Exhibit 10.30
AGREEMENT OF LEASE
Between
METROPOLITAN LIFE INSURANCE COMPANY, Landlord
And
CREDIT SUISSE FIRST BOSTON CORPORATION, Tenant
Thirteenth (13th) Floor in
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dated: September 10, 1997
TABLE OF CONTENTS
Article Page No.
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1. RENT ............................................................... 3
2. OCCUPANCY .......................................................... 3
3. ALTERATIONS AND INSTALLATIONS ...................................... 8
4. REPAIRS ............................................................ 18
5. REQUIREMENTS OF LAW ................................................ 20
6. SUBORDINATION ...................................................... 22
7. PROPERTY--LOSS, DAMAGE, REIMBURSEMENT .............................. 24
8. DESTRUCTION--FIRE OR OTHER CAUSE ................................... 30
9. EMINENT DOMAIN ..................................................... 32
10. ASSIGNMENT, ETC .................................................... 34
11. ACCESS TO DEMISED PREMISES ......................................... 45
12. CERTIFICATE OF OCCUPANCY ........................................... 47
13. INTENTIONALLY DELETED .............................................. 48
14. DEFAULT ............................................................ 48
15. REMEDIES OF LANDLORD: WAIVER OF REDEMPTION ......................... 51
16. FEES AND EXPENSES .................................................. 53
17. NO REPRESENTATIONS BY LANDLORD ..................................... 53
18. END OF TERM ........................................................ 54
19. QUIET ENJOYMENT .................................................... 54
20. DEFINITIONS ........................................................ 54
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Article Page No.
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21. ADJACENT EXCAVATION--SHORING ....................................... 59
22. RULES AND REGULATIONS .............................................. 59
23. NO WAIVER; ENTIRE AGREEMENT ........................................ 60
24. WAIVER OF TRIAL BY JURY ............................................ 61
25. INABILITY TO PERFORM ............................................... 62
26. NOTICES ............................................................ 63
27. SERVICES ........................................................... 64
28. TAX INCREASE PAYMENTS .............................................. 72
29. OPERATING EXPENSE INCREASE PAYMENTS ................................ 75
30. ELECTRIC ENERGY .................................................... 83
31. COMMENCEMENT OF THE TERM ........................................... 85
32. TENANT'S WORK, ETC ................................................. 87
33. INTENTIONALLY DELETED .............................................. 90
34. INTENTIONALLY DELETED .............................................. 90
35. NAME OF BUILDING ................................................... 90
36. INVALIDITY OF ANY PROVISION ........................................ 91
37. CAPTIONS ........................................................... 91
38. ESTOPPEL CERTIFICATE ............................................... 91
39. MORTGAGE RIGHTS .................................................... 92
40. BROKER ............................................................. 93
41. RENEWAL OPTIONS .................................................... 93
Article Page No.
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42. COMPUTATION OF BASIC ANNUAL RENT FOR EXTENSION TERMS ............... 96
43. OPTION FOR EARLIER TERMINATION OF LEASE BY TENANT .................. 98
44. MISCELLANEOUS ...................................................... 99
45. NOT AN EMPLOYEE BENEFIT PLAN ....................................... 101
46. SUCCESSORS AND ASSIGNS ............................................. 101
47. MULTIPLE COUNTERPARTS .............................................. 102
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AGREEMENT OF LEASE as of this 10th day of September, 1997 between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation with an office at
Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as
"Landlord", and CREDIT SUISSE FIRST BOSTON CORPORATION, a Massachusetts
corporation, with an office at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
hereinafter referred to as "Tenant".
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
upon and subject to the covenants, agreements, terms, provisions and conditions
of this Lease, for the term and at the rent hereinafter stated, in the building
at 00 Xxxxxxx Xxxxxx, in the Borough of Manhattan, City of New York, State of
New York (hereinafter referred to as the "Building"), the premises (the "demised
premises") delineated on Exhibit A attached hereto and made a part hereof,
consisting of seventy-eight thousand nine hundred seventeen (78,917) rentable
square feet of space, being the entire rentable area of the 13th floor of the
Building. It is expressly understood and agreed that no Building shaftways,
Building elevator shafts or Building stairways, shall be deemed part of the
demised premises.
Tenant shall, subject to the terms and conditions of the Lease, have, as
appurtenant to the demised premises, the non-exclusive right to use in common
with others designated by Landlord those portions of the Building and the Land
not leased or designated for lease to, or exclusive use by, other tenants,
Landlord or Landlord's Affiliates, as such term is hereinafter defined, and that
are provided by Landlord for use in common by Landlord, Landlord's Affiliates,
Tenant and other tenants of the Building and the Land, whether or not such area
is open to the general public (the "Common Areas"). The vertical shaftways and
risers running through the Building shall not be deemed part of the Common Areas
nor part of the demised premises, but Tenant shall, to the extent shown on the
plans and specifications listed in Exhibit F, have the right to connect to the
risers and use of the shaftways as expressly delineated thereon.
The number of rentable square feet contained in the demised premises has
been agreed upon by Landlord and Tenant as being the agreed upon size of the
demised premises. Further, Landlord and Tenant acknowledge, ratify and confirm
that each of the measurements set forth in Exhibit G and the measurement
methodology set forth in Exhibit G-1 have also been agreed upon and that such
methodology shall continue to be used in connection with any measurement of the
demised premises and the Building for the purposes of this Lease.
The term of this Lease shall be for a term expiring on April 30, 2017, or
at such earlier or later date on which the term shall end pursuant to the terms
of this Lease or pursuant to law, at a basic annual rent of (i) One Million
Twenty-Five Thousand Nine Hundred Twenty-One ($1,025,921.00) Dollars for the
period commencing on the Commencement Date (as hereinafter defined) and ending
on one day prior to the 66th month
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anniversary of the Commencement Date; (ii) One Million Two Hundred Sixty-Two
Thousand Six Hundred Seventy-Two ($1,262,672.00) Dollars for the period
commencing on the 66th month anniversary of the Commencement Date and ending on
one day prior to the 126th month anniversary of the Commencement Date; (iii) One
Million Four Hundred Ninety-Nine Thousand Four Hundred Twenty-Three
($1,499,423.00) Dollars for the period commencing on the 126th month anniversary
of the Commencement Date and ending on one day prior to the 186th month
anniversary of the Commencement Date; and (iv) One Million Seven Hundred
Thirty-Six Thousand One Hundred Seventy-Four ($1,736,174.00) Dollars for the
period commencing on the 186th month anniversary of the Commencement Date and
ending on April 30, 2017. In the event that the date which is one day prior to
any of the anniversary dates set forth in clauses (i) through (iv) is a day
other than the last day of the month, then Tenant shall pay basic annual rent
until the last day of such month and shall commence paying the basic annual rent
for the subsequent rent period on the first day of the next month.
Landlord and Tenant also acknowledge and agree that the basic annual rent
set forth above shall be increased by the amount necessary to amortize, on a
"beginning of the month-basis" determined on the day upon which basic annual
rent is to be paid, Tenant's Allowance (as hereinafter defined) over the
remaining term of the Lease using a 7.32% annual interest rate (the "Rent
Increase"). Tenant agrees to pay Landlord, in addition to, and not in
substitution of, the basic annual rent set forth above, the Rent Increase as
reasonably determined by Landlord on the 183rd day following the first request
by Tenant for distribution of all or any portion of Tenant's Allowance pursuant
to Section 32.01 hereof. The Rent Increase shall, subject to the terms hereof,
commence on the first day of the first month following delivery by Landlord to
Tenant of Landlord's computation of the Rent Increase. In the event Tenant does
not agree with Landlord's computation of the Rent Increase, then Tenant shall
submit its calculation of the Rent Increase in reasonable detail to Landlord
within five (5) business days after Tenant's receipt of Landlord's calculation
and the parties shall meet in an attempt to resolve, in good faith, the dispute.
Failing resolution within fifteen (15) days thereof, the parties shall submit
the issue to the accounting firm of Xxxxxx Xxxxxxxx to review the calculations
and to determine the appropriate calculation. (Failing a willingness of Xxxxxx
Xxxxxxxx to perform such calculation, then the issue will be submitted to
Coopers & Xxxxxxx, or Ernst & Young, in succession, and in the event none of the
aforementioned accounting firms are willing to make the calculation, then the
issue shall, within thirty (30) days of the refusal of Ernst & Young, be
submitted to arbitration in accordance with Section 42 of this Lease.) Upon
resolution of the issue, Tenant shall commence paying the Rent Increase on the
first day of the first month following such resolution.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
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ARTICLE 1.
RENT
1.01. Tenant shall pay the basic annual rent and additional rent as above
and as hereinafter provided. Tenant agrees to pay said basic annual rent in
equal monthly installments in advance on the first day of each calendar month
during said term, together with all additional rent and other charges due or
payable under this Lease, in lawful money of the United States, at the office of
Landlord or such other place in the United States of America as Landlord may
designate, without any setoff, deduction or abatement whatsoever, except as
expressly provided otherwise in this Lease. At Landlord's option such payments
shall be made by wire transfer of immediately available Federal funds to such
account as Landlord shall designate in writing to Tenant. The term of this Lease
shall commence (the "Commencement Date") on the date of execution of this Lease,
and Tenant's obligation to commence the payment of the basic annual rent
required to be paid by Tenant hereunder and additional rent (including, without
limitation, the additional rent payable under Articles 28 and 29 hereof) shall
commence (the "Rent Commencement Date") on the date that is six (6) months
subsequent to the date of execution of this Lease. In the event the Rent
Commencement Date for the demised premises occurs on other than the first day of
the month, the additional rent or the basic annual rent attributable to the
demised premises for the month in which the Rent Commencement Date occurs shall
be prorated on the basis of a three hundred sixty-five (365) day year with the
actual number of days in the month.
ARTICLE 2.
OCCUPANCY
2.01. (a) The demised premises shall be used and occupied solely for
administrative, executive and general offices in a manner befitting a
First-Class Office Building, as such term is hereinafter defined, and for any
other lawful uses incidental thereto which are generally in keeping with the
character, reputation and appearance of First-Class Office Buildings and for no
other purposes, which included incidental uses, subject to the limitations
contained herein, may include, but not be limited to, the following:
(i) Sale to Tenant's employees, executives and business
visitors of food and drink (and, in ladies' rest rooms, hygienic products) by
vending or other machines, the sale of which, by the means selected by Tenant,
is not prohibited by law, whether by Tenant or third parties, and provided that
said machines are not visible from any point outside of the exterior of the
demised premises.
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(ii) Installation, maintenance and operation of pantries,
kitchen cafeteria and dining facilities, including appropriate food and beverage
preparation, handling, service and other associated facilities for use by
Tenant, its officers, employees and guests (but not as a public restaurant),
provided (y) the plans and specifications therefor (including, without
limitation, the location of such pantries, kitchen cafeteria and other
facilities and the method of exhausting aromas, odors and smoke) are approved by
Landlord pursuant to, and on the basis of, the terms and conditions of Article 3
of this Lease and (z) all municipal and governmental approvals or consents for
such use are obtained and kept in full force and effect by Tenant at its sole
cost and expense.
(iii) Installation, maintenance and operation of (A)
electronic data processing equipment, audiovisual and closed circuit and other
teleconferencing television facilities used for Tenant's business purposes,
computer equipment and business machines, (B) offset printing and photographic
reproducing equipment and (C) telephones and all other similar types of
communications equipment incidental to, and used in the operation of, Tenant's
business.
(iv) Seminars, meetings and conferences in connection with
Tenant's business operations and gatherings of groups of people which directly
or indirectly xxxxxx or promote Tenant's business interests that are not open to
the general public but are by invitation only and are not operated as a
business.
(v) Stock brokerage (for other than "off-the-street"
transactions with the public), board and conference room purposes.
(vi) Facilities for storage of equipment and supplies in
connection with the operation of Tenant's business and files, safes and vaults,
provided (y) the plans and specifications therefor (including, without
limitation, the location thereof) are, to the extent the placement or location
of the same would require reinforcement of the floor space on which they are to
be located or placed, approved by Landlord pursuant to, and on the basis of, the
terms and conditions of Article 3 of this Lease, and (z) all municipal and
governmental approvals or consents for such use are obtained and kept in full
force and effect by Tenant at its sole cost and expense.
(vii) "In-house" medical facilities for treatment of the
officers, employees and visitors of Tenant (but not as a public facility),
provided, that Tenant, at its sole cost and expense, (A) obtains and keeps in
full force and effect all licenses and permits for such use, (B) complies with
all Legal Requirements, as such term is hereinafter defined, for such use and
(C) arranges for the appropriate storage and offsite disposal of any medical
wastes generated or created by such use.
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(viii) Internal staircases between contiguous floors of the
demised premises and the premises demised to Tenant (or its affiliates) under
the CSFB Lease or to the tenant (or any affiliates of Tenant) under the CS
Lease, provided (x) no staircase may pass through space leased to other tenants
of Landlord in the Building, (y) the plans and specifications therefor are
approved by Landlord (including, without limitation, the location thereof)
pursuant to, and on the basis of, the terms and conditions of Article 3 of this
Lease, and (z) all municipal and governmental approvals or consents for such use
are obtained and kept in full force and effect by Tenant at its sole cost and
expense.
(ix) Libraries used in connection with the operation of
Tenant's business.
For purposes of this Article 2, references to Tenant shall mean Tenant,
and its permitted subtenants.
(b) Anything to the contrary provided in Section 2.01(a)
notwithstanding, in no event shall Tenant ever use, or suffer or permit anyone
to use, all or any portion of the demised premises (i) by (or offices for) any
governmental agency or government (including, without limitation, an autonomous
governmental corporation or any entity having governmental immunity) (other than
by federal, state or other governmental regulators, Internal Revenue Service
auditors or similar governmental, federal, state or city persons, in each event
while performing a review of Tenant's business) or any diplomatic or trade
mission; (ii) as a school, classroom or college or facility providing or
furnishing training, instructional or educational services of any kind other
than in connection with Tenant's operations and are not operated as a business;
(iii) as a retail operation, including as a xxxxxx shop (except for "in-house"
facilities for the officers, employees and guests of Tenant), restaurant or any
facility selling or serving food or beverages to the public (except nothing
herein contained shall prevent or prohibit Tenant from using the demised
premises for the retail sale of stock, bonds or other financial products sold by
Tenant to individuals who "walk in" off the street provided a "retail" brokerage
operation primarily intended for retail sales to "walk-in" customers is not
operated on the demised premises); (iv) as an employment or placement agency
other than as an executive search firm; (v) as a messenger and/or photographic
and/or reproduction service other than for those services in connection with,
and incidental to, Tenant's business only; (vi) as a mailing address or
telephone answering service; (vii) as a personal loan or check cashing business,
except as part of the business of a bank, trust company or savings and loan
association; (viii) for gambling or gaming activities, including New York City
Off Track Betting or any other governmentally sponsored betting activity; (ix)
for conducting an auction, but nothing contained in this subclause (x) shall
preclude Tenant from soliciting bids for sales or purchases on behalf of Tenant
and its clients or from distributing information or conducting negotiations with
respect to any such purchases or sales or actually holding such auctions as a
part of the business of Tenant as a bank or an investment bank; (xi) for
assembly of the public, but nothing
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contained in this clause (xii) shall prohibit Tenant from using the demised
premises for the incidental purposes set forth in Section 2.01.(a)(iv); and/or
(xiii) for medical, dental, or psychiatric offices or for the providing of any
therapeutic services except as set forth otherwise in Section 2.01(a)(viii) of
this Lease. Use of the demised premises by any of Tenant's Affiliates (as
hereinafter defined), subtenants or any other person claiming by, through or
under Tenant including parties with whom Tenant has contracted to provide
services to Tenant (collectively referred to as "In-House Service Providers")
such as, by way of example only, copy reproduction and messenger services, shall
be deemed to be use of the demised premises by Tenant for the purposes of this
Article 2, but nothing contained herein shall be, or be deemed to be, a consent
to such occupancy by any such party.
(c) In the event Tenant operates, or permits the operation of, any
offset printing or photographic reproduction in or on any portions of the
demised premises, then Tenant (A) represents, covenants and warrants that,
throughout the term of this Lease, in connection with such operation, (i)
neither Tenant nor anyone claiming by, through or under Tenant, shall generate,
use or store any Hazardous Substances (as hereinafter defined) in or upon the
demised premises, except for normal quantities of those substances (the
"Permitted Substances") used in the operation of a photographic reproduction
and/or offset printing operation, as an incident to Tenant's business, and (ii)
all operations or activities upon, or any use or occupancy of, the demised
premises, or any portion thereof, by Tenant, and any tenant, subtenant or
occupant of the demised premises, or any portion thereof, throughout the term of
this Lease, shall be in all respects in compliance with all Legal Requirements,
as such term is hereinafter defined, governing or in any way relating to the
generation, handling, manufacturing, treatment, storage, use, transportation,
spillage, leakage, dumping, discharge or disposal (whether legal or illegal,
accidental or intentional) of the Permitted Substances and (B) Tenant agrees to
indemnify, protect, defend (with counsel reasonably acceptable to Landlord, but
paid by Tenant) and hold Landlord, and the directors, officers, shareholders,
employees and agents of Landlord, harmless from and against any and all claims
(including, without limitation, third party claims for personal injury or real
or personal property damage), actions, administrative proceedings (including,
without limitation, informal proceedings), judgments, damages, punitive damages,
penalties, fines, costs, liabilities (including, without limitation, sums paid
in settlement of claims), losses, consultant fees and expert fees, together with
all other costs and expenses of any kind or nature (collectively, the "Indemnity
Costs") that arise directly or indirectly from or in connection with Tenant's
breach of, or failure to comply with, clauses (i) and/or (ii) of this Section
2.01(c), and in the event Landlord shall suffer or incur any such Indemnity
Costs, Tenant shall pay to Landlord the total of all such Indemnity Costs
suffered or incurred by Landlord upon demand therefor by Landlord. For the
purpose of this Section 2.01(c) of this Lease, the term "Hazardous Substances"
shall include any and all hazardous or toxic substances, materials or wastes,
including, but not limited to, those substances, materials or wastes now or
hereafter listed in the United States Department of Transportation Hazardous
Materials Table at Section 49 CFR 172-101 or by the Environmental Protection
Agency in
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Section 40 CFR Part 300 and amendments thereto, or such substances, materials or
wastes otherwise now or hereafter regulated under any applicable Federal, state
or local law.
2.02. (a) Except as otherwise provided herein, Landlord shall not use, or
suffer or permit anyone to use, the Building or any part other than the retail
portions thereof and areas incidental thereto, for or by (i) the business of
photographic reproductions or offset printing except if incidental to an
occupant's or tenant's business; (ii) a school or classroom, except if
incidental to the conduct of an occupant's or a tenant's business; (iii) conduct
of an auction, except for the liquidation sale of the property of any occupant
or tenant or as a comparable part of such other tenant's or occupant's business
similar to the exclusion contained in clause (ix) of Section 2.01(b); (iv)
gambling activities; (v) assembly of the public purposes except if incidental to
the conduct of an occupant's or a tenant's business; (vi) a messenger service
business other than incidental to the conduct of an occupant's or a tenant's
business; (vii) a xxxxxx shop, except for the incidental use for "in-house"
facilities for any occupant or tenant; (viii) an employment or placement agency
other than as an executive search firm; (ix) a personal loan or check-cashing
business, except as part of the business of a bank, trust company or savings and
loan association; (x) gambling or gaming activities, including New York City
Off-Track Betting or any other governmentally sponsored betting activity, other
than incidental sales of legally conducted lotteries as part of a newsstand;
(xi) a video or other game arcade; (xii) "T-Shirt only" stores; and/or (xiii)
for medical, dental, or psychiatric offices or for the providing of any
therapeutic services, other than the incidental use for "in-house" medical
facilities for any occupant or tenant.
(b) Landlord shall not lease space, or suffer or permit the use of
leased space, in the retail portions of the Building to any tenant for a use
which is not generally in keeping with the customary uses for retail space in
First-Class Office Buildings. In addition, Landlord shall not lease space in the
retail portion of the Building for any of the following uses:
(i) an employment or placement agency other than as an
executive search firm;
(ii) a personal loan or check-cashing business, except as part
of the business of a bank, trust company or savings and loan association;
(iii) gambling or gaming activities, including New York City
Off-Track Betting or any other governmentally sponsored betting activity, other
than incidental sales of legally conducted lotteries as part of a newsstand;
(iv) a school or classroom, except as may be incidental to a
permitted use;
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(v) the conduct of a public auction, except as may be
conducted by a tenant which is a high-class auction house (e.g., Christie's and
Sotheby's) or which is for the liquidation sale of the property of any occupant
or tenant;
(vi) a video or other game arcade; and
(vii) "T-Shirt only" stores.
In addition, Landlord shall not lease space in the retail portions of the
Building for the offices or business of a governmental or quasi-governmental
bureau, department or agency, foreign or domestic, including an autonomous
governmental corporation or diplomatic or trade mission.
(c) Notwithstanding anything to the contrary contained in this
Lease, Landlord shall have the right to lease, or permit to be used, non-retail
space in the Building for any purpose that Tenant is permitted to use the
demised premises.
ARTICLE 3.
ALTERATIONS AND INSTALLATIONS
3.01. (a) Except as may otherwise be expressly provided in this Article 3
and in Article 32 of this Lease, Tenant shall make no Tenant's Initial
Improvements, as such terms is hereinafter defined, alterations, installations,
additions or improvements (collectively, the "Improvements") in or to the
demised premises without Landlord's prior written consent. All Improvements
including, without limitation, Tenant's Initial Improvements must be done in
strict compliance with the ICIP Laws (for as long as the Building continues to
qualify for ICIP benefits), as such term is hereinafter defined. Except, as may
be expressly provided otherwise in this Lease, all such work shall be done only
by a reputable general contractor or construction manager selected by Tenant and
approved by Landlord, which approval shall not be unreasonably withheld or
delayed, provided such general contractor or construction manager has a good
business and other reputation with substantial general contracting or
construction management experience in First-Class Office Buildings, as the case
may be, it being understood and agreed, however, that any work relative to any
life safety system or any equipment associated therewith shall be done only by
the contractor for that work for the Building designated by Landlord, and any
work involving any of the items referred to in subclauses (i), (ii) and (iii) of
Section 3.01(c) of this Lease shall be done only by contractors selected by
Tenant from a list of at least five (S) subcontractors from each applicable
trade submitted by Landlord to Tenant, each of which subcontractors shall be
reputable and have substantial contracting experience in the applicable trade in
First-Class Office Buildings. Landlord shall act reasonably in considering the
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addition to the list of contractors of those contractors proposed by Tenant from
time to time (provided such contractors proposed by Tenant have a good business
and other reputation and have substantial contractor experience in First-Class
Office Buildings), and will not unreasonably delay responding to such a proposal
by Tenant. Except as otherwise provided in Article 32 hereof, all Improvements
shall be done at Tenant's sole expense. Improvements which may unreasonably
interfere with the use and employment by other occupants of the Building of such
occupant's space (such as, for example, core drilling) shall be done at times
other than during business hours or business days (hereinafter defined).
Landlord hereby consents to the use by Tenant of the contractors,
sub-contractors and construction manager approved by Landlord in connection with
the initial tenant installation by Tenant pursuant to the CSFB Lease, as such
term is hereinafter defined.
(b) Prior to making any Improvements, Tenant shall submit to
Landlord complete plans and specifications (hereinafter referred to as "Tenant's
Plans") for such proposed Improvements together with Tenant's non-binding
estimate of the cost of constructing such Improvements. Notwithstanding the
foregoing, Tenant shall not required to submit Tenant's Plans for Improvements
(i) for which no plans are required to be filed with the New York City Buildings
Department (or any other governmental body), (ii) which are not Material
Improvements, as such term is hereinafter defined, and (iii) with respect to
which the preparation of such plans is not customary in accordance with good
construction practice, but in such event, Tenant shall, at least five (S) days
in advance of Tenant's commencing any such Improvements, nevertheless notify
Landlord of such Improvements, which notification shall include a description,
in reasonable detail, of the proposed Improvement, and Tenant shall in any event
deliver Landlord such plans for Improvements as Tenant may actually prepare or
cause to be prepared. Provided Tenant shall be in compliance with the applicable
provisions of this Lease, including, without limitation, Article 3, and, where
applicable, Article 32 of this Lease, and provided Tenant is not in default -
under this Lease beyond any applicable grace period, Tenant, at Tenant's sole
cost and expense, may undertake Improvements which are not Material Improvements
without obtaining Landlord's consent to such Improvements.
(c) Improvements are "Material Improvements" if either such
Improvements or the construction thereof:
(i) will adversely affect the structural integrity of the
Building or any of its exterior walls, roof, supporting beams, columns, floor
slabs or foundations; or
(ii) will affect the outside appearance of the Building, be
visible from the ground anywhere outside the Building, or be visible in the
Building outside of the demised premises; or
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(iii) will (y) affect the heating, ventilating and
air-conditioning ("HVAC"), electrical, fire protection, plumbing, mechanical,
life safety or elevator systems of the Building other than the distribution
portions of those systems located within the demised premises and exclusively
serving, and which effect is confined to, the demised premises (for the
consequences of which effect on the demised premises Landlord shall have no
responsibility hereunder) or (z) increase Landlord's costs of providing Building
services unless Tenant expressly agrees in writing to reimburse Landlord for
such increases in costs on such basis as shall be reasonably acceptable to
Landlord and Tenant; or
(iv) will result in a change to, or revocation, suspension or
loss of, the certificate of occupancy or any other permit or license for
operating and using any portion of the Building, unless only Tenant's occupancy
would be affected thereby, in which event such Improvements shall not be deemed
as falling within the definition of the term Material Improvements solely by
virtue of such effect and Tenant shall restore, at Tenant's sole cost and
expense, said certificate of occupancy or permits upon completion of the
Improvements; or
(v) will involve the use of the Building fire exits and
stairwells for ingress and egress to the demised premises.
(d) Within fifteen (15) business days after Tenant submits Tenant's
Plans to Landlord, Landlord shall notify Tenant whether or not Landlord consents
to such Material Improvements, which consent may be withheld in Landlord's sole
discretion, except that Landlord must be reasonable in its determination with
respect to whether to grant its consent to any Improvements or the construction
thereof which would affect the HVAC, electrical, fire protection, plumbing,
mechanical, life safety or elevator systems of the Building notwithstanding that
the Improvements are characterized as Material Improvements pursuant to
paragraph (c)(iii) of this Section 3.01, it being understood and agreed that it
shall be deemed reasonable for Landlord to withhold its consent on the advice of
its reputable engineer or architect. Any withholding of Landlord's consent in
circumstances where Landlord has agreed to be reasonable shall include a written
explanation of the grounds therefor in reasonable detail which specifically
references the specific aspects of Tenant's Plans which are unacceptable.
Successive submissions of Tenant's Plans may be made by Tenant to Landlord based
upon a disapproval of a prior submission or Tenant's desire to change Tenant's
Plans which have been previously approved by Landlord, which changes would
require Landlord's reapproval in accordance herewith. The foregoing mechanism
for submission, objection and approval of Tenant's Plans shall apply to each
submission and each resubmission of Tenant's Plans (and any changes thereto
requiring Landlord's reapproval) with respect to any Material Improvement. If
Landlord shall approve elements of Tenant's Plans that can, in accordance with
good engineering and construction practice, be constructed independent of any
portion of Tenant's Plans that were not approved by Landlord and which may be
completed without any adverse affect to the items referred to in clauses (i)
through
11
(iii) of Section 3.01(c) of this Lease and do not affect the validity of the
items referred to in clause (i) of said Section 3.01(c), Tenant shall, subject
to the terms, conditions and provisions of this Article 3, have the right, at
its sole risk, cost and expense, to construct those elements so approved by
Landlord. Landlord's consent to proposed Material Improvements shall be deemed
denied or withheld if not approved within said fifteen (15) business day period.
If Landlord fails to furnish Tenant with such written explanation within such
period of time, Tenant may, at its option, serve Landlord with a notice in
accordance with Article 26 of this Lease, which notice to be effective must set
forth in bold face type that Landlord's failure to respond to Tenant's prior
submission of Tenant's Plans within fifteen (15) business days of Landlord's
receipt of the notice shall be deemed an approval of the proposed Material
Improvements, and if Landlord does not furnish Tenant with its disapproval or
withholding of consent with an explanation of the grounds therefor in reasonable
detail which specifically references the specific aspects of Tenant's Plans
which are unacceptable within fifteen (15) business days after Landlord's
receipt of the notice, Tenant's Plans shall be deemed approved. Pending
Landlord's consent (or deemed consent) to Material Improvements, Tenant shall
not commence all or any portion of the work for such Material Improvements.
(e) Any Improvements shall be performed in accordance with the
foregoing and the following provisions of this Article:
(i) All work shall be done in a good and workmanlike manner in
substantial accordance with Tenant's Plans.
(ii) Improvements shall be performed by contractors first
consented to by Landlord in accordance with this Article 3.
(iii) Tenant shall conduct its work in a manner that
reasonably minimizes any interference with or inconvenience to Landlord and/or
other tenants of the Building.
(iv) During the progress of the work to be done by Tenant,
said work shall be subject to inspection by representatives of Landlord who or
which shall be permitted reasonable access and the opportunity to inspect, at no
cost to Tenant for Landlord's cost of inspection (but, if Landlord engages the
use of an outside consultant, the costs of such consultant shall be paid by
Tenant) upon reasonable notice and at reasonable times, provided such
inspections are conducted in a manner not to unreasonably cause interference
with the performance of such work.
(v) Upon completion of any Improvements for which Tenant's
Plans were required to be submitted to Landlord pursuant to Section 3.01(b) of
this Lease, Tenant shall deliver to Landlord three (3) complete sets (mylar and
computer digitized
12
in AutoCADD Version 12, or the then current digitized system used by Landlord,
provided such then current system is then generally accepted in the real estate
industry in New York City) of final as-built plans (or as-built plans or final
construction plans with field notes marked) for such Improvements. In addition,
if Tenant is not otherwise required to deliver such as-built plans but has
actually prepared plans showing as-built conditions, Tenant shall deliver the
same to Landlord promptly upon completion thereof.
3.02. (a) All Improvements shall at all times comply with all Legal
Requirements and Insurance Requirements and the Rules and Regulations, as each
of said terms are hereinafter defined. Tenant's responsibilities under the
preceding sentence with respect to Legal Requirements are subject to, and
limited by, the provisions of Article 5. Tenant, at its expense, shall (i)
obtain all necessary municipal and other governmental permits, licenses,
authorizations, approvals and certificates for the commencement and prosecution
of such Improvements and for final approval thereof upon completion, (ii) obtain
all insurance certificates with respect to insurance, if any, which Tenant is
required to carry during performance of work leading to, and through, the
completion of the Improvements and (iii) deliver three (3) copies of such
insurance certificates to Landlord prior to commencing the construction of the
Improvements in question. If Tenant's execution alone would not be sufficient to
obtain the following, Landlord shall promptly execute and deliver (or cause to
be executed and delivered) all factually correct and lawful applications and
consents required by Legal Requirements and/or Insurance Requirements to be
filed in order to enable Tenant to obtain the permits, authorizations, licenses,
approvals and certificates referred to in clause (i) of this paragraph (a) of
Section 3.02, and will otherwise reasonably cooperate, at Tenant's expense, with
Tenant and take actions reasonably requested by Tenant in order to obtain the
same, provided Landlord thereby incurs no expense which is not reimbursed by
Tenant and no liability related to the Improvements proposed by Tenant or the
documents requested by Tenant to be executed by Landlord, unless in each event
Tenant has agreed to indemnify Landlord in respect thereof to Landlord's
reasonable satisfaction.
(b) All work leading to, and through, the completion of all
Improvements shall be performed so as not to unreasonably interfere with the
occupancy of any other occupant or tenant or delay or impose any additional
out-of-pocket expense upon Landlord in the construction, maintenance, cleaning,
repair, safety, management, security or operation of the Building or the
Building's systems. If any additional out-of pocket expenses shall be incurred
or paid for by Landlord as a direct result of Tenant's performance under this
Article 3 (other than for Tenant's Initial Improvement), Tenant shall pay such
additional out-of-pocket expenses (including, without limitation, the costs of
any outside consultants engaged by Landlord to inspect the progress of work) to
Landlord within thirty (30) days after demand.
(c) Throughout the making of all Improvements, Tenant, at its
expense, shall carry or cause to be carried the insurance coverages required to
be carried
13
pursuant to Article 7 of this Lease. Tenant shall furnish Landlord with
satisfactory evidence that such insurance is in effect before the commencement
of such Improvements and, on request, at reasonable intervals thereafter.
(d) Tenant, at its expense and subject to Section 5.01(b) of this
Lease, shall promptly procure the cancellation or discharge of all notices of
violations of Legal Requirements arising from or related to Improvements, but
nothing contained herein or elsewhere in this Lease shall be, or be deemed to
be, an acquiescence or consent by Landlord to the existence or continuation of
any such violation or relieve or release Tenant from its obligations under
Subsection 3.02(f) of this Lease.
(e) Tenant shall promptly pay the cost of such Improvements to the
extent due and payable to the contractors and suppliers performing the same, but
the failure to do so shall not be a default under this Lease other than in the
circumstances set forth in clause (f) below. Notice is hereby given that neither
Landlord, Landlord's agents, nor any of Landlord's mortgagees or overlandlords
or any other party claiming by, through or under Landlord, Landlord's agents or
such mortgagees or overlandlords shall be liable for any labor or materials
furnished or to be furnished to Tenant upon credit, and that no mechanics' or
other lien for such labor or materials shall attach to or affect any estate or
interest of Landlord or any such mortgagees or overlandlords.
(f) Tenant agrees to indemnify Landlord, and hold Landlord harmless,
against all cost, loss, damage or liability for any violation of Legal
Requirements relative to the Improvements and any and all mechanics' and other
liens filed in connection with Improvements, including the liens of any
conditional sales of, or chattel mortgages, title retention agreements, security
agreements or financing statements upon, any materials or fixtures installed on
and constituting a part of the demised premises. Tenant, at its expense, shall
procure the discharge of any such lien (and any other lien created, suffered or
incurred by Tenant) within thirty (30) days after Tenant has actual notice of
the filing thereof against any part of the Building or Land. If Tenant shall
fail to cause any such lien to be discharged within the period aforesaid, then,
in addition to any other right or remedy, Landlord may discharge the same either
by paying the amount claimed to be due or by deposit or bonding, in which event
Landlord shall be entitled, if Landlord elects, to compel the prosecution of an
action for the foreclosure of such lien and to pay the amount of the judgment in
favor of the lienor with interest, costs and allowances. Any amount so paid by
Landlord, and all reasonable costs and expenses incurred by Landlord in
connection therewith, shall be payable as additional rent by Tenant within
thirty (30) days after written demand therefor by Landlord. Nothing contained
herein shall prevent the leasing (or use under a title retention agreement) by
Tenant of furniture or equipment located in the demised premises or the filing
of security documents with respect to the same, in each event other than with
respect to furniture and equipment (whether non-attached or, if attached, which
may be removed without (i) interruption of any service that Landlord is
obligated to furnish any tenant or
14
occupant of the Building or (ii) more than de minimis damage to the Building),
if any, paid for by Landlord, provided that no lien is created against the Land,
Building or any interest therein. With respect to any such leased or financed
furniture or equipment (whether non-attached or, it attached, which may be
removed without (i) interruption of any service that Landlord is obligated to
furnish any tenant or occupant of the Building or (ii) more than de minimis
damage to the Building), Landlord shall at the request of Tenant, enter into a
written agreement with such lessor or lender, in form reasonably acceptable to
Landlord, whereby Landlord would agree to waive any right to any statutory or
common law landlord's lien or security interest on such furniture or equipment
and to provide the applicable lessor or lender with reasonable access to the
demised premises in order to remove such furniture or equipment in the event of
a default by Tenant under such lease or default under such security documents or
otherwise as permitted under such security documents, provided that such lessor
or lender shall be fully responsible for all damage caused by such removal.
(g) Tenant shall, subject to Section 3.01(a) of this Lease, have the
right, either directly or indirectly, to employ or permit the employment of any
contractor, mechanic, supplier, vendor, materialman or laborer in the demised
premises so long as the employment or use of such contractor, mechanic,
supplier, vendor, materialman or laborer would not in Landlord's reasonable
judgment violate Landlord's union contracts or Landlord's contractors' (or their
subcontractors') union contracts affecting the Building, or create any
jurisdictional dispute with other contractors, mechanics, suppliers, vendors.
materialmen or laborers engaged by Landlord or the agents of Landlord, it being
understood and agreed that it shall be deemed reasonable for Landlord to rely on
the written advice of its counsel in the determination of any of the foregoing.
Subject to Tenant furnishing Landlord with a reasonably acceptable
confidentiality agreement, a copy of such advice will be forwarded to Tenant
promptly following Tenant's written request therefor.
(h) Neither Landlord's review of, nor approval of, nor consent to,
Tenant's Plans or the making of Improvements in the demised premises shall be
deemed to be an agreement, warranty or representation by Landlord that the
contemplated Improvements are fit for their intended use or comply with any
Legal Requirements or Insurance Requirements or the certificate of occupancy for
the Building nor shall same be deemed a waiver by Landlord of compliance by
Tenant with any of the terms, provisions, covenants, conditions and agreements
of this Lease, or a warranty or representation as to the adequacy, correctness
or efficiency thereof.
(i) Tenant shall pay to Landlord within thirty (30) days after
demand, as additional rent, Landlord's reasonable out-of-pocket costs and
expenses (including the fees of any architect or engineer employed or retained
by Landlord and any of Landlord's mortgagees or overlandlords for such purpose,
but excluding any "in-house" charge or attribution of overhead or supervision
costs for services rendered or provided by
15
Landlord's employees in connection with the same) for reviewing Tenant's Plans
for Material Improvements.
3.03. Intentionally Deleted.
3.04. All alterations, installations, additions and improvements made and
installed by Landlord, including without limitation, all work referred to in
Article 32 of this Lease, and any work undertaken by Tenant for which Landlord
has paid or made a contribution to defray the cost thereof (other than Tenant's
Property, as such term is hereinafter defined), shall be the property of
Landlord and shall remain upon and be surrendered with the demised premises as a
part thereof at the end of the term of this Lease, provided, however, that
Tenant shall, subject to the terms and conditions of this Article 3, have the
right, at its sole cost and expense, to remove any such Improvements serving
solely the demised premises (other than structural items and Building equipment)
that become worn or obsolete so long as the same are replaced by Tenant, at its
sole cost and expense, with items of equivalent quality appropriate for use of
the demised premises for the purposes set forth in Article 2 hereof.
3.05. All Improvements made and installed by Tenant, or at Tenant's
expense, upon or in the demised premises which are of a permanent nature and
which cannot be removed without damage to the demised premises or Building shall
be the property of Landlord and shall remain upon and be surrendered with the
demised premises as a part thereof at the end of the term of this Lease, except
that Landlord shall have the right and privilege at any time up to sixty (60)
days prior to the termination of the Lease to serve notice upon Tenant that any
of such alterations, installations, additions and improvements shall be removed
and, in the event of service of such notice, Tenant will, at Tenant's own cost
and expense, remove the same in accordance with such request, and restore the
demised premises to its original condition. Notwithstanding the foregoing or
anything otherwise to the contrary in this Lease, Landlord agrees that except
for moveable personal property and furniture, safes and structural floor
reinforcements, if any, which reduce ceiling heights below Building standard
within the demised premises (but not raised floors), all of which must be
removed by Tenant at its expense by the end of the term of this Lease, Tenant
shall not be required by Landlord to remove any alteration, installation or
addition provided, however, that Landlord may condition its approval for a
special or unique installation by Tenant (other than internal staircases or
alterations to systems serving the demised premises which alterations are not
Material Improvements) upon its removal at the end of the term of this Lease,
with restoration as hereinabove provided by Tenant at its sole cost.
3.06. Where furnished by or at the expense of Tenant all furniture,
furnishings and removable trade fixtures, including without limitation, murals,
carpets, rugs, business machines and equipment, counters, screens, grille work,
cages, metal railings, closets, lighting fixtures and equipment (other than
recessed ceiling fixtures) whether or not
16
attached to or built into the demised premises, and any other personal property
that can be removed without permanent damage to the Building or its systems
(collectively, the "Tenant's Property") shall remain the property of Tenant and
may, subject to the terms and conditions of this Article 3, be removed and
replaced at any time during the term of this Lease, provided that if any of
Tenant's Property is so removed or replaced, Tenant shall repair or pay the cost
of repairing any damage to the demised premises or to the Building or its
systems resulting from the installation and/or removal of any such item,
including permitted replacements thereto. In case Tenant shall decide not to
remove any part of Tenant's Property and Landlord, under Section 3.05, has the
right to require Tenant to remove the same, Tenant shall notify Landlord in
writing not less than three (3) months prior to the expiration of the term of
this Lease, specifying the items of property which it has decided not to remove.
If, within thirty (30) days after the service of such notice, Landlord shall
request Tenant to remove any of Tenant's Property that Landlord has the right to
request Tenant to remove, Tenant shall at its expense remove the same in
accordance with such request. As to such property which Landlord does not
request Tenant to remove, the same shall be, if left by Tenant, deemed abandoned
by Tenant and thereupon the same shall become the property of Landlord.
3.07. If any Improvements or other property which Tenant shall have the
right to remove or be required by Landlord to remove as provided in Sections
3.05 and 3.06 of this Lease (herein in this Section 3.07 called the "Property")
are not removed on or prior to the expiration of the term of this Lease,
Landlord shall have the right to remove the Property and to dispose of the same
without accountability to Tenant and if the Property is the type that Landlord
had the right to require to remove and Tenant failed to remove the same, the
cost of removal shall be payable by Tenant within thirty (30) days of Landlord's
demand therefor. In case of any damage to the demised premises or the Building
resulting from the removal of the Property (whether such removal is made by
Tenant or Landlord where Tenant fails to remove and Tenant was required to
remove the same), Tenant shall repair such damage or, in default thereof, shall
reimburse Landlord for Landlord's cost in repairing such damage. This Section
shall survive any termination of this Lease and shall not be deemed to confer
any right of Tenant to holdover at the expiration or earlier termination of this
Lease.
3.08. Tenant shall keep records of Tenant's alterations, installations,
additions and improvements, and the cost thereof for a period of three (3) years
following completion of each such item. Tenant shall, within forty-five (45)
business days after demand by Landlord, furnish to Landlord copies of such
records and cost if Landlord shall require same in connection with any
proceeding to reduce the assessed valuation of the Building, or in connection
with any proceeding instituted pursuant to Article 9 hereof.
3.09. Tenant acknowledges that it understands that Landlord shall have the
right to adopt and thereafter modify, from time to time, reasonable general
tenant guidelines
17
for the Building covering construction, maintenance, repair or other work.
Tenant agrees that all repairs, renovations, alterations, installations,
additions and improvement and other activities within the scope of the general
tenant guidelines for the Building (including, without limitation, fire
protection, life safety, plumbing, HVAC, mechanical, electrical and
communications systems) effected by or on behalf of Tenant in the demised
premises shall be conducted in accordance with and pursuant to the aforesaid
tenant guidelines (as same may be reasonably amended by Landlord from time to
time), as well as any applicable governmental requirements and regulations.
Tenant agrees that it is its responsibility to ensure that Tenant and those
working for Tenant comply with the aforesaid tenant guidelines as well as any
other applicable governmental requirements and regulations. Landlord shall (a)
not enforce against Tenant any of the general tenant guidelines which Landlord
is not then enforcing against all the other office tenants of the Building;
(b) not unreasonably withhold or delay its consent from Tenant for any approval
required under the general tenant guidelines; and (c) exercise its judgment in
good faith in any instance providing for the exercise of its judgment in the
general tenant guidelines. In the case of any conflict or inconsistency between
the provisions of this Lease and any of the general tenant guidelines, the
provisions of this Lease shall control. If Tenant disputes the reasonableness of
any additional rule or regulation hereafter adopted by Landlord, the dispute
shall be determined by arbitration in the City of New York in accordance with
the rules and regulations then obtaining of the American Arbitration Association
or its successor and, to the extent and for the duration that Tenant disputes
the same, Tenant shall not be deemed to be in default under this Lease as a
result of a failure to comply with the same, unless the failure to comply with
the same shall result in a violation of Legal Requirements, Insurance
Requirements, the Xxxxxxxxx or any mortgage or ground lease to which this Lease
is subordinate. Any such determination shall be final and conclusive upon the
parties hereto. The right to dispute the reasonableness of any additional rule
or regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice upon Landlord within thirty (30) days after
receipt by Tenant of notice of the adoption of any such additional rule or
regulation.
3.10. Final plans and specifications for Tenant's Initial Improvements
shall be prepared by Tenant before construction of Tenant's Initial
Improvements. Tenant shall submit complete and final plans and specifications
for Tenant's Initial Improvements to Landlord for its review and approval on the
basis and in accordance with the time frames set forth in this Article 3. To the
extent Tenant shall provide to Landlord preliminary and/or final plans and
specifications in respect of all or any portion of Tenant's Initial Improvements
for Landlord's approval, Landlord shall respond to such submission within the
same time frames and on the same basis as is provided in this Article 3.
Notwithstanding anything to the contrary contained herein, Landlord hereby
agrees to approve any plans and specifications submitted by Tenant which (i)
reflect work of the same nature and character as work which exists on other
non-trading floors demised to the tenant under the CS Lease and (ii) comply with
the terms of this Lease and applicable Legal Requirements.
18
ARTICLE 4.
REPAIRS
4.01. Subject to the terms of this Lease, Tenant shall, at its sole cost
and expense, (i) make such repairs to the demised premises and the fixtures and
appurtenances therein necessitated by the act, omission in violation of Tenant's
obligations under, or covenants, terms, provisions or agreements contained in,
this Lease or pursuant to Legal Requirements or Insurance Requirements with
which Tenant is obligated to comply pursuant to the covenants, terms, provisions
or agreements contained in this Lease, or negligence of Tenant, its employees,
agents or contractors, and the employees of such agents and contractors (except
damage arising from fire or other casualty, but nothing contained herein shall
relieve or release Tenant from its obligations to replace Tenant's Property
pursuant to Section 8.01(a) of this Lease), and (ii) during such periods as
Tenant shall be operating the same, maintain and subject to Section 27.04(e)
hereof make such repairs to Tenant's Systems (hereinafter defined), in each
event set forth in clause (i) and clause (ii) of this Section 4.01 as and when
needed to preserve them in good working order and condition, subject to ordinary
wear and tear, and make such replacements thereof as are necessitated by
Tenant's failure to maintain such Tenant's Systems as the same would have been
maintained by the owner of a First-Class Office Building, including, without
limitation, complying with the maintenance requirements and specifications of
the manufacturer of such Tenant's System. All damage or injury to the demised
premises and to its fixtures, appurtenances and equipment, the Tenant's Systems
or the Building or to its fixtures, appurtenances and equipment caused by Tenant
moving property in or out of the Building or by installation or removal of
furniture, fixtures or other property by, or on behalf of, Tenant shall be
repaired, restored or replaced promptly by Tenant at its sole cost and expense.
Anything to the contrary provided herein notwithstanding, but subject to the
provisions of Section 7.04 hereof in no event shall Tenant be responsible for
any repairs necessitated by the act, omission (in violation of Landlord's
obligations under, or agreements contained in, this Lease or pursuant to Legal
Requirements or Insurance Requirements) or negligence of Landlord or its
employees, agents or contractors (and the employees of such agents and
contractors).
4.02. Landlord shall, at its sole cost and expense (except through
inclusion in Operating Expenses (as hereinafter defined) to the extent provided
in Article 29 of this Lease), make all repairs (both structural and
nonstructural) to (a) the Building (other than the demised premises); (b) the
Building Systems (hereinafter defined) and (c) all structural elements of the
demised premises, unless, in each event, the need for such repairs arises from
the act, omission (in violation of Tenant's obligations under, or covenants,
terms, provisions or agreements contained in, this Lease or pursuant to Legal
Requirements) or negligence (including negligent maintenance) of Tenant, its
agents or contractors (and the employees of such agents and contractors).
Notwithstanding anything to the contrary
19
contained in this Section 4.02 or anywhere else in this Lease (but subject to
(i) the provisions of Section 7.04 hereof and (ii) the terms and provisions of
subleases, if any, entered into between Tenant, as sublandlord, and Landlord, as
subtenant, pursuant to Article 10 hereof), Landlord shall not be required to
maintain or repair any of Tenant's Improvements, Tenant's Property or Tenant's
Systems or the corridors, toilet room(s) and elevator lobbies leased to Tenant
except, in such event, for damage to the same caused by acts or omissions (in
violation of Landlord's obligations under, or agreements or covenants contained
in, this Lease or pursuant to Legal Requirements or Insurance Requirements which
are, under this Lease, Landlord's obligation) or negligence of Landlord, its
agents, contractors and its or their employees; provided, however, that in no
event shall Landlord have any liability for any damage to any art work or fine
works of art located in the demised premises. The obligations of Tenant under
Section 4.01 and this Section 4.02 with respect to compliance with Legal
Requirements are subject to the limitations and provisions of Article 5.
4.03. Tenant shall not place a load in the demised premises exceeding the
floor load per square foot area which the demised premises was designed to carry
and which is allowed by law. The floor load for the demised premises shall be
not less than fifty (50) pounds per square foot "live load" and twenty (20)
pounds per square foot "dead load", or such greater amounts as the then
applicable certificate of occupancy provides.
4.04. Business machines and mechanical equipment belonging to Tenant which
cause (i) vibration, noise, cold or heat that may be transmitted to the Building
structure or to any leased space other than the demised premises to such a
degree as to be reasonably objectionable to Landlord or to any other tenant in
the Building shall be placed and maintained by Tenant, at its expense, in
settings sufficient to absorb and prevent such vibration or noise or (ii) noise
outside of the Building shall be muffled in such manner as shall eliminate such
noise. Landlord, in furtherance of its obligations under Section 27.01 of this
Lease, shall itself conform and shall use diligent efforts (including the
institution and prosecution of legal proceedings) to cause all other Building
tenants to conform to the requirements of the immediately preceding sentence
with respect to the transmission of vibrations, noise, cold or heat from other
portions of the Building to the demised premises. The parties hereto recognize
that the operation of elevators, generators, air-conditioning and heating
equipment will cause some vibration, noise, heat or cold which may be
transmitted to other parts of the Building and the demised premises. Neither
Landlord nor Tenant shall be under any obligation to endeavor to reduce such
vibration, noise, heat or cold beyond what is customary for a First-Class Office
Building.
4.05. Except as otherwise expressly provided in this Lease there shall be
no allowance to or for Tenant for a diminution of rental value and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from the making of any repairs, alterations, additions or
improvements in or to any portion of the Building or the demised premises or in
or to fixtures, appurtenances or equipment thereof.
20
Landlord agrees to use reasonable efforts to minimize any interruption of
Tenant's business operations as a result of Landlord's making of any repairs,
alterations, additions or improvements in or to any portion of the Building or
the demised premises or in or to fixtures, appurtenances or equipment thereof,
but nothing contained herein shall require Landlord to expend or incur any
charges or costs for overtime labor or pay any premiums in order to minimize
such interruption, except that Landlord shall employ contractors or labor at
overtime or other premium pay rates (a) at its expense (but subject to
recoupment to the extent permitted pursuant to Article 29 of this Lease) if
necessary to make any repair required to be made by it hereunder to remedy any
condition that (i) results in a denial of reasonable access to the demised
premises, (ii) threatens the health or safety of any occupant of the demised
premises (including the encapsulation or enclosure of asbestos or other
Hazardous Materials) or (iii) except in the case of damage by casualty or other
destruction, materially interferes with Tenant's ability to conduct its business
in the demised premises or (b) in all other cases, at Tenant's request and
expense. Landlord shall provide Tenant with reasonable prior notice of any
repairs or work (other than emergency work) that, in Landlord's reasonable
judgment, will materially interfere with the conduct of Tenant's business in the
demised premises.
ARTICLE 5.
REQUIREMENTS OF LAW
5.01. (a) Tenant, at its expense, shall comply with all laws, orders and
regulations of Federal, state, county and municipal authorities, and with any
direction of any public officer or officers, pursuant to law, which shall impose
any violation, order or duty upon Landlord or Tenant with respect to the
Building, or the use or occupation thereof (collectively, the "Legal
Requirements") including, without limitation, those applicable to the making of
any Improvements therein or the result of the making thereof and those
applicable by reason of the nature or type of business operated by Tenant in the
demised premises. Notwithstanding the foregoing sentence or any other provision
of this Lease to the contrary, Tenant shall not be under any obligation to make
any Improvements in order to comply with any Legal Requirement applicable to the
mere general "office" use (as opposed to the manner of use) of the demised
premises unless such compliance is required as a result of any Improvements
made, or required to be made, by Tenant, but Tenant shall be obligated to comply
with all Legal Requirements in the making of any Improvements made, or required
to be made, by Tenant. Tenant, at its expense, shall comply (and Tenant hereby
expressly assumes all responsibility for compliance) with the Americans With
Disabilities Act of 1990 and any and all regulations promulgated thereunder, as
the same may be amended from time to time, (the "ADA") relating to the demised
premises to the extent such compliance involves work or other measures within
the demised premises, including, but not limited to, any path of travel
alterations from the elevators serving the demises premises through each portion
of
21
the demised premises and any requirements of the ADA relating to Tenant's
employees and business operations within the demised premises, it being
understood and agreed that any ADA non-compliance arising from the design of the
toilet room(s) which Landlord undertook to design in compliance with the
existing ADA shall be the responsibility of Landlord, provided that all changes
required as a result of any modification of the ADA shall be done by Tenant, at
its expense. Any alterations required to be performed by Tenant to the demised
premises for the purpose of complying with the ADA, as aforesaid, or which
otherwise require compliance with the ADA, shall be done in accordance with the
terms, provisions, agreements, covenants and conditions of this Lease.
(b) Tenant, at its expense, after written notice to Landlord, may
contest, by appropriate proceedings prosecuted diligently and in good faith, (i)
the validity or applicability of any Legal Requirement as to which Tenant has
the Obligation to comply pursuant to Section 5.01(a) (and, if necessary, in the
name of, but without expense or liability to, Landlord) and shall defer Tenant's
compliance therewith, provided that: (A) Landlord or Landlord's agents shall not
be subject to civil liability or to criminal penalty or to prosecution for a
crime, or any fine or charge, nor shall the Land (as hereinafter defined) or
Building or any part thereof be subject to being condemned or vacated, or
subject to any lien or encumbrance by reason of non-compliance or otherwise by
reason of such contest; (B) before the commencement of any contest regarding the
validity or applicability of any Legal Requirement as to which Tenant has the
obligation to comply, if the cost of such compliance (as estimated by Landlord)
is over Fifty Million and no/100 ($50,000,000.00) Dollars, as adjusted by CPI
(as hereinafter defined), Tenant shall furnish to Landlord the bond of a surety
company reasonably satisfactory to Landlord, in form and substance reasonably
satisfactory to Landlord and in an amount equal to not less than one hundred
twenty-five (125%) percent of the cost of such compliance (as reasonably
estimated by Landlord) and Tenant shall indemnify Landlord against the cost of
such compliance and any liability resulting from or incurred in connection with
such contest or non-compliance; (C) such non-compliance or contest shall not
constitute or result in any breach of Landlord's obligations under any Mortgage,
as such term is hereinafter defined, or if any Mortgagee, as such term is
hereinafter defined, shall condition such noncompliance or contest upon the
taking of action or furnishing or security by Landlord, such action shall be
taken and such security shall be furnished at the expense of Tenant; (D) neither
such non-compliance or contest nor the continuation thereof shall adversely
affect Landlord's ability obtain any permit required in connection with the
construction, operation or occupancy of all or any portion of the Land or
Building; and (E) Tenant shall keep Landlord regularly advised as to the status
of such proceedings. Landlord shall be deemed subject to prosecution for a crime
if Landlord, any Mortgagee or any of their officers, directors, partners,
shareholders, agents or employees is, or can be, charged with a crime of any
kind whatever.
22
5.02. Tenant shall not do or permit to be done any act or thing upon said
demised premises, which will invalidate or be in conflict with New York standard
fire insurance policies covering the Building, and fixtures and property
therein.
5.03. If, as a result of any use, act or omission (in violation of
Tenant's obligations under this Lease or which are violative of Legal
Requirements or Insurance Requirements for which Tenant is obligated to comply
with) by Tenant, the rate of fire insurance applicable to the Building shall be
increased to an amount higher than it otherwise would be, Tenant shall reimburse
Landlord for all increases of Landlord's fire insurance premiums so caused; such
reimbursement to be additional rent payable within thirty (30) days after demand
by Landlord. In any action or proceeding concerning the rate of fire insurance
applicable to the Building wherein Landlord and Tenant are parties a schedule or
"make-up" of rates for the Building or demised premises issued by the body
making fire insurance rates for said demised premises or by the insurance
carrier issuing the fire insurance on the Building shall be presumptive evidence
of the facts therein stated and of the several items and charges in the fire
insurance rate then applicable to said demised premises.
5.04. Landlord shall comply with (i) all ADA requirements which are not
the obligation of Tenant pursuant to Section 5.01(a) of this Lease and (ii) all
other Legal Requirements affecting the Building which are not the responsibility
of Tenant under Section 5.01(a) and the non-compliance with which would be
inconsistent with the operation of the Building as a First-Class Office
Building, and Landlord shall have the right to contest the applicability or
validity of any Legal Requirement so long as such contest would not result in a
forfeiture, revocation, loss or suspension of, or inability to obtain, the
certificate of occupancy (or change thereto) for the Building that would prevent
Tenant from lawfully using and occupying the demised premises for the purposes
permitted by this Lease.
ARTICLE 6.
SUBORDINATION
6.01. (a) When, as and if each Subordination and Non-Disturbance Agreement
to be entered into under (and as defined in) Section 6.01(c) is executed and
delivered, this Lease and Tenant's rights hereunder shall be and become subject
and subordinate to the applicable mortgages which may hereafter affect the Land
and the Building (herein referred to as the "Mortgages" or the "Mortgage"), and
to all modifications, consolidations, replacements and extensions thereof.
(b) The holder of any Mortgage ("Mortgagee") may, elect that this
Lease shall have priority over such Mortgage and, upon notification by such
Mortgagee to
23
Tenant, this Lease shall be deemed to have priority over such Mortgage, whether
this Lease is dated prior, or subsequent, to the date of such Mortgage.
(c) The subordination of this Lease to any Mortgage in accordance
with Section 6.01(a) shall be provided under an agreement executed and delivered
by the Mortgagee and Tenant, and, if reasonably required by such Mortgagee or by
Tenant, also by Landlord, and such agreement (each such agreement, while in
force, the "Subordination and Non-Disturbance Agreement") shall be in
substantially the form annexed hereto as Exhibit J and shall be executed by
Tenant and returned to Landlord within fifteen (15) business days of Landlord's
request therefor, it being understood and agreed that Tenant will agree to such
reasonable changes to the Subordination and Non-Disturbance Agreement requested
by the Mortgagee, provided such changes (i) do not affect Tenant's rights or
obligations under this Lease except to a de minimis extent, (ii) do not increase
Tenant's financial obligations under this Lease and (iii) do not shorten or
lengthen the term of this Lease.
6.02. If Landlord's interest in the Building is encumbered by a Mortgage
and such Mortgage is foreclosed, or Landlord's interest in the Building is
acquired by deed in lieu of foreclosure or if Landlord's interest in the
Building is sold pursuant to such foreclosure or by reason of a default under
said Mortgage, then notwithstanding such foreclosure, such acquisition by deed
in lieu of foreclosure, such sale, or such default, but subject to the
provisions of any Subordination and Non-Disturbance Agreement with such
Mortgagee (i) Tenant shall not disaffirm this Lease or any of its obligations
hereunder, and (ii) this Lease shall continue as a direct lease between such
applicable Mortgagee, transferee by deed in lieu of foreclosure or purchaser at
such foreclosure, as the landlord under this Lease, and Tenant, as the tenant
under this Lease, but if requested by such applicable Mortgagee, transferee by
deed in lieu of foreclosure or purchaser at such foreclosure or sale, Tenant
shall attorn to such Mortgagee, transferee or purchaser and execute a new lease
for the demised premises setting forth all of the provisions of this Lease
except that the term of such new lease shall be for the balance of the term of
this Lease.
6.03. If Landlord's interest in the demised premises is a leasehold
interest, at any time, and if Landlord's leasehold interest is terminated for
any reason, then, notwithstanding such termination, the dispossession of
Landlord from the Building, or any default by Landlord, as tenant, under any
ground lease or xxxxxxxxx, but subject to the provisions of any Subordination
and Non-Disturbance Agreement with such ground lessor, (i) Tenant shall not
disaffirm this Lease or any of its obligations hereunder, and (ii) this Lease
shall continue as a direct lease between such ground lessor or overlandlord, as
the landlord under this Lease, and Tenant, as the tenant under this Lease, but
at the request of such ground lessor or overlandlord, Tenant shall attorn to the
applicable ground lessor and execute a new lease for the demised premises
setting forth all of the provisions of this Lease except that the term of such
new lease shall be for the balance of the term of this Lease.
24
6.04. Landlord hereby represents and warrants that, as of the date of
execution of this Lease by Landlord, there are no mortgages or ground leases
encumbering all or any portion of Landlord's interest in and to the Land and
Building.
ARTICLE 7.
PROPERTY--LOSS, DAMAGE, REIMBURSEMENT
7.01. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain, or snow or leaks from any part of the Building,
or from the pipes, appliances or plumbing works or from the roof, street or
subsurface or from any other place or by dampness or by any other cause of
whatsoever nature, except to the extent any of the foregoing shall be caused by
or due to the willful misconduct or negligent act or omission (in violation of
Landlord's obligations under, or covenants, terms, provisions or agreements
contained in, this Lease or which would be violative of Legal Requirements or
Insurance Requirements, which Landlord is obligated to comply with pursuant to
the covenants, provisions or agreements of this Lease) of Landlord, its agents,
servants or employees, subject in each event to the provisions of Section 44.03
of this Lease.
7.02. Intentionally Deleted.
7.03. Tenant shall give Landlord notice in case of a fire or accident in
the demised premises as well as notice of any other event occurring in the
demised premises which could give rise to a damage or injury claim against
Landlord or Tenant promptly after Tenant is aware of such fire, accident or
other event.
7.04. (a) Landlord agrees that it will include in its fire insurance
policies appropriate clauses pursuant to which insurance companies (i) waive all
right of subrogation against Tenant with respect to losses payable under such
policies and/or (ii) agree that such policy or policies shall not be invalidated
should the insured waive in writing prior to a loss any or all right of recovery
against any party for losses covered by such policy or policies. If Landlord is
unable to obtain in such policy or policies either of the clauses described in
the preceding sentence, Landlord shall, if legally possible and without
necessitating a change in insurance carriers, have Tenant named in such policy
or policies as an additional insured. If Tenant shall be named as an additional
insured in accordance with the foregoing, Tenant agrees to endorse promptly to
the order of Landlord, without recourse, any check, draft, or order for the
payment of money representing the proceeds of any such policy or representing
any other payment growing out of or connected with said policies, and Tenant
does hereby irrevocably waive any and all rights in such proceeds and payments.
25
(b) Tenant agrees to include, in its fire insurance policy or
policies on Tenant's Property, appropriate clauses pursuant to which the
insurance company or companies (i) waive the right of subrogation against
Landlord and/or any tenant of space in the Building with respect to losses
payable under such policy or policies and/or (ii) agree that such policy or
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policy or policies. If Tenant is unable to obtain in such policy or policies
either of the clauses described in the preceding sentence, Tenant shall, if
legally possible and without necessitating a change in insurance carriers, have
Landlord named in such policy or policies as an additional insured. If Landlord
shall be named as an additional insured in accordance with the foregoing,
Landlord agrees to endorse promptly to the order of Tenant, without recourse,
any check, draft, or order for the payment of money representing the proceeds of
any such policy or representing any other payment growing out of or connected
with said policies, and Landlord does hereby irrevocably waive any and all
rights in and to such proceeds and payments.
(c) To the extent of the waiver included in Landlord's fire
insurance policy pursuant to subsection (a) above or, if Landlord fails to
comply with its obligations under such subsection (a), to the extent of the
waiver which would have been included if Landlord had procured the same,
Landlord hereby waives any and all right of recovery which it might otherwise
have against Tenant, its servants, agents and employees, for loss or damage
occurring to the Building and the fixtures, appurtenances and equipment therein,
to the extent the same is covered by Landlord's insurance, notwithstanding that
such loss or damage may result from the negligence or fault of Tenant, its
servants, agents or employees. To the extent of the waiver included in Tenant's
fire insurance policy pursuant to subsection (b) above or, if Tenant fails to
comply with its obligations under such subsection (b), to the extent of the
waiver which would have been included if Tenant had procured the same, Tenant
hereby waives any and all right of recovery which it might otherwise have
against Landlord, its servants, and employees and against every other tenant in
the Building who shall have executed a similar waiver as set forth in this
Section 7.04(c) for loss or damage to Tenant's furniture, furnishing, fixtures
and other property removable by Tenant under the provisions hereof to the extent
that same is covered by Tenant's insurance, notwithstanding that such loss or
damage may result from the negligence or fault of Landlord, its servants, agents
or employees, or such other tenant and the servants, agents or employees
thereof.
(d) Each of Landlord and Tenant hereby agrees to advise each other
promptly if the clauses to be included in their respective insurance policies
pursuant to subparagraphs (a) and (b) above cannot be obtained, and thereafter
to furnish the other with a Certificate of Insurance or copy of such policies
showing the naming of the other as an additional insured, as aforesaid. Each of
Landlord and Tenant hereby also agrees to notify the other promptly, but no
later than thirty (30) days after such party becomes aware, of any cancellation
or change of the terms of any such policy which would affect such clauses or
26
naming. All such policies which name both Landlord and Tenant as additional
insureds shall, to the extent obtainable, contain agreements by the insurers to
the effect that no act or omission of any additional insured will invalidate the
policy as to the other additional insureds.
7.05. Tenant shall maintain at its own cost and expense during the term of
this Lease primary and non-contributory insurance with a company or companies
reasonably acceptable to Landlord and licensed to do business or authorized in
New York State, insuring Tenant as follows:
(a) Primary and Non-Contributory Commercial General Liability
Insurance covering the demised premises on an occurrence basis against all
claims for personal injury, bodily injury, death and property damage, including
contractual liability covering the indemnification provisions in this Lease, and
Owner's protective liability insurance. Such insurance shall be for limits not
less than a combined single limit of Thirty Million Dollars ($30,000,000). Such
policy shall name Landlord and any ground lessor, overlandlord, managing agent
or mortgagee of the Building in which the demised premises are a part as
additional insureds;
(b) Employers' Liability Insurance with a minimum limit of One
Million Dollars ($1,000,000) and Workers' Compensation Insurance in statutory
limits;
(c) "All Risks" Property Insurance in an amount adequate to cover
the full replacement cost of all Tenant's Property;
(d) In the event a motor vehicle is to be used by Tenant in
connection with its business operation from the demised premises, Comprehensive
Automobile Liability Insurance coverage with limits of not less than Three
Million Dollars ($3,000,000.00) combined single limit coverage against bodily
injury liability and property damage liability arising out of the use by or on
behalf of Tenant, its agents and employees in connection with this Lease, of any
owned, non-owned or hired motor vehicles. This policy shall name Landlord and
any ground lessor, overlandlord, managing agent or mortgagee of the Building as
additional insureds;
(e) Any insurance required by the terms of this Lease to be carried
by Tenant may be under a blanket policy (or policies) covering other properties
of Tenant and/or its related or affiliated corporations, provided that (i)
Landlord and all other additional insureds required to be named by Tenant
pursuant to this Article are named in such policy as additional insureds, (ii)
the Building is expressly listed (by address) as a covered property, (iii) the
amount of coverage allocated to the Building shall be expressly listed, and
shall not be less than the amounts otherwise required hereunder, and (iv) such
blanket policy shall not diminish the obligations of Tenant so that the proceeds
from such blanket policy shall be an
27
amount no less than the amount of the proceeds that would be available if Tenant
obtained the required insurance under policies separately insuring the risks
which this Lease requires Tenant to insure;
(f) Boiler and machinery coverage on a replacement cost basis if
Tenant controls such systems;
(g) Liquor liability (dramshop) insurance; and
(h) When reasonably required by Landlord, such other insurance
against other insurable hazards and in such amounts as may from time to time be
commonly and customarily insured against in First-Class Office Buildings in New
York City.
7.06. All policies shall provide, inter alia, (i) that same may not be
cancelled or terminated without at least thirty (30) days' written notice to
Landlord and such additional insureds (when applicable) by the insurance company
issuing such policy and (ii) that no such act or omission to act of Tenant shall
invalidate such insurance as to Landlord and such additional insureds.
7.07. Tenant shall, on or before the date hereof, furnish Landlord with
Certificates of Insurance or copies of insurance policies showing that all
insurance required by this Article is being maintained as required herein.
Tenant's Certificate of Insurance (except for those evidencing Worker's
Compensation coverage) shall name Landlord, and, to the extent identified in
writing to Tenant, its managing agent and each ground lessor and Mortgagee as
additional insureds. Upon renewal of any such insurance that expires before the
expiration of this Lease, Landlord shall be provided with renewal Certificates
of Insurance or binders or copies of policies not less than ten (10) days prior
to such expiration, together with evidence of the payment of the premiums
thereon. Receipt of each Certificate of Insurance or other documentation of
insurance or copies of policies by Landlord or by any of its representatives
which indicate less coverage than required herein will not constitute a waiver
of Tenant's obligation to fulfill said insurance requirements.
7.08. Landlord shall maintain in respect of the Building at all times
during the term of this Lease:
(i) standard All-Risk Property Insurance, covering the
Building (including, without limitation, Tenant's Improvements therein but
excluding Tenant's Property) in amounts equal to the full replacement cost
of the Building (excluding Tenant's Property) at the time in question;
(ii) Commercial General Liability Insurance (including
contractual liability) in an amount not less than Thirty Million Dollars
($30,000,000)
28
(iii) Employer's Liability Insurance in an amount not less
than One Million Dollars ($1,000,000), with a waiver of subrogation
endorsement;
(iv) excess liability insurance over the insurance required by
subsections (ii) and (iii) of this Section with combined, minimum coverage
of Twenty Million Dollars ($20,000,000.00);
(v) boiler and machinery coverage on a replacement cost basis;
and
(vi) Workers' Compensation Insurance in statutory limits.
Landlord covenants to maintain the foregoing insurance subject to
such deductibles as are usual and customary for a prudent landlord of Landlord's
size and financial condition of a First-Class Office Building. Upon Tenant's
reasonable request, Landlord shall deliver to Tenant certificates of the
foregoing insurance. Landlord's commercial general liability policy shall name
Tenant as an additional insured as its interest may appear.
Any insurance required by the terms of this Lease to be carried by
Landlord may be under a blanket policy (or policies) covering other properties
of Landlord and/or its related or affiliated corporations, provided that (i)
Tenant shall, to the extent of any commercial general liability coverage, be
named as an additional insured as its interest may appear, (ii) the Building is
expressly listed (by address) as a covered property, (iii) the amount of
coverage allocated to the Building shall be expressly listed, and shall not be
less than the amounts otherwise required hereunder, and (iv) such blanket policy
shall not diminish the obligations of Landlord so that the proceeds from such
blanket policy shall be an amount no less than the amount of the proceeds that
would be available if Landlord obtained the required insurance under policies
separately insuring the risks which this Lease requires Landlord to insure.
Landlord's insurance shall meet the requirements set forth in the first two (2)
sentences of Section 7.15 of this Lease.
7.09. The insurance requirements set forth in this Article VII as they
relate to Tenant are hereinafter referred to as the "Insurance Requirements".
7.10. Each of Landlord and Tenant shall be responsible for its own
deductibles and self-insurance retention and such costs shall not be the
responsibility or liability of the other party.
7.11. Should Tenant engage a contractor or consultant to do work in or on
any portion of the Building, Tenant shall require such parties to obtain (and
name Landlord
29
as an additional named insured on) such insurance policies as would customarily
be required for such parties doing work in a First-Class Office Building).
7.12. Tenant shall not do or suffer or permit anything to be done on its
behalf in or about the demised premises or the Building which would (i) cause
insurance companies of good standing to refuse to insure the Building in amounts
reasonably satisfactory to Landlord, (ii) result in the cancellation of any
policy of insurance or the assertion of any defense by the insurer to any claim
under any policy of insurance maintained by or for the benefit of Landlord, or
(iii) violate any Insurance Requirement of which Tenant has been given notice.
7.13. If Tenant shall fail to furnish or maintain the insurance coverages
required to be obtained and maintained by Tenant pursuant to, and as required
by, this Article 7 and to furnish evidence reasonably satisfactory to Landlord
that such insurance coverages have been obtained and are, at all times
throughout the term of this Lease, in full force and effect, Landlord shall have
the right (but not the obligation) to obtain and maintain such insurance
coverages on behalf of Tenant and Tenant hereby covenants and agrees to (i)
furnish Landlord with all necessary information required by Landlord to obtain
and maintain such insurance coverages and (ii) to pay the premiums therefor upon
Landlord's demand for such payment.
7.14. Any type of insurance or any increases in the limits of liability
described in this Article 7 that Tenant obtains for its own protection or as
otherwise required by statute shall be at Tenant's sole cost and expense.
7.15. All insurance required to be carried by Tenant herein shall be
evidenced by valid and enforceable policies issued by and distributed among
insurers of recognized responsibility having a Best's rating of A or better and
a financial size category of Class XII or above. Such insurers shall be
authorized to do business in New York. A certificate of each such policy shall
be delivered to Landlord concurrently with the execution and delivery hereof.
Thereafter, certificates for each replacement policy shall be so delivered to
Landlord not less than ten (10) days prior to the expiration date of the policy
or policies to be renewed or replaced, in each case accompanied by evidence
reasonably satisfactory to Landlord that all premiums currently payable with
respect to such policies have been paid in full by or at the direction of
Tenant. Upon Landlord's demand, from time to time and upon fifteen (15) days
written notice to Tenant, Tenant shall cause to be delivered to Landlord a
summary of the provisions, exclusions and qualifications of Tenant's insurance
policies applicable to the demised premises, certified as true, complete and
correct by Tenant's insurance carrier or insurance broker.
7.16. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall, so long as Landlord is Metropolitan Life Insurance Company or
any
30
successor to the business of Metropolitan Life Insurance Company by virtue of a
merger, consolidation or sale of all or substantially all of Metropolitan Life
Insurance Company's assets or stock, be entitled to self-insure and/or have
deductibles against all risks described in this Article. Landlord shall notify
Tenant of its election to self-insure as aforesaid and the extent (as to
coverage and limits of coverage of any such self-insurance), and Landlord's
failure in part or whole to carry any of the insurance required by this Article
on account of such self-insurance shall not constitute a breach of this Article,
but shall be deemed to be self-insurance by Landlord, as permitted by this
Article to the extent of such noncompliance. Should Landlord self-insure, (i)
Tenant shall (but only to the extent hereafter provided) be relieved of, and
released from, any loss, damage or claim (including any of the foregoing that
would arise as a result of any indemnification of Landlord by Tenant required by
the terms and provisions of this Lease) that would have been reimbursable by
insurance that Landlord, absent this Section 7.16 of the Lease, would have been
required to carry and to name Tenant as an additional insured and (ii) Landlord
will, to the extent its insurance carrier would have been required to defend
Tenant had Tenant been named as an additional insured on the insurance that
Landlord (absent this Section 7.16) would have been required to obtain, defend
Tenant from third party claims that would have been defended by Landlord's
insurance carrier had Landlord not elected to self-insure.
ARTICLE 8.
DESTRUCTION--FIRE OR OTHER CAUSE
8.01. (a) If the Building shall be partially damaged or destroyed, or if
the demised premises shall be partially damaged or destroyed, by fire, casualty
or other cause, then whether or not the damage or destruction shall have
resulted from the fault or neglect of Tenant, or its servants, employees,
agents, visitors or licensees (and if this Lease shall not have been cancelled
as in this Article hereinafter provided), Landlord will promptly and with due
diligence and continuity repair the damage, and restore, replace, and rebuild
the Building and the demises premises at its expense after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace any of Tenant's Property, which repairs or replacements to
Tenant's Property shall be made by Tenant, at its own expense and subject to the
provisions of this Lease. If the demised premises shall be partially damaged or
partially destroyed, the basic annual rent and additional rent payable hereunder
shall be proportionately abated (on a per square foot basis) to the extent that
the demised premises shall have been rendered untenantable or unfit for the
conduct of Tenant's business in substantially the manner in which such business
was being conducted immediately prior to such casualty, and if Tenant does not
occupy such damaged or destroyed part of the demised premises for the conduct of
business, for the period from the date of such damage or destruction to the date
that the damage shall be repaired or restored. If the demised premises or a
major part thereof shall be totally, or substantially totally, damaged or
31
destroyed or rendered completely, or substantially completely, untenantable or
unfit for the conduct of Tenant's business in substantially the manner in which
such business was being conducted immediately prior to such fire, casualty or
other cause and on account of such fire, casualty or other cause, the basic
annual rent and additional rent shall completely xxxxx as of the date of the
damage or destruction until Landlord shall repair, restore, replace and rebuild
the demised premises as provided in the first sentence of this Section 8.01(a);
provided, however, that, should Tenant reoccupy a portion of the demised
premises for the purpose of conducting business during the period the
restoration work is taking place either pursuant to this Section 8.01(a) or
Section 8.01(b) and prior to the date when the same is made completely
tenantable, basic annual rent and additional rent shall be apportioned and be
payable by Tenant in proportion to the part of the demised premises occupied by
it.
(b) Within sixty (60) days after total or substantially total damage
or destruction to the demised premises or a major part thereof, Landlord shall
deliver to Tenant a statement prepared by a reputable contractor or architect
setting forth such party's estimate of the time required to repair such damage.
If the estimated period exceeds twelve (12) months from the date of the fire,
casualty or other cause, Tenant may elect to terminate this Lease by notice to
Landlord not later than sixty (60) days following receipt of such statement.
Such architect's estimates shall not assume the use by Landlord of any overtime
labor unless Landlord agrees to employ same. If Tenant shall reasonably dispute
whether the restoration may or may not be completed by Landlord within twelve
(12) months from the date of the casualty, the determination of whether the
restoration may or may not be completed within said period of twelve (12) months
shall be determined by an independent architect reasonably acceptable to both
parties or otherwise selected as hereinafter provided, and the sixty (60) day
period for giving of a notice of termination shall commence upon the receipt by
Landlord and Tenant of such architect's estimate of such rebuilding time. If
Landlord and Tenant shall fail to agree on a single architect to make such
determination within sixty (60) business days after Tenant's receipt of
Landlord's estimate, then either party may apply to the Real Estate Board of New
York (or, following its failure to appoint such architect, the American
Arbitration Association or its successor) for appointment of such architect. The
determination of the architect selected as aforesaid shall be binding and
conclusive on the parties hereto and judgment may be entered thereon.
8.02. In case the Building or the demised premises shall be substantially
damaged or destroyed by fire or other cause at any time during the last two (2)
years of the then term of this Lease then either Landlord or Tenant may cancel
this Lease and the term hereby granted upon written notice to the other party
hereto given within sixty (60) days after such damage or destruction; provided,
that neither Landlord nor Tenant shall have the right to cancel this Lease if,
prior to such damage or destruction, Tenant shall have delivered to Landlord
notice (an "Extension Notice") of its irrevocable election to thereafter extend
this Lease pursuant to Section 41.01 hereof, in which event neither Landlord nor
Tenant may elect to terminate this Lease with respect to any portions of the
demised premises which is
32
the subject of such extension other than on the basis set forth in Section
8.01(b) of this Lease.
8.03. If the Building shall be so damaged that Landlord shall decide to
demolish or not to rebuild it, then in any of such events Landlord shall, within
one hundred twenty (120) days after such fire, casualty or other cause, give
Tenant a notice in writing of such decision, and thereupon the term of this
Lease shall expire by lapse of time upon the thirtieth (30th) day after such
notice is given, and Tenant shall vacate the demised premises and surrender the
same to Landlord.
8.04 In the event of the termination of this Lease pursuant to the
provisions of this Article, this Lease shall expire as fully and completely on
the date fixed in such notice of termination as if that were the date definitely
fixed for the expiration of this Lease, but the basic annual rent and additional
rent shall be apportioned and shall be paid up to and including the date of such
damage or destruction, and any prepaid basic annual rent or prepaid additional
rent shall be refunded to Tenant.
8.05. No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the demised premises or of the Building, made in
the manner required by Article hereof.
8.06. The provisions of this Article 8 shall be considered an express
agreement governing any case of damage or destruction of the Building or the
demised premises by fire or other casualty, and Section 227 of the Real Property
Law of the State of New York and any other law of like import now or hereafter
in force providing for such contingency, shall have no application.
ARTICLE 9.
EMINENT DOMAIN
9.01. In the event that the whole of the demised premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use or
purpose, this Lease and the terms and estate hereby granted shall forthwith
cease and terminate as of the date of vesting of title (hereinafter referred to
as the "date of taking"), and Tenant shall have no claim against Landlord for,
or make any claim for, the value of any unexpired term of this Lease, and the
basic annual rent and additional rent shall be apportioned as of such date.
9.02. In the event that any part of the demised premises shall be so
condemned or taken, then this Lease shall be and remain unaffected by such
condemnation
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taking, except that the basic annual rent and additional rent allocable to the
part so taken shall be apportioned (on a per square foot basis) as of the date
of taking, provided, however, that (a) Tenant may elect to cancel this Lease (i)
in the event the area remaining following the condemnation or taking shall not
be sufficient, in the reasonable judgment of Tenant, to enable Tenant to
continue the operation of its business therein substantially the manner in which
such business was being conducted immediately prior to such taking, or (ii) if
such taking materially adversely impairs the means of access to the demised
premises or the entrances or lobby of the Building or (b) Landlord may elect to
terminate this Lease if in the reasonable judgment of Landlord and as a result
of a condemnation or taking of a portion of the Building, the Building could not
be operated in an economically viable manner, provided that Landlord has elected
to terminate leases covering fifty (50%) percent of the balance of the leasable
space in the Building, and provided further that the party entitled to cancel
the Lease serves the other party with a notice of election to cancel not later
than ninety (90) days after the date when title shall vest in the condemning
authority. Upon the giving of such notice, this Lease shall terminate on the
thirtieth (30th) day following the date of receipt of such notice and the basic
annual rent and additional rent hereunder shall be apportioned as of the date of
the condemnation or taking with respect to the portion of the demised premises
taken, and as of such termination date with respect to the remainder of the
demised premises. Upon such partial taking and this Lease continuing in force as
to any part of the demised premises not so taken, the basic annual rent and
additional rent shall be adjusted in the proportion that the area of the demised
premises taken bears to the total area of the demised premises (on a per square
foot basis). If as a result of the partial taking (and this Lease continuing in
force as to the part of the demised premises not so taken) a part of the demised
premises not so taken is damaged, Landlord agrees to promptly restore the
damaged portion remaining after the taking to the condition existing immediately
prior to the taking.
9.03. Nothing hereinabove provided shall (in the event the Lease is
cancelled as above provided) preclude Tenant from appearing, claiming, proving
and receiving in the condemnation proceeding, Tenant's moving expenses, and the
value of Tenant's Property. In the event that Tenant is not permitted to make a
separate claim for such items in such proceeding, Landlord shall prosecute all
claims in such proceeding on behalf of both Landlord and Tenant, in which event
Tenant may, if it so elects and at its expense, join with Landlord in such
proceeding, retain co-counsel, attend hearings, present arguments and generally
participate in the conduct of the proceeding; provided, however, that, if
Landlord incurs any additional expense because of Tenant's exercising its rights
under this sentence, Tenant will bear such additional expense.
9.04. In the event that only a part of the demised premises shall be taken
and neither Landlord nor Tenant shall have elected to cancel this Lease as above
provided, the entire award for a partial taking shall be paid to Landlord;
provided, however, that the portion of any award which is expressly attributable
by the condemning authority to a taking of Tenant's Property shall be paid to
Tenant and Tenant shall be entitled to any award which
34
may be awarded by the condemning authority for Tenant's moving expenses.
Landlord, at Landlord's own expense, shall restore the unaffected part of the
Building to substantially the same condition and tenantability as existed prior
to the taking. Until said unaffected portion is restored, Tenant shall be
entitled to a proportionate abatement of basic annual rent and additional rent
for that portion of the demised premises which is being restored and is not
usable until the completion of the restoration or until the said portion of the
demised premises is used by Tenant for the purpose of conducting its business,
whichever occurs sooner.
9.05. Notwithstanding the above, if a partial taking shall occur in the
last two (2) years of the then term of this Lease, either Landlord or Tenant,
irrespective of the area of the space remaining, may elect to cancel this Lease
and the term hereby granted, provided such party shall have, within ninety (90)
days after such taking, given notice to that effect to the other party and, upon
the receipt of such notice, the basic annual rent and additional rent, shall be
apportioned and paid to the date of expiration of the term specified, and this
Lease and the term hereby granted shall cease, expire and come to an end upon
the expiration of the ninety (90) days specified in said notice; provided,
however, that neither Landlord nor Tenant shall have the right to cancel this
Lease pursuant to this Section 9.05 if, prior to the date of such partial taking
Tenant shall have delivered to Landlord notice of its irrevocable election to
thereafter extend this Lease pursuant to Section 41.01 hereof, in which event
neither Landlord nor Tenant may elect to terminate this Lease pursuant to this
Section 9.05 with respect to any portions of the demised premises which are the
subject of such extension. If either Landlord or Tenant shall so elect to end
this Lease and the term hereby granted as provided herein, or if either party
hereto shall elect to end this Lease by exercising a right contained in Section
9.02 above, Landlord need not restore any part of the demised premises and the
entire award for partial condemnation shall be paid to Landlord, and Tenant
shall have no claim to any part thereof, except as to the items set forth in
Section 9.03, where same are applicable.
ARTICLE 10.
ASSIGNMENT, ETC.
10.01. Except as expressly provided otherwise in this Article 10, Tenant,
for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this Lease, nor underlet all or any portion of the
demised premises, or suffer or permit the demised premises or any part thereof
to be used by others, without the prior written consent of Landlord in each
instance. If this Lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by any person or entity other than Tenant,
Landlord may, after default by Tenant past any required notice and beyond any
applicable cure period, collect rent from
35
the assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee undertenant or occupant, as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not in
any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting as to which
Landlord's consent is required under this Lease. Possession or occupancy of any
portion of the demised premises by one or more of Tenant's Affiliates (as such
term is hereinafter defined) or In-House Service Providers (whether or not
pursuant to a written agreement) shall not be deemed or construed to be a
sublease hereunder and Tenant shall be permitted to allow, subject to the terms
and conditions of the Lease (but without having to obtain Landlord's consent
thereto), Tenant's Affiliates to occupy the demised premises.
10.01A If Tenant desires to sublet all or any portion of the demised
premises at a time when it is "Meeting the Threshold Level" (as such term is
hereinafter defined) and provided further that Tenant would, subsequent to the
proposed subletting, continue to be Meeting the Threshold Level, Tenant shall
request Landlord's consent to each such subletting and, as part of such request,
Tenant must submit in writing to Landlord (i) the name and address of the
proposed sublessee and (ii) reasonably satisfactory information relating to the
proposed sublessee reasonably sufficient to enable Landlord to determine the
reputation and character of the proposed sublessee. Subject to Tenant's
compliance with this Section 10.01A, the terms and conditions set forth in
Section 10.03(a) shall be the basis for Landlord's granting or withholding of
consent to a requested sublease of any portion of the demised premises. Any
subletting that complies with the terms, provisions and conditions of this
Section 10.01A shall not be subject to Section 10.02 of this Lease;
10.02. If Tenant shall desire to sublet all or any portion of the demised
premises at a time when it is not, or following such subletting would not be,
Meeting the Threshold Level, Tenant must first present Landlord with a written
offer to sublease such space to Landlord. Tenant's offer shall set forth an
effective date for such surrender or sublease (as the case may be), which date
shall not be less than thirty (30) days after the date Landlord receives such
offer. Landlord shall have a period of thirty (30) days after its receipt of the
said offer within which to accept or reject the offer. If Landlord shall accept
such offer, Tenant shall execute and deliver to Landlord, or anyone designated
or named by Landlord, a sublease of such portion of the demised premises which
Tenant offered to Landlord, which sublease shall commence on the later of (x)
the date specified in Tenant's offer and (y) the date which is thirty (30) days
after the date of delivery of Tenant's offer to Landlord, and be for the term
specified in Tenant's offer and for the rents specified in this Section 10.02
and on the terms and conditions set forth in Section 10.06 hereof, it being
understood and agreed that in the event the offer to sublease was for a term of
more than
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five (5) years or for all or substantially the balance (namely, the remainder of
the term following the expiration of the proposed term of the sublease would be
for a period of eighteen (18) months or less) of the then term of this Lease on
said space, then, at Landlord's option and in lieu of Tenant's executing the
foregoing sublease, Tenant shall execute and deliver to Landlord an instrument
effecting a surrender, of this Lease on the space that Tenant offered to
sublease and a modification of this Lease providing that, from the date of such
surrender (i.e., the later of (x) the date provided in Tenant's offer or (y) the
date which is thirty (30) days after the date of delivery of Tenant's offer to
Landlord), the rentals required herein shall be adjusted (based on the per
square foot per annum basic annual rent then being paid by Tenant under this
Lease) to reflect that portion of the space surrendered to Landlord and Tenant's
Proportionate Share, as such term is hereinafter defined, shall, for the period
subsequent to the effective date of the base rent reduction, be appropriately
reduced. All transfer taxes payable in connection with any such surrender shall
be payable by Landlord. In the event Landlord does not acquire all of the
demised premises, Landlord (at Tenant's sole cost and expense if Tenant's offer
to sublease provided that Tenant would pay for the cost of the same, and if not,
at Landlord's cost and expense) will do all the work necessary to physically
separate the portion of the demised premises so surrendered to Landlord from the
portion so retained by Tenant, which work shall include, without limitation, the
erection of a demising wall between the portion of the demised premises so
surrendered to Landlord and the balance of the demised premises retained by
Tenant. In addition, in the event the portion of the demised premises so
surrendered to Landlord does not have direct access to a public corridor in the
Building or to an elevator bank not dedicated to Tenant's use, or at any time
during the term of this Lease such space is not being serviced by
air-conditioning, ventilating and other mechanical systems operated by Landlord,
Tenant, at Tenant's expense (except as hereinafter provided in this sentence)
shall, and will at all times, provide and permit reasonably appropriate means of
ingress to and egress from and access across and through the balance of the
demised premises retained by Tenant, provide and permit appropriate use of the
elevators servicing the demised premises, including access across lobby and
corridor areas, and provide and furnish necessary and appropriate services,
including, without limitation, air-conditioning and ventilating service to such
space on the same basis as are provided in Section 27.04 of this Lease, for the
same payments provided for in Tenant's offer or, if not so provided, in
accordance with Section 27.04 hereof, which payments Landlord agrees to pay on
the same basis as if it were providing such service to Tenant so as to enable
Landlord (its designees and lessees) to use the portion of the demised premises
so surrendered for the purposes for which they were permitted to be used by
Tenant.
10.03. (a) In connection with granting a consent to a requested sublease,
Landlord agrees that if Landlord did not exercise its rights to acquire that
portion of the demised premises which Tenant proposes to sublease or if Tenant
shall be obligated to first offer such space to Landlord, Landlord will not
withhold or delay its consent to the proposed subletting provided (i) Tenant (or
Tenant's representative), shall not have publicly advertised
37
the rentals to be paid thereunder (but nothing herein contained shall prevent
Tenant from making the same known to the proposed subtenant); (ii) in Landlord's
reasonable judgment the reputation, business and character of the proposed
sublessee are in keeping with the reasonable standards of Landlord in those
respects for the Building; (iii) the purpose for which the proposed sublessee
intends to use the demised premises is not in violation of the provisions of
Article 2 of this Lease; (iv) neither (y) the proposed sublessee nor (z) any
person, party or other entity which directly or indirectly, controls, is
controlled by, or is under common control with the proposed sublessee or any
person, party or other entity who controls the proposed sublessee, is then an
occupant of any part of the Building and at the time such consent is requested
Landlord has, or will (by the proposed delivery date of the space to the
proposed subtenant) have substantially similar size space to that which Tenant
seeks to sublet that would be available for a term at least substantially as
long as that of the proposed sublease; (v) the proposed sublessee is not a
person, party or other entity with whom Landlord or its agents is then
negotiating (and has not discontinued such negotiations) to lease space in the
Building at least substantially equal in size and (vi) the form of the proposed
sublease shall comply with the applicable provisions of Sections 10.04 and 10.07
of this Lease, it being understood and agreed that if the rent payable under the
sublease exceeds the rent payable under the Lease on a prorated basis
(determined on a per square foot basis), Tenant shall pay to Landlord (as and
when received by Tenant, and as additional rent) fifty (50%) percent of the
Sublease Profit, as such term is hereinafter defined. Tenant shall deliver to
Landlord a duplicate original of the sublease no later than ten (10) business
days prior to the effective date of the sublease.
(b) The term "Sublease Profit" shall mean the excess, if any, (i) of
the rentals actually received by Tenant under any sublease (it being understood
that the rentals actually received under any sublease shall include sums paid
for the sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, (i) in the case of the sale thereof,
the then net unamortized or undepreciated cost thereof determined on the basis
of Tenant's federal income tax returns, and (ii) in the case of the rental
thereof, the fair market rental value of such item(s), and any other
consideration actually received by Tenant under any sublease (the "Total
Income")) over (ii) the sum (the "Total Cost") of (w) all basic annual rent and
additional rent paid by Tenant, or such thereof as are reasonably allocable to
the portion of the demised premises so sublet, that are paid by Tenant to
Landlord, (x) "Tenant's Transaction Costs", as hereinafter defined, (y) any
"Carryover Credit", as hereinafter defined, and (z) all actual out-of-pocket
costs, if any, incurred by Tenant in providing services to the subtenant. The
term "Tenant's Transaction Costs" shall mean and include all actual reasonable
costs and expenses incurred by Tenant consistent with the then market
requirements in effectuating the subletting, including, without being limited
to, brokerage commissions, attorney's fees and disbursements, remodeling and
redecorating costs, rent paid during any free-rent periods and takeover costs
and expenses. In computing Sublease Profits, the Total Income, as and when
received by Tenant, shall first be offset against Tenant's Transaction Costs, as
and when incurred or paid by Tenant on the
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basis hereinafter provided, until Tenant has recovered Tenant's Total
Transaction Costs, it being understood that (1) any of the rent or other items
referred to in clause (x) of this Section 10-03 (b) shall only be offset against
Total Income as and when such items referred to in said clause (x) are actually
received by Landlord and (2) the actual out-of-pocket expenses included in
Tenant's Transaction Costs (such as attorney fees, brokerage commissions, rent
concessions and remodeling costs) may be offset against Total Income as and when
paid by Tenant. The Total Income, as and when received, less such additional
Total Cost as may be paid or incurred by Tenant on the basis herein provided
shall constitute Sublease Profit. If at any time a prior sublease shall have
resulted in a net loss to Tenant with respect to such sublease (i.e., the total
of the items included in clauses (x) and (y) of this Section 10-03(b) paid for
the duration of such sublease exceeds the Total Income received under the terms
thereof), such net loss, to the extent theretofore incurred (a "Carryover
Credit"), shall be carried over and applied to other then existing or succeeding
transactions, it being understood that in no event shall Landlord ever be
required to refund or credit to Tenant any sums previously paid or determined to
be owing to Landlord for prior determinations of Sublease Profit. There shall be
no duplication of offsets against Total Income.
(c) If Tenant's request for Landlord's consent to a specific
subletting shall be made more than nine (9) months after Landlord's rejection of
Tenant's offer (or more than nine (9) months from the expiration of the said
thirty (30) day period provided to Landlord within which to accept the offer if
Landlord shall have omitted or failed to accept or reject Tenant's offer), then
the provisions of this Article requiring Tenant first to offer to sublease or to
surrender to Landlord that portion of the demised premises Tenant desires to
sublet on thirty (30) days notice shall again be effective.
10.04. Except for any subletting by Tenant to Landlord or its designee,
each subletting shall be made in accordance with the terms and conditions of
this Article 10 and shall be subject to all of the covenants, agreements, terms,
provisions and conditions contained in this Lease. Nothing in this Article 10
shall be deemed or construed to release Tenant from liability after a subletting
(other than a subletting to Landlord or its designee, but then only to the
extent of the area of the demised premises so subleased to Landlord or its
designee and only for the period of the sublease and any holdover by Landlord or
its designee or, where permitted, an assignment, it being understood and agreed
that Tenant shall and will remain fully liable for payment of the basic annual
rent and additional rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on the part of Tenant to be performed, and all acts and omissions of
any licensee or sublessee or anyone claiming under or through any sublessee
(other than through Landlord or its designee) which shall be in violation of any
of the obligations of this Lease shall be deemed to be a violation by Tenant.
Tenant further agrees that, notwithstanding any such subletting, no other and
further
39
subletting of the demised premises shall or will be made except upon compliance
with and subject to the provisions of this Article 10.
10.05. If Landlord shall (using the criteria set forth in Section 10.03 of
this Lease) decline to give its consent to any proposed sublease where such
consent is required and Landlord has agreed to be reasonable in granting such
consent and in all other situations where Landlord has not agreed to be
reasonable in granting or withholding any consent, Tenant shall indemnify,
defend and hold harmless Landlord against and from any and all loss, liability,
damages, costs and expenses (including reasonable counsel fees and
disbursements) resulting from any claims that may be made against Landlord by
the proposed sublessee or by any brokers or other persons claiming a commission
or similar compensation in connection with the proposed sublease.
10.06. If Landlord exercises its option to sublet the portion(s) of the
demised premises which Tenant desires to sublet, such sublease to Landlord or
its designee shall be at the lower of (i) the rental rate per rentable square
foot of basic annual rent then payable on said space pursuant to this Lease or
(ii) the rentals set forth in the economic terms of the proposed sublease, and
shall be for the same sublease term as that of the proposed subletting, and the
sublease shall be on and contain the following additional terms and conditions:
(a) the sublease shall give the sublessee the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the space covered by such sublease or any part or parts
of such space and to make any and all changes, alterations and improvements in
the space covered by such sublease; (b) the sublease shall provide that any
assignee or further subtenant of Landlord or its designee may, at the election
and with the consent of Landlord, be permitted to make alterations, decorations
and installations in such space or any part thereof and shall also provide in
substance that any such alterations, decorations and installations in such space
therein made by any assignee or subtenant of Landlord or its designee may be
removed, in whole or in part, by such assignee or subtenant, at its option,
prior to or upon the expiration or other termination of such sublease provided
that such assignee or subtenant, at its expense, shall repair any damage and
injury to such space so sublet caused by such removal and (c) the sublease shall
also provide that (1) the parties to such sublease expressly negate any
intention that any estate created under such sublease be merged with any other
estate held by either of said parties, (2) any assignment or subletting by
Landlord or its designee may be for any purpose or purposes that are suitable or
appropriate for a First-Class Office Building, (3) in the event the premises
subleased to Landlord or its designee do not have direct access to a public
corridor in the Building or to an elevator bank not dedicated to Tenant's use or
the use of the tenant under the CSFB Lease, or cannot readily be connected to
the Building's HVAC, electrical, plumbing, life safety, fire protection and
other mechanical systems, Tenant, at Tenant's expense (except as hereinafter
provided) shall, and will at all times, provide and permit reasonably
appropriate means of ingress to and egress from and access across and through
the balance of the demised premises retained by Tenant, provide and permit
40
appropriate use of the elevators in Tenant's dedicated elevator bank systems (if
any) or require the tenant under the CSFB Lease to provide and permit
appropriate use of the Dedicated Elevators, as such term is defined in the CSFB
Lease, including access across lobby and corridor areas, and provide and furnish
(or require the tenant under the CSFB Lease to provide and furnish) appropriate
services to such space (including, without limitation, those referred to in
Section 27.04 hereof) on the same basis and for the same payments as are
provided in Section 27.04 hereof, so as to enable Landlord, its designee and its
or their subtenants, assignees and invitees to use the premises so sublet for
the purposes for which they were subleased, (4) Landlord (at Tenant's expense if
Tenant's offer to sublease provided that Tenant would pay for the costs of the
same, and if not, at Landlord's expense) may make such alterations as may be
required or deemed necessary by Landlord to physically separate the portion of
the demised premises subleased to Landlord or its designee and to comply with
any laws and requirements of public authorities relating to such separation, (5)
at the expiration of the term of such sublease, Tenant will accept the space
covered by such sublease in its then existing condition, subject to the
obligations of the sublessee to make such repairs thereto as may be necessary to
preserve the premises demised by such sublease in good order and condition, and
(6) in the case of any sublease entered into pursuant to clause (i), above, of
this Section 10.06 the sublease shall provide that the subtenant shall pay (x)
operating expenses and (y) real estate taxes paid or thereafter payable by
Tenant for such period attributable to such space. Notwithstanding anything
contained in this Section 10.06 to the contrary, Landlord and Tenant agree that
(i) if the sublessee fails to pay to Tenant the rent and additional rent due
under the sublease, such payments may be offset against the basic annual rent
and additional rent payable to Landlord under this Lease, (ii) if the sublessee
fails to perform its obligations under the sublease, no such default shall,
unless the same is caused by the acts or omissions of Tenant (in violation of
Tenant's obligations under this Lease or which are violative of Legal
Requirements or Insurance Requirements with which Tenant is obligated to
comply), be a default under this Lease and (iii) if within forty-five (45) days
prior to the expiration of the term of the sublease, Tenant requests that any
alteration, installation or improvement made by the sublessee be removed and the
sublet premises restored to its condition immediately prior to the date of the
sublease, reasonable wear and tear excepted, and Landlord's designee or
sublessee fails to so remove and restore within fifteen (15) days subsequent to
the expiration of the sublease, Landlord shall promptly thereafter remove such
installations, alterations or improvements and restore the sublet premises to
its condition immediately prior to the date of the sublease, reasonable wear and
tear excepted. Landlord agrees that it shall not sublease or assign any portion
of the premises subleased by Tenant to Landlord or its designee under this
Section 10.06 for any use where Landlord has, pursuant to Article 2 hereof,
agreed not to lease for such use.
10.07. With respect to each and every sublease or subletting authorized
under the provisions of this Lease (other than a sublease made pursuant to
Section 10.06 hereof), it is further agreed: (a) no subletting shall be for a
term ending later than one (1) day prior to
41
the expiration date of this Lease; (b) no subtenant shall take possession of the
demised premises or any portion thereof, until an executed counterpart of such
sublease has been delivered to Landlord; (c) such subtenant shall not have any
rights to sublet all or any portion of the subleased space without Landlord's
consent or right to sublease or recapture, in each of which cases on the basis
provided in this Lease except that, if such subtenant is an Affiliate of Tenant
at the time of the proposed subletting, Landlord's consent shall only be
required if Tenant, assuming Tenant wanted to sublet said space, would be
required to obtain Landlord's consent thereto, nor shall such subtenant have any
right to assign its interest in the sublease other than to the successor to the
business of the subtenant by virtue of a merger, consolidation, sale of all or
substantially all of such subtenant's assets or stock provided Landlord shall be
given notice of the applicable event within twenty (20) business days after the
occurrence thereof; (d) each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry or dispossess by
Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (i) be
liable for any previous act or omission of Tenant under such sublease, (ii) be
subject to any offset which theretofore accrued or may thereafter accrue to such
subtenant against Tenant, or (iii) be bound by any previous modification of such
sublease, or by any previous prepayment of more than one (1) month's rent.
10.08. Anything to the contrary contained herein notwithstanding, Tenant
may, without the prior written consent of Landlord (but without being released
from any liability under this Lease), and without the obligation of Tenant to
share any Sublease Profit, enter into any of the following transfers (each a
"Permitted Transfer"):
(i) the assignment of this Lease or the sublease of the demised
premises to any successor to the business of Tenant by virtue of a merger,
consolidation, sale of all or substantially all of Tenant's assets or stock,
provided Landlord shall be given written notice of any such Permitted Transfer
under this clause (i) within twenty (20) business days after the occurrence
thereof; or
(ii) the sublease of not more than fifty thousand (50,000) rentable
square feet of the demised premises and the premises demised under the CS Lease,
in the aggregate, to Windward Capital Partners L.P.; Windward Management, Inc.;
Clipper Asset Management Corporation; The Clipper Group L.P.; Clipper Asset
Management L.P.; Clipper Capital Corporation; Venture Management I, Inc.; and/or
Venture Management II, Inc. (or to such replacement or additional merchant
bankers providing services to Tenant and/or its customers) except that such
subtenants (or any permitted replacement or permitted additional merchant
bankers) shall not have any right to further sublease all or any portion of the
premises subleased to them nor shall any or all of said subtenants (or any
permitted
42
replacements thereof or permitted additional merchant bankers) have a right to
assign the interest in their respective subleases other than to a successor to
the business of the applicable subtenant by virtue of a merger, consolidation,
or sale of all or substantially all of such subtenant's assets or stock,
provided Landlord shall be given notice of the applicable event within twenty
(20) days of the occurrence thereof; and
(iii) the assignment of this Lease or the sublease of all or any
portion of the demised premises to any of Tenant's Affiliates. For the purposes
of this Lease, the term (y) "Affiliate" means any entity which, directly or
indirectly, controls, is controlled by, or is under common control with, Tenant
and (z) "control" (including "controlling", "controlled by" and "under common
control with") shall, solely for the purpose of defining the term "Affiliate" of
Tenant, mean the ownership of not less than twenty-four and nine-tenths (24.9%)
percent of the legal and beneficial interest in such entity or the right and
ability to control any actions to be taken by the holders of the voting
securities of such entity. In the case of a Permitted Transfer pursuant to this
clause (iii), any subsequent transaction whereby such transferee shall cease to
be an Affiliate of Tenant shall, unless in connection with another Permitted
Transfer, constitute an assignment requiring Landlord's prior written consent
pursuant to this Article 10.
10.09. Tenant hereby waives any claim against Landlord which it may have
based upon any assertion that Landlord has unreasonably withheld or unreasonably
delayed any consent under this Article 10, and Tenant agrees that its sole
remedy shall be to have the assertion determined by arbitration on the basis
provided in Section 10.10 of this Lease. In the event the matter is determined
in favor of Tenant, the requested consent shall be deemed to have been granted;
however, Landlord shall have no liability to Tenant for its refusal or failure
to give such consent unless a court of competent jurisdiction (independently of
the findings of any arbitrator) determines in a final judgment not subject to
appeal that Landlord's refusal to grant such consent was arbitrary, capricious
and in bad faith.
10.10. Anything to the contrary contained herein notwithstanding, if there
is a dispute between Landlord and Tenant as to the timeliness of Landlord's
consent or the reasonableness of Landlord's refusal to consent to any subletting
or assignment or elsewhere in this Lease where arbitration under this Article 10
has been specifically been provided for to resolve a dispute, Landlord and
Tenant agree to diligently proceed in good faith to have such dispute resolved
by arbitration in the City of New York in accordance with the rules of The
American Arbitration Association (or its successor) by an arbitrator selected by
The American Arbitration Association (or its successor). Such arbitrator shall
be an attorney with at least ten (10) years experience in Manhattan office
leasing for First Class Office Buildings. The costs and expenses of arbitration
shall be shared equally by Landlord and Tenant, but each party shall be
responsible for its own costs and expenses and the fees and expenses of its own
witnesses and counsel. In rendering his decision, the arbitrator shall have no
power to vary, modify or amend any provision of this Lease. A determination made
by arbitration
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pursuant to this paragraph shall be final and binding upon the parties. The
arbitrator shall be required to furnish written arbitral findings to each of the
parties hereto.
10.11. Notwithstanding anything hereinbefore contained to the contrary, in
the event Landlord subleases any space from Tenant pursuant to the terms of this
Article 10 and Landlord then sub-subleases all or any portion of the same to
anyone other than a Landlord Affiliate, as such term is hereinafter defined, or
if Landlord subleases to a Landlord Affiliate and such Affiliate at any time
subleases such space to other than another Landlord Affiliate, and the rent
payable under the sub-sublease exceeds the rent payable under the sublease with
Tenant on a prorated basis (determined on a per square foot basis and taking
into account the different basic annual rent per square foot for various
portions of the subleased premises), Landlord shall pay to Tenant (as and when
received by Landlord), as additional rent, fifty (50%) percent of the Sublease
Profit, as such term is hereinbefore defined in Section 10.03(b) of this Lease,
except that wherever reference is made to "Tenant" the same shall mean
"Landlord", and wherever reference is made to "Landlord" the same shall mean
"Tenant" and with such other changes as shall be required to make the terms of
Section 10.03(b) reciprocal and applicable to the transactions described in this
Section 10.11. For the purposes of this Section 10.11, the term "Landlord
Affiliate" shall mean any entity which, directly or indirectly, controls, is
controlled by, or is under common control with, Landlord and in which Landlord
owns at least a twenty-five (25%) percent legal and beneficial interest. The
term "control" (including "controlling", "controlled by" and "under common
control with") shall mean the right, and ability to control any actions to be
taken by the holders of any voting securities of such entity.
10.12. (a) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be
paid or delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
consideration constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and shall be promptly paid to or turned over to Landlord.
(b) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall execute and deliver
to Landlord upon demand an instrument confirming such assumption. No assignment
of this Lease shall relieve Tenant of its obligations hereunder and, subsequent
to any assignment, Tenant's liability hereunder shall continue notwithstanding
any subsequent modification or amendment hereof or the release of any subsequent
tenant hereunder from any liability, to all of which Tenant hereby consents in
advance.
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(c) If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment shall be given to
Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but
in any event no later than ten (10) days prior to the date that Tenant shall
make application to a court of competent jurisdiction for authority and approval
to enter into such assignment and assumption. Such notice shall set forth (a)
the name and address of such person or entity, (b) all of the terms and
conditions of such offer, and (c) adequate assurance of future performance by
such person or entity under the Lease as set forth in Section 10.12(d) below,
including, without limitation, the assurance referred to in Section 365(b) (3)
of the Bankruptcy Code. Landlord shall have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accent an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such person or entity, less any brokerage commissions which would
otherwise be payable by Tenant out of the consideration to be paid by such
person or entity in connection with the assignment of this Lease.
(d) The term "adequate assurance of future performance" as used in
this Lease shall mean that any proposed assignee shall, among other things, (i)
deposit with Landlord on the assumption of this Lease the sum of the then basic
annual rent as security for the faithful performance and observance by such
assignee of the terms and obligations of this Lease, which sum shall be held as
security by Landlord, (ii) furnish Landlord with financial statements of such
assignee for the prior three (3) fiscal years, as finally determined after an
audit and certified as correct by a certified public accountant, which financial
statements shall show a net worth of at least six (6) times the then basic
annual rent for each of such three (3) years, (c) grant to Landlord a security
interest in such property of the proposed assignee as Landlord shall deem
necessary to secure such assignee's future performance under this Lease, and (d)
provide such other information or take such action as Landlord, in its
reasonable judgment shall determine is necessary to provide adequate assurance
of the performance by such assignee of its obligations under the Lease.
(e) If, at any time after the originally named Tenant herein may
have assigned Tenant's interest in this Lease, this Lease shall be disaffirmed
or rejected in any proceeding of the types described in Section 14.01(b) hereof,
or in any similar proceeding, or in the event of termination of this Lease by
reason of any such proceeding or by reason of lapse of time following notice of
termination given pursuant to said Article 14 based upon any of the events of
default set forth in such Section 14.01(b), any prior tenant, including, without
limitation, the originally named Tenant, upon request of Landlord given within
thirty (30) days next following any such disaffirmance, rejection or termination
(and actual notice thereof to Landlord in the event of a disaffirmance or
rejection or in the event of termination other than by act of Landlord), shall
(1) pay to Landlord all basic annual rent,
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additional rent and other items due and owing by the assignee to Landlord under
this Lease to and including the date of such disaffirmance, rejection or
termination, and (2) as "tenant", enter into a new lease with Landlord of the
Premises for a term commencing on the effective date of such disaffirmance,
rejection or termination and ending on the date set forth in this Lease for the
expiration of the term hereof, unless sooner terminated as in such lease
provided, at the same basic annual rent and additional rent and upon the then
executory terms, covenants and conditions as are contained in this Lease, except
that (a) Tenant's rights under the new lease shall be subject to the possessory
rights of the assignee under this Lease and the possessory rights of any person
claiming through or under such assignee or by virtue of any statute or of any
order of any court, (b) such new lease shall require all defaults existing under
this Lease to be cured by Tenant with due diligence, and (c) such new lease
shall require Tenant to pay all escalated rent reserved in this Lease which, had
this Lease not been so disaffirmed, rejected or terminated, would have accrued
under the provisions hereof after the date of such disaffirmance, rejection or
termination with respect to any period prior thereto. If any such prior Tenant
shall default in its obligation to enter into said new lease for a period of ten
(10) days next following Landlord's request therefor, then, in addition to all
other rights and remedies by reason of such default, either at law or in equity,
Landlord shall have the same rights and remedies against such Tenant as if such
Tenant had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of such Tenant's
default thereunder.
10.13. In the event that Tenant shall sublet all or a portion of the
demised premises pursuant to and in accordance with the provisions of this
Article 10, then unless otherwise expressly provided in this Lease each of the
permitted subtenants shall be entitled to the benefit of, or to exercise,
subject to fulfillment of the applicable conditions and performance of the
related obligations, if any, of Tenant under this Lease, Tenant's rights with
respect to use of the demised premises, the making of alterations, the
contesting of Legal Requirements, work and services to be provided by Landlord,
electrical energy and access to the Building. In the exercise of the foregoing
rights or the enjoyment of the foregoing benefits, permitted subtenants may only
exercise such rights or enjoy such benefits through Tenant and not directly with
Landlord.
ARTICLE 11.
ACCESS TO DEMISED PREMISES
11.01. Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, fans, wires and conduits in and through the demised premises, provided
the same are installed adjacent to or concealed behind, beneath or within
partitioning, columns, floors, walls and ceilings of the demised premises or
otherwise completely furred at points immediately adjacent to any of the
foregoing and provided further that the installation and
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maintenance of the same do not (i) adversely affect Tenant's Systems in any
material way, (ii) adversely affect the use of the demised premises for Tenant's
business purposes in any material way, or (iii) reduce the useable area of the
demised premises by a material amount (it being agreed that Tenant shall be
entitled to a rent reduction, calculated on per square foot basis, for any
reduction in the usable area of the demised premises above a de minimis amount
as a result of the foregoing) and Landlord shall have used reasonable efforts to
first install the same in portions of the Building (such as shaftways) reserved
by Landlord for use in common. Landlord and persons authorized by Landlord shall
have a right to enter and/or pass through the demised premises, at all necessary
times, to make, and the right to make, such repairs, alterations, additions and
improvements in or to the demised premises, the Building and the facilities and
equipment in either or both as Landlord (i) is required to make under this Lease
or any other lease or (ii) desires to make, provided that such repairs,
alterations, additions or improvements shall be performed during such hours and
in such manner so as not to unreasonably cause material interference with the
conduct of Tenant's business. Landlord shall be allowed to take all material
into and upon the demised premises that may be required for the repairs or
alterations above mentioned as the same is required for such purpose, provided
that the presence, nature or location of such material shall not unreasonably
interfere with the conduct of Tenant's business, and without the same
constituting an eviction of Tenant in whole or in part, and the rent reserved
shall in no way xxxxx, except as otherwise provided in this Lease, while said
repairs or alterations are being made, and Landlord shall have no liability by
reason of loss or interruption of the business of Tenant or annoyance or
inconvenience to Tenant because of the prosecution of any such work, provided
Landlord diligently proceeds therewith and complies with the provisions of this
Article 11. Landlord shall exercise reasonable diligence so as not to
unreasonably cause interference with the conduct of Tenant's business and shall
take reasonable care to safeguard the demised premises and Tenant's property and
shall repair any damage caused by Landlord, its contractors and employees, but
nothing contained in this Article 11 shall require Landlord to expend or incur
any charges or costs for overtime labor or pay any premiums other than on the
basis provided in Section 4.05 of this Lease. Landlord or its agents or
designees shall, during Business Hours, have the right, to enter the demised
premises, other than vaults or other enclosures where money, securities or other
valuables or confidential documents are kept, at reasonable times during
Business Hours, (i) throughout the term of this Lease, for the purpose of
inspecting them or exhibiting them to prospective purchasers of the Building or
prospective mortgagees of the fee or of Landlord's interest in the property of
which the demised premises are a part or to prospective assignees of any such
mortgages or to the holder of any mortgage on Landlord's interest in the
property, its agents or designees and (ii) during the last two (2) years of the
then term of this Lease, for the purpose of exhibiting them to prospective
lessees of all or any portion of the demised premises.
11.02. Landlord shall, to the extent Tenant makes a representative
available for the following purpose, be accompanied by a representative of
Tenant in every instance
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access to the demised premises except in case of an emergency, in which case
Landlord shall be accompanied by an officer of the fire or police department, to
the extent such an officer is immediately available. If Tenant shall not be
personally present to open and permit an entry into the demised premises at any
time when for any reason an entry therein shall be necessary by reason of fire
or other emergency, Landlord or Landlord's agents may forcibly enter the same
without rendering Landlord or such agents liable therefor and without in any
manner affecting the obligations and covenants of this Lease.
11.03. Notwithstanding the foregoing, any entry into the demised premises
pursuant to this Article 11 shall be subject to the following conditions:
(i) Landlord shall, except in case of emergency, provide
Tenant with not less than twenty-four (24) hours, prior notice of any such
entry;
(ii) any damage to the demised premises resulting from
Landlord's exercise of the foregoing rights shall be repaired promptly by
Landlord, at Landlord's expense;
(iii) if Tenant shall not be present when for any reason entry
into the demised premises shall be necessary or permissible, Landlord or
Landlord's agents may enter any portion of the same, other than areas previously
designated in a written notice to Landlord by Tenant as "security areas" where
securities, negotiable instruments or currency are kept by Tenant. Neither
Landlord nor Landlord's agents shall enter such "security areas" except in the
case of an emergency; and
(iv) entry unto or into the demised premises for purposes of
inspection by Landlord, its agents and designees or exhibition to prospective
lessees, mortgagees or purchasers shall only be made during Business Hours.
ARTICLE 12.
CERTIFICATE OF OCCUPANCY
12.01. Attached hereto and made a part hereof as Exhibit H is a photocopy
of the existing certificate of occupancy last obtained by Landlord for the
Building. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy to be issued for the Building. Tenant
may, from time to time, modify the certificate of occupancy for the demised
premises provided the same (i) does not permit uses other than those permitted
under Article 2 of this Lease and (ii) does not affect the certificate of
occupancy for the Building other than the demised premises. Landlord shall not
do anything to prevent the issuance of, or cause the loss or revocation of, a
certificate of
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occupancy for the Building permitting the use thereof for office use. If either
party's execution alone would not be sufficient to obtain a certificate of
occupancy or amendment thereto for which such party may be permitted to obtain
or is legally required to obtain, the other party shall, upon request by the
party seeking such certificate or amendment thereto, promptly execute and
deliver (or cause to be executed and delivered) all factually correct and lawful
applications and consents required by Legal Requirements and/or Insurance
Requirements to be filed in order to enable such certificate of occupancy or
amendments thereto to be obtained, provided the party requested to sign the same
thereby incurs no liability or expense.
ARTICLE 13.
INTENTIONALLY DELETED
ARTICLE 14.
DEFAULT
14.01. (a) If Tenant fails to pay (i) any installment of basic annual rent
within five (5) days after notice from Landlord to Tenant of the failure to pay
the same or (ii) any other item of additional rent within fifteen (15) days
after notice from Landlord to Tenant of the failure to pay the same (any failure
of which payment of the items set forth in clause (i) of this Section 14.01(a)
after the applicable notice and grace period shall hereinafter be referred to as
a "Monetary Default"),
(b) (i) If Tenant shall commence or institute any case, proceeding
or other action (x) seeking relief on its behalf as debtor, or to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (y) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of its
property;
(ii) if Tenant shall make a general assignment for the benefit
of creditors;
(iii) if any case, proceeding or other action shall be
commenced or instituted against Tenant (x) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or insolvent, or
seeking reorganization,
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arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (y) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, which in either of such cases (A) results in
any such entry of an order for relief, adjudication of bankruptcy or insolvency
or such an appointment or the issuance or entry of any other order having a
similar effect or (B) remains undismissed for a period of sixty (60) days;
(iv) if any case, proceeding or other action shall be
commenced or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or substantially
all of its property or against its interest in this Lease which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within sixty (60) days from the
entry thereof; or
(v) if a trustee, receiver or other custodian is appointed for
all or substantially all of the assets of Tenant or against Tenant's interest in
this Lease, which appointment is not vacated or stayed within seven (7) business
days, or
(c) if (i) any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the demised premises shall be taken
or occupied by someone other than Tenant; or (ii) if Tenant shall default in the
observance or performance of any term, agreements, covenant, provision or
condition of this Lease on Tenant's part to be observed or performed (other than
those specified in clauses (a) and (b) of this Section 14.01), and if Tenant
shall have failed to comply with or remedy any default specified in this clause
(c) within thirty (30) days after notice thereof from Landlord, or if the said
default or omission complained of shall be of a nature that the same cannot be
completely cured or remedied within said thirty (30) day period, and if Tenant
shall not have diligently commenced curing such default within such thirty (30)
day period, and if Tenant shall not thereafter with reasonable diligence and in
good faith proceed to remedy or cure such default,
then in each such event Landlord may, at its option, serve a written five (5)
days' notice of cancellation of this Lease upon Tenant, and upon the expiration
of said five (5) days, this Lease and the term thereunder shall end and expire
as fully and completely as if the expiration of such five (5) day period were
the day herein definitely fixed for the end and expiration of this Lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Landlord but Tenant shall remain liable as hereinafter provided.
14.02. If the five (5) day notice provided for in Section 14.01 hereof
shall have been given, and the term shall expire as aforesaid, then and in any
of such events
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Landlord may re-enter the demised premises and dispossess Tenant and the legal
representative of Tenant or other occupants of the demised premises by summary
or other legal proceedings and remove their effects and hold the demised
premises as if this Lease had not been made.
14.03. Notwithstanding any expiration or termination prior to the Lease
expiration date as set forth in this Article 14, except as provided in Section
15.01 hereof, Tenant's obligation to pay basic annual rent and additional rent
under this Lease shall continue to and cover all periods up to the date provided
in this Lease for the expiration of the term hereof.
14.04. Anything contained in this Article 14 to the contrary
notwithstanding, if any termination of this Lease pursuant to this Article 14
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 14.01(b) hereof, or by federal or state statute, then,
following the expiration of any such stay, or if the trustee appointed in any
such proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease as provided in Section 10.13(d), Landlord, to the extent permitted by law
or by leave of the court having jurisdiction over such proceeding, shall have
the right, at its election, to terminate this Lease on five (5) days' notice to
Tenant, Tenant as debtor-in-possession or said trustee and upon the expiration
of said five (5) day period this Lease shall cease and expire as aforesaid and
Tenant, Tenant as debtor-in-possession or said trustee shall quit and surrender
the demised premises as aforesaid.
14.05. If at any time, (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in Section 14.01(b),
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 14.01(b) shall be deemed paid as compensation
for the use and occupation of the demised premises and the acceptance of any
such compensation by Landlord shall not be deemed an acceptance of rental or a
waiver on the part of Landlord of any rights under this Article 14.
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ARTICLE 15.
REMEDIES OF LANDLORD: WAIVER OF REDEMPTION
15.01. In case of any such re-entry, expiration and/or dispossession by
summary proceedings or other legal proceedings as set forth in Article 14 hereof
(a) the rent shall become due thereupon and be paid up to the time of such
re-entry, expiration and/or dispossession, together with such expenses as
Landlord may reasonably incur for legal expenses, reasonable attorneys' fees,
brokerage fees, and/or putting the demised premises into the condition in which
Tenant would have been obligated to deliver the demised premises on the fixed
expiration date of the term; (b) Landlord may re-let the demised premises or any
part or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be less than or exceed the period which
would otherwise have constituted the balance of the term of this Lease and may
grant concessions or free rent; and/or (c) Tenant shall, in addition to the
other rights and remedies Landlord has, or may claim by virtue of any other
provision contained herein or by virtue of any statute or rule of law, also pay
Landlord as liquidated damages (and not as a penalty) for the failure of Tenant
to observe and perform said Tenant's covenants, agreements, terms, provisions
and conditions herein contained: (y) any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises (or, in the
event that Landlord or any Affiliate of Landlord, at its or their option but
without any obligation to do so, re-occupies any portion of the demised
premises, the fair market rental value attributable to the portion of the
demised premises so occupied for the period of such occupancy) for each month of
the period which would otherwise have constituted the balance of the term of
this Lease, or, at Landlord's option, but in lieu of any other damages which may
otherwise be recoverable by Landlord hereunder with respect to the loss of the
benefit of Landlord's bargain, (z) a sum which at the time of such termination
of this Lease or at the time of any such re-entry by Landlord, as the case may
be, represents the then present value of the excess (employing a discount factor
equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i)
the aggregate amount of the basic annual rent and the additional rent which
would have been payable by Tenant (conclusively presuming the average monthly
additional rent to be the same as were payable for the last twelve (12) calendar
months, or if fewer than twelve (12) calendar months have then elapsed from the
last Rent Commencement Date, all of the calendar months immediately preceding
such termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case may be,
and ending with the date contemplated as the expiration date hereof if this
Lease had not so terminated or if Landlord had not so re-entered the demised
premises, over (ii) the aggregate fair market rental value of the demised
premises for the same period. The failure or refusal of Landlord to re-let the
demised premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such actual out-of-pocket expenses as Landlord
52
may reasonably incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage fees and for keeping the demised premises
in good order or for preparing the same re-letting. Any liquidated damages
payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly
installments by Tenant on the rent days specified in this Lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Landlord, at Landlord's option, may
make such alterations, repairs, replacements and/or decorations in the demised
premises as Landlord, in Landlord's reasonable judgment, considers advisable and
necessary for the purpose of re-letting the demised premises; and the making of
such alterations and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event be
liable in any way whatsoever for failure or refusal to re-let the demised
premises or any parts thereof, or, in the event that the demised premises are
re-let, for failure to collect the rent thereof under such re-letting.
15.02. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant's being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the demised premises, by reason of the violation by Tenant of any
of the covenants, terms, provisions and conditions of this Lease or otherwise
(beyond applicable notice and grace periods).
15.03. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 14 or under any provision of law,
or had Landlord not re-entered the demised premises. Except as expressly set
forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall
be construed to limit or preclude recovery by Landlord or Tenant against the
other of any sums or damages to which, in addition to the damages particularly
provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or
Tenant of any of the covenants, agreements, terms, provisions and conditions
hereof, the non-breaching party shall have the right to seek an injunction and
the right to invoke any remedy allowed at law or in equity, and the mention in
this Lease of any particular remedy shall not preclude Landlord or Tenant from
any other remedy, at law or in equity, except as expressly set forth in Section
15.01 and Section 44.07 hereof and except for consequential and punitive damage,
which consequential and punitive damages Landlord and Tenant each hereby waive
and release.
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ARTICLE 16.
FEES AND EXPENSES
16.01. If Tenant shall default in the observance or performance of any
term, agreement, condition, provision or covenant on Tenant's part to be
observed or performed under or by virtue of any of the covenants, agreements,
terms, provisions or conditions in any Article of this Lease, Landlord may
remedy such default for the account of Tenant, immediately and without notice in
case of emergency, or in any other case, only provided that Tenant shall fail to
remedy such default with all reasonable dispatch after Landlord shall have
notified Tenant in writing of such default and the applicable grace period, if
any, of curing such default shall have expired, and if Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, such sums paid or obligations incurred, with interest at a per annum
rate of two (2%) percent in excess of the rate publicly announced from time to
time by Citibank, N.A. in New York, New York (or its successors) as its base
lending rate (the "Interest Rate"), shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Landlord within five (5) days of
rendition of a xxxx to Tenant therefor.
16.02. Any sums not paid when due by either party shall bear interest at
the Interest Rate from their respective due dates until received by the other
party, but none of the foregoing shall in any way limit any claim for damages or
any other rights or remedies available to either party hereunder for any breach
or default by the other hereunder.
ARTICLE 17.
NO REPRESENTATIONS BY LANDLORD
17.01. Tenant expressly acknowledges and agrees that Landlord or Landlords
agents or representatives have not made and are not making, and Tenant, in
executing this Lease, has not relied upon any warranties, representations,
promises or statements except to the extent that the same are expressly set
forth in this Lease or the agreements being executed contemporaneously herewith
and which, by their terms, expressly provide for their survival subsequent to
the execution and delivery of this Lease.
17.02. Landlord expressly acknowledges and agrees that neither Tenant nor
Tenant's agents or representatives have made and are not making, and Landlord,
in executing this Lease, has not relied upon, any warranties, representations,
promises or statements except to the extent that the same are expressly set
forth in this Lease or the agreements being executed contemporaneously herewith
and which, by their terms, expressly provide for their survival subsequent to
the execution and delivery of this Lease.
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ARTICLE 18.
END OF TERM
18.01. Expressly subject to Article 3 of this Lease, upon the expiration
or other termination of the term of this Lease, Tenant shall quit and surrender
to Landlord the demised premises in good order and condition, ordinary wear and
tear and damage by fire, the elements or other casualty or condemnation
excepted, and Tenant shall remove all of its property, which it may be (i)
permitted (to the extent Tenant so elects to do) or (ii) required to remove, as
hereinbefore provided. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
ARTICLE 19.
QUIET ENJOYMENT
19.01 As long as this Lease shall remain in full force and effect, Tenant
shall peaceably and quietly enjoy the demised premises hereby demised and,
subject to the rights of others, the Common Areas, for the term of this Lease,
without hindrance or molestation by anyone claiming by, through or under
Landlord, subject, nevertheless, to the covenants, agreements, terms, provisions
and conditions of this Lease.
ARTICLE 20.
DEFINITIONS
20.01 The term "Adjusted by CPI" shall mean that the amount in question
shall be adjusted on each anniversary of the date of this Lease by adding to the
amount in question (as of the date this Lease is executed but not as theretofore
increased) an amount equal to the product of (i) such amount and (ii) the
percentage of increase, if any, in the Consumer Price Index for the month in
which the applicable anniversary occurs over the Consumer Price Index for the
month in which this Lease shall have been executed. "Consumer Price Index" shall
mean the Consumer Price Index for all Urban Consumers published by the Bureau of
Labor Statistics of the United States Department of Labor, New York, New
York-Northeastern New Jersey Area (1982-84=100), or any successor index thereto.
In the event that the Consumer Price Index is converted to a different standard
reference base or otherwise shall be made with the use of such other conversion
factor, formula or table for converting the Consumer Price Index as may be
published by the Bureau of Labor Statistics or, if said Bureau shall not publish
the same, then with the use of other such conversion
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factor, formula or table as may be published by Xxxxxxxx-Xxxx, Inc., or any
other nationally recognized publisher of similar statistical information,
provided that if there shall be no successor index and the parties shall be
unable to agree on a substitute index within thirty (30) days, or if the parties
shall fail to agree on the appropriate adjustment of such successor or
substitute index within thirty (30) days, a substitute index or the appropriate
adjustment of a successor or substitute index, as the case may be, shall be
determined by arbitration pursuant to Section 10.11.
20.02. The term "business days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the state or federal government as
legal holidays and, when used in respect of the actual operation or maintenance
of the Building, shall also include such other days designated as legal holidays
by the applicable building service union employees' service contract and/or by
the applicable operating engineers' contract.
20.03. The term (i) "Controlled Affiliate" shall mean any entity which,
directly or indirectly, controls, is controlled by, or is under common control
with, Tenant and (ii) "control" (including "controlling", "controlled by" and
"under common control with") shall, solely for the purpose of defining the term
"Controlled Affiliate", mean the ownership of not less than fifty-one (51%)
percent of the legal and beneficial interest in such entity or the right and
ability to control any actions to be taken by the holders of the voting
securities of such entity.
20.04. Intentionally Deleted.
20.05. The term "CSFB Lease" shall mean the lease dated July 20, 1995 by
and between Metropolitan Life Insurance Company, as lessor, and CS First Boston
Corporation, as lessee, for space in the Building.
20.06. The term "First-Class Office Buildings" shall have the meaning set
forth in Section 27.01.
20.07. The term "Land" shall mean the real property described by metes and
bounds description attached hereto and made a part hereof as Exhibit D.
20.08. The term "Landlord" as used in this Lease means only the owner or
the Mortgagee in possession at the time in question of the Land and Building (or
the units in the Condominium, as such term is hereinafter defined, other than
those which are the subject of the Xxxxxxxxx, as hereinafter defined, in which
event the holder of the interest of the tenant under the Xxxxxxxxx shall also be
included in the definition of Landlord) so that in the event of any transfer of
title to said Land and Building, or in the event of a lease of the entire
Building or of the Land and Building in each case other than to a Landlord
Affiliate, upon notification to Tenant of such transfer or lease, the said
transferor Landlord shall be and
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hereby is entirely freed and relieved of all covenants, agreements, terms,
provisions, conditions and obligations of Landlord accruing, or arising out of a
state of facts occurring, after such transfer. Upon any transfer described
above, it shall be deemed, without further agreement that such transferee has
assumed and agreed to perform and observe all obligations of Landlord herein
during period it is the holder of Landlord's interest under this Lease. Except
as otherwise provided below, Tenant shall look only to Landlord's estate in the
Land and the Building (and the proceedings of sale in connection with
liabilities accrued prior to such sale) for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of a default by Landlord
hereunder, and no other property or assets of Landlords or its officers,
directors, employees, partners or principals, disclosed or undisclosed, shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or Tenant's use or occupancy of the demised
premises. Anything to the contrary provided in this Section 20.08
notwithstanding, the obligation of Landlord to perform Landlord's Work and to
fund Tenant's Allowance and any liability assumed by Metropolitan Life Insurance
Company (or any successor to the business of Metropolitan Life Insurance Company
by virtue of a merger, consolidation or sale of all or substantially all of
Metropolitan Life Insurance Company's assets) should Metropolitan Life Insurance
Company or such successor become a self-insurer as provided in Article 7 of this
Lease shall at all times remain personal obligations of Metropolitan Life
Insurance Company or such successor, as the case may be, (a) which shall not be
released upon any transfer of the Building and (b) with respect to which
Tenant's recourse shall not be limited to Landlord's estate in the Land and
Building.
20.09. The term "Lease Year", as used herein, shall mean (a) for the first
(1st) Lease Year, the period between the earlier Rent Commencement Date and the
day preceding the first (1st) anniversary of the earlier Rent Commencement Date
and (b) for any subsequent Lease Year, the twelve month period commencing on the
first day subsequent to the expiration of the preceding Lease Year and ending on
the anniversary date of the last day of the preceding Lease Year.
20.10. The term "Tenant's Systems" means all plants, machinery, equipment,
trade fixtures and personal property which becomes part of the real property by
incorporation therein, including, but not limited to, any ventilating and
air-conditioning systems, communications and telecommunications apparatus,
electrical equipment and all equipment and materials and any ancillary cabling
and wiring used in connection therewith or necessary for the use thereof,
designed or used exclusively for Tenant or for the use of the tenant under the
CSFB Lease or the CS Lease or for systems owned by Tenant or the tenant under
the CSFB Lease or the CS Lease or systems dedicated to the use of Tenant or the
tenant under the CSFB Lease or the CS Lease or which the tenant under the CSFB
Lease or the CS Lease, as applicable, has a right, to operate, but nothing
contained in this Lease shall require Tenant to maintain, operate, repair or
replace any of the foregoing that is an obligation of the
57
tenant under the CSFB Lease or the CS Lease to maintain, operate, repair or
replace, as the case may be.
20. 11. The term "rent" shall mean basic annual rent, additional rent and
any other charge payable by Tenant under this Lease.
20.12. The words "re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
20.13. Inasmuch as the Land and Building have been subjected to a
Declaration of Condominium ("Condominium") and that Landlord's ownership of the
Building is either as the holder of units ("Units") in the Condominium or as the
holder of the leasehold interest in certain of the Units owned or to be owned by
the XXX (the lease creating such leasehold is herein referred to as the
"Xxxxxxxxx"), this Lease shall, with respect to the portions of the demised
premises in which Landlord then holds a (i) fee interest in the Units, be as the
owner of those Units and (ii) leasehold interest in the Units, be as the holder
of the leasehold interest in those Units and, in such latter event, this Lease,
as it relates to those Units, shall be deemed a sublease while the Xxxxxxxxx
remains in effect. If and should Landlord, at any time and for any reason,
terminate the Condominium, its interest in the Building and Land will be as the
fee simple holder and this Lease will be a direct lease between the fee simple
owner and Tenant.
20.14. The term "Tenant" shall mean Credit Suisse First Boston
Corporation, its permitted successors and permitted assigns.
20.15. The term "Treasury Rate" shall mean the yield in percent per annum
of the Treasury Constant Maturities for ten (10) year terms as published in
document H.15(519) (presently published by the Board of Governors of the Federal
Reserve System titled "Federal Reserve Statistical Release"). If the publishing
of the yield of Treasury Constant Maturities is ever discontinued, then the
Treasury Rate shall be based upon the index which the Board of Governors of the
Federal Reserve System publishes in replacement or, if no such replacement index
is published, the index which, in Landlord's reasonable determination, most
nearly corresponds to the yield of the Treasury Constant Maturities.
20.16. The term "Building Systems" shall mean the mechanical, gas,
electrical, sanitary, heating, air-conditioning, ventilating, elevator, plumbing
and life-safety and other service systems of the Building, other than (i) any
Tenant's Systems and (ii) the distribution portions of such Building Systems
located within the demised premises.
20.17. The term "Costs" Shall mean the actual cost to the party in
question of providing the item in question, which costs shall include the cost
of labor and material to third parties, but shall not include any markup for any
interest carry, depreciation,
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management charge or overhead charge or, in the case of Landlord, payments to
the Building management agent for services not in excess of that it is required
to provide as part of its regular management duties.
20.18. Intentionally Deleted
20.19. The term "Cessation Event" shall mean that the notice set forth in
the following clause (e) shall have been validly given and that one of the
events set forth in the following clauses (a), (b), (c) or (d) shall have
occurred and be continuing: (a) the then holder of the tenant's interest in the
CSFB Lease and the Tenant are not, and will not as of Inclusion Date (as such
term is hereinafter defined) be, Affiliates, or (b) the physical capacities of
the systems, equipment and machinery of the then tenant under the CSFB Lease are
no longer capable of continuing to furnish to the demised premises
air-conditioning service in the same quantities as Landlord would, under Section
27.04(1), be required to furnish Tenant, or (c) Landlord has, as of the
Inclusion Date, recaptured or subleased all of the entire 13th floor of the
Building, or (d) Tenant has, as of the Inclusion Date, subleased the entire 13th
floor and (e) Tenant has furnished Landlord with a written notice (the
"Cessation Notice") setting forth the occurrence and continuance of one of the
events set forth in clauses (a), (b), (c) or (d) of this Section 20.19 and
requesting that Landlord commence the furnishing of air-conditioning to the
demised premises on the basis set forth Section 27.04(f) on the date set forth
in such notice requesting such services, which date (the "Inclusion Date,") may
not be earlier than sixty (60) days subsequent to Landlord's receipt of such
notice. Tenant's right and election to request that Landlord furnish the
services described in clause (e) of this Section 20.19 shall be a one-time only
right and once exercised, Tenant may not thereafter reconnect (or require
Landlord to reconnect) all or any portion of the demised premises to the
air-conditioning systems and equipment servicing all or any portion of the space
demised to the tenant under the CSFB Lease.
20.20. The term "Provision Date" shall mean the later of the (i) Inclusion
Date or (ii) date by which Landlord, after receipt of the Cessation Notice, has
had sufficient time to get the demised premises on line with the Building's
systems so as to enable Landlord to provide the requested services.
20.21. The term "CS Lease" shall mean the lease dated October 4, 1996, as
amended by that Modification to Lease dated December 24, 1996, by and between
Metropolitan Life Insurance Company, as lessor, and Credit Suisse, as lessee,
for space in the Building.
20.22. The term "Meeting the Threshold Level" or words of like or similar
import shall mean that, at that point in time when such determination is being
made, (i) no Monetary Default exists, (ii) Tenant is not otherwise in default
under this Lease (subsequent to any required notice and the expiration of any
applicable cure period) and (iii) Tenant, the
59
tenant under the CSFB Lease and the tenant under the CS Lease are, in the
aggregate, in occupancy of at least 500,000 rentable square feet of Above Grade
Space (as defined in the CSFB Lease) (including any space which Tenant, the
tenant under the CSFB Lease or the tenant under the CS Lease would be occupying
but for (x) the untenantability thereof or (y) the then actual performance
therein of Improvements for Tenant's own use, the use of the tenant under the
CSFB Lease or the use of the tenant under the CS Lease).
ARTICLE 21.
ADJACENT EXCAVATION--SHORING
21.01. If an excavation shall be made upon land adjacent to or under the
Building, or shall be authorized to be made, Tenant shall, upon reasonable
advance notice (except in an emergency), afford to the person causing or
authorized to cause such excavation license to enter upon the demised premises
for the purpose of doing such work as shall be reasonably necessary to preserve
the wall of the Building of which the demised premises form a part from injury
or damage and to support the same by proper foundations without any claim for
damages or indemnity against Landlord, or diminution or abatement of basic
annual rent or additional rent, provided that Tenant shall continue to have
access to the demised premises and the portions of the Building to which Tenant
is, by the terms of this Lease, entitled to have such access, and that such work
and any permanent changes to the Building resulting therefrom do not (a)
materially reduce, interfere with or deprive Tenant of access to the Building or
the demised premises, (b) reduce the usable floor area of the demised premises
to the extent that the same would materially interfere with the conduct of
Tenant's business at the demised premises or (c) materially impede the operation
of Tenant's business but if the usable floor area of the demised premises is
reduced by more than a minimal amount, the basic annual rent and additional rent
shall be proportionately abated (on a per square foot basis for the period of
such reduction.
ARTICLE 22.
RULES AND REGULATIONS
22.01. Tenant, Tenant's permitted subtenants, the Controlled Affiliates of
Tenant, the Controlled Affiliates of Tenant's permitted successors and assigns,
and the servants, employees and agents of each of the foregoing shall observe
faithfully and comply with the Rules and Regulations set forth in Exhibit B
attached hereto and made part hereof and such reasonably changes thereto
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which, in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care and
60
appearance of the Building, or the preservation of good order therein, or the
operation or maintenance of the Building, and which do not unreasonably affect
the conduct in the demised premises of the business of Tenant, its permitted
subtenants and the Controlled Affiliates of Tenant and the Controlled Affiliates
of Tenant's permitted successors and permitted assigns; provided that (i)
Landlord gives Tenant prior written notice of such changes and (ii) such new
rules and regulations or changes in existing rules and regulations do not
require expenditures by Tenant by more than a non-material amount and do not
require expenditures for alterations other than in non-material amounts, not
contemplated by the terms of the Lease (such rules and regulations as changed
from time to time being herein called "Rules and Regulations"). In case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations, the provisions of this Lease shall control.
22.02. Landlord shall (a) not enforce against Tenant any Rules or
Regulations which Landlord is not then generally enforcing against all other
office tenants of the Building; (b) not unreasonably withhold or delay its
consent from Tenant for any approval or consent required under the Rules and
Regulations; and (c) exercise its judgment in good faith in any instance
providing for the exercise of its judgment in the Rules and Regulations.
ARTICLE 23.
NO WAIVER; ENTIRE AGREEMENT
23.01. No agreement to accept a surrender of this Lease shall be valid
unless in writing signed by Landlord. No employee of Landlord or of Landlord's
agents shall have any power to accept the keys of the demised premises prior to
the termination of this Lease. The delivery of keys to any employee of Landlord
or of Landlord's agent shall not operate as a termination of this Lease or a
surrender of the demised premises. The failure of either Landlord or Tenant to
seek redress for violation of, or to insist upon the strict performance of, any
covenant, agreement, term, provision or condition of this Lease, shall not
prevent a subsequent act which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of rent with knowledge of the breach of any covenant, agreement, term,
provision or condition of this Lease shall not be deemed a waiver of such
breach. Subject to Section 22.02, the failure of Landlord to enforce any of the
Rules and Regulations set forth herein, or hereafter adopted, against Tenant
and/or any other tenant in the Building shall not be deemed a waiver of any such
Rules and Regulations. No provision of this Lease shall be deemed to have been
waived by Landlord or Tenant unless such a waiver be in writing signed by such
party. No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or
61
payment of rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
23.02. This Lease and any agreements executed contemporaneously herewith
and which, by their terms, expressly provide for their survival subsequent to
the execution and delivery of this Lease contain the entire agreement between
the parties and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
23.03. This Lease shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements of its type, nature
and kind made and to be performed wholly within said State and without giving
effect to the conflict of laws principles.
23.04. Each payment or other charge payable by Tenant to Landlord under
this Lease (other than for the payment of basic annual rent) shall be, and be
deemed to be, additional rent.
ARTICLE 24.
WAIVER OF TRIAL BY JURY
24.01. Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
demised premises, and/or any other claims (except claims for personal injury or
property damage), and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event Landlord commences any summary
proceeding for nonpayment of rent, Tenant will not interpose and does hereby
waive the right to interpose any counterclaim (other than a compulsory
counterclaim) in any such proceeding.
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ARTICLE 25.
INABILITY TO PERFORM
25.01. (a) Except as otherwise provided in Section 31.03 hereof, if by
reason of (1) strike, 92) labor troubles, (3) governmental preemption in
connection with a national emergency, (4) any rule, order or regulation of any
governmental agency, (5) conditions of supply or demand which are affected by
war or other national, state or municipal emergency, or (6) any cause beyond the
reasonable control of the party whose performance of an obligation hereunder is
required, such party shall be unable to fulfill its obligations under this Lease
(except nothing herein contained shall in any way ever release or relieve Tenant
from any obligation to pay basic annual rent, additional rent or any other
charge payable to Landlord under this Lease on the date such payments are due
nor release or relieve Landlord of any of Landlord's obligations to make any
payment of money due by Landlord to Tenant under this Lease on the date such
payments are due) or if Landlord shall be unable to supply any service which
Landlord is obligated to supply, this Lease and Tenant's obligation to pay rent
hereunder and Landlord's obligation to make any payment of money to Tenant under
this Lease shall in no wise be affected, impaired or excused, provided, however,
that as soon as the relevant party shall learn of the happening of any of the
foregoing conditions, such party shall promptly notify the other of such event
and, if ascertainable, its estimated duration and will proceed promptly and
diligently with the fulfillment of its obligations as soon as reasonably
possible.
(b) The foregoing provisions of Section 25.01(a) notwithstanding,
if for any reason whatsoever, including the matters described in Article 27 of
this Lease, Landlord shall fail to provide any service required to be provided
by Landlord to Tenant under this Lease and if, as a result of Landlord's failure
to provide all or any of said services, the demised premises are rendered Wholly
Untenantable or Partially Untenantable (as such terms are hereinafter defined)
for more than five (5) consecutive business days after written notice of the
existence of which condition has been given by Tenant to Landlord or any six (6)
business days in a ten (10) day period, Tenant, as its sole right and remedy,
shall be entitled to an abatement of basic annual rent and additional rent (on a
per square foot basis) for each day after said five (5) day period or the
seventh (7th) day in any ten (10) day period until the demised premises or the
applicable portion thereof cease to be Wholly Untenantable or Partially
Untenantable, as the case may be. For the purposes of this Article 25, "Wholly
Untenantable" shall mean that Tenant, due to the cessation of one or more of the
services set forth in the first sentence of this Section 25.01(b), is actually
unable to use the entire demised premises in the normal course of its business
and that Tenant, due to the cessation of one or more of the services set forth
in the first sentence of this Section 25.01(b), completely ceases to occupy the
same for such conduct of its business, and "Partially Untenantable" shall mean
that Tenant, due to the cessation of one or more of the services set forth in
the first sentence of this Section 25.01(b), is actually unable to use a portion
of the
63
demised premises in the normal course of its business and that Tenant, due to
the cessation of one or more of the services set forth in the first sentence of
this Section 25.01(b), ceases to occupy the same for such conduct of its
business.
ARTICLE 26.
NOTICES
26.01. (a) Any notice or demand, consent, approval or disapproval
(collectively, "notice") required or permitted to be given by the terms and
provisions of this Lease, or by any law or governmental regulation, either by
Landlord to Tenant or by Tenant to Landlord, shall be in writing. Unless
otherwise required by such law or regulation, such notice, demand, consent,
approval or disapproval (other than for bills for basic annual rent or
additional rent) shall be given, and shall be deemed to have been served and
given, if (i) mailed, postage prepaid, by registered or certified mail, return
receipt requested or (ii) sent by a national commercial courier service, for
next day delivery, with delivery to a named person to be confirmed, in writing,
by said courier. If such notice is from Landlord to Tenant, such notice shall be
addressed to Tenant, at Eleven Madison Avenue, New York, New York 10006,
Attention: Xx. Xxxxx X. Xxxxxxxxxx, Facilities Department, with a copy to
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxx, Esq. and with a copy of notice of default to Tenant, at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel. Such notice
from Tenant to Landlord shall be addressed to the Vice President and Investment
Counsel, Real Estate Investments, Law Department (Area 7-G), Metropolitan Life
Insurance Company, Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a
duplicate thereof, simultaneously being sent by the same mailing procedure to
Metropolitan Life Insurance Company, Attention: Senior Vice President, Corporate
Property Management (Area 18-A) at Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) All notices shall be effective upon receipt and the time period
in which a response to any such notice must be given shall commence to run from
the date of receipt on the delivery confirmation or the return receipt of the
notice by the addressee or the courier thereof, as the case may be. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given shall be deemed to be receipt of the notice sent.
In the event that registered or certified mail or an overnight express delivery
is not being accepted for delivery, notices to Tenant may then be served by hand
delivery to the General Counsel of Credit Suisse First Boston Corporation and
notices to Landlord may then be served by hand delivery to the vice President
and Investment Counsel, Real Estate Investments, Law Department, of Metropolitan
Life Insurance Company. Either party may, by notice as aforesaid, designate a
different (i) address or addresses within the United States of America for
notices and/or (ii) officer(s) or partner(s),
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as the case may be, and in the case of Landlord and Tenant, different officer(s)
of Landlord and Tenant, respectively, upon whom service may, as above provided,
be made or effected.
ARTICLE 27.
SERVICES
27.01 Landlord shall at all times operate and maintain the Building in
accordance with the standards that are customarily followed in the operation and
maintenance of first-class, non-institutional, non-governmental office buildings
similar in construction (following the performance of the Base Building Upgrade
Work), size and type of systems and facilities to the Building and with similar
type of tenants located in midtown Manhattan ("First-Class Office Buildings")
and, without limiting the foregoing, shall provide the specific facilities,
utilities and services set forth in this Article. Landlord may delegate all or
any portion of its obligation to maintain the Common Areas of the Building
and/or to provide services to the board of managers of the condominium of which
the demised premises in a part, during such time as the Building is subject to
condominium ownership, but the same shall not relieve Landlord of liability
hereunder.
27.02. Landlord shall (i) provide the cleaning services specified on
Exhibit C annexed hereto and made a part hereof to the areas specified therein
exclusive of the demised premises and Tenant acknowledges that Tenant is
responsible, at Tenant's expense, for its own rubbish removal, and (ii) at
Tenant's election and upon sixty (60) days prior written notice to Landlord that
Tenant elects to procure cleaning services directly from Landlord, cause the
space in the demised premises (other than any space used for the preparation or
consumption of food or for storage), to be cleaned in accordance with the
standards set forth in Exhibit C-1, attached hereto and made a part hereof. Once
Landlord commences providing the demised premises with cleaning services, Tenant
may as of each fifth (5th) anniversary of the date Landlord initially commenced
providing such services) elect to have Landlord (i) continue to provide such
services for the next five (5) year period or until the expiration of this
Lease, whichever is shorter or (ii) discontinue the providing of such services
for the next five (5) year period or until the expiration of this Lease,
whichever is shorter. The notice of election to be effective must be received by
Landlord no later than ninety (90) days prior to the applicable fifth (5th)
anniversary date and if no such notice is furnished (or if the notice is not
received by Landlord at least ninety (90) days prior to the applicable fifth
anniversary date), Landlord shall continue to provide such services for the
ensuing five (5) year period or until the expiration of this Lease, whichever is
shorter. If Tenant elects to procure cleaning services directly from Landlord or
if Landlord elects to provide such services on the basis provided in the next
succeeding sentence, Tenant shall, within thirty (30) days of Landlord's demand,
reimburse Landlord for Landlord's costs of conversion of dispensers (such as
towel, soap, sanitary napkin or other hygienic dispenser)
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then located in the bathrooms on the floors then demised to Tenant to the
Building standard dispensers should Landlord elect to undertake all or any of
such conversions. In the event Landlord shall be subletting all or any portion
of the demised premises, then Landlord shall have the right, at its option, to
provide the cleaning services to that portion of the demised premises sublet by
Landlord and if Landlord shall so elect to provide those services, Tenant shall
cause the tenant under the CSFB Lease to cease providing such services during
the periods that Landlord is providing such services. In the event Landlord
recaptures all of the 13th floor of the Building, then Landlord may, at its
option, install the Building's then standard drinking fountains (in the then
typical locations therefor) in such floor and Tenant shall, within thirty (30)
days of Landlord's demand therefor, reimburse Landlord for Landlord's costs of
procuring and installing the same. Landlord shall also provide, to the extent
not otherwise provided on Exhibit C hereof, cleaning services with respect to
the loading docks, sidewalks, plazas and entryways adjoining the Building
(including snow removal) and shall clean the facade of the Building, all in
accordance with the standards of First-Class Office Buildings. Except as
expressly set forth otherwise in this section 27.02, Landlord shall not be
required or obligated to provide any cleaning services to the demised premises.
27.03 Intentionally Deleted.
27.04 (a) Landlord shall furnish (i) to the Common Areas of the Building
only (to the extent that such areas would customarily be provided with such
services and including the Building lobby and excluding any area to be serviced
by Tenant's Systems or by systems designed for Tenant's exclusive or primary use
or to be serviced by Tenant's own systems or systems dedicated to Tenant's
exclusive or primary use) air-conditioning, ventilation and heat, and (ii) to
the demised premises heat, and outside air (filtered at all times and heated and
humidified in the winter) in the quantities specified in the Drawings and
Specifications (as such term is defined in Exhibit E hereof), in each case on
all year-round basis during the hours between 8:00 A.M. and 6:00 P.M., on
business days (herein referred to as the "Business Hours"), subject to all Legal
Requirements.
(b) Tenant agrees to keep and cause to be kept closed all the
windows in the demised premises at all times, and Tenant agrees to cooperate
fully with Landlord and to abide by all the regulations and requirements which
Landlord may reasonably prescribe for the proper functioning and protection of
the Building Systems.
(c) If Tenant shall require any of the services required to be
provided by Landlord to the demised premises pursuant to this Section 27.04
outside of Business Hours, Landlord shall furnish the same to the demised
premises upon advance notice from Tenant, given prior to 3:00 P.M. on the day,
Monday through Friday, on which such service is required, and given prior to
3:00 P.M. on the Friday before any Saturday or Sunday or on the last business
day (but excluding Saturday) before any legal holiday on
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which service is required. Tenant, in lieu of providing daily requests for
overtime or above-standard service, may, at its option and from time to time,
furnish Landlord with a standing order, which order shall stay in effect until
Tenant notifies Landlord in writing of any change to or revocation of such
standing order, which notice of change or revocation must be given to Landlord
prior to the required times provided in the preceding sentence of this Section
27.04(c). Notwithstanding anything to the contrary contained in this Section
27.04(c), to the extent any Tenant daily notice has not been given prior to the
requisite times provided in this Section 27.04(c), Landlord shall, nevertheless,
use its reasonable efforts to provide such service as timely as reasonably
practical.
(d) Tenant shall sign such service order forms or vouchers as
Landlord shall require to monitor the request or xxxx for such services.
(e) Notwithstanding anything to the contrary contained in this
Section 27.04, at any time prior to the Provision Date, Tenant shall provide (or
require the tenant under the CSFB Lease to provide) air-conditioning service to
those areas of the demised premises leased to Tenant but subleased to Landlord
or its designee pursuant to Article 10 hereof or otherwise recaptured by
landlord on the basis provided in said Article 10 in accordance with the same
rights, limitations and obligations set forth in this Lease as are granted to or
imposed upon Landlord with respect to supplying air-conditioning service to the
demised premises (e.g., Tenant shall, subject to the limitations set forth in
this Section 27.04, be obligated to provide (or require the tenant under the
CSFB Lease to provide) such space with air-conditioning sufficient to meet the
requesting parties' demands in accordance with performance specifications set
forth in Section 27.04(f) hereof) and Landlord shall, in addition to any other
right or remedy set forth in this Lease for any failure in Tenant's performance
of its obligations under this Lease, have the same rights set forth in Articles
11 and 25 of this Lease that Tenant would have against Landlord where Landlord
is obligated to furnish a service to Tenant, and Landlord shall pay to Tenant
for the services being provided by Tenant (or that Tenant required the tenant
under the CSFB Lease to provide) to Landlord that which Tenant would have been
required to pay Landlord for the furnishing of the same service prorated on a
square foot basis for the amount of space involved. Tenant, subject to the
provisions of Article 8 and 9 hereof, at its sole cost and expense (except as
expressly provided in the immediately succeeding sentence) shall, at all times
prior to the Provision Date, require the tenant under the CSFB Lease to operate,
service, maintain, repair and replace the same pursuant to, and in accordance
with, the standards for a First-Class Office Building. The uninterrupted power
supply system and emergency power systems to be installed by Tenant, if any, or
any replacements thereof, shall, regardless of which party is then in control of
operating the air-conditioning systems servicing the demised premises, always,
to the extent possible, be used to service only the demised premises, those
areas required for legal occupancy of the demised premises while such backup
systems are in operation. Tenant, at its sole cost and expense, shall be solely
and expressly responsible for, and obligated to, operate, service, maintain,
monitor, test and
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replace the uninterrupted power supply system, if any, and emergency power
system described in the preceding sentence, and Tenant (other than in an
emergency situation) shall give Landlord (i) reasonable prior written notice of
any test or scheduled repair or replacement to be made to either or both systems
and at least five (5) days prior written notice if a full Building test is to be
made, and (ii) as much advance notice as is practicable under the circumstances
relative to any unscheduled or emergency repair or replacement to be made to
either or both of said systems and, in each case recited in clause (i) or (ii)
of this Section 27.04(e), opportunity for a representative of Landlord or its
managing or operating agent to monitor and observe the testing and/or repairs or
replacements and (iii) Tenant agrees that it shall not engage in the
cogeneration of electricity.
(f) (i) If Landlord shall be supplying air-conditioning to the
demised premises, Landlord shall furnish and distribute to the demised premises
(other than the mechanical space and toilets) heating, ventilation and
air-conditioning during Business Hours. The heating, ventilation and
air-conditioning systems referred to in this Article 27 shall be designed to,
and Landlord shall operate such system, to provide interior conditions of: 75
degrees F., +/- 2 degrees F. dry bulb, and not more than 50% relative humidity
when outside conditions are 95 degrees F. dry bulb and 72 degrees F., +/- 2
degrees F. dry bulb and not less than 30% relative humidity for heating when
outside temperatures are 0 degrees F. dry bulb in the demised premises and shall
be capable of providing outside air to the demised premises (other than the
mechanical space and toilets) in quantities of not less than 0.13 cubic feet per
minute per usable square foot (other than the mechanical space and toilets). The
foregoing design conditions are based upon and assume (x) an electrical demand
load of up to 5 xxxxx per usable square foot of the demised premises for all
purposes (including lighting and power but excluding Building equipment), it
being understood that Tenant shall, at its sole cost and expense, be responsible
for obtaining any supplemental cooling capacity to support electrical demand
loads in excess of 5 xxxxx per usable square feet, (y) an average human
occupancy factor not in excess of one (1) person per one hundred and fifty (150)
usable square feet of the demised premises and (z) the lowering of blinds when
necessary because of the sun's position when the air-conditioning system is in
operation.
(ii) If the heating, ventilating or conditioned air being
delivered by Landlord to the demised premises (other than the mechanical space
and toilets) is capable of meeting the foregoing design conditions required
under this Section 27.04, but the temperature, humidity and/or supply air in the
demised premises (other than the mechanical space and toilets) does not meet
such design conditions because (x) the design or configuration of the heating,
ventilation and air-conditioning system designed to service the demised premises
was not adequately designed or configured, (y) any arrangement of the Tenant's
partitioning or raised flooring interferes with the proper and efficient
operation of the aforesaid heating, ventilation and air-conditioning system, or
(z) the failure of Tenant's use of the demised premises to meet the assumptions
set forth in the last sentence of
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Section 27.04(f) (i) hereof, then Landlord shall not be responsible for
deficiencies in meeting such design conditions or performance criteria.
(g) At all times prior to the Provision Date, the air-conditioning
system serving the demised premises shall be deemed to be a "Tenant System" and
Landlord shall have no obligation to provide air-conditioning to the demised
premises.
(h) Inasmuch as Tenant has contracted to obtain air-conditioning for
the demised premises from the tenant under the CSFB Lease, Tenant acknowledges
that in no event shall Landlord be obligated to furnish air-conditioning for the
demised premises to the demised premises prior to the Provision Date, it being
understood that Landlord shall have no obligation to commence connecting the
Building's system with the interior air-conditioning distribution systems
serving the demised premises unless and until the tenant under the CSFB Lease,
at no cost or expense to Landlord, disconnects (and fully completes the
disconnection of) its air-conditioning, equipment and machinery from the
interior distribution systems (including, without limitation, all required
machinery and equipment) servicing the demised premises and does all other
things necessary so that Landlord may connect the interior air-conditioning
distribution systems (including, without limitation, all required machinery and
equipment) serving the demised premises into the Building's systems. The costs
of connecting those systems, equipment and machinery into the Building's systems
needed to service the demised premises shall, within thirty (30) days of
Landlord's presentation of an invoice, be paid for by Tenant.
(i) At any time that Tenant shall be supplying electric service to
Landlord, Tenant shall have the right to submeter the same, and Landlord shall
pay Tenant for the electricity so utilized as shown on such submeter at the
rates Tenant pays for the same, exclusive of any discount available through the
New York City Public Utility Service or Consolidated Edison due to the New York
City Industrial Development Agency benefits available to Tenant.
(j) Subject to Landlord's approval of the design and installation of
a packaged supplemental air-conditioning system on the basis provided in
Articles 4, 30 and 32 of this Lease, Tenant shall, at Tenant's sole cost and
expense, have the right to install, maintain and operate within the demised
premises, a supplemental air conditioning system (having a capacity of not more
than forty (40) tons) for after hours or additional cooling. If the physical
capacity of the systems, equipment and machinery of the then tenant under the
CSFB Lease is not capable of furnishing Tenant with the condenser water
necessary to operate Tenant's supplemental air-conditioning system of it Tenant
and the then tenant under the CSFB Lease are no longer Affiliates, Tenant shall,
upon written request to Landlord and subject to Articles 3 and 32, have the
right to tap into the Building's condenser water line on the 13th floor of the
Building for the purposes of obtaining condenser water for Tenant's supplemental
air-conditioning system. In no event shall Tenant ever be entitled to use or
69
obtain more than 200 gallons per minute per floor of condenser water from the
foregoing condenser water line and subject to the provisions of Sections 25.01
and 27.06 of this Lease, the condenser water line shall be available for use by
Tenant twenty-four (24) hours a day, three hundred sixty-five (365) days a year.
Further, in connection with Tenant's tapping into the condenser water line,
Tenant hereby agrees to pay Landlord a one-time connection charge for each
tap-in determined by (a) multiplying the capacity of Tenant's supplemental
air-conditioning units (in tons) then being tied into the condenser water line
times (b) $1,000.00, which sum shall be payable by Tenant to Landlord within
thirty (30) days of Landlord's furnishing Tenant with a xxxx therefor. Further,
commencing on the date Tenant taps into the water condenser line, Tenant hereby
agrees to pay to Landlord an annual condenser water charge determined by (1)
multiplying the capacity of Tenant's supplemental air-conditioning units (in
tons) times (2) $500.00.
27.05. Landlord, at its expense (but subject to recoupment pursuant to
Article 29 hereof) shall, subsequent to the Provision Date and if requested in
writing by Tenant, provide non-exclusive passenger elevator service and during
Business Hours and, subject to Article 25 and Section 29.06, there shall be at
least four (4) elevators available to the demised premises, it being agreed that
Landlord may reasonably reduce the number of elevator cars in operation at times
other than during Business Hours.
27.06. Subject to the provisions of Article 25 hereof, Landlord reserves
the right to stop services on the heating, ventilating and air-conditioning,
elevator, plumbing, fire safety, life protection and electrical systems and any
other system serving the Building when necessary, in the reasonable judgment of
Landlord, for reason of accident or emergency or for repairs, alterations,
replacements or improvements, provided that except in case of emergency,
Landlord will give reasonable advance notice to Tenant, if possible, of any such
stoppage and, if ascertainable, its estimated duration, will reasonably
cooperate with Tenant, if possible, in scheduling any such stoppage, and will
proceed diligently with the work necessary to resume such service as promptly as
possible and in a manner so as to minimize interference with Tenant's use and
enjoyment of the demised premises.
27.07. (a) Landlord will, through vertical plumbing risers in the
Building, supply Tenant with (i) an adequate quantity of warm and cool water for
(a) lavatory, cleaning and drinking purposes, and (b) pantry purposes, provided
that there is no more than one (i) pantry per floor of the demised premises
consuming not more than three (3) gallons per minute per pantry, and such pantry
consists of no more than a sink, a unit for brewing and dispensing coffee and a
refrigerator, and that the same are used by Tenant for standard pantry purposes
in keeping with a First-Class Office Building and (ii) a quantity of water for
Tenant's sprinklers in the demised premises which complies with Legal
Requirements.
27.08. In the event Tenant shall employ any contractor to do in the
demised premises any work or perform any service permitted or required to be
done by Tenant under
70
this Lease, such contractor and any subcontractor shall agree to employ only
such labor as will not, in Landlord's reasonable judgment, result in
jurisdictional disputes or violations of Landlord's union contracts or
Landlord's contractors' union contracts affecting the Building. Except in the
case of an emergency, Tenant will inform Landlord in writing of the names of any
contractor or subcontractor Tenant proposes to use in the demised premises at
least five (5) business days prior to the beginning of work by such contractor
or subcontractor. Nothing contained in this Section 27.08 shall release or
relieve Tenant from the terms, conditions, covenants and provisions of Article 3
of the Lease.
27.09. If Tenant is permitted hereunder to and does have a separate area
for the preparation or consumption of food in the demised premises, Tenant, at
its expense, shall be responsible to arrange for the removal from the Building
of any refuse or rubbish from such area and the cost of employing on a regular
basis, an exterminator to keep the demised premises free from vermin; and if
required by Landlord, Tenant shall provide a refrigerated garbage storage room,
the plans and specifications thereof to be approved by Landlord in accordance
with the provisions of this Lease, or other means of disposing of garbage
reasonably satisfactory to Landlord's architects.
27.10. Subject to the provisions of Section 27.01 hereof, Landlord will
furnish security for the Common Area of the Building, the procedures for which
and type of security systems and personnel involved shall be subject to
Landlord's sole and absolute discretion and determination, it being understood
and agreed that Landlord shall have no obligation to provide any security
services or systems to the demised premises or to any area or system that is
exclusively used by, or is exclusively available to, Tenant other than tap-in
points (and which tap-ins and connections shall be made only pursuant to and in
accordance with plans and specifications approved by Landlord) to the Building's
main vertical sprinkler riser and class "E" life-safety system in the demised
premises. Landlord shall, pursuant to and in accordance with the plans and
specifications for such Work approved by Landlord (to the extent such approval
is required under this Lease), also permit Tenant to interface its electronic
security and life safety systems with the Building's systems so that Tenant will
be able to trigger the Building's (i) security alarms through its security
system, and (ii) life safety system alarms through its life safety system
provided that Tenant's Systems (and the interfacing of the same with the
Building's Systems) are compatible with, and do not adversely affect, the
Building's Systems.
27.11. Landlord shall maintain, paint and provide electric lighting
service, air-conditioning and heating, as appropriate, for all Common Areas of
the Building in the manner and to the extent appropriate for a First-Class
Office Building.
27.12. Landlord shall make available to Tenant one (1) listing in the
Building's computerized directory for each one thousand (1,000) rentable square
feet of the demised premises and Tenant shall have the right to have group and
alphabetical listings in the
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Building's computerized directory, as elected by Tenant. The initial programming
shall be without charge to Tenant. At least monthly, Landlord shall reprogram
the computerized directory to reflect such changes as Tenant shall, subject to
the limitations set forth in the first sentence of this Section 27.12, request
and Tenant shall pay to Landlord the Costs therefor. At the request of Tenant,
the directory listing shall, subject to the limitations set forth in the first
sentence of this Section 27.12, include any permitted subtenant and any of its
or their partners or employees whom the permitted subtenant requests be so
listed.
27.13. At all times Landlord shall provide and monitor a fire alarm system
for the Building complying with all applicable Legal Requirements into which the
smoke detectors, fire alarms, strobes, speakers, pull-stations and other related
equipment installed by Tenant and approved by Landlord within the demised
premises required by code compliance will be connected. The demised premises
will have the capacity to serve a minimum of thirty (30) speaker/strobe units,
provided, that such specified number of units are designed to be collected on a
loop, installed by Tenant at Tenant's cost, before connection to the base
Building systems. Each speaker will have a minimum power setting of one (1)
watt. The Building's fire alarm contractor shall connect Tenant's fire alarm
devices and program the Building fire alarm system to accept the same. Tenant
shall pay such contractor's charges for that work.
27.14. Landlord shall permit Tenant, subject to compliance with all
applicable provisions of the Lease, to connect into the Building's toilet
exhaust system to accept exhaust from the toilet exhaust systems for the toilets
in the demised premises. In addition, Landlord shall operate and maintain the
Building's toilet exhaust system so as to permit the same to accept such exhaust
from the aforesaid system but in no event shall Landlord be required to accept
such exhaust in excess of 2450 cfm.
27.15. Tenant hereby acknowledges that, although the existing steam riser
is not (and Landlord will not make the same) available for Tenant's use, should
Tenant hereafter be permitted to install a kitchen in the demised premises,
Landlord will, at Tenant's request and cost, install an additional steam riser
in the Building (subject to there being sufficient space in the Building's
shaftways to accommodate such installation and the agreement by the applicable
public utility to provide the additional required steam to the Building) so that
steam shall be available for Tenant's kitchen use purposes, and Tenant may
obtain such steam by tapping into the additional steam riser, at Tenant's sole
cost and expense, in locations to be reasonably designated by Landlord. Tenant
shall pay for the cost of the steam consumed by Tenant, as measured by
submeter(s) to be installed by Tenant at its sole cost and expense, at the rate
Landlord pays for such steam, together with Landlord's actual costs of causing
the submeter(s) to be read.
27.16. Provided the Landlord has not sublet or recaptured any portion of
the demised premises, Tenant shall have the right to request that Landlord
lock-out certain floors
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of the demised premises from being serviced by the passenger and freight
elevators and Landlord shall do so unless the same cannot be reasonably
accomplished. Tenant shall within thirty (30) days after rendition of a xxxx for
Landlord's Cost in complying with Tenant's request for lock-outs of floors,
reimburse Landlord's cost therefor.
27.17. Landlord will not be required to furnish any service not expressly
agreed to be provided by Landlord hereunder.
27.18. Tenant shall, within thirty (30) days after Landlord's demand
therefor, pay to Landlord as additional rent for overtime or above standard
Building services which Landlord is obligated to supply to Tenant, if any, one
hundred (100%) percent of the Cost.
ARTICLE 28.
TAX INCREASE PAYMENTS
28.01. For the purposes of this Article 28 and other provisions of this
Lease:
(a) The term "Taxes" shall mean (i) the real estate taxes,
assessments and special assessments (giving effect to all abatements, including,
without limitation, those received under the ICIP Law, as such term is
hereinafter defined, but including, without limitation, any increases as a
result of the diminution or expiration of any deferral or abatement in real
estate taxes in connection with the ICIP Law then in effect for the Building)
imposed upon, and payable by Landlord with respect to, the Tax Lots (as
hereinafter defined) by any federal, state, municipal or other governments or
governmental bodies or authorities, and whether or not any of the foregoing are
not final assessments or are the basis of any proceeding instituted or commenced
to contest the amount or validity of any of the same, and (ii) any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Tax Lots, which expenses shall be allocated to the Tax Year to
which such expenses relate. If at any time during the term of this Lease the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (x) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom or (y) any other such additional or
substitute tax, assessment, levy, impositions, fees or charges or the part
thereof so measured or based shall be deemed to be included within the term
"Taxes" for the purposes thereof. Anything contained herein to the contrary
notwithstanding, Taxes shall not be deemed to include (i) any taxes on
Landlord's income, (ii) franchise taxes, (iii) estate or inheritance taxes or
(iv) any similar taxes imposed on Landlord, unless such taxes are levied,
assessed or imposed in lieu of, or as a substitute for, or (if then generally
included in the determination
73
of real estate taxes by owners of First-Class Office Buildings) additions to,
the whole or any part of the taxes, levies, assessments or impositions which now
constitute Taxes. In addition, Taxes shall not be deemed to include any
interest, late fees or penalties imposed on Landlord for late payment of any
Taxes (provided that Tenant has made its corresponding Tax payment, if any,
hereunder in the time period required hereunder). Tax Lots shall mean the tax
lot or lots for the Building and Land.
(b) The term "Tax Year" shall mean the fiscal tax year for which
Taxes are levied by the City of New York, which, on the date hereof, assesses
real property tax on a fiscal year basis commencing on July 1 of each calendar
year and the following June 30.
(c) The term "Tenant's Proportionate Share" shall mean the quotient
(expressed as a percentage) obtained by (x) dividing the number of rentable
square feet in the demised premises based on Exhibit G hereof by (y) 2,184,552
based on Exhibit G hereof minus the number of rentable square feet contained in
the XXX Units, as such term is defined in the CSFB Lease. As of the Rent
Commencement Date, Tenant's Proportionate Share shall (assuming no change in the
number of rentable square feet contained in the XXX Units and in the demised
premises occurs between the date of execution of this Lease and the Rent
Commencement Date) be 7.19%.
(d) The term "Tax Statement" shall mean a written statement prepared
by Landlord or its agent, setting forth Landlord's computation of the sum
payable by Tenant under this Article 28 for a specified Tax Year.
28.02. If the real estate fiscal tax year of the City of New York shall be
changed during the term hereof, any Taxes for a real estate fiscal tax year, a
part of which is included within a particular Tax Year and a part of which is
not so included shall be apportioned on the basis of the number of days in the
real estate fiscal tax year included in the particular Tax Year for the purpose
of making the computations under Section 28.03.
28.03. Tenant shall, for each Tax Year occurring wholly or in part during
the period commencing on the date on which Tenant is obligated to commence the
payment of basic annual rent and ending on the stated expiration date of this
Lease, pay an amount (herein called "Tax Payment") equal to Tenant's
Proportionate Share of the Taxes for such Tax Year. At least thirty (30) days
prior to the due date of the payment of real estate taxes to the taxing
authority, Landlord shall render to Tenant a Tax Statement or Statements showing
the amount of the Tax Payment, which Tax Statement shall be accompanied by a
copy of the real estate tax xxxx (if theretofore received by Landlord). Tenant
shall pay to Landlord, in two (2) equal installments, in advance, on December
1st and June 1st of each year, the Tax Payment shown thereon. if Taxes are
required to be paid on any other date or dates than as presently required by the
governmental authority imposing the same, then the
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due date of the installments of the Tax Payment shall be correspondingly
accelerated or revised so that the Tax Payment (or the two (2) installments
thereof) is due thirty (30) days prior to the date the corresponding payment is
due to the governmental authority. If the Tax Year established by the applicable
governmental authority shall be changed, any Taxes for the Tax Year prior to
such change which are included within the new Tax Year and which were the
subject of a prior Tax Statement shall be apportioned for the purpose of
calculating the Tax Payment payable with respect to such new Tax Year. In the
event Tenant's Proportionate Share of Taxes for a Tax Year is unknown at the
commencement of such Tax Year, Landlord shall estimate the same, based on the
Taxes for the previous Tax Year, which amount shall be appropriately adjusted
when the actual amount of Tenant's Proportionate Share of Taxes for such Tax
Year becomes known. If it becomes necessary to adjust the regular payments
during a Tax Year, Landlord agrees to give Tenant not less than twenty (20) days
notice of such adjustment, which notice shall include appropriate copies of
documentation serving as the basis for such adjustment.
28.04. If Landlord shall receive a refund of the Taxes in respect of the
Tax Lots for any Tax Year for which Tenant has made its Tax Payments, Landlord
shall either pay to Tenant, or permit Tenant to credit against subsequent
payments of basic annual rent payable under this Lease, Tenant's Proportionate
Share of the net refund (after deducting from such total refund the costs and
expenses, including, but not limited to, appraisal, accounting and legal fees
incurred or expended in obtaining the same, to the extent that such costs and
expenses were not included in the Taxes for such Tax Years and including as part
of such refund, to the extent Landlord actually receives the same, interest
thereon); provided, however, such payment or credit to Tenant shall in no event
exceed Tenant's Tax Payment paid for such Tax Year. Such payment or credit shall
be made within sixty (60) days following receipt of such refund by Landlord.
28.05. If a Tax Year commences or ends before or after the commencement or
expiration or termination of the term of this Lease, the Tax Payment thereof
shall be pro-rated to correspond to that portion of such Tax Year occurring
within the term of this Lease.
28.06. (a) Nothing in the foregoing is intended to confer any right on
Tenant to file, or to require Landlord to file, a tax protest or commence or
prosecute any tax reduction or other similar proceeding if such protest or
proceeding would have any effect on the ICIP benefits (including the computation
thereof), other than the reduction in ICIP benefits which would consequently
result from a reduction in Taxes.
(b) Landlord represents that it has applied for the Real Property
Tax Exemption and Deferral created by Title II, Chapter 2, Part 3 of the
Administrative Code of the City of New York and has received a preliminary
certificate of eligibility under the ICIP Law (as hereinafter defined) entitling
Landlord to an abatement, deferral or reduction of the
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taxes for Building for a period of time. Landlord agrees that it shall timely
comply with the provisions of Executive Order Nos. 50(1980) and 108 (1986) and
the rules and regulations promulgated thereunder, as the same from time to time
be amended, and the requirements imposed by the New York City Industrial
Commercial Incentive Program and the regulations promulgated thereunder, as the
same may be amended, modified or supplemented (the "ICIP Law") to ensure that it
remains an eligible Recipient (as such term is defined under the ICIP Law) of
the benefits under the ICIP Law. Landlord shall take all actions and submit all
reports, annual filings or certificate of continuing use and records to the
Department of Finance, the Divisions of Labor Services and all other
governmental agencies and bureaus involved in the administration of the ICIP Law
and shall maintain all records reports required to evidence such compliance.
(c) Tenant shall supply information and comply with such reporting
requirements as Landlord shall advise Tenant are reasonably necessary to comply
with and/or obtain the benefits of the ICIP Law and regulations and submit all
reports, annual filings of certificate of continuing use and records to the
Department of Finance, the Division of Labor Services and all other governmental
agencies and business involved in the administration of the ICIP Law and shall
maintain all records and reports required to evidence such compliance, except
that no such cooperation with Landlord shall require Tenant to reveal
proprietary business information unrelated to the matters below or to modify or
restrict its hiring practices or operations in conducting its business in (as
opposed to the construction of) the demised premises unless required by the ICIP
Law, and Tenant shall:
(i) provide access to the demised premises by employees and
agents of the Department of Finance of the City of New York at all reasonable
times at the request of Landlord; and
(ii) report to Landlord upon request the number of workers
permanently engaged in employment in the demised premises, the nature of each
worker's employment and the residency of each worker.
(d) Tenant shall not be required to pay Taxes which become due
because of the failure by Landlord to comply with the ICIP Law, or otherwise
relieve or indemnify the Landlord from any personal liability arising under the
ICIP Law, except where imposition of such Taxes or liability is occasioned by
actions or non-actions of the Tenant in violation of this Lease. Landlord and
Tenant shall indemnify each other for any liability incurred by each as a result
of the other's failure to comply with the ICIP Law.
ARTICLE 29.
OPERATING EXPENSE INCREASE PAYMENTS
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29.01. For the purposes of this Article 29:
(a) The term "Operating Expenses" shall mean all expenses paid or
incurred (without duplication of an included item) by Landlord or on Landlord's
behalf (whether by the board of managers of the Condominium of which the demised
premises are a part, or otherwise in respect to the operation, ownership,
repair, safety, management, security and maintenance (including, without
limitation or duplication, capital expenditures for deferred maintenance
amortized on the basis provided in clause (x) of this Section 29.01(a)) of the
Building, Building equipment and Building Systems, sidewalks, curbs, plazas,
loading docks and other areas adjacent to the Building which are necessary or
appropriate for the operation of the Building as a First-Class Office Building,
including, without limitation, the cost, subject to the provisions of Section
29.09 hereof, of: (i) all charges (including all surcharges, taxes, fuel
adjustments, taxes regularly passed on to consumers by the public utility, and
other sums payable in respect thereof) for steam and electricity, furnished to
the Building, exclusive of any area demised to a tenant, together with any taxes
on such utilities; (ii) heating, air-conditioning and ventilation furnished to
the Building, including all leasable areas (it being expressly understood and
agreed that no cost shall be includable for the-operation of the
air-conditioning system serving any leasable areas of the Building for any
period in which Tenant, pursuant to Section 27.04 hereof, shall be being
provided (or should have been being provided) with such air-conditioning systems
by the tenant under the CSFB Lease and that at no time shall HVAC charges
attributable to the elevator lobby of a full floor tenant be included in
Operating Expenses); (iii) snow removal and rubbish removal for other than
leasable areas in the Building; (iv) janitorial and cleaning services to the
Building, including all leasable areas (it being expressly understood and agreed
that no cost shall be includable for janitorial and cleaning service provided
for or to any leasable area for any period that Landlord does not provide
janitorial and cleaning service for or to the demised premises) but, at all
times (i.e., even when Landlord is not providing cleaning or janitorial services
to the demised premises) janitorial and cleaning services to the Building
exclusive of any leasable area, such as, without limiting the generality of the
foregoing, cleaning of outside windows, facade of the Building, loading docks,
elevators and elevator lobbies and cabs (subject to the provisions of Section
29.09 hereof), lobbies at street and mezzanine levels and sidewalks, as well as
the normal repair and maintenance (including, without limitation, deferred
maintenance) of any and all of the foregoing shall be included in Operating
Expenses; (v) painting and decoration of the Building, exclusive of any leasable
areas and the elevator lobby of any full floor tenant of the Building; (vi)
repair and maintenance (including, without limitation, deferred maintenance) of
the Building's elevator, heating, ventilating and air-conditioning systems,
water risers and vertical sprinkler risers and all valving thereto, alarm and
life-safety systems, window washing equipment and any equipment used for the
protection and security of the Building or the tenants thereof and their
employees, licensees and invitees (except that no such cost shall be includable
for the air-conditioning system serving any leasable areas of the Building for
any period in which Landlord does not provide all or any portion of the demised
premises
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with air-conditioning services) and the air-conditioning system serving the
demised premises; provided, however, that nothing contained herein shall
preclude the inclusion in Operating Expenses of air-conditioning costs
attributable to the Common Areas of the Building; (vii) interior and exterior
landscaping; (viii) repair and maintenance (including, without limitation
capital expenditures for deferred maintenance amortized on the basis provided in
clause (x) of this Section 29.01(a)) of structural elements of the Building and
the Building's roof, facade and curtain walls and all Common Areas of the
Building and all loading docks; (ix) rental fees or repair costs of any
equipment used for any and all of the above-mentioned purposes or uses; (x)
amortization by Landlord, with interest on the unamortized amount, of the cost
of any capital improvement and/or equipment (a) required by applicable Legal
Requirements enacted on or after the Rent Commencement Date (and including
changes to or reinterpretations after the Rent Commencement Date of Legal
Requirements enacted prior to the Rent Commencement Date) or (b) designed to
result in a savings of, or reduction in, Operating Expenses, it being understood
and agreed that the amortization shall be done on a straight line basis over the
useful life of the applicable item (determined pursuant to generally accepted
accounting principles, consistently applied) and that the interest factor shall
be the per annum rate equal to the publicly announced in the City of New York
base lending rate of the then largest commercial bank doing business in the City
of New York; (xi) premiums for All Risks, property insurance and any other
insurance which Landlord may deem necessary or which is required by this Lease
or by the lessor under any ground lease or xxxxxxxxx or by the holder of any
Mortgage; (xii) supplies for the foregoing; (xiii) sales or use taxes on
supplies or services related to the foregoing; (xiv) wages, salaries and other
compensation or benefit of every nature or kind and all direct or indirect
expenses respecting employees of Landlord engaged in any of the foregoing or
providing any of the foregoing services or items, up to and including the level
of Building superintendent and/or manager, including, without limitation,
disability benefits, pensions, hospitalization, retirement plans, group
policies, vacation, holidays, sick days and personal days, expenses imposed on
Landlord pursuant to law or to any collective bargaining agreement with respect
to such employees, workers, compensation insurance and payroll, social security,
unemployment and other similar taxes with respect to such employees; (xv)
uniforms for such employees and the cleaning thereof; (xvi) the charges of any
independent contractor who does any of the work or provides any of the services
or items included in Operating Expenses; (xvii) professional and consulting
fees, including legal and accounting fees; (xviii) computer time, telephone,
bookkeeping and other Building office expenses; (xix) the annual fee paid or
payable for managing and/or operating the Building, or, if such service is
provided directly by Landlord, an annual amount that would otherwise have been
required to engage, and retain, the services of a first-class, highly reputable
managing and/or operating firm providing such services in First-Class Office
Buildings; (xx) all charges for water and sewer, whether measured by meter or
otherwise, but deducting therefrom the costs of providing water in excess of the
Building standard to tenants of the Building; (xxi) all security costs and
expenses for other than leasable areas of the Building; (xxii) all building
improvement district charges and other similar items, (xxiii) the amounts equal
to the premiums that would have been payable to
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procure or maintain any insurance with respect to which Landlord, pursuant to
Article 7 hereof, elected to act as self insurer and which would have been
includable in Operating Expenses had Landlord procured or maintained such
insurance, and (xxiv) any other expense or charge of any nature whatsoever,
whether or not herein mentioned, which, in accordance with sound real estate
accounting and real estate management principles generally accepted with respect
to the operation of First-Class Office Buildings, may be expensed or would be
construed as an Operating Expense and which are not, by the terms, provisions,
conditions and covenants of this Article 29, expressly excluded from Operating
Expenses.
Operating Expenses shall exclude or have deducted from them, as the
case may be, and as shall be appropriate: (i) all expenses incurred in leasing
or procuring tenants for the Building, including leasing commissions and
advertising expenses, and all legal, accounting and consultants, fees,
disbursements and expenses incurred in disputes with tenants or enforcement of
leases or entering into leases; (ii) the cost of any items reimbursable to
Landlord by insurance, warranties or otherwise other than pursuant to clauses
similar to this Article 29; (iii) costs for services rendered or performed
directly for the account of tenants at tenants, cost or for which a separate
charge is made; (iv) Taxes; (v) depreciation (provided, however, that such
exclusion of depreciation shall not affect the inclusion in Operating Expenses
of the amortized items required to be amortized pursuant to the provisions of
the first paragraph of this Section 29.01(a)); (vi) installments of principal
and interest and any other sum due and payable under any Mortgage; (vii) rent
and other charges due and payable under any ground lease or xxxxxxxxx; (viii)
the cost of installing, operating and maintaining any specialty service, such as
an observatory, broadcasting facilities, luncheon club, athletic or recreational
club; (ix) the cost of any repairs, alterations, additions, changes,
replacements and other items which are made in order to prepare for a new
tenant's occupancy; (x) the cost of any repair in accordance with Articles 8 and
9 of this Lease; (xi) any costs included in Operating Expenses representing an
amount paid to a party related to Landlord which is in excess of the amount
which would have been paid in the absence of such relationship; (xii) charges
for which Landlord is entitled to direct (as opposed to reimbursement through an
operating expense or similar provision) reimbursement from any tenant; (xiii)
capital replacements (except as specified above); (xiv) the cost of acquiring
art work for the Building, (xv) the cost of performing or repairing defects in,
Landlord's Work, (xvi) the incremental additional cost of providing services to
another tenant of the Building excess of the services which Landlord is
obligated to provide to Tenant under this Lease at Landlord's expense, (xvii)
lease payments for rented equipment, the cost of which equipment if purchased
would not be includable in Operating. Expenses; (xviii) income or franchise
taxes of Landlord, (xix) rent pursuant to any ground lease, (xx) cost of
electricity furnished to leasable areas, (xxi) advertising and promotion
expenses, (xxii) any takeover lease obligations or lease or sublease obligations
assumed by Landlord, (xxiii) financing or refinancing costs, (xxiv) costs of
removal, enclosure or encapsulation of asbestos or other Hazardous Material,
(xxv) costs and recoveries in connection with tort claims against Landlord,
(xxvi) costs incurred by Landlord to obtain the Certificate of occupancy
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pursuant to Article 12, (xxvii) the portion of employee wages, salaries, fringe
benefits attributable to time not spent in connection with the Building or for
items excludable from Operating Expenses (it being agreed that items such as
vacation time, sick days and such other time off included in the fringe benefits
package shall not be deemed to be "time not spent in connection with the
Building" but shall be apportioned in the same manner as wages and salaries,
(xxviii) expenses exclusively attributable to retail areas of the Building,
(xxix) expenses attributable to additions or enlargements to the Building, (xxx)
expenses attributable to the gross negligence or wilful misconduct of Landlord,
(xxxi) fines or penalties, interest or late fees imposed upon Landlord, (xxxii)
the cost of correcting matters involving Landlord's Work which do not comply
with Legal Requirements on the date the portions of the Building for which such
Landlord's Work has been completed, (xxxiii) amounts paid by Landlord to restore
any damage with respect to which Landlord elected to act as a self-insurer over
and above the amount of self insurance (or deductibles) which a reasonably
prudent owner of a First-Class Office Building would have maintained and (xxxiv)
charges, if any, payable to the board of managers of the Condominium, except to
the extent such charges are in payment of items which otherwise could be
includable in the definition of Operating Expenses.
In determining the amount of Operating Expenses for any Operating Year, if
less than all of the Building leasable area shall have been occupied by
tenant(s) at any time during any such Operating Year, Operating Expenses shall
be determined for such Operating Year to be an amount equal to the like expenses
which would normally be expected to be incurred had all such areas (to the
extent of ninety-five percent (95%) of the leasable area of the Building, as
shown on Exhibit G hereof, and excluding all Mechanical Space (as such term is
hereinafter defined), retail space and storage space) been occupied throughout
such Operating Year. The term "Mechanical Space" shall mean the 30,517 rentable
square feet of space, in the aggregate, located in portions of the (i) Concourse
Xxxxxx X-0, X-0 and B-4 of the Building, and (ii) 3rd and 29th floors of the
Building leased to the tenant under the CSFB Lease, as more particularly
described in the CSFB Lease.
For purposes of this Section 29.01, deferred maintenance shall mean
maintenance (i) which had Landlord not deferred the same, could have been
included in Operating Expenses during the term of the Lease and (ii) the
deferral of which is not inconsistent with the actions of a reasonably prudent
owner of a First-Class Office Building.
(b) The term "Operating Year" shall mean the calendar year in which
the Commencement Date first occurs and each succeeding calendar year thereafter.
(c) The term "Operating Statement" shall mean a written statement
prepared by Landlord or its agent, setting forth Landlord's computation of the
sum payable by Tenant under this Article 29 for a specified Operating Year.
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(d) The term "Tenant's Operating Proportionate Share" shall mean the
quotient (expressed as a percentage) obtained by (x) dividing the number of
rentable square feet in the demised premises based on Exhibit G hereof by (y)
2,125,395 based on Exhibit G hereof. As of the Rent Commencement Date, Tenant's
Operating Proportionate Share shall (assuming no change in the number of
rentable square feet contained in the demised premises occurs between the date
of execution of this Lease and the Rent Commencement Date) be 3.71%. Inasmuch as
Landlord may, pursuant to Sections 27.04(f), 27.02, and 27.05 be providing
air-conditioning service and janitorial and cleaning services and elevator
services to all or portions of the demised premises at times when Landlord is
not furnishing those services to the tenant under the CSFB Lease, Tenant's
Operating Proportionate Share of the components of Operating Expenses
attributable to the cost and expenses of providing such services (including the
costs for repair, maintenance and deferred maintenance of the systems and
equipment, needed or used to provide such services) shall be determined by
multiplying such costs and expenses times the quotient (expressed as a
percentage) obtained by dividing the number of rentable square feet of space
contained in the demised premises (based on Exhibit G hereof) being provided
with the applicable air-conditioning and/or janitorial and cleaning and/or
elevator services by (ii) the aggregate number of rentable square feet of space
in the Building to which the particular component of the applicable operating
Expense incurred or paid by Landlord in the providing of the applicable
air-conditioning and/or janitorial and cleaning and/or elevator services relate.
29.02. For each Operating Year Tenant shall pay to Landlord, as additional
rent for each such Operating Year, an amount (herein called the "Operating
Payment") equal to Tenant's Operating Proportionate Share of the Operating
Expenses for such Operating Year.
29.03. Landlord shall furnish to Tenant, prior to the commencement of each
Operating Year (except for the first Operating Year, which will be furnished as
soon as Landlord has been able to determine the same), a written statement
setting forth in reasonable detail Landlord's reasonable estimate of the
operating Payment for such Operating Year, based upon the method set forth in
Section 29.02 for computing the Operating Payment. Commencing on the Rent
Commencement Date, Tenant shall pay to Landlord on the first day of each month
during such Operating Year an amount equal to one-twelfth (1/12th) of Landlord's
estimate of the Operating Payment for such Operating Year (or the amount
necessary to pay the estimate in full in equal monthly installments prior to the
expiration of the then Operating Year). If, however, Landlord shall furnish any
such estimate for an Operating Year subsequent to the thirtieth (30th) day prior
to the commencement thereof, then (a) until the first day of the month in which
such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first
day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 29.03 in respect of the last month of the preceding
Operating Year; (b) promptly after such estimate is furnished to Tenant,
Landlord shall give notice to Tenant stating whether the installments of
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the Operating Payment previously made for the Operating Year were greater or
less than the installments of the Operating Payment to be made for such
Operating Year in accordance with such estimate, and (i) if there shall be a
deficiency, Tenant shall pay the amount thereof within thirty (30) days after
demand therefor, and (ii) if there shall have been an overpayment, Landlord
shall, within thirty (30) days of providing Tenant with such estimate, either
refund to Tenant the amount thereof or permit Tenant to credit the amount
thereof against the rent payable hereunder; and (c) on the first day of the
month commencing at least thirty (30) days subsequent to date on which such
estimate is furnished to Tenant, and monthly thereafter throughout the remainder
of such Operating Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12th) of the Operating Payment shown on such estimate. Landlord
may, not more than twice during each Operating Year, furnish to Tenant a revised
statement of Landlord's estimate of the Operating Payment for such Operating
Year, based upon the method set forth in Section 29.02 for computing the
Operating Payment; and in such case, the Operating Payment for such Operating
Year shall be adjusted and paid or refunded, as the case may be, substantially
in the same manner as provided in the preceding sentence.
29.04. Within one hundred twenty (120) days after the end of each
operating Year, Landlord shall furnish to Tenant an Operating Statement for such
Operating Year, based on the method set forth in Section 29.02 for computing the
Operating Payment and certified by a reputable independent certified public
accountant selected by Landlord, setting forth in reasonable detail the actual
Operating Expenses incurred by Landlord during such Operating Year. If the
Operating Statement shall show that the sums paid by Tenant under Section 29.03
exceeded the Operating Payment to be paid by Tenant for such Operating Year,
Landlord shall promptly either refund to Tenant the amount of such excess or
permit Tenant to credit the amount of such excess against subsequent payments of
rent or additional rent payable under this Lease; and if the Operating Statement
for such Operating Year shall show that the sums so paid by Tenant were less
than the Operating Payment to be paid by Tenant for such Operating Year, Tenant
shall pay the amount of such deficiency within thirty (30) days after demand
therefor. If the Operating Statement shall show that the estimated sums
theretofore estimated by Landlord and paid by Tenant for such operating Year
exceeded the Operating Payment for such Operating Year by more than ten (10%)
percent, Landlord shall pay to Tenant interest on the excess over ten (10%)
percent at the Interest Rate from the end of the applicable Operating Year to
which the overpayment relates to the date such overpayment is refunded or
credited.
29.05. Each such Operating Statement given by Landlord pursuant to Section
29.04 shall be conclusive and binding upon Tenant (i) unless within three (3)
months after the receipt of the Operating Statement for the succeeding Operating
Year Tenant shall notify Landlord that it disputes the correctness of the
Operating Statement, specifying the particular respects in which the Operating
Statement is claimed to be incorrect, and (ii) if such disputes shall not have
been settled by agreement, either party may submit the dispute to the Supreme
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Court of the County of New York for determination under Section 3031 of C.P.L.R.
(The New York Simplified Procedure for Determination of Disputes), within six
(6) months after receipt of such succeeding Operating Statement, and pending the
determination of such dispute by agreement or judicial determination as
aforesaid, Tenant shall within thirty (30) days after the receipt of such
operating Statement pay additional rent in accordance with Landlord's statement,
without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith pay to Tenant the amount of Tenant's
overpayment of rents resulting from compliance with Landlord's Operating
Statement and interest, if applicable, in accordance with Section 29.04 hereof.
29.06. If an Operating Year commences before the Rent Commencement Date or
ends after the expiration or termination of this Lease, the additional rent in
respect thereof payable under this Article shall be appropriately prorated.
29.07. (a) The failure of Landlord to render an Operating Statement for
any Operating Year shall not prejudice Landlord's right, or relieve Landlord of
the obligation, to thereafter render such Operating Statement or relieve or
release Tenant from any obligation to pay Tenant's Operating Proportionate Share
of Operating Expenses for any Operating Year, but, if Landlord shall fail to
render an Operating Statement for any year by June 30 of the succeeding calendar
year, Tenant may cease to pay, until such Operating Statement is rendered,
estimated installments of Tenant's Operating Payment. Further, Landlord shall be
precluded from adjusting any Operating Statement to increase the costs included
within Tenant's Operating Proportionate Share of Operating Expenses subsequent
to the date (the "Cut-Off Date") that is thirty-six (36) months subsequent to
the expiration of the Operating Year to which the applicable Operating Statement
relates, but nothing shall preclude or prevent Landlord from furnishing Tenant
with corrections or adjustments to any Operating Statement for any applicable
Operating Year prior to the applicable Cut-Off Date.
(b) The provisions of this Article 29 shall survive the expiration
or earlier termination of this Lease as to all additional rent due Landlord or
credit owed Tenant up to the date thereof, including all disputed items as well
as the additional rent due for the last year, or portion thereof, falling within
the term of this Lease. Within one hundred fifty (150) days following such
expiration or earlier termination, Landlord shall render to Tenant a preliminary
uncertified Operating Statement, and Landlord and Tenant shall, subject to
year-end adjustments, preliminarily adjust the amount due Landlord or Tenant, as
the case may be, for such last year or portion thereof, subject to year-end
adjustments, and the party owing any portion of the same to the other shall
promptly pay the same. Landlord shall issue a final Operating Statement for such
last year or portion thereof on or before April 30 of the succeeding calendar
year, and all amounts due Landlord or Tenant based thereon shall be adjusted
between the parties.
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29.08. Tenant, upon reasonable notice, may (but only with its authorized
employees or with a firm of reputable independent certified public accountants
selected by Tenant) elect to examine such of Landlord's books and records with
respect to the applicable Operating Statement (collectively, "Records") as are
directly relevant (but not any information as to any payments made or payable by
any other tenant of the Building, which information Landlord may delete or
prevent Tenant from inspecting but Landlord shall have the accountant certify
the reimbursements payable by tenants and reflected in such Operating
Statements) to any disputed amount included in the Operating Statement in
question. In making such examination, Tenant shall, and shall cause its
officers, employees and accountants to, keep confidential any and all
information contained in the Records.
29.09. Notwithstanding Tenant's obligation to pay Operating Payments,
Tenant shall be obligated to pay Landlord, within thirty (30) days of Landlord's
demand therefor accompanied by an invoice in reasonable detail, one hundred
(100%) percent of all costs and expenses incurred or expended by Landlord (on
the same basis as is provided for in the determination of Operating Expenses) in
providing any non-overtime air-conditioning and/or elevator service to Tenant
(to the extent such item may reasonably be separately determined) and any cost
with respect the category of the item so billed to Tenant on a one hundred
(100%) percent basis shall not be included in Operating Expenses for the
applicable period involved (e.g. during such time as the tenant under the CSFB
Lease shall be entitled to the Dedicated Elevators, Tenant is using one or more
of the Dedicated Elevators and Landlord is not obligated to supply elevator
service to Tenant, the cost of electricity and cleaning for all Building
elevators shall be excluded from Operating Expenses). To the extent such item
may not reasonably be separately determined, Landlord shall xxxx Tenant for
Tenant's proportionate share thereof which proportionate share, in respect of
(i) passenger elevators, shall mean a fraction, the numerator of which shall be
the number of passenger elevators in the bank of elevators serving the demised
premises and the denominator of which is the total number of passenger elevators
in the Building, (ii) freight elevators, shall mean a fraction, the numerator of
which shall be the number of freight elevators serving the Building not
dedicated exclusively to any tenant and the denominator of which shall be the
number of freight elevators in the Building, and (iii) all other services, shall
mean a fraction, the numerator of which shall be the number of rentable square
feet of space contained in the demised premises and the denominator of which
shall be the aggregate number of rentable square feet of space to which the
applicable xxxx, item or cost relates.
ARTICLE 30.
ELECTRIC ENERGY
30.01. Prior to the Rent Commencement Date, Landlord shall, at no charge
to Tenant, supply construction electricity to Tenant. Tenant shall at all times
comply with the
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rules, regulations, terms and conditions applicable to service, equipment,
wiring and requirements of the public utility supplying electricity to the
Building. Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric service furnished to the demised
premises by reason of any requirement, act or omission of the utility serving
the Building or for any other reason (including, without limitation, Tenant's
failure to pay to the tenant under the CSFB Lease the cost of such services
furnished to Tenant) whether electricity is provided by public or private
utility or by any emergency electricity generation system owned and operated by
Landlord.
30.02. (a) Landlord shall, from and after the Rent Commencement Date,
furnish to Tenant electricity for light and power to the demised premises (but
not in excess of six (6) xxxxx per usable square foot (exclusive of base
Building systems), on a demand load basis, based on the usable square footage to
be calculated pursuant to the method specified in Exhibit G-1 hereof) and
Landlord shall, from and after the Provision Date, pay for and provide the
electricity needed to operate the elevators serving the demised premises the
cost of which shall be included in Operating Expenses, and Tenant shall pay to
Landlord, in consideration of the furnishing of such light and power service to
the demised premises, during the term of this Lease, an amount (the "Electricity
Additional Charge") equal to (x) the amount Landlord actually pays to the
utility company to provide electricity to the demised premises, or the
applicable portion thereof, for light and power including all applicable
surcharges, demand charges, time-of-day charges, energy charges, fuel adjustment
charges, rate adjustment charges, taxes and other sums payable in respect
thereof (as any or all of the foregoing may be reduced by any discount available
through the New York City Public Utility Service or Consolidated Edison due to
the New York City Industrial Development Agency benefits available to Tenant)
based on Tenant's demand and/or consumption of electricity (and/or any other
method of quantifying Tenant's use of or demand for electricity as set forth in
the utility company's tariff) as registered on a meter or submeter (installed by
Landlord at its sole cost and expense) for purposes of measuring such demand,
consumption and/or other method of quantifying Tenant's use of or demand for
electricity (it being agreed that such meter or submeter shall measure demand
and consumption, and off-peak and on-peak use, in either case to the extent such
factors are relevant in making the determination of Landlord's cost) plus (y) an
amount equal to the out-of-pocket costs and expenses incurred by Landlord in
connection with reading such meters and preparing the bills therefor. Tenant,
from time to time, shall have the right to review Landlord's meter readings, and
Landlord's calculation of the Electricity Additional Charge, at reasonable times
and on reasonable prior notice, by giving notice thereof to Landlord on or prior
to the ninetieth (90th) day after the date when Landlord gives Tenant a xxxx or
statement for the Electricity Additional Charge. Landlord shall have all rights
and remedies available to Landlord under this Lease, at law or in equity for the
failure by Tenant to pay
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the Electricity Additional Charge as are available to Landlord for the failure
by Tenant to pay basic annual rent.
(b) Where more than one meter measures the electricity supplied by
Landlord to the demised premises, the electricity rendered through each meter
shall (together with the electricity rendered through each meter servicing the
tenant under the CS Lease) be aggregated and computed and billed in accordance
with the provisions hereinabove set forth. Bills for the Electricity Additional
Charge shall be rendered to Tenant at such time as Landlord may elect, and
Tenant shall pay the amount shown thereon to Landlord within thirty (30) days
after receipt of such xxxx. Tenant expressly acknowledges that in connection
with the installation of the meters or submeters, the electricity being supplied
to the demised premises may be temporarily interrupted. Landlord shall use
reasonable efforts to minimize interference with the conduct of Tenant's
business in connection with such installation and Landlord shall, if necessary
to minimize such interference, perform the same outside of Business Hours (in
which event the incremental additional cost of performing the same outside of
Business Hours over the cost of performing the same during Business Hours will
be shared equally by Landlord and Tenant). Notwithstanding the foregoing or
anything to the contrary contained herein, Landlord shall install sufficient
meters or submeters to service the demised premises on or before the Rent
Commencement Date.
30.03. Intentionally Deleted.
30.04. If, during the period Landlord is furnishing electricity to the
demised premises, at any time Tenant shall require additional electrical
capacity for the conduct of its business, Tenant shall request such additional
electrical capacity and submit to Landlord a listing of proposed aggregate
loads. Landlord shall evaluate the proposed loads and check actual peak load on
the feeders serving the demised premises (via demand readings on the appropriate
submeters) to determine additional electrical capacity is required above the
capacity required to be supplied by Landlord pursuant to this Lease. If such
additional capacity is not required, Landlord shall promptly inform Tenant
thereof. If additional capacity is required, and if Landlord can obtain the same
without detriment to other current or future tenants or occupants of the
Building, or to Landlord, then Landlord shall take such action at Tenant's sole
cost and expense as shall be reasonably required in order to provide such
additional electrical capacity to the demised premises, including, without
limitation, the installation of additional risers and the application to the
public utility company supplying electricity to the Building for the requested
additional electrical capacity to be provided to the Building. Tenant shall
cooperate with Landlord in all respects, at Tenant's expense, in connection with
any such application, including, without limitation, providing all necessary
information to demonstrate to such public utility company the necessity for such
additional capacity.
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30.05. Landlord agrees that it shall not look to Tenant for any
installation charges relative to Consolidated Edison's installation of existing
vaults at the Building.
ARTICLE 31.
COMMENCEMENT OF THE TERM
31.01. If Landlord is unable to deliver possession of all or any portion
of the demised premises for any reason, Landlord shall not be subject to any
liability for failure to give possession and the validity of this Lease shall
not be impaired under such circumstances, nor shall the same be construed in any
way to extend the term of this Lease. If permission is given to Tenant to enter
into the possession of all or any portion of the demised premises prior to the
date specified as the commencement of the term of this Lease, Tenant covenants
and agrees that such occupancy shall be deemed to be under all the covenants,
agreements, terms, provisions and conditions of this Lease, except as to the
covenant to pay rent. The provisions of this Section are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law.
31.02. The parties hereto shall, at either party's request, within thirty
(30) days after the Commencement Date and the Rent Commencement Date, execute a
written agreement confirming the date of the commencement of the term of this
Lease and the Rent Commencement Date. In no event shall Tenant or Landlord
record this Lease or a copy hereof. However, at the request of either party
hereto, each of the parties hereto shall promptly execute in recordable form and
deliver to the other a memorandum of the Lease sufficient for recording. Such
memorandum shall not, and shall not be deemed to, change or otherwise affect any
obligations or provisions of this Lease.
31.03. (a) Landlord and Tenant will, within seven (7) days of Landlord's
execution of this Lease, attempt to agree on a list (the "Punch List") of items
(the "Punch List Items") relative to any items of work which remain to be
completed by Landlord as of the date of the preparation of such Punch List,
which Punch List shall be prepared using the same procedures used in the
preparation of a similar list relative to the CSFB Lease and the CS Lease. All
Punch List items shall be completed by Landlord, at Landlord's expense, with
reasonable promptness after Landlord and Tenant have agreed on the Punch List
Items.
(b) Landlord and Tenant will, within seven (7) days after written
request by Tenant, attempt to agree on a revised Punch List relative to the
demised premises incorporating any items of work which remain to be completed by
Landlord as of the date of the preparation of such revised Punch List and all
such items shall be deemed additional "Punch List Items" for the purposes of
this Section. The revised Punch List shall be prepared using the same procedures
used in the preparation of the initial Punch List and of a
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similar list relative to the CSFB Lease and the CS Lease. All additional Punch
List Items shall be completed by Landlord, at Landlord's expense, with
reasonable promptness after Landlord and Tenant have agreed on the additional
Punch List Items.
ARTICLE 32.
TENANT'S WORK, ETC.
32.01. It is understood and agreed that, except as provided otherwise in
Section 32.02, Landlord shall have no obligation to do any work in order to
prepare the demised premises for Tenant's use other than Landlord, at its own
cost and expense, hereby agrees to do the (i) Base Building Upgrade Work (as
such work is described in Exhibit E attached hereto and made a part hereof) and
(ii) to the same extent the same applies to the demised premises, the F Bank
Elevator Work (as defined in the CS Lease) (all of which work is herein referred
to as "Landlord's Work") and, that Tenant will (other than for Landlord's Work)
be responsible for the performance (in accordance with the terms, provisions,
conditions and covenants of Article 3 hereof and this Article 32) of all
construction, alterations or installations necessary to make the demised
premises ready for its use (all of which work is herein referred to as "Tenant's
Initial Improvements"). Landlord hereby agrees to pay to Tenant up to Three
Million One Hundred Fifty-Six Thousand Six Hundred Eighty Dollars
($3,156,680.00) (based upon $40.00 per rentable square foot) or such lesser
amount as shall be requested by Tenant which will be utilized solely toward the
hard and reasonable soft costs (i.e., architectural and design fees) in
connection with Tenant's Initial Improvements ("Tenant's Allowance"). Such
payment shall be made in installments from time to time upon receipt by Landlord
of receipted invoices or other evidence that such costs have been incurred and
paid by Tenant which, with respect to the first of such payment, is to be made
within thirty (30) days after the first submission by Tenant and which, with
respect to each subsequent payment, is to be made within thirty (30) days after
each subsequent submission by Tenant, provided, that no such submission may be
made by Tenant later than 183 days following the first such submission. Tenant
shall pay for any and all costs of Tenant's Initial Improvements in excess of
the amount that Landlord is obligated to pay pursuant to the preceding sentence.
Tenant hereby acknowledges its acceptance and delivery of the demised premises.
Tenant acknowledges that it is familiar with the condition of the demised
premises and has undertaken such inspections of the Building and the demised
premises as it has deemed necessary. Further, Landlord shall, within five (5)
business days after Landlord's receipt and approval (in those instances where
approval is required hereunder) of the Plans for Tenant's Initial Improvements
furnish Tenant with an ACP-5 certification of a licensed asbestos investigator
appropriately completed to indicate the demised premises is not an asbestos
project together with the report of Landlord's asbestos investigator as to the
presence of any asbestos in the demised premises and the shaftways of the
Building. Landlord and Tenant shall carry out Landlord's Work
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and Tenant's Initial Improvements in a manner so as not to disturb or otherwise
open up the encapsulated asbestos present at the Building. In the event Tenant
shall require any ACP-5 certifications beyond the floor-by-floor certifications
Landlord is required to provide pursuant to the preceding sentence of this
Section 32.01, Landlord shall, upon request of Tenant and upon delivery by
Tenant to Landlord of the applicable plans, provide such additional ACP-5
certifications with respect to such plans and deliver to Tenant the further
ACP-5 certificate(s) within five (5) business days of receipt by Landlord from
Tenant of such applicable plans. Tenant shall bear the cost of any such
additional certifications. To the extent Landlord is required by Legal
Requirements to deliver the same to the applicable governmental authorities,
Landlord shall also make available to Tenant solely for inspection on reasonable
advance notice Landlord's records concerning the location, quantity and status
of such asbestos.
32.02. Intentionally Deleted
32.03. Tenant's Initial Improvements and Material Improvements, if any,
(Tenant's Initial Improvements and all of such Material Improvements are
hereinafter referred to as "Work"), Tenant must comply with the applicable terms
and provisions of this Lease, including, without limitation, the terms and
provisions of Article 3 and any Work relating to Building Systems shall be done
only by contractors and subcontractors chosen by Tenant from a list submitted by
Landlord pursuant to, and in compliance with, the terms, conditions and
provisions of Article 3 of this Lease. Further, Tenant acknowledges that there
shall be no liability on the part of Landlord, and Tenant hereby expressly
waives any liability or claim of damages against Landlord, as a result of,
arising out of, or in any way connected with, Landlord's furnishing Tenant with,
on Tenant's selection from any list of general contractors or subcontractors
that Landlord has, under the terms of this Lease, agreed, or is required, to
furnish Tenant. Landlord, at its option, may (by itself or, at Landlord's
option, through a designee) observe and inspect the Work with a view towards the
avoidance or prevention of potential breaches of the rules and regulations
promulgated by Landlord in accordance with Section 3.09 or Article 22 hereof
with respect to construction undertaken in the Building and such monitoring
shall not, or be deemed to, impose any obligations on Landlord (or its designee
performing such observation and inspection) as a general contractor, supervising
architect or job superintendent provided that such observation or inspection
shall not confer on "the party doing such observing or inspection any rights
relative to the performance of such Work. It is further understood and agreed
that Landlord and/or its designee shall have no obligations or responsibilities
with respect to the completion of the Work, for any defects (latent or
otherwise) therein or thereto or to the quality of workmanship thereof.
32.04. If Tenant shall be delayed in the substantial completion of
Tenant's Initial Improvements due to the acts or omissions of Landlord
(including, without limitation. the failure by Landlord to provide the services
Landlord has agreed to provide pursuant to
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this Lease during Tenant's performance of Tenant's Initial Improvements), then
the Rent Commencement Date shall be deferred one (1) day for each day that
Tenant is so actually delayed in the substantial completion of Tenant's Initial
Improvements in such space as a result of Landlord's acts or omissions.
Notwithstanding the foregoing, with respect to any event giving rise to such a
delay, the delay shall not be deemed to have occurred earlier than seven (7)
business days prior to the date on which Tenant serves Landlord with notice of
the occurrence of such event, and no such delay occurring prior to such seven
(7) business day period shall extend the Rent Commencement Date as provided
above.
32.05. (a) Tenant shall, as an appurtenance to the demised premises and
without any additional rent or charge therefor, have from and after the date
hereof the exclusive right to construct (at its sole cost and expense and using
a pathway reasonably acceptable to both Landlord and Tenant), an access and use
shaftway capable of accommodating up to 8 four inch conduits connecting the
intermediate distribution frame (IDF) rooms on the 13th floor with those on the
11th floor on the east side and 15 four inch conduits on the west side. The
location of such pathway (i) shall be reasonably acceptable to both Landlord and
Tenant and (ii) shall be subject to confirmation that the installation of
shaftways by Tenant in the designated space shall not require modification of
existing structural steel or material relocation of Base Building installations.
In the event that such modifications would be required, Landlord shall provide
other or additional suitable space reasonably acceptable to Tenant capable of
accommodating the aforesaid conduits and requiring no structural steel
modifications or material relocation of Base Building installations or, if no
such space is available, Landlord shall pay the reasonable cost of the
structural steel or Base Building modifications reasonably required to permit
such installation by Tenant. Landlord shall, at its expense, insure that all
space designated for use as shaftways by Tenant in accordance herewith shall be
rendered free of all asbestos prior to the commencement of any work by Tenant in
such space.
(b) Landlord shall, at Tenant's expense, prior to the Rent
Commencement Date, extend Landlord's base building air conditioning exhaust
system (i.e., the "night purge system") to the demised premises in the manner
done with respect to the premises demised under the CS Lease and connect, or
permit Tenant to connect, the air conditioning system now or hereafter servicing
the demised premises, to said night purge system.
(c) Landlord agrees to reasonably cooperate with Tenant with respect
to any beam cuts or penetrations that Tenant reasonably requires with respect to
Tenant's Initial Improvements to be performed in the demised premises in a
manner consistent with the practice of the parties in respect of beam cuts and
penetrations in the space leased by the tenants under the CSFB Lease and the CS
Lease. Landlord shall not be deemed to be acting unreasonably if any particular
beam cut or penetration is not allowed by Landlord in good faith reliance upon
the good faith professional advice of Landlord's structural engineer. Landlord
shall allow existing Base Building or 13th floor tenant systems elements, such
as
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conduit or piping, to be reasonably relocated to allow compliance with Tenant
ceiling height and design requirements; provided, however, Tenant agrees, at
Landlord's request, to make reasonable modifications to design plans and
specifications if such modifications would obviate a need to relocate components
of the aforementioned systems and would have a negligible adverse impact on the
design and design objectives of, cost to, and completion schedule of Tenant.
ARTICLE 33.
INTENTIONALLY DELETED
ARTICLE 34.
INTENTIONALLY DELETED
ARTICLE 35.
NAME OF BUILDING
35.01. Landlord shall, except as provided otherwise in Section 35.02
hereof, have the full right at any time to name and change the name of the
Building and to change the designated address of the Building, provided,
however, that if Landlord names the Building in the name of a tenant of the
Building (other than Tenant), such other tenant must then be leasing (directly
or under subleases) at least five hundred thousand (500,000) square feet of
space in the Building.
35.02. Nothing contained in this Article 35 or anywhere else in this Lease
shall prevent or preclude Landlord from marketing the Building as the "11
Madison Avenue Building" or some other derivative making use of 00 Xxxxxxx
Xxxxxx as the address of the Building.
ARTICLE 36.
INVALIDITY OF ANY PROVISION
36.01. If any term, covenant, condition or provision of this Lease or the
application thereof to any circumstance or to any person, firm or corporation
shall be held invalid or unenforceable to any extent, the remaining terms,
covenants, conditions or
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provisions of this Lease, or the application thereof to any circumstances or to
any person, firm or corporation other than those as to which any term, covenant,
condition or provision is held invalid or unenforceable, shall not be affected
thereby and each remaining term, covenant, condition and provision of this Lease
shall be valid and shall be enforceable to the fullest extent permitted by law.
ARTICLE 37.
CAPTIONS
37.01. The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this Lease or
the intent of any provision thereof.
ARTICLE 38.
ESTOPPEL CERTIFICATE
38.01. Landlord and Tenant shall, without charge, at any time and from
time to time, within ten (10) business days after request by the other party,
deliver a written instrument to the requesting party or any other person, firm
or corporation specified by the requesting party, duly executed and
acknowledged, certifying, as applicable:
(a) that this Lease is unmodified and in full force and effect or,
if there has been any modification, that the same is in full force and
effect as modified and stating any such modification;
(b) whether or not, to the knowledge of the certifying party, there
are then existing any setoffs or defenses against the enforcement of any
of the agreements, terms, provisions, covenants, or conditions of this
Lease and any modification thereof upon the part of the certifying party
to be performed or complied with, and, if so, specifying in reasonable
detail the specific facts, aspects of, circumstances or basis of the same;
(c) the dates to which the basic annual rent, additional rent and
other charges hereunder have been paid; and
(d) whether the term of this Lease has commenced and rent become
payable thereunder, and whether Tenant has accepted possession of the
demised premises.
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If Tenant should fail to deliver the requested estoppel certificate within the
foregoing ten (10) business day period, Landlord may serve a second notice on
Tenant specifying that Tenant's failure to deliver the same within ten (10)
business days of Tenant's receipt of that notice shall, at Landlord's option,
be, and be deemed, an Event of Default under this Lease and any failure by
Tenant to deliver the same within such ten (10) business day period shall, at
Landlord's option, be deemed to be an Event of Default hereunder.
38.02. Tenant agrees that it will pay no rent under this Lease more than
one (1) month in advance of its due date.
ARTICLE 39.
MORTGAGE RIGHTS
39.01. Tenant agrees that in the event of any act or omission by Landlord
which would give Tenant the right under this Lease to terminate this Lease or to
claim a partial or total eviction, Tenant shall not exercise such right (i)
until Tenant has given written notice of such act or omission to the holder of
the Mortgages, overleases and ground leases whose name and address has been
supplied to Tenant and which continue in existence and (ii) until a period of
thirty (30) days beyond the time available to Landlord under this Lease in which
to cure the breach or default by Landlord has elapsed. The holder of any
Mortgage, xxxxxxxxx and ground lease shall have no obligation to cure (and shall
have no liability or obligation for not curing) any breach or default or default
by Landlord, except to the extent that any such holder agrees to undertake
otherwise in writing. In addition, as to any breach or default by Landlord the
cure of which requires possession and control of the Building, provided only
that the holder of such Mortgage, xxxxxxxxx or ground lease undertakes to Tenant
by written notice to Tenant within thirty (30) days after receipt of Tenant's
notice to exercise reasonable efforts to cure or cause to be cured by a receiver
such breach or default within the period permitted by this paragraph, such
holder's cure period shall continue for such additional time as may reasonably
be required to either (a) obtain possession and control of the Building and
thereafter cure the breach or default with reasonable diligence and continuity
or (b) obtain the appointment of a receiver and give such receiver a reasonable
period of time in which to cure the default.
39.02. The provisions of Section 39.01 hereof shall be subject to the
provisions of any subordination, non-disturbance and attornment agreement which
may be entered into, and the provisions of such agreement shall prevail in the
event of any conflict.
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ARTICLE 40.
BROKER
40.01. Landlord and Tenant represent and warrant to each other that the
only agents or brokers with whom each has dealt in connection with this Lease
and/or the demised premises and/or the Building are Insignia/Xxxxxx X. Xxxxxx
Company, Inc. ("ESG") and Xxxxxxx & Wakefield, Inc. ("C&W"). Landlord agrees, in
accordance with the terms of a separate written agreement with each of them, to
pay the commissions, if any, due ESG and C&W in connection with this Lease.
Landlord and Tenant each covenant and agree to pay, indemnify and hold the other
harmless from and against any and all claims for fees, commissions and other
compensation made by any agent or agents other than ESG and C&W based on any
dealings between Landlord or Tenant and to which the applicable parry is
indemnifying the other, as the case may be, together with all costs and expenses
incurred by Landlord or Tenant in resisting such claims (including, without
limitation, reasonable attorneys, fees). The obligations of Landlord and Tenant
under this Article 40 shall survive the expiration or termination of this Lease.
ARTICLE 41.
RENEWAL OPTIONS
41.01. (a) Provided that (i) the Lease has not been earlier terminated on
the basis provided in Article 43 hereof, (ii) no Monetary Default exists at the
time of the exercise of the within applicable option and (iii) Tenant is not
otherwise in default hereunder (subsequent to any required notice and the
expiration of any applicable cure period) at the time of the exercise of the
within applicable options, Tenant shall have the right to extend the term of
this Lease for three (3) successive extension periods of five (5) years each
(hereinafter referred to individually as an "Extension Term" and collectively as
the "Extension Terms"), the first of which periods (hereinafter referred to an
the "First Extension Term") shall commence on the day following the last day of
the initial lease term (provided the initial lease term shall not have been
theretofore terminated), the second of which periods (hereinafter referred to as
the "Second Extension Term") shall commence on the day following the last day of
the First Extension Term (provided the First Extension Term shall not have been
theretofore terminated) and the third of which periods (hereinafter referred to
as the "Third Extension Term") shall commence on the day following the last day
of the Second Extension Term (provided the Second Extension Term shall not have
been theretofore terminated). The within described options shall be exercisable
only in the following manner:
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(b) Tenant shall, no later than twenty-four (24) months, prior to
the last day of the (i) initial term of this Lease, in the case of the First
Extension Term, (ii) First Extension Term, in the case of the Second Extension
Term and (iii) Second Extension Term, in the case of the Third Extension Term,
give to Landlord written notice, pursuant to and in accordance with the terms of
Article 26 hereof, of Tenant's election to extend this Lease on the covenants,
terms, provisions, agreements and conditions as hereinafter provided in Section
41.02. In the event of the failure of Tenant to give notice in accordance
herewith, Tenant's right to extend shall be conclusively deemed to have been
waived and the term shall not be extended beyond the then established expiration
date provided for under this Lease. At the request of either party following the
exercise of an appropriate option to extend, both parties agree to execute a
confirmatory agreement confirming the extension and the newly extended
expiration date. Following the exercise of the option to extend for the First
Extension Term, there shall be no further rights on the part of Tenant to
further extend this Lease other than for the Second Extension Term and Third
Extension Term. Following the exercise of the option to extend for the Second
Extension Term, there shall be no further rights on the part of Tenant to
further extend this Lease other than for the Third Extension Term. Following the
exercise of the option to extend for the Third Extension Term, there shall be no
further right on the part of Tenant to further extend this Lease. The parties
agree that the limitations upon the exercise by Tenant of each of the options to
extend shall be deemed of the essence.
41.02. Each of the Extension Terms shall be on the same covenants, terms,
provisions and conditions as the initial term of this Lease (other than
provisions relating to the performance of Landlord's Work or Tenant's Initial
Improvements and provisions relating to Tenant's right to occupy the demised
premises free of basic annual rent or additional rent and without any
construction allowances or credits) except that (i) there shall be no right to
renew this Lease (a) beyond the Second Extension Term and Third Extension Term
in the case of the First Extension Term, (b) beyond the Third Extension Term in
the case of the Second Extension Term or (c) in the Third Extension Term and
(ii) the basic annual rent for each Lease Year in the applicable Extension Term
shall be an amount equal to the "fair market basic annual rent," (as hereinafter
defined), of the demised premises for the applicable Computation Period, as of
the first day of the applicable Extension Term as determined by agreement of the
parties or by decision of the referee in the manner as specified in Article 42
hereof.
41.03. Notwithstanding anything hereinbefore contained to the contrary,
"fair market basic annual rent" shall be determined in accordance with the
procedures set forth in Article 42 and shall mean the basic annual rental that a
tenant would pay for the direct initial (i.e., non-renewal) lease of the
premises that is the subject of such a determination under this Article 41 (the
"Applicable Premises"), taking into account (and disregarding, as applicable)
the factors described in this Section 41.03 and Section 41.04 hereof, and
assuming, subject to this Section 41.03 and Section 42.01 hereof, that the
Applicable Premises were being
95
hypothetically rented on the open market to a third party in its then "as is"
condition (i.e., without any further Landlord's work, rent concessions or
construction or other allowance) on a direct basis.
41.04. Each appraiser selected by Landlord or Tenant and any referee
selected pursuant to Section 42.02 of this Lease are hereby directed to include
the following (as well as any other factors either of such appraisers or the
referee deems relevant) criteria in their respective determinations of fair
market basic annual rent: (i) the unique physical characteristics of the
Building (other than those installed by or on behalf of, or paid for, by
Tenant), (ii) the amount of power available to the Building and to Tenant, (iii)
the signage and name of the Building, (iv) the size and ceiling heights of the
trading floors, (v) the then "as is" condition of the Applicable Premises, (vi)
the size of the Building and Applicable Premises, (vii) access, location and all
other factors unique to the Building and (viii) the services to be provided by
Landlord to Tenant and the costs thereof and those services which Tenant
provides for itself, as well as those items that Tenant is, by the terms of this
Lease, required to pay directly to the provider of such services or to reimburse
Landlord, including, without limitation, Taxes and Operating Expenses. In no
event, however, shall any appraiser selected by Landlord or Tenant, or any
referee selected pursuant to Section 42.02 of this Lease, consider or make any
increase or decrease in the fair market basic annual rent for the Applicable
Premises in connection with any of the following factors which shall be
disregarded: (1) the additional value of the Applicable Premises, if any, based
on special quality of Tenant's Work and Tenant's Property in the Applicable
Premises, or any decrease in value as a result of the age or obsolescence of the
foregoing items or the wear and tear thereon or (2) the fact that Tenant is an
existing tenant then in occupancy exercising a right of extension rather than
considering the basis of the transaction to be a new transaction between a new
landlord and a new tenant.
ARTICLE 42.
COMPUTATION OF BASIC ANNUAL RENT FOR
EXTENSION TERMS
42.01. In the event Tenant exercises any or all of the extension options
set forth in Section 41.01, then the fair market basic annual rent for the
applicable Extension Term shall be determined as of the first day of the
applicable Extension Term (each of which shall be referred to as a "Computation
Date"). In this regard, no earlier than one hundred eighty (180) days and no
later than ninety (90) days prior to each Computation Date, which ninety (90)
day period is hereinafter referred to as an "Exchange Period", Landlord and
Tenant will each submit to the other a statement of their respective
determinations of the fair market basic annual rent for the demised premises as
of the relevant Computation Date for the applicable Extension Term (hereinafter
individually referred to, as the "Computation
96
Period" and collectively as the "Computation Periods"), which statements shall
show how their respective determinations were derived. Each party's
determination of the fair market basic annual rent shall give due consideration
to the rent and additional rent (adjusted by all rent and construction
allowances, concessions and credits) then being charged by owners (including
Landlord) of First-Class Office Buildings.
42.02. In the event that after the exchange of the statements as above
provided, the parties hereto are unable to agree upon the fair market basic
annual rent as of the applicable Computation Date for the applicable Computation
Period, the parties shall (within fifteen (15) days after the last of the
statements were exchanged, hut in no event more than fifteen (15) days
subsequent to the expiration of the applicable Exchange Period) meet and attempt
to agree on the fair market basic annual rent as of the applicable Computation
Date for the applicable Computation Period. If the parties hereto cannot (within
ten (10) days of their first meeting, but in no event later than thirty (30)
days subsequent to the expiration of the applicable Exchange Period) agree on
the fair market basic annual rent as of the applicable Computation Date for the
applicable Computation Period, they shall attempt to agree on a referee to
determine the matter. The referee must be either a SREA or MAI of the Appraisal
Institute with at least ten (10) years of commercial leasing experience for
major office buildings in the County of New York, New York. If the parties
hereto cannot agree on the appointment of a referee within forty-five (45) days
subsequent to the expiration of the applicable Exchange Period, either party may
request the President of The Real Estate Board of New York, Inc. to appoint a
referee meeting the foregoing requirements. if the President of The Real Estate
Board of New York, Inc. shall refuse to appoint such referee or if The Real
Estate Board of New York, Inc. shall then no longer be in existence, either
party hereto on behalf of both, may apply to the Supreme Court in the County of
New York for the appointment of such referee, and the other party shall not
raise any question as to the Court's full power and jurisdiction to entertain
the application and make such appointment. The referee's sole discretion in
determining the matter shall be limited to selecting one of the fair market
basic annual rent valuations originally submitted by the parties hereto during
the applicable Exchange Period. In other words, the referee cannot submit an
independent valuation of his own but must determine the matter solely on which
fair market basic annual rent valuation submitted by each of the parties hereto
during the applicable Exchange Period more closely conforms with his valuation
of the fair market basic annual rent for the applicable Computation Period. The
referee's decision, determined as provided in this Article 42, shall be
conclusive and binding on the parties, shall constitute an "award" by the
referee within the meaning of the American Arbitration Association rules and
applicable laws and judgments may be entered and enforced thereon upon the
application of either party to the Supreme Court of the County of New York. Each
party shall pay its own fees and expenses relating to the engagement of its
respective appraisers, counsels and experts, and each party shall pay one-half
(1/2) of the fees and expenses of the referee and, if applicable, the fees and
expenses of The Real Estate Board of New York, Inc. in appointing the referee
and the fees and expenses involved should
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either party make application for an order of judgment for or by the Supreme
Court of the Court of New York in connection with the referee's award:
42.03. In the event the computation of the fair market basic annual rent
under this Article 42 is not determined until after the applicable Computation
Date, Tenant shall continue paying the basic annual rent and additional rent
that had been payable in the last Lease Year prior to the applicable Computation
Date, and at such time as the basic annual rent is determined, (i) the basic
annual rent and additional rent shall be retroactively adjusted to the
applicable Computation Date, (ii) the parties shall (within ten (10) days of
written demand made by one on the other for a reconciliation of the basic annual
rent and additional rent paid by Tenant for the period commencing on the
applicable Computation Date through the date preceding the date Tenant commences
the payment of the basic annual rent and additional rent in the recomputed
amount, the "Interim Period") reconcile the amount paid by Tenant for the
Interim Period, and if Tenant shall have overpaid for the Interim Period,
Landlord shall credit the overage to the next payment of basic annual rent
payable under this Lease (provided that if such overpayment exceeds one (1)
month's payment of basic annual rent as so recomputed, Landlord shall, within
five (5) business days after such reconciliation, pay to Tenant the amount of
such overage), and if Tenant shall have underpaid such amount, Tenant shall
immediately pay the deficiency to Landlord and (iii) commencing on the first day
of the month following the month in which the reconciliation referred to in the
preceding clause (ii) of this Section 42.03 was made, Tenant shall start making
monthly installments of basic annual rent and additional rent in the recomputed
amount.
ARTICLE 43.
OPTION FOR EARLIER TERMINATION
OF LEASE BY TENANT
43.01. Provided Tenant is not in default hereunder (subsequent to any
required notice and the expiration of any cure period) at the time of the giving
of the following notice and as of the effective date of termination provided for
herein, Tenant shall have the onetime right to terminate this Lease, effective
as of April 30, 2007. Once Tenant delivers the notice of its exercise of this
right to terminate, Tenant shall have no further right to be offered, or option
to take, additional space in the Building. In order to exercise the termination
right set forth in this Section 43.01, Tenant must give Landlord written notice
of such exercise no (i) later than twenty-four (24) months and (ii) earlier than
thirty-six (36) months prior to April 30, 2007.
43.02. In order for the termination to be effective, Tenant must, within
nine (9) months prior to the effective date of termination, pay to Landlord a
termination fee equal to $1,216,677.00 plus the present value, as of the date of
payment, of the Rent Increase
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remaining to be paid by Tenant discounted from the due date of each installment
of the Rent Increase remaining to be paid to such date on a monthly basis using
a 7.32% annual interest rate.
43.03. If the termination becomes effective, this Lease shall come to an
end and expire on April 30, 2007, to the same extent, and as if, that had been
the date initially set forth in this Lease for such expiration.
43.04. Notwithstanding anything to the contrary contained in this Lease,
once Tenant gives Landlord notice of an exercise of the option to terminate,
Tenant may not thereafter rescind or vitiate such notice or exercise of its
option without Landlord's written consent, and if Tenant shall fail to surrender
the demised premises to Landlord pursuant to, and in accordance with, the
appropriate terms and conditions of this Lease applicable to such termination,
Landlord shall have the right and option to earlier terminate this Lease as of
the date this Lease would have terminated had Tenant performed its obligations
under this Lease.
ARTICLE 44.
MISCELLANEOUS
44.01. Landlord will allow Tenant access to the Building on a twenty-four
(24) hour, three hundred sixty-five (365) day year basis with sufficient,
although reduced, lighting for the Common Areas, which reduction shall be
consistent with the operation of the Building as a First-Class Office Building.
Landlord will, at Tenant's written request, designate the loading dock
crosshatched in black on Exhibit I for the exclusive use of Tenant during such
period as Tenant shall be Meeting the Threshold Level, provided, however, that
Landlord may, at times of extraordinary demand for loading docks, on reasonable
advance notice to Tenant temporarily remove such designated bay from Tenant's
exclusive control. Landlord and Tenant hereby acknowledge and agree that the
designated loading dock shown on Exhibit I is the same locking dock referenced
in Section 44.01 of the CS Lease and Tenant's rights hereunder shall not apply
to any other locking dock area other than that shown on Exhibit I. In addition
to the exclusive use of one (1) bay on the basis set forth in the preceding
sentence, Landlord shall permit Tenant to reserve time for the exclusive use of
the Building's loading docks and bays (other than those which the tenant under
the CSFB Lease has an exclusive on), it being understood and agreed that if
Landlord or any other occupant or tenant of the Building requires the use of the
loading docks or bays at the same time as Tenant, Landlord shall use reasonable
efforts to schedule the use of the loading docks and bays to accommodate all
requests but if such accommodation cannot be made, Landlord reserves the right
to schedule the use of the loading docks and bays in such manner as Landlord, in
its use of reasonable discretion, shall determine. Notwithstanding anything
contained in this Lease to the contrary, Tenant shall, at its own cost and
expense, be solely
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responsible for providing security in connection with its use of the Building's
loading docks, it being understood and agreed that Tenant shall, at a minimum,
always have a member of its security staff present to monitor and supervise all
loading and unloading of shipments and deliveries to or from the demised
premises and the moving of such shipments and deliveries between the loading
docks and the demised premises. Landlord shall, throughout the term of this
Lease, keep two (2) of the Building's loading docks (or three (3) of the
Building's loading docks, if the tenant under the CSFB Lease is not entitled to
any exclusive loading dock at the Building) available on a non-exclusive basis
to Landlord and the tenants and occupants of the Building and such other parties
as Landlord shall deem appropriate for a First-Class Office Building, and shall
keep one (1) Building loading dock available for the Building's trash compactor.
The two (2) or, where applicable, three (3) loading docks that Landlord has
agreed to keep available on a non-exclusive basis shall be utilized on a
non-exclusive "first come, first served" loading dock service during such
business hours as such service is customarily provided, and on a reservation
"first come, first served" basis at all other times and at Landlord's Cost. No
standing reservations for freight elevator service shall be permitted. Tenant
acknowledges and agrees that the Building loading docks may only be used on
business days between the hours of 7:00 A.M. to 7:00 P.M., unless a special
permit is obtained from the applicable governmental authorities, from time to
time, permitting use during other hours for a limited number of days. At
Tenant's request made from time to time, and at Tenant's sole cost, and expense,
Landlord shall request such special permit on behalf of Tenant. Notwithstanding
the foregoing, to the extent not prohibited by restrictions, public or private,
relative as to the use of the loading docks of the Building, Landlord agrees
that it shall not unreasonably withhold or delay its consent Tenant's use of the
loading docks at hours other than as specified above.
44.02. Notwithstanding anything to the contrary contained in this Lease,
Landlord hereby excludes from the demise of this Lease, and expressly reserves
for itself, its officers, employees, agents, contractors, vendors, deliverers
and the employees of such agents, contractors, vendors and deliverers
(collectively, the "Reserved Parties") such access and entry to and from the
Building's freight elevators from, over, across and through the tunnel
connecting One Madison Avenue and the Building as the Reserved Parties shall
require.
44.03. Notwithstanding anything to the contrary contained in this Lease,
each party hereby expressly waives and forever releases all claims against the
other party for consequential damages, compensation or claims for inconvenience
or loss of business, rents or profits.
44.04. Intentionally Deleted.
44.05. Although it is contemplated that prior to the Provision Date,
Tenant will use the freight elevators dedicated to the tenant under the CSFB
Lease, Landlord shall,
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at such times as those freight elevators are not available to Tenant and/or
subsequent to the Provision Date, provide non-exclusive "first come, first
served" freight elevator service during such Business Hours as such service is
customarily provided, and on a reservation "first come, first served" basis at
all other times and Tenant shall reimburse Landlord, at Landlord's Cost, for the
providing of such services. No standing reservations for freight elevator
service shall be permitted. Tenant acknowledges and agrees that the Building
loading docks may only be used on business days between the hours of 7:00 A.M.
to 7:00 P.M., unless a special permit is obtained from the applicable
governmental authorities, from time to time, permitting use during other hours
for a limited number of days. At Tenant's request made from time to time, and at
Tenant's sole cost and expense, Landlord shall request such special permit on
behalf of Tenant. Notwithstanding the foregoing, to the extent not prohibited by
restrictions, public or private, relative to the use of the loading docks of the
Building, Landlord agrees that it shall not unreasonably withhold or delay its
consent to Tenant's use of the loading docks at hours other than as specified
above.
ARTICLE 45.
NOT AN EMPLOYEE BENEFIT PLAN
45.01. Tenant hereby covenants, represents and warrants that: (1) Tenant
is not an employee benefit plan as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), which is subject
to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (each of the foregoing hereinafter referred to
collectively as a "Plan"), (2) Tenant is acting on its own behalf pursuant to
this Lease and not on behalf of, on account of, or for the benefit of any Plan,
(3) Tenant will not assign its interest under this Lease or sublet all or any
portion of the demised premises to a Plan or to an entity in which a Plan owns
either directly or indirectly an equity interest unless Tenant delivers an
opinion from counsel reasonably satisfactory to Landlord that such assignment or
subletting will not cause a violation of, or constitute a "prohibited
transaction" under, ERISA, (4) Tenant will not be reconstituted as a Plan or as
an entity whose assets constitute "plan assets" as defined in Department of
Labor Regulation Section 2510.3-101 and (5) Tenant is not an entity whose
assets constitute "plan assets" as defined in Department of Labor Regulation
Section 2510.3-101.
45.02. Landlord represents and warrants that it is leasing the demised
premises on behalf of its general account which meets the requirements of the
Prohibited Transaction Class Exemption proposed on page 43,134 of Volume 59 of
the Federal Register.
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ARTICLE 46.
SUCCESSORS AND ASSIGNS
46.01. The covenants, terms, provisions and conditions contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this Lease, assigns.
ARTICLE 47.
MULTIPLE COUNTERPARTS
47.01 This Lease may be executed in any number of counterparts, each of
which shall constitute an original, and all of which together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Lease by telecopier shall be effective as delivery of a manually
executed counterpart of this Lease. Any delivery of a counterpart signature by
telecopier shall, however, be promptly followed by delivery of a manually
executed counterpart.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY
By:______________________________________
Name: ________________________________
Title:________________________________
TENANT:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
-------------------------------
Title: Director
By: _____________________________________
Name: ________________________________
Title:________________________________
