SEVENTH AMENDMENT OF LEASE
SEVENTH AMENDMENT OF
LEASE
THIS
SEVENTH AMENDMENT OF LEASE, (this "Amendment") made as
of the ___ day of June, 2008 (sometimes referred to as the "date hereof"), by and
between ONE PENN PLAZA
LLC, a New York limited liability company, having an office c/o Vornado
Office Management LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and BROADPOINT SECURITIES GROUP,
INC., a New York corporation with an address at Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxxx ("Tenant").
W I T N E S S E T
H:
WHEREAS, by Agreement of Lease, dated
as of March 21, 1996 (the "Original Lease"),
Landlord’s predecessor-in-interest, Mid-City Associates ("Mid-City") did demise
and let unto First Albany Companies, Inc. ("FAC"), and FAC did
hire and take from Mid-City the entire forty-second (42nd) floor
as more particularly identified in the Original Lease (the "42nd Floor Premises"), of
the building known as and by the street address of Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx (the "Building");
WHEREAS, by a Lease Modification
Agreement, dated as of June 17, 1996 and a Second Lease Modification Agreement,
dated as of July 12, 1996, and as more particularly provided in such amendments,
Landlord leased to Tenant (x) a portion of the forty-first (41st) floor
of the Building, as more particularly identified therein (the "First 41st Floor Premises") and
(y) a portion of the fortieth (40th) floor
of the Building, as more particularly shown on Exhibit "C" attached hereto and
made a part hereof and identified thereon as Spaces "A", "B", "C" and "D"
(collectively, the "Original 40th Floor
Premises");
WHEREAS, Landlord succeeded to
Mid-City’s interest in the Building;
WHEREAS, pursuant to a Third Amendment
of Lease, dated December 1, 1999, and as more particularly provided therein,
Landlord leased to Tenant an additional portion of the forty-first (41st) floor
of the Building (together with the First 41st Floor
Premises, the "41st Floor
Premises");
WHEREAS, Landlord and Tenant entered into a Fourth Amendment of Lease, dated as
of August 1, 2000;
WHEREAS, Landlord
and Tenant entered into a Fifth Amendment of Lease, dated as of December 19,
2003 (the "Fifth
Amendment"), and a Sixth Amendment of Lease (the "Sixth Amendment"),
dated as of September 30, 2004 (the Original Lease, as heretofore amended, the
"Lease"),
regarding the subleasing by Tenant to Wiener Realty Management, LLC ("Wiener") of certain
portions of the Original 40th Floor
Premises, including Space "A" and Space "D", but excluding Space "B" and Space
"C";
WHEREAS,
as used herein, (i) the term "Expiring Premises"
shall mean collectively, (x) Space "A" and Space "D" comprising a
part of the Original 40th Floor
Premises, as more particularly identified on Exhibit "C" attached hereto and
made a part hereof and (y) the 41st Floor
Premises, (ii) the term "40th Floor Premises"
shall mean collectively, Space "B" and Space "C" comprising a part of the
Original 40th Floor
Premises, as more particularly identified on Exhibit "C" attached hereto and
made a part hereof , and (iii) the terms "Premises" and "demised premises" as
used herein and in the Lease shall mean, (x) prior to the Effective Date (as
hereinafter defined), collectively, the 42nd Floor
Premises, the Original 40th Floor
Premises and the 41st Floor
Premises; and (y) from and after the Effective Date, collectively, subject to
Paragraph 2 hereof, the 40th Floor
Premises and the 42nd Floor
Premises;
WHEREAS,
FAC changed its name to Broadpoint Securities Group, Inc.; and
WHEREAS,
Landlord and Tenant desire to modify the Lease to extend the term thereof and
otherwise modify the Lease as set forth herein.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein, and of the sum of Ten Dollars ($10.00) paid
by Tenant to Landlord, and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged, the parties
hereto, for themselves, their legal representatives, successors and assigns,
hereby agree as follows:
1. Definitions. All
capitalized terms used herein shall have the meanings ascribed to them in the
Lease, unless otherwise defined herein.
2. Lease
Term. The term of the Lease, with respect to the 40th Floor
Premises and the 42nd Floor
Premises only, is hereby extended on all of the same terms and conditions set
forth in the Lease, as hereinafter modified, so that the term of the Lease shall
expire at 11:59 PM on March 31, 2021 (the "New Expiration
Date"), unless it shall sooner expire pursuant to any of the terms,
covenants or conditions of the Lease, as amended by this Amendment, or pursuant
to law. Accordingly, from and after the date hereof, the New
Expiration Date shall be deemed to be the expiration of the term of the Lease
(as such words are used in the Lease, as amended hereby) for all purposes of the
Lease, as amended hereby. Notwithstanding the foregoing provisions of this
Paragraph 2 to the contrary, in addition to Landlord’s termination right under
Paragraph 3(H) hereof, Tenant shall have the right to terminate the Lease, with
respect to the 40th Floor
Premises only, effective on the last day of any month, without payment or
penalty, by giving Landlord at least sixty (60) days' prior notice of the date
on which the Lease (as amended hereby), with respect to the 40th Floor
Premises only, shall terminate and on the date specified in such notice, the
Term of the Lease shall expire with respect to the 40th Floor
Premises only, and the provisions of Article 18 shall be applicable to the
40th
Floor Premises. The date on which the Lease terminates in respect of
the 40th Floor
Premises (whether pursuant to this Paragraph 2 or otherwise) is sometimes
referred to herein as the "40th Floor Premises Termination
Date"). On the original expiration of the term of the Lease which is
October 31, 2008 (the "Expiring Premises Expiration
Date"), the term of the Lease shall expire with respect to the Expiring
Premises only, and the provisions of Article 18 shall be applicable thereto;
provided, however, that as to the portion of the Expiring Premises located on
the 40th floor
of the Building (i.e., Spaces "A" and "D"), from and after the Expiring Premises
Expiration Date, Tenant shall have no further obligation to Landlord in respect
thereof (including, without limitation, any obligation arising from a holdover
in Spaces "A" and "D" by Wiener, except to the extent such obligation accrued
prior to the Expiring Premises Expiration Date; and provided, further, that as
to the entire Expiring Premises (on the Expiring Premises Expiration Date), and
as to the 40th Floor
Premises (on the 40th Floor
Expiration Date), Tenant shall have no obligation to remove any alterations
thereto made by or for Tenant.
3. Modification of
Lease: 40th Floor
Premises. With respect to the 40th Floor
Premises only, from and after November 1, 2008 (the "Effective Date"), or
such earlier date as may be specified herein, the Lease is modified and amended
as follows:
(A) The
fixed annual rent (including the ERIF equal to $3.50 per rentable square foot as
of the date hereof) shall be an amount equal to:
(i) One
Hundred Eighty-Five Thousand One Hundred Sixty-Six Dollars and No Cents
($185,166.00) per annum ($15,430.50 per
month), for the period commencing on the Effective Date and ending on the day
immediately preceding the fourth (4th)
anniversary of the Premises Rent Commencement Date (as hereinafter defined),
payable in advance in equal monthly installments at the times and in the manner
provided in the Lease;
(ii) One
Hundred Ninety-Nine Thousand Seven Hundred Forty-Six Dollars and No Cents
($199,746.00) per annum ($16,645.50 per
month), for the period commencing on the fourth (4th)
anniversary of the Premises Rent Commencement Date and ending on the day
immediately preceding the eighth (8th)
anniversary of the Premises Rent Commencement Date, payable in advance in equal
monthly installments at the times and in the manner provided in the Lease;
and
(iii) Two
Hundred Fourteen Thousand Three Hundred Twenty-Six Dollars and No Cents
($214,326.00) per annum ($17,860.50 per
month), for the period commencing on eighth (8th)
anniversary of the Premises Rent Commencement Date and ending on the New
Expiration Date, payable in advance in equal monthly installments at the times
and in the manner provided in the Lease.
(B) Section 27.04(b) of
the Lease shall be modified as follows:
(i) The
date "March 1, 1996" set forth in the first paragraph thereof shall be deemed
deleted each time it shall appear and the date "March 1, 2008" shall be deemed
inserted in lieu thereof. The date "March 1, 1996" set forth in the
third paragraph thereof shall be deemed deleted and the date "November 1, 2009"
shall be deemed inserted in lieu thereof.
(ii) Notwithstanding
anything to the contrary in the second paragraph thereof, the parties
acknowledge that the fixed annual rent for the 40th Floor
Premises as set forth above in this Seventh Amendment includes ERIF of $3.50 per
rentable square foot.
(C) The term
"base year" (as
such term is defined in Section 46(a)(i) of the Lease) shall mean the calendar
year 2009.
(D) The term
"base tax year"
(as such term is defined in Section 46(a)(ii) of the Lease) shall mean the New
York City real estate tax year commencing July 1, 2008 and ending June 30, 2009
(i.e., "base tax year" representing an amount of taxes).
(E) The term
"The
Percentage" (as such term is defined in Section 46(a)(iii) of the Lease)
shall mean one thousand two hundred seventy-four ten thousandths percent
(0.1274%) for real estate tax escalation calculated using 2,288,772 as the
deemed rentable square footage of the Building and shall mean one thousand four
hundred fifty-three ten thousandths percent (0.1453%) for expense escalation
calculated using 2,007,218 as the deemed rentable square footage of the Building
(excluding the retail portion thereof).
(F) Notwithstanding
anything to the contrary in the Lease (including, without limitation, Sections
27.04(b), (e) and (f) thereof, as amended hereby), the ERIF included in the
fixed annual rent (i.e., $3.50 per rentable square foot) for the 40th Floor
Premises, as set forth herein, shall not be increased prior to November 1, 2009.
In Section 27.04(g) of the Lease, the portion of the sentence beginning "if that
use is consistent" and ending "Exhibit C." shall be deleted. In
Section 27.04(h) of the Lease the words "which are then normal or customary for
use in a securities brokerage office" shall be deemed deleted and the words
"which are from time to time normal or customary for securities brokerage office
and/or for executive and/or general office use" shall be deemed inserted in lieu
thereof.
(G) Landlord
covenants that commencing on the Effective Date, the Wiener Lease (as
hereinafter defined) gives Tenant the right to access Space "C" across Space "A"
(the "Access
Provision"). Landlord covenants that until the 00xx Xxxxx
Xxxxxxxxxxx Xxxx, Xxxxxxxx shall not enter into any agreement that diminishes
Tenant's rights (as they exist on the date hereof) with respect to
the Access Provision, and Landlord shall provide Tenant, or cause Tenant to be
provided with, access over Space "A" to Space "C" in the same manner in which
access over Space "A" is provided to Tenant on the date hereof, pursuant to the
sublease, dated as of December 19, 2003, between Tenant and Wiener.
(H) Landlord
is party to a lease (the "Wiener
Lease") with Wiener for certain premises in the
Building. Pursuant to the Wiener Lease, from and after the Effective
Date, Landlord will lease to Wiener (among other areas) Space "A", as shown on Exhibit "C"
attached to this Amendment. Notwithstanding anything to the contrary
contained in the Lease, as amended hereby, if (prior to the 40th Floor
Termination Date) the Wiener Lease terminates as the result of a default by
Wiener before the scheduled expiration date of the Wiener Lease (i.e., July 31,
2021), then Landlord shall give Tenant notice of such termination of the Wiener
Lease, and if Landlord gives such notice, then the 40th Floor
Termination Date shall occur on the date specified in such notice, which date so
specified shall not be earlier than the later of (x) the ninetieth (90th) day
following the giving of such notice and (y) the date on which the Wiener
Lease terminates.
4. Modification of
Lease: 42nd Floor
Premises. With respect to the 42nd Floor
Premises only (except as otherwise expressly set forth herein), from and after
the Effective Date, or such earlier date may be specified herein, the Lease is
modified and amended as follows:
(A) The
fixed annual rent shall be an amount equal to:
(i) Two
Million Five Hundred Twenty-Eight Thousand Nine Hundred Eighty-Eight Dollars and
No Cents ($2,528,988.00) per annum ($210,749.00
per month), for the period commencing on the Effective Date and ending on March
31, 2013, payable in advance in equal monthly installments at the times and in
the manner provided in the Lease. Notwithstanding the foregoing to
the contrary, subject, however, to the provisions of Paragraph 8(E) hereof,
provided that no monetary default or material nonmonetary default beyond
applicable notice and cure periods has occurred and is then continuing, no
monthly installments of fixed annual rent shall be due for the period from the
Effective Date until March 31, 2009. For purposes hereof, the term
"Premises Rent
Commencement Date" shall mean April 1, 2009;
(ii) Two
Million Seven Hundred Fourteen Thousand Nine Hundred Forty-Three Dollars and No
Cents ($2,714,943.00) per annum ($226,245.25
per month), for the period commencing on April 1, 2013 and ending on March 31,
2017, payable in advance in equal monthly installments at the times and in the
manner provided in the Lease; and
(iii) Two
Million Nine Hundred Thousand Eight Hundred Ninety-Eight Dollars and No Cents
($2,900,898.00) per annum ($241,741.50
per month), for the period commencing on April 1, 2017 and ending on the New
Expiration Date, payable in advance in equal monthly installments at the times
and in the manner provided in the Lease.
(B) The third
sentence of Section 27.03(a) of the Lease shall be deemed modified to delete
therefrom the words, "summer interior conditions" through the end of such
sentence and the words "the specifications attached to the Seventh Amendment of
Lease, dated as of June ___, 2008 (the "Seventh Amendment"),
between Landlord and Tenant as Exhibit "A" and made a part thereof and
hereof."
(C) The first
two sentences of Section 27.04(a) of the Lease shall be deemed deleted in their
entirety and the following shall be deemed inserted in lieu
thereof:
"(a)
Subject to the provisions of this Section 27.04, from and after the Effective
Date, Landlord shall measure Tenant's demand for and consumption of electricity
in the 42nd Floor
Premises (as such term is defined in the Seventh Amendment) using a submeter
that is, or submeters that are, installed and maintained by
Landlord. Such submeters shall measure Tenant's demand on a totalized
basis. Landlord shall pay the cost of installing and maintaining such
submeter or submeters. If, at any time during the term of this Lease,
Tenant performs alterations that require modifications to the aforesaid submeter
or submeters that Landlord installs, or that require a supplemental submeter or
supplemental submeters, then Tenant shall perform such modification, or the
installation of such supplemental submeter or submeters, at Tenant's cost, as
part of the applicable alteration."
(D) Section
27.04(b) of the Lease shall be deemed deleted in its entirety and the
following shall be deemed inserted in lieu thereof:
"(b) (i)
Tenant shall pay to Landlord, as additional rent, an amount (the "Electricity
Additional Rent") equal to one hundred five percent (105%) of the sum
of:
(x) the
product obtained by multiplying (x) the Average Cost per Peak Demand Kilowatt
(as hereinafter defined), by (y) the number of
kilowatts
that constituted the peak demand for electricity in the 42nd Floor
Premises for the applicable billing period, as registered on the
submeter or
submeters for the Premises, and
(y) the
product obtained by multiplying (x) the Average Cost per Kilowatt Hour (as
hereinafter defined), by (y) the number of kilowatt
hours of
electricity used in the 42nd Floor
Premises for the applicable billing period, as registered on the submeter or
submeters for the
Premises.
(ii) For
purposes hereof the following terms shall have the following
meanings:
(x) The
term "Average Cost per
Peak Demand Kilowatt" shall mean, with respect to any particular period,
the quotient obtained by
dividing (A) the aggregate charge
imposed by the Utility Company on Landlord for the Utility Company's making
available electricity that
satisfies the Building's peak
demand for electricity during such period, by (B) the number of kilowatts that
constituted such peak demand, as
reflected on the electric meter
or meters for the Building.
(y) The
term "Average Cost per
Kilowatt Hour" shall mean, with respect to any particular period, the
quotient obtained by dividing
(x) the aggregate charge imposed
by the Utility Company on Landlord for the kilowatt hours supplied to the
Building for such period (other
than the aggregate charge imposed
by the Utility Company on Landlord for the Utility Company's making available
electricity that satisfies
the Building's peak demand for
electricity during such period), by (y) the number of kilowatt hours of
electricity used in the Building during
such period, as reflected on the
electric meter or meters for the Building.
(z) The
term "Utility
Company" shall mean, collectively, the local electrical energy
distribution company and the competitive energy provider with which Landlord has
made arrangements to obtain electric service for the Building; provided,
however, that if Landlord makes arrangements to produce electricity to satisfy
all or a portion of the requirements of the Building, then (I) Utility Company
shall also refer to the producer of such electricity, and (II) the charges
imposed by such producer shall be included in the calculation of Average Cost
per Kilowatt Hour and Average Cost per Peak Demand Kilowatt to the extent that
such charges do not exceed the charges that Landlord would have otherwise
incurred if Landlord had made arrangements to satisfy all of the Building’s
electrical requirements from a local electrical energy distribution company and
a competitive energy provider.
(iii) Landlord
shall give Tenant an invoice for the Electricity Additional Rent from time to
time (but no less frequently than quarterly). The billing period for
each such invoice shall be coincident with the period for which Landlord is
billed by the Utility Company. Tenant shall pay the Electricity
Additional Rent to Landlord on or prior to the thirtieth (30th) day after the
date that Landlord gives to Tenant each such invoice. Tenant shall
not have the right to object to Landlord's calculation of the Electricity
Additional Rent unless Tenant gives Landlord notice of any such objection on or
prior to the one hundred eightieth (180th) day after the date that Landlord
gives Tenant the applicable invoice for the Electricity Additional
Rent. If Tenant gives Landlord a notice objecting to Landlord's
calculation of the Electricity Additional Rent, as aforesaid, then Tenant shall
have the right to review Landlord's submeter readings and Landlord's calculation
of the Electricity Additional Rent, at Landlord's offices or, at Landlord's
option, at the offices of Landlord's managing agent, in either case at
reasonable times and on reasonable advance notice to Landlord.
(iv) If a
submeter measuring Tenant's electrical demand and consumption in the Premises
has not been installed in the Premises, or the submeters measuring Tenant's
electrical demand and consumption in the Premises have not been installed in the
Premises, in either case on or prior to the date of the Seventh Amendment, then
(x) Landlord shall order such submeter or such submeters promptly after the date
hereof, and (y) Landlord shall install such submeter or such submeters promptly
after the date of the Seventh Amendment. Landlord shall use
commercially reasonable efforts to minimize interference with Tenant's use of
the Premises. Landlord and Tenant shall reasonably cooperate with
each other to coordinate the timing of such installation to enable Landlord to
perform such work promptly and to minimize interference with Tenant's use of the
Premises. Landlord, in installing such submeter or such submeters,
shall have the right to interrupt electrical service to the Premises temporarily
and in accordance with good construction practice. Landlord agrees to
schedule any such interruption after regular business hours or during weekends,
at times reasonably acceptable to Tenant.
(v) Subject
to the terms of this Section 27.04(b)(v), if, prior to Landlord's installing a
submeter or submeters in the Premises, Tenant occupies all or any portion of the
42nd
Floor Premises for the conduct of business, then Tenant shall pay to Landlord,
as additional rent, a fee for electricity service in an amount equal to the
product obtained by multiplying (I) $0.0055, by (II) the number of square feet
of rentable area in the 42nd Floor
Premises (or the portion thereof that Tenant is occupying for the conduct of
business), by (III) the number of days in the period commencing on the date that
Tenant occupies the Premises (or the applicable portion thereof) for the conduct
of business and ending on the date immediately preceding the date that the
submeter for the Premises or the applicable portion thereof is operational or
that the submeters for the Premises or the applicable portion thereof are
operational (such fee being referred to herein as the "42nd Floor Electricity Inclusion
Charge"). Landlord shall give Tenant an invoice for the
42nd
Floor Electricity Inclusion Charge from time to time (but not less frequently
than monthly). Tenant shall pay the 42nd Floor
Electricity Inclusion Charge to Landlord on or prior to the thirtieth (30th) day
after the date that Landlord gives each such invoice to Tenant. Until such time
as Tenant’s demand for consumption of electricity is measured by submeter as set
forth above, the 42nd Floor
Electricity Inclusion Charge is not subject to increase.
(E) Section
27.04(d) of the Lease shall be deemed modified to insert the following after the
first sentence thereof:
"Landlord
covenants and agrees that the existing feeders in the Premises shall supply six
(6) xxxxx of electrical capacity (demand load) per square foot of rentable area
therein (in addition to the capacity provided to the Premises for Building HVAC,
other Building systems, and the dedicated service to which reference is made in
Paragraph 10 of the Seventh Amendment) and that such feeders shall continue to
supply same subject to Article 25 hereof during the term hereof."
(F) As to the
Premises, Sections 27.04(e) and (f) of the Lease shall be deemed deleted. In
Section 27.04(g) of the Lease, the portion of the sentence beginning, "if
that use is consistent" and ending "Exhibit C." shall be
deleted. As to the Premises, in Section 27.04(h) of the
Lease the words "which are then normal or customary for use in a securities
brokerage office" shall be deemed deleted and the words "which are from time to
time normal or customary for a securities brokerage office, a securities trading
floor and/or for executive and/or general office use" shall be deemed inserted
in lieu thereof.
(G) The
following shall be added to the Lease as a new Section 27.15:
"Subject
to the terms of this Section 27.15, Tenant, at Tenant’s expense, may tap into
the applicable systems of the Building to obtain condenser water for any
supplemental air-conditioning system that Tenant installs in the 42nd Floor
Premises on or before April 1, 2011. Any such supplemental
air-conditioning system shall not have a capacity of more than fifty (50)
tons. Landlord shall reserve fifty (50) tons for Tenant’s use until
April 1, 2011. In addition, if Tenant shall not install such a system by such
date or shall install a system of a lesser capacity by such date, then Tenant
shall have the right to reserve the difference between fifty (50) tons and the
number of tons of capacity of the system so installed or if no system shall be
installed then, fifty (50) tons until April 1, 2013, by (x) notifying Landlord
on or before April 1, 2011 that Tenant is so reserving such number of tons and
(y) paying the amounts hereinafter set forth for any such reserved tons from
April 1, 2011 until April 1, 2013 or such earlier date on which Tenant notifies
Landlord that Tenant no longer desires to reserve such tonnage; provided,
however, if prior to April 1, 2013, Tenant commences to use any such
reserved tonnage, then the provisions of clause (i) and (ii) of this Section
27.15 shall be applicable to the number of tons so used. Upon any
such cancellation of any reserved tonnage Tenant shall no longer be obligated to
pay the Tonnage Charge (as hereinafter defined) therefor and any amounts paid
prior to such cancellation with respect to periods occurring after the effective
date of such cancellation, shall be credited against the Rental next coming due
under the Lease (prorated on a per diem basis).
Any
installations that are required to connect Tenant’s supplemental
air-conditioning system to the condenser water pipe shall be made by Tenant, at
Tenant’s cost, using contractors that Landlord designates reasonably and
otherwise in accordance with the provisions of Article 47 hereof; provided that any
such contractors shall charge competitive rates. It being agreed that
if Tenant shall install any supplemental system that is used for redundancy only
and cannot be used at the same time as any other supplemental system installed
by Tenant, then Tenant shall be deemed to have connected only to the number of
tons that are the maximum number of tons that can be used at any one time by all
such systems.
(i) Subject
to the above, from and after the date on which Tenant installs and connects such
a system utilizing any condenser water (or as to such condenser water reserved
prior to April 1, 2011 but not used as of April 1, 2011, as of the date such
condenser water is reserved). Tenant shall pay to Landlord, as additional rent,
an annual charge in the amount of Three Hundred Fifty Dollars and No Cents
($350.00) per ton (the "Tonnage Charge") of capacity of the system so connected
(which amount per ton shall be increased on April 1st of each
year during the Term, commencing with April 1, 2010, by two percent (2%) per
annum).
(ii) In
addition, Tenant pay to Landlord within thirty (30) days of receipt of an
invoice together with reasonable back up therefor for Landlord's reasonable
third party out-of-pocket expenses in connection with any such
connection.
Tenant
shall pay such amounts to Landlord on or prior to the thirtieth (30th) day
after the date that Landlord gives to Tenant an invoice therefor from time to
time."
(H) The term
"base year" (as
such term is defined in Section 46(a)(i) of the Lease) shall mean the calendar
year 2009.
(I) The term
"base tax year"
(as such term is defined in Section 46(a)(ii) of the Lease) shall mean the New
York City real estate tax year commencing July 1, 2008 and ending June 30, 2009
(i.e., "base tax year" representing an amount of taxes).
(J) The term
"The
Percentage" (as such term is defined in Section 46(a)(iii) of the Lease)
shall mean one and six thousand two forty-nine ten thousandths percent (1.6249%)
for real estate tax escalation calculated using 2,288,772 as deemed the rentable
square footage of the Building and shall mean one and eight thousand five
hundred twenty-nine ten thousandths percent (1.8529%) for expense escalation
calculated using 2,007,218 as the rentable square footage of the Building
(excluding the retail portions thereof).
(K) Section
47A(i) of the Lease shall be deemed modified to insert in the sixth (6th) line
thereof after the words "by or for Tenant," the words, "from and after the date
of the Seventh Amendment."
5.
Modification of
Lease. With respect to the Premises, from and after the date
hereof, the Lease is modified and amended as follows:
(A) Article
7 of the Lease shall be deemed modified to insert the following as a new Section
7.06:
"7.06 (a)
Tenant, at Tenant's expense, shall obtain and keep in full force and effect (i)
an insurance policy for Tenant's property and the Specialty Alterations (as
hereinafter defined), in either case to the extent insurable under the available
standard forms of "all-risk" insurance policies, in an amount equal to one
hundred percent (100%) of the replacement value thereof (subject, however, at
Tenant’s option, to a reasonable deductible) (the insurance policy described in
this clause (i) being referred to herein as "Tenant's Property
Policy"), (ii) a policy of worker's compensation insurance, to the extent
required by law (such policy being referred to herein as "Tenant's Worker's
Compensation Policy"), and (iii) a policy of commercial general liability
and property damage insurance on an occurrence basis, with a broad form
contractual liability endorsement (the insurance policy described in this clause
(iii) being collectively referred to herein as "Tenant's Liability
Policy"). Tenant's Property Policy and Tenant's Liability
Policy shall name Tenant as the insured. Tenant's Liability Policy
shall name the Landlord Insureds (as hereinafter defined) as additional insureds
thereunder. The term "Specialty
Alterations" shall mean alterations that (I) perforate a floor slab in
the Premises or a wall that encloses the core of the Building, (II) require the
reinforcement of a floor slab in the Premises, (III) consist of the installation
of a raised flooring system, (IV) consist of the installation of a vault or
other similar device or system that is intended to secure the Premises or a
portion thereof in a manner that exceeds the level of security that a reasonable
person uses for ordinary office space, or (V) involve material plumbing
connections (such as kitchens and executive bathrooms outside of the Building
core). The term "Landlord Insureds"
shall mean, collectively, Landlord, each ground lessor of the Building, each
mortgagee of the Building and their respective partners, members, managers,
shareholders, officers, directors, employees, trustees and agents) if and to the
extent the applicable names and addresses are provided to Tenant).
(b) Tenant's Liability
Policy shall contain a provision that (i) no negligent act or omission of Tenant
shall affect or limit the obligation of the
insurer to pay the amount of any
loss sustained, and (ii) the policy is non-cancelable with respect to the
Landlord Insureds unless at least thirty
(30) days of advance written
notice is endeavored to be given to Landlord, except that Tenant's Liability
Policy may be cancelable on no less than
ten (10) days of advance written
notice endeavored to be given to Landlord for non-payment of
premium. If Tenant receives any notice of
cancellation or any other notice from the insurance carrier which may adversely
affect the coverage of the insureds under Tenant's Property Policy
or Tenant's Liability Policy, then Tenant shall promptly deliver to
Landlord a copy of such notice. The minimum amounts of liability
under Tenant's
Liability
Policy shall be a combined single limit with respect to each occurrence in the
amount of Five Million Dollars ($5,000,000) for injury (or death)
to persons and damage to property, which minimum amount Landlord may increase
from time to time to the amount of insurance that in Landlord's
reasonable
judgment is then being customarily required by prudent landlords of first-class
buildings in the vicinity of the Building from tenants
leasing space
similar in size, nature and location to the Premises.
(c) Tenant
shall cause Tenant's Liability Policy and Tenant's Worker's Compensation Policy
to be issued by reputable and independent insurers
that are (x)
permitted to do business in the State of New York, and (y) rated in Best's
Insurance Guide, or any successor thereto, as having a general
policyholder
rating of A- and a financial rating of at least XII (it being understood that if
such ratings are no longer issued, then such insurer's
financial integrity
shall conform to the standards that constitute such ratings from Best's
Insurance Guide as of the date hereof).
(d) Tenant
has the right to satisfy Tenant's obligation to carry Tenant's Liability Policy
with an umbrella insurance policy if such umbrella
insurance policy
contains an aggregate per location endorsement that provides the required level
of protection for the Premises. Tenant has the right
to satisfy Tenant's
obligation to carry Tenant's Property Policy with a blanket insurance policy if
such blanket insurance policy provides, on a per
occurrence basis,
that a loss that relates to any other location does not impair or reduce the
level of protection available for the Premises below the
amount required by
this Lease.
(e) Subject
to the terms of this Section 7.06(e), Landlord shall obtain and keep in full
force and effect insurance against loss or damage by fire
and other casualty to
the Building, to the extent insurable on commercially reasonable terms under
then available standard forms of "all-risk" insurance
policies, in an
amount equal to one hundred percent (100%) of the replacement value thereof or,
at Landlord's option, in such lesser amount as will
avoid co-insurance
(such insurance being referred to herein as "Landlord's Property
Policy"). Tenant acknowledges that (i) Landlord’s Property
Policy may encompass
rent insurance, (ii) the risks that Landlord’s Property Policy covers may
include, without limitation, fire, war, terrorism,
environmental
matters, and flood, and (iii) Landlord may also obtain a commercial general
liability insurance policy.
(f) Landlord
shall not be liable to Tenant for any failure to insure any alterations made by
Tenant unless Tenant notifies Landlord of the
completion of such
alterations and the cost thereof, and maintains adequate records with respect to
such alterations to facilitate the adjustment of any
insurance claims with
respect thereto. Landlord shall have the right to provide that the
coverage of Landlord’s Property Policy is subject to a
reasonable
deductible. Tenant shall cooperate with Landlord and Landlord's
insurance companies in the adjustment of any claims for any damage to
the Building or the
alterations. Landlord shall not be required to carry insurance on
Tenant's property or Tenant's above standard
alterations. Landlord
shall not be required to carry insurance against any loss suffered by Tenant due
to the interruption of Tenant's business."
(B) Section
10.01 of the Lease shall be deemed modified to insert at the end of the
penultimate sentence thereof the words "(except as otherwise specifically
provided in this Article, and any reference herein to a sublease by Tenant shall
be deemed to include a further sublease by a subtenant of Tenant)." Without
limiting the foregoing, any subtenant or assignee of Tenant shall have the same
subleasing and assignment rights as does Tenant under the Lease, as amended
hereby (but nothing herein shall prevent Tenant from limiting such rights in any
sublease of all or any portion of the Premises or in any assignment of the Lease
Tenant may enter into).
(C) Sections
10.02, 10.03 and 10.04 of the Lease shall be deemed deleted in their entirety
and the new Section 10.02, 10.03 and 10.04 set forth on Schedule 1 attached
hereto and made a part hereof shall be deemed inserted in lieu
thereof.
(D) Section
10.07(b) of the Lease shall be deemed modified to delete footnote *** thereto
(set forth on page 18) in its entirety therefrom.
(E) Section
10.08 of the Lease shall be deemed modified to insert an (a) at the beginning
thereof, to delete the last 4 lines thereof, and to insert the following at the
end thereof:
“[provided
the net worth] of Tenant after such transaction is equal to or greater than the
product of twelve (12) and the then fixed annual rent due
hereunder.
(b) The
reorganization of Tenant or the merger or consolidation of a Tenant into or with
another entity shall be permitted without (x) Landlord's prior approval, (y)
Tenant’s having any obligation to make any offer to Landlord as set forth in
Section 10.02 of this Lease and (z) Tenant's being required to pay profit to
Landlord in connection therewith, under Section 10.06 of this Lease; provided that in each
case (i) such reorganization, merger or consolidation is not principally for the
purpose of transferring such Tenant's interest in this Lease, (ii) Tenant gives
Landlord notice of such reorganization, merger or consolidation not later than
the tenth (10th) day after the occurrence thereof, (iii) Tenant, within ten (10)
days after such merger or consolidation, provides Landlord with reasonable
evidence that the requirement described in clause (i) above has been satisfied,
and (iv) the net worth of Tenant after such transaction is equal to or greater
than the product of twelve (12) and the then fixed annual rent due
hereunder.
(c) The
(x) assignment of Tenant's entire interest under this Lease in connection with
the sale of all or substantially all of the assets of either (1) Tenant or (2) a
division of Tenant then operating in the demised premises or (y) the conversion
of Tenant from one type of entity to another shall be permitted without (I)
Landlord's prior approval, (II) Tenant’s having any obligation to make any offer
to Landlord as set forth in Section 10.02 of this Lease and (z) Tenant's being
required to pay profit to Landlord in connection therewith, under Section 10.06
of this Lease; provided that in each case (i) Tenant gives to Landlord, not
later than the tenth (10th) day after any such assignment is consummated, an
instrument, duly executed by Tenant and the transferee, in form reasonably
satisfactory to Landlord, to the effect that such transferee assumes all of the
obligations of Tenant to the extent arising under this Lease from and after the
date of such assignment, (ii) such sale of all or substantially all of the
assets of Tenant or such division of Tenant or such conversion is not
principally for the purpose of transferring Tenant's interest in this Lease,
(iii) Tenant, within ten (10) days after such sale, provides Landlord with
reasonable evidence that the requirement described in clause (ii) above has been
satisfied, and (iv) the net worth of Tenant after such transaction is equal to
or greater than the product of twelve (12) and the then fixed annual rent due
hereunder.
(d) The
subletting by Tenant of the entire demised premises or a portion thereof to a
division of Tenant shall be permitted without (x) Landlord's prior approval, (y)
Tenant’s having any obligation to make any offer to Landlord as set forth in
Section 10.02 of this Lease and (z) Tenant's being required to pay profit to
Landlord in connection therewith, under Section 10.06 of this Lease; provided that in each
case (i) Tenant gives to Landlord, not later than the tenth (10th) day after any
such subletting, a sublease, in form reasonably satisfactory to Landlord, (ii)
such sublease is not principally for the purpose of transferring Tenant's
interest in this Lease, (iii) Tenant, within ten (10) days after the date of
such sublease, provides Landlord with reasonable evidence that the requirement
described in clause (ii) above has been satisfied, and (iv) the net worth of
such division after such transaction is equal to or greater than the product of
twelve (12) and the then fixed annual rent due under this Lease (as
appropriately prorated if such sublease is only for a portion of the
Premises)."
(F) Article
26 of the Lease shall be deemed to be deleted in its entirety and the following
inserted in lieu thereof:
"26.01. Except
as otherwise expressly provided in this Lease, any bills, statements, consents,
notices, demands, requests or other communications given or required to be given
under this Lease shall be in writing and shall be deemed sufficiently given or
rendered if delivered by hand (against a signed receipt) or if sent by a
nationally recognized overnight courier service (against a signed
receipt):
If to
Tenant (a) to Tenant (i) at the Building, Attention: Xxxxxxxx
Xxxxxxx or (ii) at any place where Tenant or any agent or employee of Tenant may
be found if mailed subsequent to Tenant’s vacating, deserting, abandoning or
surrendering the Premises and (b) to Broadpoint Capital, Inc., 000 Xxxxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attn: General Counsel, or
If to Landlord c/o
Vornado Office Management LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn.: Xx. Xxxxxx X. North, and with copies to (x) Vornado Realty Trust, 000
Xxxxx 0 Xxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attn.: Xx. Xxxxxx Xxxxxx, and (y) each
mortgagee and superior lessor which shall have requested same, by notice given
in accordance with the provisions of this Article 26 at the address designated
by such mortgagee or superior lessor (if provided to Tenant), or
to such
other address(es) as Landlord, Tenant or any mortgagee or superior lessor may
designate as its new address(es) for such purpose by notice given to the other
party in accordance with the provisions of this Article 26. Any such
xxxx, statement, consent, notice, demand, request or other communication shall
be deemed to have been rendered or given on the date when it shall have been
hand delivered, or one (1) business day after the same is delivered by a
nationally recognized overnight courier service,. Anything contained
herein to the contrary notwithstanding, any statement of increases in Expenses,
statement of increases in real estate taxes, or any other xxxx, statement,
consent, notice, demand, request or other communication from Landlord to Tenant
with respect to any item of rental (other than any "default notice" if required
hereunder) may be sent to Tenant by regular United States mail."
(G) The
following shall be deemed inserted in the Lease as a new Section 27.15
thereof:
"27.15 Subject
to the terms of this Section 27.15, Landlord shall arrange for security in the
Building that is consistent with the security provided by landlords of
first-class office buildings in midtown Manhattan. Tenant
acknowledges that (x) Landlord, in agreeing to arrange for such security, does
not ensure the security of the Building, and (y) accordingly, Tenant remains
responsible for making the alterations in, and adopting procedures for, the
demised premises that Tenant considers adequate to provide for Tenant's
security."
(H) Section
46(a)(iii) of the Lease shall be deemed modified to delete the last sentence
thereof in its entirety.
(I) Section
47A(a) and 47B of the Lease shall be deemed modified to delete the amount of
"$50,000" therefrom and to insert the amount of "$200,000" in lieu
thereof.
(J) The
following shall be deemed inserted in the Lease as a new Section
47C:
"C. Tenant
shall pay to Landlord, from time to time, as additional rent, the reasonable
third party out-of-pocket costs incurred by Landlord in connection with
reviewing the plans and specifications for alterations, within thirty (30) days
after Landlord gives Tenant an invoice therefor together with reasonable
supporting documentation for the charges set forth therein. Subject
to the immediately preceding sentence in no event shall Landlord be entitled to
a supervisory fee in connection with any alteration performed by or on behalf of
Tenant."
(K) The
following shall be deemed inserted in the Lease as a new Section
47D:
"D. If
Tenant gives Landlord a request for approval to alterations which provides in
bold and capital letters that "LANDLORD'S FAILURE TO RESPOND TO
THIS REQUEST WITHIN TEN (10) DAYS [FIVE (5) DAYS FOR RESUBMISSIONS] AFTER THE
DATE THAT TENANT GIVES THIS REQUEST SHALL BE DEEMED TO BE LANDLORD'S CONSENT
THERETO" and Landlord shall fail so to respond within such ten (10) day
or five (5) day period, as the case may be, and Tenant (not sooner than seven
(7) days [three (3) days for resubmissions] after giving the first such request)
shall give a second request to Landlord that provides in bold and capital
letters that "LANDLORD'S
FAILURE TO RESPOND TO THIS SECOND REQUEST FIVE (5) DAYS AFTER THE DATE THAT
TENANT GIVES THIS SECOND REQUEST SHALL BE DEEMED TO BE LANDLORD'S CONSENT
THERETO" and Landlord shall fail to so respond then Landlord shall be
deemed to have consented to the alterations described in such
request."
(L) The
following shall be deemed inserted in the Lease as a new Section
47E:
"E. Tenant
shall be permitted to install and maintain signage identifying Tenant on any
full floor demised to Tenant pursuant to this Lease."
(M) Section
47A(f)(ii) of the Lease shall be deemed modified to delete the amount
"$3,000,000" therefrom and to insert the amount "$5,000,000" in lieu
thereof.
(N) Articles
49 and 50 of the Lease shall be deemed deleted in their entirety and the new
Articles 49 and 50 set forth on Schedule 2 attached hereto and made a part
hereof shall be deemed inserted in lieu thereof.
(O) New
Articles 53, 54 and 55 set forth on Schedule 3 attached hereto and made a part
hereof shall be deemed added to the Lease.
(P) Section
3(B) of the Fifth Amendment and Section 3(B) of the Sixth Amendment are hereby
deemed to be deleted from the Lease.
(Q) Footnote
** on Exhibit C and Section 51(I) are deleted from the Lease. From
and after the date hereof, Landlord shall provide the cleaning services for the
lavatories in the core, as set forth in Exhibit C of the Lease, without charge,
to Tenant. It being agreed that from and after the date hereof, Landlord shall,
at Landlord’s expense, supply all of the paper and soap supplies to such
lavatories as are being provided, at Tenant’s expense, as of the date
hereof. Tenant hereby agrees to waive any amounts due or credits owed
by Landlord to Tenant pursuant to Section 51(I) of the Lease which amounts or
credits have accrued prior to the date hereof.
6. Condition of
Premises. (A) Tenant acknowledges that Landlord has
made no representations to Tenant with respect to the condition of the 40th Floor
Premises and/or the 42nd Floor
Premises. Tenant acknowledges that it is currently occupying the
40th
Floor Premises and the 42nd Floor
Premises and agrees to take the same "as is" in the condition existing on the
date hereof (subject to any maintenance or repair or restoration obligations of
Landlord under the Lease, as modified by this Amendment) and that,
notwithstanding anything to the contrary contained in the Lease, as amended by
this Amendment, Landlord shall have no obligation to perform any work, provide
any work allowance or rent credit, alter, improve, decorate, or otherwise
prepare the 40th Floor
Premises and/or the 42nd Floor
Premises for Tenant’s continued occupancy, except that (i) promptly following
the date on which all occupants of the 41st Floor
Premises shall vacate same, Landlord shall, at Landlord's expense, (x) remove
the internal staircase connecting the 42nd Floor
Premises to the 41st Floor
Premises subject to the terms of this Paragraph 6 and (y) replace the floor
slab, excluding, however, any restoration work with respect to the 42nd Floor
Premises (other than replacing such floor slab) required in connection therewith
(the work described in clauses (x) and (y) above, excluding any such restoration
work, the "Staircase
Work") and (ii) promptly following the date on which Tenant gives
Landlord notice that the Initial Alterations (as hereinafter defined) are
substantially complete, and requests that Landlord commence such work, Landlord
shall, at Landlord's expense, clean the perimeter induction units in the 42nd Floor
Premises and seal and repair any broken windows therein (collectively, the
"Post Initial
Alterations Work"). It being agreed that neither Landlord nor
Tenant shall have any obligation to perform any restoration work required in the
41st
Floor Premises. Landlord shall perform the Post Initial Alterations
Work and the Staircase Work in accordance with all applicable laws and in a good
and workmanlike manner. Tenant shall provide Landlord with access to
the 42nd Floor
Premises and (if the 41st Floor
Premises is vacated prior to the Effective Date, and Landlord commences the
Staircase Work prior to the Effective Date) the 41st Floor
Premises to enable Landlord to perform the Staircase Work and the Post Initial
Alterations Work. Tenant shall cooperate with Landlord by moving, and
taking commercially reasonable steps to protect, Tenant's property to enable
Landlord to perform the Staircase Work and the Post Initial Alterations
Work. Landlord shall not be liable to Tenant for any loss or damage
to Tenant's property occurring during the performance of the Staircase Work or
the Post Initial Alterations Work, except to the extent arising as a result of
Landlord's negligence or willful misconduct. Landlord shall use
commercially reasonable efforts to minimize interference with the conduct of
Tenant's business during Business Hours on Business Days in the 42nd Floor
Premises during the performance of the Staircase Work and (without limiting the
foregoing) agrees (i) to erect (around the area in which the Staircase Work will
be performed) temporary barriers and (ii) to perform all unreasonably loud or
otherwise unreasonably disruptive portions of the Staircase Work during times
other than Business Hours on Business Days. In the event that
Landlord shall fail to complete the Staircase Work by the ninetieth (90th) day
following the date on which Tenant gives Landlord notice that the 41st Floor
Premises has been vacated by all occupants (including Tenant) which ninety (90)
day period shall be extended by delays referred to in Section 25.01 of the
Lease, then Tenant shall be entitled to a credit in the amount of Three Thousand
Five Hundred Twelve Dollars and Forty-Eight Cents ($3,512.48) per day for each
day in the period from such ninetieth (90th) day
(as may be extended as aforesaid) until the date on which the Staircase Work is
Substantially Complete (as hereinafter defined). The term "Substantial
Completion" or words of similar import shall mean that the applicable
work has been substantially completed in accordance with the applicable plans
and specifications, if any, it being agreed that (i) such work shall be deemed
substantially complete notwithstanding the fact that minor or insubstantial
details of construction or demolition, mechanical adjustment or decorative items
remain to be performed, (ii) with respect to work that is being performed in the
Premises, such work shall be deemed substantially complete only if the
incomplete elements thereof do not interfere materially with Tenant's use and
occupancy of the Premises for the conduct of business, or delay or materially
interfere with the completion of the construction of the Initial Alterations and
(iii) with respect to any delays caused by Long Lead Work or Tenant Work Delays,
the applicable work shall be deemed substantially completed (as such terms are
hereinafter defined) upon the date such work would have been completed but for
such delays. The term "Long Lead Work" shall
mean any item which is not a stock item and must be specially manufactured,
fabricated or installed or is of such an unusual, delicate or fragile nature
that there is a substantial risk that (i) there will be a delay in its
manufacture, fabrication, delivery or installation, or (ii) after delivery of
such item will need to be reshipped or redelivered or repaired so that, in
Landlord's reasonable judgment, the item in question cannot be completed when
the standard items are completed even though the items of Long Lead Work in
question are (1) ordered together with the other items required and (2)
installed or performed (after the manufacture or fabrication thereof) in order
and sequence that such Long Lead Work and other items are normally installed or
performed in accordance with good construction practice. In addition, Long Lead
Work shall include any standard item, which in accordance with good construction
practice should be completed after the completion of any item of work in the
nature of the items described in the immediately preceding sentence. The term
"Tenant Work
Delays" shall mean act or omissions of Tenant or its agents or employees
that in fact delay Landlord in the performance of the work in
question.
(B) Landlord
covenants and agrees that on the Effective Date (x) the service systems of the
Building that service the Premises, including the mechanical, steam, electrical,
sanitary, heating, ventilation and air conditioning (including all pipes, valves
and thermostats of such heating, ventilation and air conditioning), elevator,
plumbing and life safety systems shall be in good working order and (ii) there
shall exist no violations on the Building that shall impede Tenant in the
performance of the Initial Alterations and if any such violations shall exist,
Landlord, at Landlord's expense, shall promptly remove same.
7. Security. Supplementing
Articles 39 and 52 of the Lease, Tenant shall deposit with Landlord an
additional security deposit (or letter of credit in a form approved by the Landlord so that Landlord is holding the aggregate
amount of Two Million One Hundred Seven- Thousand Four Hundred Ninety Dollars
and No Cents ($2,107,490.00). Said amount, if and so long as Tenant
is not then in default under any of the terms, covenants or conditions of the
Lease, as amended hereby, beyond any applicable notice and cure period shall be
reduced on the fifth (5th)
anniversary of the Premises Rent Commencement Date, to One Million Two Hundred
Eight Thousand Seven Hundred Seven Dollars and Fifty Cents
($1,208,707.50). It being agreed that Tenant shall have the right, at
any time during the term of the Lease, as amended hereby, and subject to the
terms and in accordance with the criteria of Articles 39 and 52 of this
Lease and this Paragraph 7, to substitute, from time to time, a security deposit
in the form of cash for the letter of credit then being held by Landlord as
security or to substitute a letter of credit (in a form approved by Landlord)
for the security deposit then held by Landlord in the form of cash, as the case
may be.
8. Premises Tenant Fund and
Free Rent Conversion. (A) Subject to the terms of
this Paragraph 8, including, without limitation, Paragraph 8(E) hereof, Landlord
shall pay to or on behalf of Tenant an amount equal to One Million Six Hundred
Ninety-Nine Thousand Four Hundred Eighty-Eight Dollars and No Cents
($1,699,488.00) (the "Premises Tenant
Fund") for the costs that Tenant incurs in performing the alterations to
prepare the Premises for Tenant’s continued occupancy thereof (the "Initial
Alterations"). Tenant may use no more than fifteen percent
(15%) of the Premises Tenant Fund for costs that Tenant incurs in connection
with the Initial Alterations that do not constitute "hard" construction costs,
including, without limitation, architect's and engineer's fees, permit fees,
expediter's fees and designers' fees in each case relating to the Initial
Alterations (such costs which do not constitute the "hard" construction costs of
the Initial Alterations being collectively referred to herein as "Soft
Costs"). Landlord hereby approves Xxxxxxx Xxxxx as Tenant's
architect for the Initial Alterations and Xxxxxx Xxxxxxxx Associates as Tenant's
engineer for the Initial Alterations.
(B) Tenant
may request disbursements of the Premises Tenant Fund only by delivering to
Landlord a Disbursement Request (as hereinafter defined). Subject to
the terms of this Xxxxxxxxx 0, Xxxxxxxx shall disburse a portion of the Premises
Tenant Fund to Tenant from time to time, within thirty (30) days after the date
that Tenant gives to Landlord the applicable Disbursement Request (as
hereinafter defined). Tenant shall not be entitled to any
disbursements of the Premises Tenant Fund at any time that a monetary default or
material non-monetary default has occurred and is continuing after the
expiration of applicable notice and cure periods. Landlord shall not
be required to make disbursements of the Premises Tenant Fund more frequently
than once during any particular calendar month. Tenant shall not have
the right to request disbursements of the Premises Tenant Fund in an amount that
is greater than the excess of (I) the aggregate amounts that Tenant has
theretofore paid or that then remain payable in each case to Tenant's
contractors, subcontractors, materialmen, suppliers or consultants, as the case
may be, for either (a) materials that have been delivered to the Premises for
the Initial Alterations, (b) labor that has been performed in the Premises for
the Initial Alterations, or (c) the services from which are derived Soft Costs
that have been performed for the Initial Alterations, as the case may be, over
(II) the aggregate amount of disbursements theretofore made by Landlord from the
Premises Tenant Fund (such excess at any particular time being referred to
herein as the "Maximum
Disbursement Amount").
(C) The
term "Disbursement
Request" shall mean a request for a disbursement of the Premises Tenant
Fund signed by the chief administrative officer or the chief financial officer
of Tenant (or another officer of Tenant who performs the functions ordinarily
performed by a chief administrative officer or a chief financial officer),
together with:
(i) such
officer's certification that the amount so requested does not exceed the Maximum
Disbursement Amount,
(ii) copies
of the contracts, work orders, purchase orders, change orders and other
documents pursuant to which Tenant has engaged third parties to perform the
Initial Alterations (or provide materials or services in connection therewith)
(except to the extent that Tenant has provided such copies to Landlord with a
prior Disbursement Request),
(iii) copies
of reasonable documentation (such as bills and invoices) that indicate that the
applicable work has been completed, the applicable materials have been
furnished, or the applicable services have been performed, as the case may
be,
(iv) waivers
of lien from all contractors, subcontractors, materialmen, architects, engineers
and other persons or entities who may file a lien against the Building or the
real property on which the Building is erected in connection with the
performance of the Initial Alterations, and for which previous disbursements of
the Premises Tenant Fund has been made (except to the extent Tenant gave such
waivers of lien to Landlord in connection with a prior Disbursement
Request),
(v) in
connection with a disbursement of the Premises Tenant Fund for costs which do
not constitute Soft Costs, a certificate of Tenant's independent licensed
architect stating that, in his or her opinion, the portion of the Initial
Alterations theretofore completed and for which the disbursement is requested
was performed in a good and workmanlike manner and substantially in accordance
with the plans and specifications for such Initial Alterations, as approved by
Landlord, and
(vi) in
connection with a disbursement of the Premises Tenant Fund for costs which do
not constitute Soft Costs, a revised estimated total cost to perform the Initial
Alterations, prepared by the construction company that Tenant has engaged to
perform the Initial Alterations.
(D) Landlord
makes no representation or warranty that the Premises Tenant Fund is sufficient
to pay the cost of the Initial Alterations. Tenant shall pay the
amount of any excess of the cost of the Initial Alterations over the Premises
Tenant Fund. Tenant, during the term of the Lease, shall not remove
the Initial Alterations (or a portion thereof) that Tenant performs using the
proceeds of the Premises Tenant Fund (or alterations that replace such Initial
Alterations (or such portion thereof)) unless Tenant replaces the Initial
Alterations (or such portion thereof), or such other alterations, as the case
may be, with alterations that have a fair value that is equal to or greater than
the portion of the Premises Tenant Fund used therefor (it being understood that
such Alterations that Tenant performs to replace the Initial Alterations (or
such portion thereof), or such other alterations, as the case may be, shall
constitute the property of Landlord as contemplated by this Paragraph
8).
(E) Tenant
shall have the right, at any time, from time to time, from and after the
Effective Date, to give Landlord notice (each a "Conversion Notice")
that Tenant elects to convert a portion of the Premises Tenant Fund (and the
Premises Tenant Fund shall be reduced by the amount so converted) to a credit
against fixed annual rent, subject to the terms of this Paragraph
8(E). Such portion of the Premises Tenant Fund that Tenant may so
elect to convert shall not exceed an amount equal to the lesser of (i) One
Million and 00/100 Dollars and (ii) the then undisbursed and unrequested portion
of the Premises Tenant Fund. Tenant shall in a Conversion Notice
specify the amount of the Premises Tenant Fund that Tenant elects to so convert,
subject to the limitations set forth in the immediately preceding
sentence. If Tenant gives a Conversion Notice, Tenant shall be
entitled to a credit against fixed annual rent in an amount equal to ninety
percent (90%) of the amount specified by Tenant in such Conversion Notice (such
credit, the "Additional Rent
Credit"). The Additional Rent Credit shall be applied against
the fixed annual rent due under the Lease, as amended hereby, in ten (10) equal
monthly installments commencing on the later of (x) the month in which occurs
the Premises Rent Commencement Date and (y) the month immediately succeeding the
month in which Landlord receives such Conversion Notice from
Tenant.
9. Freight
Elevators. Tenant shall be entitled to up to one hundred (100)
hours of use of the freight elevators during overtime periods during the
performance of the Initial Alterations without charge. Landlord shall cooperate
with Tenant regarding the scheduling of use of the freight elevators during
overtime hours.
10. Relocation of Electric
Switch. Tenant shall be permitted to relocate the dedicated
200 amp 480v/3ph/3w service from the 40th Floor
Premises to the 42nd Floor
Premises on or before the 40th Floor
Premises Termination Date. Any such relocation shall be performed at
Tenant's expense in accordance with the provisions of Article 47 of the
Lease.
11. Overtime
Charges. The overtime charges for the Building as of the date
hereof are attached hereto as Exhibit "B" and made a part hereof.
12. Brokerage. Tenant
represents and warrants to Landlord that it has not dealt with any broker,
finder or like agent in connection with this Amendment other than Xxxxxxx &
Xxxxxxxxx Inc. (the "Broker"). Tenant
does hereby indemnify and hold Landlord harmless of and from any and all loss,
costs, damage or expense (including, without limitation, attorneys' fees and
disbursements) incurred by Landlord by reason of any claim of or liability to
any broker, finder or like agent (other than Broker) who shall claim to have
dealt with Tenant in connection herewith. Landlord represents and warrants to
Tenant that it has not dealt with any broker, finder or like agent in connection
with this Amendment other than the Broker. Landlord does hereby indemnify and
hold Tenant harmless of and from any and all loss, costs, damage or expense
(including, without limitation, reasonable attorney’s fees and disbursements)
incurred by Tenant by reason of any claim of or liability to any broker, finder
or like agent who shall claim to have dealt with Landlord in connection
herewith, including, without limitation, the Broker. Landlord agrees
to pay the Broker pursuant to a separate agreement, if a commission shall be
due. The provisions of this Paragraph 12 shall survive the expiration
or termination of the Lease as amended by this Amendment.
13. Limitation of
Liability. The obligations of Landlord under the
Lease, as amended by this Amendment, shall not be binding upon Landlord named
herein after the sale, conveyance, assignment or transfer by such Landlord (or
upon any subsequent landlord after the sale, conveyance, assignment or transfer
by such subsequent landlord) of its interest in the Building or the land upon
which it is erected, as the case may be, to the extent assumed by the transferee
of such obligations of Landlord and in the event of any such sale, conveyance,
assignment or transfer, Landlord shall thereafter be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord under the Lease,
as amended by this Amendment, but solely if and to the extent that the
transferee assumes such obligations. The Landlord Parties (as
hereinafter defined), other than Landlord, shall not be liable for
the performance of Landlord's obligations under the Lease, as amended by this
Amendment. Tenant shall look solely to Landlord to enforce Landlord's
obligations under the Lease, as amended by this Amendment, and shall not seek
any damages against any of the members, managers, partners, shareholders,
directors, officers and principals, direct and indirect, comprising Landlord
(Landlord and the members, managers, partners, shareholders, directors, officers
and principals, direct and indirect, comprising Landlord, collectively, the
"Landlord
Parties"). The liability of Landlord for Landlord's
obligations under the Lease, as amended by this Amendment, shall be limited to
Landlord's interest in the Building and the land upon which the Building is
erected and Tenant shall not look to the property or assets of any of the
Landlord Parties (other than Landlord, as set forth above) in seeking either to
enforce Landlord's obligations under the Lease, as amended by this Amendment, or
to satisfy a judgment for Landlord's failure to perform such
obligations.
14. Authorization. Tenant
represents and warrants to Landlord that its execution and delivery of this
Amendment has been duly authorized and that the person executing this Amendment
on behalf of Tenant has been duly authorized to do so, and that no other action
or approval is required with respect to this transaction. Landlord
represents and warrants to Tenant that its execution and delivery of this
Amendment has been duly authorized and that the person executing this Amendment
on behalf of Landlord has been duly authorized to do so, and that no other
action or approval is required with respect to this transaction.
15. Full Force and Effect of
Lease. Except as modified by this Amendment, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and are hereby in all respects ratified and confirmed.
16. Entire Agreement. The
Lease, as amended by this Amendment, constitutes the entire understanding
between the parties hereto with respect to the Premises and all prior
negotiations and agreements are merged into the Lease, as amended by this
Amendment. The Lease, as amended hereby, may not be changed orally but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
17. Enforceability. This
Amendment shall not be binding upon or enforceable against Landlord or Tenant
unless, and until, Landlord, in its sole discretion, shall
have executed and unconditionally delivered to Tenant an executed
counterpart of this Amendment.
18. Counterparts;
Miscellaneous. This Amendment may be executed in one or more
counterparts each of which when taken together shall constitute but one
original. As used in this Amendment, and unless otherwise indicated, "hereby"
means by this Amendment; "herein" means in this Amendment; "hereof" means of
this Amendment; and similar words shall have similar references to this
Amendment.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto
have executed this Seventh Amendment of Lease as of the date first above
written.
ONE PENN PLAZA LLC,
Landlord
By: Vornado Realty L.P.,
sole member
By: Vornado
Realty Trust, general partner
| By: _______________________________ | |
|
Xxxxx
X. Xxxxxxxxx
|
|
|
|
President
– New York Office Division
|
By:
Name:
Title:
UNIFORM
FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within
New York State)
STATE OF
______________________ )
: ss.:
COUNTY OF
____________________ )
On the
_____ day of _________________, in the year 2008, before me, the undersigned
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 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
UNIFORM
FORM CERTIFICATE OF ACKNOWLEDGMENT
(Outside
of New York State)
STATE OF
______________________ )
: ss.:
COUNTY OF
____________________ )
On the _____ day of _________________,
in the year 2008, before me, the undersigned, 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
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), 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, and that such individual made such appearance before
the undersigned in the _______________. (Insert the city or other
political subdivision and the state or country or other place the
acknowledgement was taken.)
____________________________
(Signature and office of
individualtaking acknowledgement)
Exhibit
"A"
HVAC
Specifications
(See
Attached)
Exhibit
"B"
Overtime
Charges
(See
Attached)
Exhibit
"C"
Original 40th Floor
Premises
(See
Attached)
Schedule
1
Sections
10.02, 10.03 and 10.04 of the Lease
10.02. (a) If the Tenant desires
to assign this Lease or to sublet all or any portion of the demised premises, it
shall (except as otherwise specifically provided in this Article) first submit
in writing to Landlord the following information:
(i)
whether the proposed transaction is an assignment or a sublease;
(ii) (x)
if a sublease, the term of such proposed sublease and the demised premises or
the portion thereof proposed to be sublet and the proposed rent therefor; or (y)
if an assignment, the proposed effective date of the assignment, and the amount
of any payments required to be paid by Tenant or the proposed
assignee;
(iii) all
other material terms of the proposed transaction including any free rent, work
allowance, or work proposed to be performed by Tenant; and
(iv) at
Tenant’s option (subject to the other terms of this Article 10) the Business
Information (as defined in Section 10.03hereof );
and
together with such information shall offer in writing (x) with respect to a
prospective assignment, to assign this Lease to Landlord without any payment of
moneys or other consideration therefor, but with a full release of Tenant from
any and all obligations accruing under this Lease from and after the effective
date of such assignment; or (y) with respect to a prospective subletting,
to sublet to Landlord the portion of the demised premises involved (“Leaseback Area”) for
the term specified by Tenant in its offer and at the lower of (A) Tenant’s
proposed subrental or (B) at the same rate of fixed rent and additional
rent; and otherwise on the same terms, covenants and conditions (including
provisions relating to escalation rents), as are contained herein and as are
allocable and applicable to the portion of the demised premises to be covered by
such subletting; provided, however, if an offer of a sublease is made, and if
the proposed sublease will result in all or substantially all of the demised
premises being sublet, then (if Landlord accepts such offer) Landlord shall have
the option to extend the term of the proposed sublease for the balance of the
term of this Lease less one (1) day and if Landlord shall exercise such
option Tenant shall not have the right to exercise the Renewal Option (as
hereinafter defined), notwithstanding the provisions of Article 50 hereof to the
contrary.
(b) In
addition, the offer shall specify the effective date of the assignment (if an
assignment) or the date on which the Leaseback Area will be made available to
Landlord (if a sublease), which date (in either case) shall be no earlier
than
(i) one
hundred twenty (120) days after the making by Tenant of the offer, if Tenant did
not include the applicable Business Information in the offer; or
(ii) the
earlier of (x) ninety (90) days after the making of such offer, and (y) the
proposed rent commencement date of such sublease or the effective date of such
assignment, as the case may be, if Tenant did include the Business Information;
but in no event less than thirty (30) days after the making of such
offer;
and in no
event later than one hundred eighty (180) days following the giving of the
offer.
(c) (i) Landlord
shall either accept or reject such offer no later than sixty (60) days after
such offer is submitted to Landlord, or if sooner, thirty (30) days after the
Business Information is submitted to Landlord (regardless of whether the
Business Information is submitted after the making of the offer). If
such offer shall contain the following words in bold and capital
letters: "LANDLORD’S
FAILURE TO RESPOND TO THIS OFFER IN [60] [30] DAYS SHALL BE DEEMED TO MEAN THAT
LANDLORD HAS WAIVED ITS RIGHT TO ACCEPT THE OFFER SET FORTH HEREIN", and Landlord shall fail
to respond within sixty (60) days or (if earlier) thirty (30) days from the date
that Tenant provides the Business Information, such failure shall be
deemed to mean that Landlord has waived its rights to accept such
offer.
(ii) If
Landlord has rejected (or waived, or been deemed to have waived, its right to
accept) any offer, Tenant shall not be obligated to give Landlord any further
offer with respect to such proposed assignment or subletting; provided, however,
Tenant shall be obligated to give Landlord another offer with respect to any
proposed assignment or subletting if
(x)
Tenant did not provide the Business Information at the time of the initial
offer, and shall fail to provide the Business Information within the six (6)
month period after submitting the initial offer;
(y)
Tenant has provided the Business Information and Tenant and such assignee or
sublessee, as the case may be, shall not have executed and unconditionally
delivered an assignment agreement or a sublease, as the case may be, within the
six (6) month period after the submission of the initial offer (or if Tenant and
such assignee or sublessee are actively negotiating at the end of such six (6)
month period, Tenant and such assignee or sublessee, as the case may be, shall
not have executed and unconditionally delivered an assignment agreement or a
sublease, as the case may be, within the nine (9) month period after the initial
offer); or
(z) the
net effective economic terms of the proposed assignment or subletting, as the
case may be, shall vary by more than ten percent (10%) from the net effective
economic terms set forth in such initial offer.
(iii) If,
pursuant to the proviso in the immediately preceding subsection (ii), Tenant is
required to give Landlord another offer with respect to a particular proposed
assignment or sublease, then the provisions of Section 10.02(a)
shall again apply, except that Landlord shall respond to any such reoffer within
fifteen (15) days; and if such reoffer shall contain the following words in bold
and capital letters: "LANDLORD’S FAILURE TO RESPOND TO THIS
REOFFER IN FIFTEEN (15) DAYS SHALL BE DEEMED TO MEAN THAT LANDLORD HAS WAIVED
ITS RIGHT TO ACCEPT THE REOFFER SET FORTH HEREIN” and Landlord shall fail
to respond within such fifteen (15) day period, such failure shall be deemed to
mean that Landlord has waived its rights to accept such offer; provided,
however, if such reoffer includes the Business Information, then Landlord shall
respond to any such reoffer within fifteen (15) days, and if Landlord is not
accepting the offer, shall also consent or deny its consent to the specific
assignment or subletting within such fifteen (15) day period; and if such
reoffer shall contain the following words “LANDLORD’S FAILURE TO RESPOND TO THIS
REOFFER IN FIFTEEN (15) DAYS SHALL BE DEEMED TO MEAN THAT LANDLORD HAS WAIVED
ITS RIGHT TO ACCEPT THE REOFFER SET FORTH HEREIN AND THAT LANDLORD HAS CONSENTED
TO THE SPECIFIED [SUBLEASE] [ASSIGNMENT] and Landlord shall fail to
respond within such 15 day period, such failure shall be deemed to mean that
Landlord has waived its rights to accept such offer and that Landlord consents
to the specific assignment or subletting.
(iv)
Landlord or its agents or designees shall have the right, during such time as
Landlord is considering any offer, at reasonable times during business hours, to
enter the demised premises to exhibit same to prospective
sublessees.
(d) If
Landlord shall accept any such offer, Tenant shall then execute and deliver to
Landlord, or to anyone designated or named by Landlord, an assignment or
sublease, as the case may be, in either case in a form reasonably satisfactory
to Landlord’s counsel.
If a
sublease is so made to Landlord or its designee, it shall
expressly:
(i) permit
Landlord to make further subleases of all or any part of the Leaseback Area and
(at no cost or expense to Tenant) to make and authorize any and all changes,
alterations, installations and improvements in such space as Landlord may deem
necessary for such subletting, at Landlord’s expense.
(ii) provide
that Tenant will at all times permit reasonably appropriate means of ingress to
and egress from the Leaseback Area;
(iii) negate
any intention that the estate created under such sublease be merged with any
other estate held by either of the parties;
(iv) provide
that Landlord shall accept the Leaseback Area “as is” except that Landlord at
Landlord’s expense, shall perform all such work and make all such alterations as
may be required physically to separate the Leaseback Area from the remainder of
the demised premises to permit lawful occupancy, it being intended that Tenant
shall have no other cost or expense in connection with the subletting of the
Leaseback Area;
(v) provide
that at the expiration of the term of such sublease Tenant will accept the
Leaseback Area in its then existing condition, subject to the obligations of
Landlord to make such repairs thereto as may be necessary to preserve the
Leaseback Area in good order and condition, ordinary wear and tear is
excepted.
Landlord
shall indemnify and save Tenant harmless from all obligations under this Lease
as to the Leaseback Area during the period of time it is so sublet, except for
fixed annual rent and additional rents, if any, due under the within Lease,
which are in excess of the rent and additional rents due under such
sublease.
Subject
to the foregoing, performance by Landlord, or its designee, under a sublease of
the Leaseback Area shall be deemed performance by Tenant of any similar
obligations under this Lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease, nor
shall Tenant be liable for any default under this Lease or deemed to be in
default hereunder if such default is occasioned by or arises from any act or
omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease.
10.03. If
Tenant requests Landlord’s consent to a specific assignment or subletting, it
shall submit in writing to Landlord (i) the name and address of the
proposed assignee or sublessee, (ii) a duly executed letter of intent with
respect to the proposed agreement of assignment or sublease (see Section 10.04
below), (iii) reasonably satisfactory information as to the nature and
character of the business of the proposed assignee or sublessee, and as to the
nature of its proposed use of the space, and (iv) banking, financial or
other credit information relating to the proposed assignee or sublessee
reasonably sufficient to enable Landlord to determine the financial or other
credit information relating to the proposed assignee or sublessee (the
foregoing, the “Business
Information”).
10.04 Notwithstanding
anything to the contrary herein, if Landlord shall not have accepted Tenant’s
offer (or shall be deemed not to have accepted Tenant’s offer), as provided in
Section 10.02 hereof (and subject to the provisions of Section 10.02(c)(ii)
hereof), then Landlord will not unreasonably withhold or delay its consent to
Tenant’s request for consent to such specific assignment or
subletting. Subject to the provisions of Section 10.02 hereof
regarding reoffers, Landlord shall respond to Tenant’s request no later than the
earlier of (i) the thirtieth (30th) day
after Tenant submitted the Business Information or (ii) the later of (x) the
sixtieth (60th) day
after submitting such offer and (y) the date that is fifteen (15) days after
Tenant delivers the Business Information, if Tenant did not deliver the Business
Information when it initially submitted such offer (the applicable period, the
“Response
Period”). For the avoidance of doubt, the parties acknowledge
that the Response Period may run concurrently with the period in which Landlord
is considering an offer under Section 10.02 hereof. If Landlord fails
to respond by the end of the Response Period, then Tenant may notify Landlord in
writing of such failure (together with a copy of the initial notice submitted by
Tenant to Landlord) which notice shall contain the following language in bold
and capital letters: LANDLORD'S FAILURE TO RESPOND BY
[TENANT TO INSERT LAST DAY OF THE RESPONSE PERIOD] SHALL BE DEEMED LANDLORD'S
CONSENT TO THE TRANSACTION DESCRIBED IN THE ATTACHED
NOTICE. If Landlord again fails to respond within five (5)
Business Days after it receives such notice, then Landlord shall be deemed to
have consented to such request (provided such notice by Tenant reminds Landlord
in writing that its failure to respond within such five (5) Business Day period
will constitute such deemed consent by Landlord). Any consent of
Landlord under this Article shall be subject to the terms of this Article and
conditional upon there being no default by Tenant, beyond any notice and grace
period, under any of the material terms, covenants and conditions of this Lease
at the time that Landlord’s consent to any subletting or assignment is requested
and on the date of the commencement of the term of any proposed sublease or the
effective date of any proposed assignment.
Schedule
2
Articles 49 and
50
ARTICLE
49
49.01 Additional
Space.
(a) The term
"Additional
Space" shall mean any 41st Floor Expansion Space or any 43rd Floor
Expansion Space.
(b) The term
"Initial Tenant
Requirement" shall mean the requirement that Tenant is the person or
entity that executed and delivered the Seventh Amendment initially as the tenant
thereunder or to a person or entity that succeeds to Tenant's interest under
this Lease pursuant to Sections 10.08(a), (b), (c) or (d), 10.09 and/or 10.10
hereof.
(c) The term
"Minimum Demise
Requirement" shall mean the requirement that this Lease demises at least
thirty-seven thousand one hundred ninety-one (37,191) square feet of rentable
area; provided, however, that the Minimum Demise Requirement shall be decreased
by the number of square feet of rentable area in any Leaseback Area if Landlord
accepted any offer of Tenant with respect to such Leaseback Area; provided that
in no event shall the Minimum Demise Requirement be less than thirty two
thousand (32,000) square feet of rentable area.
(d) The term
"Minimum Occupancy
Requirement" shall mean the requirement that Tenant occupies, at the time
in question, at least eighty percent (80 %) of the rentable area that is demised
by this Lease for the conduct of business.
(e) The term
"41st Floor Expansion
Space" shall mean the rentable area of the forty-first (41st) floor
of the Building (or a portion thereof).
(f) The term
"43rd Floor Expansion
Space" shall mean the rentable area of the forty-third (43rd) floor
of the Building (or a portion thereof).
(g) The term
"Scheduled Additional
Space Commencement Date" shall mean, as to the applicable Additional
Space, either the Scheduled Post Expiration Commencement Date or (if earlier,
and as set forth below) the Scheduled Accelerated Commencement Date, as the case
may be.
(h) As to any
Additional Space, the "Scheduled Post Expiration
Commencement Date" means the day after the date that the lease for such
Additional Space is scheduled to expire, (i) which in the case of the 41st Floor
Expansion Space shall, subject to Section 49.02(b) hereof, be as set forth in a
notice from Landlord to Tenant promptly following the date Landlord enters into
any lease for all or any portion of the 41st Floor
Expansion Space and (ii) which in the case of any portion of the 43rd Floor
Expansion Space shall mean (subject to Section 49.01(i) hereof and Section
49.02(b) hereof) April 1, 2018.
(i) If any
lease for Additional Space terminates prior to its scheduled expiration date, or
if Landlord reasonably believes that any lease of any Additional Space will
terminate earlier than the scheduled expiration of the term thereof, then
Landlord shall have the right to accelerate the Scheduled Additional Space
Commencement Date for the applicable Additional Space by giving notice thereof
(the "Acceleration
Notice") to Tenant, setting forth such accelerated commencement date
for such portion of Additional Space (such accelerated date, the "Scheduled Accelerated
Commencement Date"); provided that the Scheduled Accelerated Commencement
Date shall in no event be less than sixty (60) days after Landlord gives
the Acceleration Notice.
|
49.02
|
Option.
|
(a) Tenant
shall have the option (the "Additional Space
Option") to lease an Additional Space for a term (the "Additional Space
Term") commencing on the applicable Additional Space Commencement Date
and expiring on the New Expiration Date (i.e., March 31, 2021), as such date may
be extended pursuant to Article 50 hereof), by giving notice thereof (the "Additional Space
Notice") to Landlord on or prior to the three hundred sixty-fifth (365th)
day before the Scheduled Post Expiration Commencement Date for the applicable
Additional Space; provided, however, if Landlord shall give an Acceleration
Notice with respect thereto, then ten (10) business days after the date on which
Landlord gives such Acceleration Notice. Time shall be of the essence
as to the date by which Tenant must give the Additional Space Notice to Landlord
to exercise the Additional Space Option. If Tenant does not give the
Additional Space Notice to Landlord on or prior to the aforesaid dates, then
Landlord shall thereafter have the right to lease the applicable Additional
Space (or any part thereof) to any other person or entity on terms acceptable to
Landlord in Landlord's sole discretion without being required to make any other
offer to Tenant regarding the applicable Additional Space under this Article 49;
(but subject to Section 49.02(b) hereof); provided, however, if by the last day
on which Tenant is entitled to give such Additional Space Notice, Tenant does
not give an Additional Space Notice to Landlord with respect to the entire
43rd
Floor Expansion Space and Landlord thereafter leases a portion thereof to
another Person, then prior to Landlord leasing the balance thereof to another
Person, Landlord shall give Tenant a notice (the "Balance Notice")
describing the particular portion of the 43rd Floor
Expansion Space that is available for leasing and the Scheduled Additional Space
Commencement Date with respect thereto, Tenant shall have the Additional Space
Option to lease the Additional Space described in the Balance Notice for the
Additional Space Term in accordance with the term of this Article 49, by giving
an Additional Space Notice to Landlord within five (5) Business Days after
Landlord gives the Balance Notice. Tenant shall not have the right to
revoke an Additional Space Notice given to Landlord pursuant to this Article 49;
provided, however, that if (x) Tenant exercises the Additional Space Option for
a particular Additional Space, and (y) Landlord subsequently exercises
Landlord's rights under Section 49.01(i) hereof to accelerate the Scheduled
Additional Space Commencement Date for such Additional Space, then Tenant shall
have the right to revoke Tenant's exercise of the Additional Space Option for
such Additional Space by giving notice thereof to Landlord on or prior to the
fifteenth (15th) day
after the date that Landlord gives Tenant notice of such acceleration of the
Scheduled Additional Space Commencement Date for such Additional
Space. Tenant shall not have the right to exercise the Additional
Space Option for only a portion of the applicable Additional Space.
(b) Notwithstanding
the foregoing to the contrary, if Tenant fails to exercise its rights as set
forth herein to lease any Additional Space, then following the initial leasing
thereof following such failure. Tenant shall have the rights set forth in this
Article 49 with respect to such Additional Space but subject to the limitations
set in this Article 49. Promptly following the consummation of such
initial leasing, following such failure to exercise, Landlord shall send Tenant
a notice setting forth the Scheduled Post Expiration Commencement Date with
respect thereto.
|
49.03
|
Certain
Limitations.
|
(a) Tenant
shall have the right to exercise an Additional Space Option only during the
period that the Minimum Demise Requirement is satisfied, the Minimum Occupancy
Requirement is satisfied and the Initial Tenant Requirement is
satisfied.
(b) Tenant's
exercise of an Additional Space Option shall be ineffective if, on the date that
Tenant gives the applicable Additional Space Notice to Landlord, a monetary
default or material nonmonetary default beyond applicable notice and cure
periods has occurred and is continuing. If (i) Tenant exercises an
Additional Space Option, and (ii) on the Additional Space Commencement Date, a
monetary default or material non-monetary default beyond applicable notice and
cure periods has occurred and is continuing, the Minimum Demise Requirement is
not satisfied, the Minimum Occupancy Requirement is not satisfied or the Initial
Tenant Requirement is not satisfied, then, promptly upon learning of such
occurrence, and prior to delivering possession of such Additional Space to
Tenant, Landlord shall have the right to declare Tenant's exercise of such
Additional Space Option ineffective by giving notice thereof to Tenant, in which
case Landlord shall have the right to lease the applicable Additional Space (or
any portion thereof) to any other person or entity on terms acceptable to
Landlord in Landlord's sole discretion.
(c) Notwithstanding
anything to the contrary herein, if as to any Additional Space, (x) Tenant
exercises the Additional Space Option on or before the date that is three
hundred sixty-five (365) days prior to the Scheduled Post Expiration
Commencement Date for the applicable Additional Space and (y) no later than the
date that is three hundred thirty-five (335) days prior to the Scheduled Post
Expiration Commencement Date, Landlord gives Tenant a notice that Landlord is
then in bona fide
negotiations with the tenant then occupying the applicable Additional Space for
an additional or renewal term for a period commencing on the Scheduled Post
Expiration Commencement Date and stating in such notice the proposed expiration
date of such renewal or extension term, then, Tenant shall have the right,
within five (5) Business Days of such notice (time being of the essence) to
revoke Tenant’s exercise of its Additional Space Option, in which event Tenant’s
exercise of its Additional Space Option is void and of no further force and
effect. In the event that Tenant shall not so revoke Tenant's
exercise of its Additional Space Option, and if, no later than the date that is
three hundred five (305) days prior to the Scheduled Post Expiration
Commencement Date, Landlord gives Tenant a notice stating that, Landlord and
such tenant occupying such Additional Space have executed an agreement extending
or renewing the term of such tenant's occupancy then Tenant's exercise of its
Additional Space Option shall be deemed void and of no further force and effect
(but if Landlord shall not give such notice, then Tenant’s exercise of the
Additional Space Option shall continue to be in effect and binding on both
parties). If Tenant shall so revoke Tenant's exercise of its Additional Space
Option or if its Additional Space Option shall be deemed void as aforesaid, then
Tenant shall not have the right to lease such Additional Space unless and until
such Additional Space again becomes available for leasing including if available
as a result of the expiration or earlier termination of the term of the
agreement extending or renewing the term of such tenant's occupancy, in
accordance with this Article 49, including, without limitation, Section 49.02(b)
hereof.
(d) Tenant
shall not have the right to exercise the Additional Space Option as to any
Additional Space if the Scheduled Additional Space Commencement Date therefor
will occur after the Option Cutoff Date and, without limiting the foregoing,
Landlord shall not have any obligation to give Tenant an Acceleration Notice for
any Additional Space if the Scheduled Accelerated Commencement Date therefor
would occur on or after the Option Cutoff Date. The term "Option Cutoff Date"
shall mean March 31, 2020 (or following Tenant's exercise of the Renewal Option,
March 31, 2021); it being agreed, however, that Tenant shall not be entitled to
exercise an Additional Space Option for which the Scheduled Additional Space
Commencement Date is after April 1, 2016, unless Tenant has exercised (or
simultaneously with such exercise of the Additional Space Option, exercises) the
Renewal Option in which event Tenant shall not be entitled to exercise an
Additional Space Option for which the Scheduled Additional Space Commencement
Date is on or after April 1, 2021.
(e) Tenant
shall not have the right to lease more than twenty thousand (20,000) square feet
of rentable area of Additional Space pursuant to this Article 49; provided,
however that notwithstanding the foregoing provision of this subsection (e),
Tenant shall have the right to lease (x) an entire floor of Additional Space if
Tenant has theretofore leased less than twenty thousand (20,000) square feet of
rentable area of Additional Space and (y) any portion of
the Additional Space until Tenant leases the first portion of
Additional Space that results in Tenant leasing an aggregate of twenty thousand
(20,000) square feet or more of rentable area of Additional
Space. Notwithstanding anything to the contrary contained herein,
Landlord shall not be obligated to divide any of the Additional Space for
purposes hereof.
49.04 Lease Provisions
Apply.
If Tenant
exercises the Additional Space Option in accordance with the provisions of this
Article 49, then, on the applicable Additional Space Commencement Date, the
following provisions shall become effective:
(a) The
applicable Additional Space shall be added to the Premises for purposes of this
Lease (except as otherwise provided in this Section 49.04).
(b) Tenant
shall use the 41st Floor Expansion Space, and Tenant shall cause any other
person or entity claiming by, through or under Tenant to use the 41st Floor
Expansion Space, in either case in accordance with Section 2.01 of this
Lease.
(c) Tenant
shall use the 43rd Floor Expansion Space, and Tenant shall cause any other
person or entity claiming by, through or under Tenant to use the 43rd Floor
Expansion Space, in either case in accordance with Section 2.01 of this
Lease.
(d) The real
estate tax escalation additional rent payable for each comparative from and
after the applicable Additional Space Commencement Date shall be increased to
reflect the inclusion of the applicable Additional Space in the Premises by an
amount equal to the product obtained by multiplying (I) the ratio (expressed as
a percentage) that the number of square feet of rentable area in the applicable
Additional Space bears to the number of square feet of rentable area in the
Building, by (II) the excess of (x) real estate taxes for the applicable
comparative year, over (y) the applicable base year.
(e) The
Expense Payment for each comparative year from and after the applicable
Additional Space Commencement Date shall be increased to reflect the inclusion
of the applicable Additional Space in the Premises by an amount equal to the
product obtained by multiplying (I) the ratio (expressed as a percentage) that
the number of square feet of rentable area in the applicable Additional Space
bears to the number of square feet of rentable area in the Building, by (II) the
excess of (x) Expenses for the applicable comparative year, over (y) the
applicable base year.
(f) Landlord
shall not be obligated to perform any work or make any installations in the
applicable Additional Space or grant Tenant a work allowance therefor; provided,
however, if Tenant shall lease, pursuant to the terms of this Article 49,
Additional Space on the forty-first (41st) floor
such that Tenant leases, in the aggregate, fifty percent (50%) of the rentable
area of the forty-first (41st) floor,
then promptly following the Additional Space Commencement Date on which Tenant
first leases such fifty percent (50%), if Landlord has not done so following the
date of the Seventh Amendment, Landlord shall upgrade, at Landlord's expense,
the common corridor on such floor in a Building standard manner.
(g) The fixed
annual rent for 41st Floor Expansion Space shall be an amount equal to the
Rental Value therefor.
(h) The fixed
annual rent for 43rd Floor Expansion Space shall be an amount equal to the
Rental Value therefor.
(i) For
any Additional Space that is (x) less than 10,000 rentable square feet in the
aggregate, the fixed annual rent therefor shall be increased to include an
amount for Landlord to supply electricity to Tenant therefor and Tenant shall
pay for Tenant's electrical consumption therein on a "rent inclusion" basis at
commercially reasonable rates and otherwise pursuant to the terms of the Lease,
as applicable, and (y) for Additional Space of 10,000 rentable square feet or
more, Landlord shall install, at Landlord’s expense a submeter to measure
Tenant’s electrical consumption therein, and Tenant shall pay for such
electricity on a submetered basis in accordance with the terms of this
Lease.
49.05 Delivery.
If Tenant
exercises any Additional Space Option pursuant to this Article 49, then Landlord
shall deliver vacant, broom-clean and exclusive possession of the applicable
Additional Space to Tenant on the applicable Scheduled Additional Space
Commencement Date; provided, however,
that if Landlord shall be unable to deliver vacant, broom-clean and exclusive
possession to Tenant of the applicable Additional Space on the Scheduled
Additional Space Commencement Date, then Landlord, at Landlord's expense, shall
use reasonable diligence to cause vacant and exclusive possession of the
applicable Additional Space to be delivered to Tenant as promptly as reasonably
practicable thereafter (the Scheduled Additional Space Commencement Date, or
if later, the date on which Landlord delivers vacant and
exclusive possession of the applicable Additional Space to Tenant as
contemplated by this Section 49.05, being referred to herein as the "Additional Space
Commencement Date"), and (y) if such person's or entity's right to remain
in occupancy of the applicable Additional Space (or a portion thereof)
terminates prior to the Scheduled Additional Space Commencement Date, then
Landlord shall have no liability to Tenant (except as otherwise set forth
above), and Tenant shall have no right to terminate or rescind this Lease or
Tenant's exercise of the Additional Space Option or reduce the Rental, in each
case deriving from Landlord's failure to deliver vacant and exclusive possession
of the applicable Additional Space to Tenant on the Scheduled Additional Space
Commencement Date (but for the avoidance of doubt, Tenant shall have no
obligation in respect of any Additional Space prior to the applicable Additional
Space Commencement Date). Notwithstanding anything to the contrary
contained herein, if Landlord fails to deliver possession of the applicable
Additional Space to Tenant on or before the date that is three hundred
sixty-five (365) days after the Scheduled Additional Space Commencement Date
therefor, then Tenant shall have the right to rescind Tenant's election to lease
the applicable Additional Space, by giving notice thereof to Landlord at any
time after such three hundred sixty-fifth (365th)
day that Landlord has not delivered such applicable Additional Space
to Tenant, in which event Tenant shall have no further obligations or
liabilities or rights in connection with such applicable Additional
Space.
ARTICLE
50
Renewal
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50.01
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Renewal
Option.
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(a) Subject
to the terms of this Article 50, Tenant shall have the option (the "Renewal Option") to
extend the term of this Lease for (x) the entire Premises or (y) 80% or more of
the Premises (which 80% shall include the entire rentable area of the 42nd floor
of the Building) (but if for a portion of the Premises described in this clause
(y), then each portion of the Renewal Premises must be contiguous (vertically or
horizontally) to another portion of the Renewal Premises) ( the portion of the
Premises for which Tenant exercises such renewal option, the "Renewal Premises")
for one (1) additional period of five (5) years (the "Renewal Term"), which
Renewal Term shall commence on April 1, 2021 and end on March 31, 2026; provided
that on the date that Tenant gives Landlord notice (the "Renewal Notice") of
Tenant’s election to exercise the Renewal Option, (a) this Lease has not been
previously terminated, (b) no monetary default or material non-monetary beyond
applicable notice and cure periods has occurred and is continuing, (c) the
Minimum Occupancy Requirement is satisfied, (d) the Minimum Demise Requirement
is satisfied, and (e) the Initial Tenant Requirement is satisfied
(b) The
Renewal Option shall identify the Renewal Premises and shall be exercisable only
by Tenant's delivering the Renewal Notice to Landlord not later than March 31,
2020 (as to which date time shall be of the essence). Landlord shall
have the right to declare Tenant's exercise of the Renewal Option ineffective if
(a) a monetary default or material non-monetary default has occurred and is
continuing (after applicable notice and cure periods) on Xxxxx 00, 0000, (x) the
Minimum Occupancy Requirement is not satisfied as of March 31, 2021, (c) the
Minimum Demise Requirement is not satisfied as of March 31, 2021, or (d) as of
March 31, 2021, the Initial Tenant Requirement is not satisfied, in either case
by giving notice thereof to Tenant during the period commencing March 31, 2021
and ending on the date that is fifteen (15) days after the New Expiration Date
(it being understood that (x) if Landlord so declares Tenant's exercise of the
Renewal Option ineffective, then the Term shall terminate on the fifteenth
(15th) day after the date that Landlord gives Tenant notice of such declaration
(in which case Tenant shall pay the rental due hereunder in respect of the
Renewal Term to the extent accruing during the period commencing on the first
day of the Renewal Term and ending on the date that the Term so terminates), and
(y) nothing contained in this Section 50.01(b) limits Landlord's other rights or
remedies after the occurrence of a default beyond applicable notice and cure
periods).
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50.02
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Lease Provisions
Apply.
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If Tenant
exercises the Renewal Option, then the leasing of the Renewal Premises during
the Renewal Term shall be upon the terms set forth herein, except that the
expiration date shall be March 31, 2026, and:
(a) the Fixed
Rent for the Renewal Premises during the Renewal Term shall be the Rental Value
thereof;
(b) Landlord
shall have no obligation to perform any work in connection with Tenant's
exercise of the Renewal Option;
(c) Landlord
shall have no obligation to grant to Tenant any work allowance in connection
with Tenant's exercise of the Renewal Option; and
(d) the
provisions of this Article 50 shall not be applicable to permit Tenant to
further extend the term of this Lease.
Schedule
3
Articles 53, 54 and
55
ARTICLE
53
OFAC
Compliance.
53.01. Tenant
represents and warrants that (a) Tenant and each person or entity owning an
interest in Tenant is (i) not currently identified on the Specially Designated
Nationals and Blocked Persons List maintained by the Office of Foreign Assets
Control, Department of the Treasury ("OFAC") and/or on any other similar list
maintained by OFAC pursuant to any authorizing statute, executive order or
regulation (collectively, the "List"), and (ii) not a person or entity with whom
a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law,
regulation, or Executive Order of the President of the United States, (b) none
of the funds or other assets of Tenant constitute property of, or are
beneficially owned, directly or indirectly, by any Embargoed Person (as
hereinafter defined), (c) no Embargoed Person has any interest of any nature
whatsoever in Tenant (whether directly or indirectly), (d) none of the funds of
Tenant have been derived from any unlawful activity with the result that the
investment in Tenant is prohibited by law or that this Lease is in violation of
law, and (e) Tenant has implemented procedures, and will consistently apply
those procedures, to ensure the foregoing representations and warranties remain
true and correct at all times. The term "Embargoed Person" means any
person, entity or government subject to trade restrictions under U.S. law,
including but not limited to, the International Emergency Economic Powers Act,
50 U.S.C. §1701 et
seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Orders or regulations promulgated thereunder with the result that the
investment in Tenant is prohibited[by law or Tenant is in violation of
law.
53.02 Tenant
covenants and agrees (a) to comply with all requirements of law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now or
hereafter in effect, (b) to immediately notify Landlord in writing if any of the
representations, warranties or covenants set forth in this paragraph or the
preceding Section are no longer true or have been breached or if Tenant has a
reasonable basis to believe that they may no longer be true or have been
breached, (c) not to use funds from any "Prohibited Person" (as such term is
defined in the September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism) to make any payment due to Landlord under this Lease and (d) at the
request of Landlord, to provide such information as may be requested by Landlord
to determine Tenant’s compliance with the terms of this Article 53.
53.03 Tenant
hereby acknowledges and agrees that Tenant’s inclusion on the List at any time
during the term of this Lease shall be a default
hereunder. Notwithstanding anything herein to the contrary, Tenant
shall not permit the Premises or any portion thereof to be used or occupied by
any person or entity on the List or by any Embargoed Person (on a permanent,
temporary or transient basis), and any such use or occupancy of the Premises by
any such person or entity shall be a default hereunder.
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53.04
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Tenant
shall provide documentary and other evidence of Tenant's identity and
ownership as may be reasonably requested by Landlord at any time to enable
Landlord to verify Tenant's identity or to comply with any legal
request.
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ARTICLE
54
Fair Market
Rent
54.01 Certain
Definitions.
(a) The
term "Rental
Value" shall mean, as of the Applicable Date,
(i) in
connection with the Renewal Term, and the Renewal Premises, the greater of (x)
the annual Fixed Rent payable as of March 31, 2021 (without taking into account
any abatement of Fixed Rent applicable as of such date) and (y) the Fair Market
Rent for the Renewal Term; and
(ii) in
connection with any Additional Space, only the Fair Market Rent for the
applicable Additional Space.
(b) The
term "Fair Market
Rent" shall mean annual fair market rental value for the Applicable Area
on the Applicable Date for the applicable term.
(c) The
term "Applicable
Area" shall mean, (x) the Renewal Premises in connection with the
determination of the Fair Market Rent for the Renewal Term, and (y) the
applicable Additional Space, in connection with the determination of the Fair
Market Rent in connection with the exercise of an option under Article 49 of
this Lease for the applicable term.
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(d)
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The
term "Applicable
Date" shall mean:
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1. April 1,
2021, in connection with the determination of the Fair Market Rent for the
Renewal Premises for the Renewal Term pursuant to Article 50 of this
Lease.
2. the
Scheduled Additional Space Commencement Date, in connection with the
determination of the Fair Market Rent for any Additional Space under Article
49.
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54.02
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Fair Market Rent
Assumptions.
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The Fair
Market Rent shall be determined assuming that the Applicable Area is free and
clear of all leases and tenancies (including this Lease), that the Applicable
Area is available for the purposes permitted by this Lease in the then rental
market, that Landlord has had a reasonable time to locate a tenant, and that
neither Landlord nor the prospective tenant is under any compulsion to rent, and
taking into account all relevant factors.
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54.03
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Fair Market
Procedure.
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(a)
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If
Tenant exercises the Renewal Option, or Tenant exercises an Additional
Space Option, then Landlord and Tenant shall each deliver simultaneously
to the other, at Landlord's office, a notice (each, a "Rent Notice"),
on a date mutually agreed upon, but in no event later than (and if no date
is otherwise agreed to, then on):
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1. October
1, 2020, with respect to the Rent Notice for the determination of the Fair
Market Rent in the Premises, in the case of a renewal pursuant to Article 50 of
this Lease, and
2. the
later to occur of (I) three (3) months before the Scheduled Additional Space
Commencement Date, and (II) the sixtieth (60th) day after the date that Tenant
gives the applicable Additional Space Notice to Landlord, with respect to the
Rent Notice for the determination of the Fair Market Rent for the applicable
Additional Space, as the
case may be, which Rent Notice shall set forth each of their respective
determinations of the Fair Market Rent (Landlord's determination of the Fair
Market Rent is referred to as "Landlord's
Determination" and Tenant's determination of the Fair Market Rent is
referred to as "Tenant's
Determination"). If (i) Landlord fails to give Landlord's
Determination to Tenant, and (ii) Tenant tenders Tenant's Determination to
Landlord, then the Fair Market Rent for the Applicable Area shall be Tenant's
Determination. If (i) Tenant fails to give Tenant's Determination to
Landlord, and (ii) Landlord tenders Landlord's Determination to Tenant, then the
Fair Market Rent for the Applicable Area shall be Landlord's
Determination.
If
Tenant's Determination is lower than Landlord's Determination, then Landlord and
Tenant shall attempt in good faith to agree upon the Fair Market Rent for a
period of thirty (30) days after the date that Landlord gives Landlord's
Determination to Tenant, and Tenant gives Tenant's Determination to
Landlord. If Tenant's Determination is higher than Landlord's
Determination, then the Fair Market Rent for the Applicable Area shall be the
average of Landlord's Determination and Tenant's Determination. If
Landlord and Tenant do not agree on the Fair Market Rent for the Applicable Area
within thirty (30) days after the date that Landlord gives Landlord's
Determination to Tenant, and the date that Tenant gives Tenant's Determination
to Landlord, then Landlord and Tenant shall select jointly an individual that is
an independent real estate appraiser that (i) neither Landlord nor Tenant, nor
any of their respective Affiliates, has engaged during the immediately preceding
period of three (3) years, and (ii) has at least ten (10) years of experience in
appraising properties that are similar in character to the Building (such
appraiser being referred to herein as the "Appraiser"). Landlord
and Tenant shall each pay fifty percent (50%) of the Appraiser's
fee. If Landlord and Tenant do not agree on the Appraiser within ten
(10) days after the last day of such period of thirty (30) days, then either
party shall have the right to institute an Expedited Arbitration Proceeding (as
hereinafter defined) or the sole purpose of designating the
Appraiser.
(b) The
parties shall instruct the Appraiser to (i) conduct the hearings and
investigations that he or she deems appropriate, and (ii) choose either
Landlord's Determination or Tenant's Determination as the better estimate of
Fair Market Rent for the Applicable Area, within thirty (30) days after the date
that the Appraiser is designated. The Appraiser's aforesaid choice
shall be conclusive and binding upon Landlord and Tenant. Each party
shall pay its own counsel fees and expenses, if any, in connection with the
procedure described in this Article 54. The Appraiser shall not have
the power to supplement or modify any of the provisions of this
Lease.
(c) If the
final determination of the Fair Market Rent is not made on or before the
Applicable Date in accordance with the provisions of this Article 54, then,
pending such final determination, the Fair Market Rent shall be deemed to be an
amount equal to the average of Landlord's Determination and Tenant's
Determination. If, based upon the final determination hereunder of
the Fair Market Rent, the payments made by Tenant on account of the Rental for
the period prior to the final determination of the Fair Market Rent were less
than the Rental payable for such period, then Tenant, not later than the
thirtieth (30th) day after Landlord's demand therefor, shall pay to Landlord the
amount of such deficiency, together with interest thereon at the Base Rate (as
hereinafter defined). If, based upon the final determination of the
Fair Market Rent, the payments made by Tenant on account of the Rental for the
period prior to the final determination of the Fair Market Rent were more than
the Rental due hereunder for such period, then Landlord, not later than the
thirtieth (30th) day after Tenant's demand therefor, shall pay such excess to
Tenant, together with interest thereon at the Base Rate (it being agreed that if
Landlord fails to make such payment within thirty (30) days after Tenant's
demand therefor, then Tenant shall have the right to apply against the Rental
thereafter coming due hereunder a credit in an aggregate amount equal to such
excess and such interest, until such credit is exhausted). The term "Base Rate" shall mean
the rate of interest announced publicly from time to time by, or its successor,
as its "prime lending rate" (or such other term as may be used by Citibank N.A.
(or its successor), from time to time, for the rate presently referred to as its
"prime lending rate").
(d) The term
"Expedited Arbitration
Proceeding" shall mean a binding arbitration proceeding conducted in the
city of New York under the Commercial Arbitration Rules of the American
Arbitration Association (or its successor) (collectively, the "Rules") and
administered pursuant to the Expedited Procedures provisions thereof; provided,
however, that such arbitration shall be conducted for the sole purpose of
selecting the Appraiser under Section 54.03 hereof; and provided, further, that
with respect to any such arbitration, (i) the list of arbitrators referred to in
Section E-4(b) of the Rules shall be returned within five (5) days from the date
of mailing; (ii) the parties shall notify the American Arbitration Association
(or its successor) by telephone, within four (4) days, of any objections to the
arbitrator appointed and, subject to clause (vii) below, shall have no right to
object if the arbitrator so appointed was on the list submitted by the American
Arbitration Association (or its successor) and was not objected to in accordance
with Section E-4(c) of the Rules as modified by clause (i) above; (iii) the
notification of the hearing referred to in Section E-7 of the Rules shall be
four (4) days in advance of the hearing; (iv) the hearing shall be held within
seven (7) days after the appointment of the arbitrator; (v) the arbitrator shall
have no right to award damages or vary, modify or waive any provision of this
Lease; (vi) the decision of the arbitrator shall be final and binding on the
parties; and (vii) the arbitrator shall not have been employed by either party
(or their respective Affiliates) during the period of three (3) years prior to
the date of the Expedited Arbitration Proceeding.
ARTICLE
55
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55.01
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Tenant's
Indemnification of the Landlord
Indemnitees.
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(a) Subject
to the terms of this Section 55.01, and in addition to any obligations of Tenant
under Paragraph 12 of the Seventh Amendment, Tenant shall indemnify the Landlord
Indemnitees (as hereinafter defined), and hold the Landlord Indemnitees
harmless, from and against, all losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) that
are incurred by a Landlord Indemnitee and that derive from a claim (a "Claim Against
Landlord") made by a third party against such Landlord Indemnitee arising
from or alleged to arise from:
1. any
accident, injury or damage to any person or property caused by the negligent act
or negligent omission of any Tenant Indemnitee (as hereinafter defined) at the
Building during the term of this Lease;
2. an event
or circumstance that occurs during the term of this Lease in the demised
premises, other than in any Leaseback Area;
3. the
breach of any covenant to be performed by Tenant hereunder; or
4. a
material misrepresentation made by Tenant hereunder.
Notwithstanding
anything to the contrary herein, Tenant shall not be required to indemnify the
Landlord Indemnitees, or hold the Landlord Indemnitees harmless, in either case
as aforesaid, to the extent that the negligence or, willful misconduct or breach
of this Lease of a Landlord Indemnitee or any act or omission of any tenant,
subtenant or occupant of any Leaseback Area contributed to the loss or damage
sustained by the Person making the Claim Against Landlord (as hereinafter
defined).
(b) The term
"Landlord
Indemnitees" shall mean, collectively, Landlord, each ground lessor
holding a superior interest to Landlord in the Building or the land on which it
is locate, each mortgagee of the Building and their respective partners,
members, managers, shareholders, officers, directors, employees, trustees and
agents.
(c) The term
"Tenant
Indemnitees" shall mean Tenant, each assignee of this Lease and each
subtenant of the demised premises and their respective partners, members,
managers, shareholders, officers, directors, employees, trustees and
agents.
1. The
parties intend that the Landlord Indemnitees (other than Landlord) shall be
third-party beneficiaries of this Section 55.01.
2. Nothing
contained in this Section 55.01 shall be deemed to relieve Landlord of the
obligation to maintain insurance in respect of the Building in accordance with
the terms of this Lease.
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55.02
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Landlord's
Indemnification of the Tenant
Indemnitees.
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(a) Subject
to the terms of this Section 55.02, and in addition to any obligation of
Landlord under Paragraph 12 of the Seventh Amendment, Landlord shall indemnify
the Tenant Indemnitees, and hold the Tenant Indemnitees harmless, from and
against, all losses, damages, liabilities, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) that are incurred
by a Tenant Indemnitee and that derive from a claim (a "Claim Against
Tenant") made by a third party against such Tenant Indemnitee arising
from or alleged to arise from:
1. the
breach of any covenant to be performed by Landlord hereunder;
2. a
material misrepresentation made by Landlord hereunder; or
3. a
wrongful act or wrongful omission of any Landlord Indemnitee at the Building
(including, without limitation, a wrongful act or wrongful omission of any
person or entity that leases or occupies any Leaseback Space by virtue of
Landlord's exercising Landlord's rights under Section 10.02
hereof).
Notwithstanding
anything to the contrary herein, Landlord shall not be required to indemnify the
Tenant Indemnitees, or to hold the Tenant Indemnitees harmless, in either case
as aforesaid, to the extent that the negligence or willful misconduct of a
Tenant Indemnitee contributed to the loss or damage sustained by the Person
making the Claim Against Tenant.
(b) The
parties intend that the Tenant Indemnitees (other than Tenant) shall constitute
third-party beneficiaries of this Section 55.02.
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55.03
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Indemnification
Procedure.
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(a) If at any
time a Claim Against Tenant is made or threatened against a Tenant Indemnitee,
or a Claim Against Landlord is made or threatened against a Landlord Indemnitee,
then the Person entitled to indemnity under this Article 55 (the "Indemnitee") shall
give to the other party (the "Indemnitor") notice
of such Claim Against Tenant or such Claim Against Landlord, as the case may be
(the "Claim");
provided, however, that the Indemnitee's failure to provide such notice shall
not impair the Indemnitee's rights to indemnity as provided in this Article 55
except to the extent that the Indemnitor is prejudiced materially
thereby. Such notice shall state the basis for the Claim and the
amount thereof (to the extent such amount is determinable at the time that such
notice is given).
(b) The
Indemnitor shall have the right to defend against the Claim using attorneys that
the Indemnitor reasonably designates and that are approved by the Indemnitee
approves (it being understood that (I) the Indemnitee shall not unreasonably
withhold, condition or delay such approval, (II) the Indemnitee shall be deemed
to have approved such attorneys if the Indemnitee fails to respond within ten
(10) days to the Indemnitor's request for approval, and (III) the attorneys
designated by the Indemnitor's insurer shall be deemed approved by the
Indemnitee for purposes hereof). Without limiting any other
obligation under this Lease, each Indemnitee agrees to cooperate and make
available to the Indemnitor such information as is reasonably necessary in
connection with such defense. The Indemnitor's failure to notify the
Indemnitee of the Indemnitor's election to defend against the Claim within
thirty (30) days after the Indemnitee gives such notice to the Indemnitor shall
be deemed a waiver by the Indemnitor of its aforesaid right to defend against
the Claim.
(c) Subject
to the terms of this Section 55.03(c), if the Indemnitor elects to defend
against the Claim pursuant to Section 55.03(b) hereof, then the Indemnitee may
participate, at the Indemnitee's expense, in defending against the
Claim. The Indemnitor shall have the right to control the defense
against the Claim (and, accordingly, the Indemnitee shall cause its counsel to
act accordingly). If there exists a conflict between the interests of
the Indemnitor and the interests of the Indemnitee, then the Indemnitor shall
pay the reasonable fees and disbursements of any counsel that the Indemnitee
retains in so participating in the defense against the Claim. Except
as otherwise provided in this Section 55.03(c), the Indemnitor shall not be
required to pay the costs that Indemnitee otherwise incurs in engaging counsel
to consult with Indemnitee in connection with the Claim.
(d) If the
Claim is a Claim Against Landlord, then Landlord shall cooperate reasonably with
Tenant in connection therewith. If the Claim is a Claim Against
Tenant, then Tenant shall cooperate reasonably with Landlord in connection
therewith.
(e) The
Indemnitor shall not consent to the entry of any judgment or award regarding the
Claim, or enter into any settlement regarding the Claim, except in either case
with the prior approval of the Indemnitee (any such entry of any judgment or
award regarding a Claim to which the Indemnitor consents, or any such settlement
regarding a claim to which the Indemnitor agrees, being referred to herein as a
"Settlement"). The
Indemnitee shall not unreasonably withhold, condition or delay the Indemnitee's
approval of a proposed Settlement, provided that (I) the Indemnitor pays, in
cash, to the Person making the Claim, the entire amount of the Settlement
contemporaneously with the Indemnitee's approval thereof (so that neither the
Indemnitor nor the Indemnitee have any material obligations regarding the
applicable Claim that remain executory from and after the consummation of the
Settlement), or (II) the Person making the Claim releases the Indemnitee from
any obligations owed to such Person pursuant to such Settlement that remain
executory after the consummation thereof). If (x) the terms of the
Settlement do not provide for the Indemnitor's making payment, in cash, to the
Person making the Claim, the entire amount of the Settlement, contemporaneously
with the Indemnitee's approval thereof (so that either the Indemnitor or the
Indemnitee have any material obligations regarding the applicable Claim that
remain executory from and after the consummation of the Settlement), (y) the
Person making the Claim does not release the Indemnitee from any obligations
owed to such Person pursuant to such Settlement that remain executory after the
consummation thereof, and (z) the Indemnitee does not approve the proposed
Settlement, then the Indemnitor's aggregate liability under this Article 55 for
the Claim (including, without limitation, the costs incurred by the Indemnitor
for legal costs and other costs of defense) shall not exceed an amount equal to
the sum of (i) the aggregate legal costs and defense costs that the Indemnitor
incurred to the date that the Indemnitor proposes such Settlement, (ii) the
amount that the Indemnitor would have otherwise paid to the Person making the
applicable Claim under the terms of the proposed Settlement, and (iii) the
aggregate legal costs and defense costs that the Indemnitor would have
reasonably expected to incur in consummating the proposed
Settlement.
(f) If the
Indemnitor does not elect to defend against the Claim as contemplated by this
Section 55.03, then the Indemnitee may defend against, or settle, such claim,
action or proceeding in any manner that the Indemnitee deems appropriate, and
the Indemnitor shall be liable for the Claim to the extent provided in this
Article 55. Without limiting any other obligation under this Lease, the
Indemnitor agrees to cooperate and make available to the Indemnitee such
information as is reasonably necessary in connection with such
defense.
(g) If
the Indemnitor or Indemnitee cooperates in the defense, or makes information
available in connection therewith, then the party that requested such
cooperation shall pay reasonable out-of-pocket costs and expenses (including,
without limitation, reasonable legal fees and disbursements) of the party
providing such cooperation and information.
