
( e) If the Expiration Date shall occur on a date other than the
last day of a Tax Year, any Additional Rent payable by Tenant to Landlord under
this Section 8.2 for the Comparison Year in which such Expiration Date occurs
shall be apportioned on the basis of the number of days in the period from such
last day to the Expiration Date shall bear to the total number of days in such
Comparison Year. In the event of the expiration or earlier termination of this
Lease, any Additional Rent under this Section 8.2 shall be paid or adjusted
within 30 days after submission of the Statement. In no event shall Fixed Rent
ever be reduced by operation of this Section 8.2.
(f) Tenant shall be responsible for any applicable occupancy or
rent tax now in effect or hereafter enacted and applicable to Tenant's occupancy
of the Premises, regardless of whether imposed by its terms upon Landlord or
Tenant and, if such tax is payable by Landlord, Tenant shall promptly pay such
amounts to Landlord, upon Landlord's demand, as Additional Rent.
Section 8.3 Tenant's Operating Payment. (a) If the Operating Expenses
payable for any Comparison Year exceed the Base Operating Expenses, Tenant shall
pay to Landlord,
20
as Additional Rent during each Comparison Year, Tenant's Proportionate Share of
such excess ("Tenant's Operating Payment"). For each Comparison Year, Landlord
shall furnish to Tenant a written statement setting forth Landlord's good faith
reasonable estimate of Tenant's Operating Payment for such Comparison Year,
based upon such year's budget. Tenant shall pay to Landlord on the first day of
each month during such Comparison Year an amount equal to one-twelfth of
Landlord's estimate of Tenant's Operating Payment for such Comparison Year. If
Landlord does not furnish any such estimate for a Comparison Year until after
the commencement thereof, then (i) until the first day of the month following
the month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section 8.3 during the last month of
the preceding Comparison Year, (ii) promptly after such estimate is furnished to
Tenant or together therewith, Landlord shall give notice to Tenant stating
whether the installments of Tenant's Operating Payment previously made for such
Comparison Year were greater or less than the installments of Tenant's Operating
Payment to be made for such Comparison Year in accordance with such estimate,
and (A) if there shall be a deficiency, Tenant shall pay the amount thereof
within 10 Business Days after demand therefor, or (B) if there shall have been
an overpayment, Landlord shall credit the amount thereof against subsequent
payments of Rent due hereunder (and if such overpayment or underpayment was more
than 10% of the actual amount required to be paid hereunder, then such
adjustment shall include interest at the Base Rate on such underpayment or
overpayment, as applicable, from the date originally paid by Tenant until Tenant
pays such deficiency to Landlord or Landlord credits such overpayment against
rent, as applicable), and (iii) on the first day of the month following the
month in which such estimate is furnished to Tenant, and on the first day of
each month thereafter throughout the remainder of such Comparison Year, Tenant
shall pay to Landlord an amount equal to one-twelfth of Tenant's Operating
Payment shown on such estimate.
(b) Landlord shall furnish to Tenant a Statement of Operating
Expenses for the immediately preceding Comparison Year within 365 days after the
end of such Comparison Year. If such Statement shall show that the sums paid by
Tenant under Section 8.3(a) exceeded the actual amount of Tenant's Operating
Payment for such Comparison Year, Landlord shall credit the amount of such
excess against subsequent payments of Rent due hereunder. If the Statement for
such Comparison Year shall show that the sums so paid by Tenant were less than
Tenant's Operating Payment for such Comparison Year, Tenant shall pay the amount
of such deficiency within 10 Business Days after Tenant's receipt of such
Statement.
(c) If the Expiration Date shall occur on a date other than
December 31, any Additional Rent under this Section 8.3 for the Comparison Year
in which such Expiration Date shall occur shall be apportioned on the basis of
the number of days in the period from January 1 to the Expiration Date. Upon the
expiration or earlier termination of this Lease, any Additional Rent under this
Article 8 shall be paid or adjusted within 30 days after
21
submission of the Statement. In no event shall Fixed Rent ever be reduced by
operation of this Section 8.3.
Section 8.4 Formula. The computations of Additional Rent under this
Article 8 are intended to constitute a formula for an agreed rental adjustment
and mayor may not constitute an actual reimbursement to Landlord for Taxes,
costs and expenses paid by Landlord with respect to the Building.
Section 8.5 Non-Waiver: Disputes. (a) Landlord's failure to render any
Statement on a timely basis with respect to any Comparison Year shall not
prejudice Landlord's right to thereafter render a Statement with respect to such
Comparison Year or any subsequent Comparison Year, nor shall the rendering of a
Statement prejudice Landlord's right to thereafter render a corrected Statement
for any Comparison Year unless such failure continues for more than 3 years
after the expiration of the Comparison Year in question to which such Statement
or corrected Statement relates (i.e., Landlord may not render a revised
Statement or a Statement in respect of any Comparison Year more than 3 years
after the expiration of such Comparison Year).
(b) Each Statement sent to Tenant shall be conclusively binding
upon Tenant unless Tenant shall, (i) pay to Landlord when due the amount set
forth in such Statement, without prejudice to Tenant's right to dispute such
Statement, and (ii) within 120 days after such Statement is sent, send a written
notice to Landlord objecting to such Statement and specifying the reasons for
Tenant's claim that such Statement is incorrect. Tenant agrees that Tenant will
not employ, in connection with any dispute under this Lease, any person who is
to be compensated in whole or in part, on a contingency fee basis. If the
parties are unable to resolve any such dispute within 30 days following the
giving of Tenant's notice of objection, either party may within ten days after
the expiration of such 30 day period refer the issues raised to a nationally
recognized, independent firm of certified public accountants selected by
Landlord and reasonably acceptable to Tenant, and the decision of such
accountants shall be conclusively binding upon Landlord and Tenant. In
connection therewith, Tenant and such accountants shall execute and deliver to
Landlord a confidentiality agreement, in form and substance reasonably
satisfactory to Landlord, whereby such parties agree not to disclose to any
third party any of the information obtained in connection with such review, or
the substance of any admissions or stipulations by any party in connection
therewith, or of any resulting reconciliation, compromise or settlement. Tenant
shall pay the fees and expenses relating to such procedure, unless such
accountants shall determine that Landlord overstated the Operating Expenses by
more than 5% for such Comparison Year, as finally determined, in which case
Landlord shall pay such fees and expenses. Except as provided in this Section,
Tenant shall have no right whatsoever to dispute by judicial process or
otherwise the accuracy of any Statement.
Section 8.6 No Reduction in Rent. Anything in this Article 8 to the
contrary notwithstanding, under no circumstances shall any decrease in Operating
Expenses or Taxes
22
in any Comparison Year below the Base Operating Expenses or Base Taxes, as the
case may be, result in a reduction in the Fixed Rent or any other component of
Additional Rent payable hereunder.
ARTICLE 9
REQUIREMENTS OF LAW
Section 9.1 (a) Tenant's Compliance. Tenant, at its expense, shall
comply (or cause to be complied) with all Requirements applicable to the
Premises, regardless of whether imposed by their terms upon Landlord or Tenant,
provided however, that Tenant shall not be obligated to comply with any
Requirement requiring any structural alteration to the Premises unless the
application of such Requirement arises from (i) Tenant's manner of use or
occupancy of the Premises (as distinguished from the use or occupancy of the
Premises for office purposes generally), (ii) any cause or condition created by
or on behalf of any Tenant Party (including any Alterations), (iii) the breach
of any of Tenant's obligation under this Lease, (iv) the Americans with
Disabilities Act or New York City Local Law #58 (as each of the same may be
amended from time to time), or (v) any Hazardous Materials having been brought
into the Building or affected by any Tenant Party. All repairs and alterations
to the Premises, required to be made by Tenant as provided above to cause the
Premises to comply with any Requirements shall be made by Tenant, at Tenant's
expense and in compliance with Article 5, if such repairs or alterations are
nonstructural, do not affect any Building System, do not affect the exterior
windows of the Premises and do not involve the performance of work outside of
the Premises, or by Landlord, at Tenant's reasonable expense, if such repairs or
alterations are structural, affect any Building System or the exterior windows
of the Premises or involve the performance of work outside the Premises. If
Tenant obtains knowledge of any failure to comply with any Requirements
applicable to the Premises, Tenant shall give Landlord prompt written notice
thereof.
(b) Hazardous Materials. Tenant shall not (i) cause or permit any
Hazardous Materials to be brought into the Building, (ii) cause or permit the
storage or use of Hazardous Materials in any manner not permitted by any
Requirements, or (iii) cause or permit the escape, disposal or release of any
Hazardous Materials within or in the vicinity of the Building. Nothing herein
shall be deemed to prevent Tenant's use of any Hazardous Materials customarily
used in the ordinary course of office work, provided such use is in accordance
with all Requirements. Tenant shall be responsible, at its expense, for all
matters directly or indirectly based on, or arising or resulting from the actual
or alleged presence of Hazardous Materials in the Premises or in the Building
which is caused or permitted by Tenant or any Tenant Party. Tenant shall provide
to Landlord copies of all communications received by Tenant with respect to any
Requirements relating to Hazardous Materials, and/or any claims made in
connection therewith. Landlord or its agents may perform environmental
23
inspections of the Premises at any time. The covenants contained in this
subsection shall survive the expiration or earlier termination of this Lease.
(c) Landlord's Compliance. Landlord shall comply with (or cause to
be complied with) all Requirements applicable to the Building which are not the
obligation of Tenant, to the extent that non-compliance would materially impair
Tenant's use and occupancy of the Premises and Tenant's ability to conduct its
business in the Premises for office use; and the cost thereof shall be included
in Operating Expenses, if and to the extent permitted by Article 8. All
Landlord's Work shall be performed in accordance with Requirements.
(d) Landlord's Insurance. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with Landlord's
insurance policies, (ii) violate applicable rules, regulations and guidelines of
the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Building, or (iii) cause an increase in the
premiums for fire insurance then covering the Building over that payable with
respect to comparable first-class office buildings or (iv) result in insurance
companies of good standing refusing to insure the Building or any property
therein in amounts and against risks as reasonably determined by Landlord. If
the fire insurance premiums increase as a result of Tenant's failure to comply
with the provisions of this Article, Tenant shall promptly cure such failure and
shall reimburse Landlord, as Additional Rent, for the increased fire insurance
premiums paid by Landlord as a result of such failure by Tenant. In any action
or proceeding to which Landlord and Tenant are parties, a schedule or "make up"
of rates for the Building or the Premises issued by the appropriate Fire
Insurance Rating Organization, or other body fixing such fire insurance rates,
shall be conclusive evidence of the fire insurance rates then applicable to the
Building.
Section 9.2 Fire Alarm System; Sprinkler. Tenant shall install and
thereafter maintain in good order and repair a sprinkler, fire-alarm and
life-safety system in the Premises. Such installation and maintenance shall be
performed by Tenant in accordance with this Lease, the Rules and Regulations and
all Requirements (including Requirements applicable to the installation of clear
glass lot line windows). Landlord shall provide adequate water and water
pressure to support the operation of Tenant's sprinkler system, provided
Tenant's sprinklers are installed and designed for a customary office
installation. If the Fire Insurance Rating Organization or any Governmental
Authority or any of Landlord's insurers requires or recommends (where the
failure to implement such recommendation would have an effect described in
clauses (i), (ii), (iii) or (iv) of the first sentence of Section 9.l(d)) any
modifications and/or Alterations be made or any additional equipment be supplied
in connection with the sprinkler system or fire alarm and life-safety system
serving the Building or the Premises by reason of Tenant's business, any
Alteration performed by Tenant or the location of the partitions, trade
fixtures, or other contents of the Premises, Landlord (to the extent such
modifications or Alterations are structural, affect any Building System or
involve the performance of work outside of the Premises) or Tenant (to
24
the extent such modifications or Alterations are nonstructural, do not affect
any Building System and do not involve the performance of work outside the
Premises) shall make such modifications and/or Alterations, and supply such
additional equipment, in either case at Tenant's expense.
Section 9.3 Limitations on Rent. If at any time during the Term by
reason of any Requirement the Rent is not fully collectible, Tenant shall take
such other steps (without additional expense to Tenant) as Landlord may request,
and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally
permissible (but not in excess of the Rent reserved under this Lease). Upon the
termination of such restriction during the Term, Tenant shall pay to Landlord,
in addition to the Rent for the period following such termination of the
restriction, if legally permissible, the portion of Rent which would have been
paid pursuant to this Lease but for such legal restriction less the Rent paid by
Tenant to Landlord while such restriction \vas in effect, together with interest
thereon at the Base Rate.
ARTICLE 10
SUBORDINATION
Section 10.1 Subordination and Attornment. (a) This Lease and Tenant's
rights hereunder are subject and subordinate to all Mortgages and Superior
Leases, and, at the request of any Mortgagee or Lessor, Tenant shall attorn to
such Mortgagee or Lessor, its successors in interest or any purchaser in a
foreclosure sale.
(b) If a Lessor or Mortgagee or any other person or entity shall
succeed to the rights of Landlord under this Lease, whether through possession
or foreclosure action or the delivery of a new lease or deed, then at the
request of the successor landlord and upon such successor landlord's written
agreement to accept Tenant's attornment and to recognize Tenant's interest under
this Lease, Tenant shall be deemed to have attorned to and recognized such
successor landlord as Landlord under this Lease. The provisions of this Article
are self-operative and require no further instruments to give effect hereto;
provided, however, that Tenant shall promptly execute and deliver any instrument
that such successor landlord may reasonably request (x) evidencing such
attornment, (y) setting forth the terms and conditions of Tenant's tenancy, and
(z) containing such other terms and conditions as may be required by such
Mortgagee or Lessor, provided such terms and conditions do not materially
increase Tenant's obligations or materially and adversely affect the rights of
Tenant under this Lease. Upon such attornment this Lease shall continue in full
force and effect as a direct lease between such successor landlord and Tenant
upon all of the terms, conditions and covenants set forth in this Lease except
that such successor landlord shall not be:
25
(i) liable for any previous act or omission of Landlord under
this Lease;
(ii) subject to any credit, demand, claim, counterclaim, offset
or defense which theretofore accrued to Tenant against Landlord;
(iii) if Mortgagee's or Lessor's consent is required under any
Mortgage or Superior Lease, bound by any previous modification of this Lease, or
by any previous prepayment of more than one month's Fixed Rent or Additional
Rent;
(iv) bound by any covenant or obligation of Landlord to perform,
undertake or complete any work in the Premises or to prepare the Premises for
Tenant's occupancy;
(v) required to account for any security deposit of Tenant other
than any security deposit actually delivered to Mortgagee or Lessor by Landlord;
(vi) bound by any obligation to make any payment to Tenant or
grant any credits, except for services, repairs, maintenance and restoration
provided for under this Lease to be performed by Landlord after the date of such
attornment; and
(vii) responsible for any monies (other than overpayments of
Tenant's Tax Payment or Tenant's Operating Payment) owing by Landlord to Tenant.
Section 10.2 Mortgage or Superior Lease Defaults. Any Mortgagee may
elect that this Lease shall have priority over the Mortgage that it holds and,
upon notification to Tenant by such Mortgagee, this Lease shall be deemed to
have priority over such Mortgage, regardless of the date of this Lease. In
connection with any financing of the Real Property, the Building or of the
interest of the lessee under any Superior Lease, Tenant shall consent to any
reasonable modifications of this Lease requested by any lending institution,
provided such modifications do not materially increase the obligations, or
materially and adversely affect the rights, of Tenant under this Lease.
Section 10.3 Tenant's Termination Right. As long as any Superior Lease
or Mortgage shall exist, Tenant shall not seek to terminate this Lease by reason
of any act or omission of Landlord (a) until Tenant shall have given notice of
such act or omission to all Lessors and/or Mortgagees, and (b) until a
reasonable period of time shall have elapsed following the giving of notice of
such default and the expiration of any applicable notice or grace periods
(unless such act or omission is not capable of being remedied within a
reasonable period of time) during which period such Lessors and/or Mortgagees
shall have the right, but not the obligation, after obtaining possession of the
Real Property to remedy such act or omission and thereafter diligently proceed
to so remedy such act or obligation. If any Lessor or Mortgagee elects to remedy
such act or omission of Landlord, Tenant shall not
26
seek to terminate this Lease so long as such Lessor or Mortgagee is proceeding
with reasonable diligence to effect such remedy.
Section 10.4 Applicability. The provisions of this Article shall (a)
inure to the benefit of Landlord, any future owner of the Building or the Real
Property, any Lessor or Mortgagee and any sublessor thereof and (b) apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any Superior Lease or the foreclosure of any Mortgage.
Section 10.5 Future Condominium Declaration. This Lease and Tenant's
rights hereunder are and will be subject and subordinate to any condominium
declaration, by-laws and other instruments (collectively, the "Declaration")
which may be recorded in order to subject the Building to a condominium form of
ownership pursuant to Article 9B of the New York Real Property Law or any
successor statute, provided that the Declaration does not by its terms increase
the Rent, materially increase Tenant's non-Rent obligations or materially and
adversely affect Tenant's rights under this Lease. At Landlord's request, and
subject to the foregoing proviso, Tenant will execute and deliver to Landlord an
amendment of this Lease confirming such subordination and modifying this Lease
to conform to such condominium regime.
Section 10.6 Non-Disturbance Agreements. Landlord represents, as of the
date hereof, that there is no Superior Lease and the only existing Mortgagee is
SunAmerica. Landlord hereby agrees to use reasonable efforts to obtain for
Tenant, at no cost to Landlord, a subordination, non-disturbance and attornment
agreement ("SNDA") from SunAmerica, in substantially the form attached hereto as
Exhibit G, provided that Landlord shall have no liability to Tenant, and the
subordination of this Lease to any Mortgage shall not be affected, in the event
that it is unable to obtain any such agreement, except as provided in the next
sentence of this Section 10.6. If Landlord shall fail to deliver to Tenant the
SNDA from SunAmerica within 60 days following execution and delivery of this
Lease by both parties, Tenant shall have the right for 30 days after the
expiration of such 60-day period to cancel this Lease by giving Landlord notice
of such election, whereupon this Lease shall become null and void as of the date
that is 30 days following the date such notice is given, provided that if
Landlord shall deliver the SNDA to Tenant within 30 days following receipt of
notice of cancellation from Tenant, this Lease shall continue and Tenant shall
have no right to cancel it. If no notice is given within such 30-day period
(time being of the essence), then Tenant's right to cancel this Lease shall be
deemed waived. As a condition to Tenant's agreement hereunder to subordinate
Tenant's interest in this Lease to any future Mortgage and Superior Lease, as
the case may be, made between Landlord and any Mortgagee and/or Lessor, Landlord
shall obtain for signature by Tenant from each such future Mortgagee or Lessor,
as the case may be, a SNDA in the standard form customarily employed by such
Mortgagee or Lessor. Any agreement substantially in the form of a SNDA
previously executed by Tenant in connection with this Lease shall be deemed
satisfactory to Tenant. If Tenant shall fail or refuse, for any reason, to
execute and deliver to Landlord a SNDA in
27
proper form within 10 days after delivery thereof to Tenant, then Tenant's
interest under this Lease shall be subordinate to the future Mortgage and
Landlord shall have no further liability to Tenant to obtain a SNDA from such
Mortgagee.
ARTICLE 11
SERVICES
Section 11.1 Elevators. Landlord, at its expense, shall provide
passenger elevator service to the Premises at all times, and at least one
freight elevator serving the Premises available upon Tenant's prior request, on
a non-exclusive "first come, first serve" basis with other Building tenants, on
all Business Days from 8:00 a.m. to 11:45 a.m. and from 1 :00 p.m. to 4:45 p.m.
Landlord shall at all times during the Term provide at least 2 passenger
elevators serving the Premises from 8:00 a.m. to 6:00 p.m. on Business Days,
subject to normal maintenance, repair obligations and Unavoidable Delays.
Section 11.2 Heating, Ventilation and Air Conditioning. (a) Landlord
shall furnish to the Premises heating, ventilation and air-conditioning ("HVAC")
in accordance with the standards set forth in Exhibit D on all Business Days
from 8:00 a.m. to 6:00 p.m. Landlord, at its expense, shall repair and maintain
the HVAC System in good working order, provided repairs required as a result of
the negligence or willful misconduct of Tenant, its agents or employees, shall
be performed at Tenant's expense. Landlord shall have access to all air-cooling,
fan, ventilating and machine rooms and electrical closets and all other
mechanical installations of Landlord (collectively, "Mechanical Installations"),
and Tenant shall not construct partitions or other obstructions which may
interfere with Landlord's access thereto or the moving of Landlord's equipment
to and from the Mechanical Installations. Neither Tenant, nor its agents,
employees or contractors shall at any time enter the Mechanical Installations or
tamper with, adjust, or otherwise affect such Mechanical Installations.
(b) Landlord shall not be responsible if the normal operation of
the Building System providing HVAC to the Premises (the "HVAC System") shall
fail to provide cooled or heated air, as the case may be, in accordance with the
specifications set forth in Exhibit D by reason of (i) any machinery or
equipment installed by or on behalf of Tenant or any person claiming through or
under Tenant, which shall have an electrical load in excess of the average
electrical load and human occupancy factors for the HVAC System as designed, as
the case may be, or (ii) any rearrangement of partitioning or other Alterations
(including the Initial Installations) made or performed by or on behalf of
Tenant or any person claiming through or under Tenant. Tenant shall install, if
missing, blinds or shades on all windows, which blinds and shades and the manner
of installation shall be subject to Landlord's approval, and shall keep all of
the operable windows in the Premises closed, and lower the blinds when necessary
because of the sun's position, whenever the HVAC System is in
28
operation or when and as reasonably required by any Requirement. Tenant at all
times shall cooperate fully with Landlord and shall abide by the rules and
regulations which Landlord may reasonably prescribe for the proper functioning
and protection of the HVAC System.
Section 11.3 Overtime Freight Elevators and HVAC. The Rent does not
reflect or include any charge to Tenant for the furnishing of any freight
elevator service or HVAC to the Premises during any periods other than for the
hours and days set forth in Sections 11.1 and 11.2 hereof ("Overtime Periods").
Landlord shall not be required to furnish any such services during Overtime
Periods unless Tenant delivers notice to Landlord's property management office
serving the Building requesting such services at least 24 hours prior to the
time at which such services are to be provided, but Landlord shall use
reasonable efforts (without obligation to incur any additional cost) to arrange
such service on such shorter notice as Tenant shall provide. If Landlord
furnishes freight elevator service to the Premises during Overtime Periods,
Tenant shall pay to Landlord Landlord's then established rates for such service
in the Building. Notwithstanding anything to the contrary provided in this
Article 11 on a single weekend during which Tenant initially moves into the
Premises for the conduct of its business, upon 5 days' prior notice from Tenant
to Landlord, Landlord shall make available to Tenant freight elevator service in
accordance with Landlord's then current rules and regulations applicable thereto
from 8:00 p.m. on the "move-in" Friday until 7:00 p.m. on the following Sunday
at no cost to Tenant. If Landlord shall furnish HVAC to the Premises during
Overtime Periods, Tenant shall pay to Landlord Landlord's then established rates
for such service in the Building.
Section 11.4 Cleaning. Landlord shall cause the Premises (excluding any
portions thereof used for the storage, preparation, service or consumption of
food or beverages, as an exhibition area or classroom, for storage, as a
shipping room, mail room or similar purposes, for private bathrooms, showers or
exercise facilities, as a trading floor, or primarily for operation of computer,
data processing, reproduction, duplicating or similar equipment) to be cleaned,
substantially in accordance with the standards set forth in Exhibit E. Any areas
of the Premises requiring cleaning which Landlord is not required to clean under
this Section 11.4, and any additional cleaning of any portion of the Premises
requested by Tenant shall be done at Tenant's expense, by Landlord's employees
or Landlord's contractor, at rates which shall be competitive with rates of
other cleaning contractors providing services to first-class office buildings in
midtown Manhattan. Landlord and its cleaning contractor and their respective
employees shall have access to the Premises at all times except between 8:00 AM.
and 5:30 P.M. on Business Days.
Section 11.5 Water. Landlord, at Landlord's expense, shall provide to
the floor on which the Premises are located cold water for drinking, cleaning
and lavatory purposes. If Tenant requires or uses water or steam for any
additional purposes, Landlord may install a meter to measure the water or steam
furnished. Tenant shall pay the cost of such installation, and for all
maintenance, repairs and replacements thereto, and for the reasonable charges of
Landlord for the water or steam furnished. Tenant shall also pay Landlord's
reasonable
29
charge for any required pumping or heating thereof, and any sewer rent, tax
and/or charge now or hereafter assessed or imposed upon the Premises or the Real
Property pursuant to any Requirement. If any tax is imposed upon Landlord's
receipts from the sale or resale of water or steam to Tenant, Tenant shall
reimburse Landlord for such tax, if and to the extent permitted by law.
Section 11.6 Refuse and Rubbish Removal. Landlord shall provide refuse
and rubbish removal services at the Premises for ordinary office refuse and
rubbish pursuant to regulations reasonably established by Landlord. Tenant shall
pay to Landlord, within 10 Business Days after delivery of an invoice therefor,
Landlord's reasonable charge for such removal to the extent that the refuse
generated by Tenant exceeds the refuse and rubbish customarily generated by
executive and general office tenants. Tenant shall not dispose of any refuse and
rubbish in the public areas of the Building, and if any Tenant Party does so,
Tenant shall be liable for Landlord's reasonable charge for such removal. Tenant
shall cause all Tenant Parties to observe such additional rules and regulations
regarding rubbish removal and/or recycling as Landlord may, from time to time,
reasonably impose.
Section 11.7 Condenser Water. Landlord shall provide condenser water in
connection with Tenant's independent supplemental air-conditioning units, which
shall not exceed 80 tons in the aggregate, of which Tenant may utilize up to 15
tons in the aggregate from 8:00 a.m. to 6:00 p.m. and of which Tenant may
utilize up to 80 tons in the aggregate from 6:00 p.m. to 8:00 a.m., and which
shall be installed in accordance with the provisions of Article 5 hereof. Tenant
shall pay Landlord an annual charge for such condenser water at Landlord's then
established rate for condenser water, which charge is, on the date of this
Lease, $550 per ton which charge shall be payable in equal monthly installments
together with Tenant's payment of Fixed Rent and shall be payable whether or not
Tenant utilizes such amount of condenser water, provided Tenant shall have the
right at any time after the date of this Lease to irrevocably reduce the number
of tons of condenser water to which Tenant is entitled pursuant to this Section
(which is 80 tons on the date hereof) by giving notice of such reduction to
Landlord, whereupon the number of tons to which Tenant shall be entitled
pursuant to the first sentence of this Section shall be reduced as of the date
Landlord shall receive such notice to the lower number of tons specified in such
notice. Tenant shall have no liability to pay the annual charge referred to
above in respect of the number of tons of condenser water given up by Tenant in
accordance with the preceding proviso. Such charge may be increased by Landlord
on each anniversary of the Commencement Date so that it equals (a) the prior
year's charge plus (b) the prior year's charge multiplied by the percentage
increase, if any, in the Consumer Price Index in effect on such anniversary of
the Commencement Date from that in effect on the immediately preceding
anniversary of the Commencement Date (or the Commencement Date in the case of
the one-year anniversary of the Commencement Date), provided, however, that in
no event shall such annual charge, as increased, exceed Landlord's established
rate for condenser water from time to time in effect. If Tenant fails to utilize
any quantity of condenser water for one year or more, Landlord shall have the
right upon notice to Tenant to irrevocably reduce the number of tons
30
of condenser water to which Tenant is entitled hereunder by the number of such
unutilized tons (unless Tenant notifies Landlord within ten days after Tenant's
receipt of such notice from Landlord that it anticipates utilizing a portion or
all of such unutilized tons of condenser water, in which case Landlord shall
only have the right to reduce the number of tons of condenser water to which
Tenant is then entitled by such number as Tenant does not anticipate utilizing,
provided, however, that Landlord shall have the right upon further notice to
Tenant to reduce the number of tons of condenser water to which Tenant is then
entitled by any number of tons of condenser water that Tenant has reserved in
its notice to Landlord if Tenant fails to utilize any such reserved tons prior
to the expiration of the cooling season (i.e., May 1 to September 30) next
following Tenant's receipt of the first notice from Landlord), in which case
Landlord shall only charge Tenant for such lower number of tons of condenser
water. In addition to the foregoing charges there shall be a one-time "tap-in"
fee equal to $1,500 per ton of unit capacity, payable within fifteen (15) days
after rendition of a xxxx therefor. Landlord shall not be liable to Tenant for
any failure or defect in the supply or character of condenser water supplied to
Tenant by reason of any Requirement, act or omission of the public service
company serving the Building or for any other reason not attributable to the
negligence or willful misconduct of Landlord, its agents, contractors and
employees.
Section 11.8 Service Interruptions. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are necessary or appropriate until such Unavoidable Delay,
accident or emergency shall cease or such repairs, alterations or improvements
are completed, and Landlord shall not be liable to Tenant for any interruption,
curtailment or failure to supply services. Landlord shall use reasonable efforts
to restore such service, remedy such situation and minimize any interference
with Tenant's business, provided that Landlord shall have no obligation to
employ contractors or labor at overtime or other premium pay rates, or to incur
any other overtime costs or additional expenses whatsoever. The exercise of any
such right or the occurrence of any such failure by Landlord shall not (a)
constitute an actual or constructive eviction, in whole or in part, (b) except
as expressly provided in Section 11.9, entitle Tenant to any compensation,
abatement or diminution of Rent, (c) relieve Tenant from any of its obligations
under this Lease, or (d) impose any Liability upon Landlord by reason of
inconvenience to Tenant, or interruption of Tenant's business, or otherwise.
Section 11.9 Rent Abatement. Notwithstanding anything to the contrary
contained in this Lease, if Tenant is unable to use 25% or more of the 23rd
Floor Premises or the 24th Floor Premises for the ordinary conduct of Tenant's
business due solely to (a) an interruption of an Essential Service (as
hereinafter defined) resulting from Landlord's performance of an improvement to
the Building or the negligence or willful misconduct of Landlord or (b)
Landlord's breach of an obligation under this Lease to perform repairs or
replacements which results in Landlord's failure to provide an Essential
Service, in each case other than as a result of Unavoidable Delays, casualty or
condemnation, and such condition continues for a
31
period in excess of 10 consecutive Business Days after (i) Tenant furnishes a
notice to Landlord (the "Abatement Notice") stating that Tenant's inability to
use such portion of the 23rd Floor Premises or the 24th Floor Premises is solely
due to such condition, (ii) Tenant does not actually use or occupy such portion
of the 23rd Floor Premises or the 24th Floor Premises during such period for the
ordinary conduct of its business and (iii) such condition has not resulted from
the negligence or misconduct of any Tenant Party, then Fixed Rent, Tenant's Tax
Payment and Tenant's Operating Payment for such affected and unused portion of
the 23rd Floor Premises or the 24th Floor Premises, as the case may be, shall be
abated on a per diem basis for the period commencing on the 11th Business Day
after Tenant delivers the Abatement Notice to Landlord and ending on the earlier
of (x) the date Tenant reoccupies the applicable portion of the 23rd Floor
Premises or the 24th Floor Premises, as the case may be, and (y) the date on
which such condition is substantially remedied. "Essential Service" shall mean a
service which Landlord is obligated under this Lease to provide to Tenant which
if not provided shall (1) effectively deny access to the Premises, (2) threaten
the health or safety of any occupants of the Premises or (3) prevent or
materially and adversely restrict the usage of more than 25% of the 23rd Floor
Premises or the 24th Floor Premises, as the case may be, for the ordinary
conduct of Tenant's business.
ARTICLE 12
INSURANCE: PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 12.1 Tenant's Insurance. (a) Tenant, at its expense, shall
obtain and keep in full force and effect during the Term and prior to having
access to the Premises:
(i) a policy of commercial general liability insurance on an
occurrence basis against claims for personal injury, death and/or
property damage occurring in or about the Premises or the Building,
under which Tenant is named as the insured and Landlord, Landlord's
managing agent, any Lessors, any Mortgagees and any other parties whose
names shall have been furnished by Landlord to Tenant from time to time
are named as additional insureds, which insurance shall provide primary
coverage without contribution from any other insurance carried by or
for the benefit of Landlord, Landlord's managing agent or any Lessors
or Mortgagees named as additional insureds, and Tenant agrees to obtain
contractual liability coverage to insure its indemnity obligations set
forth in Article 32 hereof. The minimum limits of liability applying
exclusively to the Premises shall be a combined single limit with
respect to each occurrence and in the aggregate in an amount of not
less than $10,000,000; provided, however, that Landlord shall retain
the right to require Tenant to increase such coverage, from time to
time, to that amount of insurance which in Landlord's reasonable
judgment is then being customarily required by landlords for similar
office space in first-class buildings in the City of New York. The
deductible or self insured retention for such policy shall in no event
exceed $10,000 per
32
occurrence at any time. If the aggregate limit applying to the Premises
is reduced by the payment of a claim or establishment of a reserve
equal to or greater than 50% of the annual aggregate, Tenant shall
immediately arrange to have the aggregate limit restored by endorsement
to the existing policy or the purchase of an additional insurance
policy unless, in Landlord's reasonable judgment, Tenant maintains
sufficient excess liability insurance (with a drop down endorsement) to
satisfy the liability requirements of this Lease without the
reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and such other
risks and hazards as are insurable under then available standard forms
of "all risk" property insurance policies with extended coverage,
insuring Tenant's Property, and all Specialty Alterations for the full
insurable value thereof or replacement cost value thereof, having a
deductible amount, if any, as reasonably determined by Landlord;
(iii) during the performance of any Alteration, until
completion thereof, Builder's risk insurance on an "all risk" basis and
on a completed value form including a Permission to Complete and Occupy
endorsement, for full replacement value covering the interest of
Landlord and Tenant (and their respective contractors and
subcontractors), any Mortgagee and any Lessor in all work incorporated
in the Building and all materials and equipment in or about the
Premises;
(iv) Workers' Compensation Insurance, as required by law;
(v) Business Interruption Insurance; and
(vi) such other insurance in such amounts as Landlord, any
Mortgagee and/or any Lessor may reasonably require from time to time.
(b) All insurance required to be carried by Tenant pursuant to the
terms of this Lease (i) shall contain a provision that (A) no act or omission of
Tenant other than intentional acts shall affect or limit the obligation of the
insurance company to pay the amount of any loss sustained, (B) the policy shall
be noncancellable and/or no material change in coverage shall be made thereto
unless Landlord, Lessors and Mortgagees shall have received 30 days' prior
notice of the same, by certified mail, return receipt requested, and (C) Tenant
shall be solely responsible for the payment of all premiums under such policies
and Landlord, Lessors and Mortgagees shall have no obligation for the payment
thereof, and (ii) shall be effected under valid and enforceable policies issued
by reputable and independent insurers permitted to do business in the State of
New York and rated in Best's Insurance Guide, or any successor thereto (or if
there be none, an organization having a national reputation) as having a Best's
Rating of "A-" and a "Financial Size Category" of at least "X" or, if such
ratings are not then in effect, the equivalent thereof or such other financial
rating as Landlord may at any time consider appropriate.
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(c) On or prior to the Commencement Date, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried by each party pursuant to this Article 12.
Evidence of each renewal or replacement of a policy shall be delivered by Tenant
to Landlord at least 10 days prior to the expiration of such policy. In lieu of
the policies of insurance required to be delivered to Landlord pursuant to this
Article (the "Policies"), Tenant may deliver to Landlord a certification from
Tenant's insurance company (on the form currently designated "Xxxxx 27", or the
equivalent, rather than on the form currently designated "Xxxxx 25-S", or the
equivalent) which shall be binding on Tenant's insurance company, and which
shall expressly provide that such certification (i) conveys to Landlord and any
other named insured and/or additional insureds there under (the "Insured
Parties") all the rights and privileges afforded under the applicable Policies
as primary insurance, and (ii) contains an unconditional obligation of the
insurance company to advise all Insured Parties in writing by certified mail,
return receipt requested, at least 30 days in advance of any termination or
change to the applicable Policies that would affect the interest of any of the
Insured Parties.
Section 12.2 Waiver of Subrogation. Landlord and Tenant shall each
procure an appropriate clause in or endorsement to any property insurance
covering the Premises, the Building and personal property, fixtures and
equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery, and Landlord and Tenant
agree not to make any claim against, or seek to recover from, the other for any
loss or damage to its property or the property of others resulting from fire and
other hazards to the extent covered by such property insurance; provided,
however, that the release, discharge, exoneration and covenant not to xxx
contained herein shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation or waiver of right of recovery. If the
payment of an additional premium is required for the inclusion of, or consent
to, a waiver of subrogation, each party shall advise the other, in writing, of
the amount of any such additional premiums attributable to the other party's
waiver and the other party may pay such additional premium. If such other party
shall not elect to pay such additional premium, then the first party shall not
be required to obtain such waiver of subrogation or consent to waiver. Tenant
acknowledges that Landlord shall not carry insurance on, and shall not be
responsible for, (a) damage to any Specialty Alterations, (b) Tenant's Property,
and (c) any loss suffered by Tenant due to interruption of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
Section 13.1 Restoration. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord,
34
at its expense, to substantially the condition of the Premises prior to the
damage, subject to the provisions of any Mortgage or Superior Lease, but
Landlord shall have no obligation to repair or restore (a) Tenant's Property or
(b) any Specialty Alterations. Until such time as the restoration of the
Premises is Substantially Completed or would have been Substantially Completed
but for Tenant Delay, Fixed Rent, Tenant's Tax Payment and Tenant's Operating
Payment shall be reduced in the proportion by which the area of the part of the
Premises (excluding any portion thereof used principally for storage) which is
not usable (or accessible) and is not used by Tenant bears to the total area of
the Premises (excluding any such portion).
Section 13.2 Landlord's Termination Right. Notwithstanding anything to
the contrary contained in Section 13.1, if the Premises are totally damaged or
are rendered wholly untenantable, or if the Building is so damaged that in
Landlord's opinion, substantial alteration, demolition, or reconstruction of the
Building is required (whether or not the Premises are so damaged or rendered
untenantable), then in either of such events, Landlord may, not later than 60
days following the date of the damage, give Tenant a notice terminating this
Lease, provided that if the Premises are not damaged, Landlord may not terminate
this Lease unless Landlord similarly terminates the leases of other office
tenants in the Building aggregating at least 50% of the portion of the Building
occupied for office purposes immediately prior to such damage. If this Lease is
so terminated, (i) the Term shall expire upon the date set forth in Landlord's
notice, which shall not be less than 30 days after such notice is given, and
Tenant shall vacate the Premises and surrender the same to Landlord no later
than the date set forth in the notice, (ii) Tenant's liability for Rent shall
cease as of the date of the damage, and (iii) any prepaid Rent for any period
after the date of the damage shall be refunded by Landlord to Tenant.
Section 13.3 Tenant's Termination Right. If the Premises are totally
damaged and are thereby rendered wholly untenantable, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice (the "Restoration Notice") to Tenant of the date by
which such contractor or architect estimates the restoration of the Premises
shall be Substantially Completed. If such date, as set forth the Restoration
Notice, is more than 15 months from the date of such damage, then Tenant shall
have the right to terminate this Lease by giving notice (the "Termination
Notice") to Landlord not later than 30 days following Tenant's receipt of the
Restoration Notice. If Tenant delivers to Landlord a Termination Notice, this
Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice, in the manner set forth in the second sentence of Section
13.2.
Section 13.4 Final 18 Months. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 18 months of the Term, either
Landlord or Tenant may terminate this
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Lease by notice to the other party within 30 days after the occurrence of such
damage and this Lease shall expire on the 30th day after the date of such
notice. For purposes of this Section 13.4, the Premises shall be deemed wholly
untenantable if due to such damage, Tenant shall be precluded from using more
than 50% of the Premises for the conduct of its business and Tenant's inability
to so use the Premises is reasonably expected to continue until at least the
earlier of the (a) Expiration Date and (b) the 90th day after the date when such
damage occurs.
Section 13.5 Waiver of Real Property Law 227. This Article 13
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, which provides for such contingency
in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.
Section 13.6 Landlord's Liability. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
any of the Indemnitees shall be liable for any damage to such property, or for
the loss of or damage to any property of Tenant by theft or otherwise. None of
the Indemnitees shall be liable for any injury or damage to persons or property
or interruption of Tenant's business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by construction of
any private, public or quasi-public work, or any latent defect in the Premises
or in the Building (except that Landlord shall be required to repair the same to
the extent provided in Article 7). No penalty shall accrue for delays which may
arise by reason of adjustment of fire insurance on the part of Landlord or
Tenant, or Unavoidable Delays, in connection with any repair or restoration of
any portion of the Premises or of the Building. Landlord shall use reasonable
efforts to minimize interference with Tenant's use and occupancy of the Premises
during the performance of any such repair or restoration, provided, however,
that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. Nothing in this Section 13.6 shall affect any
right of Landlord to be indemnified by Tenant under Article 32 for payments made
to compensate for losses of third parties.
Section 13.7 Windows. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent, nor shall the same
release Tenant from its obligations hereunder or constitute an actual or
constructive eviction.
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ARTICLE 14
EMINENT DOMAIN
Section 14.1 (a) Total Taking. If all or substantially all of the
Premises, the Building or the Real Property shall be acquired or condemned for
any public or quasi-public purpose, this Lease shall terminate and the Term
shall end as of the date of the vesting of title, with the same effect as if
such date were the Expiration Date, and Rent shall be prorated and adjusted as
of such date.
(b) Partial Taking. If only a part of the Premises, the Building or
the Real Property shall be acquired or condemned, this Lease and the Term shall
continue in full force and effect, provided that from and after the date of the
vesting of title, the Fixed Rent, Tenant's Tax Payment, Tenant's Operating
Payment and Tenant's Proportionate Share shall be modified to reflect the
reduction of the Premises and/or the Building as a result of such acquisition or
condemnation.
(c) Landlord's Termination Right. Whether or not the Premises are
affected, Landlord may give to Tenant, within 60 days following the date upon
which Landlord receives notice that all or a portion of the Building or the Real
Property has been acquired or condemned, a notice of termination of this Lease,
provided that Landlord elects to terminate leases (including this Lease)
affecting at least 50% of the portion of the Building occupied for office
purposes immediately prior to such acquisition or condemnation (excluding any
rentable area leased by Landlord or its Affiliates) located in the elevator bank
servicing the Premises.
(d) Tenant's Termination Right. If the part of the Building or the
Real Property so acquired or condemned contains a substantial part of the total
area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant may terminate this Lease by
notice to Landlord given within 60 days following the date upon which Tenant
received notice of such acquisition or condemnation. If Tenant so notifies
Landlord, this Lease shall terminate and the Term shall end and expire upon the
date set forth in the notice, which date shall not be more than 30 days
following the giving of such notice. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated in
accordance with this Section 14.1 Landlord, at Landlord's expense, but without
requiring Landlord to spend more than it collects as an award, shall, subject to
the provisions of any Mortgage or Superior Lease, restore that part of the
Premises not so acquired or condemned to a self-contained rental unit
substantially equivalent (with respect to character, quality, appearance and
services) to that which existed immediately prior to such acquisition or
condemnation, excluding Tenant's Property and/or Specialty Alterations.
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(e) Apportionment of Rent. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Fixed Rent and payments for Taxes
and Operating Expenses shall be apportioned as of, and shall be paid or refunded
up to and including, the date of such termination.
(f) Applicability. The provisions of Sections 14.1 and 14.2 shall
not apply to any acquisition or condemnation of all or any part of the Premises
for a period of 18 months or less.
Section 14.2 Awards. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
Section 14.3 Temporary Taking. Notwithstanding the provisions of
Section 14.1, if all or any part of the Premises is acquired or condemned
temporarily for a period of 18 months or less during the Term for any public or
quasi-public use or purpose, Tenant shall give prompt notice to Landlord and the
Term shall not be reduced or affected in any way and Tenant shall continue to
pay all Rent payable by Tenant without reduction or abatement and to perform all
of its other obligations under this Lease, except to the extent prevented from
doing so by the condemning authority, and Tenant shall be entitled to receive
any award or payment from the condemning authority for such use, which award
shall be received, held and applied by Tenant as a trust fund for payment of the
Rent falling due, provided that if the acquisition or condemnation is for a
period extending beyond the Term, such award shall be apportioned between
Landlord and Tenant and Landlord shall receive the portion of such award
relating to the period after the Term. If the acquisition or condemnation of all
or any part of the Premises is for a period of more than 18 months, the
provisions of Sections 14.1 and 14.2 shall apply.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Section 15.1 (a) No Assignment or Subletting. Except as expressly set
forth herein, Tenant shall not assign, mortgage, pledge, encumber, or otherwise
transfer this Lease, whether by operation of law or otherwise, and shall not
sublet (or underlet), or permit, or suffer the Premises or any part thereof to
be used or occupied by others (whether for desk
38
space, mailing privileges or otherwise), without Landlord's prior consent in
each instance. Any assignment, sublease, mortgage, pledge, encumbrance or
transfer in contravention of the provisions of this Article 15 shall be void.
(b) Collection of Rent. If, without Landlord's consent, this Lease
is assigned, or any part of the Premises is sublet or occupied by anyone other
than Tenant or this Lease or the Premises or any of Tenant's Property is
encumbered (by operation of law or otherwise), Landlord may collect rent from
the assignee, subtenant or occupant, and apply the net amount collected to the
Rent herein reserved. No such collection of rent shall be deemed to be (i) a
waiver of the provisions of this Article 15, (ii) an acceptance of the assignee,
subtenant or occupant as tenant, or (iii) a release of Tenant from the
performance of Tenant's covenants hereunder. Tenant shall remain fully liable
for the obligations under this Lease.
(c) Further Assignment/Subletting. Landlord's consent to any
assignment or subletting shall not relieve Tenant from the obligation to obtain
Landlord's express consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
any portion of its sublet space, or otherwise suffer or permit any portion of
the sublet space to be used or occupied by others without Landlord's consent,
which consent, with respect to one further subletting by the subtenant, shall be
granted or withheld by Landlord in accordance with the requirements of this
Article.
Section 15.2 Tenant's Notice. (a) If Tenant desires to assign this
Lease or sublet all or any portion of the Premises, Tenant shall give notice
thereof to Landlord, which shall be accompanied by (i) with respect to an
assignment of this Lease, the date Tenant desires the assignment to be
effective, and (ii) with respect to a sublet of all or a part of the Premises,
(A) the material business terms on which Tenant would sublet such premises, and
(B) a description of the portion of the Premises to be sublet. Such notice shall
be deemed an irrevocable offer from Tenant to Landlord whereby Landlord (or
Landlord's designee) shall be granted the right, at Landlord's option, (1) to
terminate this Lease with respect to such space as Tenant proposes to sublease,
provided the term of the proposed sublease expires less than 18 months before
the Expiration Date, upon the terms and conditions hereinafter set forth, or (2)
if the proposed transaction is an assignment of this Lease or a subletting of
75% or more of the rentable square footage of the Premises expiring less than 18
months before the Expiration Date, to terminate this Lease with respect to the
entire Premises. Such option may be exercised by notice from Landlord to Tenant
within 45 days after Landlord's receipt of Tenant's notice.
(b) Notwithstanding any provision contained in this Article 15 to
the contrary, Tenant named herein shall have the right to sublet one or more
portions of the 24th Floor Premises prior to Tenant's initial occupancy thereof
for the conduct of its business, in each case, without any obligation to comply
with the provisions of Section 15.2(a). Such subleases by Tenant shall not be
subject to Landlord's right to terminate this Lease or Landlord's right to
sublease such space from Tenant pursuant to Sections 15.2 and
39
15.4 hereof, as the case may be, or the provisions of Section 15.8 for the first
3 years of the term of any such sublease but shall be subject to Landlord's
consent under Section 15.5 and the other provisions of this Article.
Section 15.3 Landlord's Termination. If Landlord exercises its option
to terminate all or a portion of this Lease pursuant to Section 15.2: (a) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence
or, in the absence of such date, a date designated by Landlord, (b) Fixed Rent
and Tenant's payments for Taxes and Operating Expenses shall be apportioned,
paid or refunded as of such date, (c) Tenant, upon Landlord's request, shall
enter into an amendment of this Lease ratifying and confirming such total or
partial termination, and setting forth any appropriate modifications to the
terms and provisions hereof, (d) Landlord shall be free to lease the Premises
(or any part thereof) to Tenant's prospective assignee or subtenant and (e) if
this Lease shall end with respect to a portion of the Premises, Tenant shall, at
Tenant's sole cost and expense, separately demise such portion of the Premises,
and make available all utility services so as to make such portion of the
Premises a self- contained rental unit satisfactory in all respects to Landlord
and in compliance with all Requirements.
Section 15.4 (a) Landlord's Leaseback. If Landlord receives a notice
from Tenant as described in Section 15.2, Landlord or its designee may, at its
option, in lieu of exercising the option to terminate described in Section 15.2,
sublease from Tenant the space described in Tenant's notice (or, if the space
described in Tenant's notice constitutes 75 percent or more of the rentable
square footage contained in the Premises, Landlord may sublease from Tenant the
entire Premises) (such space being hereafter referred to as the "Leaseback
Space"). If Landlord exercises its option to sublet the Leaseback Space, such
sublease to Landlord or its designee (as subtenant) shall be at a rental rate
equal to the product of the lesser of (A) the rent per rentable square foot
(including Fixed Rent and Additional Rent) then payable pursuant to this Lease,
and (B) the rent per rentable square foot set forth in the proposed sublease,
multiplied by the rentable square foot area of the Leaseback Space; shall be for
the same term as that of the proposed subletting; and shall:
(i) be expressly subject to all of the covenants, terms and
conditions of this Lease except such as are irrelevant or inapplicable,
and except as expressly set forth in this Article 15 to the contrary;
(ii) give the subtenant the unqualified and unrestricted
right, without Tenant's consent, to assign such sublease or any
interest therein and/or to sublet all or any portion of the space
covered by such sublease and to make alterations and improvements in
the space covered by such sublease, and if the proposed sublease will
result in all or substantially all of the Premises being sublet, grant
Landlord or its designee the option to extend the term of such sublease
for the balance of the Term of this Lease less one day;
40
(iii) provide that any assignee or further subtenant of
Landlord or its designee, may, at Landlord's option, be permitted to
make alterations and decorations in such space and that any or all of
such alterations, decorations and installations may be removed by such
assignee or subtenant, at its option, prior to or upon the expiration
or other termination of such sublease, provided that such assignee or
subtenant shall, at its expense, repair any damage caused by such
removal; and
(iv) provide that (A) the parties to such sublease expressly
negate any intention that the sublease estate be merged with any other
estate held by either of such parties, (B) any assignment or sublease
by Landlord or its designee (as the subtenant) may be for any purpose
or purposes that Landlord, in its sole discretion, shall deem
appropriate, (C) Tenant shall, at its sole cost and expense, at all
times provide and permit reasonably appropriate means of ingress to and
egress from such space so sublet by Tenant to Landlord or its designee,
(D) Landlord may, at Tenant's expense, make such alterations as may be
required or deemed necessary by Landlord to physically separate the
Leaseback Space from the balance of the Premises and to comply with any
Requirements or insurance requirements relating to such separation, and
(E) at the expiration of the term of such sublease, Tenant will accept
the Leaseback Space in its then existing condition, subject to the
obligations of the subtenant to make such repairs as may be necessary
to preserve such premises in good order and condition.
(b) Obligations Re: Leaseback Space. If Landlord exercises its
option to sublet the Leaseback Space:
(i) Performance by Landlord, or its designee, under a sublease
of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this Lease and Tenant shall not be liable for
any default under this Lease or deemed to be in default hereunder if
such default is occasioned by or arises from any act or omission of the
subtenant pursuant such sublease; or
(ii) Tenant shall have no obligation, at the expiration or
earlier termination of the Term, to remove any alteration, installation
or improvement made in the Leaseback Space by Landlord (or Landlord's
designee); and
(iii) Any consent required of Tenant, as Landlord under the
sublease, shall be deemed granted if consent with respect thereto is
granted by Landlord under this Lease, and any failure of Landlord (or
its designee) to comply with the provisions of the sublease other than
with respect to the payment of Rent shall not constitute a default
thereunder or hereunder if Landlord shall have consented to such
non-compliance.
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Section 15.5 Conditions to Assignment/Subletting. (a) If Landlord does not
exercise any of Landlord's options provided under Sections 15.2 and 15.4, and
provided that no Event of Default then exists, Landlord's consent to the
proposed assignment or subletting shall not be unreasonably withheld or delayed.
Such consent shall be granted or denied, as the case may be, within 25 days
after Landlord's receipt of the following (and such consent shall be deemed
granted if Landlord fails to respond to a request for consent containing the
required information and such failure to respond continues for more than 5
Business Days after receipt of a second notice to Landlord, which second notice
may not be given prior to the 25th day after delivery by Tenant to Landlord of
the initial notice requesting consent; any denial to be accompanied by a
statement setting forth in reasonable detail the reasons for such denial) (i) a
true and complete statement reasonably detailing the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (ii) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial statements, and (iii)
any other information Landlord may reasonably request, provided that:
(A) in Landlord's reasonable judgment, the proposed assignee
or subtenant is engaged in a business or activity, and the Premises
will be used in a manner, which (1) is in keeping with the then
standards of the Building, (2) limits the use of the Premises to
general and executive offices, and (3) does not violate any
restrictions set forth in this Lease, any Mortgage or Superior Lease or
any negative covenant as to use of the Premises required by any other
lease in the Building;
(B) the proposed assignee or subtenant is a reputable Person
or entity of good character with sufficient financial means to perform
all of its obligations under this Lease or the sublease, as the case
may be, and Landlord has been furnished with reasonable proof thereof,
and Landlord or any Affiliate of Landlord is not litigating against or
has been threatened with litigation by such proposed assignee of
subtenant or its Affiliates within the prior 12 months;
(C) if Landlord has, or reasonably expects to have within six
months thereafter, comparable space available in the Building, neither
the proposed assignee or subtenant nor any Affiliate of the proposed
assignee or subtenant is then an occupant of the Building;
(D) the proposed assignee or subtenant is not a Person or
entity (or Affiliate of a Person or entity) with whom Landlord or
Landlord's Agent is then, or has been within the prior six months,
negotiating in connection with the rental of comparable space available
in the Building;
(E) there shall be not more than 2 occupants of the 23rd Floor
Premises and not more than 2 occupants of the 24th Floor Premises;
42
(F) the aggregate consideration to be paid by the proposed
subtenant under the terms of the proposed sublease shall not be less
than 80% of the aggregate fixed rent and additional rent at which
Landlord is then leasing other space in the Building (the "Market
Rent"). determined as though the Premises were vacant and in their then
"as is" condition. and taking into account (x) the length of the term
of the proposed sublease, and (y) the location of the Premises in the
Building;
(G) Tenant shall, upon demand, reimburse Landlord for all
expenses incurred by Landlord in connection with such assignment or
sublease, including any investigations as to the acceptability of the
proposed assignee or subtenant, reviewing any plans and specifications
for Alterations proposed to be made in connection therewith, and all
legal costs reasonably incurred in connection with the granting of any
requested consent;
(H) Tenant has not and shall not (A) publicize the
availability of the Premises, or (B) list the Premises to be sublet or
assigned with a broker, agent or other entity or otherwise offer the
Premises, in both cases, for subletting at a rental rate of less than
the Market Rent;
(I) if the proposed subtenant or assignee is an entity
organized under the laws of any jurisdiction other than the United
States or any state thereof, or is not a United States citizen, if an
individual, such Person shall waive any immunity to which it may
entitled, and shall be subject to the service of process in, and the
jurisdiction of the courts of, the City and State of New York; and
(J) in Landlord's reasonable judgment, the proposed assignee
or subtenant shall not be of a type or character, or engaged in a
business or activity, or owned or controlled by or identified with any
entity, which may result in protests or civil disorders or commotions
at, or other disruptions of the normal business activities in, the
Building.
(b) With respect to each and every subletting and/or assignment
authorized by Landlord under the provisions of this Lease, it is further agreed
that:
(i) the form of the proposed assignment or sublease shall be
reasonably satisfactory to Landlord and shall comply with the
provisions of this Article;
(ii) no sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(iii) no sublease shall be delivered to any subtenant, and no
subtenant shall take possession of any part of the Premises, until an
executed counterpart of such
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sublease has been delivered to Landlord and approved by Landlord as provided in
Section 15.5(a);
(iv) if an Event of Default shall occur at any time prior to
the effective date of such assignment or subletting, then, until such
Event of Default is no longer continuing, Landlord's consent thereto,
if previously granted, shall be immediately deemed revoked without
further notice to Tenant, and if such assignment or subletting would
have been permitted without Landlord's consent pursuant to Section
15.9, such permission shall be void and without force and effect, and
in either such case, any such assignment or subletting shall constitute
a further Event of Default hereunder; and
(v) each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be
subordinate, it being the intention of Landlord and Tenant that Tenant
shall assume and be liable to Landlord for any and all acts and
omissions of all subtenants and anyone claiming under or through any
subtenants which, if performed or omitted by Tenant, would be a default
under this Lease; and Tenant and each subtenant shall be deemed to have
agreed that upon the occurrence and during the continuation of an Event
of Default hereunder, Tenant has hereby assigned to Landlord, and
Landlord may, at its option, accept such assignment of, all right,
title and interest of Tenant as sublandlord under such sublease,
together with all modifications, extensions and renewals thereof then
in effect, and such subtenant shall, at Landlord's option and upon
notice from Landlord, attorn to Landlord pursuant to the then executory
provisions of this Lease other than the monetary terms of this Lease,
which monetary terms shall be governed by the terms of such sublease,
except that Landlord shall not be (A) liable for any previous act or
omission of Tenant under such sublease, (B) subject to any
counterclaim, offset or defense, which theretofore accrued to such
subtenant against Tenant, (C) bound by any previous modification of
such sublease not consented to by Landlord, or by any prepayment of
more than one month's rent and additional rent under such sublease, (D)
bound to return such subtenant's security deposit, if any, except to
the extent that Landlord shall receive actual possession of such
deposit and such subtenant shall be entitled to the return of all or
any portion of such deposit under the terms of its sublease, or (E)
obligated to make any payment to or on behalf of such subtenant, or to
perform any work in the subleased space or the Building, or in any way
to prepare the subleased space for occupancy, beyond Landlord's
obligations under this Lease. The provisions of this Section 15.5(b)(v)
shall be self-operative, and no further instrument shall be required to
give effect to this provision, provided that the subtenant shall
execute and deliver to Landlord any instruments Landlord may reasonably
request to evidence and confirm such subordination and attornment.
Section 15.6 Binding on Tenant; Indemnification of Landlord.
Notwithstanding any assignment or subletting or any acceptance of Rent by
Landlord from any assignee or
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subtenant, Tenant shall remain fully liable for the payment of all Rent due and
for the performance of all other terms, covenants and conditions contained in
this Lease on Tenant's part to be observed and performed, and any default under
any term, covenant or condition of this Lease by any subtenant or assignee or
anyone claiming under or through any subtenant or assignee shall be deemed to be
a default under this Lease by Tenant. Tenant shall indemnify, defend, protect
and hold harmless Landlord from and against any and all Losses (as defined in
Section 32.1(b)) resulting from any claims that may be made against Landlord by
the proposed assignee or subtenant or anyone claiming under or through any
subtenant or by any brokers or other Persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease,
irrespective of whether Landlord shall give or decline to give its consent to
any proposed assignment or sublease, or if Landlord shall exercise any of its
options under this Article 15.
Section 15.7 Tenant's Failure to Complete. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 90 days after the giving of such
consent or the economic terms of such sublease in the aggregate are less than
95% of the value of the economic terms proposed to Landlord pursuant to Section
15.2, then Tenant shall again comply with all of the provisions and conditions
of Sections 15.2, 15.4 and 15.5 hereof before assigning this Lease or subletting
all or part of the Premises.
Section 15.8 Profits. If Tenant shall enter into any assignment or
sublease permitted hereunder or consented to by Landlord, Tenant shall, within
60 days of Landlord's consent to such assignment or sublease, deliver to
Landlord a complete list of Tenant's reasonable third-party brokerage fees,
legal fees and architectural fees, work allowances or costs of improvements
performed by Tenant in connection with such assignment or sublease and
reasonable rent concessions ("Tenant's Expenses") paid or to be paid in
connection with such transaction, together with a list of all of Tenant's
Property to be transferred to such assignee or sublessee. Tenant shall deliver
to Landlord evidence of the payment of such fees promptly after the same are
paid. In consideration of such assignment or subletting, Tenant shall pay to
Landlord:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to 50% of all sums and other consideration paid to
Tenant by the assignee for or by reason of such assignment (including sums paid
for the sale or rental of Tenant's Property, less, in the case of a sale
thereof, the then fair market value thereof, as reasonably determined by
Landlord) after first deducting Tenant's Expenses in connection with such
transaction; or
(b) In the case of a sublease, 50% of any consideration payable
under the sublease to Tenant by the subtenant which exceeds on a per square foot
basis the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (together with any sums paid for the
sale or rental of Tenant's Property, less, in the
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case of the sale thereof, the then fair market value thereof, as reasonably
determined by Landlord) after first deducting therefrom Tenant's Expenses in
connection with such transaction (e.g., if (x) Tenant's Fixed Rent under this
Lease is $100 per annum for the area subleased, (y) Tenant is receiving as fixed
rent $110 per annum under the sublease in question and (z) Tenant has incurred
Tenant Expenses of $30 in connection with the sublease, then Tenant would not
owe Landlord any portion of its profit for the first 3 years of the sublease
until Tenant had recouped the $30), and if such sublease is less than the entire
Premises, the actual cost incurred by Tenant in separately demising the
subleased space. The sums payable under this clause shall be paid by Tenant to
Landlord as and when paid by the subtenant to Tenant.
Section 15.9 (a) Transfers. If Tenant is a corporation, the transfer by
one or more transfers, directly or indirectly, by operation of law or otherwise,
of a majority of the stock of Tenant shall be deemed a voluntary assignment of
this Lease; provided, however, that the provisions of this Article 15 shall not
apply to the transfer of shares of stock of Tenant if and so long as Tenant is
publicly traded on a nationally recognized stock exchange. For purposes of this
Section 15.9 the term "transfers" shall be deemed to include the issuance of new
stock or of treasury stock which results in a majority of the stock of Tenant
being held by a Person or Persons that do not hold a majority of the stock of
Tenant on the date hereof. If Tenant is a partnership, the transfer by one or
more transfers, directly or indirectly, by operation of law or otherwise, of a
majority interest in the partnership or otherwise in violation of the provision
of Section 29.2 shall be deemed a voluntary assignment of this Lease. If Tenant
is a limited liability company, trust, or any other legal entity (including a
corporation or a partnership), the transfer by one or more transfers, directly
or indirectly, of Control of such entity, however characterized, shall be deemed
a voluntary assignment of this Lease. The provisions of Section 15.1 shall not
apply to transactions with an entity into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred so
long as (i) such transfer was made for a legitimate independent business purpose
and not for the purpose of transferring this Lease, (ii) the successor to Tenant
has a net worth computed in accordance with generally accepted accounting
principles at least equal to the net worth of the original Tenant on the date of
this Lease, and (iii) proof satisfactory to Landlord of such net worth is
delivered to Landlord at least 10 days after the effective date of any such
transaction. Tenant may also, upon prior notice to and without the consent of
Landlord, permit any Person which Controls, is Controlled by, or is under common
Control with the original Tenant named herein (a "Related Entity") to sublet all
or part of the Premises for any Permitted Use for so long as such Person remains
a Related Entity, provided the Related Entity is in Landlord's reasonable
judgment of a character and engaged in a business which is in keeping with the
standards for the Building and the occupancy thereof. Such sublease shall not be
deemed to vest in any such Related Entity any right or interest in this Lease or
the Premises nor shall it relieve, release, impair or discharge any of Tenant's
obligations hereunder. The provisions of Sections 15.1, 15.2, 15.5(a) and 15.8
shall not apply to any such sublease.
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(b) Applicability. The limitations set forth in this Section 15.9
shall apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any,
and any transfer by any such entity in violation of this Section 15.9 shall be a
transfer in violation of Section 15.1.
(c) Modifications, Takeover Agreements. Any modification, amendment
or extension of a sublease and/or any other agreement by which a landlord (or
its affiliate) of a building other than the Building agrees to assume or perform
the obligations of Tenant under this Lease shall be deemed a sublease for the
purposes of Section 15.1, hereof.
Section 15.10 Assumption of Obligations. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord (a) an agreement in
form and substance satisfactory to Landlord whereby the assignee (i) assumes
Tenant's obligations under this Lease and (ii) agrees that. notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers and (b) certificates
or policies of insurance as required under Article 12.
Section 15.11 Tenant's Liability. The joint and several liability of
Tenant and any successors-in-interest of Tenant and the due performance of
Tenant's obligations under this Lease shall not be discharged, released or
impaired by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any
grantee or assignee of Landlord, to enforce any of the terms and provisions of
this Lease.
Section 15.12 Listings in Building Directory. The listing of any name
other than that of Tenant on the doors of the Premises, the Building directory
or elsewhere shall not vest any right or interest in this Lease or in the
Premises, nor be deemed to constitute Landlord's consent to any assignment or
transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such listing shall constitute a privilege
revocable in Landlord's discretion by notice to Tenant.
Section 15.13 Lease Disaffirmance or Rejection. If at any time after an
assignment by Tenant named herein, this Lease is not affirmed or rejected in any
proceeding of the types described in Sections 18.1(f) and (g) hereof or any
similar proceeding, or upon a termination of this Lease due to any such
proceeding, Tenant named herein, upon request of Landlord given within 30 days
after such disaffirmance, rejection or termination (and actual notice thereof to
Landlord in the event of a disaffirmance or rejection or in the event of
termination other than by act of Landlord), shall (a) pay to Landlord all Rent
and other charges due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (b)
as "tenant," enter into a new lease of the Premises with Landlord for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, unless sooner terminated in
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accordance therewith, at the same Rent and upon the then executory terms,
covenants and conditions contained in this Lease, except that (i) the rights of
Tenant named herein under the new lease shall be subject to the possessory
rights of any Persons claiming through or under such assignee or by virtue of
any statute or of any order of any court, (ii) such new lease shall require all
defaults existing under this Lease to be cured by Tenant named herein with due
diligence, and (iii) such new lease shall require Tenant named herein to pay all
Rent which, had this Lease not been so disaffirmed, rejected or terminated,
would have become due under the provisions of this Lease after the date of such
disaffirmance, rejection or termination with respect to any period prior
thereto. If Tenant named herein defaults in its obligations to enter into such
new lease for a period of 10 days after Landlord's request, then, in addition to
all other rights and remedies by reason of default, either at law or in equity,
Landlord shall have the same rights and remedies against Tenant named herein as
if it had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of Tenants default
there under.
Section 15.14 Permitted Users. (a) Tenant has advised Landlord that
Xxxxxx Street Capital LLC ("Xxxxxx") and one or more other Persons, who are
clients of Tenant or with whom Tenant has a substantial continuing business
relationship (each a "Permitted User") may from time to time be using space in
the Premises. Notwithstanding anything to the contrary in this Article 15 each
Permitted User shall be allowed such use, without Landlord's consent, but upon
prior notice to Landlord, upon the following conditions: (i) Landlord or Tishman
Speyer Properties L.P. or its successor shall not be litigating against such
proposed Permitted User within the prior 12 months, (ii) the Permitted User
shall not be entitled, directly or indirectly, to diplomatic or sovereign
immunity and shall be subject to service of process in, and the jurisdiction of
the court of, the State of New York, (iii) the total number of Permitted Users
using desk space pursuant to this Section 15.14 shall not exceed 5 at any one
time, (iv) the aggregate number of rentable square feet used by all Permitted
Users (which term shall exclude Xxxxxx for the purposes of this clause as long
as (x) Tenant retains at least the same ownership interest in Xxxxxx as Tenant
has on the date hereof and (y) all Permitted Users at no time occupy more than
7,000 rentable square feet) at anyone time shall not exceed 5,000 rentable
square feet, and (v) Tenant shall receive no rent, payment or other
consideration in connection with such occupancy in respect of such space other
than nominal rent payments (in no event greater per rentable square foot than
the Fixed Rent, Tenant's Operating Payment and Tenant's Tax Payment payable
hereunder per rentable square foot) or other consideration for actual services
rendered or provided by or for such occupant.
(b) With respect to each and every Permitted User, the following
shall apply: (i) each Permitted User shall have no privity of contract with
Landlord and therefore shall have no rights under this Lease, and Landlord shall
have no liability or obligation to the Permitted User under this Lease for any
reason whatsoever in connection with such use or occupancy, which use and
occupancy shall be subject and subordinate to this Lease (including, without
limitation, Article 10), (ii) each Permitted User shall use the Premises in
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conformity with all applicable provisions of this Lease, including Article 3,
and (iii) Tenant shall be liable for the acts of such Permitted User in the
Premises.
ARTICLE 16
ELECTRICITY
Section 16.1 Electricity. Landlord shall redistribute or furnish
electricity to or for the use of Tenant in the Premises for the operation of
Tenant's electrical systems and equipment in the Premises, at a level sufficient
to accommodate a demand load of six xxxxx of electricity per useable square foot
of office space in the Premises (exclusive of electricity required to operate
the base-Building HVAC System). Subject to the last sentence of this Section,
Tenant shall pay to Landlord, on demand from time to time, but not more than
monthly, for its consumption of electricity at the Premises, as Additional Rent
for such service from and after the Commencement Date, a sum equal to 110% of
the product obtained by multiplying (x) the Cost Per Kilowatt Hour, by (y) the
actual number of kilowatt hours of electric current consumed by Tenant in such
billing period. Landlord shall install a meter or meters, at Tenant's expense,
to measure Tenant's consumption of electricity in the Premises, which meters
shall be maintained by Landlord at Tenant's expense. Where more than one meter
measures Tenant's consumption of electricity in the Premises, the electricity
measured by each meter shall be computed and billed separately in accordance
with the provisions set forth above. Bills for such amounts shall be rendered to
Tenant at such times as Landlord may elect. The rate to be paid by Tenant for
sub metered electricity shall include any taxes or other charges in connection
therewith. If any tax is imposed upon Landlord's receipts from the sale or
resale of electricity to Tenant, Tenant shall reimburse Landlord for such tax,
if and to the extent permitted by law. For any period during which such meter or
meters are not installed or are not operational in the Premises, the monthly
Fixed Rent shall be increased by an amount equal to the product of (A) $.2083,
subject to adjustment for any increases in electric rates or taxes, and (B) the
number of rentable square feet in the Premises. If no such meter or meters are
installed in the Premises on the Commencement Date, Landlord shall diligently
proceed to install same.
Section 16.2 Excess Electricity. Tenant shall at all times comply with
the rules and regulations of the utility company supplying electricity to the
Building. Subject to Tenant's right to use the electric capacity set forth in
Section 16.1, Tenant shall not use any electrical equipment which, in Landlord's
judgment, would exceed the capacity of the electrical equipment serving the
Premises or interfere with the electrical service to other tenants of the
Building. If Tenant provides Landlord with evidence reasonably satisfactory to
Landlord of Tenant's need for excess electricity at a level sufficient to
accommodate a demand load of up to eight xxxxx of electricity per useable square
foot of office space in the Premises (exclusive of electricity required to
operate the Base Building HVAC System), Landlord shall make such additional
electric capacity available to Tenant. Any costs incurred by Landlord in
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connection therewith, including the cost of any additional risers, feeders or
other electrical distribution equipment, shall be paid by Tenant within 10 days
after the rendition of a xxxx therefor. If Tenant fails to utilize such excess
electric capacity for one year or more, Landlord shall have the right at any
time to reduce the electric capacity available to Tenant to the maximum electric
capacity previously and ordinarily used by Tenant but in no event to less than
the electric capacity set forth in the first sentence of Section 16.1. Tenant
shall not make or perform, or permit the making or performance of, any
Alterations to wiring installations or other electrical facilities in or serving
the Premises or make any additions to the office equipment or other appliances
in the Premises which utilize electrical energy (other than ordinary small
office equipment) without the prior consent of Landlord, in each instance, and
in compliance with this Lease.
Section 16.3 Service Disruption. Landlord shall not be liable in any
way to Tenant for any failure, defect or interruption of, or change in the
supply, character and/or quantity of electric service furnished to the Premises
for any reason except if attributable to the gross negligence or willful
misconduct of Landlord, nor shall there be any allowance to Tenant for a
diminution of rental value other than as expressly provided in Section 11.9, nor
shall the same constitute an actual or constructive eviction of Tenant, in whole
or in part, or relieve Tenant from any of its Lease obligations, and no
liability shall arise on the part of Landlord by reason of inconvenience,
annoyance or injury to business whether electricity is provided by public or
private utility or by any electricity generation system owned and operated by
Landlord. Landlord shall use reasonable efforts to minimize interference with
Tenant's use and occupancy of the Premises as a result of any such failure,
defect or interruption of, or change in the supply, character and/or quantity
of, electric service, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever.
Section 16.4 Discontinuance of Service. Landlord reserves the right to
discontinue furnishing electricity to Tenant in the Premises on not less than 30
days notice to Tenant, if Landlord discontinues furnishing electricity to
tenants (including Tenant) leasing an aggregate of at least 50% of the rentable
area of the Building, or is required to do so under applicable Requirements. If
Landlord exercises such right, or is compelled to discontinue furnishing
electricity to Tenant, this Lease shall continue in full force and effect and
shall be unaffected thereby, except that from and after the effective date of
such discontinuance, Landlord shall not be obligated to furnish electricity to
Tenant hereunder. If Landlord so discontinues furnishing electricity, Tenant
shall arrange to obtain electricity directly from any utility company or other
electricity provider serving the Premises. Such electricity may be furnished to
Tenant by means of the existing electrical facilities serving the Premises, at
no charge by Landlord, to the extent available, suitable and safe for such
purposes. All other equipment which may be required to obtain electricity of
substantially the same quantity, quality and character shall be installed by
Landlord at the sole cost and expense of (a) Landlord, if Landlord voluntarily
discontinues such service, or (b) Tenant, if (i) Landlord is compelled to
discontinue such service by the public utility or pursuant to applicable
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Requirements or (ii) if such discontinuance arises out of the acts of omissions
of Tenant. Landlord shall not voluntarily discontinue furnishing electricity to
Tenant until Tenant is able to receive electricity directly from the utility
company or other company servicing the Building, unless the utility company or
other company is not prepared to furnish electricity to the Premises on the date
required as a result of Tenant's delay or negligence in arranging for service or
Tenant's refusal to provide the utility company or other company with a deposit
or other security requested by the utility company or other company or Tenant's
refusal to take any other action requested by the utility company or other
company.
ARTICLE 17
ACCESS TO PREMISES
Section 17.1 Landlord's Access. (a) Subject to the provisions of
Section 17.1(b), Tenant shall permit Landlord, Landlord's agents, utility
companies and other service providers servicing the Building to erect, use and
maintain ducts, pipes and conduits in and through the Premises provided such use
does not cause the usable area of the Premises to be reduced beyond an
immaterial amount. Landlord shall promptly repair any damage to the Premises or
Tenant's Property caused by any work performed pursuant to this Article. Any
pipes, ducts, or conduits installed in or through the Premises pursuant to this
Section 17.1 shall either be concealed behind, beneath or within then existing
partitioning, columns, ceilings or floors located in the Premises, or completely
furred at points immediately adjacent to existing partitioning columns or
ceilings located in the Premises.
(b) Landlord, any Lessor or Mortgagee and any other party
designated by Landlord and their respective agents shall have the right to enter
the Premises at all reasonable times, upon reasonable notice (which notice may
be oral) except in the case of emergency, (i) to examine the Premises, (ii) to
show the Premises to prospective purchasers, Mortgagees or Lessors of the
Building and their respective agents and representatives or others, and during
the last 24 months of the Term to prospective lessees of premises in the
Building and (iii) to make such repairs, alterations or additions to the
Premises or the Building (A) as Landlord may deem necessary or appropriate,
including the right to modify or change the facade of and the windows in the
Building and to install solar film on the windows, (B) which Landlord may elect
to perform following Tenant's failure to perform, or (C) to comply with any
Requirements, and Landlord shall be allowed to take all material into the
Premises that may be required for the performance of such work without the same
constituting an actual or constructive eviction of Tenant in whole or in part
and without any abatement of Rent, except as expressly provided in Section 11.9.
(c) All parts (except surfaces facing the interior of the Premises)
of all walls, windows and doors bounding the Premises, including exterior
Building walls, exterior core corridor walls, and doors and entrances (other
than doors and entrances solely connecting
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areas within the Premises), all balconies, terraces ("Terraces") and roofs
adjacent to the Premises, all space in or adjacent to the Premises used for
shafts, stacks, risers, fan rooms, electrical and communication closets,
stairways, mail chutes, conduits and other mechanical facilities, Building
Systems and Building facilities are not part of the Premises, and Landlord shall
have the use thereof and access thereto through the Premises for the purposes of
Building operation, maintenance, alteration and repair.
(d) If Tenant requests that Landlord landscape any Terrace,
Landlord shall determine whether to do so in Landlord's sole discretion. If
Landlord determines to do so, Landlord shall submit to Tenant drawings related
thereto (including any alterations or additions to the Building required
thereby) for its approval. If Tenant approves of such drawings, Landlord shall
proceed to do all the work shown on such drawings (including such alterations
and additions) (the "Terrace Work"). Tenant shall reimburse Landlord, within 15
days after demand therefor, for the cost of preparing such drawings, performing
the Terrace Work (plus an administrative charge equal to 10% of such cost), and
the cost to Landlord of maintaining the Terrace Work during the Term. Nothing
contained herein shall be deemed to vest in Tenant any easement, license or
privilege with respect to any use of the Terraces or grant Tenant any right to
use or go upon the Terraces. Tenant shall reimburse Landlord for any damage
caused to the Terraces or other parts of the Building as a result of the Terrace
Work and the maintenance thereof other than damage arising from the gross
negligence or willful misconduct of Landlord.
Section 17.2 Final 12 Months. If, during the last 12 months of the
Term, Tenant removes all or substantially all of Tenant's Property from the
Premises, Landlord may, upon prior notice (which notice may be oral) and at
reasonable hours, renovate and/or redecorate the Premises, without abatement of
any Rent or incurring any liability to Tenant. Such acts shall not be deemed an
actual or constructive eviction and shall have no effect upon this Lease.
Section 17.3 Alterations to Building. Landlord has the right at any
time to (a) change the name, number or designation by which the Building is
commonly known, or (b) alter the Building to change the arrangement or location
of entrances or passageways, concourses, plazas, doors and doorways, and
corridors, elevators, stairs, toilets, or other public parts of the Building
without any such acts constituting an actual or constructive eviction and
without incurring any liability to Tenant, so long as such changes do not deny
Tenant access to the Premises and are in conformance with standards applicable
to first-class renovated office building in midtown Manhattan. Landlord shall
use reasonable efforts to minimize interference with Tenant's use and occupancy
of the Premises during the making of such changes or alterations, provided that
Landlord shall have no obligation to employ contractors or labor at overtime or
other premium pay rates or to incur any other overtime costs or additional
expenses whatsoever.
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ARTICLE 18
DEFAULT
Section 18.1 Tenant's Defaults. Each of the following events shall be
an "Event of Default" hereunder:
(a) Tenant fails to pay when due any installment of Fixed Rent or
Additional Rent and such default continues for five Business Days after notice
of such default is given to Tenant, except that if Landlord shall have given two
such notices of default in the payment of any Rent in any twelve month period,
Tenant shall not be entitled to any further notice of delinquency in the payment
of any Rent or an extended period in which to make payment until such time as
twelve consecutive months shall have elapsed without Tenant having failed to
make any such payment when due, and the occurrence of any default in the payment
of any Rent within such twelve month period after the giving of two such notices
shall constitute an Event of Default; or
(b) Tenant defaults in the observance or performance of any other
term, covenant or condition of this Lease to be observed or performed by Tenant
and such default continues for more than 10 days after notice by Landlord to
Tenant of such default; or if such default is of such a nature that it can be
remedied but cannot be completely remedied within 10 days, Tenant fails to
commence to remedy such default within 10 days after such notice or, with
respect to any such default, Tenant, having commenced such remedy within 10 days
after such notice, fails to diligently prosecute to completion all steps
necessary to remedy such default or Tenant fails to complete such remedy within
90 days; or
(c) Tenant defaults in the observance or performance of any term,
covenant or condition on Tenant's part to be observed or performed under any
other lease with Landlord or Landlord's predecessor-in-interest for space in the
Building and such default shall continue beyond any grace period set forth in
such other lease for the remedying of such default; or
(d) Tenant's interest in this Lease shall devolve upon or pass to
any Person, whether by operation of law or otherwise, except as expressly
permitted under Article 15 hereof; or
(e) Tenant generally does not, or is unable to, or admits in
writing its inability to, pay its debts as they become due; or
(f) Tenant files a voluntary petition in bankruptcy or insolvency,
or is adjudicated a bankrupt or insolvent, or files any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any
present or future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law,
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or makes an assignment for the benefit of creditors or seeks or consents to or
acquiesces in the appointment of any trustee, receiver, liquidator or other
similar official for Tenant or for all or any part of Tenant's property; or
(g) if, within 60 days after the commencement of any proceeding
against Tenant, whether by the filing of a petition or otherwise, seeking
bankruptcy, insolvency, reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other statute or law, such proceeding shall not have been dismissed, or if,
within 60 days after the appointment of any trustee, receiver, liquidator or
other similar official for Tenant or for all or any part of Tenant's property,
without the consent or acquiescence of Tenant, such appointment shall not have
been vacated or otherwise discharged, or if any lien, execution or attachment or
other similar filing shall be made or issued against Tenant or any of Tenant's
property pursuant to which the Premises shall be taken or occupied or attempted
to be taken or occupied by someone other than Tenant; or
(h) if Landlord applies or retains any part of the Security
Deposit, and Tenant fails to deposit with Landlord the amount so applied or
retained by Landlord, or to provide Landlord with a replacement Letter of Credit
(as defined in Section 35.2), if applicable, within 5 Business Days after notice
by Landlord to Tenant stating the amount applied or retained.
Upon the occurrence of anyone or more of such Events of Default, Landlord may,
at its sole option, give to Tenant three days' notice of cancellation of this
Lease, in which event this Lease and the Term shall come to an end and expire
(whether or not the Term shall have commenced) upon the expiration of such three
day period with the same force and effect as if the date set forth in the notice
was the Expiration Date stated herein; and Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable for damages as provided
in Article 19 hereof.
Section 18.2 Tenant's Liability. If, at any time, (a) Tenant shall be
comprised of two or more persons, (b) Tenant's obligations under this Lease
shall have been guaranteed by any person other than Tenant, or (c) Tenant's
interest in this Lease shall have been assigned, the word "Tenant," as used in
Section 18.1 (e), (f) and (g), shall be deemed to mean any one or more of the
Persons primarily or secondarily liable for Tenant's obligations under this
Lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in this Article shall be
deemed paid as compensation for the use and occupancy of the Premises and the
acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under this
Lease.
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ARTICLE 19
REMEDIES AND DAMAGES
Section 19.1 (a) Landlord's Remedies. If any Event of Default occurs,
and this Lease and the Term terminates as provided in Article 18:
(i) Surrender of Possession. Tenant shall quit and surrender
the Premises to Landlord, and Landlord and its agents may immediately,
or at any time after such Event of Default, re-enter the Premises or
any part thereof, without notice, either by summary proceedings, or by
any other applicable action or proceeding, or by force (to the extent
permitted by law) or otherwise in accordance with applicable legal
proceedings (without being liable to indictment, prosecution or damages
therefor), and may repossess the Premises and dispossess Tenant and any
other Persons from the Premises and remove any and all of their
property and effects from the Premises.
(ii) Landlord's Relating. Landlord, at Landlord's option, may
relet all or any part of the Premises from time to time, either in the
name of Landlord or otherwise, to such tenant or tenants, for any term
ending before, on or after the Expiration Date, at such rental and upon
such other conditions (which may include concessions and free rent
periods) as Landlord, in its sole discretion, may determine. Landlord
shall have no obligation to and shall not be liable for refusal or
failure to relet or, in the event of any such reletting, for refusal or
failure to collect any rent due upon any such reletting; and no such
refusal or failure shall relieve Tenant of, or otherwise affect, any
liability under this Lease. Landlord, at Landlord's option, may make
such alterations, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or
necessary in connection with such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
(b) Tenant's Waiver. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including all creditors, hereby waives
all rights which Tenant and all such Persons might otherwise have under any
Requirement (i) to the service of any notice of intention to re- enter or to
institute legal proceedings, (ii) to redeem, or to re-enter or repossess the
Premises, or (iii) to restore the operation of this Lease, after (A) Tenant
shall have been dispossessed or ejected by judgment or by warrant of any court
or judge, (B) any re-entry by Landlord, or (C) any expiration or early
termination of the term of this Lease, whether such dispossession, re-entry,
expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words "re- enter," "re-entry" and "re-entered" as
used in this Lease shall not be deemed to be restricted to their technical legal
meanings.
(c) Other Remedies. Upon the breach or threatened breach by Tenant,
or any persons claiming through or under Tenant, of any term, covenant or
condition of this Lease,
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Landlord shall have the right to enjoin such breach and to invoke any other
remedy allowed by law or in equity as if re-entry, summary proceedings and other
special remedies were not provided in this Lease for such breach. The rights to
invoke the remedies set forth above are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in equity.
Section 19.2 (a) Landlord's Damages. If this Lease and the Term expire
and come to an end as provided in Article 18, or by or under any summary
proceeding or any other action or proceeding, or if Landlord shall re-enter the
Premises as provided in Section 19.1, then, in any of such events:
(i) Tenant shall pay to Landlord all Rent payable under this
Lease by Tenant to Landlord up to the Expiration Date or to the date of
re-entry upon the Premises by Landlord, as the case may be;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as prepaid Rent, the Security
Deposit or otherwise, and to draw upon any Letter of Credit or other
security deposited by Tenant hereunder and retain the proceeds thereof,
which monies, to the extent not otherwise applied to amounts due and
owing to Landlord, shall be credited by Landlord against any damages
payable by Tenant to Landlord;
(iii) Tenant shall pay to Landlord, in monthly installments,
on the days specified in this Lease for payment of installments of
Fixed Rent, any Deficiency; it being understood that Landlord shall be
entitled to recover the Deficiency from Tenant each month as the same
shall arise, and no suit to collect the amount of the Deficiency for
any month, shall prejudice Landlord's right to collect the Deficiency
for any subsequent month by a similar proceeding; and
(iv) whether or not Landlord shall have collected any monthly
+Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency and as liquidated and agreed final damages, a sum
equal to the amount by which the Rent for the period which otherwise
would have constituted the unexpired portion of the Term (assuming
Additional Rent during such period to be the same as had been payable
for the year immediately preceding such termination or re-entry,
increased in each succeeding year by 4% (on a compounded basis))
exceeds the then fair and reasonable rental value of the Premises, for
the same period (with both amounts being discounted to present value at
a rate of interest equal to 2% below the then Base Rate) less the
aggregate amount of Deficiencies theretofore collected by Landlord
pursuant to the provisions of Section 19.2(a)(iii) for the same period.
If, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the Premises, or any part thereof, shall
have been relet by Landlord for the period which otherwise would have
constituted the unexpired portion of the Term, or
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any part thereof, the amount of rent reserved upon such reletting shall
be deemed, prima facie, to be the fair and reasonable rental value for
the part or the whole of the Premises so relet during the term of the
reletting.
(b) Reletting. If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 19.2. Tenant shall not be entitled
to any rents collected or payable under any reletting, whether or not such rents
exceed the Fixed Rent reserved in this Lease. Nothing contained in Articles 18
or 19 shall be deemed to limit or preclude the recovery by Landlord from Tenant
of the maximum amount allowed to be obtained as damages under applicable
Requirements, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in this Section 19.2.
Section 19.3 Default Interest: Other Rights of Landlord. Any damages
payable under this Lease and not paid when due shall bear interest at the
Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord,
in addition to any other right or remedy, shall have the same rights and
remedies as in the case of a default by Tenant in the payment of Fixed Rent. If
Tenant is in arrears in the payment of Rent, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, regardless of any request by Tenant. Landlord reserves the
right, without liability to Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to Tenant any overtime
Building services or labor, materials or other property or services for which
Tenant is obligated to pay a separate charge under this Lease (excluding
electricity and water), in the event that (but only for so long as) Tenant is in
arrears in paying Landlord for such items for more than five (5) days after
notice from Landlord to Tenant demanding the payment of such arrears.
ARTICLE 20
LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES
If Tenant defaults in the performance of its obligations under this
Lease, Landlord, without thereby waiving such default, may perform such
obligation for the account and at the expense of Tenant: (a) immediately or at
any time thereafter, and without notice, in the case of emergency or in the case
the default (i) materially interferes with the use by any other tenant of any
space in the Building, (ii) materially interferes with the efficient operation
of the Building, (iii) will result in a violation of any Requirement, (iv) win
result in a cancellation of any insurance policy maintained by Landlord, or (v)
will result in a breach of or default under any Superior Lease or Mortgage, and
(b) in any other case if such default
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continues after 10 days from the date Landlord gives notice of Landlord's
intention so to perform the defaulted obligation. All costs and expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant and all costs and expenses, including reasonable counsel fees
and disbursements, incurred by Landlord in any action or proceeding (including
any summary dispossess proceeding) brought by Landlord to enforce any obligation
of Tenant under this Lease and/or right of Landlord in or to the Premises, shall
be paid by Tenant to Landlord on demand, with interest thereon at the Interest
Rate from the date incurred by Landlord. Except as expressly provided to the
contrary in this Lease, all costs and expenses which, pursuant to this Lease
(including the Rules and Regulations) are incurred by Landlord and payable to
Landlord by Tenant, and all charges, amounts and sums payable to Landlord by
Tenant for any property, material, labor, utility or other services which,
pursuant to this Lease or at the request and for the account of Tenant, are
provided, furnished or rendered by Landlord, shall become due and payable by
Tenant to Landlord in accordance with the terms of the bills rendered by
Landlord to Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL
Section 21.1 No Representations. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to (i) the rentable and usable areas of the
Premises or the Building, (ii) the amount of any current or future Operating
Expenses or Taxes, (iii) the compliance with applicable Requirements of the
Premises or the Building, or (iv) the suitability of the Premises for any
particular use or purpose. No rights, easements or licenses are acquired by
Tenant under this Lease by implication or otherwise. Tenant is entering into
this Lease after full investigation and is not relying upon any statement or
representation made by Landlord not embodied in this Lease.
Section 21.2 Consents: Approvals. All consents or approvals of Landlord
may be granted or withheld in Landlord's sole discretion unless specifically
provided to the contrary in this Lease.
Section 21.3 No Money Damages. Wherever in this Lease Landlord's
consent or approval is required, if Landlord refuses to grant such consent or
approval, whether or not Landlord expressly agreed that such consent or approval
would not be unreasonably withheld, Tenant shall not make, and Tenant hereby
waives, any claim for money damages (including any claim by way of set-off,
counterclaim or defense) based upon Tenant's claim or assertion that Landlord
unreasonably withheld or delayed its consent or approval. Tenant's sole remedy
shall be an action or proceeding to enforce such provision, by specific
performance, injunction or declaratory judgment. In no event shall Landlord be
liable for, and Tenant, on behalf of itself and all other Tenant Parties, hereby
waives any claim for, any
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indirect, consequential or punitive damages, including loss of profits or
business opportunity, arising under or in connection with this Lease, even if
due to the gross negligence or willful misconduct of Landlord of its agents or
employees.
ARTICLE 22
END OF TERM
Section 22.1 Expiration. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender the Premises to Landlord, vacant,
broom clean and in good order and condition, ordinary wear and tear and damage
for which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Specialty Alterations
as may be required pursuant to Article 5 of this Lease. The foregoing obligation
shall survive the expiration or sooner termination of the Term. If the last day
of the Term or any renewal thereof falls on Saturday or Sunday, this Lease shall
expire on the immediately preceding Business Day.
Section 22.2 Holdover Rent. Landlord and Tenant recognize that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises may be substantial, may exceed the amount of the Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord on or before the Expiration Date or sooner termination of the Term, in
addition to any other rights or remedies Landlord may have hereunder or at law,
Tenant shall (a) pay to Landlord for each month (or any portion thereof) during
which Tenant holds over in the Premises after the Expiration Date or sooner
termination of the Term, a sum equal to the greater of (i) one and one-half
times the Fixed Rent plus one and one-half times Tenant's Tax Payment plus one
and one-half times Tenant's Operating Payment payable under this Lease for the
last full calendar month of the Term in the case of the first month (or any
portion thereof) of any holdover and two times the Fixed Rent plus two times
Tenant's Tax Payment plus two times Tenant's Operating Payment payable under
this Lease for the last full calendar month of the Term in the case of each
month (or any portion thereof) thereafter or (ii) one and one-half times the
fair market rental value of the Premises for such month (as reasonably
determined by Landlord), (b) if Tenant holds over past 30 days after the
Expiration Date or earlier termination of this Lease, be liable to Landlord for
(i) any payment or rent concession which Landlord may be required to make to any
tenant obtained by Landlord for all or any part of the Premises (a "New Tenant")
in order to induce such New Tenant not to terminate its lease by reason of the
holding-over by Tenant, and (ii) the loss of the benefit of the bargain if any
New Tenant shall terminate its lease by reason of the holding-over by Tenant,
and (c) if Tenant holds over past 30 days after the Expiration Date or earlier
termination of this Lease, indemnify Landlord against all claims for damages by
any New Tenant. No holding-over by Tenant, nor the payment to Landlord of the
amounts specified above, shall operate to extend the Term
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hereof. Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Premises after the Expiration Date or sooner termination of
this Lease, and no acceptance by Landlord of payments from Tenant after the
Expiration Date or sooner termination of the Term shall be deemed to be other
than on account of the amount to be paid by Tenant in accordance with the
provisions of this Article 22. All of Tenant's obligations under this Article
shall survive the expiration or earlier termination of the Term of this Lease.
Section 22.3 Waiver of Stay. Tenant expressly waives, for itself and
for any Person claiming through or under Tenant, any rights which Tenant or any
such Person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 22.
ARTICLE 23
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event of Default
then exists, Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease and to all Superior Leases and
Mortgages.
ARTICLE 24
NO SURRENDER; NO WAIVER
Section 24.1 No Surrender or Release. No act or thing done by Landlord
or Landlord's agents or employees during the Term shall be deemed an acceptance
of a surrender of the Premises, and no provision of this Lease shall be deemed
to have been waived by Landlord, unless such waiver is in writing and is signed
by Landlord, and any such waiver shall be effective only for the specific
purpose and in the specific instance in which given. If Tenant at any time
desires to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive Tenant's keys to the Premises for
such purpose without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 24.2 No Waiver. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment of the future
60
performance of such obligations of this Lease or the Rules and Regulations, or
of the right to exercise such election but the same shall continue and remain in
full force and effect with respect to any subsequent breach, act or omission.
The receipt by Landlord of any Rent payable pursuant to this Lease or any other
sums with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Fixed Rent or Additional Rent herein stipulated
shall be deemed to be other than a payment on account of the earliest stipulated
Fixed Rent or Additional Rent, or as Landlord may elect to apply such payment,
nor shall any endorsement or acceptance of any check or other payment in the
face of a statement on such check or any letter accompanying such check or
payment be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
Fixed Rent or Additional Rent or pursue any other remedy provided in this Lease.
The existence of a right of renewal or extension of this Lease, or the exercise
of such right, shall not limit Landlord's right to terminate this Lease in
accordance with the terms hereof.
ARTICLE 25
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY REQUIREMENT. If Landlord commences any
summary proceeding against Tenant, Tenant will not interpose any counterclaim of
any nature or description in any such proceeding (unless failure to impose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is the subject of such counterclaim), and will not seek to consolidate
such proceeding with any other action which may have been or will be brought in
any other court by Tenant.
ARTICLE 26
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rent and to perform all
of the other covenants and agreements of Tenant hereunder shall not be affected,
impaired or excused by any Unavoidable Delays. Landlord shall use reasonable
efforts to promptly notify Tenant of any Unavoidable Delay which prevents
Landlord from fulfilling any of its obligations under this Lease.
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ARTICLE 27
NOTICES
Except as otherwise expressly provided in this Lease, consents,
notices, demands, requests, approval or other communications given under this
Lease shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (provided a signed receipt is obtained) or if sent by
registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries, addressed as
follows:
if to Tenant, (a) at Tenant's address set forth on the first page of
this Lease, Attn: Xxxxx Xxxxxxxx if given prior to Tenant's taking
possession of the Premises, or (b) at the Building, Attn: Xxxxx Xxxxxxxx
if mailed subsequent to Tenant's taking possession of the Premises, or
if to Landlord, at Landlord's address set forth on the first page of
this Lease, Attn: Chief Financial Officer, and with copies to (a) Tishman
Speyer Properties L.P., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Property Manager--300 Park Avenue, (b) Tishman Speyer Properties
L.P., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: General Counsel,
and (c) any Mortgagee or Lessor which shall have requested copies of
notices, by notice given to Tenant in accordance with the provisions of
this Article 27 at the address designated by such Mortgagee or Lessor;
or to such other address(es) as either Landlord or Tenant or any Mortgagee or
Lessor may designate as its new address(es) for such purpose by notice given to
the other in accordance with the provisions of this Article 27. Any such
approval, consent, notice, demand, request or other communication shall be
deemed to have been given on the date of receipted delivery or refusal to accept
delivery as provided in this Article 27 or the date delivery is first attempted
but cannot be made due to a change of address of which no notice was given.
ARTICLE 28
RULES AND REGULATIONS
Tenant and all Tenant Parties shall observe and comply with the Rules
and Regulations, as supplemented or amended from time to time, provided, that in
case of any conflict or inconsistency between the provisions of this Lease and
any of the Rules and Regulations as originally promulgated or as supplemented or
amended from time to time, the
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provisions of this Lease shall control. Landlord reserves the right, from time
to time, to adopt additional Rules and Regulations and to amend the Rules and
Regulations then in effect. Nothing contained in this Lease shall impose upon
Landlord any obligation to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease against any other Building tenant, and Landlord
shall not be liable to Tenant for violation of the Rules and Regulations by any
other tenant, its employees, agents, visitors or licensees, except that Landlord
shall not enforce any Rule or Regulation against Tenant in a discriminatory
fashion.
ARTICLE 29
PARTNERSHIP TENANT
Section 29.1 Partnership Tenant. If Tenant, or a permitted assignee of
this Lease pursuant to Article 15 hereof, is a partnership, or is comprised of
two or more Persons, individually or as partners of a partnership (any such
partnership and such Persons are referred to in this Article as "Partnership
Tenant"), the following shall apply: (a) the liability of each of the general
partners (excluding Persons solely holding interests as limited partners), each
of the partners in a limited liability partnership or Persons comprising
Partnership Tenant (the "Partners") shall be joint and several; (b) each of the
Partners hereby consents in advance to, and agrees to be bound by, any written
instrument which may hereafter be executed by Partnership Tenant or any of the
Partners, which shall modify, extend or discharge this Lease, in whole or in
part, or surrender all or any part of the Premises to Landlord; (c) any bills,
statements, notices, demands, requests or other communications given or rendered
to Partnership Tenant or to any of the Partners shall be binding upon
Partnership Tenant and all of the Partners; (d) if Partnership Tenant shall
admit new Partners, all new Partners shall, by their admission to Partnership
Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; (e) Partnership Tenant shall give
prompt notice to Landlord of the admission of any new Partners, and upon demand
of Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement in form and substance satisfactory to Landlord, wherein
each new Partner shall assume joint and several liability for the performance of
all the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any new Partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of this Section 29.1(e); and
(f) no change in the Partners of Partnership Tenant resulting from the admission
of a new Partner, or the death, retirement or withdrawal of a Partner shall
release Partnership Tenant or any Partner or former Partner from their
obligations under this Lease.
Section 29.2 Change of Partners. If Tenant is a Partnership Tenant, (a)
the admission of new Partners, the withdrawal (in the ordinary course of
business), retirement, death, incompetency or bankruptcy of any Partner, or the
reallocation of partnership interests
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among the Partners shall constitute an assignment of this Lease unless Partners
holding in the aggregate not less than 80% of the partnership interests in
Partnership Tenant immediately prior to such event remain as Partners holding
not less than 80% of the partnership interests in Partnership Tenant during the
12-month period immediately following such event (i.e., the transfer, by any of
the foregoing means, of more than 20% of the partnership interests in
Partnership Tenant in any consecutive 12- month period shall constitute an
assignment of this Lease subject to the provisions of Article 15), and (b) the
reorganization of Partnership Tenant into a professional corporation or a
limited liability partnership, or the reorganization of Tenant from a
professional corporation or a limited liability partnership into a partnership,
shall constitute an assignment of this Lease unless immediately following such
reorganization the Partners or shareholders, as the case may be, of Tenant shall
be the same as those existing immediately prior to such reorganization, and
shall acknowledge in writing to Landlord that they remain fully liable, jointly
and severally, under this Lease as provided in this Article 29. If Tenant shall
become a professional corporation, each individual shareholder, shareholder-
employee, new individual shareholder and new shareholder-employee of any
professional corporation which is a shareholder in Tenant shall have the same
personal liability (if any) as such individual or shareholder-employee would
have under this Lease if Tenant were a partnership and such individual or
shareholder-employee were a Partner or admitted as a new Partner. If any
individual Partner in Tenant is or becomes a shareholder-employee of a
professional corporation, such individual shall have the same personal liability
under this Lease as such individual would have if he and not the professional
corporation were a Partner of Tenant. If Tenant shall become a limited liability
partnership, (i) each Partner therein shall continue to have the same personal
liability as such Partner had under this Lease prior to Tenant becoming a
limited liability partnership, and (ii) each new partner admitted to such
limited liability partnership shall be bound by the provisions of Section 29.1,
and shall execute and deliver to Landlord the assumption agreement required
pursuant to Section 29.1(e) hereof.
Section 29.3 Limited Recourse. If the original Tenant named herein
("Named Tenant") is not a Partnership Tenant, Landlord acknowledges and agrees
that Landlord shall not enforce the liability and obligations of Named Tenant
hereunder except against the Named Tenant and Named Tenant's assets and Landlord
shall have no right, except as provided in law or equity, to enforce the
liability and obligations of Named Tenant hereunder against any principal,
officer, shareholder, member or manager of Named Tenant.
ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, no vaults, vault space or other space outside the
boundaries of the Real Property are included in the Premises. Landlord makes no
representation as to the location of
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the boundaries of the Real Property. All vaults and vault space and all other
space outside the boundaries of the Real Property which Tenant may be permitted
to use or occupy are to be used or occupied under a revocable license. If any
such license shall be revoked, or if the amount of such space shall be
diminished as required by any Governmental Authority or by any public utility
company, such revocation, diminution or requisition shall not (i) constitute an
actual or constructive eviction, in whole or in part, (ii) entitle Tenant to any
abatement or diminution of Rent, (iii) relieve Tenant from any of its
obligations under this Lease, or (iv) impose any liability upon Landlord. Any
fee, tax or charge imposed by any Governmental Authority for any such vaults,
vault space or other space occupied by Tenant shall be paid by Tenant.
ARTICLE 31
BROKER
Section 31.1 Broker Representations. Landlord has retained Landlord's
Agent as leasing agent in connection with this Lease and Landlord shall be
solely responsible for any fee that may be payable to Landlord's Agent pursuant
to a separate agreement. Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with any broker in connection with this Lease
other than Landlord's Agent and the Broker and that to the best of its knowledge
and belief, no other broker, finder or like entity procured or negotiated this
Lease or is entitled to any fee or commission in connection herewith. The
execution and delivery of this Lease by each party shall be conclusive evidence
that each party has relied upon the foregoing representations and warranties.
Section 31.2 Indemnity. Each of Landlord and Tenant shall indemnify,
defend, protect and hold the other party harmless from and against any and all
Losses which the indemnified party may incur by reason of any claim of or
liability to any broker, finder or like agent (other than Landlord's Agent and
the Broker) arising out of any dealings claimed to have occurred between the
indemnifying party and the claimant in connection with this Lease, and/or the
above representation being false. The provisions of this Article 31 shall
survive the expiration or earlier termination of the Term of this Lease.
ARTICLE 32
INDEMNITY
Section 32.1 (a) Tenant's Indemnity. Tenant shall not do or permit to
be done any act or thing upon the Premises or the Building which may subject
Landlord to any liability or responsibility for injury, damages to persons or
property or to any liability by reason of any violation of law or of any
Requirement, and shall exercise such control over the Premises as
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to fully protect the Indemnities against any such liability. Tenant shall
indemnify, defend, protect and hold harmless each of the Indemnities from and
against any and all Losses (as defined in subsection (b) hereof), resulting from
any claims (i) against Indenmitees arising from any act, omission or negligence
of (A) any Tenant Party or (B) both Landlord and any Tenant Party, provided,
however, that Tenant's liability hereunder with respect to matters judicially
determined to have arisen out of the negligence of Landlord, which determination
shall not be subject to appeal, shall be limited to the amount of insurance
coverage carried by Tenant pursuant to Article 12 of this Lease, (ii) against
the Indemnitees arising from any accident, injury or damage whatsoever caused to
any person or to the property of any person and occurring during the Term or
during the period of time, if any, prior to the commencement or following the
expiration of the Term that any Tenant Party may have been given access to any
portion of the Premises for the purpose of performing work or otherwise, in or
about the Premises, and (iii) against the Indemnitees resulting from any breach,
violation or nonperformance of any covenant, condition or agreement of this
Lease on the part of Tenant to be fulfilled, kept, observed and performed.
(b) Indemnity Inclusions. As used in this Lease, the term "Losses"
means any and all losses, liabilities, damages, claims, judgments, fines, suits,
demands, costs, interest and expenses of any kind or nature (including
reasonable attorneys' fees and disbursements) incurred in connection with any
claim, proceeding or judgment and the defense thereof, and including all costs
of repairing any damage to the Premises or the Building or the appurtenances of
any of the foregoing to which a particular indemnity and hold harmless agreement
applies.
(c) Landlord's Indemnity. Landlord shall indemnify, defend and hold
harmless Tenant from and against all claims against Tenant arising from any
accident, injury or damage whatsoever caused to any person or the property of
any person in or about the common or public areas of the Building (specifically
excluding the Premises) to the extent attributable to the gross negligence or
willful misconduct of Landlord or its agents or employees.
Section 32.2 Defense and Settlement. If any claim, action or proceeding
is made or brought against any Indemnitee, then upon demand by an Indemnitee,
Tenant, at its sole cost and expense, shall resist or defend such claim, action
or proceeding in the Indemnitee's name (if necessary), by attorneys approved by
the Indemnitee, which approval shall not be unreasonably withheld. Attorneys for
Tenant's insurer shall hereby be deemed approved for purposes of this Section
32.2. Notwithstanding the foregoing, an Indemnitee may retain its own attorneys
to participate or assist in defending any claim, action or proceeding involving
potential liability of $10,000,000 or more, provided that Tenant shall control
the defense and Tenant shall pay the reasonable fees and disbursements of such
attorneys. Notwithstanding anything herein contained to the contrary, Tenant may
direct the Indemnitee to settle any claim, suit or other proceeding provided
that (a) such settlement shall involve no obligation on the part of the
Indemnitee other than the payment of money, (b) any payments to be made
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pursuant to such settlement shall be paid in full exclusively by Tenant at the
time such settlement is reached, (c) such settlement shall not require the
Indemnitee to admit any liability, and (d) the Indemnitee shall have received an
unconditional release from the other parties to such claim, suit or other
proceeding. The provisions of this Article 32 shall survive the expiration or
earlier termination of this Lease.
ARTICLE 33
ADJACENT EXCAVATION; SHORING
If an excavation shall be made, or shall be authorized to be made, upon
land adjacent to the Real Property, Tenant shall, upon notice, afford to the
person causing or authorized to cause such excavation license to enter upon the
Premises for the purpose of doing such work as such person shall deem necessary
to preserve the wall or the Building from injury or damage and to support the
same by proper foundations. In connection with such license, Tenant shall have
no right to claim any damages or indemnity against Landlord, or diminution or
abatement of Rent, provided that Tenant shall continue to have access to the
Premises.
ARTICLE 34
TAX STATUS OF BENEFICIAL OWNERS
Tenant recognizes and acknowledges that Landlord and/or certain
beneficial owners of Landlord may from time to time qualify as real estate
investment trusts pursuant to Sections 856 et seq. of the Code or as entities
described in Section 511(a)(2) of the Code, and that avoiding (a) the loss of
such status, (b) the receipt of any income derived under any provision of this
Lease that does not constitute "rents from real property" (in the case of real
estate investment trusts) or that constitutes "unrelated business taxable
income" (in the case of entities described in Section 511(a)(2) of the Code),
and (c) the imposition of penalty or similar taxes (each an "Adverse Event") is
of material concern to Landlord and such beneficial owners and Tenant's
agreement herein contained regarding the avoidance of an Adverse Event as a
material inducement to Landlord entering into this Lease. In the event that this
Lease or any document contemplated hereby could, in the opinion of counsel to
Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate with
Landlord in amending or modifying this Lease or such documents and shall at the
request of Landlord execute and deliver such documents reasonably required to
effect such amendment or modification. Any amendment or modification pursuant to
this Article 34 shall be structured so that the economic results to Landlord and
Tenant shall be substantially similar to those set forth in this Lease without
regard to such amendment or modification. Without limiting any of Landlord's
other rights under this Article 34, Landlord may waive the receipt of any
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amount payable to Landlord hereunder and such waiver shall constitute an
amendment or modification of this Lease with respect to such payment.
ARTICLE 35
SECURITY DEPOSIT
Section 35.1 Security Deposit. Tenant shall deposit the Security
Deposit with Landlord upon the execution of this Lease in cash as security for
the faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided.
Section 35.2 Letter of Credit. In lieu of a cash deposit, Tenant may
deliver the Security Deposit to Landlord in the form of a clean, irrevocable,
non-documentary and unconditional letter of credit in the amount of the Security
Deposit (the "Letter of Credit") issued by and drawable upon any commercial
bank, trust company, national banking association or savings and loan
association with offices for banking purposes in the City of New York (the
"Issuing Bank"), which has outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by Xxxxx'x Investors Service and "AA" or better by
Standard & Poor's Rating Service, and has combined capital, surplus and
undivided profits of not less than $500,000,000. The Letter of Credit shall (a)
name Landlord as beneficiary, (b) be in the amount of the Security Deposit, (c)
have a term of not less than one year, (d) permit multiple drawings, (e) be
fully transferable by Landlord without the payment of any fees or charges by
Landlord, and (f) otherwise be in form and content reasonably satisfactory to
Landlord. If upon any transfer of the Letter of Credit, any fees or charges
shall be so imposed, then such fees or charges shall be payable solely by Tenant
and the Letter of Credit shall so specify. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the Term through the date
that is at least 60 days after the Expiration Date, unless the Issuing Bank
sends a notice (the "Non-Renewal Notice") to Landlord by certified mail, return
receipt requested, not less than 45 days next preceding the then expiration date
of the Letter of Credit stating that the Issuing Bank has elected not to renew
the Letter of Credit. Landlord shall have the right, upon receipt of the
Non-Renewal Notice, to draw the full amount of the Letter of Credit, by sight
draft on the Issuing Bank, and shall thereafter hold or apply the cash proceeds
of the Letter of Credit pursuant to the terms of this Article. The Letter of
Credit shall state that drafts drawn under and in compliance with the terms of
the Letter of Credit will be duly honored upon presentation to the Issuing Bank
at an office location in Manhattan. The Letter of Credit shall be subject in all
respects to the
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Uniform Customs and Practice for Documentary Credits (1993 revision),
International Chamber of Commerce Publication No. 500.
Section 35.3 Application of Security. If Tenant defaults in the payment
or performance of any of the terms, covenants or conditions of this Lease,
including the payment of Rent, Landlord may apply or retain the whole or any
part of the cash Security Deposit or may notify the Issuing Bank and thereupon
receive all or a portion of the Security Deposit represented by the Letter of
Credit and use, apply, or retain the whole or any part of such proceeds, as the
case may be, to the extent required for the payment of any Fixed Rent or any
other sum as to which Tenant is in default including (a) any sum which Landlord
may expend or may be required to expend by reason of Tenant's default, and/or
(b) any damages or Deficiency to which Landlord is entitled pursuant to this
Lease or applicable Requirements, whether such damages or Deficiency accrues
before or after summary proceedings or other reentry by Landlord. If Landlord
applies or retains any part of the Security Deposit, Tenant, upon demand, shall
deposit with Landlord the amount so applied or retained so that Landlord shall
have the full Security Deposit on hand at all times during the Term. If Tenant
shall fully and faithfully comply with all of the terms, covenants and
conditions of this Lease, the Security Deposit (or so much thereof as remains)
shall be returned to Tenant after the Expiration Date and after delivery of
possession of the Premises to Landlord in the manner required by this Lease.
Tenant expressly agrees that Tenant shall have no right to apply any portion of
the Security Deposit against any of Tenant's obligations to pay Rent hereunder.
Section 35.4 Transfer. Upon a sale of the Real Property or the Building
or a leasing of the Building, or any financing of Landlord's interest therein,
Landlord shall have the right to transfer the cash Security Deposit or the
Letter of Credit, as applicable, to the vendee, lessee or lender. With respect
to the Letter of Credit, within five days after notice of such sale, leasing or
financing, Tenant, at its sole cost, shall arrange for the transfer of the
Letter of Credit to the new landlord or the lender, as designated by Landlord in
the foregoing notice or have the Letter of Credit reissued in the name of the
new landlord or the lender. Tenant shall look solely to the new landlord or
lender for the return of such cash Security Deposit or Letter of Credit and the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the cash Security Deposit or Letter of Credit and
neither Landlord nor its successors or assigns shall be bound by any such action
or attempted assignment, or encumbrance.
Section 35.5 Change in Security. (a) On or before each anniversary of
the Rent Commencement Date, Tenant shall provide Landlord with the audited
financial statements of Tenant outlined below in this Section 35.5(a) which are
adequate to permit Landlord to determine the status of satisfaction of the
Financial Conditions (as hereinafter defined). Provided and on condition that
(the "Conditions") (i) Tenant has not previously defaulted in its obligation to
pay Fixed Rent, Tenant's Operating Payment and Tenant's Tax Payment to
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Landlord within the time periods set forth in this Lease and Landlord has not
given two or more notices of any such default in the 12-month period preceding
any Reduction Anniversary, (ii) no Event of Default then exists, (iii) Tenant
has net income, determined in accordance with generally accepted accounting
principles, consistently applied ("GAAP"), of at least $20 million for the
calendar year immediately preceding (a "Preceding Year") a Reduction Anniversary
(as defined below), (iv) Tenant has cash and cash equivalents at the end of the
Preceding Year at least equal to the greater of (x) 25% of Tenant's total annual
expenses for the Preceding Year (less depreciation, amortization and
compensation (including benefits) paid to its managing directors), all
determined in accordance with GAAP, and (y) $2,500,000 and (v) Tenant provides
Landlord with audited financial statements which are certified as true and
correct by its outside certified public accountants which are adequate to permit
Landlord to confirm satisfaction of the conditions referred to in items (iii)
and (iv) above (the "Financial Conditions"), then, provided that Tenant complies
with the provisions of this Section 35.5, the Security Deposit shall be reduced
on the following dates (each a "Reduction Anniversary") as follows: (A) on the
date which is the first anniversary of the Rent Commencement Date that Tenant
satisfies the Conditions, the Security Deposit shall be reduced to $1,207,584,
(B) provided the Security Deposit shall have previously been reduced pursuant to
the preceding clause (A), then on the date which is the date thereafter which is
an anniversary of the Rent Commencement Date that Tenant satisfies the
Conditions, the Security Deposit shall be reduced to $805,056, and (C) provided
the Security Deposit shall have previously been reduced pursuant to the
preceding clauses (A) and (B), then on the date which is the date thereafter
which is an anniversary of the Rent Commencement Date that Tenant satisfies the
Conditions, the Security Deposit shall be reduced to $402,528. Notwithstanding
the foregoing, in the event Tenant fails to satisfy the Financial Conditions
during any two calendar years during the Term, commencing with the 12 month
period occurring immediately prior to the Commencement Date (whether in
consecutive calendar years or not), then Tenant must meet such Financial
Conditions for two consecutive calendar years during the Term before a reduction
or further reduction, as applicable, of the Security Deposit shall be permitted
hereunder.
(b) Notwithstanding anything in this Section 35.5 to the contrary,
in the event Tenant does not satisfy the Financial Conditions in any calendar
year during the Term after the Security Deposit shall have been reduced to
$402,528, then the Security Deposit shall be increased as follows: Tenant shall,
either deliver to Landlord (i) a Letter of Credit (which Letter of Credit shall
comply with the terms above) in the amount of $805,056, whereupon Landlord shall
return to Tenant its cash security or current Letter of Credit, or (ii)
additional cash security in the amount of $402,528. Failure by Tenant to deliver
such Letter of Credit or additional cash security within 15 days after notice
from Landlord shall constitute an Event of Default hereunder. If the Security
Deposit shall be increased pursuant to the first sentence of this Section
35.5(b), then on an anniversary of the Rent Commencement Date promptly following
the expiration of the first calendar year (in case Tenant has not satisfied the
Financial Conditions in only one calendar year during the Term) or the second
consecutive calendar year (in all other cases) during the Term after such
increase that Tenant
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satisfied the Financial Conditions, the Security Deposit shall be reduced to
$402,528 in the manner provided in Section 35.5(c), subject to Tenant's
satisfaction of the conditions contained in Section 35.5(a)(i) and (ii) and
subject to increase in accordance with this Section 35.5(b) in the event Tenant
again does not satisfy the Financial Conditions as provided above.
(c) The Security Deposit shall be reduced as follows: (i) if the
Security Deposit is in the form of cash, Landlord shall, within 10 Business Days
following notice by Tenant to Landlord that Tenant is entitled to reduce the
Security Deposit pursuant to this Section 35.5, deliver to Tenant the amount by
which the Security Deposit is reduced, or (ii) if the Security Deposit is in the
form of a Letter of Credit, Tenant shall deliver to Landlord an amendment to the
Letter of Credit (which amendment must be reasonably acceptable to Landlord in
all respects), reducing the amount of the Letter of Credit by the amount of the
permitted reduction, and Landlord shall execute the amendment and such other
documents as are reasonably necessary to reduce the amount of the Letter of
Credit in accordance with the terms thereof. If Tenant delivers to Landlord an
amendment to the Letter of Credit in accordance with the terms hereof, Landlord
shall, within 10 Business Days after delivery of such amendment, either (A)
provide its reasonable objections to such amendment or (B) execute such
amendment of the Letter of Credit in accordance with the terms hereof
(d) Landlord acknowledges that all financial information provided
by Tenant under this Section is provided solely for Landlord's use in connection
with this Section and Landlord agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all financial
information provided to it by Tenant hereunder, except to the extent such
information (a) was or becomes generally available to the public other than as a
result of disclosure by Landlord, or (b) was or becomes available on a
non-confidential basis from a source other than Tenant; provided, however, that
Landlord may disclose such information (i) pursuant to any requirement of any
Governmental Authority or any applicable Requirement; (ii) pursuant to subpoena
or other court process; (iii) to the extent reasonably required in connection
with the exercise of any remedy hereunder; (iv) to Landlord's partners, members,
shareholders, managers, independent auditors and other professional advisors on
a need to know basis but solely for the purpose set forth above and with the
understanding that such Person keep such information confidential to the same
extent required by Landlord hereunder; (v) to any purchaser or lender, actual or
potential, on a need to know basis but solely for the purpose set forth above
and with the understanding that such Person keep such information confidential
to the same extent required by Landlord hereunder.
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ARTICLE 36
MISCELLANEOUS
Section 36.1 Delivery. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord shall have executed and delivered a fully
executed copy of this Lease to Tenant.
Section 36.2 Transfer of Real Property. Landlord's obligations under
this Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer or lease of Landlord's interest (collectively
a "Transfer") by Landlord (or upon any subsequent landlord after the Transfer by
such subsequent landlord) of its interest in the Building or the Real Property,
as the case may be, and in the event of any such Transfer, Landlord (and any
such subsequent landlord) shall be entirely freed and relieved of all covenants
and obligations of Landlord hereunder, and the transferee of Landlord's interest
(or that of such subsequent landlord) in the Building or the Real Property, as
the case may be, shall be deemed to have assumed all obligations under this
Lease.
Section 36.3 Limitation on Liability. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
from time to time in the Real Property and Tenant shall not look to any other
property or assets of Landlord or the property or assets of any Indemnitees in
seeking either to enforce Landlord's obligations under this Lease or to satisfy
a judgment for Landlord's failure to perform such obligations; and none of the
Indemnitees shall be personally liable for the performance of Landlord's
obligations under this Lease.
Section 36.4 Rent. Notwithstanding anything to the contrary contained
in this Lease, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax
Payment, Tenant's Operating Payment, Additional Rent or Rent, shall constitute
rent for the purposes of Section 502(b)(6) of the United States Bankruptcy Code
and other Requirements.
Section 36.5 Entire Agreement. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. All Article and Section
references set forth herein shall, unless the context otherwise requires, be
deemed references to the Articles and Sections of this Lease.
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Section 36.6 Governing Law. This Lease shall be governed in all
respects by the laws of the State of New York.
Section 36.7 Unenforceability. If any provision of this Lease, or its
application to any Person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other Person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and enforceable
to the fullest extent permitted by law.
Section 36.8 Consent to Jurisdiction. (a) Except as expressly provided
to the contrary in this Lease, Tenant agrees that all disputes arising, directly
or indirectly, out of or relating to this Lease, and all actions to enforce this
Lease, shall be dealt with and adjudicated in the state courts of the State of
New York or the federal courts for the Southern District of New York; and for
that purpose Tenant expressly and irrevocably submits itself to the jurisdiction
of such courts. Tenant agrees that so far as is permitted under applicable law,
this consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in one of the manners
specified in this Lease, or as otherwise permitted by law, shall be necessary in
order to confer jurisdiction upon it in any such court. Tenant further agrees
that judgment against it in any such action or proceeding shall be conclusive
and, to the extent permitted by applicable law, may be enforced in any other
jurisdiction within or outside the United States of America by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence
of the fact and of the amount of its indebtedness.
(b) To the extent that Tenant has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Tenant irrevocably waives such immunity in respect of its obligations under this
Lease.
Section 36.9 Landlord's Agent. Unless Landlord shall render written
notice to Tenant to the contrary, Tishman Speyer Properties, L.P. is authorized
to act as Landlord's agent in connection with the performance of this Lease, and
Tenant shall direct all correspondence and requests to, and shall be entitled to
rely upon correspondence received from, Tishman Speyer Properties, L.P., as
agent for the Landlord in accordance with Article 27. Tenant acknowledges that
Tishman Speyer Properties, L.P. is acting solely as agent for Landlord in
connection with the foregoing; and neither Tishman Speyer Properties, L.P. nor
any of its direct or indirect partners, officers, shareholders, directors,
employees, principals, agents or representatives shall have any liability to
Tenant in connection with the performance of this Lease, and Tenant waives any
and all claims against any and all of such parties arising out of, or in any way
connected with, this Lease, the Building or the Real Property.
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Section 36.10 Estoppels. (a) Within seven days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a
written statement executed and acknowledged by Tenant, in form satisfactory to
Landlord, (i) stating the Commencement Date, and the Expiration Date, and that
this Lease is then in full force and effect and has not been modified (or if
modified, setting forth all modifications), (ii) setting forth the date to which
the Fixed Rent and any Additional Rent have been paid, together with the amount
of monthly Fixed Rent, Tenant's Tax Payment and Tenant's Operating Payment then
payable, (iii) stating whether or not, to the best of Tenant's knowledge,
Landlord is in default under this Lease, and, if Tenant asserts that Landlord is
in default, setting forth the specific nature of any such defaults, (iv) stating
whether Landlord has failed to complete any work required to be performed by
Landlord under this Lease, (v) stating whether there are any sums payable to
Tenant by Landlord under this Lease, (vi) stating the amount of the Security
Deposit, if any, under this Lease, (vii) stating whether there are any subleases
or assignments affecting the Premises, (viii) stating the address of Tenant to
which all notices and communications under the Lease shall be sent, and (ix)
responding to any other matters reasonably requested by Landlord, such Mortgagee
or such Lessor. Tenant acknowledges that any statement delivered pursuant to
this Section 36.10(a) may be relied upon by any purchaser or owner of the Real
Property or the Building, or all or any portion of Landlord's interest in the
Real Property or the Building or any Superior Lease, or by any Mortgagee, or
assignee thereof or by any Lessor, or assignee thereof.
(b) From time to time, within seven days following a request by
Tenant, Landlord shall deliver to Tenant a written statement executed and
acknowledged by Landlord, in form reasonably acceptable to Tenant and Landlord,
(i) stating the Commencement Date, the Rent Commencement Date and the Expiration
Date, and that this Lease is then in full force and effect and has not been
modified (or, if modified, setting forth all modifications), (ii) setting forth
the date to which the Fixed Rent and all Additional Rent have been paid,
together with the amount of monthly Fixed Rent, Tenant's Tax Payment and
Tenant's Operating Payment then payable, and (iii) stating whether or not, to
Landlord's knowledge, Tenant is in default under this Lease, and, if Landlord
asserts that Tenant is in default, setting forth the specific nature of all such
defaults. Landlord acknowledges that any statement delivered pursuant to this
Section 36.10(b) may be relied upon by any prospective or actual sublessee of
the Premises or assignee of this Lease, or permitted transferee of or successor
to Tenant.
Section 36.11 Certain Rules of Interpretation. For purposes of this
Lease, whenever the words "include", "includes", or "including" are used, they
shall be deemed to be followed by the words "without limitation" and, whenever
the circumstances or the context requires, the singular shall be construed as
the plural, the masculine shall be construed as the feminine and/or the neuter
and vice versa. This Lease shall be interpreted and enforced without the aid of
any canon, custom or rule of law requiring or suggesting construction against
the party drafting or causing the drafting of the provision in question.
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Section 36.12 Captions. The captions in this Lease are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope of this Lease or the intent of any provision hereof.
Section 36.13 Parties Bound. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
Section 36.14 Directory. The lobby shall contain a computerized
directory wherein the Building's tenants shall be listed with a capacity for up
to 50 listings per floor for Tenant and others permitted to occupy the Premises
hereunder, provided Tenant shall be entitled to such proportion of such listings
as the Agreed Area of Premises is to the rentable square foot area of such
floor. From time to time, but not more frequently than once every three (3)
months, Landlord shall reprogram the computerized directory to reflect such
changes in the listings therein as Tenant shall request.
Section 36.15 Counterparts. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
Section 36.16 Memorandum of Lease. Neither this Lease nor a memorandum
in respect of this Lease shall be recorded.
Section 36.17 Survival. All obligations and liabilities of Landlord or
Tenant to the other which accrued before the expiration or other termination of
this Lease, and all such obligations and liabilities which by their nature or
under the circumstances can only be, or by the provisions of this Lease may be,
performed after such expiration or other termination, shall survive the
expiration or other termination of this Lease. Without limiting the generality
of the foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to Fixed Rent, Tenant's Tax
Payment, Tenant's Operating Payment and any other amounts payable under this
Lease, shall survive the expiration or other termination of this Lease.
ARTICLE 37
RENEWAL OPTION
Section 37.1 Exercise of Option. Tenant shall have the right, to renew
the Term for all of the Premises for a single renewal term (the "Renewal Term")
of five (5) years by notice (the "Renewal Notice") delivered to Landlord not
less than 18 months prior to the Expiration
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Date, time being of the essence; provided, however, that (a) Tenant shall not be
in default under any of the terms, covenants or conditions of this Lease either
on the date the Renewal Notice is given or on the Renewal Term Commencement Date
(as hereinafter defined), and (b) the Named Tenant shall not have assigned this
Lease, and shall be in occupancy of at least 80% of the rentable area of the
Premises, provided, further, however, that if Named Tenant shall be in occupancy
of at least 90% of the rentable area of the 23rd Floor Premises, Named Tenant
shall have the right, notwithstanding any of the foregoing to the contrary, to
renew the Term for such full floor of the Premises in accordance with the terms
hereof. Upon the giving of the Renewal Notice (which Renewal Notice shall
specify the space being renewed), this Lease in respect of the Premises or the
23rd Floor Premises, as the case may be, shall be deemed renewed for the Renewal
Term with the same force and effect as if the Renewal Term had originally been
included in the Term. The Renewal Term shall commence on the day after the
Expiration Date (the "Renewal Term Commencement Date") and shall terminate on
the day preceding the fifth (5th) anniversary of the Renewal Term Commencement
Date or such earlier date as this Lease shall terminate pursuant to any of the
terms of this Lease. If Tenant renews the Term in respect of the 23rd Floor
Premises only, Tenant shall prior to the Renewal Term Commencement Date close
any slab penetrations in the Premises.
Section 37.2 Terms. All of the terms, covenants and conditions of this
Lease shall continue in full force and effect in respect of the Premises or the
23rd Floor Premises, as the case may be, during the Renewal Term, except that
(a) the Fixed Rent for the Renewal Term shall be in an amount equal to 100% of
the Fair Market Value (as hereinafter defined), (b) Tenant shall have no further
right to renew the Term, (c) the Base Tax Year shall be the Tax Year commencing
on the July 1st prior to the Renewal Term Commencement Date, and (d) the Base
Expense Year shall be the Comparison Year commencing on the January 1st prior to
the Renewal Term Commencement Date. Any termination, cancellation or surrender
of the entire interest of Tenant under this Lease at any time during the Term
shall terminate any right of renewal of Tenant hereunder.
Section 37.3 Fair Market Value. "Fair Market Value", in respect of the
Premises or the 23rd Floor Premises, as the case may be, shall mean the fair
market annual rental value of the Premises or the 23rd Floor Premises, as the
case may be, at the commencement of the Renewal Term for a term equal to the
Renewal Term, as determined by Landlord based on comparable space in the
Building, including all of Landlord's services provided for in this Lease, and
with (a) the Premises or the 23rd Floor Premises, as the case may be, considered
as vacant, and in the "as is" condition existing on the Renewal Term
Commencement Date, (b) the Base Tax Year being the Tax Year commencing on the
July 1st prior to the Renewal Term Commencement Date, and (c) the Base Expense
Year being the Comparison Year commencing on the January 1st prior to the
Renewal Term Commencement Date. The calculation of Fair Market Value shall also
be adjusted to take into account all relevant factors. Prior to the commencement
of the Renewal Term, Landlord shall deliver to Tenant Landlord's determination
of Fair Market Value.
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Section 37.4 Arbitration. If Tenant shall dispute Landlord's
determination of Fair Market Value, Tenant shall give notice to Landlord of such
dispute within 10 days after the delivery of Landlord's determination to Tenant,
and such dispute shall be determined by a single arbitrator appointed in
accordance with the American Arbitration Association Real Estate Valuation
Arbitration Proceeding Rules. If no notice of dispute is given by Tenant within
such 10-day period (time being of the essence), then Landlord's determination
shall be binding on Tenant. The arbitrator shall be impartial and shall have not
less than 10 years' experience in the County of New York related to the leasing
of commercial office space in office buildings comparable to the Building, and
the fees of the arbitrator shall be shared by Landlord and Tenant. Within 15
days following the appointment of the arbitrator, Landlord and Tenant shall
attend a hearing before the arbitrator at which each party shall submit a report
setting forth its determination of Fair Market Value, together with such
information on comparable rentals and such other evidence as such party shall
deem relevant. The arbitrator shall, within 30 days following such hearing and
submission of evidence, render his or her decision by selecting the
determination of Fair Market Value submitted by either Landlord or Tenant which,
in the judgment of the arbitrator, most nearly reflects the Fair Market Value.
The arbitrator shall have no power or authority to select any Fair Market Value
other than a Fair Market Value submitted by Landlord or Tenant or to modify any
of the provisions of this Lease, and the decision of the arbitrator shall be
final and binding upon Landlord and Tenant. Prior to the determination of the
arbitrator, Tenant shall pay Fixed Rent based on Landlord's determination of
Fair Market Value submitted to Tenant pursuant to Section 37.3, and following
the arbitrator's final determination, the amount of any overpayment or
underpayment shall be appropriately adjusted between the parties.
Section 37.5 Agreement of Terms. Landlord and Tenant, at either party's
request, shall promptly execute and exchange an appropriate agreement evidencing
the extension of the Term for the Renewal Term, and the terms thereof in a form
reasonably satisfactory to both parties, but no such agreement shall be
necessary in order to make the provisions hereof effective.
ARTICLE 38
RIGHT OF FIRST OFFER
Section 38.1 Exercise of Right. If at any time prior to the last 24 months of
the Term (as the same may be extended) all of the rentable area of the 24th
floor of the Building that is not subject to this Lease (such space being
hereinafter referred to as the "Expansion Space") is, or Landlord reasonably
believes the same is to become, Available (as hereinafter defined) after having
been leased by Landlord after the date of this Lease to a new tenant or occupant
and Landlord proposes to lease the Expansion Space, Landlord shall deliver
notice thereof to Tenant (the "Expansion Notice") setting forth Landlord's
determination of the
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Expansion Space Fair Market Value (as hereinafter defined) and the date Landlord
reasonably anticipates that such Expansion Space will become Available. Provided
that all of the conditions precedent set forth in this Article 38 are fully
satisfied by Tenant, Tenant shall have the option (the "Expansion Option"),
exercisable by Tenant delivering irrevocable notice to Landlord ("Acceptance
Notice") within 10 Business Days of the giving by Landlord of the Expansion
Notice, time being of the essence, to lease the Expansion Space upon the terms
and conditions set forth in this Article 38. The Expansion Option may be
exercised only with respect to all of the Expansion Space. If Tenant fails to
timely give an Acceptance Notice with respect to the Expansion Space, Tenant
shall be deemed to have rejected Landlord's offer to lease the Expansion Space
and Landlord shall have no further obligation, and Tenant shall have no further
rights, with respect to the Expansion Space during the Term.
Section 38.2 Definitions. (a) "Available" shall mean that at the time
in question (i) no Person leases or occupies the Expansion Space, whether
pursuant to a lease or other agreement, and (ii) no Person holds any option or
right to lease or occupy the Expansion Space, or to renew its lease or right of
occupancy thereof. So long as a tenant or other occupant leases or occupies a
portion of the Expansion Space, Landlord shall be free to extend any such
tenancy or occupancy, whether or not pursuant to a lease or other agreement, and
such space shall not be deemed to be Available. In no event shall Landlord be
liable to Tenant for any failure by any then existing tenant or occupant to
vacate the Expansion Space. From and after the date Landlord enters into a lease
or other occupancy agreement with respect to the Expansion Space with a Person,
Landlord shall not grant any rights to any tenant or other occupant of the
Building with respect to the Expansion Space unless such rights are subordinate
to the rights granted Tenant hereunder, except to the initial Tenant or occupant
of the Expansion Space after the date of this Lease and to new tenants or
occupants of the Expansion Space after Landlord shall have duly offered the
Expansion Space to Tenant pursuant to this Article 38.
(b) "Expansion Space Fair Market Value," with respect to the Expansion
Space, shall mean the fair market annual rental value of the Expansion Space at
the commencement of the leasing of the Expansion Space for a term commencing on
the Expansion Space Commencement Date (as hereinafter defined) and ending on the
Expiration Date, as determined by Landlord based on comparable space in the
Building, including all of Landlord's services provided for in the Lease and
with (i) the Expansion Space considered as vacant and in the "as is" condition
which same shall be in on the Expansion Space Commencement Date, (ii) the Base
Tax Year being the Tax Year commencing on the July 1st immediately preceding the
Expansion Space Commencement Date and (iii) the Base Expense Year being the
Comparison Year commencing on the January 1st immediately preceding the
Expansion Space Commencement Date. The calculation of Expansion Space Fair
Market Value shall also be adjusted to take into account any other relevant
factors.
Section 38.3 Conditions to Exercise. Tenant shall have no right to
exercise the Expansion Option unless all of the following conditions have been
satisfied on the date the
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Acceptance Notice is delivered to Landlord and on the Expansion Space
Commencement Date:
(a) No Event of Default shall have occurred and be continuing;
(b) Premises; and Tenant shall be in occupancy of 85% of the
rentable area of the
(c) There shall not have occurred any material adverse change in
the financial condition of Tenant from the condition described on the financial
statements submitted by Tenant to Landlord in connection with this Lease.
Section 38.4 Incorporation of Expansion Space. Effective as of the date
on which Landlord delivers vacant possession of the Expansion Space to Tenant
(the "Expansion Space Commencement Date"):
(a) Fixed Rent for the Expansion Space shall be the Expansion Space
Fair Market Value as determined in accordance with this Article 38.
(b) Tenant shall pay Tenant's Tax Payment and Tenant's Operating
Payment with respect to the Expansion Space in accordance with the provisions of
Article 8, except that (i) the Base Tax Year shall be the Tax Year commencing on
the July 1st immediately preceding the Expansion Space Commencement Date, and
(ii) the Base Expense Year shall be the Comparison Year commencing on the
January 1st immediately preceding the Expansion Space Commencement Date;
(c) The rentable square footage of the Expansion Space shall be
4,921 (which the parties agree shall be the rentable square footage of the
Expansion Space for all purposes of this Lease), the Agreed Area of Premises in
respect of the 24th Floor Premises shall be increased to 11,465 rentable square
feet and Tenant's Proportionate Share in respect of Operating Expenses shall be
increased to 4.3261% and in respect of Taxes shall be increased to 4.1472%;
(d) The Expansion Space shall be delivered in its "as is"
condition, and Landlord shall not be obligated to perform any work with respect
thereto or make any contribution to Tenant to prepare Expansion Space for
Tenant's occupancy;
(e) The Security Deposit shall be increased by an amount equal to
(i) the then existing amount of the Security Deposit then required pursuant to
Article 35, divided by the number of rentable square feet then contained in the
Premises, multiplied by (ii) 4,921, which additional Security Deposit shall be
subject to increase and reduction on the same terms and in the same manner as
provided in Section 35.5 as if such amount were included therein; and
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(f) The Expansion Space shall be added to and be deemed to be a
part of the 24th Floor Premises and the Premises for all purposes of this Lease
(except as otherwise provided in this Section 38).
Section 38.5 Possession. In no event shall Landlord be obligated to
incur any fee, cost, expense or obligation, nor to prosecute any legal action or
proceeding, in connection with the delivery of the Expansion Space to Tenant nor
shall Tenant's obligations under this Lease with respect to the Premises or the
Expansion Space be affected thereby. Landlord shall not be subject to any
liability and this Lease shall not be impaired if Landlord shall be unable to
deliver possession of the Expansion Space to Tenant on any particular date.
Tenant hereby waives any right to rescind this Lease or the Acceptance Notice
under the provisions of Section 223-a of the Real Property Law of the State of
New York, and agrees that the provisions of this Section 38.5 are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223-a. Landlord agrees that it shall not waive any rights it may have
against any Person holding over in the Expansion Space, without any obligation
to enforce any such rights.
Section 38.6 Arbitration. If Tenant shall dispute Landlord's
determination of the Expansion Space Fair Market Value, Tenant shall give notice
to Landlord of such dispute within 10 days following the delivery of Landlord's
determination to Tenant, and such dispute shall be determined by a single
arbitrator appointed in accordance with the American Arbitration Association
Real Estate Valuation Arbitration Proceeding Rules. If no notice of any dispute
is given within such 10 day period (time being of the essence), then Landlord's
determination shall be binding upon Tenant. The arbitrator shall be impartial
and shall have not less than 10 years' experience in the County of New York in a
calling related to the leasing of commercial office space in office buildings
comparable to the Building, and the fees of the arbitrator shall be shared by
Landlord and Tenant. Within 15 days following the appointment of the arbitrator,
Landlord and Tenant shall attend a hearing before the arbitrator at which each
party shall submit a report setting forth its determination of the Expansion
Space Fair Market Value, together with such information on comparable rentals
and such other evidence as such party shall deem relevant. The arbitrator shall,
within 30 days following such hearing and submission of evidence, render his or
her decision by selecting the determination of the Expansion Space Fair Market
Value submitted by either Landlord or Tenant which, in the judgment of the
arbitrator, most nearly reflects the Expansion Space Fair Market Value. The
arbitrator shall have no power or authority to select any Expansion Space Fair
Market Value other than an Expansion Space Fair Market Value submitted by
Landlord or Tenant or to modify any of the terms and provisions of this Lease,
and the decision of the arbitrator shall be final and binding upon Landlord and
Tenant. Prior to the determination of the arbitrator, Tenant shall pay Fixed
Rent based on Landlord's determination of the Expansion Space Fair Market Value,
and following the arbitrator's final determination, the amount of any
overpayment or underpayment shall be adjusted between the parties.
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Section 38.7 Agreement of Terms. Landlord and Tenant, at either party's
request, shall promptly execute and exchange an appropriate agreement evidencing
the leasing of the Expansion Space and the terms thereof in a form reasonably
satisfactory to both parties, but no such agreement shall be necessary in order
to make the provisions hereof effective.
ARTICLE 39
SATELLITE DISH
Section 39.1 Right to Install Satellite Dish. (a) Tenant has the option
(the "Satellite Option"), subject to the availability of roof space as
determined by Landlord in its sole discretion, to install- and operate for its
own use (and not for broadcasting to others for a fee or for resale purposes) a
satellite dish, communication antenna, microwave equipment, other
telecommunications equipment and related equipment, mountings, wiring and
support (collectively, the "Satellite Dish") on a portion of the roof of the
Building in a location determined by Landlord in its sole discretion, provided
that (i) the size (which shall not exceed 2 square feet in diameter) and type of
such Satellite Dish shall be approved by Landlord, (ii) Tenant shall comply with
all applicable Requirements (including the obtaining of all required permits and
licenses, and the maintenance thereof and shall provide Landlord or its designee
with true and complete copies thereof prior to the installation or use of the
Satellite Dish), it being understood that Landlord shah, subject to
reimbursement for all reasonable out-of-pocket expenses, reasonably cooperate
with Tenant in connection therewith, including, without limitation, by executing
and delivering to Tenant such applications, instruments and other documents as
Tenant may reasonably request in connection therewith, (iii) the manner of
installation shall be approved by Landlord, which approval shall not be
unreasonably withheld, and (iv) the installation of Tenant's Satellite Dish
shall constitute an Alteration and shall be performed in accordance with the
provisions of Article 5. If Tenant shall exercise the Satellite Option, Landlord
will make available to Tenant, in accordance with Article 5, access to the roof
for the construction, installation, maintenance, repair, operation, replacement,
substitution and use of Tenant's Satellite Dish, as well as space in the
Building to run electrical and telecommunications conduits or cables from such
Satellite Dish to a point of entry in the Premises. All of the provisions of
this Lease shall apply to the construction, installation, maintenance, repair,
operation, replacement, substitution and use of the Satellite Dish, including
provisions relating to compliance with Requirements, insurance, indemnity,
repairs and maintenance as if the Satellite Dish were part of the Premises.
Tenant's Satellite Dish shall be treated for all purposes of this Lease as if it
were a Specialty Alteration. Tenant shall pay all costs of electricity in
connection with the use of the Satellite Dish.
(b) Tenant's Satellite Dish may not cause interference or damage to
other tenants in or occupants of the Building or any Building Systems.
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(c) Landlord shall charge Tenant an annual fee for the use of the
area where the Satellite Dish is placed equal to the established fee from time
to time in effect for the Building. Tenant shall pay such annual fee in equal
monthly installments, at the time and in the manner Fixed Rent is payable
hereunder.
Section 39.2 Relocation. At any time following Tenant's installation of
the Satellite Dish, Landlord may, upon reasonable prior notice to Tenant, direct
Tenant to relocate such Satellite Dish to a location designated by Landlord on
the roof of the Building and providing substantially comparable reception and
transmission as was afforded by the prior location, and Tenant shall relocate
its Satellite Dish as soon as reasonably practicable thereafter (and, in any
event, within 30 days after receipt of Landlord's notice). The cost of
relocating the Satellite Dish shall be borne by Tenant if such relocation shall
be necessary due to any interference with other installations existing on the
date the Satellite Dish was installed, any Requirement or any act or omission of
Tenant (other than mere use), including Tenant's failure to comply with Section
39.1(b). If the relocation shall be required for any other reason, the cost of
the relocation shall be borne by Landlord.
Section 39.3 Compliance with Requirements; Damage; Maintenance Taxes;
etc. (a) Landlord shall not be responsible for complying with any Requirements
(including the obtaining of any required permits or licenses, or the maintenance
thereof) relating to the Satellite Dish, nor shall Landlord be responsible for
any damage that may be caused to Tenant or the Satellite Dish by any other
tenant or occupant of the Building. Landlord makes no representation that
Tenant's Satellite Dish will be able to receive or transmit communication
signals without interference or disturbance (whether or not by reason of the
installation or use of similar equipment by others on the roof) and Tenant
agrees that Landlord shall not be liable to Tenant therefor, it being understood
that Landlord shall reasonably cooperate with Tenant to relocate, at Tenant's
sole expense, the Satellite Dish to an alternate location, to the extent
available at the Building, where the Satellite Dish will be able to receive or
transmit such communication signals without interference or disturbance.
Tenant's use and operation of the Satellite Dish shall also comply with all
Requirements.
(b) Tenant, at Tenant's sole cost and expense, shall paint and
maintain the Satellite Dish in white or such other color as Landlord shall
determine (provided such color or painting of the Satellite Dish does not
adversely affect the operation of the Satellite Dish) and shall install such
lightning rods or air terminals on or about the Satellite Dish as Landlord may
reasonably require.
(c) Tenant shall (i) be solely responsible for any damage caused as
a result of the use, installation or maintenance of the Satellite Dish, (ii)
promptly pay any tax, license, permit or other fees or charges imposed pursuant
to any Requirements relating to the construction, installation, maintenance,
repair, operation or use of the Satellite Dish, (iii) at its sole cost and
expense, promptly comply with all precautions and safeguards required by
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Landlord's insurance company and all Governmental Authorities in connection with
the ownership, use, installation or maintenance and operation of the Satellite
Dish, and (iv) at its sole cost and expense, maintain the Satellite Dish in a
safe and orderly condition, so as not to interfere with other tenants or
occupants in the Building or the operation by others of equipment on the roof of
the Building.
Section 39.4 No Leasehold Interest. Tenant acknowledges and agrees that
the privileges granted Tenant under this Article 39, if exercised, shall not be
deemed to grant Tenant a leasehold or other real property interest in the
Building or any portion thereof in connection with the Satellite Dish.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TST 300 PARK, L.P., Landlord
By: TST 300 PARK CORP., its general partner
By: /s/Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXXXX & CO. LLC, Tenant
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Mng. Director
Tenant's Federal Identification Number:
00-0000000
00
XXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
) s.s.:
COUNTY OF NEW YORK )
On this 11th day of February, in the year 2000 before me, the
undersigned, a Notary Public in and said State, personally appeared Xxxxxxx X.
Xxxxxxxx personally known to me or proved to me on the basis of satisfactory
evidence to be the individuals) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxxxx Xxxxxx
----------------
Notary Public
XXXXX X. XXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York
Commission Expires 1/4/01
EXHIBIT A
FLOOR PLANS
The floor plans which follow are intended solely to identify the
general location of the Premises, and should not be used for any other purpose.
All areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
See Attached
Exhibit X-0
Xxxxx 00 - 000 Xxxx Xxxxxx [Graphic Omitted]
Exhibit X-0
Xxxxx 00 - 000 Xxxx Xxxxxx [Graphic Omitted]
EXHIBIT B
DEFINITIONS
Affiliate: With respect to any Person, any other Person that, directly
or indirectly (through one or more intermediaries), Controls, is Controlled by,
or is under common Control with, such first Person.
Base Rate: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
Building Systems: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to (but not
including) the point of localized distribution to the Premises (excluding,
however, supplemental HVAC systems of tenants (including Tenant), sprinklers and
the horizontal distribution systems within and servicing the Premises and by
which mechanical, electrical, plumbing, sanitary, heating, ventilating and air
conditioning, security, life-safety and other service systems are distributed
from the base Building risers, feeders, panelboards, etc. for provision of such
services to the Premises).
Business Days: All days, excluding Saturdays, Sundays and all days
observed by either the State of New York, the Federal Government or the labor
unions servicing the Building as holidays.
Code: The Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
Consumer Price Index: The Consumer price Index for All Urban Customers,
CPI-U, published by the Bureau of Labor Statistics of the United States
Department of Labor, New York - Northern New Jersey-Long Island, NY-NJ-CT Area
`All Items' (1982-84=100), or any successor index thereto covering New York
City, appropriately adjusted. In the event that the Consumer Price Index is
converted to a different standard reference base or otherwise revised, the
determination of adjustments provided for herein shall be made with the use of
such conversion factor, formula or table for converting the Consumer Price Index
as may be published by the Bureau of Labor Statistics, or, if said Bureau shall
not publish the same, then with the use of such conversion factor, formula or
table as may be published by Xxxxxxxx-Xxxx, Inc., or any other nationally
recognized publisher of similar statistical information. If the Consumer Price
Index ceases to be published, and there is no successor
2
thereto, such other index as Landlord shall select and Tenant shall approve,
such approval not to be unreasonably withheld, shall be substituted for the
Consumer Price Index.
Control: (i) (a) The ownership, directly or indirectly, of more than
50% of the voting stock of a corporation, or (b) in the case of any Person which
is not a corporation, the ownership, directly or indirectly, of more than 50% of
the beneficial ownership interest in such Person, or (ii) in the case of any
such Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person.
Cost Per Kilowatt Hour: (a) The total cost for electricity incurred by
Landlord to service the Building during a particular billing period (including
energy charges, demand charges, surcharges, time-of-day charges, fuel adjustment
charges, rate adjustment charges, taxes, rebates and any other factors used by
the public utility company in computing its charges to Landlord), divided by (b)
the total kilowatt hours purchased by Landlord to provide electricity to the
Building during such period.
Deficiency: The difference between (a) the Fixed Rent and Additional
Rent for the period which otherwise would have constituted the unexpired portion
of the Term (assuming the Additional Rent for each year thereof to be the same
as was payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of this Lease for any part of such period (after
first deducting from such rents all expenses incurred by Landlord in connection
with the termination of this Lease, Landlord's re-entry upon the Premises and
such reletting, including repossession costs, brokerage commissions, attorneys'
fees and disbursements, and alteration costs).
Excluded Expenses: (a) Taxes; (b) franchise or income taxes imposed
upon Landlord; (c) mortgage amortization and interest; (d) leasing commissions;
(e) the cost of tenant installations and decorations incurred in connection with
preparing space for any Building tenant, including workletters and concessions;
(f) ground rent, if any; (g) wages, salaries and benefits paid to any persons
above the level of the immediate supervisor of the Building Manager and
excluding the wages, salaries and benefits of such supervisor to the extent such
supervisor provides services to buildings other than the Building; (h) legal and
accounting fees relating to (A) disputes with tenants, prospective tenants or
other occupants of the Building, (B) disputes with purchasers, prospective
purchasers, mortgagees or prospective mortgagees of the Building or the Real
Property or any part of either, or (C) negotiations of leases, contracts of sale
or mortgages; (i) costs of services provided to other tenants of the Building on
a "rent-inclusion" basis which are not provided to Tenant on such basis; (j)
costs that are reimbursed out of insurance, warranty or condemnation proceeds,
or which are reimbursable by Tenant or other tenants other than pursuant to an
expense escalation clause; (k) costs in the nature of penalties or fines; (l)
costs for services, supplies or repairs paid to any related entity in excess of
costs that would be payable in an "arm's length" or unrelated situation; (m)
allowances, concessions or other costs and expenses of
3
improving or decorating any demised or demisable space in the Building; (n)
advertising and promotional expenses in connection with leasing of the Building;
(o) the costs of installing, operating and maintaining a specialty improvement,
including a cafeteria, lodging or private dining facility, or an athletic,
luncheon or recreational club unless Tenant is permitted to make use of any such
facility without additional cost or on a subsidized basis consistent with other
users; (p) any costs or expenses (including fines, interest, penalties and legal
fees) arising out of Landlord's failure to timely pay Operating Expenses or
Taxes; (q) costs incurred in connection with the removal, encapsulation or other
treatment of asbestos or any other Hazardous Materials existing in the Premises
as of the date hereof, and (r) the cost of capital improvements other than those
expressly included in Operating Expenses pursuant to Section 8.1 of this Lease.
Governmental Authority (Authorities): The United States of America, the
City, County or State of New York, or any political subdivision, agency,
department, commission, board, bureau or instrumentality of any of the
foregoing, or any landmarks preservation agency (or other entity designated or
accepted for such purpose by any Governmental Authority or landmarks
preservation agency), now existing or hereafter created, having jurisdiction
over the Real Property or any portion thereof or the curbs, sidewalks, and areas
adjacent thereto.
Hazardous Materials: Any substances, materials or wastes currently or
in the future deemed or defined in any Requirements as "hazardous substances",
"toxic substances", "contaminants", "pollutants" or words of similar import.
HVAC Systems: The Building System designed to provide heating,
ventilation and air conditioning.
Indemnitees: Landlord, Landlord's Agent, each Mortgagee and Lessor, and
each of their respective direct and indirect partners, officers, shareholders,
managers, directors, members, trustees, beneficiaries, employees, principals,
contractors, licensees, invitees, servants, agents and representatives.
Lessor: A lessor under a Superior Lease. Mortgage(s): Any mortgage,
trust indenture or other financing document (including any assignment of leases
and rents) which may now or hereafter affect the Premises, the Real Property,
the Building or any Superior Lease and the leasehold interest created thereby,
and all renewals, extensions, supplements, amendments, modifications,
consolidations and replacements thereof or thereto, substitutions therefor, and
advances made thereunder.
Mortgagee(s): Any mortgagee, trustee or other holder of a Mortgage.
4
Person: Any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in common or other entity,
or any Governmental Authority.
Prohibited Use: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would be likely to: (a) cause damage to the Building, the
Premises or any equipment, facilities or other systems therein; (b) impair the
appearance of the Premises or the Building; (c) interfere with the efficient and
economical maintenance, operation and repair of the Premises or the Building or
the equipment, facilities or systems thereof; (d) adversely affect any service
provided to, and/or the use and occupancy by, any Building tenant or occupants;
(e) violate the certificate of occupancy issued for the Premises or the Building
or (f) adversely affect the image of the Building as a first-class office
location in midtown Manhattan. Prohibited Use also includes the use of any part
of the Premises for: (i) a restaurant or bar; (ii) the preparation, consumption,
storage, manufacture or sale of food or beverages (except in connection with
vending machines and/or warming kitchens installed for the use of Tenant's
employees only), liquor, tobacco or drugs; (iii) the business of photocopying,
multilith or offset printing (except photocopying in connection with Tenant's
own business); (iv) a typing or stenography business; (v) a school or classroom;
(vi) lodging or sleeping; (vii) the operation of retail facilities (meaning a
business whose primary patronage arises from the generalized solicitation of the
general public to visit Tenant's offices in person without a prior appointment)
of a savings and loan association or retail facilities of any financial,
lending, securities brokerage or investment activity; (viii) a payroll office;
(ix) a xxxxxx, beauty or manicure shop; (x) an employment agency, executive
search firm or similar enterprise; (xi) offices of any Governmental Authority,
any foreign government, the United Nations, or any agency or department of the
foregoing; (xii) the manufacture, retail sale, storage of merchandise or auction
of merchandise, goods or property of any kind to the general public which could
reasonably be expected to create a volume of pedestrian traffic substantially in
excess of that normally encountered in the Premises; (xiii) the rendering of
medical, dental or other therapeutic or diagnostic services; (xiv) a discount
drug store or discount clothing store or a "fast food" restaurant; or (xv) any
illegal purposes or any activity constituting a nuisance.
Requirements: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary, of (i) all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C ss. 12101 (et seq.), New York City Local Law 58 of
1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters and landmarks
preservation, (ii) any applicable fire rating bureau or other body exercising
similar functions, affecting the Real Property or the maintenance, use or
occupation thereof, or any street, avenue or sidewalk comprising a part of or in
front thereof or any vault in or under the same and (iii) all requirements of
all insurance bodies affecting the Premises.
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Rules and Regulations: The rules and regulations annexed to and made a
part of this Lease as Exhibit F, as they may be modified from time to time by
Landlord.
Specialty Alterations: Alterations consisting of kitchens, pantries,
executive bathrooms, raised computer floors, computer installations, safe
deposit boxes, vaults, libraries or file rooms requiring reinforcement of
floors, internal staircases, conveyors, dumbwaiters, and other Alterations of a
similar character.
Substantial Completion: As to any construction performed by any party
in the Premises, including the Initial Installations, any Alterations or
Landlord's Work, "Substantial Completion" or "Substantially Completed" means
that such work has been completed, as reasonably determined by Landlord's
architect, in accordance with (a) the provisions of this Lease applicable
thereto, (b) the plans and specifications for such work, and (c) all applicable
Requirements, except for minor details of construction, decoration and
mechanical adjustments, if any, the non-completion of which does not materially
interfere with Tenant's use of the Premises or which, in accordance with good
construction practice, should be completed after the completion of other work to
be performed in the Premises ("Punch List Items").
Superior Lease(s): Any ground or underlying lease of the Real Property
or any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
Tenant Delay: Any delay which results from any act or omission of any
Tenant Party, including delays due to changes in or additions to, or
interference with any work to be done by Landlord, or delays by Tenant in
submission of information approving working drawings or estimates or giving
authorizations or approvals.
Tenant Party: Any of Tenant, any Affiliate of Tenant, any subtenant or
any other occupant of the Premises, or any of their respective direct or
indirect partners, officers, shareholders, directors, members, trustees,
beneficiaries, employees, principals, contractors, licensees, invitees,
visitors, servants, agents, or representatives.
Tenant's Property: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, trade fixtures, furniture,
furnishings, and other items of personal property which are removable without
material damage to the Premises or Building.
Unavoidable Delays: Landlord's inability to fulfill or delay in
fulfilling any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or Landlord's inability to make or delay in making any
repairs, additions, alterations, improvements or decorations or Landlord's
inability to supply or delay in supplying any equipment or fixtures, if
Landlord's inability or delay is due to or arises by reason of strikes,
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labor troubles or by accident, or by any cause whatsoever beyond Landlord's
reasonable control, including Requirements, laws, governmental preemption in
connection with a national emergency, shortages, or unavailability of labor,
fuel, steam, water, electricity or materials, or delays caused by Tenant or
other tenants, mechanical breakdown, acts of God, enemy action, civil commotion,
fire or other casualty.
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EXHIBIT C
LANDLORD'S WORK
The following work (unless otherwise specifically provided herein) shall be of
material, manufacture, design, capacity, quality, finish and color of the
standard adopted by Landlord for the Building and, where quantities are
hereinafter specified, such quantities shall include any existing installations
to the extent useable and used in the performance of such work.
1. Demolish the existing tenant installations in the Premises.
2. Provide copies of the ACP-5 certificates for the demolition work described
in item 1 above.
3. Demise the 24th Floor Premises.
4. Provide sprinkler OS&Y valve on each floor of the Building on which the
Premises is located.
5. Provide a point or points of connection for Tenant's class E fire alarm
system in compliance with Requirements in a location designated by Landlord.
6. Repair damaged perimeter fan coils, as required.
7. Fireproof exposed structural steel columns and beams in the Premises where
required.
8. Install new exterior windows in the Premises. Landlord shall not be
obligated to install the new clear-glass lot line windows until Tenant
completes the installation of the sprinkler system in the Premises in
compliance with Requirements applicable to clear-glass lot line windows.
EXHIBIT D
HVAC SPECIFICATIONS
The HVAC System shall be capable of maintaining 75 degrees Fahrenheit
plus or minus 2 degrees and 50% humidity (no humidity control), when outdoor
conditions are 92 degrees Fahrenheit dry bulb and 73 degrees Fahrenheit wet
bulb. The HVAC System shall be capable of maintaining 70 degrees Fahrenheit when
outdoor temperature is 15 degrees dry bulb. The HVAC System is designed based
upon (1) electrical usage of 4 xxxxx per usable square foot for all purposes
(lighting and power), (2) occupancy rate of one person per 150 usable square
feet, (3) the provision of 20 CFM of outside air ventilation per person, (4) ail
windows in the Premises being closed and (5) shades fully drawn and partially
closed.
EXHIBIT E
CLEANING SPECIFICATIONS
GENERAL CLEANING
NIGHTLY
General Offices:
1. All hard surfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window xxxxx.
4. Empty all waste receptacles and remove wastepaper.
5. Wash clean all Building water fountains and coolers.
6. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles, fill receptacles from tenant supply and
remove wastepaper.
7. Fill toilet tissue holders from tenant supply.
8. Empty and clean sanitary disposal receptacles.
WEEKLY
1. Vacuum all carpeting and rugs.
2. Dust all door louvers and other ventilating louvers within a person's
normal reach.
3. Wipe clean all brass and other bright work.
QUARTERLY
High dust premises complete including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust all vertical surfaces, such as walls, partitions, doors, bucks
and other surfaces not reached in nightly cleaning.
3. Dust all venetian blinds.
4. Wash all windows.
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EXHIBIT F
RULES AND REGULATIONS
1. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades, screens or other
obstructions shall be attached to or hung in or used in connection with any
exterior window or entry door of the Premises, without the prior written consent
of Landlord.
2. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed to any part of the outside of the
Premises or Building or on the inside of the Premises if the same can be seen
from the outside of the Premises without the prior written consent of Landlord.
Lettering on doors, if and when approved by Landlord, shall be inscribed,
painted or affixed for Tenant in a size, color and style acceptable to Landlord.
3. The grills, louvers, skylights, windows and doors that reflect or
admit light and/or air into the Premises, halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant, nor shall
any bottles, parcels or other article be placed on the window xxxxx, radiators
or convectors.
4. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a Building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
5. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress or egress to and from the Premises and
for delivery of merchandise, equipment and other personal property in prompt and
efficient manner, using elevators and passageways designated for such delivery
by Landlord.
6. Except in those areas designated by Tenant as "security areas", all
locks or bolts of any kind shall be operable by the Grand Master Key. No locks
shall be placed upon any of the doors or windows by Tenant, nor shall any
changes be made in locks or the mechanism thereof which shall make such locks
inoperable by said Grand Master Key. Tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to or otherwise procured by Tenant and in the event of the loss
of any keys furnished by Landlord, Tenant shall pay to Landlord the cost
thereof.
7. Tenant shall keep the entrance door to the Premises closed at all
times.
8. All removals or the carrying in or out of any freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during Building standard hours. Landlord reserves the right to
inspect all objects and matter to be brought into the Building and to exclude
from the Building all objects and matter which violates any of these Rules and
Regulations or the lease of which these Rules and Regulations are a part.
Landlord may require that any person leaving the public areas of the Building
with any package, object or matter submit a pass, listing each package, object
or matter being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on Landlord for the protection
of Tenant against the removal of property from the Premises.
9. There shall not be used in any space or in the public halls of the
Building, either by Tenant or by jobbers or any others in the moving or delivery
or receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord requires.
10. None of Tenant's employees, visitors or contractors shall be
permitted to have access to the Building's roof, mechanical, electrical or
telephone rooms without permission from Landlord.
11. Tenant shall not make or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
Buildings or premises or those having business with them.
12. Tenant shall not lay floor tile, or other similar floor covering so
that the same shall come in direct contact with the floor of the Premises and,
if such floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
13. Neither Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees shall at any time bring or keep upon the Premises any
hazardous material, inflammable, combustible or explosive fluid, chemical or
substance except such minimal quantities as are incidental to normal office
occupancy.
14. Tenant shall not use or keep, or permit to be used or kept, any
hazardous or toxic materials or any foul or noxious gas or substance in the
Premises, permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors, vibrations or interfere in any way with other tenants or
those having business therein.
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15. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises
which would annoy other tenants or create a public or private nuisance.
16. Except as specifically provided in the Lease, Tenant shall not do
any cooking or conduct any restaurant, luncheonette or cafeteria for the sale or
service of food or beverages to its employees or to others.
17. Tenant may, at its sale cost and expense and subject to compliance
with all applicable requirements of the Lease, install and maintain vending
machines for the exclusive use by Tenant, its officers, employees and business
guests, provided that each machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain. Tenant shall not permit the delivery of
any food or beverage to the Premises, except by persons approved by Landlord,
which approval shall not be unreasonably withheld or delayed.
18. Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning the Premises, unless otherwise
agreed to by Landlord in writing. Tenant shall not cause any unnecessary labor
by reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
19. Tenant shall store all its trash, garbage and recyclables within
its Premises. No material shall be disposed of which may result in a violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entry ways and elevators provided for such purposes
and at such times as Landlord shall designate. Tenant shall use Building's
hauler.
20. Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
21. Tenant shall not xxxx, paint, drill into or in any way deface any
part of the Premises or the Building, except with the prior written consent of
Landlord in the case of the Premises, which consent shall not be unreasonably
withheld. No boring, cutting or stringing of wires shall be permitted, except
with prior written consent of Landlord, and as Landlord may direct.
22. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant
who or whose servants, employees, agents, visitors or licensees shall have
caused the same.
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23. Tenant, before closing and leaving the Premises at any time, shall
see that all lights, water, faucets, etc. are turned off. All entrance doors in
the Premises shall be left locked by Tenant when the Premises are not in use.
24. No bicycles, in-line roller skates, vehicles or animals of any kind
(except for seeing eye dogs) shall be brought into or kept by Tenant in or about
the Premises or the Building.
25. Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
26. The Premises shall not be used for lodging or sleeping or for an
immoral or illegal purposes.
27. The Premises shall not be used for manufacturing, for the storage
of merchandise, or for the sale of merchandise, goods or property of any kind at
auction or otherwise, except as specifically permitted by the Lease.
28. Tenant shall not occupy or permit any portion of the Premises as an
office for a public stenographer or public typist or for the possession,
storage, manufacture of sale of narcotics, dope or tobacco in any form or as a
xxxxxx or manicure shop or as an employment bureau. Tenant shall not engage or
pay any employees on the Premises, except those actually working for Tenant on
the Premises, nor advertise for labor giving an address at the Premises.
29. Tenant shall not accept barbering or bootblacking services in the
Premises, from any company or persons not approved by Landlord, which approval
shall not be unreasonably withheld, and at hours and under regulations other
than as reasonably fixed by Landlord.
30. The requirements of Tenant will be attended to only upon written
application at the office of the building, except in the event of any emergency
condition. Employees of Landlord or Landlord's agents shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from the office of Landlord or in response to an emergency condition.
31. Tenant shall be responsible for the delivery and pick up of all
mail from the United States Post office.
32. Landlord reserves the right to exclude from the Building between
the hours of 6 P.M. and 8 AM. and at all hours on Saturdays, Sundays and
holidays observed by the Building all persons who do not present a pass to the
Building signed or approved by Landlord, which approval shall not be
unreasonably withheld. Tenant shall be responsible
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for all persons for whom a pass shall be issued at the request of Tenant and
shall be liable to Landlord for all acts of such persons.
33. In accordance with the alteration section of the Lease, Landlord is
entitled to review and approve architectural and engineering drawings. The
review/alteration of Tenant drawings and/or specifications by Tishman Speyer
Properties and any of its representative is not intended to verify Tenant's
engineering or design requirements and/or solutions. The review/alteration is
performed to determine compatibility with the Building Systems and lease
conditions.
34. Tenant renovations are to be performed by those contractors and
subcontractors on the Landlord's approved contractor's list, adhere to the
Building's applicable Standard Operating Procedures, be compatible with Building
Class E System and other common systems, etc.
35. Landlord may waive anyone or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
36. Landlord shall not be responsible to Tenant or to any other person
for the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read the Rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the Premises.
37. These Rules and Regulations are in addition to, and shall not be
constructed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
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EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") made as of the __ day of , 2000, by and among SUNAMERICA LIFE
INSURANCE COMPANY, an Arizona corporation, its successors or assigns ("Lender"),
___________ a _____________ ("Tenant"), and TST 300 PARK, L.P., a Delaware
limited partnership ("Landlord").
WITNESSETH:
WHEREAS, Lender has agreed to make a loan (the "Loan") in the maximum
principal amount of $168,000,000.00 to Landlord;
WHEREAS, the Loan will be evidenced by a promissory note (the "Note")
dated as of June 15, 1999 made by Landlord to order of Lender and was secured
by, among other things, that certain Agreement of Confirmation Reaffirmation,
Consolidation and Modification of Mortgage and Note dated as of June 15, 1999
(the "Mortgage") made by Landlord to Lender covering the land (the "Land")
described on Schedule A hereto and all improvements (the "Improvements") now or
hereafter located on the land (the Land and the Improvements hereinafter
collectively referred to as the "Mortgaged Property"); and
WHEREAS, by a lease dated as of , 2000 (which lease, as the same
may have been amended and supplemented, is hereinafter called the "Lease"),
Landlord leased to Tenant approximately square feet of space located in
the Improvements (the "Premises"); and
WHEREAS, the parties hereto desire to make the Lease subject and
subordinate to the Mortgage.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby agree as follows:
1.
The Lease, as the same may hereafter be modified, amended or extended, and all
of Tenant's right, title and interest in and to the Premises and all rights,
remedies and options of Tenant under the Lease, are and shall be unconditionally
subject and subordinate to the Mortgage and the lien thereof, to all the terms,
conditions and provisions of the Mortgage, to each and every advance made or
hereafter made under the Mortgage, and to all renewals, modifications,
consolidations, replacements, substitutions and extensions of the Mortgage, so
that at all times the Mortgage shall be and remain a lien on the Mortgaged
Property prior and superior to the Lease for all purposes; provided, however,
and Lender agrees, that so long as (A) no event has occurred and no condition
exists, which would entitle Landlord to terminate the Lease or would cause,
without further action of Landlord, the termination of the Lease or would
entitle Landlord to dispossess Tenant from the Premises, (B) the term of the
Lease has commenced and Tenant is in possession of the Premises, (C) the Lease
shall be in full force and effect and shall not have been otherwise modified or
supplemented in any way without Lender's prior written consent, (D) Tenant shall
duly confirm its attornment to Lender or its successor or assign by written
instrument as set forth in Paragraph 3 hereof, (E) neither Lender nor its
successors or assigns shall be liable under any warranty of construction
contained in the Lease or any implied warranty of construction, and (F) all
representations and warranties made herein by Tenant shall be true and correct
as of the date of such attornment; then, and in such event Tenant's leasehold
estate under the Lease shall not be terminated, Tenant's possession of the
Premises shall not be disturbed by Lender and Lender will accept the attornment
of Tenant.
2.
Notwithstanding anything to the contrary contained in the Lease, Tenant hereby
agrees that in the event of any act, omission or default by Landlord or
Landlord's agents, employees, contractors, licensees or invitees which would
give Tenant the right, either immediately or after the lapse of a period of
time, to terminate the Lease, or to claim a partial or total eviction, or to
reduce the rent payable thereunder or credit or offset any amounts against
future rents payable thereunder, Tenant will not exercise any such right (i)
until it has given written notice of such act, omission or default to Lender by
delivering notice of such act, omission or default, in accordance with Paragraph
8 hereof, and (ii) until a period of not less than sixty (60) days for remedying
such act, omission or default shall have elapsed following the giving of such
notice. Notwithstanding the foregoing, in the case of any default of Landlord
which cannot be cured within such sixty (60) day period, if Lender shall within
such period proceed promptly to cure the same (including such time as may be
necessary to acquire possession of the Premises if possession is necessary to
effect such cure) and thereafter shall prosecute the curing of such default with
diligence, then the time within which such default may be cured by Lender shall
be extended for such period as may be necessary to complete the curing of the
same with diligence. Lender's cure of Landlord's default shall not be considered
an assumption by Lender of Landlord's other obligations under the Lease. Unless
Lender otherwise agrees in writing, Landlord shall remain solely liable to
perform Landlord's obligations under the Lease (but only to the extent required
by and subject to the limitation included with the Lease), both before and after
Lender's exercise of any right or remedy under this Agreement. If Lender or any
successor or assign becomes obligated to perform as Landlord under the Lease,
such person or entity will be released from those obligations when such person
or entity assigns, sells or otherwise transfers its interest in the Premises or
the Mortgaged Property.
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3.
Without limitation of any of the provisions of the Lease, in the event that
Lender succeeds to the interest of Landlord or any successor to Landlord, then
subject to the provisions of this Agreement including, without limitation,
Paragraph 1 above, the Lease shall nevertheless continue in full force and
effect and Tenant shall and does hereby agree to attorn to and accept Lender and
to recognize Lender as its Landlord under the Lease for the then remaining
balance of the term thereof, and upon request of Lender, Tenant shall execute
and deliver to Lender an agreement of attornment reasonably satisfactory to
Lender.
4.
If Lender succeeds to the interest of Landlord or any successor to Landlord, in
no event shall Lender have any liability for any act or omission of any prior
landlord under the Lease which occurs prior to the date Lender succeeds to the
rights of Landlord under the Lease, nor any liability for claims, offsets or
defenses which Tenant might have had against Landlord. In no event shall Lender
have any personal liability as successor to Landlord and Tenant shall look only
to the estate and property of Lender in the Land and the Improvements for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money in the event of any default by
Lender as Landlord under the Lease, and no other property or assets of Lender
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to the Lease.
5.
Tenant agrees that no prepayment of rent or additional rent due under the Lease
of more than one month in advance, and no amendment, modification, surrender or
cancellation of the Lease, and no waiver or consent by Landlord under the terms
of the Lease, shall be binding upon or as against Lender, as holder of the
Mortgage, and as Landlord under the Lease if it succeeds to that position,
unless consented to in writing by Lender. In addition, and notwithstanding
anything to the contrary set forth in this Agreement, Tenant agrees that Lender,
as holder of the Mortgage, and as Landlord under the Lease if it succeeds to
that position, shall in no event have any liability for the performance or
completion of any initial work or installations or for any loan or contribution
or rent concession towards initial work, which are required to be made by
Landlord (A) under the Lease or under any related Lease documents or (B) for any
space which may hereafter become part of said Premises, and any such requirement
shall be inoperative in the event Lender succeeds to the position of Landlord
prior to the completion or performance thereof. Tenant further agrees with
Lender that Tenant will not voluntarily subordinate the Lease to any lien or
encumbrance without Lender's prior written consent.
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6.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute and be
construed as one and the same instrument.
7.
All remedies which Lender may have against Landlord provided herein, if any, are
cumulative and shall be in addition to any and all other rights and remedies
provided by law and by other agreements between Lender and Landlord or others.
If any party consists of multiple individuals or entities, each of same shall be
jointly and severally liable for the obligations of such party hereunder.
8.
All notices to be given under this Agreement shall be in writing and shall be
deemed served upon receipt by the addressee if served personally or, if mailed,
upon the first to occur of receipt or the refusal of delivery as shown on a
return receipt, after deposit in the United States Postal Service certified
mail, postage prepaid, addressed to the address of Landlord, Tenant or Lender
appearing below, or, if sent by telegram, when delivered by or refused upon
attempted delivery by the telegraph office. Such addresses may be changed by
notice given in the same manner. If any party consists of multiple individuals
or entities, then notice to anyone of same shall be deemed notice to such party.
Lender's Address:
Xxx XxxXxxxxxx Xxxxxx
Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Tenant's Address:
----------------------------
----------------------------
----------------------------
Attention: _________________
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Landlord's Address:
c/o Tishman Speyer Properties, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
9.
This Agreement shall be interpreted and construed in accordance with and
governed by the laws of the State of New York.
10.
This Agreement shall apply to, bind and inure to the benefit of the parties
hereto and their respective successors and assigns. As used herein "Lender"
shall include any subsequent holder of the Mortgage.
11.
Tenant acknowledges that Landlord has assigned to Lender its right, title and
interest in the Lease and to the rents, issues and profits of the Mortgaged
Property and the Property pursuant to the Mortgage, and that Landlord has been
granted the license to collect such rents provided no Event of Default has
occurred under, and as defined in, the Mortgage. Tenant agrees to pay all rents
and other amounts due under the Lease directly to Lender upon receipt of written
demand by Lender, and Landlord hereby consents thereto. The assignment of the
Lease to Lender, or the collection of rents by Lender pursuant to such
assignment, shall not obligate Lender to perform Landlord's obligations under
the Lease.
5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LENDER:
SUNAMERICA LIFE INSURANCE
COMPANY, an Arizona corporation
By:
---------------------------
Name:
-------------------------
Title:
------------------------
LANDLORD:
TST 300 PARK, L.P., a Delaware Limited
Partnership
By: TST 300 Park Corp., its general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
TENANT:
, a
---------------- -----------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
6
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) s.s.:
COUNTY OF ___________ )
On this __ day of , in the year 2000 before me, the undersigned, a
Notary Public in and for said State, personally appeared ______, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument on
behalf of SunAmerica Life Insurance Company and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
------------------------------
Notary Public
ACKNOWLEDGMENT
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On this __ day of December, in the year 2000 before me, the
undersigned, a Notary Public in and for said State, personally appeared ________
______________ , personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument on behalf of and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
------------------------------
Notary Public
ACKNOWLEDGMENT
STATE OF NEW YORK )
) s.s.:
COUNTY OF NEW YORK )
On this __ day of , in the year 2000 before me, the undersigned,
a Notary Public in and for said State, personally appeared _______________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
on behalf of TST 300 Park, L.P. and acknowledged to me that he/she/they executed
the same in his/her/their capacity(ies), and that by his/her/their signature(s)
on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
------------------------------
Notary Public
SCHEDULE A
DESCRIPTION OF THE LAND
ALL THAT CERTAIN plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of Xxxx
00xx Xxxxxx with the westerly side of Park Avenue;
RUNNING THENCE westerly along the northerly side of East 49th Street, 211 feet;
THENCE northerly parallel with Park Avenue and part of the way through a party
wall 100 feet 5 inches to the center line of the block;
THENCE easterly along the center line of the block, 83 feet;
THENCE northerly again parallel with Park Avenue part of the way through a party
wall, 100 feet 5 inches to the southerly side of Xxxx 00xx Xxxxxx;
THENCE easterly along the southerly side of East 50th Street, 128 feet to the
corner formed by the intersection of the southerly side of Xxxx 00xx Xxxxxx and
the westerly side of Park Avenue;
THENCE southerly along the westerly side of Park Avenue, 200 feet 10 inches to
the point or place of BEGINNING.
