Exhibit 10.14
AGREEMENT OF LEASE
between
Forest City Myrtle Associates, LLC
as Landlord
-and-
Empire HealthChoice, Inc. d/b/a Blue Cross Blue Shield
as Tenant
Dated: As of January 17, 0000
Xxxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx
TABLE OF CONTENTS
Page
Table of Contents
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ARTICLE 1 PREMISES, TERM AND RENT ........................................ 1
ARTICLE 2 USE OF PREMISES ................................................ 3
ARTICLE 3 TAXES AND OPERATING EXPENSES ESCALATIONS ....................... 6
ARTICLE 4 ELECTRICITY .................................................... 15
ARTICLE 5 INDEMNITY ...................................................... 17
ARTICLE 6 QUIET ENJOYMENT ................................................ 18
ARTICLE 7 ASSIGNMENT, SUBLETTING AND MORTGAGING .......................... 18
ARTICLE 8 SERVICES ....................................................... 25
ARTICLE 9 BROKERAGE ...................................................... 29
ARTICLE 10 ACCESS, NAME OF BUILDING AND SIGNAGE ........................... 29
ARTICLE 11 EXCULPATION .................................................... 33
ARTICLE 12 SUBMISSION TO JURISDICTION ..................................... 34
ARTICLE 13 CONDITION OF THE PREMISES; BUILDING;
CERTIFICATES OF OCCUPANCY ...................................... 34
ARTICLE 14 RESTRICTIONS ON LANDLORD ....................................... 34
ARTICLE 15 TENANT CHANGES ................................................. 35
ARTICLE 16 BASE BUILDING WORK; TENANT INITIAL WORK ........................ 39
ARTICLE 17 INSURANCE ...................................................... 59
ARTICLE 18 TENANT'S PROPERTY .............................................. 63
ARTICLE 19 REPAIRS AND MAINTENANCE ........................................ 63
ARTICLE 20 RULES AND REGULATIONS .......................................... 65
ARTICLE 21 COMPLIANCE WITH LAWS; MECHANIC'S LIENS ......................... 66
ARTICLE 22 ESTOPPEL CERTIFICATE ........................................... 67
ARTICLE 23 HOLDOVER ....................................................... 67
ARTICLE 24 CONDITIONS OF LIMITATION ....................................... 68
ARTICLE 25 REENTRY BY LANDLORD ............................................ 70
ARTICLE 26 DAMAGES ........................................................ 71
ARTICLE 27 LEGAL RENT RESTRICTION ......................................... 73
ARTICLE 28 SURRENDER ...................................................... 73
ARTICLE 29 CURING TENANT'S DEFAULTS; CURING LANDLORD'S DEFAULTS ........... 73
ARTICLE 30 DAMAGE OR DESTRUCTION .......................................... 74
ARTICLE 31 EMINENT DOMAIN ................................................. 77
ARTICLE 32 SUBORDINATION, ATTORNMENT ...................................... 78
ARTICLE 33 NOTICES ........................................................ 79
ARTICLE 34 EXPEDITED CONSTRUCTION ARBITRATION ............................. 81
ARTICLE 35 GENERAL ARBITRATION ............................................ 82
ARTICLE 36 DEFINITIONS .................................................... 84
ARTICLE 37 PARKING GARAGE ................................................. 86
ARTICLE 38 COMMUNICATIONS EQUIPMENT AND ANTENNA ........................... 86
ARTICLE 39 EXTENSION OF TERM .............................................. 88
ARTICLE 40 EARLY EXPANSION RIGHTS AND REDUCTION RIGHTS; EXPANSION
OPTIONS ........................................................ 90
ARTICLE 41 RIGHT OF FIRST OFFER ........................................... 93
ARTICLE 42 MISCELLANEOUS PROVISIONS ....................................... 95
LIST OF EXHIBITS:
Exhibit A - Floor Plans of the Premises
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Exhibit B - Construction Schedule
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Exhibit C - Form of Letter of Credit
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Exhibit D - Sample Statement Detail
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Exhibit E - List of Holidays
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Exhibit F - Cleaning Specifications
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Exhibit G - Louver Locations
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Exhibit H - INTENTIONALLY OMITTED
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Exhibit I - INTENTIONALLY OMITTED
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Exhibit J - Base Building Work Letter
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Exhibit K - INTENTIONALLY OMITTED
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TABLE OF CONTENTS
(continued)
Page
Exhibit L - Building and Project Signage Criteria
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Exhibit M - List of Agencies
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Exhibit N - Base Building Enhancements
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Exhibit O - List of Approved Contractors and Subcontractors
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Exhibit P - Landlord's Construction Rules and Regulations
---------
Exhibit Q - Rules and Regulations
---------
Exhibit R - Site Plan of Metrotech Center
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Exhibit S - INTENTIONALLY OMITTED
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Exhibit T - INTENTIONALLY OMITTED
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Exhibit U - Tenant's Minimum Security Specifications
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-ii-
LIST OF DEFINED TERMS
TERM PAGE
---- ----
"additional electrical equipment" ........................................ 17
-------------------------------
"Additional Rent" ........................................................ 2
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"Affiliate" .............................................................. 19
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"and/or" ................................................................. 85
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"Antenna" ................................................................ 88
-------
"Approved List." ......................................................... 37
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"Arbitrator" ............................................................. 83
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"Assignment Expenses." ................................................... 23
-------------------
"Assignment Proceeds" .................................................... 23
-------------------
"bankruptcy or insolvency law" ........................................... 69
----------------------------
"Base Allowance" ......................................................... 58
--------------
"Base Building Architect" ................................................ 49
-----------------------
"Base Building CD's" ..................................................... 49
------------------
"Base Building Enhancements" ............................................. 48
--------------------------
"Base Building Work" ..................................................... 48
------------------
"Base Building Work Letter" .............................................. 48
-------------------------
"Base Operating Expense Year" ............................................ 10
---------------------------
"Base Year Operating Expenses" ........................................... 10
----------------------------
"Base Year Taxes" ........................................................ 6
---------------
"BID Assessment" ......................................................... 10
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"Brokers" ................................................................ 29
-------
"Building" ............................................................... 1
--------
"Building Operating Expenses" ............................................ 10
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"Bureau" ................................................................. 89
------
"Business Days" .......................................................... 25
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"Business Hours" ......................................................... 25
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"CAM Agreement" .......................................................... 13
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"CAM Operating Expenses" ................................................. 13
----------------------
"Change Order" ........................................................... 51
------------
"City" ................................................................... 2
----
"Commence(d) Construction of the Building" ............................... 45
----------------------------------------
"Commencement Date" ...................................................... 40
-----------------
"Commencement of Construction and Financing Date" ........................ 45
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"Commencement of Construction of the Building" ........................... 45
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"Completion Guaranty" .................................................... 55
-------------------
"Confirmation Notice" .................................................... 43
-------------------
"Construction Rules and Regulations" ..................................... 38
----------------------------------
"Construction Schedule" .................................................. 45
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"control" ................................................................ 19
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"Delivery Conditions" .................................................... 40
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"dining facilities" ...................................................... 3
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"Dispute Notice" ......................................................... 82
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"Early Expansion Notice" ................................................. 91
----------------------
"Early Expansion Space" .................................................. 91
---------------------
"EDC" .................................................................... 98
---
"Emergency Lighting Systems" ............................................. 16
--------------------------
"Environmental Legal Requirements" ....................................... 5
--------------------------------
"Escrow Agreement" ....................................................... 45
----------------
"Estimated Operating Expense Statement" .................................. 13
-------------------------------------
"Estimated Tax Statement" ................................................ 8
-----------------------
"Event of Default" ....................................................... 69
----------------
"Excluded Impositions" ................................................... 7
--------------------
"Expansion Space" ........................................................ 93
---------------
"Expiration Date" ........................................................ 1
---------------
"Extension Term" ......................................................... 89
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"Facility" ............................................................... 89
--------
"Facility Operators" ..................................................... 89
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"fair market rent" ....................................................... 90
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TERM PAGE
---- ----
"Final Working Drawings" ............................................ 37
----------------------
"First Extension Floor(s)" .......................................... 90
-----------------------
"First Extension Notice" ............................................ 90
----------------------
"First Extension Term" .............................................. 90
--------------------
"Fixed Rent" ........................................................ 1
----------
"force majeure" ..................................................... 85
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"Ground Lease" ...................................................... 3
------------
"Guarantor" ......................................................... 34
---------
"Hazardous Materials" ............................................... 5
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"herein" ............................................................ 85
------
"hereof" ............................................................ 85
------
"hereunder" ......................................................... 85
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"HVAC" .............................................................. 26
----
"Incomplete Work" ................................................... 44
---------------
"Index" ............................................................. 85
-----
"Initial Base Building Work" ........................................ 43
--------------------------
"Initial Notice" .................................................... 43
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"Institutional Lender" .............................................. 45
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"Insurable Value" ................................................... 62
---------------
"Insurance Requirements" ............................................ 85
----------------------
"Interest Rate" ..................................................... 86
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"Land" .............................................................. 7
----
"Landlord" .......................................................... 1
--------
"Landlord Common Areas" ............................................. 5
---------------------
"Landlord Delay" .................................................... 54
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"Landlord hereby indemnifies Tenant against liability" .............. 87
----------------------------------------------------
"Landlord Parties" .................................................. 86
----------------
"Landlord shall not have liability to Tenant" ....................... 86
-------------------------------------------
"Landlord's Construction Rules and Regulations" ..................... 55
---------------------------------------------
"Landlord's Engineer" ............................................... 37
-------------------
"Landlord's Share" .................................................. 58
----------------
"legal rent restriction" ............................................ 74
----------------------
"Legal Requirements" ................................................ 86
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"Letter of Credit" .................................................. 98
----------------
"Long Lead Work" .................................................... 77
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"Material Net Worth" ................................................ 25
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"material part" ..................................................... 78
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"Material Tenant Changes" ........................................... 36
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"materially interfere" .............................................. 42
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"Monitor" ........................................................... 89
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"Mortgage" .......................................................... 79
--------
"Mortgagee" ......................................................... 79
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"Mortgagee Parties" ................................................. 86
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"Mortgages" ......................................................... 79
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"negotiating" ....................................................... 22
-----------
"negotiations" ...................................................... 22
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"Non-Disturbance Agreement" ......................................... 79
-------------------------
"notices" ........................................................... 81
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"Offering Space" .................................................... 94
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"Offering Space Inclusion Date" ..................................... 95
-----------------------------
"Offering Space Notice" ............................................. 95
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"Operating Expense Statement" ....................................... 14
---------------------------
"Operating Expense Year" ............................................ 13
----------------------
"Operation of the Property" ......................................... 10
-------------------------
"Operational Hazardous Materials" ................................... 5
-------------------------------
"Operator" .......................................................... 87
--------
"Outside Ready for Delivery Date" ................................... 45
-------------------------------
"Permitted Tenant Changes." ......................................... 36
-------------------------
"Person" ............................................................ 86
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"PILOT" ............................................................. 7
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"Post Delivery Base Building Work" .................................. 42
--------------------------------
"predecessor tenants" ............................................... 24
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TERM PAGE
---- ----
"Preliminary Notice".................................................... 43
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"Premises".............................................................. 1
--------
"Proceeding"............................................................ 9
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"Program"............................................................... 89
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"Project"............................................................... 86
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"Projected Completion Date(s)".......................................... 45
----------------------------
"Protected Occupant".................................................... 22
------------------
"Protest"............................................................... 9
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"Punch List Items"...................................................... 43
----------------
"Ready for Delivery".................................................... 40
------------------
"Ready for Delivery Notice"............................................. 43
-------------------------
"Real Property"......................................................... 7
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"Recipient"............................................................. 68
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"Reduction Notice"...................................................... 92
----------------
"Reduction Space"....................................................... 92
---------------
"reenter"............................................................... 72
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"Rent".................................................................. 2
----
"Rent Commencement Date"................................................ 1
----------------------
"Rentalized Amount"..................................................... 58
-----------------
"Rentalized Interest Rate".............................................. 2
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"Reorganization"........................................................ 19
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"ROFO".................................................................. 95
----
"Rules and Regulations"................................................. 66
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"Second Extension Floor(s)"............................................. 90
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"Second Extension Notice"............................................... 90
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"Second Extension Term"................................................. 90
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"Service Facilities".................................................... 30
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"Special Initial Work".................................................. 61
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"Special Tenant Changes"................................................ 36
----------------------
"Special Work Coverage"................................................. 62
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"Statement"............................................................. 14
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"Sublease Rental Factor"................................................ 25
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"Subletting Expenses"................................................... 24
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"Subletting Proceeds"................................................... 24
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"Substantial Completion of Restoration"................................. 76
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"substantially complete(d)"............................................. 43
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"Substantially Completed for Restoration Purposes"...................... 76
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"substantially damaged"................................................. 76
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"successor corporation or partnership".................................. 19
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"Successor Landlord".................................................... 80
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"such consent shall not be unreasonably withheld"....................... 86
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"Superior Leases"....................................................... 79
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"Superior Lessor Parties"............................................... 86
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"Superior Lessor,"...................................................... 79
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"Tax Base Year"......................................................... 7
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"Tax Due Date".......................................................... 8
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"Tax Statement"......................................................... 8
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"Tax Year".............................................................. 7
--------
"Taxes"................................................................. 7
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"TCO"................................................................... 41
---
"Tenant"................................................................ 1
------
"Tenant Change"......................................................... 36
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"Tenant Delay".......................................................... 53
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"Tenant Exclusive Use Areas"............................................ 5
--------------------------
"Tenant hereby indemnifies Landlord against liability".................. 87
----------------------------------------------------
"Tenant Initial Work Allowance"......................................... 58
-----------------------------
"Tenant Initial Work Cost".............................................. 50
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"Tenant Initial Work"................................................... 36, 56
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"Tenant Notice"......................................................... 21
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"Tenant Parties"........................................................ 87
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"Tenant Restoration Delays"............................................. 77
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"Tenant's Acceptance Notice"............................................ 95
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TERM PAGE
---- ----
"Tenant's Architect" ...................................................... 37
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"Tenant's Construction Representative" .................................... 56
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"Tenant's Designated Mechanical Space" .................................... 86
------------------------------------
"Tenant's Designated Roof Space" .......................................... 87
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"Tenant's Engineer" ....................................................... 57
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"Tenant's Estimated Operating Expense Payment" ............................ 13
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"Tenant's Estimated Tax Payment" .......................................... 8
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"Tenant's Inspection Consultants" ......................................... 44
-------------------------------
"Tenant's Operating Expense Payment" ...................................... 13
----------------------------------
"Tenant's Property" ....................................................... 64
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"Tenant's Proportionate Operating Expense Share" .......................... 13
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"Tenant's Proportionate Tax Share". ....................................... 7
--------------------------------
"Tenant's Tax Payment". ................................................... 7
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"Term" .................................................................... 1
----
"term of this Lease" ...................................................... 91
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"Termination Deadline" .................................................... 47
--------------------
"the same shall be without liability to Landlord" ......................... 86
-----------------------------------------------
"unreasonably withheld". .................................................. 87
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"Walk Through Date" ....................................................... 43
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"Well" .................................................................... 20
----
"without incurring any liability to Tenant therefor" ...................... 86
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"Year Five Expansion Option" .............................................. 93
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"Year Five Expansion Space" ............................................... 93
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"Year Five Expansion Space Commencement Date" ............................. 93
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"Year Ten Expansion Option" ............................................... 93
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"Year Ten Expansion Space" ................................................ 93
------------------------
"Year Ten Expansion Space Commencement Date" .............................. 93
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-iv-
AGREEMENT OF LEASE, dated as of January 17, 2002, between Forest City
Myrtle Associates, LLC, a New York limited liability company having an office at
Xxx Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (herein called
"Landlord"), and Empire HealthChoice, Inc. d/b/a Empire Blue Cross Blue Shield,
a New York not-for-profit corporation having an address at 00 Xxxx 00/xx/
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called "Tenant").
W I T N E S S E T H:
ARTICLE 1
PREMISES, TERM AND RENT
1.1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this Lease, the premises in the building (the "Building") known as Nine
Metrotech Center South, Brooklyn, New York consisting of the following: the
entire rentable area on the second through ninth (2/nd/ - 9/th/) floors shown,
which second through ninth (2/nd/ - 9/th/) floors are shown on the floor plans
annexed hereto as Exhibit A (the "Premises").
Landlord and Tenant agree that the Premises shall be deemed, subject to
Section 1.7, to contain an aggregate of three hundred twenty-two thousand two
hundred twenty-eight (322,228) rentable square feet, consisting of the
following:
Rentable
Floor Square Feet
Entire 2nd 47,811
Entire 3rd 47,811
Entire 4th 43,013
Entire 5th 43,013
Entire 6th 35,145
Entire 7th 35,145
Entire 8th 35,145
Entire 9th 35,145
1.2. The term ("Term") of this Lease, shall commence on the
Commencement Date (as such term is defined in Article 16 hereof) and the Term
shall end at 11:59 p.m. on the last day of the calendar month in which the
seventeenth (17th) anniversary of the Rent Commencement Date occurs or on such
earlier date upon which this Lease shall be cancelled or terminated pursuant to
any of the conditions or covenants of this Lease or pursuant to law (subject to
renewal pursuant to Article 39 hereof, the "Expiration Date"). Landlord and
Tenant shall, promptly upon request by either party, execute and acknowledge a
certificate in form reasonably satisfactory to Landlord and Tenant setting forth
the Commencement Date, the Rent Commencement Date and the Expiration Date, which
certificate shall be deemed an integral part of this Lease, but the execution
and acknowledgment of such an instrument shall not be a prerequisite to the
commencement or expiration of the Term.
1.3. (a) Tenant shall pay to Landlord fixed annual rent (the "Fixed
Rent") as follows:
(i) Commencing on the date which is seven (7) months (subject to
adjustment pursuant to Article 16) after the Commencement Date (the "Rent
Commencement Date") through the day prior to the fifth (5/th/) anniversary of
the Rent Commencement Date, Thirty-Six Dollars ($36.00) per rentable per square
foot of the Premises (i.e. Eleven Million Six Hundred Thousand Two Hundred Eight
Dollars ($11,600,208.00) per annum, payable in monthly installments of Nine
Hundred Sixty-Six Thousand Six Hundred Eighty-Four Dollars ($966,684.00));
(ii) Commencing on the fifth (5/th/) anniversary of the Rent
Commencement Date through the day prior to the tenth (l0/th/) anniversary of the
Rent Commencement Date, Thirty-Nine and 60/100 Dollars ($39.60) per rentable per
square foot of the Premises (i.e., Twelve Million Seven Hundred Sixty Thousand
Two Hundred Twenty-Eight and 80/l00 Dollars ($12,760,228.80) per annum, payable
in monthly installments of One Million Sixty-Three Thousand Three Hundred
Fifty-Two and 40/100 Dollars ($1,063,352.40));
-1-
(iii) Commencing on the tenth (10/th/) anniversary of the Rent
Commencement Date through the Expiration Date, Forty-Three and 56/100 Dollars
($43.56) per rentable per square foot of the Premises (i.e., Fourteen Million
Thirty-Six Thousand Two Hundred Fifty-One and 68/100 Dollars ($14,036,251.68)
per annum, payable in monthly installments of One Million One Hundred Sixty-Nine
Thousand Six Hundred Eighty-Seven and 64/100 Dollars ($1,169,687.64)); and
(iv) Commencing on the Rent Commencement Date, the sum of (A)
the Rentalized Amount, (B) the origination fee paid by Landlord to secure the
Rentalized Amount and (C) interest at eight percent (8%) per annum accrued on
the actual portion of Rentalized Amount drawn down, which sum shall bear
interest at the Rentalized Interest Rate (as hereinafter defined) and be payable
monthly in equal, level installments of principal and interest sufficient to
fully amortize the principal amount due hereunder by the seventeenth (17th)
anniversary of the Rent Commencement Date. As used in this Section 1.3(a)(iv),
the term "Rentalized Interest Rate" shall mean the sum of (A) eight percent (8%)
per annum and (B) the change (positive or negative) in the interest rate on
ten-year U.S. Treasury Bills as of November 2, 2001 compared to the interest
rate on ten-year U.S. Treasury Bills as of the date of the closing of the
refinancing of the mini-permanent financing Landlord is obtaining in connection
with the Building with permanent financing, which interest shall be computed on
the basis of a 360-day calendar year for the actual number of days involved.
Notwithstanding the foregoing, if the date of the closing of the aforesaid
refinancing occurs after the Rent Commencement Date, then (x) from the Rent
Commencement Date through the day preceding said closing, the "Rentalized
Interest Rate" shall be deemed to be eight percent (8%) and (y) from and after
said closing, the "Rentalized Interest Rate" shall be calculated as provided in
the preceding sentence. Tenant shall have the right to prepay the portion of the
Fixed Rent described in this Section 1.3(a)(iv) in full at any time; any such
prepayment made prior to the date of the aforesaid closing of the refinancing of
the mini-permanent loan financing with permanent financing shall be without
penalty, and any such prepayment made thereafter shall be subject to a penalty
equal to any costs or fees incurred by Landlord in connection with such
prepayment (e.g., breakages costs, prepayment penalties, etc.). This Section
1.3(b)(iv) is subject to recalculation as provided in Section 16.20, if
applicable.
(b) Tenant shall pay to Landlord additional rent (herein
called the "Additional Rent") consisting of all other sums of money as shall
become due from and payable by Tenant to Landlord pursuant to this Lease. All of
the Fixed Rent and the Additional Rent (collectively, the "Rent") due pursuant
to this Lease shall be paid in lawful money of the United States to Landlord at
its office as above stated, or such other place, or to Landlord's agent and at
such other place, as Landlord shall designate by notice to Tenant. The Rent
shall be paid, at Tenant's option, either (i) by check drawn upon (A) a New York
City bank which is a member of the New York Clearing House Association or any
successor thereto or (B) a bank which has an office in New York City (the
"City") which is a member of any other check clearing association or system in
use by money center banks in New York or (ii) by Tenant causing an amount equal
to the Rent to be transferred in immediately available federal funds for credit
to such bank account or accounts as Landlord shall, upon request of Tenant,
designate from time to time.
1.4. Except as otherwise set forth herein, Tenant shall pay all of
the Rent promptly when due without abatement, deduction or set-off, In the event
of any non-payment of Additional Rent, Landlord shall have all the rights and
remedies provided for herein or by law for non-payment of Fixed Rent. If the
Rent Commencement Date occurs on a day other than the first day of a calendar
month, or the Expiration Date occurs on a day other than the last day of a
calendar month, the Rent for the partial calendar month in which the Rent
Commencement Date or the Expiration Date occurs shall be prorated.
1.5. If Landlord at any time receives from Tenant any payment less
than the sum of the Rent then due and owing from Tenant pursuant to this Lease,
Tenant hereby waives its right, if any, to designate the items to which such
payment shall be applied and agrees that Landlord in its sole discretion may
apply such payment in whole or in part to any of the Rent then due and payable
hereunder except to the extent that Tenant shall be disputing any items of the
Rent which may be due and payable hereunder, subject to and in accordance with
the provisions of this Lease, in which case Landlord shall not apply such
payment to items which Tenant is disputing. No endorsement or statement on any
check and no letter accompanying any check or payment shall be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance due hereunder or pursue any
other remedy provided for in this Lease or available at law or in equity
-2-
1.6. (a) In every case in which Tenant is required by the terms
of this Lease to pay Landlord the Fixed Rent or the Additional Rent and payment
is not received by Landlord within five (5) days after the same is due, interest
shall be payable on such sum or so much thereof as shall be unpaid from the date
which is five (5) days after such payment becomes due until it is received by
Landlord. Such interest shall be at an annual rate which shall be two percent
(2%) in excess of the Interest Rate (as hereinafter defined), but in no event
more than the highest rate of interest which at such time shall be permitted
under the laws of the State of New York.
(b) The provision for interest set forth in Section 1.6(a)
shall not be construed to extend the date for payment of any sums required to be
paid by Tenant hereunder or to relieve Tenant of its obligation to pay all such
sums at the time or times herein stipulated.
1.7. After substantial completion of the Initial Base Building
Work but prior to the Rent Commencement Date, either Landlord or Tenant may
request, by notice to the other, that an architect reasonably satisfactory to
both parties recalculate and certify the square footage of the Building and of
the Premises, which recalculations shall be performed using methods of
measurement and assumptions consistent with the methods of measurement and
assumptions initially used to calculate the square footages set forth in this
Lease. Promptly following such request, Landlord shall arrange with the
architect for such recalculation. The recalculations and corresponding
adjustments in Fixed Rent, Tenant's Proportionate Tax Share and Tenant's
Proportionate Share of Operating Expenses shall be deemed effective upon the
Rent Commencement Date. Landlord and Tenant shall cooperate with each other and
with the architect in providing any information and access necessary to make the
calculations and shall share equally any fees to the architect therefor. The
architect's calculations shall, absent manifest error, be binding on the
parties. Any dispute as to which architect shall be used or as to whether any
such calculation contains a manifest error shall be resolved by arbitration
pursuant to Article 35. Upon either party's request, Landlord and Tenant shall
promptly enter into an amendment to this Lease memorializing any changes made
pursuant to this Section 1.7 to the square footage figures contained herein. If,
in accordance with the foregoing, the architect determines that the rentable
square footage of the Premises is greater than as set forth in this Lease, then,
notwithstanding such calculation, for purposes of recalculating Fixed Rent,
Tenant's Pro Rata Share of Operating Expenses and Tenant's Pro Rata Tax Share,
any such increase shall be deemed capped at three percent (3%).
ARTICLE 2
USE OF PREMISES
2.1. (a) The Premises shall be used and occupied for general
and executive offices in connection with Tenant's business and such incidental
and ancillary uses which are usual and customary in first class office buildings
in the City and may be used for any other lawful office purpose expressly
permitted under that certain Ground Lease to be entered into between the City,
as ground lessor, and Landlord, as ground lessee, with respect to the Land (as
amended or modified, the "Ground Lease"), and for no other purpose except as
provided in this Section 2.1.
(b) Notwithstanding the terms of Section 2.1(a) and
subject to Tenant's compliance with the terms of this Lease with respect to the
following, portions of the Premises may also be used for the following
incidental and ancillary uses: (i) classrooms for training, (ii) medical, dental
and/or health departments or facilities, (iii) recreational or exercise
facilities, and (iv) cafeteria and dining rooms and related areas for food
preparation, consumption, refrigeration, storage or warming (collectively,
"dining facilities"), (v) meeting rooms, (vi) photographic reproduction and/or
offset printing facilities in connection with Tenant's business, including,
without limitation, reproduction facilities for Tenant's clients and Tenant's
business activities, (vii) the operation of computers, data processing, word
processing and other business machines, including telephone, fax and other
telecommunications equipment required for the conduct of business at the
Premises and (viii) non-retail banking; each of the foregoing being exclusively
for the use of Tenant's employees, Affiliates (both as hereinafter defined),
permitted subtenants, licensees, occupants or business guests and, subject to
Tenant's compliance with Articles 8 and 21 hereof, Tenant may install in
connection with any dining facility, Xxxxx units, microwave ovens, conventional
ovens, stoves, dishwashers, coffeemakers, refrigerators and other cooking
facilities so as to serve Tenant's employees, Affiliates, permitted subtenants,
licensees, occupants and business guests.
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(c) Any dining facility which may be operated under this
Section shall be operated in such a manner that (i) odors will not escape from
the Premises into other portions of the Building, (ii) all grease traps shall be
cleaned, (iii) all wet garbage shall be bagged and placed in containers that
prevent the escape of odors, stored in a refrigerated area to the extent, in
Landlord's reasonable judgment, that such refrigeration is appropriate and
Tenant shall pay any reasonable out-of-pocket charges actually incurred by
Landlord in connection with the removal of such garbage, it being understood and
agreed that if Landlord shall remove the garbage of Tenant and any other tenant
or occupant of the Building during the same service period, the cost of such
removal during such service period shall be equitably apportioned between Tenant
and such other tenant or occupant based on each party's garbage tonnage, and
(iv) such dining facility shall comply with all insurance company
recommendations and requirements to the extent required in Article 17, and all
health, sanitary, fire and other applicable codes if they affect the rates or
premiums payable by Landlord.
(d) If any governmental license or permit other than the
certificate of occupancy to be obtained by Landlord as part of the Base Building
Work shall be required for the proper and lawful conduct of Tenant's business in
the Premises or any part thereof, Tenant, at its expense, shall duly procure and
thereafter maintain such license or permit. At Tenant's request, Landlord shall
cooperate with Tenant in the procuring of any licenses or permits, provided the
same shall be without cost, expense or liability to Landlord. Tenant shall at
all times comply with the terms and conditions of each such license or permit.
(e) If a change in Tenant's use of the Premises from a use
permitted under this Article 2 to another use permitted under this Article 2
requires a change or amendment of any certificate(s) of occupancy or required
permits, Landlord shall reasonably cooperate with Tenant in the process of
obtaining such change or amended certificate(s) or occupancy or other required
permits, provided that same shall be without loss, cost, expense or liability to
Landlord (to the extent that Tenant shall pay such cost or expense or indemnify
Landlord against such loss or liability, the same shall be deemed to be without
loss, cost, expense or liability to Landlord).
2.2. Subject to the provisions of Articles 17 and 21 hereof, Tenant
shall comply with and use the Premises subject to, and in accordance with, all
Legal Requirements and Insurance Requirements (as hereinafter defined).
2.3. Tenant shall not at any time use or occupy the Premises or the
Building, or suffer or permit anyone to use or occupy the Premises, or do
anything in the Premises or the Building, or suffer or permit anything to be
done in, brought into or kept on the Premises, which in any manner (a) violates
the certificate of occupancy for the Premises; (b) causes injury to the Premises
or the Building or any equipment, facilities or systems therein; (c) impairs the
character or appearance of the Building as a first-class office building; (d)
impairs the proper and economic maintenance, operation and repair of the
Building and/or its equipment, facilities or systems; (e) unreasonably annoys or
inconveniences other tenants or occupants of the Building; (f) constitutes a
nuisance, public or private; (g) makes unobtainable from reputable insurance
companies authorized to do business in New York State all-risk property or any
other insurance which Landlord is required to maintain at standard rates; (h)
discharges objectionable fumes, vapors or odors into the Building's flues or
vents or otherwise; or (i) results in floor loads in excess of two hundred (200)
pounds live load per square foot on the third (3/rd/) floor of the Building or
in excess of one hundred (100) pounds live load per square foot on any other
floor leased to Tenant, subject to the Material Tenant Changes provisions in
Article 15.
2.4. Any business machines and mechanical equipment used and
installed by Tenant which cause vibration, noise, cold or heat that may be
transmitted to the Building structure or the common areas of the Building or to
any leased space to such a degree as to cause unreasonably excessive noise or
vibration shall be placed and maintained by Tenant at its expense in settings of
cork, rubber or spring type to eliminate or reduce such unreasonably excessive
noise or vibration to a level that shall not be excessive.
2.5. Notwithstanding anything to the contrary in Section 2.1, it is
expressly understood that no portion of the Premises shall be used as or for the
following: a public stenographer or typist, xxxxxx shop, beauty or manicure
shop, telephone or telegraph agency (without limiting Tenant's ability to use
telephones, fax machines and other telecommunications equipment and machines
required for the conduct of business at the Premises), telephone or secretarial
service for the public at large, messenger service for the public at large
(other than internal messengers
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or messengers employed by Tenant or its Affiliates or permitted subtenants and
occupants, for pick up and delivery of its local correspondence), employment
agency, public restaurant or bar, commercial document reproduction or offset
printing service to the general public, public vending machines (other than
vending machines for employee use), gambling or gaming activities, obscene or
pornographic purposes or any sort of commercial sex establishment, the
possession, storage, manufacture or sale of alcohol, drugs or narcotics (other
than in connection with uses expressly permitted in Section 2.1(b) and subject
to compliance with Legal Requirements), retail, wholesale or discount shop for
sale of merchandise to the general public (other than the sale of merchandise to
Tenant's employees, Affiliates, visitors and business guests), retail service
shop, school or classroom (other than as expressly permitted in Section 2.1(b)),
conduct of a public auction, rendition of medical, dental or other diagnostic or
therapeutic services (other than as expressly permitted in Section 2.1(b)), the
offices or business of any agency of any foreign government or for the conduct
of any retail service (other than as expressly permitted in Section 2.1(b)).
2.6. Hazardous Materials.
(a) (i) As used herein, "Hazardous Materials" means (A) asbestos
and polychlorinated biphenyls, (B) any and all material, waste or substance that
is hazardous or toxic, ignitable, reactive, or corrosive and that is regulated
by any local government, the State or City of New York or the federal government
and (C) any and all materials, wastes or substances that are defined as
"hazardous waste," "extremely hazardous waste," "hazardous material" or words of
similar import pursuant to state, federal or local Legal Requirements.
"Operational Hazardous Materials" means any Hazardous Materials which are
normally or reasonably used in the operation, maintenance or use of a first
class office building in the City, provided that the same are permitted to be
used in such operation, maintenance or use by Legal Requirements and are used,
stored and disposed of in compliance in all material respects with Legal
Requirements, including, without limitation, use of fuels, heating oil,
lubricants, pesticides, cleaning materials, paint and paint thinners, asphalt,
caulks, chemicals commonly used in connection with heating, plumbing, mechanical
and electrical systems and in photocopying machines, computers, word processing
equipment and other business machines but excluding any Hazardous Materials
which have been incorporated into the structure of the Building or the Building
systems in the course of the initial construction of the Building.
(ii) As used herein, "Tenant Exclusive Use Areas" means the
Premises, Tenant's Designated Mechanical Space and Tenant's Designated Roof
Space.
(iii) As used herein, "Landlord Common Areas" means all areas of
the Building which are not Tenant Exclusive Use Areas or areas leased to or
occupied by other tenants.
(b) (i) Tenant shall be solely responsible for and shall comply
with all Legal Requirements governing the presence or removal or the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials (collectively, "Environmental
Legal Requirements") within or relating to the Tenant Exclusive Use Areas or
Tenant's use thereof provided that the same were not introduced therein by
Landlord or its agents, employees or contractors.
(ii) Tenant represents and warrants that it shall not use or cause
to be used or store (except for temporary storage of Operational Hazardous
Materials used in the ordinary course of Tenant's business and used in
compliance with Environmental Legal Requirements) any Hazardous Materials within
the Tenant Exclusive Use Areas, or on the Land or in the Landlord Common Areas
in any manner which violates Environmental Legal Requirements.
(iii) Tenant shall be responsible for all costs (including, but not
limited to, those resulting from monitoring, clean-up or compliance) incurred
with respect to any Hazardous Materials placed in the Tenant Exclusive Use Areas
after the Commencement Date (or any earlier date upon which Tenant enters the
Tenant Exclusive Use Areas pursuant to this Lease) unless the same shall have
been placed therein by Landlord or Landlord's agents, employees or contractors,
and Tenant shall be responsible for all such costs incurred with respect to any
Hazardous Materials placed in, on or under the Land or the Landlord Common Areas
by Tenant or its agents, employees or contractors.
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(iv) Tenant shall indemnify and hold harmless Landlord from and
against any and all costs, claims, suits, causes of action, losses, injury or
damage, including without limitation, personal injury (including death) as well
as damage to property as well as any and all sums paid for settlement of claims,
reasonable attorney's, consultant and expert fees arising during or after the
Term, as a result of a breach of the foregoing obligations or warranties, or
resulting from the presence or removal of Hazardous Materials from the Tenant
Exclusive Use Areas provided that the same were not introduced therein by
Landlord or its agents, employees or contractors.
(v) Landlord and its agents shall have the right, (but not the
duty) to inspect the Tenant Exclusive Use Areas (subject to the provisions of
Article 10) to determine whether Tenant is complying with the terms of this
Section 2.6.
(c) (i) Landlord represents and warrants and, at Tenant's
request, will recertify to Tenant promptly following delivery of the Base
Building Work (A) the Base Building Work, upon the date(s) of substantial
completion thereof pursuant to Article 16, shall be in compliance with the then
applicable Legal Requirements pertaining to Hazardous Materials and (B) that it
shall not use or cause to be used or store (except for temporary storage of
Operational Hazardous Materials used in the ordinary course of Landlord's
business and used in compliance with Environmental Legal Requirements) any
Hazardous Materials on the Land or within the Tenant Exclusive Use Areas or the
Landlord Common Areas in any manner which violates Environmental Legal
Requirements.
(ii) Landlord shall be responsible for all costs (including, but not
limited to, those resulting from monitoring, clean-up or compliance) incurred
with respect to any Hazardous Materials placed on the Land or in the Landlord
Common Areas after Landlord shall have taken possession of the Land (pursuant to
and subject to the terms of the Ground Lease) unless the same shall have been
placed therein by Tenant or Tenant's agents, employees or contractors, and
Landlord shall be responsible for all such costs incurred with respect to any
Hazardous Materials placed in, on or under the Tenant Exclusive Use Areas by
Landlord or its agents, employees or contractors.
(iii) Landlord shall indemnify and hold harmless Tenant from any and
all costs, claims, suits, causes of action, losses, injury or damage, including
without limitation personal injury (including death), as well as damage to
property as well as any and all sums paid for settlement of claims, reasonable
attorney's, consultant and expert fees arising during or after the Term
resulting from the presence or removal of Hazardous Materials in or from the
Tenant Exclusive Use Areas if the same were introduced by Landlord, its agents,
employees or contractors, or in or from the Landlord Common Areas or the Land
(subject to the terms of the Ground Lease) unless the same were introduced by
Tenant, its agents, employees or contractors.
ARTICLE 3
TAXES AND OPERATING EXPENSES ESCALATIONS
3.1. Taxes.
(a) Definitions. For the purposes of this Section 3.1
(i) "Base Year Taxes" shall mean the taxes as finally determined
for the Tax Base Year.
(ii) "Tax Base Year" shall mean the Tax Year (defined below)
commencing July 1 of the calendar year in which the Rent Commencement Date falls
and ending June 30 of the following year, inclusively.
(iii) "Taxes" shall mean the aggregate amount of (A) all real estate
taxes and payments in lieu of real estate taxes as defined in the Ground Lease,
("PILOT") which may be assessed, levied or imposed upon all or any part of the
Building or the land upon which it is located (the "Land") (the Building and the
Land being hereinafter collectively referred to as the "Real Property"); (B) all
assessments (special or otherwise) and all other governmental levies,
impositions or charges, whether general, special, ordinary, extraordinary,
foreseen or unforeseen which may be assessed, levied or imposed upon all or any
part of the Real Property including,
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without limitation, Impositions (as defined in the Ground Lease), except that
the foregoing shall exclude (collectively, the "Excluded Impositions"): (1)
personal property taxes and occupancy and rent taxes assessed against Landlord
to the extent same are imposed on Landlord because Landlord is a tenant or
occupant of the Building, (2) license and permit fees to the extent same are
included in Operating Expenses (as hereinafter defined), and (3) any fines,
penalties and other similar governmental charges applicable to the foregoing,
together with any interest or costs with respect to the foregoing, incurred by
reason of Landlord's failure to make any payments as herein provided, it being
agreed, however, (x) so long as the Ground Lease is in effect the amount payable
pursuant to this clause (B) shall not exceed an amount which is equal to the
amount of the Impositions (excluding the Excluded Impositions) under the Ground
Lease and (y) Tenant shall have no obligation with respect to any increase in
Taxes due as a direct result of Landlord's breach of any of its obligations
under the Ground Lease; and (C) any expenses (including the fees and
disbursements of attorneys and other experts and witnesses) incurred in
contesting any of the foregoing or the assessed valuation of all or any part of
the Real Property. If at any time after the date hereof the methods of taxation
prevailing at 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 the taxes,
assessments, rents, rates, charges, levies or impositions now assessed, levied
or imposed upon all or any part of the Real Property or the common areas of the
Project, there shall be assessed, levied or imposed (w) a tax, assessment, levy,
imposition or charge based on the income or rents received therefrom whether or
not wholly or partially as a capital levy or otherwise, or (x) a tax,
assessment, levy, imposition or charge measured by or based in whole or in part
upon all or any part of the Real Property or the aforesaid common elements, or
(y) a license fee measured by the rents, or (z) any other tax, assessment, levy,
imposition, charge or license fee with respect to the Real Property or the
aforesaid common areas, however described or imposed, then all such taxes,
assessments, levies, impositions, charges or license fees or the part thereof so
measured or based shall be deemed to be Taxes; provided, however, that any tax,
assessment, levy, imposition or charge imposed on income from the Real Property
or the aforesaid common areas shall be calculated as if the Real Property or the
aforesaid common areas is the only asset of Landlord. Notwithstanding the
foregoing, "Taxes" shall not include any inheritance, estate, succession,
transfer, gift, franchise, corporation, income or profit tax or capital levy
that is or may be imposed upon the net income of Landlord.
(iv) "Tax Year" shall mean each period of July 1 through June 30 (or
such other period as hereinafter may be duly adopted by the City as its fiscal
year for real estate tax purposes) all or any part of which shall fall within
the Term, hereof.
(v) "Tenant's Proportionate Tax Share" shall mean 47.952 percent,
which percentage is the ratio of the number of rentable square feet contained in
the Premises (322,228) and the number of rentable square feet contained in the
Building (671,982). The percentages set forth in this subsection 3.1(a)(v) shall
not be subject to change for any reason whatsoever, except that such percentages
may be subject to change (a) pursuant to Section 1.7, (b) by reason of any
alteration or improvement being performed to the Premises or the Building which
physically increases or decreases the rentable area of the Premises or the
Building, (c) upon the expansion or reduction of the size of the Premises
pursuant to and in accordance with Article 40 or 41 hereof and (d) as otherwise
expressly set forth herein.
(b) Computations.
(i) Tenant's Tax Payment. For each Tax Year, Tenant shall pay to
Landlord an amount ("Tenant's Tax Payment") equal to Tenant's Proportionate Tax
Share of the increase, if any, in Taxes for such Tax Year over the Base Year
Taxes.
(ii) Estimated Tax Statement. At any time before or after the
commencement of any Tax Year, Landlord may furnish to Tenant a statement
("Estimated Tax Statement") of Landlord's reasonable estimate of Tenant's Tax
Payment for such Tax Year (the "Tenant's Estimated Tax Payment"). The Estimated
Tax Statement shall be accompanied by a copy of the tax statement or xxxx for
such Taxes, provided that if such tax statement or xxxx is not then available,
Landlord will furnish a copy of the tax statement or xxxx within a reasonable
time after Landlord's receipt thereof. Tenant's Estimated Tax Payment shall be
payable by Tenant to Landlord on the date which is the later to occur of (A)
twenty (20) days after receipt of Landlord's Estimated Tax Statement, or (B) ten
(10) days prior to the date on which such Taxes, or any installments thereof,
are due to the applicable taxing authority (such later date, the "Tax Due Date")
or, if required by any Mortgagee, in twelve equal monthly installments on the
first
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day of each month during the Tax Year. If during any Tax Year the last-issued
Estimated Tax Statement for such Tax Year is inaccurate in any respect, Landlord
may issue a revised Estimated Tax Statement. If there shall be any increase in
Taxes for any Tax Year as indicated on a revised Estimated Tax Statement, Tenant
shall pay to Landlord the amount shown on the revised Estimated Tax Statement on
or before the Tax Due Date. If there shall be any decrease in Taxes for any Tax
Year as indicated on a revised Estimated Tax Statement, Landlord shall promptly
refund or credit to Tenant the amount of such overpayment on the revised
Estimated Tax Statement for such Tax Year.
(iii) Tax Statement. If, for any Tax Year, Taxes shall be less than
the amount reflected on the last-issued Estimated Tax Statement for such Tax
Year, Landlord shall and in any other case Landlord may after the end of such
Tax Year issue a statement of Taxes for such Tax Year, including a computation
of Tenant's Tax Payment for such Tax Year (a "Tax Statement"). If Tenant shall
have overpaid Taxes for any Tax Year, Landlord shall either promptly refund the
overpayment to Tenant or allow Tenant a credit against the subsequent payments
due under Sections 3.1 and 3.2 hereof in the amount of Tenant's overpayment of
Taxes; provided, however, if Tenant shall have overpaid Taxes for any Tax Year
by more than three percent (3%), in addition to such payment or credit, Landlord
shall pay or credit to Tenant (but following the expiration or earlier
termination of this Lease, Landlord shall pay to Tenant) interest on such
overpayment at the Interest Rate, calculated on the amount of such overpayment
from the date that Tenant paid such overpayment to the date Landlord shall pay
or credit to Tenant such overpayment. If Tenant shall have underpaid taxes for
any Tax Year, Tenant shall pay to Landlord an amount equal to the amount of such
underpayment of Tenant's Tax Payment with respect to such Tax Year within ten
(10) days after receipt of the applicable Tax Statement.
(c) Miscellaneous.
(i) Challenges and Refunds. Except as expressly provided in Section
3.1(c)(v), only Landlord shall be eligible to institute tax certiorari or other
proceedings to reduce the assessed value of the Real Property. If subsequent to
the date of the Tax Statement for any Tax Year Landlord shall receive a refund
of Taxes for any Tax Year, Landlord shall, at Tenant's election, either promptly
pay to Tenant or allow Tenant a credit against subsequent payments due under
Sections 3.1 and 3.2 hereof (but following the expiration or earlier termination
of this Lease, Landlord shall pay to Tenant) an amount equal to Tenant's
Proportionate Tax Share of the reduction in Taxes after deducting from such
refund (to the extent not already netted out of the net refund) the costs and
expenses incurred by Landlord in obtaining the same to the extent such costs and
expenses have not been previously included as part of Taxes, but such amount
shall not exceed Tenant's Tax Payment theretofore paid for such Tax Year.
(ii) Taxes Payable by Tenant. To the extent required by any Legal
Requirement, Tenant shall pay to Landlord upon demand any occupancy tax or rent
tax now in effect or hereafter enacted, if payable by Landlord in the first
instance or hereafter required to be paid by Landlord, but only to the extent
such taxes are not already included as Taxes. Tenant shall pay on or before the
date which is ten (10) days prior to the date such taxes and assessments are due
any and all taxes and assessments separately levied, assessed or imposed upon
Tenant by the tax authorities during the Term. Should any governmental authority
require that a tax, other than the taxes above-mentioned, be paid by Tenant, but
collected by Landlord, for and on behalf of said governmental authority, and
from time to time forwarded by Landlord to said governmental authority, the same
shall be paid by Tenant to Landlord, no later that twenty (20) days in advance
of the date such payment is due and payable to the appropriate governmental
authority, in which case, Landlord shall, on or before the date the same is due,
promptly pay the same to the appropriate governmental authority.
(iii) Official Tax Xxxx. With respect to the portion of Taxes for
which Tenant is responsible under Section 3.1(b) or 3.1(c)(ii), the official tax
xxxx or return shall be presumptive evidence of the amount of Taxes levied,
assessed or imposed, as well as of the items taxed. Upon request by Tenant,
Landlord shall furnish Tenant with a reproduced copy of the tax xxxx for the
Taxes for the current or next succeeding Tax Year.
(iv) Partial Tax Year; Delay. Tenant's liability under this Section
3.1 with respect to the Tax Year in which this Lease shall commence and with
respect to the Tax Year in which this Lease shall expire or (except on account
of Tenant's default) terminate shall be computed on a pro-rata basis, Landlord's
failure to render or delay in rendering an Estimated
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Tax Statement or a Tax Statement with respect to any Tax Year shall not
prejudice Landlord's right thereafter to render the same with respect thereto or
with respect to any subsequent Tax Year nor shall the rendering of a Tax
Statement for any Tax Year prejudice Landlord's right thereafter to render a
corrected Tax Statement for such Tax Year.
(v) Tax Certiorari. If for any Tax Year beginning on or after July
1 following the twelfth (12/th/) anniversary of the Rent Commencement Date,
either (A) Landlord does not intend to file an application with the Tax
Commission of the City, or any successor body which has the power to fix or
review assessed valuations, for reduction of the assessed valuation of the
Building and/or the Land (any such application being herein called a "Protest")
or (B) after filing a Protest, Landlord does not intend to commence an action or
proceeding in the Supreme Court of the State of New York, County of New York, or
any successor court of appropriate jurisdiction seeking judicial review of the
denial of any Protest (any of such action or proceeding being herein called a
"Proceeding"), then Landlord shall notify Tenant of such intention at least
twenty (20) days prior to the latest date on which such a Protest may validly be
filed or such a Proceeding may validly be commenced, as the case may be; and
Tenant may, but shall not be obligated to, file such a Protest or commence and
prosecute such a Proceeding, as the case may be, or settle any Protest or
Proceeding commenced by Tenant using counsel selected by Tenant and reasonably
satisfactory to Landlord, provided and upon the condition that Tenant exercises
such right by notice to Landlord given not more than ten (10) days after
Landlord has so notified Tenant of Landlord's intention. If Tenant shall elect
to commence a Protest or Proceeding, Landlord shall (1) provide Tenant with
copies of any documents or instruments filed in connection with such Protest or
Proceeding, (2) make available to Tenant during Business Hours at the Building
or at Landlord's office in Kings County; such books and records and other
evidence in Landlord's possession as may reasonably be required for proof in
such Protest or Proceeding, and (3) execute any and all documents reasonably
required to pursue such Protest or Proceeding. If Tenant shall obtain a refund
of the Taxes for any Tax Year in such Protest or Proceeding, Tenant shall be
entitled to receive Tenant's Proportionate Tax Share of the net refund plus the
reasonable costs and expenses of Tenant (to the extent not already netted out of
the refund), including, but not limited to, reasonable appraisal, accounting and
legal fees of obtaining the same, and Landlord shall be entitled to the amount
remaining from such refund. In addition, in connection with any Protest or
Proceeding, Landlord shall not settle or compromise any such Protest filed by
Landlord or Proceeding commenced by Landlord without the prior reasonable
consent of Tenant, and Landlord agrees that with respect to any Protest or
Proceeding commenced by Landlord, Landlord shall keep Tenant advised on a
regular basis of the status of such Protest and/or Proceeding and shall promptly
deliver copies of all material correspondence relating thereto to Tenant.
Notwithstanding the foregoing, if Tenant shall fail to consent to the settlement
or compromise of any Protest or Proceeding and if Landlord shall be subject to
any liability or obligation for Taxes in excess of that which it would otherwise
have been subject to had any such Protest or Proceeding been so settled or
compromised, then Tenant shall bear all such incremental tax increases for such
Tax Year (and, if such increases are phased-in over subsequent Tax Years, any
portion of such increases included in subsequent Tax Years). In addition,
Landlord shall provide Tenant with a copy of any notice of the assessed
valuation of the Building and/or the Land received by Landlord.
3.2. Operating Expenses.
(a) Definitions. For the purposes of this Section 3.2:
(i) "Base Operating Expense Year" shall mean (i) if the Rent
Commencement Date occurs before July 1, the calendar year in which the Rent
Commencement Date occurs or (ii) if the Rent Commencement Date occurs on or
after July 1, then the calendar year immediately following the calendar year in
which the Rent Commencement Date occurs.
(ii) "Base Year Operating Expenses" shall mean the greater of (A)
Six Dollars ($6.00) per rentable square foot of the Building (exclusive of any
portion therein being operated for a retail use and exclusive of the parking
garage) and (B) the actual Building Operating Expenses on a rentable per square
foot basis for the Base Operating Expense Year.
(iii) "BID Assessment" shall mean the Building's proportionate share
of the expenses of the Metrotech Area Business Improvement District, as
determined in accordance with the approved District Plan of the Metrotech Area
Business Improvement District and the
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annual budget adopted by the Board of Directors of the Metrotech Area District
Management Association, Inc.
(iv) "Building Operating Expenses" shall mean the aggregate of,
without duplication, all reasonable costs, expenses, disbursements and
expenditures (and sales, use, excise, value-added and similar taxes, if any,
thereon) paid or incurred by or on behalf of Landlord (whether directly or
through independent contractors) in respect of the operation, maintenance,
repair, cleaning, security and management of the Real Property and the plazas,
sidewalks, curbs and areas which form part of the Real Property and the public
sidewalks, curbs and areas immediately adjacent thereto (hereinafter called
"Operation of the Property") which, under generally applied real estate practice
in the City are properly chargeable to the Operation of the Property, including,
but not limited to, costs incurred in connection with the repair and/or
replacement of worn-out equipment, facilities and installations; water, fuel and
other utilities, heating, air conditioning, ventilating, window cleaning,
janitorial and exterminating services; electricity for, and painting of, the
public or common areas of the Building; electricity for operation of so-called
"DX Units" (or similar apparatus) within tenantable portions of the Building
during Business Hours, displays and holiday decorations appropriate to the
operation of the Building as a first class office building in the City; internal
security for the Building, cleaning services, gardening and other landscaping
services which are not included in CAM Operating Expenses; insurance (including
rental insurance); uniforms and supplies; sales or use taxes on supplies or
services which are includible as Operating Expenses; payroll taxes, wages and
salaries of all persons engaged in the Operation of the Property and so-called
fringe benefits, including social security taxes, unemployment taxes, Workers'
Compensation, coverage for disability benefits, contributions to any pension,
hospitalization, welfare or retirement plans or any other similar or like
expense incurred under the provisions of any collective bargaining agreement and
any other amount incurred to provide benefits for employees so engaged in the
Operation of the Property; for management services provided by an independent
management company or by Landlord (in which case such fees shall not exceed
those that would be charged by independent management companies to manage first
class office buildings in the City); the charges of any independent contractor
who under a contract does any work which otherwise constitutes an Operating
Expense with respect to the Operation of the Property; and legal and accounting
fees and disbursements and other professional fees and disbursements in
connection with the Operation of the Property; damages, awards and judgments
including interest thereon paid or incurred by the Landlord and arising from the
Operation of the Property; but specifically excluding or deducting, as
appropriate:
(1) Taxes;
(2) interest and amortization of any debts;
(3) the cost of any electricity furnished to the Premises or
any other tenantable space in the Building which is not considered a common area
of the Building other than electricity for operation of so-called "DX Units" (or
similar apparatus) within tenantable portions of the Building during Business
Hours;
(4) ground rent;
(5) operating expenses attributable to the retail area of the
Building;
(6) expenditures for capital improvements except (i) those
which are intended to result in a savings in the amount of Operating Expenses
but only to the extent such savings are actually achieved, (ii) those made in
order to comply with any change in Insurance Requirements or Legal Requirements
occurring after the Commencement Date, provided that such Legal Requirement
arises out of or relates to (A) use of the Premises for the uses permitted by
Article 2, or (B) any other use of the Premises by Tenant permitted by Landlord
in its sole discretion, or (C) Tenant's manner of use of the Premises, or (iii)
expenditures for replacements provided, however, (A) that the cost of repairing
such item would exceed fifty percent (50%) of the cost of replacing the same,
and (B) that any such item shall be amortized annually on a straight line basis
over its useful life as determined in accordance with generally accepted
accounting principles (not to exceed ten (10) years), together with interest at
the Interest Rate determined at the time Landlord incurred said cost, and shall
be included in Operating Expenses for the appropriate Operating Expense Years
(as hereinafter defined);
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(7) depreciation (except as provided above in this subsection);
(8) leasehold improvements and decorations made for tenants or
occupants of the Building or cash allowances in lieu thereof;
(9) brokerage commissions and compensation and finder's fees;
(10) financing and refinancing costs;
(11) any cost or expense which would otherwise be an Operating
Expense in connection with the garage located in the below grade portion of the
Building to the extent attributable to the garage;
(12) costs covered by enforceable warranties and guaranties or
unenforceable warranties and guaranties if same are unenforceable solely by
reason of any act or omission of Landlord, any of Landlord's Affiliates or
Landlord Parties (as hereinafter defined) or any other tenant or occupant of the
Building;
(13) personnel benefits, expenses and salaries of the type set
forth in this Section of employees above the level of building manager;
(14) the portion of any expenses otherwise includible in Operating
Expenses which are allocable to any other properties of Landlord or any of
Landlord Parties or Affiliates of Landlord, such as the portion of the personnel
benefits, expenses and salaries of the type set forth in Section 3.2(a)(iv) of
employees allocable to time spent by such employees in connection with
properties other than the Land and/or the Building or the portion of the
premiums for any insurance carried under "blanket" or similar policies to the
extent allocable to any property other than the Land and/or the Building;
(15) any cost or expense which would otherwise be included in
Operating Expenses to the extent that Landlord is reimbursed or is required to
be reimbursed therefor from any source other than pursuant to provisions in the
nature of this Article 3;
(16) franchise, "gains" or foreign ownership or control tax,
mortgage recording tax, transfer or transfer gains tax, inheritance or estate
tax or income taxes imposed upon Landlord or any of Landlord Parties;
(17) advertising and promotional expenditures;
(18) the cost of repairs or replacements incurred by reason of
fire or other casualty or condemnation, to the extent Landlord is compensated
therefor during the Operating Year to which an Operating Statement relates or
would have been compensated therefor if Landlord carried the insurance required
by this Lease;
(19) direct costs incurred in connection with a transfer or
disposition of Landlord's interest in the Ground Lease, the Land and/or the
Building which would not otherwise be incurred by Landlord as an Operating
Expense;
(20) any fee or expenditure (other than a management fee) paid to
Landlord or any of Landlord Parties or any Affiliate of Landlord, to the extent
the fee or expenditure is in excess of the amount which would be paid in the
absence of such relationship;
(21) costs and expenses incurred in connection with the
enforcement of leases and occupancy agreements, including, without limitation,
disbursements in connection with any summary proceeding to dispossess any tenant
or occupant;
(22) costs and expenses incurred in connection with, and
incidental to, the leasing of space in the Building, including, without
limitation, attorneys' fees and disbursements; costs and expenses incurred in
connection with preparing and negotiating leases, amendments and modifications
thereto, consents to sublease, assignments or any form leases or other documents
with respect to the operation of the Building and disputes with tenants or
occupants in the Building, including, without limitation, attorneys',
accountants' and consultants' fees and disbursements;
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(23) costs and expenses (including those for labor, materials,
tools, equipment and contractor charges), whether ordinary or capital, incurred
in connection with compliance with any Legal Requirements existing as of the
Commencement Date which are applicable to the Land and/or the Building
(including, without limitation, the Premises) with respect to a condition
existing as of the Commencement Date, whether or not noted of record, unless
caused by an act or omission of Tenant or any of Tenant's Parties or any person
claiming by, through or under Tenant;
(24) costs incurred to correct any defect discovered during the
first twelve (12) month period following the Rent Commencement Date (or a longer
period if and to the extent Landlord is reimbursed for such cost under a
warranty) to the extent resulting from the improper initial construction or
design of the Building and the Building systems (but excluding the Tenant
initial Work) other than costs incurred to make minor adjustments thereto,
provided, however, nothing contained herein is intended to exclude from
Operating Expenses any portions of such repairs or replacements which would
customarily be included in Operating Expenses other than those directly
attributable to the construction or design defects;
(25) costs incurred in performing work or furnishing services for
any other tenant, whether at such tenant's or Landlord's expense, to the extent
that such work or service is in excess of any work or service that Landlord is
obligated to furnish to Tenant at Landlord's expense;
(26) the cost of clean-up, removal or remediation of any Hazardous
Materials other than Operational Hazardous Materials (as hereinafter defined)
from the Building;
(27) any costs resulting solely and directly from any amendment or
modification to the CAM Agreement (is hereinafter defined) after the date
hereof, if such costs have been imposed upon or with respect to the Real
Property, Landlord or Tenant in a manner which is discriminatory; and
(28) the cost of any maintenance service Landlord provides to any
other tenant in the Building but which Landlord requires Tenant to provide
itself.
If during all or part of any Operating Expense Year, Landlord shall not
furnish any particular item(s) of work or service (which would otherwise
constitute an Operating Expense hereunder) to the Building or any portion of the
Building due to the fact that less than the entire tenantable space of the
Building is occupied or leased, then, for purposes of computing Operating
Expenses for such Operating Expense Year, the amount included in Operating
Expenses for such item(s) for such period shall be deemed to be increased to
reflect the variable Operating Expense costs that would have been payable had
the Building been completely occupied for the entire Operating Expense Year or
which would reasonably have been incurred during such period by Landlord if it
had furnished such item(s) of work or service to the Building or portion
thereof, as the case may be. Without limiting the foregoing, it shall be assumed
that all Building services are in place and fully costed (e.g., discounts for
the initial period of multi-year contracts shall be appropriately adjusted).
Similarly, if during all or part of any Operating Expense Year, Landlord shall
not furnish any particular item(s) of work or service (which would otherwise
constitute an Operating Expense hereunder) to the Building or any portion of the
Building due to the fact that such item(s) of work or service is not required or
desired by the tenant of such portion or such tenant is itself obtaining and
providing such item(s) of work or service, then, for purposes of computing
Operating Expenses for such Operating Expense Year, the amount included in
Operating Expenses for such item(s) for such period shall be increased to
reflect the variable Operating Expense costs that would reasonably have been
incurred during such period by Landlord, if it had furnished such item(s) of
work or service to the Building or portion thereof. Further, with respect to the
calculation of the Base Year Operating Expenses only, if and to the extent
certain expenses are incurred with respect to only a portion of the Base
Operating Expense Year, then such expenses shall be annualized to more closely
approximate the cost that will be incurred for such expense over the course of
the subsequent full year.
(v) "CAM Agreement" shall mean that certain Common Area Maintenance
and Development Agreement dated as of September 15, 1988, as amended from time
to time, among Landlord and the owners and ground lessees of the other buildings
in the Project.
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(vi) "CAM Operating Expenses" shall mean the Building's
proportionate share of all costs and expenses assessed under the CAM Agreement.
(vii) "Operating Expense Year" shall mean, for purposes of
determining Building Operating Expenses or CAM Operating Expenses, each calendar
year all or any part of which shall fall within the Term hereof.
(viii) "Tenant's Proportionate Operating Expense Share" shall mean
48.443 percent, which percentage is the ratio of the number of rentable square
feet contained in the Premises (322,228) and the number of rentable square feet
of office space contained in the Building (665,163). The percentages set forth
in this Section 3.2(a)(viii) shall not be subject to change for any reason
whatsoever, except that such percentages may be subject to change (A) pursuant
to Section 1.7, (B) by reason of any alteration or improvement being performed
to the Premises or the Building which physically increases or decreases the
rentable area of the Premises or the Building, (C) upon the expansion or
reduction of the size of the Premises pursuant to and in accordance with Article
40 or 41 hereof and (D) as otherwise expressly set forth herein.
(b) Computations.
(i) Tenant's Operating Expense Payment. Commencing January 1 of
the First Operating Expense Year following the Rent Commencement Date, for any
Operating Expense Year, Tenant shall pay to Landlord an amount ("Tenant's
Operating Expense Payment") equal to the sum of: Tenant's Proportionate
Operating Expense Share of (A) the amount by which (x) Building Operating
Expenses for such Operating Expense Year exceeds (y) the product of Base Year
Operating Expenses and the total number of rentable square feet in the Building
(exclusive of any portion therein being operated for retail use and exclusive of
the parking garage), plus (B) the BID Assessment for such Operating Expense
Year, plus (C) CAM Operating Expenses for such Operating Expense Year.
(ii) Estimated Operating Expense Statement. At any time before
or after the commencement of any Operating Expense Year, Landlord may render to
Tenant a statement in reasonable detail of Landlord's reasonable estimate of
Tenant's Operating Expense Payment for such Operating Expense Year ("Estimated
Operating Expense Statement") and the amount shown thereon (the "Tenant's
Estimated Operating Expense Payment") shall be payable by Tenant to Landlord in
twelve (12) equal monthly installments on the first day of each month during the
Operating Expense Year. Any amount shown on an Estimated Operating Expense
Statement shall not exceed Tenant's Operating Expense Payment for the
immediately preceding Operating Expense Year by more than ten percent (10%)
unless Landlord can demonstrate to Tenant's reasonable satisfaction that
Tenant's Operating Expense Payment for the subsequent Operating Expense Year is
reasonably likely to increase by more than ten percent (10%). If, however,
Landlord shall furnish such Estimated Operating Expense Statement for any
Operating Expense Year subsequent to the commencement thereof, then (A) until
the first day of the month following the month in which such Estimated Operating
Expense Statement is furnished to Tenant, Tenant shall continue to pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable under this Section 3.2 in respect of the last month of the preceding
Operating Expense Year, (B) promptly after such Estimated Operating Expense
Statement is furnished to Tenant or together therewith, Landlord shall give
notice to Tenant stating whether the installments of Tenant's Operating Expense
Payment previously made for such Operating Expense Year pursuant to clause (A)
of this sentence were greater or less than the installments of Tenant's
Operating Expense Payment to be made for such Operating Expense Year in
accordance with such Estimated Operating Expense Statement, and (1) if there
shall be a deficiency, Tenant shall pay the amount thereof within ten (10) days
after demand therefor, or (2) if there shall have been an overpayment, Landlord
shall promptly pay to Tenant or credit the amount thereof against the next
subsequent payments due under Sections 3.1 and 3.2 hereof; provided, however, if
Tenant shall have overpaid Tenant's Operating Expense Payment for any Operating
Expense Year by more than five percent (5%), in addition to such payment or
credit, Landlord shall pay or credit to Tenant interest on such overpayment at
the Interest Rate, calculated on the amount of such overpayment from the date
that Tenant overpaid to the date Landlord shall pay or credit to Tenant such
overpayment, and (C) on the first day of the month following the month in which
such Estimated Operating Expense Statement is furnished to Tenant, and monthly
thereafter throughout the remainder of such Operating Expense Year, Tenant shall
pay to Landlord an amount equal to one-twelfth (1/12) of the Estimated Operating
Expense Payment shown on such
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Estimated Operating Expense Statement. Landlord may, from time to time, furnish
to Tenant a revised Estimated Operating Expense Statement for such Operating
Expense Year and, in such case, Tenant's payments under this Section on account
of such Operating Expense Year shall be adjusted and paid or credited, as the
case may be, substantially in the same manner as provided in the immediately
preceding sentence.
(c) Operating Expense Statement. After the end of each
Operating Expense Year, Landlord shall issue a statement of Building Operating
Expenses, CAM Operating Expenses and the BID Assessment for such Operating
Expense Year, including a computation of Tenant's Operating Expense Payment for
such Operating Expense Year (an "Operating Expense Statement"). If Tenant's
payments under subsection 3.2(b)(ii) above on account of Tenant's Operating
Expense Payment shall have been less than Tenant's Operating Expense Payment,
the deficiency shall be payable by Tenant to Landlord within ten (10) days after
receipt of such Operating Expense Statement. If Tenant's payments under
subsection 3.2(b)(ii) above on account of Tenant's Operating Expense Payment
shall have been more than Tenant's Operating Expense Payment, the overpayment
(together with interest on such overpayment if such overpayment shall be by more
than five percent (5%), at the Interest Rate calculated on the amount of such
overpayment from the date that Tenant shall have overpaid to the date Landlord
shall credit to Tenant such overpayment), shall be credited by Landlord against
Tenant's subsequent payments due under Sections 3.1 and Section 3.2 or promptly
paid to Tenant.
(d) Partial Operating Expense Year; Delay. Tenant's liability
under this Section 3.2 with respect to the Operating Expense Year in which this
Lease shall commence and with respect to the Operating Expense Year in which
this Lease shall expire or (except on account of Tenant's default) terminate
shall be computed on a pro-rata basis. Landlord's failure to render or delay in
rendering an Estimated Operating Expense Statement or an Operating Expense
Statement with respect to any Operating Expense Year shall not prejudice
Landlord's right thereafter to render the same with respect thereto or with
respect to any subsequent Operating Expense Year nor shall the rendering of an
Operating Expense Statement for any Operating Expense Year prejudice Landlord's
right thereafter to render a corrected Operating Expense Statement for such
Operating Expense Year.
3.3. (a) Each Tax Statement and Operating Expense Statement
(individually, a "Statement") given by Landlord pursuant to this Article 3 shall
be conclusive and binding upon Tenant unless within one hundred twenty (120)
days after the giving of such applicable Statement (except that with respect to
the first Operating Expense Year, Tenant shall have one hundred eighty (180)
days to dispute the first Operating Expense Statement), Tenant shall notify
Landlord that it disputes the correctness of such Statement, or any portion
thereof, specifying, to the extent reasonably practicable, the particular
respects in which such Statement is claimed to be incorrect. In addition, all
increases in CAM Operating Expenses shall be deemed to be reasonable unless
within one hundred twenty (120) days after the giving of the applicable
Statement, Tenant shall notify Landlord that it disputes the reasonableness of
such CAM Operating Expenses, specifying, to the extent reasonably practicable,
the reasons why such increases in CAM Operating Expenses are claimed to be
unreasonable. No such notice of objection, however, shall excuse Tenant from its
obligation to timely make payment in accordance with such Statement, provided,
however, Tenant's position shall in no way be prejudiced thereby. If any such
dispute shall not have been settled by agreement within one hundred fifty (150)
days after receipt of such Statement by Tenant (or within two hundred ten (210)
days in the case of a dispute with respect to the first Operating Expense Year),
either party may submit the dispute to arbitration as provided in Article 35. If
the dispute shall be determined in Tenant's favor, Landlord shall forthwith pay
to Tenant the amount of Tenant's overpayment resulting from compliance with
Landlord's Statement, together with interest thereon at the Interest Rate from
the date of such overpayment. Any Statement furnished by Landlord to Tenant
pursuant to this Article 3, shall be in reasonably sufficient detail (including,
with respect to Taxes, in such detail so that Tenant may independently calculate
the amount of Taxes due and payable and with respect to Operating Expenses, in
at least such detail as is shown on Exhibit D annexed hereto and made a part
hereof). If Landlord shall fail to deliver any Statement to Tenant within
eighteen (18) months after the expiration of the applicable Operating Expense
Year or Tax Year, as the case may be, or if Landlord shall fail to deliver any
corrected Statement to Tenant within thirty-six (36) months after the expiration
of the applicable Operating Expense Year or Tax Year, as the case may be (except
that such thirty-six (36) month period shall be shortened to twenty-four (24)
months with respect to any such corrected Statement that is given with respect
to any Operating Expense Year or Tax Year, as the case may be, in which
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the Term shall expire or terminate), Landlord shall have no right to deliver a
Statement or corrected Statement for any such Operating Expense Year or Tax
Year, as the case may be, and if Landlord shall deliver a Statement or corrected
Statement to Tenant after such applicable period as aforesaid, Tenant shall have
no liability to pay any underpayments shown thereon to be due and owing to
Landlord.
(b) In the event that any amount owing to Tenant hereunder and
payable either in cash or by means of a credit against the Rent shall not be
fully paid or credited to Tenant on the Expiration Date or earlier termination
of this Lease (other than for Tenant's default), Landlord shall promptly pay to
Tenant the amount not theretofore paid or credited to Tenant, together with
interest payable thereon at the Interest Rate. In no event shall the Fixed Rent
ever be reduced by operation of Sections 3.1 or 3.2. The provisions of Sections
3.1 and 3.2 shall survive the expiration or earlier termination of this Lease.
(c) Tenant and its representatives shall have the right, at
Tenant's expense, during the one hundred twenty (120) day period following the
giving of each Operating Expense Statement (or during the one hundred eighty
(180) day period following the giving of the Operating Expense Statement for the
first Operating Expense Year), on not less than ten (10) days' prior written
request by Tenant to Landlord, to examine, audit and copy (at Tenant's expense)
at Landlord's office in the City, during normal Business Hours, Landlord's books
and records pertaining to the Operating Expenses, to enable Tenant to verify the
accuracy of such Operating Expense Statement.
ARTICLE 4
ELECTRICITY
4.1. (a) Landlord shall obtain on Tenant's behalf electrical service
required by Tenant in connection with its use of the Premises, Tenant's
Designated Mechanical Space and Tenant's Designated Roof Space directly from the
public utility company servicing the Building. Tenant's consumption of
electricity shall be directly metered by the public utility company and Tenant
shall pay the costs of such consumption and any other costs of such service
directly to the public utility company. Any deposits required by such public
utility with respect to such service and all costs in connection with obtaining
such service shall be paid by Tenant directly to such public utility or shall be
reimbursed to Landlord within thirty (30) days of Landlord's submission of a
xxxx to Tenant therefor, as the case may be, except that Landlord shall pay the
cost of installing such direct meters. Landlord shall promptly and diligently
arrange for such public utility company to install such meter(s) as shall be
necessary to measure consumption of electricity in the Premises. Tenant shall
follow, or cooperate with Landlord to follow, all necessary procedures required
by the public utility to qualify and be designated as the account payee for the
public utility. Landlord shall allow Tenant to connect to the Building electric
bus ducts in the electric closets located within the Premises, at Tenant's sole
cost and expense, and subject to the terms of this Lease, to make Tenant's
wiring connections thereto in order to furnish electrical service to the
Premises. Upon such installation, Tenant shall pay directly to the utility
company the amounts due for electric current consumed by Tenant, as indicated by
such meters. At Tenant's request (to be made not later than thirty (30) days
following the Commencement of Construction of the Building) and cost, Landlord
shall provide submetering for the aforesaid electric service in lieu of direct
metering.
(b) Notwithstanding anything to the contrary in Section 4.1(a):
(i) Landlord shall provide, at Landlord's expense, a hard-wired
addressable system which is connected to the Building Class E alarm and
communication fire management system, and Landlord shall make circuits of
adequate capacity to provide Tenant with all fire alarm points required by Legal
Requirements (and such additional capacity as may be set forth on the Base
Building CDs) available for Tenant to tie into and program such system, at
Landlord's expense. Landlord shall allow Tenant to connect to the Building
emergency power generation system to provide continuous electric current for the
emergency lighting systems including, without limitation, the equipment and
fixtures thereof within the Premises (the "Emergency Lighting Systems"), at
Landlord's sole cost and expense. Building electrical contractor costs for final
Tenant connections to the data gathering panels or other appropriate equipment
on all floors for reprogramming building fire management systems, filing,
testing and sign-off and all costs for software changes to the Building Class E
systems in connection with
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Tenant's initial fit-out shall be at Landlord's cost and expense. Tenant shall
pay Landlord's actual cost for electric current consumed by Tenant for the
Emergency Lighting Systems, determined as hereinafter provided in this Section
4.1(b), on a monthly basis as Additional Rent.
(ii) Landlord will, at Landlord's expense, cause an independent
reputable electrical consultant to make an initial survey in the Premises (or
the applicable portion thereof), and thereafter may, from time to time at
Landlord's expense, cause an independent reputable electrical consultant to make
surveys in the Premises (or the applicable portion thereof), covering
the Emergency Lighting Systems, the use of electrical current thereof and the
number of kilowatt hours consumed by Tenant in the Premises (or the applicable
portion thereof) for such Emergency Lighting Systems. Tenant shall also have the
right, at Tenant's expense, to initiate surveys by an independent reputable
electrical consultant in the Premises covering the Emergency Lighting Systems
therein, the use of current thereof and the number of kilowatt hours consumed by
Tenant in the Premises (or the applicable portion thereof) for such Emergency
Lighting Systems. At Tenant's request and cost, Landlord shall provide
submetering for the Emergency Lighting System.
(iii) Tenant shall pay Landlord for the use of such electricity for
the Emergency Lighting Systems in an amount equal to (A) the number of kilowatt
hours consumed by Tenant as shown by survey, multiplied by (B) Landlord's
average cost per kilowatt hour for the Building for such electricity during the
period(s) in question, or, in the event submetering is installed as set forth in
Section 4.l(b)(ii) above, then as shown on such submeter(s).
(c) The determination in accordance with any survey of the electric
current consumed in the Premises for the Emergency Lighting Systems pursuant to
Section 4(b) shall be binding and conclusive on Landlord and Tenant, from and
after the delivery of copies of such determination to Landlord and Tenant,
unless within ninety (90) days after the delivery of such copies, the party not
causing the survey to be performed notifies the other that it disputes such
determination. If such other party disputes the determination, it shall, at its
own expense, obtain from an independent reputable electrical consultant its own
survey in the Premises (or the applicable portion thereof) covering the
Emergency Lighting Systems therein, the use thereof and the number of kilowatt
hours consumed by Tenant for the use of such Emergency Lighting Systems in the
Premises (or the applicable portion thereof) and a determination of the electric
current consumed in the Premises (or the applicable portion thereof) for the use
of such Emergency Lighting Systems in accordance with the provisions of this
Article 4. Landlord and Tenant's consultant then shall seek to agree on a
finding of such determination of the electric current consumed in the Premises
(or the applicable portion thereof) for the use of the Emergency Lighting
Systems. If such consultants cannot agree, such consultants shall choose a third
reputable independent electrical consultant who shall not be employed by or have
been retained on an independent consulting basis within the last two years by,
either Landlord or Tenant, or any Affiliate of Landlord or Tenant, whose cost
shall be shared equally by Landlord and Tenant, to make a similar survey, and
the determination of such third electrical consultant shall, if performed in
accordance with the provisions of the Section 4.1, be binding on Landlord and
Tenant. If Landlord and Tenant cannot agree on the selection of such third
consultant, within ten (10) days from the date either electrical consultant
shall first give notice to the other of its choice of such third consultant,
then either party may request such appointment of such third electrical
consultant by the American Arbitration Association (or any organization
successor thereto). However, pending the determination of such third electrical
consultant or the agreement of Landlord and Tenant's electrical consultant,
Tenant shall, without prejudice to Tenant's rights, pay Landlord for the amount
of electric current consumed in the Premises (or the applicable portion thereof)
for the Emergency Lighting Systems as determined by Landlord. If the resolution
of any such dispute by the third electrical consultant or by agreement of
Landlord and Tenant's electrical consultant shall include a determination that
Tenant shall have overpaid for any electric current consumed in the Premises for
the Emergency Lighting Systems, such overpayment (together with interest thereon
at the Interest Rate, calculated from the date of the overpayment to the date
the overpayment is credited or refunded to Tenant) shall be promptly paid to
Tenant or credited against the next installment of Additional Rent due under
Article 3 hereof (but following the expiration or earlier termination of this
Lease, Landlord shall pay versus credit such amount to Tenant). If the
resolution of any such dispute shall include a determination that Tenant has
underpaid for any electric current consumed in the Premises for the Emergency
Lighting Systems, then Tenant shall pay to Landlord the amount of any such
underpayment within ten (10) Business Days following demand therefor.
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(d) Tenant shall pay as Additional Rent the cost of operating the DX
units during non-Business Hours to the extent occasioned by Tenant's use of the
Premises, Tenant's Designated Mechanical Space and/or Tenant's Designated Roof
Space.
(e) Each amount due under any provision of this Article 4 shall be due
within ten (10) Business Days following Landlord's rendition of a xxxx therefor.
4.2. (a) The total power available for connection by Tenant from the
Building electric bus duct in the electric closets in the Premises for Tenant's
exclusive use for lighting and utility power outlets and exclusive of Building
HVAC, Building system heating, if any and domestic hot water, if any, shall be
in the amount of eight (8.0) xxxxx demand load per useable square foot.
(b) In addition to the electrical capacity available to Tenant
pursuant to section 4.2(a), Landlord shall make up to 1,300 amps available to
Tenant for supplemental use in accordance with Exhibit N.
4.3. Tenant will not (a) install a connected load (including all of
Tenant's supplemental air conditioning, if any, and other equipment but
excluding Building system air conditioning, if any, Building system heating, if
any, and domestic hot water, if any) or otherwise draw (and with respect to
Tenant's Designated Mechanical Space and Tenant's Designated Roof Space,
Landlord shall not be required to furnish) in excess of the limits set forth in
Section 4.2, or (b) make or perform or permit the making or performing of any
alterations to wiring, installations or other electrical facilities in or
serving the Premises without the consent of Landlord in each instance, which
consent shall not be unreasonably withheld. If Tenant requires electricity in
excess of the capacity described above, then Tenant, at Tenant's expense, and
with Landlord's consent, not to be unreasonably withheld, may install feeders,
risers, wiring and other conductors and equipment (collectively, "additional
electrical equipment") sufficient to supply such additional electricity provided
that, in Landlord's reasonable judgment (i) sufficient electric service is
available, (ii) such additional electrical equipment is permissible under
applicable Legal Requirements and Insurance Requirements and will not cause
material permanent damage or injury to the Building or the Premises, or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or unreasonably interfere with or disturb other
tenants or occupants of the Building. Any such installation by Tenant of
additional electrical capacity to the Premises shall comply with the applicable
requirements of Article 15.
4.4. Without limiting any other provision of this Lease, Tenant may
initially distribute its electricity as it desires provided (i) it shall at all
times comply with the rules, regulations, terms and conditions applicable to
service, equipment and wiring and requirements of the public utility supplying
electricity to the Building, (ii) Tenant does not unbalance the load across the
phases by more than ten percent (10%) or exceed the designed load capacity for
electrical installations or the risers and is otherwise in accordance with good
electrical installation and distribution practices and (iii) Tenant shall
deliver to Landlord prior notice describing the nature of the proposed
distribution. Any alterations to Tenant's initial distribution shall be subject
to the foregoing requirements and Article 15.
4.5. Landlord shall not in any way be liable or responsible to Tenant for
any loss or damage or expense which Tenant sustains or incurs if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements.
ARTICLE 5
INDEMNITY
5.1. Without limiting anything set forth in Section 2.6, Tenant hereby
indemnifies Landlord from any loss or liability of whatever nature:
(a) arising or claimed to arise from any act, omission or negligence
of Tenant or any of the other Tenant Parties (other than any subtenant,
contractor or invitee of Tenant) occurring in or about the Building and/or the
Land except to the extent caused by the negligence, misfeasance or omission of
Landlord or Landlord's Parties;
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(b) arising or claimed to arise from any act, omission or negligence
of any subtenant, contractor or invitee of Tenant occurring in the Premises
except to the extent caused by the negligence, misfeasance or omission of
Landlord or Landlord's Parties; and
(c) arising or claimed to arise from any accident, injury or damage
whatsoever caused to any Person (as hereinafter defined) or to the property of
any Person occurring during the Term (or during any other period during which
Tenant shall use or occupy the Premises) in or about the Premises caused by
Tenant or any of Tenant's Parties, except to the extent caused by the
negligence, misfeasance or omission of Landlord or Landlord's Parties.
5.2. Without limiting anything set forth in Section 2.6, Landlord hereby
indemnifies Tenant from any loss or liability of whatever nature:
(a) arising or claimed to arise from any act, omission or negligence
of Landlord or any of the other Landlord Parties occurring in or about the
Building and/or the Land except to the extent caused by the negligence,
misfeasance or omission of Tenant or any of Tenant's Parties; and
(b) arising or claimed to arise from any accident, injury or damage
whatsoever caused to any Person occurring during the Term in or about the
Premises caused by Landlord or any of Landlord's Parties except to the extent
caused by the negligence, misfeasance or omission of Tenant or any of Tenant's
Parties.
Neither party shall have any liability for any consequential damages suffered by
the other party or by any Person claiming through such party.
ARTICLE 6
QUIET ENJOYMENT
6.1. Tenant shall peaceably and quietly have, hold and enjoy the Premises
without hindrance, ejection or molestation by Landlord or any other person
lawfully claiming through or under Landlord, subject, nevertheless, to the
provisions of this Lease and to Superior Leases and Mortgages (both as
hereinafter defined). This covenant shall be construed as a covenant running
with the Land, and is not, nor shall it be construed as, a personal covenant of
Landlord, except to the extent of Landlord's interest in the Real Property and
only for so long as such interest shall continue, and thereafter Landlord shall
be relieved of all liability hereunder and this covenant shall be binding only
upon subsequent successors in interest of Landlord's interest in this Lease, to
the extent of their respective interests, as and when they shall acquire the
same, and so long as they shall retain the same.
ARTICLE 7
ASSIGNMENT, SUBLETTING AND MORTGAGING
7.1. (a) Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise (i) assign or otherwise transfer this Lease or any
interest or estate herein, (ii) sublet the Premises or any part thereof or allow
the Premises or any part thereof to be used or occupied by others in violation
of Article 2, or (iii) mortgage, pledge, encumber or otherwise hypothecate this
Lease or the Premises or any part thereof in any manner; without in each
instance obtaining the prior written consent of Landlord, except as otherwise
provided in this Article 7. For purposes of this Article 7, (A) a transfer of
control of Tenant or any subtenant at any one time or over a period of time
through a series of transfers shall be deemed an assignment of this Lease or
such sublease, as the case may be, and (B) a material modification, amendment or
extension of a sublease requiring Landlord's consent hereunder shall be deemed a
sublease requiring approval of the relevant provisions thereof in accordance
with the terms of this Article 7, and (C) any Person or legal representative of
Tenant to whom Tenant's interest under this Lease passes by operation of law or
otherwise shall be bound by the provisions of this Article 7. For the purposes
of this Article 7, "control" shall be deemed to mean either (1) ownership of not
less than fifty percent (50%) of the issued and outstanding capital stock of any
corporate entity or not less than fifty percent (50%) of the legal and equitable
interest in any other business entity or (2) ownership of not less than
twenty-five percent (25%) of the issued and outstanding capital stock of any
corporate entity or not less than twenty-five percent (25%) of the legal and
equitable
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interest in any other business entity and the possession of the power directly
or indirectly to direct or cause the direction of management and policy of such
corporation, partnership or other business entity, whether through the ownership
of voting securities, by contract, common directors or officers, the contractual
right to manage the business affairs of any such corporation, partnership or
business entity or otherwise. For purposes of the foregoing sentence, stock
ownership shall be determined in accordance with the principles set forth in
Section 544 of the Internal Revenue Code of 1986, as the same existed on October
22, 1986 and the transfer of the Stock of any corporate tenant or subtenant
shall be deemed not to include the sale of such Stock by persons or parties,
through the "over-the-counter market" or through any recognized stock exchange,
other than those deemed "insiders" within the meaning of the Securities Exchange
Act of 1934, as amended.
(b) Tenant shall have the right, upon prior notice to Landlord (or
simultaneous notice to Landlord if prior notice is prohibited by applicable law
or rules and regulations of applicable governmental authorities or regulatory
agencies thereof or is otherwise reasonably impracticable), but without the
consent of Landlord to assign this Lease (i) to a corporation or other entity
into or with which Tenant is merged or consolidated or to an entity to which
substantially all of Tenant's assets are transferred, or (ii) to a corporation
or other entity arising out of the reorganization of Tenant from (A) a
partnership to a corporation the majority of shareholders of which were the
partners of Tenant immediately prior to such reorganization or (B) a corporation
to a partnership the majority of partners of which were the shareholders of
Tenant immediately prior to such reorganization, or (iii) in connection with a
transaction involving the sale, transfer or exchange of stock of any corporate
tenant or the sale or transfer of all or any portion of the partnership
interests in any partnership tenant (any corporation, partnership or entity
which is the successor of Tenant following any of the transactions described in
(i), (ii) or (iii) above, a "successor corporation or partnership"); provided,
in each such case, such merger, consolidation, sale, transfer or exchange of
stock or partnership interests or transfer of assets shall be for a valid
business purpose and not principally for the purpose of transferring the
leasehold estate created by this Lease and, provided, further, such surviving or
acquiring corporation or entity shall use the Premises in compliance with and
assume the terms and provisions of, this Lease from and after the effective date
of the assignment (each of the foregoing are hereinafter called a
"Reorganization"). In addition, Tenant shall have the right, upon ten (10)
Business Days' prior notice to Landlord, but without Landlord's consent, to
assign this Lease to an Affiliate (defined below) of Tenant. The term
"Affiliate" shall mean, with respect to the party at issue, any Person who or
which directly or indirectly controls, is controlled by or is under common
control with such party.
(c) Tenant shall have the right, upon ten (10) Business Days' prior
notice to Landlord, but without Landlord's consent, to sublease all or any
portion of the Premises to an Affiliate of Tenant (or to allow such Affiliate to
occupy the same pursuant to an occupancy agreement). If any Affiliate entity
shall cease to be an Affiliate of Tenant, then such entity may continue to
sublease or occupy any portion(s) of the Premises it has subleased or occupied
as an Affiliate of Tenant, as the case may be, provided and upon condition that
(A) from and after the date such entity ceases to be an Affiliate of Tenant the
sublease rent and other occupancy charges payable by such entity shall be at
least equal to the Fixed Rent and the Additional Rent payable hereunder by
Tenant (on a per square foot basis) with respect to such portion(s) of the
Premises, (B) the principal purpose of the transaction which results in such
entity no longer being an Affiliate of Tenant shall not be the acquisition of
such Affiliate's interest in its sublease or other occupancy agreement, and (C)
the sublease or other occupancy agreement shall comply with the provisions of
this Article 7.
(d) Supplementing Section 7.1(b) and without limiting any other
provision of this Article 7, Landlord expressly agrees that Tenant shall have
the right, upon prior notice to Landlord, but without the consent of Landlord,
to assign this Lease or sublease the Premises to WellChoice, Inc. (or its
successor-in-interest, or an Affiliate of WellChoice, Inc. or an entity
acquiring control of the stock or control of all of the assets of WellChoice,
Inc., "Well") in connection with the currently contemplated merger by Tenant
into (or asset sale by Tenant to) Well; provided, however, that (i) such
assignee has a Material Net Worth and (ii) the other conditions set forth in
Section 7.1(b) are satisfied.
7.2. If this Lease shall be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease,
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Landlord may, after the occurrence of an Event of Default (as hereinafter
defined) by Tenant, collect the Rent from the subtenant or occupant. In either
event, Landlord may apply the net amount collected to the Rent herein reserved,
but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of any provisions of Section 7.1, or the acceptance of the assignee,
subtenant or occupant as tenant. Nothing contained herein shall be construed to
relieve the Tenant named herein or any assignee or other successor in interest
(whether immediate or remote) of the Tenant named herein from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this Lease, except
to the extent expressly provided in Section 7.13 hereof. The consent by Landlord
to a particular assignment, subletting or use or occupancy by others shall not
in any way be considered as a consent by Landlord to any other or further
assignment, or subletting or use or occupancy by others. Reference in this Lease
to use or occupancy by others (that is, anyone other than Tenant) shall not be
construed as limited to subtenants but shall also include licensees and others
claiming under or through Tenant, immediately or remotely.
7.3. Any assignment or transfer shall be made only if, and shall not be
effective until, the assignee shall execute, acknowledge and deliver to Landlord
an agreement in recordable form and otherwise in form reasonably satisfactory to
Landlord, whereby the assignee shall assume the obligations and performance of
this Lease and agree to be bound by and upon all of the covenants, agreements,
terms, provisions and conditions hereof on the part of Tenant to be performed or
observed from and after the effective date of such assignment and whereby the
assignee shall agree that the provisions of Section 7.1 hereof shall,
notwithstanding such an assignment or transfer, continue to be binding upon it
in the future. Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of
the Fixed Rent (or any other amounts required to be paid by Tenant pursuant to
this Lease) by Landlord from an assignee or transferee or any other party,
Tenant shall remain fully and primarily liable for the payment of the Fixed Rent
and the Additional Rent due and to become due under this Lease and for the
performance of all of the covenants, agreements, terms, provisions and
conditions of this Lease on the part of Tenant to be performed or observed,
except to the extent expressly provided in Section 7.13 hereof.
7.4. If Tenant shall, at any time or from time to time, during the Term
desire to assign this Lease or sublet all or part of the Premises, other than as
expressly permitted pursuant to the provisions of Section 7.1 hereof, Tenant
shall give notice thereof to Landlord, which notice shall be accompanied by (a)
a statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, (b) a statement setting forth in reasonable detail the
nature and character of the business of the proposed assignee or subtenant and
its proposed use of the Premises, (c) current financial information with respect
to the proposed assignee or subtenant, (d) in the case of a sublease of less
than the entire Premises, a floor plan clearly indicating the portion of the
Premises to be subleased and all means of ingress and egress to such portion of
the Premises to be subleased and to the remainder of the Premises, and (e) such
additional information related to the proposed assignment or sublease as
Landlord shall reasonably request, provided, however, Landlord shall be entitled
to make only one (1) such request in connection with each proposed assignment or
sublease and any such request shall be made within five (5) Business Days after
Landlord's receipt of any such notice (a "Tenant Notice").
7.5. (a) If Tenant shall furnish Landlord with a Tenant Notice with respect
to a proposed assignment or subletting and Landlord shall fail to notify Tenant
of its approval or disapproval of any such proposed assignment or subletting
within twenty (20) Business Days after it receives a Tenant Notice, or, if
Landlord shall request any additional information in accordance with Section
7.4(e) above, then within ten (10) Business Days after Landlord has received the
information requested, Landlord shall be deemed to have consented to the
proposed assignment or subletting pursuant to the Tenant Notice. Notwithstanding
the foregoing, Tenant shall have no right to assign this Lease or to sublease
all or any portion of the Premises unless Tenant shall, at least five (5)
Business Days prior to the effective date of any proposed assignment or
sublease, deliver to Landlord a true and correct copy of the proposed assignment
instrument or sublease, as the case may be, except, however, that timely
delivery of the same shall not be a condition precedent to an assignment or
subletting permitted pursuant to Section 7.1 provided Tenant delivers to
Landlord a true and correct copy of any assignment instrument or sublease made
pursuant to Section 7.1 promptly following the execution thereof.
(b) If Landlord shall fail to respond to a Tenant Notice within the
periods provided in Section 7.5(a) above and thereby be deemed to have consented
to the proposed
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assignment or sublease, Landlord shall, upon Tenant's request, execute and
deliver to Tenant, a statement prepared by Tenant and in form reasonably
acceptable to Landlord confirming such deemed consent within ten (10) days of
the submission of such statement to Landlord. If Landlord shall have or shall be
deemed to have consented to such assignment or subletting as provided herein,
Tenant shall be free to assign this Lease to such proposed assignee or sublet
the Premises or the portion thereof which is the subject of such sublease to
such proposed subtenant on the same material terms and conditions set forth in
the Tenant Notice subject to the terms and conditions of this Lease. Tenant
acknowledges and agrees that Landlord's approval (or deemed approval) of any
assignment or sublease in accordance with the terms of this Article 7 shall not
constitute Landlord's approval of any of the specific terms of such assignment
or sublease, as the case may be, and Tenant shall cause any such assignment or
sublease to comply with the terms and provisions of this Lease in all respects.
(c) If Tenant shall fail to execute and unconditionally deliver an
assignment or sublease in accordance with a Tenant Notice which has been
consented or deemed consented to by Landlord within six (6) months after the
date of Landlord's consent or deemed consent thereto, then any election or
deemed election or consent or deemed consent of Landlord with respect to such
proposed assignment or sublease shall be withdrawn and of no further force and
effect and any assignment or sublease thereafter entered into must again comply
with the terms of this Article 7.
(d) With respect to each any every sublease permitted under this
Lease:
(i) the term of any sublease shall expire no later than the day
preceding the Expiration Date; and
(ii) in the case of a subletting which includes less than entire
floor(s), all costs incurred with respect to providing reasonably appropriate
means of ingress and egress from the sublet space (which means of ingress and
egress shall conform to Legal Requirements and shall be subject to the
provisions of Article 15, with respect to Tenant Changes), shall be borne by
Tenant.
7.6. Landlord shall not unreasonably withhold its consent to any request by
Tenant to assign this Lease or sublet all or any portion of the Premises
pursuant to and in accordance with Section 7.5. In the event that as of the date
of Landlord's consent and as of the effective date of the proposed assignment or
the commencement date of the proposed sublease, no Event of Default shall have
occurred and be continuing, it shall be unreasonable for Landlord to withhold
its consent to a proposed assignment or sublease if all of the following
conditions have been met:
(a) in Landlord's reasonable judgment (i) the proposed assignee or
subtenant is engaged in a business or activity, and the Premises, or the
relevant part thereof, will be used in a manner, which is in keeping with the
then standards of the Building, and (ii) with respect to a proposed assignment,
the proposed assignee has a sufficient net worth considering the responsibility
involved;
(b) the form of the proposed sublease or assignment shall be in
compliance with the applicable provisions of this Lease, and any sublease shall
be subject and subordinate to this Lease in all respects;
(c) there shall not be more than five (5) subtenants or occupants
(other than Tenant or any Affiliate of Tenant) occupying space on one floor of
the Premises;
(d) the proposed assignee or subtenant shall not be a Protected
Occupant (as hereinafter defined). (Within fifteen (15) days after receipt of a
notice from Tenant stating that Tenant desires to assign this Lease or sublease
all or a portion of the Premises (and in the case of a proposed sublease of less
than the entire Premises, such notice shall identify the portion of the Premises
proposed to be subleased), together with a specific request therefor, Landlord
shall provide Tenant with a list of Protected Occupants. Tenant shall not
contact or negotiate with any of the Protected Occupants (or cause any of the
Protected Occupants to be contacted or negotiated with) in the six (6) month
period following Tenant's receipt of the list of Protected Occupants, provided,
however, such six (6) month period shall be extended for an additional six (6)
months with respect to those Protected Occupants to whom Landlord (or any
Affiliate of Landlord which is an owner of a building in the Project) shall have
submitted a written proposed
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lease, sublease or occupancy agreement provided that negotiations with respect
to such proposed lease, sublease or occupancy agreement are continuing in the
good faith judgment of Landlord. As used herein, the term "Protected Occupant"
shall mean any entity or person with whom Landlord is currently or has been
negotiating for the demise of space (including additional space) in the Building
comparable (i.e., within twenty percent (20%), higher or lower, in size) to that
which is the subject of Tenant's proposed assignment or subletting, as disclosed
by Landlord to Tenant within ten (10) business days following Tenant's request
for such list in connection with a proposed assignment or subletting, subject to
updating from time to time and in any event in connection with any new or
significantly delayed proposed assignment or subletting by Tenant;
(e) the proposed assignee or subtenant shall not be a Person with whom
Landlord or any Affiliate of Landlord which is an owner of a building in the
Project is then negotiating or has had negotiations for the lease of space in
the Building or the Project during the preceding six (6) month period unless
such proposed sublease or assignment is with respect to non-comparable space
(i.e., space that more than twenty percent (20%) higher or lower in size).
(Landlord shall notify Tenant whether or not such proposed assignee or subtenant
is a Person with whom Landlord or any Affiliate of Landlord which is an owner of
a building in the Project is or been negotiating during the preceding six (6)
month period within five (5) Business Days after receipt of a notice from Tenant
identifying the proposed assignee or subtenant, together with a specific request
therefor. As used in this subsection (i), the terms "negotiating" or
"negotiations" shall mean that Landlord or such Affiliate of Landlord which is
an owner of a building in the Project shall have submitted a written proposal to
such Person for the leasing of space in the Building or the Project, as
applicable and, in the good faith determination of Landlord, negotiations with
respect to such proposal are continuing; and
(f) the character of the business to be conducted or the proposed use
of the Premises by the proposed assignee or subtenant shall not in Landlord's
reasonable opinion, (i) materially increase Building Operating Expenses; (ii)
materially increase the burden on existing cleaning or other Building services
or elevators over the burden prior to such proposed subletting or assignment
unless Tenant shall agree to pay to Landlord any such increased costs; or (iii)
violate any provisions or restrictions contained in Article 2 or elsewhere
herein relating to the use or occupancy of the Premises.
Landlord's consent to any assignment or sublease shall be set forth in an
instrument prepared by Landlord in form reasonably satisfactory to Landlord,
provided however, that Landlord's consent shall be consistent with the terms and
provisions of this Lease and, in situations where it would be unreasonable for
Landlord to withhold its consent, Landlord shall not impose any additional
requirements or obligations which materially and adversely affect Tenant, any
such assignee or subtenant or which materially and adversely diminish Tenant's
rights under this Lease or subtenant's rights under the sublease; in the case of
any assignment, such instrument shall include an assumption by the proposed
assignee of the obligations of Tenant hereunder arising from and after the date
of such assignment. Landlord's consent shall not be effective until such
instrument is executed and delivered by Landlord, Tenant and the proposed
assignee or subtenant.
7.7. Any sublease shall provide that notwithstanding anything contained in
this Lease, such sublease shall not be assigned and that the Premises demised
thereunder shall not be further sublet without the prior written consent of
Landlord in each instance, which consent with respect to one further assignment
or with respect to one further sublease of the subleased Premises or any portion
thereof, shall not be unreasonably withheld subject to the terms of this Article
7 (except that subleases made pursuant to Section 7.1 hereof shall be permitted
to be further assigned or the subject of a further subletting otherwise
permitted by Section 7.1 without Landlord's prior consent), and shall also
contain provisions substantially the same as those contained in Sections 12,
42.4 and 42.10(a) and, if Tenant shall allow such subtenant to use or install
the Antenna (as hereinafter defined), 38.3. Except as otherwise expressly set
forth herein, if any such sublease or sub-sublease is assigned or further sublet
without the consent of Landlord in each instance obtained or without compliance
with the provisions of this Article, Tenant shall immediately terminate such
sublease or arrange for the termination thereof, and proceed expeditiously to
have the occupant thereunder dispossessed. Landlord's consent to any sublease or
assignment shall not be deemed or construed to modify, amend or affect the terms
and provisions of this Lease, or Tenant's obligations hereunder, which shall
continue to apply to the occupants thereof, as if the sublease or assignment had
not been made.
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7.8. If Landlord shall consent to any assignment of this Lease or to any
sublease, Tenant shall, in consideration therefor, pay to Landlord, as
Additional Rent:
(a) In the case of an assignment (other than an assignment to an
Affiliate of Tenant or an assignment otherwise expressly permitted pursuant to
Section 7.1), on the effective date of the assignment, fifty percent (50%) of
all sums and other consideration payable to Tenant by the assignee, for or by
reason of such assignment, whether paid in one or more than one installment,
before or after the effective date of the assignment, including, but not limited
to, sums paid for Tenant's fixtures, leasehold improvements, equipment, Antenna
(as hereinafter defined) or the use thereof, furniture, furnishings or other
personal property (collectively, the "Assignment Proceeds") but excluding:
(i) in the case of a sale of Tenant's leasehold improvements or
Tenant's Property, the then unamortized or undepreciated cost of Tenant's
leasehold improvements or Tenant's Property so sold, determined on the basis of
Tenant's accounting records;
(ii) in the case of a lease or sublease of Tenant's leasehold
improvements or Tenant's Property, the unamortized or undepreciated cost of
Tenant's leasehold improvements or Tenant's Property so leased or subleased to
such assignee, determined on the basis of Tenant's accounting records; and
(iii) the reasonable, actual third-party expenses incurred by Tenant
in connection with such assignment for brokerage commissions and legal fees and
disbursements.
If any portion of the Assignment Proceeds shall be payable over a period of
time, then such costs and expenses shall be amortized over a like period of time
in the proportion that the portion of the Assignment Proceeds in any year bears
to the total Assignment Proceeds. The foregoing expenses are hereinafter
collectively referred to as the "Assignment Expenses." Landlord shall not be
entitled to any Assignment Proceeds derived from an assignment by Tenant to any
Affiliate of Tenant or other subletting expressly permitted pursuant to Section
7.1; and
(b) In the case of a sublease (other than a sublease to an Affiliate
of Tenant or a subletting otherwise expressly permitted pursuant to Section 7.1)
fifty (50%) percent of any rents, additional charges or other consideration
payable under the sublease to Tenant by the subtenant which are in excess of the
Fixed Rent and the Additional Rent accruing hereunder during the term of the
sublease, including, but not limited to, sums paid for Tenant's fixtures,
leasehold improvements, equipment, Antenna or the use thereof, furniture,
furnishings or other personal property (collectively, the ("Subletting
Proceeds") excluding:
(i) in the case of a sale of Tenant's leasehold improvements or
Tenant's Property the then unamortized or undepreciated cost of Tenant's
leasehold improvements or Tenant's Property so sold, determined on the basis of
Tenant's accounting records;
(ii) in the case of a lease or sublease of Tenant's Property, the
allocable portion for such year of the then unamortized or undepreciated cost of
Tenant's Property so leased or subleased, amortized over the remaining Term of
this Lease, which unamortized or undepreciated costs shall be determined on the
basis of Tenant's accounting records; and
(iii) the reasonable, actual third-party expenses incurred by Tenant
in connection with such sublease for brokerage commissions, legal fees and
construction of any subtenant improvements by Tenant, the amount of which
construction expenses shall be amortized over the term of the sublease.
The foregoing costs and expenses are hereinafter collectively referred to as the
"Subletting Expenses." Landlord shall not be entitled to any Subletting Proceeds
derived from a sublease by Tenant to any Affiliate of Tenant or other subletting
expressly permitted pursuant to Section 7.1.
7.9. Tenant hereby indemnifies Landlord against any liability asserted
against Landlord or any Landlord Party for any brokerage commission, finder's
fee, consultant's fee or other compensation with respect to any assignment or
sublease or proposed assignment or sublease; provided, however, if it shall be
finally determined by a court of competent jurisdiction that Landlord or any
Landlord Party is liable for such brokerage commission, finder's fee,
consultant's fee or other compensation based upon a written or oral agreement
between such broker, finder or consultant, as the case may be, and Landlord or
any Landlord Party, as the case
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may be, then Landlord shall reimburse Tenant for, and hold Tenant harmless
against, such loss, cost, liability or claim, including reasonable attorneys'
fees and disbursements incurred by Tenant in the investigation or defense of
such claim, action or proceeding. Except as set forth in Section 7.13 below, if
this Lease is assigned, the assignor and all its predecessors as tenant
hereunder (collectively, the "predecessor tenants") shall be and remain fully
liable for the due performance and observance of all of the terms and conditions
of this Lease to be performed by Tenant throughout the Term and no amendment of
this Lease or waiver of, or consent to departure from, any of the terms and
conditions of this Lease shall constitute a novation or otherwise release any of
the predecessor tenants, provided, however, if any such subsequent amendment
made without any such predecessor tenant's consent shall increase the
obligations of Tenant hereunder, such predecessor tenant, including, without
limitation, Tenant named herein, shall not be liable with respect to such
incremental increase. Tenant shall pay to Landlord, promptly upon demand
therefor, all reasonable out-of-pocket costs (including, without limitation,
reasonable attorneys' fees and disbursements incurred by Landlord in connection
with any assignment of this Lease or sublease of the Premises, if Landlord's
consent is requested or required therefor).
7.10. Without limiting anything set forth in Section 7.13 below, the joint
and several liability of Tenant and any immediate or remote successor in
interest of Tenant and the due performance of the obligations of this Lease on
Tenant's part to be performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by Landlord, or any
grantee or assignee of Landlord by way of mortgage or otherwise, extending the
time, or modifying any of the obligations, of this Lease, or by any waiver or
failure of Landlord or any grantee or assignee of Landlord by way of mortgage or
otherwise, to enforce any of the obligations of this Lease.
7.11. The listing of any name other than that of Tenant, whether on the door
of the Premises or the Building directory, if any, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Premises, nor
shall it be deemed to be the consent of Landlord to any assignment or transfer
of this Lease or to any sublease of the Premises or to the use or occupancy
thereof by others.
7.12. If requested by any subtenant, Landlord shall execute and deliver an
agreement in recordable form to the effect that, if this Lease shall terminate
or be terminated for any reason, Landlord will recognize such subtenant as a
direct tenant of Landlord on the same terms and conditions as are contained in
its sublease, provided that (a) no event of default shall have occurred under
such sublease beyond any applicable grace period, (b) such sublease complies
with the terms of this Lease in all respects, (c) such sublease is for at least
one (1) full floor, (d) such sublease does not, in Landlord's reasonable
judgment, materially increase Landlord's obligations above those set forth
herein, materially diminish Landlord's rights hereunder or provide for rent or
other monetary obligations to Landlord which are less than those provided
herein, (e) such subtenant shall have a net worth, at the time such request is
made by Tenant, at least equal to or in excess of the Sublease Rental Factor (as
hereinafter defined), and (g) such agreement shall provide that Landlord shall
not be (i) liable for any accrued obligation of Tenant or for any act, omission
or default of Tenant, (ii) subject to any offsets, claims or defenses which such
subtenant might have against Tenant, or (iii) bound by any rent or additional
rent which such subtenant might have paid to Tenant more than one month in
advance of its due date. As used herein, the term "Sublease Rental Factor" shall
mean an amount equal to at least ten (10) times the aggregate of the annual
Fixed Rent reserved hereunder plus all of the Additional Rent for the preceding
calendar year, in each case, allocable to portion of the Premises that is the
subject of the subletting.
7.13. In the event of an assignment of this Lease by Tenant in accordance
with the terms of this Article 7 to an entity having a Material Net Worth (as
hereinafter defined) both on the date of Tenant's Notice (if applicable) and on
the effective date of the assignment and provided Tenant shall not be in default
of any of its obligations hereunder either on the date of Tenant's Notice (if
applicable) or on the effective date of the assignment, if such assignee shall
have a Material Net Worth, Tenant shall be released from any and all liability
hereunder (except with respect to obligations that expressly survive the
Expiration Date) accruing from and after the later to occur of (i) the effective
date of such assignment and (ii) the date on which Tenant shall satisfactorily
establish that such assignee satisfies the Material Net Worth test. The term
"Material Net Worth" shall mean (i) in connection with a Reorganization or an
assignment pursuant to Section 7.1(d), financial net worth equal to or greater
than the product of (a) Two
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Hundred Million Dollars ($200,000,000) and (b) the percentage increase, if any,
in the Index (as hereinafter defined) from the Index in effect on the
Commencement Date to the Index in effect on the date of Tenant's Notice or the
effective date of the assignment, as the case may be, as evidenced by
documentation reasonably satisfactory to Landlord, and (ii) with respect to any
other assignment permitted under this Article 7, financial net worth equal to at
least ten (10) times the aggregate of the annual Fixed Rent reserved hereunder
plus all of the Additional Rent for the preceding calendar year, in each case,
allocable to the portion of the Premises that is the subject of the subletting.
ARTICLE 8
SERVICES
8.1. For purposes of this Lease,
(a) the term "Business Days" shall mean each day of the year excluding
only Saturdays, Sundays, the holidays identified on Exhibit E annexed hereto and
made a part hereof and any other days which shall hereafter be observed on the
same day by both the Federal and the New York State governments as legal
holidays, and
(b) the term "Business Hours" shall mean the hours from 8:00 a.m. to
6:00 p.m. on Business Days.
8.2. Landlord shall at its cost and expense (except as otherwise provided
below) from and after the Rent Commencement Date:
(a) provide with respect to the Premises on a non-exclusive basis, (i)
six (6) passenger elevators during Business Hours and (ii) at least one (1)
passenger elevator at all other times; but if the Premises include all of the
second (2/nd/) through ninth (9/th/) floors of the Building), Landlord shall
provide such passenger elevator service by means of a dedicated elevator bank as
shown on the Base Building CDs.
(b) provide two (2) freight elevators, twenty-four (24) hours a day
and seven (7) days a week, on a "first-come, first-served" basis during Business
Hours and on a reservation, "first-come, first-served" basis during non-Business
Hours, subject to the reasonable requirements of Landlord and other tenants and
occupants of the Building. Landlord shall coordinate with Tenant the use of such
freight elevator by other tenants and occupants of the Building and Landlord.
The freight elevators shall provide service twenty-four (24) hours a day, seven
(7) days a week with respect to the floor(s) where Tenant's Designated
Mechanical Space is located. Tenant shall reimburse Landlord for Landlord's
actual incremental costs incurred for freight elevator service made available at
times other than during Business Hours. Tenant shall not be obligated to pay any
Building charge for the first three hundred (300) hours of overtime freight
elevator service in connection with Tenant's initial move into the Building,
which move may be accomplished over a reasonable period of time; however, Tenant
shall reimburse Landlord for any incremental third-party costs incurred by
Landlord for such overtime use. During Tenant's initial move into the Building,
Landlord shall endeavor to provide Tenant with access to the freight elevator
during Business Hours on a scheduled basis. Subject to the provisions of this
subsection hereinbefore set forth, at Landlord's option, the elevators shall be
operated by automatic control or by manual control, or by a combination of both
of such methods. Landlord acknowledges that Tenant intends to have a mail room
facility in the Premises, and agrees to provide Tenant with priority access to
at least one (1) freight elevator from 6:30 a.m. - 7:30 a.m. Monday through
Saturday and for a half-hour interval in the afternoon Monday through Friday,
both at no additional charge to Tenant except that Tenant shall reimburse
Landlord for any actual costs incurred by Landlord in connection therewith.
(c) permit Tenant to use the Building loading berths and loading docks
on a "first-come, first-served" basis during Business Hours and on a
reservation, "first-come, first-served" basis at during non-Business Hours,
subject to the reasonable requirements of Landlord and other tenants and
occupants of the Building. If, in Landlord's reasonable judgment, supervision is
required in connection with Tenant's use during hours other than Business Hours
of the Building loading berths and loading docks and Tenant shall fail to engage
its own personnel for such supervision, then member(s) of the Building staff
shall supervise Tenant's use of the Building loading berths and loading docks
and Tenant shall pay Landlord's actual costs for
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the time of such Building personnel; it being understood and agreed that if
Tenant and any other tenant or occupant of the Building shall use the Building
loading berths or loading docks during hours other than Building Hours without
their own supervising personnel, the costs of same during such other hours shall
be equitably apportioned between Tenant and such other tenant or occupant based
upon each party's usage during such hours. Landlord acknowledges that Tenant
intends to have a mail room facility in the Premises, and agrees to provide
Tenant with priority access to at least one (1) loading dock from 6:30 a.m. -
7:30 a.m. Monday through Saturday and for a half hour interval in the afternoon
Monday through Friday, both at no additional charge to Tenant except that Tenant
shall reimburse Landlord for any actual costs incurred by Landlord in connection
therewith.
(d) (i) maintain and keep in good order and repair the HVAC System
installed by Landlord. Landlord, at its expense, shall furnish to the Premises
for distribution by Tenant, heating and ventilating and condenser water for air
conditioning ("HVAC") as seasonally required in accordance with specifications
set forth on Exhibit J annexed hereto and made a part hereof, during Business
Hours. Tenant shall keep entirely unobstructed all of the vents, intakes,
outlets and grilles, at all times and shall comply with and observe all
reasonable regulations and requirements prescribed by Landlord for the proper
functioning of the HVAC System. In the event that Tenant shall require HVAC at
times other than during Business Hours, Tenant shall give Landlord notice of
such requirement by 3:00 p.m. on the day such HVAC is required and, by 3:00 p.m.
of the last preceding Business Day if such requirement shall be with respect to
a day other than a Business Day, and Landlord shall furnish such service at such
times. Tenant agrees to pay Landlord's actual cost (excluding depreciation of
Building HVAC equipment) to furnish such HVAC on a cost per ton hour basis, as
Additional Rent, provided, however, that if and to the extent Landlord is
providing HVAC to any other tenant in the Building during hours other than
Business Hours at a lesser (or at no) charge, Tenant shall be entitled to an
equally favorable arrangement, and if any other tenants or occupants shall also
require HVAC service during such non-Business Hours, then Landlord's costs in
connection therewith, to the extent attributable to multiple users, shall be
equitably apportioned between Tenant and such other tenants and occupants.
Tenant shall have the right, not to be unreasonably exercised, to verify
Landlord's calculation of such cost.
(ii) provide up to 200 tons of supplemental condenser water from the
Building condenser water system for up to twenty-four (24) hours a day and seven
(7) days a week (if requested), for Tenant's technology areas and disaster
recovery floor in accordance with Exhibit N. Tenant shall pay Landlord's actual
cost (excluding depreciation of Building HVAC equipment) to furnish such
supplemental condenser water on a cost per ton hour basis, as Additional Rent.
Tenant shall have the right, not to be unreasonably exercised, to verify
Landlord's calculation of such cost.
(iii) perform periodic purging of each floor of the Premises of indoor
air contaminants on a schedule reasonably determined by Landlord to be
consistent with good building management and air quality control practices.
(iv) provide continuous monitoring (including monthly reports, copies
of which shall be provided to Tenant) of the Building ventilation system for
carbon monoxide. Said monitoring will be designed to signal an alarm if any
toxic levels of carbon monoxide are detected, in which event, the Building
manager shall, to the extent permitted by law, cause the building engineer to
manually shut down the Building ventilation system or take such action as may be
appropriate under the circumstances and, in any event, advise Tenant as to what
action has been taken. If in accordance with good building management and air
quality control practices, additional monitoring of air quality within the
Premises is required, Landlord shall retain an independent testing agency to
perform monthly testing for this purpose.
(e) (i) provide Building standard cleaning and janitorial services
for the Premises in accordance with the cleaning specifications annexed hereto
as Exhibit F. Any dispute under this Section 8.2(e)(i) shall be resolved by
arbitration pursuant to Article 35 hereof. Tenant shall reimburse Landlord for
the cost to Landlord of removal from the Premises and the Building of so much of
any refuse and rubbish of Tenant as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy. If Tenant shall desire any
cleaning services beyond those provided in the specifications attached hereto as
Exhibit F, Tenant shall arrange the same directly with the cleaning contractor
and Landlord shall have no liability therefor.
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(ii) If Landlord is in material default of its obligation to
provide the cleaning services required to be provided by Landlord and such
default continues after sixty (60) days notice and opportunity to cure, then
Tenant, within thirty (30) days after the expiration of such sixty (60) day
period, may notify Landlord of its intent to provide its own cleaning services.
Tenant's cleaning contractor shall be subject to the approval of Landlord, not
to be unreasonably withheld, and shall not cause labor disputes in the Building
or the Project. Upon Tenant's assumption of responsibility for cleaning the
Premises, Landlord shall have no further obligation hereunder with respect
thereto, and Landlord shall make an appropriate adjustment to the Base Year
Operating Expenses equal to the incremental cost of cleaning the Premises in the
Base Operating Expense Year.
(iii) If during the Term, Tenant shall believe in good faith that
the quality of the performance of the cleaning contractor designated by Landlord
to perform cleaning services is not consistent with the quality of cleaning
services then being performed by first-class cleaning contractors in comparable
first-class office buildings in New York City or can be obtained at a lower cost
by Tenant, then Tenant shall have the right to request Landlord to change
cleaning contractors. Any disputes regarding this Section 8.2(e)(iii) shall be
resolved by arbitration pursuant to Article 35.
(iv) Landlord shall cause the lobby and other public and common
areas of the building to be maintained to the standard of a first-class office
building and shall cause the public and common portions of the Building to be
exterminated regularly to eliminate infestation by vermin, rodents and roaches,
and in addition, whenever there shall be evidence of such infestation in the
public portions of the Building.
(v) Landlord shall cause the exterior of the windows of the
Premises to be cleaned four (4) times per year, weather permitting.
(f) furnish hot and cold water for lavatory and drinking and
standard office cleaning purposes. If Tenant requires, uses or consumes water
for any other purposes, Landlord may install a meter or meters or use other
means to measure Tenant's water consumption for all purposes, and Tenant shall
reimburse Landlord for the cost of meter or meters and the installation thereof,
and shall pay for the maintenance of said meter and the installation equipment.
Tenant shall reimburse Landlord for the cost of all water consumed in excess of
water used for lavatory, drinking and standard building office cleaning
purposes, as measured by said meter or meters or as otherwise measured,
including sewer rents.
(g) provide (as determined by Landlord in its good faith
business judgment but, in any event, consistent with that provided by comparable
first-class office buildings located in New York City) security to the common
and mechanical areas of the Building and to common areas of the Project (the
latter which may be accomplished pursuant to the CAM Agreement), seven (7) days
a week, twenty-four (24) hours a day. Attached hereto as Exhibit U are security
specifications Tenant specifically requests Landlord to implement or cause to be
implemented, which specifications Landlord hereby approves.
(h) Landlord shall provide Tenant with up to 1000 kw of
emergency power for Tenant's sole consumption in accordance with Exhibit J.
Tenant shall pay to Landlord as Additional Rent the cost of such power. Further,
Tenant shall pay to Landlord as Additional Rent Tenant's share of the cost of
operating, maintaining, repairing and testing the emergency generator, subject
to equitable apportionment between Tenant and any other users of power from such
emergency generator. Tenant shall have the right, not to be unreasonably
exercised, to verify Landlord's calculation of such cost.
8.3. (a) Landlord reserves the right without liability to Tenant to
interrupt, curtail or suspend the services required to be furnished by Landlord
under this Article 8 when the necessity therefore arises by reason of accident,
emergency, mechanical breakdown, or when required by any Legal Requirement, or
for any other cause beyond the reasonable control of Landlord. If, as a result
of (a) any such interruption, curtailment or suspension, for any reason other
than the negligence or misuse of Tenant or any person claiming by, through or
under Tenant or their respective employees, agents, servants or invitees, or (b)
the occupancy by Landlord of any portion of the Premises during the performance
of any alterations or repairs, or (c) the failure by Landlord to perform any
repairs that it is obligated to perform under this Lease, (i) during the first
thirteen (13) months following completion of the Post Delivery Base Building
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Work, the Premises or any portion thereof shall be untenantable for a period of
greater than one (1) Business Day or (ii) from and after the end of the
thirteenth (13th) month following completion of the Post Delivery Base Building
Work, the Premises or any portion thereof shall be untenantable for a period of
seven (7) consecutive Business Days or ten (10) days in any fifteen (15) day
period and Tenant shall not use or occupy the Premises or such portion thereof
for the conduct of its business during such period of seven (7) consecutive
Business Days or ten (10) days in any fifteen (15) day period, then, the Fixed
Rent and the Additional Rent payable pursuant to Article 3 hereof shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Premises bears to the total area of the Premises, for each day that
Tenant shall not be able to occupy the Premises or such portion thereof for the
conduct of its business during the period beginning on the date following the
end of such period of greater than one (1) Business Day period or such period of
seven (7) consecutive Business Days or ten (10) days in any fifteen (15) day
period, as the case may be, and terminating on the date that such interruption,
curtailment or suspension of service is ended or remedied or such occupancy by
Landlord shall be ended or the repair required to be performed by Landlord has
been completed, as the case may be, in each instance to the extent reasonably
necessary to render the Premises, or such portion thereof, tenantable. Upon
cessation of the condition which prevented Landlord from supplying HVAC or any
other services provided by the other Building systems or facilities, Landlord
shall promptly and diligently pursue the restoration of such HVAC service or
other service. Nothing contained in this Section 8.3(a) shall be deemed to limit
any rights Tenant may have in the event of a change in circumstances judicially
determined to constitute constructive eviction.
(b) Landlord shall endeavor to coordinate all regularly
scheduled maintenance of the major base Building services (e.g., elevator and
HVAC) with Tenant. Landlord shall repair critical systems needed for Tenant's
use and occupancy by using overtime labor if necessary, provided Tenant shall
reimburse Landlord for the actual cost incurred by Landlord for such overtime
labor.
8.4. Landlord will not be required to furnish any other services,
except as may otherwise be specified in this Lease.
8.5. Tenant, at its sole cost and expense, shall cause the Premises to
be exterminated, to the extent and as frequently as Landlord reasonably requires
and to the reasonable satisfaction of Landlord and shall for such purposes
employ exterminators reasonably designated by Landlord. If Tenant shall have
dining facilities in the Premises, Tenant shall, on a weekly basis, cause the
portion of the Premises on which such dining facilities are located to be
exterminated, to the reasonable satisfaction of Landlord and by exterminators
designated by Landlord, to keep the Premises free of vermin and rodents. Except
as expressly provided herein, however, the foregoing shall not constitute any
approval or consent to the use of the Premises for such purposes. If Tenant
fails to comply with the foregoing extermination obligations, Landlord, in
addition to any other remedies available to it under this Lease or pursuant to
law, may furnish such exterminating services and the reasonable cost therefor
shall be paid by Tenant within ten (10) Business Days after demand therefor as
Additional Rent hereunder.
8.6. (a) If and for so long as Tenant leases the entire second
through ninth (2/nd/-9/th/) floor of the Building, Tenant shall have the right
to have a private desk servicing the Premises for security purposes provided
that the same shall not result in jurisdictional or other labor disputes. If and
for so long as Tenant leases and occupies less than the entire second through
ninth (2/nd/-9/th/) floors of the Building, Tenant shall have the right during
the Term to (a) have one (1) of its employees or agents sit at a building
concierge desk prominently displaying Tenant's name in the lobby of the Building
(b) Tenant may implement its own reasonable security procedures
for its employees and visitors provided that Tenant's procedures for
implementing security shall (i) be reasonably approved by Landlord, (ii) be
coordinated with Building and Project security procedures and (iii) not
interfere with the access to and from floors and areas of the Building not
occupied by Tenant (other than to a de minimis extent). Landlord shall use
reasonable efforts to cause other tenants and occupants of space in the Building
serviced by the same elevators that service the Premises or any portion thereof,
if any, to cooperate and observe the procedures promulgated by Tenant with
respect to access from the lobby to any shared elevator bank.
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(c) Tenant shall have the right to install security devices as
necessary in strategic core areas and common areas of the Building as well as at
Building perimeter locations and fire stairs serving the Premises for closed
circuit television equipment, subject to Landlord's approval, which approval
shall not be unreasonably withheld.
(d) Tenant shall have the right to install an internal security
system tied into the Building's Class E systems.
(e) Tenant shall have the right to install (or to cause
Landlord to install at Tenant's expense) certain duplicate (i.e., view only)
monitoring systems so that Tenant shall have the ability to monitor certain
Building systems, including, without limitation, the temperature of the chilled
or condenser water delivered to the Premises.
ARTICLE 9
BROKERAGE
9.1. Landlord and Tenant each represents and warrants to the other that
it has not dealt with any real estate broker, finder or like agent in connection
with this transaction other than Insignia/ESG Inc. and Ascot Brokerage, Ltd.
(collectively, the "Brokers"), which Brokers' fees shall be paid by Landlord
pursuant to separate brokerage agreements. Tenant shall indemnify and hold
Landlord harmless from and against any and all claims for commissions, fees or
other costs or compensation by any real estate broker, finder or like agent
other than the Brokers who shall claim to have dealt with Tenant in connection
with this transaction and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorney's fees and disbursements. Landlord shall indemnify and hold Tenant
harmless from and against any and all claims for commissions, fees or other
costs or compensation by any real estate broker, finder or like agent who shall
claim to have dealt with Landlord in connection with this transaction and for
any and all costs incurred by Tenant in connection with such claims, including,
without limitation, reasonable attorney's fees and disbursements. This provision
shall survive the expiration or earlier termination of this Lease.
ARTICLE 10
ACCESS, NAME OF BUILDING AND SIGNAGE
10.1. (a) (i) Except as otherwise expressly provided in this Lease and
except for the space within the inside surfaces of all walls, hung ceilings,
floors, windows and doors bounding the Premises, all of the Building, including,
without limitation, exterior Building walls, core corridor walls and doors and
any core corridor entrance, any terraces or roofs adjacent to the Premises, and
any space in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the Premises
for the purposes of operation, maintenance, decoration and repair, are reserved
to Landlord and persons authorized by Landlord. Notwithstanding the foregoing,
Tenant shall have the right at reasonable times after written notice to Landlord
to utilize in common with Landlord, the electric closet(s), if any, on each
floor of the Premises as well as the existing dampers and the outside air shaft
of the Building for the purposes for which they were designed or constructed
only and Tenant shall be permitted to install louvers reasonably approved by
Landlord for ventilation exhaust purposes at locations in the Building shown on
Exhibit G annexed hereto and made a part hereof. Subject to Landlord's prior
consent, which consent shall not be unreasonably withheld, and subject to
Article 15 hereof, Tenant shall have the right to penetrate the setback roof
with venting and exhaust. Tenant shall have primary use of the telephone
electric closets which shall be located in the Premises in such locations as
determined by Landlord within thirty (30) days following the Commencement of
Construction of the Building and reasonably acceptable to Tenant, provided that
other tenants and occupants of the Building may run telephone connections
through such telephone closets as long as same does not interfere with or
diminish (other than to a de minimis extent) Tenant's use thereof. In addition,
at reasonable times after reasonable notice to Landlord Tenant shall be
permitted access to (A) such portions of the utility rooms, spaces, shafts and
facilities of the mechanical, electrical, telephone, plumbing and other systems
in and serving the Building as shall be determined by Landlord within thirty
(30) days following Commencement of Construction of the Building and reasonably
acceptable to Tenant, subject to Landlord's (or any other tenant's or
occupant's) reasonable scheduling requirements and the Rules and
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Regulations, as Tenant may reasonably require for purposes of making any and all
installations, repairs, corrections, replacements, alterations or additions to
any equipment of Tenant which in any way passes in or through such portions of
the Building, including, without limitation, any Pipes, conduits or risers
necessary or required for the Antenna and the emergency generator, and (B) upon
reasonable notice to Landlord and provided Landlord shall have the right to have
a representative present at all times, Tenant's Designated Mechanical Space and
Tenant's Designated Roof Space; provided, however, that Tenant shall not
materially interfere with Landlord's operation of the Building or with any other
tenant's or occupant's use and enjoyment of Premises demised to them or the
Building. Notwithstanding anything to the contrary contained herein but subject
to the provisions of Article 38, Tenant may not install any equipment in
Tenant's Designated Roof Space which is visible from any ground-level common
area of the Project or from any street or sidewalk in or in the vicinity of the
Project or which requires that the roof or any portion thereof be reinforced to
bear additional load.
(ii) Tenant hereby acknowledges that Landlord may, from time to
time, require access through the Premises to mechanical, electrical, telephone,
plumbing and other systems, elements, utility rooms, spaces, shafts and
facilities serving the Building or other tenants or occupants thereof located in
the core of the Building (collectively, "Service Facilities"). Without limiting
anything contained in Section 10.1(a)(i) above, and provided that Tenant shall
be notified of the location of such Service Facilities, Landlord shall have
adequate access to the Service Facilities at reasonable times, upon reasonable
advance notice and subject to Tenant's reasonable scheduling requirements, for
the purposes of making any and all installations, repairs, corrections,
replacements, alterations or additions to any equipment which in any way passes
in, through, under or around such Service Facilities, provided, however, that
Landlord shall use reasonable efforts to minimize interference with, and
Landlord shall not interfere with (other than to a de minimis extent), Tenant's
use and enjoyment of the Premises. Tenant will not do or cause to be done
anything which would in any way materially restrict or materially impair such
access to the Service Facilities. Landlord shall not be responsible for any
inconvenience, annoyance or interruption to Tenant's business arising out of or
as a result of such access to the Service Facilities except as set forth in
Section 8.3(a) hereof.
(b) Without limiting Tenant's rights set forth in Article 38
hereof with respect to the Antenna, Tenant shall have the right to utilize for
its exclusive use at no additional charge Tenant's Designated Roof Space to
install, maintain, operate, repair, replace and remove Tenant's gas-fired
domestic water boiler (with respect to the roof) and other mechanical and
electrical equipment reasonably approved by Landlord, provided that (and in the
event Tenant makes or causes to be made such installations, Tenant hereby
covenants and agrees that): (i) such installations are performed in accordance
with all Legal Requirements and in compliance with the terms of Article 15 of
this Lease relating to Tenant Changes, (ii) Tenant shall indemnify and hold
Landlord harmless from any liability, cost or expense (including reasonable
attorneys' fees and disbursements) connected therewith or arising therefrom of
any nature whatsoever, including, without limitation, any reasonable capital
expenses incurred by Landlord in preparing the roof for Tenant's installations;
(iii) Tenant shall promptly repair any damage caused to the roof or any other
portion of the Building by reason of such installation including, without
limitation, any repairs, restorations, maintenance, renewals or replacements of
the roof necessitated or caused by such installations, (iv) subject to Section
15.1(c), Tenant shall remove such installation to the extent the same constitute
Special Tenant Changes or Special Initial Work and repair any resulting damage
to the Building and restore the roof and the Building to the condition which
existed prior to any such installation, ordinary wear and tear and damage by
casualty excepted, all at or prior to the expiration of the Term, at Tenant's
sole cost and expense, (v) Tenant shall obtain any additional insurance coverage
with respect to such installations for the benefit of Landlord in such amount
and of such type as Landlord may reasonably require and is customarily obtained
for owners of office buildings in the City for similar type installations, (vi)
Tenant's Designated Roof Space shall be used only in connection with Tenant's,
Tenant's Affiliates' and Tenant's permitted assignees', occupants' and
subtenants' normal business activities and (vii) if Landlord's structural
engineer shall reasonably deem it advisable that there be structural
reinforcement of the roof of the Building in connection with any such
installation because the load on the roof exceeds forty (40) pounds per square
foot, Landlord shall Perform same at Tenant's cost and expense and Tenant shall
not perform any such installation Prior to the completion of any such structural
reinforcement.
(c) Tenant shall have the right to utilize for its exclusive
use at no additional charge Tenant's Designated Mechanical Space to install,
maintain, operate, repair, rePlace and
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remove Tenant's mechanical and electrical equipment and appurtenances reasonably
approved by Landlord, provided that (and in the event Tenant makes or causes to
be made such installations, Tenant hereby covenants and agrees that): (i) such
installations are performed in accordance with all Legal Requirements and in
compliance with the terms of Article 15 of this Lease relating to Tenant
Changes, (ii) Tenant shall indemnify and hold Landlord harmless from any
liability, cost or expense (including reasonable attorneys' fees and
disbursements) connected therewith or arising therefrom of any nature
whatsoever, including, without limitation, any capital expenses incurred by
Landlord in preparing the roof for Tenant's installations; (iii) Subject to
Section 15.1(c), Tenant shall promptly repair any damage caused to the
mechanical rooms or any other portion of the Building by reason of such
installation, (iv) Tenant shall remove such installation to the extent the same
constitute Special Tenant Changes or Special Initial Work and repair any
resulting damage to the Building and restore the Building to the condition which
existed prior to any such installation, ordinary wear and tear and damage by
casualty excepted, all at or prior to the expiration of the Term, at Tenant's
sole cost and expense, (v) Tenant shall obtain any additional insurance coverage
with respect to such installations for the benefit of Landlord in such amount
and of such type as Landlord may reasonably require and is customarily obtained
for owners of office buildings in the City for similar type installations, (vi)
Tenant's Designated Mechanical Space shall be used only in connection with
Tenant's, Tenant's Affiliates' and Tenant's permitted assignees', occupants' and
subtenants' normal business activities and (vii) if Landlord's structural
engineer shall reasonably deem it advisable that there be structural
reinforcement of the floor of any such Tenant's Designated Mechanical Space in
connection with any such installation because the load on such floor exceeds one
hundred fifty (150) pounds per square foot, Landlord shall perform same at
Tenant's cost and expense and Tenant shall not perform any such installation
prior to the completion of any such structural reinforcement.
(d) Landlord shall make available to Tenant, at no additional
charge, shaft space in the Building in locations to be determined by Landlord
within thirty (30) days following Commencement of Construction of the Building
and reasonably acceptable to Tenant. The space used by Tenant within such shafts
shall not exceed Tenant's Proportionate Operating Expense Share of the available
space within such shafts. In addition, Tenant's use of such shafts shall be
subject to such conditions, restrictions and requirements as Landlord may
reasonably impose, including, without limitation, requirements regarding
non-interference with other tenants. Upon request and subject to such
conditions, restrictions and requirements as Landlord may reasonably impose,
including, without limitation, requirements regarding non-interference with
other tenants, Tenant shall be granted reasonable access to Tenant's shaft space
where such access is reasonably necessary in order to permit Tenant to install
and maintain wires, cables, conduits or equipment therein.
(e) Subject to Legal Requirements and Insurance Requirements,
Tenant shall have the right (i) to use the fire stairs connecting the floors of
the Premises as convenience stairs and (ii) to upgrade the finishes in the
portions of the fire stairs connecting the floors of the Premises, at its sole
cost and expense.
10.2. Landlord reserves the right, and Tenant shall permit Landlord and
persons authorized by Landlord, to install, erect, use and maintain pipes, ducts
and conduits in and through the Premises, provided the installation and/or
erection of such pipes, ducts and conduits are concealed within the walls, floor
or ceiling and provided, further, the same does not (a) diminish the rentable
area of the Premises other than to a de minimis extent, or (b) diminish the
services to be furnished by Landlord to Tenant pursuant to this Lease other than
on a temporary basis.
10.3. (a) Subject to Section 10.3(b) below, Landlord and persons
authorized by Landlord shall have the right to enter and/or pass through the
Premises at reasonable times upon reasonable prior notice to Tenant (a) to
examine the Premises and to show them to actual and prospective Superior
Lessors, Mortgagees or prospective purchasers, mortgagees or lessees of the
Building, and during the last year of the Term, prospective tenants, (b) to make
such repairs, alterations, additions and improvements in or to the Premises
and/or in or to the Building or its facilities and equipment as Landlord or
persons authorized by Landlord is or are required to make in connection with the
operation of a first-class building or which are otherwise required or permitted
under the terms of this Lease, and (c) to read any utility meters located
therein; provided that Landlord shall use reasonable efforts to minimize
interference with Tenant's use and enjoyment of the Premises. If any repairs,
alterations, additions or improvements in or to the Premises and/or in or to the
Building or its facilities and equipment shall (i) pose an immediate
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health or safety hazard, (ii) materially affect or limit Tenant's access to the
Premises, or (iii) materially prevent Tenant's use and enjoyment of any portion
of the Premises comprised of more than five hundred (500) rentable square feet,
then Landlord shall promptly and diligently perform same and employ labor at
overtime or premium pay rates, if necessary, to perform same.
(c) Tenant shall have the right to have a representative
accompany Landlord (and persons authorized by Landlord) during any entry into
the Premises. Tenant agrees to have such representative present during Business
Hours on Business Days provided Landlord shall give reasonable advance notice of
the time it desires access. In addition, Tenant shall keep the Building
manager's office advised of the name and telephone number of the person or
agency to be notified on behalf of Tenant in the event of any emergency and
shall provide such a representative at all times of the day and night. If such
representative shall not be provided at any time after reasonable notice when
access to the Premises shall be required or if in the event of an emergency
after reasonable efforts to contact a representative Landlord shall be unable to
do so, Landlord shall nevertheless have the right to enter the Premises.
Landlord shall have no liability to Tenant for any failure of Landlord to
perform any of its obligations hereunder by reason of Landlord's inability to
enter the Premises. Landlord agrees that it shall use reasonable efforts to keep
any information obtained by it or its agents during such entry confidential and
shall use reasonable efforts to prevent the disclosure of the same.
Notwithstanding the foregoing, Tenant shall coordinate cleaning personnel
supervision issues directly with the Building cleaning contractor and Landlord
shall have no notice obligations with respect thereto or liability therefor.
10.4. If at any time any windows of the Premises are either temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building (or permanently darkened or obstructed
if required by law) or covered by any translucent material for the purpose of
energy conservation, or if any part of the Building, other than the Premises, is
temporarily closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease except as otherwise set forth herein, provided that Landlord shall
perform any repairs required to remedy any such temporary darkening,
obstruction, closure or inoperability to the extent required pursuant to Article
19 hereof and in accordance with the provisions of this Article 10. With respect
to any covering of windows of the Premises with translucent material as
aforesaid, Landlord shall consult with Tenant to the extent reasonably
practicable under the circumstances and shall perform any such covering in a
manner consistent with the remaining portion of the facade of the Building. If
the windows in the Premises are temporarily darkened or obstructed, Landlord
shall use reasonable efforts to perform such repairs promptly and in such manner
so as to minimize interference with Tenant's use and occupancy of the Premises.
10.5. Landlord reserves the right, at any time without it being deemed a
constructive eviction and without incurring any liability to Tenant therefor, or
affecting or reducing any of Tenant's covenants and obligations hereunder, to
make or permit to be made such changes, alterations, additions and improvements
in or to the Building (including the Premises, subject to the terms hereof) and
the fixtures and equipment thereof, as well as in or to the street entrances,
doors, halls, passages, elevators, escalators and stairways thereof, and other
public parts of the Building, as Landlord or persons authorized by Landlord is
or are required to make in connection with the operation of a first-class
building or which are otherwise required or permitted under the terms of this
Lease, provided that such changes, alterations, additions and improvements shall
not (a) materially affect or limit Tenant's use and enjoyment of the Premises or
Tenant's access thereto or (b) diminish the tenantable area of the Premises
(other than to a de minimis extent) or (c) diminish the services to be furnished
by Landlord to Tenant pursuant to the other sections of this Lease other than on
a temporary basis or (d) materially affect the appearance of the Building as a
first class office building.
10.6. Neither this Lease nor any use by Tenant shall give Tenant any
easement or other right in or to the use of any door or any passage or any
concourse or any plaza connecting the Building with any subway or any other
building or to any public conveniences, and the use of such doors, passages,
concourses, plazas and conveniences may without notice to Tenant, be regulated
or discontinued at any time by Landlord.
10.7. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when for any reason, entry therein shall be
urgently necessary by reason of fire or other emergency, Landlord or Landlord's
agents may forcibly enter the same without
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rendering Landlord or such agents liable therefor (if during such entry Landlord
or Landlord's agents shall accord reasonable care to Tenant's property) and
without in any manner affecting the obligations and covenants of this Lease,
provided, however, that Landlord shall use reasonable efforts to notify Tenant's
representative provided for in Section 10.3 hereof where circumstances
reasonably allow.
10.8. (a) Except as expressly provided in this Section 10.8, Tenant shall
not have the right to place any signage in, on, or on top of the Building.
Subject to compliance with Legal Requirements (without any representation by
Landlord that any of the following comply with any such Legal Requirements) and
subject to the Building and Project signage criteria annexed hereto as Exhibit L
and made a part hereof, Tenant shall be afforded from and after the date hereof,
the right to have signs bearing the name (or any variation or abbreviation of
such name) of Tenant or (i) with respect to the locations on the exterior of the
Building excluding the top of the Building, any Affiliate who occupies all or
any portion of the Premises in accordance with this Lease and (ii) with respect
to the top of the Building, any Affiliate who occupies at least two hundred
fifty thousand (250,000) square feet in the Building; and/or, in any such case,
the logo thereof placed in one or more of the locations, on the exterior (but
not including the top) of the Building as shown on Exhibit L, provided that to
the extent any such signage to be located in the Building lobby does not comply
with the signage criteria set forth on Exhibit L, Landlord shall not
unreasonably withhold its approval of changes in the design, size, materials,
coloring, lettering and exact location of such signage. Tenant may modify its
signs installed in and on the Building at any time and from time to time subject
to compliance with Legal Requirements and the criteria set forth on Exhibit L,
provided, however, that Landlord shall not unreasonably withhold its consent to
modifications in the design, size, materials, coloring, lettering and exact
location of Tenant's signage if the same do not comply with Exhibit L. The
relative size and placement of signage in the lobby by any other tenants in
the Building shall be harmonious and otherwise appropriate as determined by
Landlord in its good business judgment, it being agreed that if and for so long
as Tenant (or any assignee or sublessee permitted pursuant to Section 7.1)
occupies at least two hundred fifty thousand (250,000) square feet in the
Building, then no other tenant shall be permitted to have any signage in the
lobby that is larger than Tenant's lobby signage.
(b) If Tenant assigns this Lease or sublets the Premises in
connection with a transaction of the nature described in Section 7.1(b) or (c)
hereof, Tenant shall have the right, in connection with such assignment, to
assign its rights under this Section 10.8 to such assignee or sublessee (and
such assignee or sublessee shall have the right, at its expense, to substitute
signs bearing its name or corporate identity, or any variation or abbreviation
of such name, for those of Tenant erected pursuant to this Section 10.8 in the
location(s) shown on Exhibit L and consistent with the signage criteria
contained in Exhibit L), provided that (i) in no event shall any entity or
Person primarily engaged in the development, ownership, management, operation,
syndication, acquisition, financing or sale of real estate have a right to
substitute any signs bearing its name or identity for those of Tenant and (ii)
such signage shall be appropriate and subject to Landlord's prior approval,
which approval shall not be unreasonably withheld.
(c) Provided no Event of Default is then occurring and provide Tenant
is then occupying at least twenty-five percent (25%) of the Building, Landlord
shall not install or permit (i) any other health insurance company that
competes directly with Tenant (ii) or any tenant in the Building demising less
than one hundred thousand (100,000) rentable square feet, to install any signs
or plaques of identification on the exterior of the Building or any public areas
of the Land and/or the Building, without the prior consent of Tenant, which
consent shall not be unreasonably withheld.
10.9. Subject to Building and Project security procedures and regulations
in the event of emergencies, Tenant shall have access to the Premises
twenty-four (24) hours a day, seven (7) days a week
ARTICLE 11
EXCULPATION
11.1. Tenant shall look solely to the estate and property of Landlord in
the Land and Building 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 any default by
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Landlord hereunder, and no other property or assets of any Landlord Parties
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 or Tenant hereunder or Tenant's use or occupancy of the
Premises.
11.2. Tenant acknowledges and agrees that in the event of any transfer or
transfers of title to the Building or of Landlord's interest in a lease of the
Building or such portion of the Building, the transferor shall be and hereby is
relieved and freed of all obligations of Landlord under this Lease accruing
after such transfer, provided that such transferee shall assume such obligations
(subject to the limitations set forth in Section 11.1).
ARTICLE 12
SUBMISSION TO JURISDICTION
12.1. This Lease shall be deemed to have been made in Kings County, New
York, and shall be construed in accordance with the laws of the State of New
York. All actions or proceedings relating, directly or indirectly, to this Lease
shall be litigated only in courts located within the County of New York, except
that any summary proceeding to recover possession of the Premises shall be
litigated in the County of Kings. Tenant, any guarantor of the performance of
its obligations hereunder ("Guarantor") and their respective successors and
assigns hereby irrevocably submit to the jurisdiction of any state or federal
court located within such county.
ARTICLE 13
CONDITION OF THE PREMISES; BUILDING;
CERTIFICATES OF OCCUPANCY
13.1. Tenant acknowledges and agrees that, except for the Base Building
Work, Landlord shall not be obligated to do any work to prepare the Premises for
Tenant's occupancy. Tenant further acknowledges that neither Landlord nor any
agent of Landlord has made any representation or promise in regard to the
condition of the Premises except as otherwise expressly set forth herein. The
taking of possession of the Premises by Tenant shall be conclusive evidence
against Tenant that the Premises and, except as expressly set forth herein, the
portion of the Building necessary for occupancy of the Premises, were in good
and satisfactory condition at the time such possession was taken, provided,
however, nothing contained herein shall release or relieve Landlord of its
obligation to perform the Base Building Work or to perform and complete any of
its other obligations expressly set forth in this Lease, including, without
limitation, Landlord's obligation pursuant to Section 19.2(c) to repair latent
defects for twelve (12) months from the Rent Commencement Date (or a longer
period if and to the extent Landlord is covered for such cost under a warranty).
13.2. Landlord, at its expense (subject to recoupment pursuant to Article
3), shall keep any temporary certificate of occupancy required to be obtained
with respect to the core and shell of the Building in effect following issuance
of the same unless same is impracticable as a result of or in connection with
any act or omission of Tenant or any Tenant Party. Landlord shall, at its
expense (subject to recoupment pursuant to Article 3), obtain and keep in
effect, permanent certificates of occupancy required with respect to the core
and shell of the Building, and Landlord shall use reasonable efforts to obtain
same in a reasonably prompt manner unless same is impracticable as a result of
or in connection with any act or omission of Tenant or any Tenant's Party.
13.3. Upon completion of the Base Building Work, Landlord shall certify to
Tenant that to the best of Landlord's knowledge, the Base Building Work has been
completed (i) substantially consistent with the Base Building CDs (as the same
may have been modified by Change Orders, shop drawings and field changes) and
(ii) in compliance with all applicable Legal Requirements.
ARTICLE 14
RESTRICTIONS ON LANDLORD
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14.1. (a) Landlord shall not, without the consent of Tenant, lease any
office space in the Building to any federal, state or municipal agency, other
than for executive uses and uses incidental thereto which do not predominantly
involve direct patronage of the general public, unless the access of the general
public is through the elevators of the Building which do not service the
Premises. Notwithstanding the foregoing, Tenant hereby expressly approves any
lease of space in the Building to, or other occupancy agreement with, any of the
agencies on the list annexed hereto as Exhibit M and made a part hereof for the
uses specified therein.
(b) If and for so long this Lease shall be in full force and effect,
Landlord shall not lease any retail space in the Building to (i) offices of a
foreign country; employment agency or center; medical or psychiatric office or
medial care clinic; nightclub or fraternal organization; manufacturing, repair
or warehouse center; testing, medical, chemical or biologica1 laboratory; check
cashing facility; pool hall or skating rink; funeral parlor; massage parlor;
pornography or adult book or video store; amusement center or game room; auction
house; flea market; rifle range, gambling facility or casino or OTB; "head
shop;" pawn shop; dry cleaners; photo processor; video arcade or other video
game retailer; a non-name brand outlet, warehouse, close-out, bargain or any
other form of "deep discount" store; or (ii) any health insurance company that
competes directly with Tenant.
ARTICLE 15
TENANT CHANGES
15.1. General.
(a) Tenant Change.
(i) Tenant shall not make any change, alteration, installation,
addition or improvement in or to the Premises (a "Tenant Change") other than a
Permitted Change (as hereinafter defined) without the prior written consent of
Landlord, which consent (subject to the terms of this Article 15) shall not be
unreasonably withheld. If Tenant desires to perform Tenant Changes, Tenant shall
give Landlord not less than ten (10) Business Days notice of its intention to
make such Tenant Changes. If Landlord reasonably requires any additional
information or clarification and so notifies Tenant within such ten (10)
Business Day period (or within five (5) Business Days from Landlord's receipt of
Tenant's resubmission of Final Working Drawings, in the case of resubmission of
Final Working Drawings), Tenant shall promptly provide such additional
information or clarification, as the case may be, it being understood and agreed
that Landlord shall request any such additional information or clarification in
good faith. If Landlord shall fail to respond to Tenant's request for a Tenant
Change within ten (10) Business Days after receiving such request (or within
five (5) Business Days from Landlord's receipt of Tenant's resubmission of Final
Working Drawings, in the case of resubmission of Final Working Drawings), or if
Landlord has requested additional information or clarification from Tenant as
hereinabove provided, within ten (10) Business Days after receipt by Landlord of
such additional information or clarification, (or within five (5) Business Days
from Landlord's receipt of Tenant's resubmission of Final Working Drawings, in
the case of resubmission of Final Working Drawings) then such failure to respond
shall be deemed to mean that Landlord has approved such Tenant Change. If
Landlord disapproves any such Tenant Change, Landlord shall include a reasonably
detailed explanation for its disapproval.
(ii) "Material Tenant Changes" shall mean Tenant Changes (A)
which cost greater than or equal to One Hundred Thousand Dollars ($100,000) and
require permits or filings, or (B) which adversely affect the Building exterior,
the mechanical, electrical, sanitary or other Building systems, the structure of
the Building, the Building parking garage, or the public, common or mechanical
areas of the Building, or (C) which violate the Ground Lease. All Tenant Changes
other than Material Changes are hereinafter referred to as "Permitted Tenant
Changes."
(iii) Additional provisions applicable to the Tenant Changes
constituting the initial fitting out of the Premises for Tenant's occupancy (the
"Tenant Initial Work") are set forth in Article 16.
(b) Consent to Tenant Changes. Landlord's consent shall not be
required for Permitted Tenant Changes. Landlord's consent shall not be
unreasonably withheld for any
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Material Tenant Change (including, without limitation, structural changes to
accommodate internal stairways, slab reinforcing and raised ceilings).
(c) All Tenant Changes (excluding, however, any Tenant's Property),
upon the expiration or earlier termination of the Term, shall become and shall
remain the property of Landlord but, subject to the terms of this Lease, may be
removed by Tenant if Tenant so elects. Tenant shall not be required to remove
any Tenant Changes other than those Tenant Changes constituting Special Initial
Work (as hereinafter defined) and Tenant Changes consisting of kitchens, raised
computer floors, vaults, internal staircases, dumbwaiters, pneumatic tubes,
vertical and horizontal transportation systems, the Antenna or any other Tenant
Changes of a similar character ("Special Tenant Changes") except notwithstanding
the foregoing, Tenant shall have no obligation to remove raised computer floors
or internal staircases or any Special Tenant Changes that are part of Tenant's
Initial Work. Tenant may, during the last six (6) months of the Term but in no
event later than sixty (60) days prior to the Expiration Date or the earlier
termination of this Lease, request that Landlord identify those Special Tenant
Changes (and Special Initial Work) which Tenant will be required to remove upon
the expiration or earlier termination of the Term and Landlord shall respond to
such request within fifteen (15) days. Upon the expiration or earlier
termination of the Term, Tenant shall remove all such Special Tenant Changes
(and Special Initial Work) so identified by Landlord at Tenant's sole cost and
expense. Prior to performing any Special Tenant Changes, Tenant shall have the
right to request Landlord to determine whether Landlord will, in fact, enforce
Tenant's removal obligations set forth herein with respect thereto, and, if and
to the extent Landlord responds that it will waive such removal obligation, then
Tenant shall be relieved of any obligation to remove such Special Tenant Changes
at the end of the Term.
15.2. Submission of Plans.
(a) General
(i) At the time Tenant requests Landlord's written consent to a
Tenant Change, Tenant shall submit to Landlord complete and coordinated
architectural, mechanical and electrical and, to the extent applicable,
plumbing, sprinkler and signage plans and specifications therefor (collectively,
"Final Working Drawings"). All Final Working Drawings shall be on a scale of
1/8" = 1 foot; all detail drawings shall be on a scale of 1/4" = 1 foot or
larger or as otherwise required to reasonably transmit the intent of the plans.
All Final Working Drawings shall be prepared at Tenant's expense by Tenant's
Architect (as hereinafter defined). In each case, Tenant shall submit three (3)
sets of blueprints and one (1) set of reproducible drawings, marked final for
pricing and construction. As used herein, the term "Tenant's Architect" shall
mean (i) any licensed architect or engineer reasonably approved by Landlord, or
any licensed architect or engineer in Tenant's in-house interior design
department.
(ii) If in connection with any proposed Tenant Change requiring
Landlord's consent, Landlord submits Tenant's Final Working Drawings to
Landlord's Engineer (as hereinafter defined), and provided that Landlord does
not have in-house capability (as opposed to capacity) comparable to the
third-party capability (as opposed to capacity) of Landlord's Engineer, Tenant
shall reimburse Landlord for the reasonable fees and expenses of Landlord's
Engineer as Additional Rent. In addition, Tenant shall reimburse Landlord for
the reasonable costs and expenses of Landlord's Engineer for reviewing Final
Working Drawings, if and to the extent the Final Working Drawings reflect (A)
structural changes above and beyond standard office installations, including
without limitation structural reinforcement or alterations needed for high
density filing, communicating stairwells, or loading for mechanical equipment,
or (B) Special Tenant Changes or Special Initial Work. As used herein, the term
"Landlord's Engineer" shall mean The Xxxxxxxx-Xxxxxxxxx Group, Inc. or such
other architect, engineer, expeditor or code consultant licensed to practice in
the State of New York as Landlord shall reasonably require given the nature of
the proposed Tenant Change.
(iii) Landlord's approval of Tenant's Final Working Drawings
shall not constitute Landlord's representation that the same comply with Legal
Requirements or Insurance Requirements or that the same are adequate or suitable
for the work intended and in no event shall Landlord have any liability or
responsibility for Tenant's Final Working Drawings. Tenant agrees that
notwithstanding that Landlord's approval is not required for Permitted Changes,
Tenant shall nevertheless notify Landlord, at least five (5) Business Days prior
to the performance of any Permitted Change, and to the extent Final Working
Drawings (or any other
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drawings) exist with respect to such permitted changes, Tenant shall submit the
most detailed of such drawings to Landlord together with such notice.
(b) Tenant's Architect. Tenant shall pay the fees and expenses of
Tenant's Architect and any other architect, engineer, designer or architectural
engineering or design firm or consultant acting for or on behalf of Tenant and
such persons shall be deemed to be agents of Tenant.
(c) As - Built Plans. Within ninety (90) days after the
substantial completion (as hereinafter defined) of any Permitted Tenant Change,
Tenant shall submit to Landlord two (2) complete sets of (i) "as-built" plans
having the same scale as the Final Working Drawings, including detail drawings,
or (ii) the Final Working Drawings marked to reflect field notes and changes.
Within one hundred eighty (180) days after the substantial completion of any
Material Tenant Change, Tenant shall submit to Landlord two (2) complete sets of
"as-built" Plans as aforesaid.
15.3. Contractors. In making any Tenant Change, Tenant shall use only
contractors and subcontractors approved by Landlord therefor, which approval by
Landlord shall not be unreasonably withheld provided that Tenant's contractors
and subcontractors would not violate Landlord's union contracts. At the time
Tenant requests Landlord's written consent to a Material Change, or at least
five (5) Business Days prior to making any such Permitted Change, Tenant shall
submit to Landlord for Landlord's approval a list of the contractors and
subcontractors who will perform such Tenant Change. Notwithstanding the
foregoing, the contractors and subcontractors listed on Exhibit O annexed hereto
and made a part hereof (the "Approved List.") have been approved by Landlord.
Reputable contractors and subcontractors may be added to the Approved List, or
substituted for contractors and subcontractors currently listed thereon, upon
mutual agreement of Landlord and Tenant.
15.4. Permits.
(a) Prior to the commencement of any Tenant Change, Tenant shall
obtain and furnish to Landlord all Permits and shall obtain, execute, file and
furnish to Landlord, copies of all applicable data sheets, filings and other
similar documentation required by Legal Requirements or the Construction Rules
and Regulations (as hereinafter defined). Tenant's Architect shall prepare any
applications and plans required to obtain the Permits. All such applications and
plans shall be subject to Landlord's reasonable approval prior to the submission
thereof to any governmental agency, provided however, (i) that any such
applications and plans shall be approved by Landlord provided they are complete
and correct in all material respects and otherwise consistent with the
documentation and materials submitted to Landlord, and (ii) as an accommodation
to Tenant, Landlord agrees to execute such applications prior to final review in
order to expedite Tenant's permitting process, subject, however, to Landlord's
right to require changes to such applications upon final review. Copies of all
Permits (if any) and one set of Final Working Drawings (to the extent the same
exist) shall be kept at the Premises at all times during the performance of each
Tenant Change. Landlord shall reasonably cooperate with Tenant with respect to
obtaining Permits, including executing (in accordance with the provisions of
this Section 15.4(a)) and filing all documentation necessary or required in
connection therewith, and Tenant shall reimburse Landlord for the reasonable
fees and expenses of Landlord's Engineer in connection therewith as Additional
Rent. Landlord's execution of Permit applications shall not constitute
Landlord's representation that the same comply with Legal Requirements or
Insurance Requirements or are suitable for the work intended, and Landlord shall
have no liability therefor.
(b) Promptly after completion of any Tenant Change, Tenant, at its
expense, shall diligently obtain and furnish to Landlord all final governmental
approvals, licenses, "sign-offs" and certificates with respect thereto. To the
extent any Tenant Change affects any life-safety system of the Building and
without limiting the foregoing, Tenant shall obtain and furnish to Landlord all
final governmental approvals, licenses, "sign-offs" and certificates with
respect thereto prior to taking occupancy of the portion of the Premises
affected thereby.
15.5. Insurance. Prior to the commencement of any Tenant Change, Tenant
shall furnish to Landlord evidence that Tenant and each of its contractors and
subcontractors have complied with the requirements of Article 17.
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15.6. Performance of the Work.
(a) Prior to the commencement of any Tenant Change (other than
painting, carpeting, wall covering and similar minor decorative changes),
Tenant, at its expense, shall on Business Days during Business Hours require
Tenant's general contractor and all subcontractors to verify on-site dimensions
and existing conditions and to attend a pre-construction meeting with Landlord's
construction or building manager to determine suitable access routes to the
Premises, designated loading, unloading and storage areas for materials, working
hours, temporary utilities, safety precautions and procedures, rubbish removal
and scheduling procedures.
(b) Tenant shall cause such Tenant Change to be performed (i) in
compliance with all Legal Requirements and Insurance Requirements and in
compliance with Landlord's Construction Rules and Regulations, (ii) in such
manner as not to unreasonably interfere with or delay, or impose any additional
expense upon Landlord in the maintenance or operation of the Building (unless
Tenant shall agree to reimburse Landlord for such expense) and so as not to
cause labor problems in the Building, (iii) with diligence and continuity to
completion, and (iv) substantially in accordance with the Final Working Drawings
submitted to and approved by Landlord. Landlord shall be under no obligation to
coordinate Tenant's work or prepare the Premises therefor and Landlord shall
have no liability with respect to the installation thereof. Subject to the
Construction Rules and Regulations with respect to the manner of performance of
such Tenant Changes, Tenant shall be permitted to perform Tenant Changes during
Business Hours and at all other times, provided that Tenant shall furnish
Landlord with reasonable advance notice of the performance of any such Tenant
Change. In the case of any conflict or inconsistency between the provisions of
this Lease and any of the Construction Rules and Regulations, the provisions of
this Lease shall control.
(c) If the connection of any utilities, fittings or fixtures of Tenant
shall require a temporary shut-down of any Building system or service or shall
interfere with Building operations or the use of any other portion of the
Building, then the same shall be coordinated with Landlord and shall be
performed only with Landlord's prior consent, which consent shall not be
unreasonably withheld. Tenant shall, at its expense, perform the connection
work other than with respect to the fire alarm and life safety systems.
Landlord, at Tenant's reasonable expense, shall perform such shut-down work
itself or have such work performed by third-party contractors at commercially
reasonable rates.
(d) If by reason of the performance of any Tenant Change any work
stoppage or labor disruption or dispute shall occur at or affecting the Building
(other than any work stoppage or labor disruption or dispute affecting only the
Premises), Landlord and Tenant shall mutually cooperate to remedy the same,
provided that Tenant shall cease the performance of such Tenant Change during
the continuance of such work stoppage or labor disruption or dispute (unless
such work stoppage or labor disruption or dispute affects only the Premises).
Landlord agrees to use reasonable efforts to enforce provisions contained in
other leases of space at the Building which are similar to the provisions of the
preceding sentence in a uniform manner and Landlord shall not enforce the
provisions of this subparagraph in a manner which discriminates against Tenant.
If by reason of the performance of any Tenant Change there shall be any material
interference with the use and enjoyment of the Premises demised to any other
tenant or occupant in the Building or if the Premises or the Building (or any
work or installations in either) shall be damaged or if the performance of such
Tenant Change shall otherwise interfere with the use or occupancy of any part of
the Building, Tenant shall upon Landlord's request remedy or remove the
condition or conditions complained of. Notwithstanding anything to the contrary
contained in this Section 15.6(d), Landlord and Tenant agree that if in
connection with Tenant's initial move into the Building any work stoppage or
labor disruption or dispute shall occur at or affecting the Building, Tenant
shall not be required to cease such initial move into the Building provided that
(i) Tenant shall cause such move to be completed as expeditiously as possible,
and (ii) Landlord and Tenant shall mutually cooperate to remedy such work
stoppage or labor disruption or dispute.
15.7 Payment for the Work
(a) If Empire HealthChoice d/b/a Empire Blue Cross Blue Shield (or
any successor thereto) and its Affiliates shall at any time have net worth less
than ten (10) times the cost of any Tenant Change, Landlord may require Tenant,
if the change is a Material Tenant
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Change and if reasonable under the circumstances, to obtain and furnish to
Landlord (or require Tenant's general contractor to obtain and furnish to
Landlord) a performance and payment bond satisfactory to Landlord naming Tenant
and Landlord as their interests may appear; it being understood and agreed,
however, that Tenant (and Tenant's general contractor) shall have no obligation
to obtain and furnish to Landlord a payment and performance bond in connection
with the Tenant Initial Work. Notwithstanding the foregoing, all other tenants
and occupants of all or any portion of the Premises other than Empire
HealthChoice d/b/a Empire blue Cross/Blue Shield (or any successor thereto)
and its Affiliates shall be required, if reasonable under the circumstances,
prior to the commencement of any Material Tenant Change, to obtain and furnish
to Landlord (or to require their general contractor to obtain and furnish to
Landlord) a performance and payment bond as aforesaid.
(b) Any mechanic's lien filed against the Building for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant, any Affiliate or subtenant of Tenant, or any other Person acting by or
under any of the foregoing shall be discharged by Tenant within thirty (30) days
after Tenant shall have received notice thereof. If Tenant shall fail to
discharge any mechanic's lien within such thirty (30) day period as aforesaid,
Landlord may, but shall not be obligated to, discharge the mechanic's lien by
bond, payment or otherwise and the cost of the discharge will be paid by Tenant
to Landlord as Additional Rent upon receipt of Landlord's invoice therefor.
15.8. Violations. In the event any notice of violation is placed
against the Building arising out of any Tenant Change, Tenant shall cure such
violation within ten (10) Business Days after notice thereof or if such
violation is of such a nature that it cannot be cured within said ten (10)
Business Day period, Tenant shall commence the curing of said violation within
said ten (10) Business Day period and shall thereafter diligently prosecute to
completion all steps necessary to cure such violation, but in any event within
sixty (60) days. If Tenant shall be unable to cure such violation as aforesaid,
Landlord may, but shall not be obligated to, cure the violation by whatever
action Landlord reasonably deems to be necessary, including the removal of all
or any part of the Tenant Change, and the cost of the action taken by Landlord
to cure such violation shall be paid by Tenant to Landlord as Additional Rent
within ten (10) days of Landlord's demand therefor.
15.9. Landlord's Costs. Subject to the provisions of Section 15.2(a),
all reasonable third-party costs incurred by Landlord in connection with any
Tenant Change, including but not limited to review of Final Working Drawings,
inspections (but only to the extent Landlord would be entitled pursuant to
Section 15.2(a) to reimbursement for the reasonable fees and expenses of
Landlord's Engineer for reviewing Final Working Drawings for the work to be
inspected), rubbish removal, third party architects and engineers and other
labor (including charges of any of Landlord's Affiliates), electricity, steam,
water, fire protection, security, insurance and similar general conditions items
shall be paid by Tenant as Additional Rent within ten (10) days after Landlord's
demand therefor. Notwithstanding anything to the contrary in this Section 15.9,
Landlord shall not charge any "tap-in" or "tie-in" fees, (or any similar fees)
in connection with Class E systems, supplemental air conditioning, sprinklers or
other mechanical, electrical or plumbing systems in connection with Tenant
Changes or the Tenant Initial Work, nor shall Landlord charge Tenant any
supervisory or administrative fees or surcharges in connection with Tenant
Changes or the Tenant Initial Work. Landlord shall not be entitled to
reimbursement for costs paid to third parties for services that Landlord could
have used in-house personnel to handle, without regard to whether the workload
of such in-house personnel would have accommodated such additional tasks at the
time.
ARTICLE 16
BASE BUILDING WORK; TENANT INITIAL WORK.
Landlord shall construct the Base Building Work and Tenant shall
construct the Tenant Initial Work as hereinafter set forth in this Article 16.
The Base Building Work shall be constructed in accordance with the Base Building
CD's and any Change Orders. The Tenant Initial Work shall be constructed in
accordance with the approved Final Working Drawings therefor.
16.1. Delivery of Base Building Work.
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(a) Commencement Date; Ready for Delivery; Substantial
Completion. The "Commencement Date" shall be the date on which the Premises is
"Ready for Delivery" as certified by Tenant in accordance with the provisions of
Section 16.1(b), such certification not to be unreasonably withheld. The Initial
Base Building Work shall be deemed "Ready for Deliver" when all of the
following (the "Delivery Conditions") shall have occurred with respect to the
Base Building Work, except to the extent any of the following constitute Post
Delivery Base Building Work:
(i) Substantial completion in accordance with Legal
Requirements (including without limitation the provisions of the Americans with
Disabilities Act) of all bathrooms servicing the Premises, including plumbing,
fixtures, tiling, mirrors, hardware, partitions, ceiling, lighting and
equipment, as the same are shown on the Base Building CD's. In addition,
Landlord shall provide temporary bathroom facilities for Tenant's contractors
performing the Tenant Initial Work, as shown on the Base Building CD's;
(ii) Substantial completion of the Building enclosure except
for openings required, if any, for the use by Landlord, Tenant or other tenants
of any hoists and other openings required for completing the Base Building Work,
which openings shall not materially delay or materially increase the cost of the
Tenant Initial Work. Landlord shall identify the location of such openings on
the Base Building CD's. Exterior perimeter walls (including perimeter columns)
and other non-vision walls shall be provided insulated and finished with one
layer of gypsum wallboard from the top of the slab to the underside of the deck,
taped and spackled, ready to receive Tenant finishes. Exterior windows shall be
sealed, caulked and watertight. The areas below windows shall receive windowsill
detail which is coordinated with the sheetrock finish;
(iii) Substantial completion of the sprinkler infrastructure,
including combination standpipe/sprinkler risers, pumps and valve connections
which shall be fully operational and code compliant so as to enable Landlord to
obtain a zero occupancy Temporary Certificate of Occupancy ("TCO"), and which
shall include the installation of any temporary sprinkler loop/sprinkler heads
(at a height which shall have been reasonably approved by Tenant) required in
order to secure such TCO;
(iv) Substantial completion of the electrical distribution
system from service switch boards up through risers to floor electrical closets.
The electrical distribution to each floor of the Premises shall include direct
metering, as well as permanent distribution for the local floor fan systems and
hot water heaters;
(v) (A) Delivery of ACP-5 forms for all floors in the
Premises, which ACP-5 forms shall have been delivered at least two (2) months
before the Premises are Ready for Delivery, and (B) Delivery of copies of
certified adhesion and cohesion tests;
(vi) Substantial completion of all Building systems, which
shall be operational, in good working order and performing in accordance with
the specifications included as part of the Base Building CD's;
(vii) Delivery of floor slabs which are broom clean and level,
within a standard of 1/4" every 10 feet. Tenant, within thirty (30) days after
receipt of notice from Landlord that one or more floors has been poured, shall
have the right to perform a floor levelness survey of such floor(s). Tenant
shall notify Landlord of the results of the survey within ten (10) days after
performance thereof. If the survey shows that the above standard has not been
met, then the Delivery Conditions shall not be satisfied until Landlord has
performed all work necessary to cause any nonconforming floors to meet the above
standard. Any dispute whether the floor levelness standard has been met shall be
referred to expedited construction arbitration pursuant to Article 34.
Structural steel and metal deck shall be fireproofed in accordance with Legal
Requirements;
(viii) The exterior walls of all core element mechanical rooms,
electric and telecommunications closets and elevator lobbies shall be delivered
sheetrocked from the top of the slab to the underside of the deck, taped,
spackled and with final finishes. The interior walls of all core element
mechanical rooms, electric and telecommunications closets and elevator lobbies,
except for interior walls associated with Post Delivery Base Building Work,
shall be delivered sheetrocked from the top of the slab to the underside of the
deck, taped, spackled and
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ready to receive Tenant's finishes. The interiors of such core rooms shall have
temporary or permanent lighting installed and operational. Core doors and frames
shall be installed with a finish ready to receive Tenant's final painting, and
with building standard hardware and temporary construction cylinders;
(ix) Substantial completion of the main HVAC trunk complete with
smoke, fire dampers and automatic control dampers at the core on each floor of
the Premises, as well as smoke exhaust risers with smoke exhaust fans, all in
accordance with the Base Building CD's. All condenser water risers, cooling
towers, condenser water pumps and plate frame heat exchangers shall be installed
and operational sufficient to handle Tenant's loads in the amounts specified in
the Base Building CD's, with valved connections on each floor for supplemental
capacity as shown in the Base Building CD's. All water-cooled, DX type HVAC air
conditioning equipment shown on the Base Building CD's shall be installed,
commissioned and operational, with ductwork penetrating the core wall. The
perimeter hot water heating system and convector enclosures shown on the Base
Building CD's shall be installed and operational;
(x) Connection points shall be available on each floor for
Tenant's strobes and related Class E connections. All fire and safety systems
shown on the Base Building CD's, including alarms, speakers, communications,
strobes, etc. shall be in full service and available on all floors of the
Premises consistent with any zero occupancy TCO requirements.
(xi) The passenger and freight car vertical transportation system
shall be sufficiently operational to enable Tenant to transport labor, equipment
and materials required for performance of the Tenant Initial Work and to meet
any zero occupancy TCO requirements;
(xii) A valved outlet for natural gas shall be available in the gas
meter room as shown on the Base Building CD's;
(xiii) There shall be no unbonded construction liens, nor any uncured
violations of record which would prevent Tenant from obtaining permits required
for the Tenant Initial Work. The Base Building Work shall be delivered in
compliance with Legal Requirements and with a TCO for the Premises sufficient
for filing of so-called "Directive 14's" by Tenant. Notwithstanding anything to
the contrary in this Section 16.l(a)(xiii), in no event shall the Initial Base
Building Work or any item of the Post Delivery Base Building Work be deemed not
Ready for Delivery because of any failure to comply with Legal Requirements, if
such noncompliance does not materially increase the costs of completion of the
Tenant Initial Work or the time necessary to complete the Tenant Initial Work
(hereinafter, "materially interfere" or materially interfere with the use by
Tenant of the Premises for the purposes permitted by Article 2 or use by Tenant
of the common or public areas of the Building;
(xiv) The fire stairs shall be substantially complete for Tenant's
functional use and ready to receive Tenant's finishes, if any; and
(xv) (A) If and to the extent that the permanent electric service
described in Article 4 is not yet available or suitable for Tenant's performance
of the Tenant Initial Work, temporary electric service sufficient for Tenant's
performance of the Tenant Initial Work, and (B) If requested by Tenant by notice
on or before the date which is two (2) weeks after Tenant's receipt of the
Preliminary Notice, temporary heating capacity and temporary heat sufficient for
Tenant's performance of the Tenant Initial Work. Tenant shall pay for such
temporary electric service in accordance with Section 16.17. Tenant shall pay
Landlord's actual, incremental costs of constructing such temporary heating
capacity and Landlord's actual, incremental costs of providing such temporary
heat as Additional Rent, within thirty (30) days after receipt of Landlord's
invoices therefor.
Notwithstanding anything to the contrary in this Section 16.1(a), the
following elements of the Base Building Work constitute "Post Delivery Base
Building Work" which shall be substantially completed within the time frames set
forth in Section 16.1(c):
(i) If requested by Tenant by notice on or before the date which
is two (2) weeks after Tenant's receipt of the Preliminary Notice, temporary
cooling and humidity control capacity. and temporary cooling and humidity
control, sufficient for Tenant's performance of the Tenant Initial Work. Tenant
shall pay Landlord's actual, incremental costs of constructing such temporary
cooling and humidity control capacity and Landlord's actual, incremental costs
of
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providing such temporary cooling and humidity control as Additional Rent, within
thirty (30) days after receipt of Landlord's invoices therefor;
(ii) If requested by Tenant by notice on or before the date which
is two (2) weeks after Tenant's receipt of the Preliminary Notice, temporary
electrical service with so called "permanent characteristics" sufficient for
testing of Tenant's data center. Tenant shall pay Landlord's actual, incremental
costs of constructing such electrical capacity as Additional Rent, within thirty
(30) days after receipt of Landlord's invoices therefor. To the extent
practicable, Tenant shall pay for such electric service in accordance with
Section 16.17;
(iii) A fully operational vertical transportation system;
(iv) Availability of connection points for the Class E fire alarm
system consistent with zero occupancy TCO requirements;
(v) Fully operational Building systems in accordance with the
Base Building CD's;
(vi) Removal of hoists from, and full enclosure of, the curtain
wall surrounding the Premises (to the extent not previously enclosed because of
such hoists, and excluding the opening(s) for any hoist installed by Tenant
pursuant to Section 16.19(b) and not yet removed by Tenant);
(vii) The finish work for the bathrooms servicing the Premises, as
such finish work is identified on the Base Building CD's;
(viii) Delivery of a TCO for the Premises sufficient for filing of
so-called "Directive 14's" by Tenant; and
(ix) All public and common areas of the Building.
The elements of the Base Building Work other than the Post Delivery
Base Building Work are sometimes hereinafter referred to as the "Initial Base
Building Work".
For purposes of this Article 16, "substantially complete(d)" means full
completion of the Base Building Work in accordance with the Base Building CD's
except for (i) if so requested by Tenant, any item(s) of Base Building Work
which in accordance with good construction scheduling practices should only be
completed after completion by Tenant of one or more item(s) of the Tenant
Initial Work (Landlord shall commence completion of any such item(s) of Base
Building Work within five (5) Business Days (or as soon as reasonably
practicable thereafter) after Landlord's receipt of notice from Tenant of
completion of the item(s) of Base Building Work in question, and Landlord shall
prosecute completion of such item(s) diligently and with continuity until
completion), and (ii) minor or insubstantial details of construction,
decoration, mechanical adjustment or installation, noncompletion of which will
not interfere with Tenant's performance of the Tenant Initial Work or Tenant's
occupancy of the Premises, and which shall have been identified in writing by
Tenant after Tenant shall have been afforded access to inspect the Base Building
Work on the Walk-Through Date ("Punch List Items"). Tenant shall deliver to
Landlord the list of Punch List Items for the Initial Base Building Work or the
item(s) of Post Delivery Base Building Work then being delivered no later than
fifteen (15) Business Days after the earlier of, with respect to such Base
Building Work, (A) the date on which Tenant certifies that such portion of the
Base Building Work is Ready for Delivery in accordance with the provisions of
Section 16.1(b), or (B) the date the Arbitrator, pursuant to Article 34, shall
have issued a decision that such Base Building Work is Ready for Delivery.
(b) Notices to be Delivered; Walk-Through Dates.
(i) On or about the date which is six month(s) after Commencement
of Construction, Landlord shall notify Tenant whether any variances from the
Construction Schedule have occurred (the "Preliminary Notice", which notice may
be in narrative form or in the form of an updated Construction Schedule.
(ii) Landlord shall notify Tenant at least sixty (60) days in
advance of the projected delivery date of the Initial Base Building Work or the
item(s) of Post Delivery Base Building Work then being delivered (the "Initial
Notice").
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(iii) At least thirty (30) days prior to the delivery date specified
in the Initial Notice, Landlord shall deliver to Tenant a second notice (the
"Confirmation Notice") confirming the date set forth in the Initial Notice, or
if such delivery date is no longer expected to be met by Landlord, the
Confirmation Notice shall set forth the revised anticipated delivery date (which
may be later but not earlier than the anticipated delivery date set forth in the
Initial Notice).
(iv) At least ten (10) days prior to the date Landlord believes the
Initial Base Building Work or any item(s) of Post Delivery Base Building Work
then being delivered will be substantially complete, Landlord shall deliver a
notice (a "Ready for Delivery Notice") setting forth the anticipated substantial
completion date. Unless Tenant shall have consented to an earlier date, the
anticipated substantial completion date shall not be earlier than the date which
is twelve (12) months after Landlord has Commenced Construction of the
Building. Within five (5) Business Days after Tenant's receipt of any Ready for
Delivery Notice, Tenant shall establish a date reasonably acceptable to Landlord
(a "Walk Through Date") on which Landlord and Tenant shall jointly inspect the
Initial Base Building Work or the item(s) of Post Delivery Base Building Work
then being delivered, which Walk Through Date shall be no earlier than the
anticipated substantial completion date set forth in the Ready for Delivery
Notice and no later than two (2) Business Days after such anticipated
substantial completion date. If the Initial Base Building Work is Ready for
Delivery on the Walk Through Date, the Commencement Date shall be the date
specified in the Ready for Delivery Notice. If any item of Post Delivery Base
Building Work then being delivered is Ready for Delivery on the Walk Through
Date, such item shall be deemed accepted for delivery on the date specified in
the Ready for Delivery Notice. If the Initial Base Building Work or any item of
Post Delivery Base Building Work then being delivered is not Ready for Delivery
on the Walk Through Date, then the Commencement Date shall not occur, or such
item of Post Delivery Base Building Work shall not be deemed accepted by Tenant,
as the case may be, and Landlord, at least five (5) days prior to the date
Landlord believes that the Initial Base Building Work or such item of the Post
Delivery Base Building Work will be substantially complete, shall send to Tenant
a second Ready for Delivery Notice setting forth the then anticipated
substantial completion date. Within three (3) days after Tenant's receipt of a
second Ready for Delivery Notice, Tenant shall establish a second Walk Through
Date, reasonably acceptable to Landlord, on which Landlord and Tenant shall
jointly re-inspect the Initial Base Building Work (or any item of Post Delivery
Base Building Work) then being delivered, which Second Walk Through Date shall
be no earlier than the anticipated substantial completion date set forth in the
second Ready for Delivery Notice and no later than one (1) Business Day after
such anticipated substantial completion date. In the event the Initial Base
Building Work (or the item of Post Delivery Base Building Work then being
delivered) is still not Ready for Delivery on the second Walk Through Date, then
the procedure set forth in the preceding two sentences shall be repeated as many
times as necessary until the Initial Base Building Work (or such item of Post
Delivery Base Building Work) is Ready for Delivery. After the delivery to Tenant
of any Ready for Delivery Notice, and upon notice from Landlord, Tenant shall
use reasonable efforts to meet with Landlord at the Building (accompanied by
Tenant's Construction Representative (as hereinafter defined) and such of
Tenant's architectural, engineering and/or construction consultants ("Tenant's
Inspection Consultants") as Landlord shall have reasonably requested), prior to
the anticipated substantial completion date specified in such Ready for Delivery
Notice, in order to assist Landlord in identifying any incomplete items of
Initial Base Building Work or incomplete items of Post Delivery Base Building
Work, as the case may be. If the Initial Base Building Work (or the item of Post
Delivery Base Building Work then being delivered) is not Ready for Delivery on
the initial Walk Through Date, then Landlord shall reimburse Tenant, promptly
upon receipt of Tenant's invoices therefor, for the reasonable, actual third
party costs of participation of Tenant's Inspection Consultants in any
subsequent joint inspection of the Initial Base Building Work (or the item
of Post Delivery Base Building Work then being delivered).
In the event that following any joint inspection by Landlord and
Tenant of the Initial Base Building Work (or any item(s) of Post Delivery Base
Building Work then being delivered by Landlord), Tenant believes the Initial
Base Building Work (or any item of Post Delivery Base Building Work) is not
Ready for Delivery, then within two (2) Business Days after the completion of
such inspection Tenant shall furnish Landlord with a written list of incomplete
work (the "Incomplete Work") which Tenant believes must be completed in order
for the Initial Base Building Work (or such item of Post Delivery Base Building
Work) to be Ready for Delivery.
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Notwithstanding anything to the contrary in this Section 16.1, in no event
shall the Initial Base Building Work or any item of the Post Delivery Base
Building Work be deemed not Ready for Delivery because of Landlord's failure to
complete items of Base Building Work the noncompletion of which does not impede,
delay or otherwise interfere with the completion of Tenant Initial Work being
performed by Tenant at the time or interfere with the use by Tenant of the
Premises for the purposes permitted by Article 2 or use by Tenant of the common
or public areas of the Building.
In the event Landlord and Tenant are unable to agree whether the Initial
Base Building Work (or any item of Post Delivery Base Building Work then being
delivered by Landlord) is Ready for Delivery, either party may refer such
dispute to expedited construction arbitration in accordance with the procedures
set forth in Article 34.
(c) Commencement of Construction; Construction Schedule; Projected
Substantial Completion Dates; Penalty for Late Completion; Termination Rights.
(i) Definitions.
(A) For the purposes of this Article 16, "Commencement of
Construction of the Building" or "Commence(d) Construction of the Building"
means the date when this Lease shall have been executed by Landlord and Tenant
and deposited in escrow pursuant to the terms and conditions of that certain
escrow agreement between Landlord and Tenant dated as of November 6, 2001 (the
"Escrow Agreement").
(B) For the purposes of this Article 16, "Construction Schedule"
means the construction schedule which has been agreed to by the parties and
annexed hereto as Exhibit B. Except as expressly set forth in this Article 16,
the Construction Schedule is annexed hereto solely for informational purposes,
is not binding on Landlord or Tenant, and shall not be deemed to modify any
rights or obligations of Landlord or Tenant set forth in this Lease.
Notwithstanding anything to the contrary in the preceding sentence, and subject
to Tenant Delays and force majeure, Landlord agrees that unless otherwise
consented to by Tenant, such consent not to be unreasonably withheld, Landlord's
performance of the Base Building Work shall not be inconsistent with the general
framework shown on the Construction Schedule.
(C) "Projected Completion Date(s)" shall mean (1) in the case of
the Initial Base Building Work, the later of (a) the date when the Delivery
Conditions for the Initial Base Building Work should have occurred as shown on
the Construction Schedule, or (b) twelve (12) months after Landlord has
Commenced Construction of the Building, and (2) in the case of the Post Delivery
Base Building Work, the later of (a) the date(s) when completion of each item of
Post Delivery Base Building Work should have occurred as shown on the
Construction Schedule, or (b) fourteen (14) months after Landlord has Commenced
Construction of the Building in the case of item (i) of the Post Delivery Base
Building Work, sixteen (16) months after Landlord has Commenced Construction of
the Building in the case of item (ii) of the Post Delivery Base Building Work,
seventeen (17) months after Landlord has Commenced Construction of the Building
in the case of items (iii) through (vii) of the Post Delivery Base Building
Work, and eighteen (18) months after Landlord has Commenced Construction of the
Building in the case of items (viii) and (ix) of the Post Delivery Base Building
Work and in the case of any other previously uncompleted item(s) of Base
Building Work noncompletion of which would interfere with Tenant's completion of
the Tenant Initial Work or Tenant's use of the Premises for the purposes
permitted by Article 2 or Tenant's use of the common or public areas of the
Building. Except as expressly provided in this Article 16, Landlord shall not be
subject to any liability if the Delivery Conditions for all of the Initial Base
Building Work shall not have occurred by the Projected Completion Date for the
Initial Base Building Work, nor shall Landlord be subject to any liability if
completion of any item of the Post Delivery Base Building Work shall not have
occurred by the Projected Completion Date for such item of Post Delivery Base
Building Work, and the validity of this lease shall not be impaired thereby.
(D) "Commencement of Construction and Financing Date" shall mean
the date which is three (3) months after the date when the condition to be
satisfied pursuant to Paragraph 4(b)(i) of the Escrow Agreement shall have been
satisfied, or shall have been waived by Tenant.
(E) "Outside Ready for Delivery Date" shall mean the date which is
twenty-four (24) months after Commencement of Construction of the Building.
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(F) "Institutional Lender" means a savings bank, a savings and loan
association, a commercial bank or trust company, an insurance company, a real
estate investment trust, a religious, educational or eleemosynary institution, a
governmental agency, body or entity, an employee, benefit, pension or retirement
plan or fund, a commercial credit corporation, an investment bank, a commercial
bank or trust company acting as trustee or fiduciary of various pension funds or
tax-exempt funds or as trustee in connection with the issuance of any bonds or
any other debt financing, or a corporation or other entity owned wholly by any
other Institutional Lender or a subtrustee of any such commercial bank or trust
company acting as such trustee, or any combination of the forgoing, provided,
however, that such entity, or any combination of such entities, shall qualify as
an Institutional Lender for purposes hereof only if each such entity or
combination of such entities or the parent or parents of such entity or entities
has individual or combined assets, as the case may be, of not less than One
Billion Dollars ($1,000,000,000).
(ii) Liquidated Damages for Late Substantial Completion of Initial
Base Building Work and Post Delivery Base Building Work. Notwithstanding
anything to the contrary in Section 16.1(c)(i), if (A)(1) the Delivery
Conditions for the Initial Base Building Work shall not have occurred by the
Projected Completion Date for the Initial Base Building Work, or (2) any item of
Post Delivery Base Building Work shall not have been completed by the Projected
Completion Date for such item of Post Delivery Base Building Work, and (B)
Tenant is actually delayed thereby in commencing the Tenant Initial Work in
accordance with good construction practices or in prosecuting the Tenant Initial
Work in accordance with good construction practices, as the case may be, or in
moving into the Premises, or in using the Premises for the purposes permitted by
Article 2, or in using the common or public areas of the Building, then as
liquidated damages for such delay, and not as a penalty, (a) the Rent
Commencement Date shall be deferred one (1) day for each day of such delay, and
(b) commencing with the first Fixed Rent due and payable after the Rent
Commencement Date, Fixed Rent shall be abated in an amount equal to the product
of (x) one half (1/2) day of Fixed Rent and (y) the number of days of such
delay. Tenant shall promptly notify Landlord of any such delay in commencing or
prosecuting the Tenant Initial Work, and shall use good faith reasonable
efforts, consistent with good construction practices (but at no additional cost
to Tenant), to mitigate any such delay in commencing or prosecuting the Tenant
Initial Work. It is specifically understood and agreed that the liquidated
damages referred to in this Section 16.1(c)(ii) are not intended to be
cumulative, and that if any of the delays referred to within any subclause of
subsection (B) of this Section 16.1(c)(ii) occur simultaneously, then to the
extent of such simultaneous occurrence such delays shall be deemed to run
concurrently and not consecutively. Any dispute about the operation of this
Section 16.1(c)(ii) shall be submitted to expedited construction arbitration in
accordance with Article 34.
(iii) Self Help Right. Notwithstanding anything to the contrary in
Section 16.1(c)(i), if (A) any item of Post Delivery Base Building Work shall
not have been completed by the date which is four (4) months after the Projected
Completion Date for such item of Post Delivery Base Building Work, and (B)
Tenant is actually delayed thereby in commencing the Tenant Initial Work in
accordance with good construction practices or in prosecuting the Tenant Initial
Work in accordance with good construction practices, as the case may be, or in
moving into the Premises, or in using the Premises for the purposes permitted by
Article 2, or in using the common or public areas of the Building, then Tenant
may notify Landlord of its intent to complete such item of Post Delivery Base
Building Work. If Landlord shall have failed to complete such item of Post
Delivery Base Building Work within ten (10) Business Days after the receipt of
Tenant's notice of intent, then Tenant may complete such item of Post Delivery
Base Building Work in accordance with the then existing Base Building CD's
applicable thereto (as the same may have been modified, e.g. by Change Orders,
shop drawings and field conditions) and good construction practices. If Tenant
undertakes to complete any item of Post Delivery Base Building Work pursuant to
this Section 16.l(c)(iii), Tenant shall prosecute the same diligently and with
continuity to completion, and Tenant shall use reasonable efforts not to
interfere with any work then being performed in the Building by Landlord or any
other Tenant. Tenant shall exercise its rights under this Section 16.l(c)(iii)
at Tenant's expense, provided, that Landlord shall reimburse Tenant, not more
frequently than monthly, within ten (10) Business Days after receipt of Tenant's
invoice(s) therefor, for the actual, reasonable costs of completing such item of
Post Delivery Base Building Work. Tenant's invoice(s) shall be accompanied by
the supporting documents described in Section 16.20(d). Notwithstanding anything
to the contrary in the preceding sentence, Landlord's reimbursement obligation
under this Section 16.3(c)(iii) shall be limited to the aggregate amounts not
previously incurred under Landlord's construction
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contracts and attributable to the item of Post Delivery Base Building Work in
question. Any dispute about the operation of this Section 16.1(c)(iii) shall be
submitted to expedited construction arbitration in accordance with Article 34.
(iv) Termination Rights.
(A) If by the Commencement of Construction and Financing Date
Landlord (1) fails to close on a construction loan with an Institutional Lender
for an amount sufficient to complete the Base Building Work and pay the Tenant
Initial Work Allowance and/or furnish evidence reasonably satisfactory to Tenant
of Landlord's ability and commitment to fund such amount itself, or (2) shall
not have commenced construction of the Building within a reasonable period of
time after Commencement of Construction of the Building and be diligently
prosecuting construction of the Building, then Tenant, as Tenant's sole and
exclusive remedy, may terminate this Lease by giving notice of such election
within five (5) Business Days after the Commencement of Construction and
Financing Date (the "Termination Deadline"), provided, however, that any such
notice given by Tenant shall be nullified if prior to the Termination Deadline,
(1) Landlord shall have closed on such a construction loan and/or furnished the
required evidence of ability and commitment to fund such amount itself, and (2)
Landlord shall have commenced construction of the Building within a reasonable
period of time after Commencement of Construction of the Building and shall be
diligently prosecuting construction of the Building. Tenant's failure to
exercise any right it may have to terminate this Lease pursuant to this Section
16.01(c)(iv)(A) on or before the Termination Deadline, shall be deemed an
irrevocable waiver by Tenant of its right to exercise such termination right.
Landlord shall use good faith diligent efforts to obtain such a construction
loan on commercially reasonable terms, taking into account, however,
conventional limitations on the willingness of developers to contribute equity.
The conditions for funding under such construction loan shall be commercially
reasonable as determined by Tenant in its reasonable discretion, provided, that
such conditions for funding shall be deemed commercially reasonable if such
conditions are substantially similar to conditions for funding in loans of Fifty
Million Dollars ($50,000,000) or more for new construction in the City of New
York closed by entities related to Landlord on or after January 1, 1990.
(B) If by the Outside Ready for Delivery Date the Delivery
Conditions shall not have occurred for the Initial Base Building Work, Tenant
may terminate this Lease by giving notice of such election within two (2) months
following the Outside Ready for Delivery Date, provided, however, that any such
notice shall be nullified if prior to the effective date of such notice, the
Delivery Conditions shall have occurred for the Initial Base Building Work. If
Tenant terminates this Lease pursuant to this Section 16.1(c)(iii)(B), then by
the date which is five (5) Business Days after Landlord's receipt of Tenant's
termination notice, Landlord shall pay Tenant a termination penalty of Five
Million Dollars ($5,000,000). Landlord has furnished a surety bond (or alternate
security permitted hereunder) to Tenant to secure payment of said termination
penalty, and shall maintain such surety bond (or alternate security permitted
hereunder, as applicable) in full force and effect until the earlier of (i) the
date when the Delivery Conditions for the Initial Base Building Work shall have
been satisfied, or (ii) the date when Tenant shall have received payment of such
termination penalty in accordance with the terms of this Section 8.1(c)(iv)(B).
Any replacement surety bond furnished to Tenant shall be in customary form and
from a bonding company reasonably satisfactory to Tenant and shall provide that
Tenant shall have the right to draw down on it in the event Landlord fails to
provide replacement security as provided in this paragraph. No surety bond (or
any replacement letter of credit as provided below) shall be cancelable by the
issuer unless the issuer shall be required to give at least thirty (30) days'
prior notice before any such cancellation shall be effective. Within fifteen
(15) days following receipt of any such cancellation notice, Landlord shall
provide, in form reasonably acceptable to Tenant, a replacement surety bond,
letter of credit or alternate comparable security (e.g., cash to be held in
escrow by the party who served as escrow agent under the Escrow Agreement). If
Landlord fails to timely provide such replacement surety bond, letter of credit
or comparable security as aforesaid, Tenant shall have the right to draw down
the surety bond (or replacement letter of credit, if applicable) and deposit the
cash so drawn in escrow with the party who served as escrow agent under the
Escrow Agreement to serve as replacement security. Notwithstanding the foregoing
to the contrary, Landlord shall have the right to deliver a guaranty by
Guarantor of the obligation to pay the aforesaid termination penalty in lieu of
a surety bond, provided the form and substance of such guaranty is reasonably
acceptable to Tenant. If Tenant elects to terminate this Lease pursuant to this
Section
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16.0(a)(iv)(B), such termination and payment of the Five Million Dollar
($5,000,000) termination penalty shall be Tenant's sole and exclusive remedies.
(v) The Projected Completion Dates, the Commencement of Construction
and Financing Date and the Outside Ready for Delivery Date, as applicable, shall
be extended:
(A) One day for each day of Tenant Delay as defined in Section 16.7;
and
(B) One day for each day that Landlord is actually delayed in
completing the Initial Base Building Work or any item(s) of the Post Delivery
Base Building Work as a result of force majeure as defined in Section 36.1. It
is specifically understood and agreed that if more than one force majeure event
would actually delay Landlord in commencing or completing the Initial Base
Building Work or any item(s) of the Post Delivery Base Building Work, but such
events and the delays caused by them occur simultaneously, then to the extent of
such simultaneous occurrence such delays shall be deemed to run concurrently and
not consecutively.
(vi) Tenant hereby waives any right to rescind this lease under the
provisions of Section 223-a of the Real Property Law of the State of New York,
and agrees that the provisions of this Section 16.1(d) are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223-a.
(d) Commencement Date Certificate. At any time after the Commencement
Date, Tenant and Landlord shall, promptly upon written request by either of
them, execute and acknowledge an instrument in a form reasonably satisfactory to
Landlord and Tenant confirming the Commencement Date, the Expiration Date, and
any other matter reasonably requested by Landlord or Tenant provided, that the
execution and acknowledgment of such an instrument shall not be a prerequisite
to the commencement or expiration of the Term.
(e) Completion of Punch List Items. Landlord, at its sole cost and
expense, shall complete as soon as practicable (but in any event within thirty
(30) days) after Landlord's receipt of Tenant's punch list(s) all Punch List
Items (pertaining to the Initial Base Building Work or to any item of the Post
Delivery Base Building Work), except for (i) if requested by Tenant, any Punch
List Item(s) which in accordance with good construction scheduling practices
should only be completed after completion by Tenant of one or more item(s) of
the Tenant Initial Work (Landlord shall commence completion of any such Punch
List Items within five (5) Business Days (or as soon as reasonably practicable
thereafter) after Landlord's receipt of notice from Tenant of completion of the
item(s) of Base Building Work in question, and Landlord shall prosecute
completion of such Punch List Item(s) diligently and with continuity until
completion), and except that (ii) with respect to any Punch List Items which
cannot be completed within such thirty (30) day period(s), Landlord shall,
within such thirty (30) day period(s), diligently commence and prosecute the
same with continuity to completion.
(f) Acceptance of Premises. Except as otherwise expressly provided in
this Lease (including without limitation the provisions of Sections 16.9 and
19.2(c)), upon (i) the date when the Initial Base Building Work or any item(s)
of the Post Delivery Base Building Work shall be Ready for Delivery, and (ii)
Landlord's completion of the Punch List Items relating thereto, Tenant shall be
deemed to have agreed for all purposes hereof that the Base Building Work in
question has been completed and that Landlord has performed all of its
obligations under this Article 16 with respect to such Base Building Work.
16.2. Base Building Work. The core and shell of the Building to be
constructed by Landlord as described in the "Base Building Work Letter" annexed
hereto as Exhibit J and any other work to be performed by Landlord as described
in Exhibit J, together with all "Base Building Enhancements" which may be
constructed by Landlord as described on Exhibit N (and as such Base Building
Enhancements may be depicted on the Base Building CD's), are hereinafter
referred to as the "Base Building Work". If and to the extent the same are
requested by Tenant, the Base Building Enhancements shall be performed by
Landlord at Tenant's expense. All Base Building Work, upon the installation
thereof in the Building or Premises, shall be and remain the property of
Landlord, subject to the provisions of the Ground Lease.
16.3. Base Building CD's,
(a) Preparation of Base Building CD's.
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(i) Schematic Floor Plans.
Annexed hereto as Exhibit A is a schedule of schematic floor plans which
have been furnished to Tenant. The schematic floor plans referenced in Exhibit A
shall not be binding on Landlord with respect to the dimensions or locations of
any fixed architectural elements shown on such plans, provided, that the general
configuration of the floor plates within the Premises and the general location
and size of the building core within the Premises shall not materially change
without the consent of Tenant, not to be unreasonably withheld.
(ii) Tenant Election. On or before November 19, 2001, Tenant shall
furnish Landlord with Tenant's alternative male/female bathroom configuration.
(iii) Base Building CD's.
(A) As soon as reasonably practicable after Commencement of
Construction of the Building, Landlord shall cause Xxxxxx Xxxxxx Xxxxxxx
Architects and/or Xxxxx Xxxxx & Associates or such other architect(s) as may be
selected by Landlord in its sole discretion (collectively and/or individually,
the "Base Building Architect") to prepare construction drawings and
specifications for the Base Building Work (the "Base Building CD's"), based on
and substantially in accordance with the Base Building Work Letter and taking
into account Tenant's election pursuant to Section 16.3(a)(ii). The initial Base
Building CD's shall be delivered to Tenant's Architect on or before the date
which is thirty (30) days after Commencement of Construction of the Building.
The Base Building CD's (and any revisions thereto) shall be submitted to Tenant
for Tenant's review and approval of any aspects of the Base Building CD's
affecting the Premises or the public and common areas of the Building serving
the Premises, which approval shall not be unreasonably withheld.
(B) Tenant, with specificity and in writing (which may include
xxxx-ups of the Base Building CD's or any revisions thereto), shall notify
Landlord of any objections to the Base Building CD's within twenty (20) days
after Tenant's receipt thereof (ten (10) days in the case of any revisions
thereto). If Tenant fails to notify Landlord of any objections within twenty
(20) days (in the case of the initial Base Building CD's) or within ten (1O)
days (in the case of any revisions thereto), the initial Base Building CD's (or
any revisions thereto, as the case may be) shall be deemed approved.
(C) Any changes to the Base Building CD's required by any
governmental department (e.g., Buildings Department) shall be disclosed by
Landlord to Tenant and shall promptly be incorporated into the Base Building
CD's by the Premises Architect. Notwithstanding the forgoing, Landlord shall
submit any such Buildings Department changes which materially affect the Tenant
Initial Work, the Building systems or the common or public areas of the Building
to Tenant for Tenant's review and approval, which approval shall not be
unreasonably withheld.
Tenant, with specificity and in writing (which may include xxxx-ups of
such Buildings Department changes or any revisions thereto), shall notify
Landlord of any objections to the Buildings Department changes within five (5)
Business Days after Tenant's receipt thereof (three (3) Business Days in the
case of any revisions thereto). If Tenant fails to notify Landlord of any
objections within five (5) Business Days (or within three (3) Business Days in
the case of any revisions thereto), such Buildings Department changes (or any
revisions thereto) shall be deemed approved.
(b) Partial Base Building CD's. In order to expedite completion of
the Base Building Work, if in the reasonable judgment of the Base Building
Architect the same are complete and integrated enough for Tenant to review and
comment, Landlord may request Tenant to approve pre-purchase specifications and
long lead items prior to final approval of the Base Building CD's. If Landlord
makes such a request, it shall submit to Tenant specific working drawings for
the aspect of the Base Building Work in question together with a detailed
description of the equipment or materials to be purchased (model numbers, names
of manufacturers, etc.) and a detailed breakdown of the cost of the work
submitted for approval by Tenant. Tenant shall approve or disapprove Landlord's
request within a reasonable period of time, not to exceed five (5) Business Days
after Tenant's receipt thereof, such approval not to be unreasonably withheld.
If Tenant disapproves any such request, Tenant shall thereafter approve or
disapprove any revised request therefor within three (3) Business Days after
Tenant's receipt
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of such revised request, such approval not to be unreasonably withheld. If
Tenant fails to approve or disapprove such request within such five (5) or three
(3) Business Day period, as the case may be, such request shall be deemed
approved.
(c) Landlord Initiated Changes to Base Building CD's. If Landlord
makes any changes to the Base Building CD's as finally approved by Tenant or as
deemed approved by Tenant, and if such changes materially affect the Final
Working Drawings for the Tenant Initial Work, then Landlord, within thirty (30)
days after receipt of Tenant's invoices therefor, shall reimburse Tenant for the
reasonable, actual costs of additional services required from Tenant's Architect
and/or Tenant's Engineer in order to conform the Final Working Drawings for the
Tenant Initial Work to such Landlord changes. Any dispute about the operation of
this Section 16.3(c) shall be referred to expedited construction arbitration
pursuant to Article 34.
(d) Post-Completion Drawings. Landlord shall submit to Tenant,
within one hundred twenty (120) days after delivery of a TCO to Tenant pursuant
to Section 16.1, (i) one (1) set of reproducible record drawings for the Base
Building Work showing all significant changes during construction, including
field changes and Change Orders, based on "marked up" prints, drawings and other
data furnished by the construction manager or the general contractor and/or the
trade contractors and referenced by the engineer on the record drawings, and
(ii) one (1) set of contractor "as built" drawings. During the weekly
coordination meetings referred to in Section 16.12, Landlord shall use
reasonable efforts to advise Tenant of all material changes to the Base Building
Work of the type referred to in the first sentence of this Section 16.3(d).
16.4. Tenant Initial Work Cost; Performance of the Base Building Work.
(a) Components of Tenant Initial Work Cost. The "Tenant Initial Work
Cost" shall consist of all costs and expenses incurred by Landlord in connection
with the Base Building Enhancements (including any Punch List Items related to
the Base Building Enhancements, other than Punch List Items required to correct
work incorrectly performed by Landlord) and any Change Orders, consisting of the
following:
(i) All architectural, engineering and design consulting fees and
costs attributable to the Base Building Enhancements and any Change Orders. The
additional architectural and engineering fees with respect to any Change Order
shall be set forth in the change order proposal furnished to Tenant;
(ii) the expediters' and code consultants' fees and filing fees for
any submission or resubmission of plans and specifications to the appropriate
governmental authorities required in order to perform the Base Building
Enhancements or any Change Order;
(iii) all costs of performance of all items of the Base Building
Enhancements, including all work necessary to implement and perform the work
required to be done according to the final approved Base Building CD's (and any
approved partial Base Building CD's), including without limitation premium labor
approved by Tenant (which approval shall not be unreasonably withheld), industry
standard general conditions (not to exceed seven percent (7%)), fees, costs of
bonds (not to exceed two percent (2%)) and contingency, and the costs of
Landlord's construction management services; and
(iv) with respect to any Landlord proposal pursuant to Section 16.5
which is not accepted by Tenant, all costs of Landlord's pre-construction
services, including without limitation all costs of estimating and reproduction
of drawings and specifications.
Notwithstanding anything to the contrary in items (i) through (iv) above,
the Tenant Initial Work Cost shall exclude the costs of Base Building Work
(other than the Base Building Enhancements and Change Orders), which costs of
Base Building Work (other than Base Building Enhancements and Change Orders)
shall be paid by Landlord.
(b) Tenant shall be responsible for the costs of all Base Building
Enhancements, which costs shall be paid in accordance with the provisions of
Section 16.5. Tenant shall be responsible for the costs of all Change Orders
(including Change Orders to the Base Building Work and the Base Building
Enhancements). Change Orders and Tenant's payment therefor shall be subject to
the provisions of Section 16.5.
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(c) As soon as practicable after (i) Commencement of
Construction of the Building, and (ii) execution and delivery by the parties
thereto of that certain license agreement between Landlord and the City of New
York permitting the required access to the 9 Metrotech South site, Landlord
shall commence the Base Building Work and prosecute the same diligently to
completion (subject to Tenant Delays and force majeure).
16.5. Change Orders; Base Building Enhancements and Shop Drawings.
(a) Change Orders.
(i) Except as specifically provided in Section 16.3(a)(ii),
if Tenant shall request any change, addition or alteration ("Change Order") in
or to the Base Building Work from (A) the work shown on the Base Building CD's
as finally approved, (B) the work shown on the Base Building Work Letter, (C)
any Base Building Enhancement which Tenant has previously accepted a proposal
for pursuant to Section 16.5(b), or (D) any drawings, plans and/or
specifications (to the extent that any such change (as opposed to mere
correction) is inconsistent with Base Building CD's previously approved by
Tenant and would increase the cost of architectural, engineering or related
services), Tenant shall submit a written request therefor. For the purposes of
this Section 16.5(a), any Tenant request that premium labor be used in order to
accelerate the Base Building Work shall also be deemed a Change Order. Within
five (5) Business Days after Landlord's receipt of Tenant's request for a Change
Order (fifteen (15) Business days if plans and specifications must be prepared
to obtain cost estimates), Landlord shall submit to Tenant a proposal, based
upon reasonably detailed cost estimates supported by appropriate backup, stating
whether Landlord approves the work contemplated by such Change Order (which
approval may be withheld in Landlord's sole discretion), and specifying any
increase or decrease in Tenant Initial Work Cost and the maximum number of days
of Tenant Delay arising from such Change Order. The total costs of any Change
Order shall include all applicable costs referred to in Section 16.4(a)(iii),
and in the case of any Change Order to a Base Building Enhancement, shall be net
of any savings actually generated by such Change Order in respect of costs of
any Base Building Enhancements.
(ii) Upon receipt of Landlord's proposal, Tenant shall have a
reasonable period of time (given the cost of the Change Order as set forth in
Landlord's proposal), but not to exceed ten (10) Business Days, to accept such
proposal or withdraw its request for a Change Order. Tenant's failure to accept
such proposal within a reasonable period of time (not to exceed ten (10)
Business Days) shall constitute Tenant's election to withdraw its request for
such Change Order. Upon Tenant's specific request therefor and on reasonable
prior notice, Landlord shall meet with Tenant to discuss alternatives to any
requested Change Order or to discuss methods which could reduce the cost of, or
any Tenant Delay that may be caused by, any requested Change Order.
(iii) If Tenant accepts Landlord's proposal, the costs thereof
shall be paid by Tenant from time to time (but not more frequently than monthly)
as Additional Rent, within thirty (30) days after receipt of Landlord's invoices
therefor. Landlord's invoices shall be accompanied by copies of the pertinent
requisition(s) received by Landlord from Landlord's general contractor, which
requisitions shall have been approved in writing by the Base Building Architect
as ready for payment. In the event that Tenant fails to pay the costs of any
Change Orders within five (5) days after receipt of Landlord's notice that such
payments are overdue, Landlord may deduct such unpaid amounts, dollar for
dollar, from the next installment(s) of the Tenant Initial Work Allowance which
would otherwise be due and payable pursuant to Section 16.20. Such deductions
may include interest on the unpaid amounts in accordance with Section 1.6, from
the date when such unpaid amounts were due to the date when Landlord shall have
deducted the same from the Tenant Initial Work Allowance.
(iv) If Tenant accepts Landlord's proposal, (A) the date on
which Tenant certifies that the Commencement Date has occurred shall be deemed
to have occurred on such earlier date as represents the number of Change Order
Tenant Delay days accepted by Tenant in connection with such Change Order, and
(B) Landlord shall perform the Change Order diligently and with continuity.
(v) If Tenant does not accept Landlord's proposal, Tenant
shall pay the costs of Landlord's construction management services (as more
particularly set forth in Section 16.4(a)(iv)) in connection therewith as
Additional Rent, within thirty (30) days after receipt of
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Landlord's invoices therefor. In the event that Tenant fails to pay such costs
within five (5) days after receipt of Landlord's notice that such payments are
overdue, Landlord may deduct such unpaid amounts, dollar for dollar, from the
next installment(s) of the Tenant Initial Work Allowance which would otherwise
be due and payable pursuant to Section 16.20. Such deductions may include
interest on the unpaid amounts in accordance with Section 1.6, from the date
when such unpaid amounts were due to the date when Landlord shall have deducted
the same from the Tenant Initial Work Allowance.
(vi) Landlord acknowledges that not every Change Order requested
by Tenant will result in a Tenant Delay (e.g., if delays caused by two or more
Change Orders would occur concurrently and not consecutively, or if a Change
Order is requested early enough to be implemented without delay).
(b) Base Building Enhancements. Except as specifically set forth
in this Section 16.5(b), the Base Building Enhancements set forth on Exhibit N
shall be deemed Change Orders for all purposes of Section 16.5(a).
Notwithstanding anything to the contrary in Section 16.4(a) or Section 16.5(a):
(i) Tenant's written request that Landlord perform one or more
of the Base Building Enhancements shall be submitted to Landlord within thirty
(30) days after Commencement of Construction of the Building.
(ii) Tenant's written request that Landlord perform one or more
Base Building Enhancements shall be subject to the reasonable approval of
Landlord, which approval shall not be withheld if the scope of any Base Building
Enhancement so requested is consistent with Exhibit N and if Tenant's request is
otherwise in accordance with good construction practices.
(iii) Landlord's proposal shall specify (A) the increase in Tenant
Initial Work Cost attributable to any Base Building Enhancement, and (B) the
schedule for performing such Base Building Enhancement, and shall be submitted
to Tenant within thirty (30) days after Landlord's receipt of Tenant's written
request for such Base Building Enhancement. Provided that the scope of a Base
Building Enhancement is consistent with Exhibit N, Tenant Delay shall not be
incurred with respect to such Base Building Enhancement.
(iv) Tenant shall have a reasonable period of time (given the
cost of the Base Building Enhancement as set forth in Landlord's proposal), but
not to exceed ten (10) Business Days, to accept such proposal or withdraw its
request for such Base Building Enhancement. Tenants failure to accept such
proposal within a reasonable period of time (not to exceed ten (10) Business
Days) shall constitute Tenant's election to withdraw its request for such Base
Building Enhancement.
(v) Tenant shall pay the architectural, engineering and design
and consulting fees and costs attributable to the Base Building Enhancements in
accordance with Section 16.4(a)(i) as Additional Rent, but only if and to the
extent the reasonable fees of Landlord's Engineer would be reimbursed by Tenant
pursuant to Section 15.2(a)(ii).
(vi) If Tenant does not accept Landlord's proposal, Tenant shall
pay the costs of Landlord's construction management services (as more
particularly set forth in Section 16.4(a)(iv)) in connection therewith as
Additional Rent, within thirty (30) days after receipt of Landlord's invoices
therefor, but only if and to the extent that the reasonable fees of Landlord's
Engineer would be reimbursed by Tenant pursuant to Section 15.2(a)(ii).
(c) Shop Drawings. In the event that any shop drawings for the
Base Building Work (or other drawings or documentation which further define the
scope of work depicted in the Base Building CD's) materially modify and/or
substitute work for any work shown on the Base Building CD's, Tenant shall have
the right to approve such shop drawings, such approval not to be unreasonably
withheld. Landlord shall furnish copies of such shop drawings (or other drawings
or documentation) to Tenant at least ten (10) Business Days before the work
shown on such shop drawings or other drawings is ordered or fabricated, as the
case may be. Tenant shall approve or disapprove such shop drawings within a
reasonable period of time, not to exceed five (5) Business Days after Tenant's
receipt thereof. If Tenant disapproves any such shop drawing, Tenant shall
thereafter approve or disapprove any revisions thereto within three (3) Business
Days after Tenant's receipt of such revisions. If Tenant fails to approve or
disapprove such shop
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drawings within such five (5) or three (3) Business Day period, as the case may
be, such shop drawings shall be deemed approved.
16.6. Methods and Materials. Landlord may arrange for the
performance of the Base Building Work in such manner as Landlord shall determine
in its sole discretion, consistent, however, with the Base Building CD's as
finally approved, Legal Requirements and the provisions of this Section 16.6.
There shall be no substitutions for any item of Base Building
Enhancements without the consent of Tenant, which consent shall not be
unreasonably withheld, provided, that it shall not be reasonable for Tenant to
withhold consent for any substitution (i) which does not increase the Tenant
Initial Work Cost, (ii) where the item being substituted for will not be
available in time to complete the Base Building Work on schedule (and was
ordered timely), (iii) which is of substantially equal or better quality and
performance characteristics (including projected costs of operation and
maintenance) than the item being substituted for and (iv) which complies with
Legal Requirements. Notwithstanding anything to the contrary in the preceding
sentence, Tenant's approval for such a substitution which affects the appearance
of the Premises may be withheld in Tenant's sole discretion. For purposes
hereof, the term substitution means a change in product, materials, equipment or
method of construction as shown or described in the Base Building CD's as
finally approved. If Tenant`s approval for any substitution of equipment,
materials or personnel is required, Landlord shall submit its request therefor
to Tenant in writing. Tenant shall approve or disapprove Landlord's request in
writing within a reasonable period of time (given the nature and scope of the
proposed substitution), not to exceed five (5) Business Days, after
Tenant's receipt of Landlord's reasonably detailed request therefor. If
Landlord's request contains a statement that Tenant's failure to respond to such
request within the time limitations set forth in the preceding sentence shall
constitute Tenant's approval of Landlord's request, then Tenant's failure to
respond within the time limitations set forth in the preceding sentence shall be
deemed to be the granting of Tenant's approval. If a substitution for any item
of Base Building Enhancements reduces the cost of such item, the increase in
Tenant Initial Work Cost previously accepted by Tenant in connection with such
item shall be appropriately adjusted to reflect such reduction in cost.
16.7. Tenant Delays.
(a) There shall be a "Tenant Delay" if Landlord shall be
actually delayed, at any time after Commencement of Construction of the
Building, in commencing or completing the Initial Base Building Work, or in
commencing or completing any item(s) of the Post Delivery Base Building Work, or
in obtaining the construction loan referred to in Section 16.l(c)(iv)(A), as a
result of any of the following acts or omissions: (1) Tenant's failure to
approve or accept (or to disapprove with comments) or its delay in approving or
accepting (or disapproving with comments) the Base Building CD's (or any
versions thereof), or any aspect of the Base Building Work which Landlord
requests Tenant to approve on an expedited basis, all in accordance with the
applicable time limitations set forth in this Article 16 (to the extent the same
are specifically set forth herein, or with reasonable promptness if such time
periods are not specifically set forth herein); (2) any additional time required
to complete the Base Building Work caused by Change Orders (but not caused by
Base Building Enhancements, unless the scope of the Base Building Enhancement in
question is not consistent with the scope of such Base Building Enhancement as
shown on Exhibit N), or caused by the failure of Tenant timely to respond to any
Landlord requests for substitutions pursuant to Section 16.6; (3) the failure of
Tenant's Construction Representative to respond within five (5) Business Days
with respect to all issues which could not be addressed due to Tenant's failure
to attend the coordination meetings contemplated in Section 16.12, as such
issues are set forth in the notice delivered to Tenant pursuant to Section
16.12; (4) the performance of work by a contractor, vendor or employee of
Tenant which delays completion on of the Base Building Work; (5) any violation
against the Premises or the Building caused by Tenant, which delays Landlord in
obtaining a TCO for the Premises sufficient for filing of so-called "Directive
14's" by Tenant; or (6) any delay resulting from Tenant's failure to perform any
of its obligations under this Lease.
It is specifically understood and agreed that if more than one of the
events described in the preceding paragraph would actually delay Landlord from
commencing or substantially completing the Base Building Work, but such events
and the delays caused by them occur simultaneously, then to the extent of such
simultaneous occurrence such delays shall be deemed to run concurrently and not
consecutively.
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Unless Tenant knew of or reasonably should have known of the
circumstances giving rise to Tenant Delay and the fact of Tenant Delay as
evidenced by job minutes, correspondence, memoranda or other writings furnished
to or issued by Tenant (which job minutes, correspondence, etc. specifically
refer to such circumstances giving rise to a Tenant Delay and to the fact of a
Tenant Delay), Tenant shall not be charged for any Tenant Delay unless Landlord
shall have delivered notice to Tenant of such Tenant Delay within a reasonable
period (not to exceed thirty (30) days) after Landlord has actual knowledge of
the circumstances giving rise to such Tenant Delay, which notice shall refer to
the circumstances giving rise to such Tenant Delay. If notice is required, the
period of Tenant Delay shall be measured from the first Business Day after the
date when such notice shall have been delivered to Tenant. In the case of a
continuing Tenant Delay, Landlord agrees to consult with Tenant (at no
additional cost to Landlord) in an effort to mitigate such Tenant Delay.
(b) Effects of Tenant Delays. In the event of one (1) or more
Tenant Delays described in Section 16.7(a), and without limiting anything
contained in Section 16.1(c) or Section 16.5(a), Tenant shall pay, as Additional
Rent and within thirty (30) days after receipt of Landlord's invoices therefor,
all increased hard and soft costs of construction of the Building (including
without limitation financing costs, but excluding any damages for Tenant Delay
as such other than such increased hard and soft costs of construction), incurred
by Landlord by reason of such Tenant Delay. In no event shall Tenant's payment
obligations pursuant to this Section 16.7(b) exceed Five Million Dollars
($5,000,000) in the aggregate.
(c) Disputes. Any disputes about the operation of this Section
16.7 shall be referred to expedited construction arbitration pursuant to Article
34.
16.8. Landlord Delays; Notices to Guarantor.
(a) Construction Schedule for Tenant Initial Work. On or before
the date which is two (2) weeks after the date when Tenant shall have received
the Preliminary Notice, Tenant shall deliver to Landlord a so-called "bar chart"
construction schedule for the Tenant Initial Work. Updates of such schedule
shall be delivered to Landlord at least monthly thereafter until Tenant has
substantially completed the Tenant Initial Work.
(b) There shall be a "Landlord Delay" if Tenant shall be
actually delayed in commencing or completing the Tenant Initial Work, as a
result of any of the following acts or omissions: (1) Landlord's failure to
approve or accept (or to disapprove with comments) or its delay in approving or
accepting (or disapproving with comments) the Final Working Drawings (or any
portions or versions thereof), in accordance with the applicable time
limitations set forth in Section 16.14; (2) any additional time required to
complete the Tenant Initial Work caused by the failure of Landlord timely to
respond to any Tenant requests for Change Orders pursuant to Section 16.5; (3)
the failure of Landlord to respond within five (5) Business Days with respect to
all issues which could not be addressed due to Landlord's failure to attend the
coordination meetings contemplated in Section 16.12, as such issues are set
forth in a notice delivered to Landlord promptly after the coordination meeting
in question; (4) the performance of work by a contractor, vendor or employee of
Landlord which delays completion of the Tenant Initial Work (unless a
coordination issue within the ambit of Section 16.13(d), in which event Landlord
Delay shall only be incurred if and to the extent Landlord fails to comply with
the written decision of an Arbitrator pursuant to Section 34.3); (5) any
violation against the Premises or the Building caused by Landlord, which delays
Tenant in filing so-called "Directive 14's"; or (6) any delay resulting from
Landlord's failure to perform any of its obligations under this Lease (other
than the coordination obligations of Landlord pursuant to Section 16.13(d), in
which event Landlord Delay shall only be incurred if and to the extent Landlord
fails to comply with the written decision of an Arbitrator pursuant to Section
34.3).
It is specifically understood and agreed that if more than one of the
events described in the preceding paragraph would actually delay Tenant from
commencing or substantially completing the Tenant Initial Work, but such events
and the delays caused by them occur simultaneously, then to the extent of such
simultaneous occurrence such delays shall be deemed to run concurrently and not
consecutively.
Unless Landlord knew of or reasonably should have known of the
circumstances giving rise to Landlord Delay and the fact of Landlord Delay as
evidenced by job minutes, correspondence, memoranda or other writings furnished
to or issued by Tenant (which job minutes, correspondence, etc. specifically
refer to such circumstances giving rise to a Landlord
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Delay and to the fact of a Landlord Delay), Landlord shall not be charged for
any Landlord Delay unless Tenant shall have delivered notice to Landlord of such
Landlord Delay within a reasonable period (not to exceed thirty (30) days) after
Tenant has actual knowledge of the circumstances giving rise to such Landlord
Delay, which notice shall refer to the circumstances giving rise to such
Landlord Delay. If notice is required, the period of Landlord Delay shall be
measured from the third (3rd) Business Day after the date when such notice shall
have been delivered to Landlord. In the case of a continuing Landlord Delay,
Tenant agrees to consult with Landlord (at no additional cost to Tenant) in an
effort to mitigate such Landlord Delay.
(c) Effect of Landlord Delay. In the event of one or more
Landlord Delays described in Section 16.8(b), the Rent Commencement Date shall
be deferred one (1) day for each such day of Landlord Delay.
(d) Disputes. Any disputes about the operation of this Section
16.8 shall be referred to expedited construction arbitration pursuant to Article
34.
(e) Notices to Guarantor. A copy of any notice from Tenant to
Landlord pursuant to Section 16.1 or this Section 16.8, including without
limitation any notice of Landlord's default, delay, or failure to perform its
obligations under this Article 16, shall be delivered to the guarantor
("Guarantor") under that certain Completion Guaranty between Forest City
Enterprises, Inc. and Tenant (the "Completion Guaranty", dated as of the date
when the Completion Guaranty shall have been released from escrow and delivered
to Tenant pursuant to the terms of the Escrow Agreement). Such copy shall be
delivered to Guarantor within one (1) Business Day after such notice shall have
been delivered to Landlord, and shall be delivered in the manner prescribed by
Article 33 of this Lease to Forest City Enterprises, Inc., 0000 Xxxxxxxx Xxxxx,
00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: General Counsel.
16.9. Assignment of Warranties. If requested by Tenant, Landlord shall
assign to Tenant the beneficial interest in all warranties and guarantees
received by Landlord from contractors and materialmen engaged in the performance
of the Base Building Enhancements, as well as the right to enforce any contracts
made with such contractors and materialmen, to the extent such warranties,
guaranties and enforcement rights relate to items Tenant is responsible for
repairing pursuant to Article 19. Landlord agrees to cooperate fully with Tenant
in the event that Tenant seeks to enforce its rights with respect to such
warranties and guarantees, and any costs incurred by Landlord in connection with
such cooperation shall be included as an item of Operating Expenses pursuant to
Article 3.
16.10. Audit. The Tenant Initial Work Cost (including the costs of any
Change Orders) shall be subject to audit by Tenant, provided, that any such
audit shall be performed on reasonable prior notice, during normal business
hours, at Landlord's office in New York City.
l6.11. Early Tenant Access and Inspections.
(a) (i) During the ninety (90) day period prior to the date the
Initial Base Building Work is to be delivered to Tenant, Landlord shall permit
Tenant to enter the Premises to take field measurements and prepare plans, and
(ii) during the thirty (30) day period prior to the date the Initial Base
Building Work is to be delivered to Tenant, Landlord shall permit Tenant to
store materials in locations within the Premises which do not interfere with
Landlord's performance of the Base Building Work, and (iii) during the thirty
(30) day period prior to the date the initial Base Building Work is to be
delivered to Tenant, Landlord shall permit Tenant to commence construction of
the hoist (if any) which Tenant has elected to install pursuant to Section
16.19, provided in the case of all of the forgoing that (i) unless caused by the
negligence or willful misconduct of Landlord, Tenant alone shall bear the risk
of loss or damage to persons or property due to such early entry (it being
understood and agreed that Landlord will not be providing any security for the
Premises), (ii) the same does not, in Landlord's sole judgment, interfere with
Landlord's contractors performing the Base Building Work (and if Landlord has so
determined that there is such interference, at Landlord's request, Tenant shall
immediately stop such work and (unless such entry and/or work is in compliance
with Landlord's Construction Rules and Regulations), remove itself and its
materials from the portion of the Premises made available for such early entry
and/or from the Building's loading dock and elevators, (iii) Tenant complies
with any applicable Landlord rules and regulations regarding such access
("Landlord's Construction Rules and Regulations") annexed hereto as Exhibit P,
and (iv) such work is coordinated with Landlord. In the case of any conflict or
inconsistency between Landlord's
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Construction Rules and Regulations and the provisions of this Lease, the
provisions of this Lease shall govern and control.
(b) On reasonable prior notice to Landlord, without interfering
with Landlord's performance of the Base Building Work, and at Tenant's sole risk
and expense, Tenant shall have the right at any time during Landlord's
performance of the Base Building Work to inspect and confirm the progress of
construction of the Base Building Work.
16.12. Coordination Meetings. Tenant shall cause a representative
designated by Tenant ("Tenant's Construction Representative") to endeavor to
meet with Landlord's construction representatives (at the Building if so
requested by Landlord) during Business Hours once each week (for as many hours
as Landlord may reasonably require) from the date hereof until the date all
Punch List Items for the Base Building Work shall have been completed. If
Tenant's Construction Representative is unable to attend or fails to attend a
meeting, Landlord shall notify Tenant in writing of such failure and the issues
which Landlord was unable to resolve. Tenant's Construction Representative shall
be authorized to accept Landlord proposals for Change Orders and Base Building
Enhancements, to certify the Commencement Date, to certify completion of ail
items of Post Delivery Base Building Work, and to give notices to Landlord
pursuant to Section 16.8.
16.13. Tenant Initial Work -- General.
(a) Except as specifically provided in Sections 16.1 - 16.12,
Tenant shall perform all work and shall make all alterations and install all
equipment required to prepare the Premises for Tenant's occupancy (the "Tenant
Initial Work") in compliance with applicable Legal Requirements, Insurance
Requirements, the applicable provisions of this Lease and Landlord's
Construction Rules and Regulations. Except as specifically provided in Sections
16.1-16.12 and any exhibits to this Lease referred to therein, Landlord shall
not be obligated to perform any work, make any alterations or install any
equipment to prepare the Premises, Tenant's Designated Roof Space, Tenant's
Designated Mechanical Space or Tenant's designated shaft space for Tenant's
occupancy.
(b) Except as specifically provided in this Article 16, the
Tenant Initial Work shall be completed in accordance with the provisions of
Article 15.
(c) Subject to Legal Requirements and Insurance Requirements,
the Tenant Initial Work may consist of such light fixtures, partition types,
ceilings, finishes, mechanical systems and other installations as Tenant
determines in its sole discretion, provided that the Tenant Initial Work shall
not be inconsistent with the Base Building Work Letter and Base Building CD's,
shall not adversely affect the Building systems, and shall not adversely affect
other tenants in the Building or the Project.
(d) Without limiting anything contained in Section 16.7, Section
16.11 or any other applicable provision of this Lease, at all times during the
initial construction of the Building and the initial fit out of the Premises,
Tenant and Landlord shall each use commercially reasonable efforts not to delay
the other in the performance of the Base Building Work or the Tenant Initial
Work, respectively. Any dispute about the operation of this Section 16.13(d)
shall be referred to expedited construction arbitration pursuant to Article 34.
16.14. Tenant Initial Work -- Final Working Drawings
(a) If required by Landlord's construction lender, Tenant shall
prepare and deliver to Landlord Tenant's Final Working Drawings for the Tenant
Initial Work (or for the initial portion thereof as permitted by Section
16.14(d)) on or before the date which is fourteen (14) months after Commencement
of Construction of the Building.
(b) Notwithstanding anything to the contrary in Section 15.1,
Landlord shall have twelve (12) Business Days (not ten (10) Business Days) to
review and respond to Tenant's submissions of Final Working Drawings for the
Tenant Initial Work (or any portion thereof as permitted by Section 16.14(c)),
and seven (7) Business Days (not five (5) Business Days) to review and respond
to resubmissions.
(c) Landlord's right to approve the Final Working Drawings shall
be limited to those aspects of the Final Working Drawings which affect the
Building exterior, the
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mechanical, electrical, plumbing or other Building systems (including without
limitation any Bui1ding management systems and Building security systems), the
structure of the Building, the Building parking garage, or the public, common or
mechanical areas of the Building.
(d) Tenant may furnish Landlord with portions of Tenant's Final
Working Drawings for the Tenant Initial Work for Landlord's review and Landlord
shall respond to such portions of Tenant's Final Working Drawings within the
time periods set forth in Section 15.1 (as same may be extended pursuant to the
provisions of Section 16.14((b)), provided that each such portion (i) includes
complete construction documentation for one or more full floors of the Premises
or one or more discrete specialized units within the Premises (e.g. the computer
room), and (ii) includes fully coordinated architectural, mechanical, electrical
and, to the extent applicable, plumbing and sprinkler plans and specifications
for such one or more full floors or discrete specialized units within the
Premises.
16.15. Tenant Initial Work -- Commencement and Completion. Provided
that Landlord has satisfied the Delivery Conditions for the Initial Base
Building Work, Tenant shall commence the Tenant Initial Work in a reasonably
prompt manner after receiving Landlord's final consent to Tenant's Final Working
Drawings, and shall diligently prosecute the Tenant Initial Work to completion
in accordance with Tenant's construction schedule for the Tenant Initial Work
(provided, that Tenant may revise said construction schedule in Tenant's sole
discretion subject to the requirements of Section 16.8(a)), and subject to
Landlord Delay and force majeure.
16.16. Tenant Initial Work -- Tenant's Construction Representative,
Engineer.
(a) Tenant's Construction Representative shall be deemed an
agent of Tenant and shall be authorized to bind Tenant with respect to
architectural, engineering, design and construction issues relating to the
Tenant Initial Work. Any change in Tenant's representative shall be effective
five (5) Business Days after Landlord's actual receipt of Tenant's notice
thereof, which notice shall be delivered to Landlord's Building manager.
(b) Tenant shall employ as its engineer ("Tenant's Engineer"),
at Tenant's sole cost and expense, either (i) AMA Engineers or, if Tenant shall
so elect, (ii) another engineer selected by Tenant and approved by Landlord,
such approval not to be unreasonably withheld, to prepare complete, finished,
detailed mechanical drawings and specifications for the Tenant Initial Work,
including, without limitation, all work necessary to connect any special or
nonstandard facilities to existing Building systems.
16.17. Tenant Initial Work -- Payment for Temporary Electric Service.
If pursuant to Section 16.l(a)(xv) (concerning temporary electric service
sufficient for performance of the Tenant Initial Work) temporary electric
service is furnished by Landlord as a Delivery Condition, or if pursuant to
Section 16.l(a)(ii) (concerning temporary electric service with so-called
"permanent characteristics") Tenant requests such temporary electric service as
an item of Post Delivery Base Building Work, Landlord shall furnish and install
one or more consumption meters to measure Tenant's use of such temporary
electricity (if and to the extent practicable in the case of temporary electric
service with so-called "permanent characteristics"). Tenant shall pay Landlord
for the use of such temporary electricity an amount equal to (i) the number of
kilowatt hours consumed by Tenant, multiplied by (ii) Landlord's average cost
per kilowatt hour for such electricity in the Building during the period(s) in
question, or, if such method of payment is not practicable in the case of
temporary electric service with so-called "permanent characteristics", Tenant
shall pay Landlord for the use of such temporary electricity in a manner
reasonably determined by Landlord. Tenant shall pay Landlord for such temporary
electricity within ten (10) days after receipt of Landlord's invoice therefor.
16.18. Tenant Initial Work -- Certificate of Occupancy.
(a) Landlord shall use commercially reasonable efforts, and
shall cause its consultants to use commercially reasonable efforts, to
coordinate with Tenant's efforts to file so called "Directive 14's" and obtain a
TCO permitting occupancy of the Premises.
(b) Landlord shall use reasonable efforts, at no third party
cost to Landlord, to cooperate with Tenant's filing, permitting and approval
process for the Tenant Initial Work.
16.19. Tenant Initial Work -- Access to Hoist, Freight Elevator and
Loading Dock.
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(a) During performance of the Tenant Initial Work, Tenant shall
have nonexclusive access (with Landlord and other tenants), during Business
Hours and during hours other than Business Hours, to any hoist maintained and
operated by Landlord, to the Building freight elevators (if and to the extent
operational) and to the Building loading docks (if and to the extent
operational). Subject to Tenant Delays and force majeure, Landlord shall use
reasonable efforts to make the Building freight elevators and Building loading
docks operational substantially in accordance with the Construction Schedule.
Tenant's use of Landlord's hoist, the Building freight elevators and the
Building loadings docks shall be at Tenant's expense and shall not interfere
with Landlord's performance of the Base Building Work. As between Tenant and
other tenants, the allocation of access to Landlord's hoist, the Building
freight elevators and the Building loading docks shall be fair and equitable. If
Tenant's use of Landlord's hoist, the Building freight elevators or the Building
loading docks is shared with any other tenant, the costs of operation of such
hoist, freight elevators or loading docks shall be equitably allocated between
Tenant and such other tenant. Any disputes concerning the operation of this
Section 16.19(a) shall be submitted to expedited construction arbitration
pursuant to Article 34.
(b) If Tenant desires to construct and operate its own hoist
for the Tenant Initial Work, Tenant shall so notify Landlord on or before the
date which is sixty (60) days after Commencement of Construction of the
Building, which notice shall specify the location preferred by Tenant for
Tenant's hoist, the manufacturer, model, material specifications and proposed
manner of operation of Tenant's hoist and the insurance coverage for Tenant's
hoist, all of which shall be subject to the reasonable approval of Landlord.
Upon approval by Landlord, Tenant may commence construction of its hoist in
accordance with the provisions of Section 16.11(a) and shall thereafter
operate, maintain and remove Tenant's hoist in accordance with the applicable
terms and conditions of the proviso to the first sentence of Section 16.11(a),
notwithstanding that such operation, maintenance and removal shall occur after
the Commencement Date. Tenant shall remove its hoist by the later of (i) ten
(10) Business Days after the Building freight elevators and loading docks shall
have become operational and shall have been made available to Tenant for
Tenant's use pursuant to Section 16.19(a), or (ii) thirty (30) days prior to the
date when Landlord is required pursuant to item (vi) of the Post Delivery Base
Building Work (as set forth in Section 16.1(a)) to remove hoists from, and
complete enclosure of, the curtain wall surrounding the Premises. Tenant's
construction, operation, maintenance and removal of Tenant's hoist shall be at
Tenant's expense.
15.20. Tenant Initial Work -- Tenant Initial Work Allowance.
(a) Tenant anticipates spending at least Fifty Million Dollars
($50,000,000) in the aggregate to perform the Tenant Initial Work (exclusive of
Tenant's Property).
(b) Tenant Initial Work Allowance.
(i) Subject to the terms and conditions set forth below,
Landlord shall reimburse Tenant for, or advance to Tenant, as the case may be,
an aggregate amount of up to (i) (A) Eleven Million Two Hundred Seventy-Seven
Thousand Nine Hundred Eighty and 00/l00 Dollars ($11,277,980) or Thirty-Five
Dollars ($35) per rentable square foot, plus (B) One Million Two Hundred
Fifty-Nine Thousand Four Hundred Thirty-Five Dollars ($1,259,435) (as each of
(A) and (B) may be adjusted pursuant to Section 40.l(b)(iv)) (the sum of (A)
plus (B) is referred to herein as the "Base Allowance"), plus (ii) up to
Thirty-Five Million Dollars ($35,000,000) of so-called "rentalized" costs of
the Tenant Initial Work (the "Rentalized Amount" the sum of the Base Allowance
and the Rentalized Amount is referred to herein as the "Tenant Initial Work
Allowance") for Landlord's Share of the following costs incurred and paid by
Tenant in connection with the Tenant Initial Work (other than Tenant's
Property): labor, materials, architectural, engineering, expediting and other
consulting fees, project management, and costs associated with all necessary
permits and approvals. In the event that the cost and expense of all such items
shall exceed the amount of the Tenant Initial Work Allowance, Tenant shall be
entirely responsible for such excess. "Landlord's Share" shall mean the
percentage equivalent of a fraction (but in no event in excess of one) the
numerator of which is the total amount of Tenant Initial Work Allowance and the
denominator of which is the total cost of the Tenant Initial Work.
(ii) On or before the date which is ten (10) days after the date
when all of the conditions to be satisfied pursuant to Paragraph 4(b) of the
Escrow Agreement shall have been satisfied, or shall have been waived by Tenant,
Tenant shall notify Landlord of the amount of
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Tenant Initial Work costs (not to exceed Thirty-Five Million Dollars) to be
rentalized. Tenant shall repay the Rentalized Amount advanced to Tenant as Fixed
Rent in accordance with the provisions of Section 1.3(a)(iv). In no event shall
Landlord be obligated to advance to Tenant any portion of the Rentalized Amount
in excess of Ten Million Dollars ($10,000,000) unless Tenant shall have
complied with Tenant's obligations to furnish the Letter of Credit in accordance
with Article 43 and with the applicable terms and provisions of the Escrow
Agreement.
(iii) Notwithstanding that the entire Rentalized Amount which
Landlord is required to advance hereunder may not have been previously
requisitioned by Tenant in accordance with this Section 16.20, on and after the
date of the closing of Landlord's permanent financing for the Building, Landlord
shall no longer be obligated to advance the previously unrequisitioned balance
of the Rentalized Amount. If any such balance of the Rentalized Amount remains
outstanding, Landlord will reasonably cooperate with Tenant to secure an
arrangement whereby such outstanding balance shall be deposited in escrow (or
like arrangement) and made available for further advances to Tenant pursuant to
the terms of this Section 16.20 (or on substantially similar terms). Any such
arrangement shall be subject to the approval of Landlord's construction lender
and Landlord's permanent lender. In the event any such outstanding balance of
the Rentalized Amount shall have been deposited in escrow (or like arrangement)
pursuant to this Section 16.20, the amount of Fixed Rent payable by Tenant
pursuant to Section 1.3(a)(iv) shall be appropriately adjusted, taking into
account Landlord's financing and related costs in connection therewith.
(c) Prior to the commencement of the Tenant Initial Work, and
as a condition to Landlord's obligation to provide the Tenant Initial Work
Allowance, Tenant shall provide a certificate in form reasonably satisfactory to
Landlord, from Tenant's Chief Financial Officer, certifying the total cost
of the Tenant Initial Work and providing a certification of Tenant's general
contractor, setting forth the total cost of the Tenant Initial Work and
including a trade breakdown evidencing the total cost of all such Tenant Initial
Work. If at any time during the time of the performance of the Tenant Initial
Work Landlord shall reasonably determine that, whether because of increased
costs for change orders or for any other reason, Landlord theretofore
contributed more than Landlord's Share (as it may increase or decrease from time
to time pursuant to change orders or otherwise) of the costs of the Tenant
Initial Work already performed or that any requisition would result in Landlord
paying more than the Landlord's Share of the costs of all Tenant Initial Work
performed prior to such date, Landlord may cease making any disbursements of the
Tenant Initial Work Allowance unless and until sufficient additional Tenant
Initial Work has been performed and payments by Tenant have been made so that
the total disbursements of the Tenant Initial Work Allowance are equal to or
less than the Landlord's Share of the cost of the Tenant Initial Work.
(d) Landlord shall disburse from time to time, but not more
often than once in any calendar month, to Tenant or directly to Tenant's
contractors (if so requested by notice to Landlord) and within ten (10) Business
Days after receipt of Tenant's requisition therefor, that portion of the Tenant
Initial Work Allowance equal to the Landlord's Share of the amount set forth in
Tenant's requisition, provided however, that no advance shall be made if, and
for so long as, Tenant shall be in monetary default under this Lease beyond any
applicable notice and cure period. No advance shall be made until receipt of a
request therefor from Tenant and submission by Tenant of the following:
(i) A certificate signed by Tenant and Tenant's Architect,
dated not more than ten (10) days prior to such request, setting forth (A) an
itemized account of the sums paid by Tenant for amounts justly due to all
contractors, subcontractors, materialmen, engineers, architects and other
persons who have rendered services or furnished materials in connection with the
Tenant Initial Work, (B) that the work described in the certificate has been
completed substantially in accordance with the Final Working Drawings
previously approved by Landlord, (C) that Tenant has not received notice of the
filing with respect to the Premises or the Building or any part thereof or any
improvements thereon, any vendor's, mechanic's, laborer's, materialmen's or
other liens arising out of the Tenant Initial Work which have not been
discharged of record, (D) that to the best of Tenant's knowledge, Tenant has
complied with all of the material conditions set forth in this Lease applicable
to the Tenant Initial Work reflected in the requisition then pending, and (E)
that to the best of Tenant's knowledge, Tenant has complied with Legal
Requirements applicable to the Tenant Initial Work reflected in the requisition
then pending;
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(ii) Partial lien waivers, receipted invoices or such other
proof of payment as Landlord shall reasonably require for all work done and
materials supplied with respect to any prior requisitions for which Tenant
previously applied for payment; and
(iii) A statement from the Tenant's Architect setting forth the
total remaining cost of the Tenant Initial Work to be performed, including
without limitation, an itemization of any additional costs not theretofore
disclosed to Landlord.
(e) Upon completion of the Tenant Initial Work and together
with Tenant's final requisition pursuant to this Section 16.20, Tenant shall
deliver (i) a certificate signed by Tenant's Architect and an officer of Tenant
certifying that the Tenant Initial Work has been substantially completed in
accordance with the approved Final Working Drawings, (ii) all Building
Department sign-offs, inspection certificates and any and all permits required
to be issued in accordance with Legal Requirements, and (iii) a general release
from all contractors and subcontractors performing the Tenant Initial Work,
releasing Landlord and Tenant from any and all liability for any work or
materials.
16.21. Tenant Initial Work -- Miscellaneous.
(a) The Tenant Initial Work, upon the expiration or earlier
termination of the Term, shall be and remain the property of Landlord and shall
not be removed by Tenant except in accordance with Articles 15 and 28.
(b) Subject to the provisions of Section 10.1(d), Tenant shall
make its own arrangements for telecommunications equipment and services for the
Premises. Landlord shall reasonably cooperate with Tenant in connection
therewith but Landlord shall have no responsibility therefor.
(c) Tenant shall not store any materials and equipment used for
or in connection with the Tenant Initial Work within or adjacent to the
Building, including without limitation in the receiving area at the ground level
of Landlord's hoist, other than within the Premises.
(d) Provided that Tenant shall give Landlord reasonable prior
notice thereof, Tenant may, at its sole cost and expense, test those of its
systems which interface with the Building systems and Landlord shall cooperate
with Tenant to the extent reasonably required in connection therewith. Tenant
shall permit Landlord's representatives to coordinate and observe such testing
and shall provide Landlord's representatives access to and copies of test
results, provided however, Landlord shall operate all of the Building systems
and equipment in connection with and affected by such testing.
(e) At times reasonably acceptable to Landlord, Landlord shall
perform all shutdowns necessary for connections of Tenant's systems,
installations and equipment to the applicable Building systems including,
without limitation, Tenant's water, electric, gas, ventilation, chilled water
and condenser water systems. At times reasonably acceptable to Landlord.
Landlord shall perform all shutdowns and connections necessary for connections
of Tenant's Class E system.
(f) Tenant shall, throughout the performance of the Tenant
Initial Work, promptly remove all rubbish and debris from the Premises using a
refuse remover designated by Tenant and reasonably acceptable to Landlord.
(g) Window pocket detail for windows in the Premises shall be
furnished and installed by Tenant as part of the Tenant Initial Work, and in
accordance with the Metrotech Design Guidelines.
ARTICLE 17
INSURANCE
17.1. Landlord and Tenant shall comply with all Insurance Requirements.
Tenant shall not violate, or permit the violation of, any Insurance
Requirements, and shall not do (or permit to be done) or keep (or permit to be
kept) anything in the Premises that could: (a) increase the fire or other
casualty or property insurance rate on the Building or the property therein over
the rate
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that would otherwise then be in effect unless Tenant shall agree to pay the
amount of any such rate increases and Landlord shall consent thereto, which
consent shall not be unreasonably withheld; or (b) result in insurance companies
of good standing refusing to insure the Building or any of such property in
amounts reasonably satisfactory to Landlord. If, solely by reason of a failure
of Tenant to comply with the provisions of this Section 17.1 the rate of fire or
other casualty or property insurance on the Building or equipment or other
property of Landlord shall be higher than it otherwise would be, Tenant shall
reimburse Landlord, within ten (10) Business Days following demand, for that
part of the premiums for such insurance paid by Landlord because of such failure
on the part of Tenant. A schedule or xxxx up of rates for the Building or the
Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for fire or other casualty or
property insurance for the Building or the Premises or the current or
prospective property insurer shall be presumptive evidence of the facts therein
stated and of the several items and charges in the insurance rate then
applicable to the Building or the Premises.
17.2. (a) Tenant shall secure and keep in full force and effect
throughout the Term, at Tenant's expense: (i) Commercial General Liability
Insurance, written on an occurrence basis, to afford protection in the amount of
Five Million Dollars ($5,000,000) combined single limit for bodily injury and
property damage including personal injury coverage (with contractual and
employee exclusions deleted), broad form property damage coverage, contractual
liability coverage as respects any indemnification or hold harmless provisions
contained herein, completed operation coverage and independent contractors
coverage, or such increased amount as Landlord may reasonably determine from
time to time, but in no event more frequently than every two (2) years, based
upon what comparable tenants of comparable space in first-class office buildings
in the City are required to carry; (ii) "all risk" coverage upon Tenant's
Property for one hundred percent (100%) of replacement cost including a
stipulated (agreed) valuation endorsement and including business interruption
coverage; (iii) if not included in the above-mentioned policies, Blanket Broad
Form Boiler and Machinery Insurance (including Business Interruption coverage)
on all items commonly covered by such insurance and now or hereafter installed
by or for Tenant and used exclusively by Tenant, its Affiliates and permitted
subtenants, assignees and transferees in amounts reasonably set by Landlord and
in no event less than One Million Dollars ($l,000,000); (iv) Workers
Compensation Insurance and State Disability Benefits Insurance, as required by
law; and (v) such other insurance and in such amounts as are normally carried by
comparable tenants of comparable space in first-class office buildings in the
City, from time to time. Tenant shall have the right to insure and maintain the
insurance coverages set forth in this Section under blanket or umbrella
insurance policies covering other Premises occupied by Tenant so long as such
blanket or umbrella policies comply as to terms and amounts with the insurance
provisions set forth in this Lease without the possibility of reduction or
coinsurance by reason of, or damage to, any other Premises named therein. If the
insurance required by this Section shall be effected by any such blanket or
umbrella policies, Tenant shall furnish to Landlord executed certificates of
such policies showing the insurance (in the proper amounts and with proper
coverages) afforded by such policies applicable to the Premises as requested by
Landlord. During the performance of any Tenant Change in the Premises. Tenant
shall require all contractors and subcontractors to provide Workers Compensation
Insurance and State Disability Benefits Insurance as required by law, Commercial
General Liability Insurance including the coverage described in subsection (i)
above except that minor subcontractors will only be required to secure
Commercial General Liability Insurance, to afford protection in the amount of
Two Million Dollars ($2,000,000) combined single limit, "all risk" insurance
including the coverage described in subsection (c) below and completed
operations coverage which is to be kept in effect for one (1) year after
completion of the work Contractors' and subcontractors' policies shall comply
with Sections 17.3 and 17.4.
(b) Landlord shall secure and keep in full force and effect
throughout the Term an "all risk" policy of insurance against loss or damage to
the Building, contractual liability coverage as respects any indemnification or
hold harmless provisions contained herein and such other policies of insurance
as may be required by the terms of any Superior Mortgage or Superior Lease,
which policies shall comply with the applicable provisions of Sections 17.3 and
17.4 hereof and which policies may be maintained under "blanket policies" of
insurance and which policies shall insure all of the Tenant Initial Work and
Tenant Changes other than Special Initial Work and Special Tenant Changes.
Landlord agrees that with respect to insurance against loss or damage to the
Building under an "all risk" policy of insurance, it shall carry insurance in
limits equivalent to one hundred percent (100%) of the replacement cost of the
Building, less
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foundations and footings. As used herein, the term "Special Initial Work" shall
mean the portion of the Tenant Initial Work consisting of special data and
communications facilities, raised computer floors, kitchens, vaults, internal
staircases, dumbwaiters, pneumatic tubes, vertical and horizontal
transportation systems, the Antenna and any other Tenant Initial Work of a
similar character.
(c) During the period that Tenant is performing (or causing to be
performed) the Tenant Initial Work or any Tenant Changes, Tenant shall secure
and keep in full force and effect (or cause to be secured and kept in full force
and effect), at Tenant's cost, "all risk" coverage (including but not limited to
glass breakage, sprinkler leakage and collapse) for one hundred percent (100%)
of the replacement cost including a stipulated (agreed) valuation endorsement
(the "Special Work Coverage") for the Special Initial Work and the Special
Tenant Changes (whether or not in the course of construction). Upon completion
of the Tenant Initial Work in the Premises (or any entire floor thereof) and any
Tenant Change, Tenant may notify Landlord of the value of the Special Initial
Work and the Special Tenant Changes in the Premises (or the applicable
portions(s) thereof) (such value, as same may be increased from time to time,
the "Insurable Value") and request that Landlord insure same. Promptly following
Landlord's receipt of a notice regarding the Insurable Value, Landlord shall
secure and keep in full force and effect as part of Landlord's "all risk" policy
for the Building, at Tenant's cost as set forth herein, the Special Work
Coverage in an amount at least equal to the Insurable Value. Landlord shall
notify Tenant when the Special Work Coverage in an amount at least equal to the
Insurable Value is or will be effective under Landlord's insurance policy and
thereafter Tenant shall not be required to maintain the Special Work Coverage
with respect to such Insurable Value. From time to time during the Term but no
more than twice during any calendar year, Tenant may notify Landlord that the
Insurable Value has increased or decreased and request that Landlord increase or
decrease the Special Work Coverage accordingly and promptly following receipt of
such request, Landlord shall increase or decrease same, at Tenant's cost as set
forth herein. Landlord will notify Tenant when such adjustment to the Special
Work Coverage is or will be effective under Landlord's "all risk" insurance
policy for the Building. Tenant shall pay to Landlord any incremental increase
in costs incurred by Landlord for "all risk" insurance premiums and charges
attributable to the Special Tenant Changes and the Special Initial Work within
fifteen (15) Business Days after demand therefor as Additional Rent. If at any
time during the Term the foregoing insurance shall be unobtainable by Landlord,
then Landlord may advise Tenant of such fact and Tenant shall promptly secure
and keep in full force and effect the foregoing insurance to the extent Tenant
is able to obtain same at commercially reasonable rates. Tenant may, at any time
during the Term, notify Landlord that Tenant no longer wishes Landlord to insure
the Special Initial Work and the Special Tenant Changes and promptly following
receipt of such request, Landlord shall terminate such Special Work Coverage and
thereafter Landlord shall have no responsibility to insure the Special Initial
Work or the Special Tenant Change unless thereafter Tenant shall request that
Landlord reinstate such Special Work Coverage in an amount equal to the
Insurable Value determined by Tenant; in which case promptly following receipt
of such request, Landlord shall secure and keep in full force and effect, at
Tenant's cost as set forth herein, such Special Work Coverage. Landlord shall
notify Tenant when such Special Work Coverage in an amount at least equal to the
Insurable Value is or will be effective under Landlord's "all risk" insurance
policy for the Building.
7.3. All insurance provided under this Article 17 shall be written in
form and substance reasonably satisfactory to Landlord by an insurance company
and with general policy holder's ratings of not less than A- and a financial
rating of at least VII, as rated in the most current available "Best's"
insurance reports, or the then equivalent thereof, and licensed to do business
in New York State and authorized to issue such policies. All such insurance
shall have a term of not less that one (1) year. Upon failure of Tenant to
procure, maintain and place such insurance and pay all premiums and charges
therefor, Landlord may (but shall not be obligated to) do so, provided that
Landlord and Tenant shall each notify the other promptly upon learning of any
such failure and provided further than Landlord shall afford Tenant ten (10)
days within which to cure any such failure unless such ten (10) day cure period
would expose Landlord to any liability, penalty or other burden. Landlord and
Tenant shall each notify the other promptly upon learning of any failure by
Landlord to procure any insurance required to be maintained by Landlord
hereunder. If Landlord elects to procure such insurance as aforesaid, Tenant
shall pay the amount thereof to Landlord as Additional Rent within fifteen (15)
Business Days after demand therefor. All policies of insurance procured by
Tenant shall contain endorsements providing that (a) the insurance company shall
give to Landlord and each Superior Lessor and
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Mortgagee as to which Landlord has previously delivered the names and addresses
to Tenant, thirty (30) days' prior notice with respect to any such policy being
cancelled, allowed to lapse or materially changed; and (b) Tenant shall be
solely responsible for the payment of premiums therefor notwithstanding that
Landlord is named as an additional insured. Duly executed certificates of
insurance (including evidence of the waivers of subrogation required pursuant to
Section 17.6) or, if required by Landlord or a Superior Lessor or Mortgagee,
original policies (or certified copies thereof), together with reasonably
satisfactory evidence of payment of the premiums therefor, shall be delivered to
Landlord on or before the Commencement Date. Any endorsements to any such
policies specifically relating to the Building or the Premises shall also be so
deposited upon issuance thereof and each renewal or replacement of a policy
shall be so deposited prior to the expiration of such policy. Tenant shall not
carry any separate or additional insurance concurrent in form or contributing in
the event of any loss or damage with any insurance required to be maintained by
Tenant under this Lease. Further, all policies of insurance procured by Tenant
shall be written as primary policies not contributing with nor in excess of
coverage that Landlord may carry.
17.4. All insurance procured by Tenant or its contractors or
subcontractors under this Article 17 shall be issued in the name of Tenant and
for the benefit of Tenant and with respect to the "all risk" insurance policy
and the Commercial General Liability Insurance policy, Tenant (and it
contractors and subcontractors) shall name Landlord (and each general partner
or venturer or member thereof in the event Landlord is a partnership or joint
venture or limited liability company), as an additional insured and, unless
Landlord otherwise requests, each Superior Lessor and its agent, if any, and
each Mortgagee, as additional insureds as their respective interests may appear,
and shall contain an endorsement that each of Landlord, and any Superior Lessor
and Mortgagee, although named as additional insureds, nevertheless shall
continued to be named as such additional insured under said policies for so long
as such policies are in effect for any loss or damages occasioned to it, its
respective agents, employees, contractors, directors, shareholders, partners and
principals (disclosed or undisclosed) by reason of the negligence, acts or
omissions of Tenant, its servants, agents and employees.
17.5. Except as otherwise expressly set forth herein, none of the
Special Initial Work, the Special Tenant Changes nor any Tenant's Property shall
be insured by Landlord under Landlord's insurance policies nor shall Landlord be
required under Article 30 or any provision of this Lease to either reinstall,
restore, repair or replace any thereof. If Landlord is required or elects to
repair or reconstruct the Premises under the provisions of Article 30 hereof,
Landlord shall so rebuild the Base Building Work within the Premises (exclusive
of any portion thereof theretofore removed by Tenant with Landlord's prior
written consent), the Tenant Initial Work and all Tenant Changes.
17.6. Landlord and Tenant shall each endeavor to secure an appropriate
clause in, or an endorsement upon, each "all risk" insurance policy obtained by
it and covering the Building, the Premises, the Tenant Initial Work (including
Special Initial Work), Tenant Changes (including Special Tenant Changes),
Tenant's Property or any other the personal property, fixtures and equipment
located in or on the Premises, pursuant to which the respective insurance
companies waive subrogation or permit the insured, prior to any loss, to agree
with a third party to waive any claim it might have against said third party.
The waiver of subrogation or permission for waiver of any claim hereinbefore
referred to shall extend to the agents of each party and its employees and, in
the case of the waiver or permission in or upon any of Tenant's insurance
policies, shall also extend to all other Persons occupying or using the Premises
in accordance with the terms of this Lease. If and to the extent that such
waiver or permission can be obtained only upon payment of an additional charge,
then the party benefiting from the waiver or permission shall pay such charge
upon demand, or shall be deemed to have agreed that the party obtaining the
insurance coverage in question shall be free of any further obligations under
the provisions hereof relating to such waiver or permission.
Each party hereby releases the other with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property by
fire or casualty (including rental value or business interruption) occurring
during the term of this Lease to the extent to which such party is insured under
a policy containing a waiver of subrogation or permission for waiver. If,
notwithstanding the recovery of insurance proceeds by either party for loss,
damage or destruction of its property (or rental value or business
interruption), the other party is liable to the first party with respect thereto
or is obligated under this Lease to make replacement, repair or restoration,
then provided the first
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party's, right of full recovery under its insurance policies is not thereby
prejudiced or otherwise adversely affected, the amount of the net proceeds of
the first party's insurance against such loss, damage or destruction shall be
offset against the second party's liability to the first party therefor, or
shall be made available to the second party to pay for replacement, repair or
restoration, as the case may be.
ARTICLE 18
TENANT'S PROPERTY
18.1. Notwithstanding anything hereinbefore contained to the contrary,
provided Tenant complies with applicable Legal Requirements and all applicable
Insurance Requirements, Tenant shall have the right, at its expense, to install,
maintain and operate such moveable machinery or equipment including, without
limitation, telecommunication equipment, data processing equipment and trade
fixtures as may be required for the proper conduct of Tenant's business, except
that if any thereof or the installation of any thereof shall require
alterations, or shall materially adversely affect electrical, mechanical, HVAC
or other Building systems, or if any bulky machinery or equipment which shall
block all or a major portion of any window of the Premises shall be visible from
outside the Premises (including, without limitation, main-frame computers but
excluding machinery and equipment used in the Premises such as desks,
telephones, personal computers and other similar moveable office equipment and
furniture), Landlord's prior written consent, if any, in accordance with and in
compliance with Article 15 shall be required, which consent shall not be
unreasonably withheld. If Landlord shall fail to respond to a request made by
Tenant to install any such item within ten (10) Business Days after receiving
such request, Landlord's failure to respond shall be deemed to mean that
Landlord has approved such installation. Subject to the provisions of this
Article, any and all such movable machinery or equipment including, without
limitation, telecommunication equipment, data processing equipment and trade
fixtures installed by Tenant and all furniture, furnishings and other items of
personal property (sometimes herein collectively called "Tenant's Property"
shall remain personalty notwithstanding the fact that same may be affixed or
attached to the realty, and shall, during the Term or any extension or renewal
thereof, belong to and be removable by Tenant, provided that Tenant shall comply
with, and Tenant's Property shall be subject to, the provisions of Section 18.2
hereof.
18.2. To the extent Tenant has not previously ascertained pursuant to
Section 15.1(c), Tenant shall ascertain from Landlord at least sixty (60) days
(or such other reasonable period under the circumstances if the Term shall end
earlier) prior to the end of the Term whether Landlord chooses to have any of
Tenant's Property installed by Tenant and constituting Special Tenant Changes
or Special Initial Work removed from the Premises and if Landlord shall so
desire, Tenant shall, on or prior to the end of the Term hereof, remove such
indicated items and restore the affected portion of the Premises to good order,
condition and repair. All Tenant's Property constituting Special Tenant Changes
or Special Initial Work (except such of those items which Landlord expressly
agrees are to remain in the Premises and become the property of Landlord),
remaining within the Premises after the expiration of such Term or sooner
termination thereof and after Tenant is no longer in possession of the Premises
shall, at Landlord's option, either (a) become the property of Landlord, free of
any claim by Tenant or any person claiming through Tenant, or (b) be removed and
disposed of by Landlord, at Tenant's cost and expense, without further notice to
or demand upon Tenant. Tenant's obligations under this Section shall survive the
expiration or sooner termination of the Term hereof provided that Landlord shall
notify Tenant of any obligation under this Section 18.2 within six (6) months
following the expiration or sooner termination of the Term.
ARTICLE 19
REPAIRS AND MAINTENANCE
19.1. (a) Subject to the provisions of Section 19.2 and Article 21
hereof, Tenant shall at its expense, throughout the Term of this Lease, take
good care of and maintain in good order and condition the Premises, the Tenant
Initial Work, all Tenant Changes and all Tenant's Property. Tenant shall be
responsible for all repairs (and the cost thereof), whether interior or
exterior, structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen, in and to the Premises, the Tenant Initial Work, all Tenant Changes
and all Tenant's Property, unless such repairs are required as a result of the
negligent acts or omissions of Landlord or any Landlord's
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Parties. With respect to the Building systems serving the Premises, Tenant
shall be responsible for (i) repair and maintenance of Tenant's internal
air-distribution system to the point at which the same connects to the main
distribution duct for the Premises, (ii) repair and maintenance of the internal
electrical system to the panel box serving the Premises and any meter or other
wiring, conductor or equipment installed in connection with Tenant's direct
electricity service, and (iii) repair and maintenance of all plumbing fixtures
and lines in and serving the Premises to the point at which the same join the
main vertical plumbing risers of the Building. All such repairs and maintenance
with respect to such Building systems shall be performed by a contractor
retained by Tenant and reasonably approved by Landlord or, at Landlord's
election, by Landlord with the actual cost thereof to Landlord being payable by
Tenant as Additional Rent within ten (10) days after rendition by Landlord of
any xxxx(s) pertaining thereto. Tenant, at its expense, shall promptly replace
all scratched, damaged or broken doors, windows and glass in and about the
Premises and shall be responsible for all repairs, maintenance and replacement
of wall and floor coverings in the Premises unless such repair is caused by the
negligent acts or omissions of Landlord or any Landlord Parties. All repairs in
and to the Premises for which Tenant is responsible shall be promptly performed
by Tenant in a manner which will not unreasonably interfere with the use of the
Building by others.
(b) All damage or injury to the Building and the facilities and
systems thereof to the extent the same arise out of (i) the installation, use or
operation of Tenant's Property, or (ii) the moving of Tenant's Property in or
out of the Building, shall be repaired, restored or replaced promptly by Tenant
at its sole cost and expense to the reasonable satisfaction of Landlord. All
repairs, restorations and replacements made by Tenant under this Section 19.1
shall be in quality and class equal to the work or installations existing
immediately prior to such damage. Any repairs in or to the Building and the
facilities and systems thereof for which Tenant is responsible (other than
repairs required to be performed by Tenant pursuant to Section 19.1(a)) shall
be performed by Landlord at Tenant's reasonable expense. Landlord may, at its
option, before commencing any such work or at any time thereafter if such work
costs in excess of One Hundred Fifty Thousand Dollars ($150,000), require
Tenant, if reasonable under the circumstances, to furnish to Landlord such
security, in form and amount as Landlord shall reasonably deem necessary to
assure the payment of such work by Tenant; it being agreed, however, that
Landlord shall have no right to require the foregoing security from Tenant if
Empire HealthChoice, Inc. d/b/a Empire Blue Cross Blue Shield (or any successor
thereto) and its Affiliates or permitted successor corporation shall be
occupying at least fifty percent (50%) of the Premises prior to the commencement
of such work.
19.2. (a) Landlord shall maintain and operate the Building in
conformance with standards applicable to first-class office buildings. All
repairs made by Landlord shall be diligently performed in a good and workmanlike
manner and Landlord shall use reasonable efforts to minimize interference with
Tenant's business, and otherwise perform such repairs in accordance with, and
subject to, the provisions of this Lease.
(b) Except for those repairs for which Tenant is responsible
pursuant to the terms hereof and subject to the terms of Section 19.1(a) and
Article 21, Landlord shall, at its expense (subject to the provisions of
Article 3 hereof), make all necessary repairs, interior and exterior, structural
or nonstructural to keep the Building, including, without limitation, the
Building's mechanical, electrical, plumbing, sanitary, heating, ventilating and
air-conditioning systems, including all components of such systems servicing the
Premises and other service systems of the Building (including the Class E
systems and risers of the sprinkler system) in conformance with standards
applicable to first-class office buildings, unless such repairs are required as
a result of the negligent acts or omissions of Tenant or any of Tenant's
Parties, in which event, the cost thereof shall be born by Tenant and paid as
Additional Rent within ten (10) Business Days after Landlord's demand therefor.
(c) Upon prior notice from Tenant received within twelve (12)
months after the date when the item of Base Building Work in question has been
substantially completed (or a longer period if and to the extent Landlord is
covered for the cost of such repair under a warranty), Landlord shall at
Landlord's expense repair any latent defects in such item of the Base Building
Work.
19.3. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating or electrical lines located in, servicing or
passing through the Premises which Landlord is responsible for repairing of
which Tenant has actual knowledge. Following such
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notice Landlord shall remedy the conditions, but at the expense of Tenant if
Tenant is responsible for same under the provisions of this Article. If Landlord
shall fail (other than for reasons of force majeure) to commence and thereafter
diligently prosecute to completion any of the repairs that it is obligated to
perform pursuant to this Article 19 within ten (10) Business Days, after
Landlord receives notice thereof from Tenant (or within two (2) Business Days,
if such repair is of the nature that the failure to make the same shall prevent
Tenant from conducting its business in the Premises, or any portion thereof and
Tenant's notice so specifies), then in addition to any other right or remedy
Tenant may have under this Lease, Tenant may, at its election, and without
further notice to Landlord, perform the repair, at Landlord's sole but
reasonable expense, subject, however, to Landlord's right to dispute any such
claim that it has failed to commence such repair and a resolution of such
dispute. Landlord shall reimburse Tenant for any amounts expended by Tenant
under this Article within ten (10) days after demand, which demand shall be
accompanied by appropriate documentation reasonably showing the cost of such
repairs or if Landlord shall fail to reimburse Tenant as aforesaid, Tenant may
offset such amount against the next accruing monthly installment(s) of Fixed
Rent. Notwithstanding anything to the contrary contained in Section 33.1 hereof,
any notice or other communication required or permitted to be given, rendered or
made by Tenant under this Section 19.3 shall be deemed to have been properly
given, rendered or made only if also deliverzd by the means described in Section
33.1(a) or (c) hereof to the office of the Building manager or the office of the
assistant Building manager, at the address set forth below:
Nine Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Building Manager
19.4. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury arising from Landlord's making
any repairs or changes which Landlord is required or permitted by this Lease, or
required by Legal Requirements, to make in or to the Building or any part
thereof.
ARTICLE 20
RULES AND REGULATIONS
20.1. Tenant and all Tenant Parties shall faithfully observe and comply
in all material respects with the rules and regulations set forth on Exhibit Q
annexed hereto and made a part hereof and such other and further reasonable
rules and regulations as Landlord, in the exercise of its reasonable business
judgment, may from time to time adopt (collectively, the "Rules and
Regulations"); provided, however, that 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.
20.2. Landlord agrees that any amendments or additions to the Rules and
Regulations hereafter adopted by Landlord shall not materially and adversely
affect the conduct of Tenant's business in the Premises or any portion thereof
or materially and adversely impair access to the Premises, the lobby of the
Building servicing the Premises or the Building loading docks. Landlord shall
enforce the Rules and Regulations in a nondiscriminatory manner and Landlord
agrees that it shall not enforce against Tenant any Rule or Regulation that it
shall not then be enforcing against any other tenant or occupant of the Building
or otherwise impose any additional Rule or Regulation solely against Tenant
without imposing the same against other tenants or occupants of the Building.
Nothing in this Lease contained shall be construed to impose upon Landlord, any
duty or obligation to enforce the Rules and Regulations against Tenant or any
other tenants or occupants and Landlord shall not be liable to Tenant for
violation of the Rules and Regulations by any other tenant or occupant or their
respective employees, agents, invitees or licensees.
20.3. Any dispute between Landlord and Tenant regarding amendments or
additions to the Rules and Regulations shall be resolved by arbitration pursuant
to Article 35 hereof.
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ARTICLE 21
COMPLIANCE WITH LAWS; MECHANIC'S LIENS
21.1. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any Legal Requirement applicable to the Premises.
21.2. Tenant shall:
(a) at Tenant's expense, comply with all Legal Requirements and
Insurance Requirements which, in respect of the Premises or the use or occupancy
thereof, and
(b) be responsible for the costs of complying with all Legal
Requirements and Insurance Requirements which, in respect of any other part of
the Real Property,
shall impose any violation upon Landlord or Tenant or any other Person to the
extent arising from or in connection with (i) Tenant's particular use or manner
of use of the Premises, (ii) the Tenant Initial Work, Tenant Changes or Tenant's
Property or any installations, equipment or other property installed or placed
therein by or on behalf of Tenant, (iii) any cause or condition created by or at
the instance of Tenant, or (iv) any breach of any of Tenant's obligations
hereunder, whether or not such compliance requires work which is structural or
non-structural, ordinary or extraordinary, foreseen or unforeseen; and Tenant
shall pay all the costs, expenses, fines, penalties and damages which may be
imposed upon Landlord or any Superior Lessor or Mortgagee by reason of or
arising out of Tenant's failure to fully and promptly comply with and observe
the provisions of this Section 21.2. Landlord, at Landlord's cost and expense
(subject to the provisions of Article 3), shall comply with all other Legal
Requirements and Insurance Requirements with respect to the Premises, the
Building and/or the Land.
21.3. Unless Landlord is contesting the same, Tenant, at its expense,
after notice to Landlord, may contest by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Premises,
the Building and/or the Land of any Legal Requirement with which Tenant must
comply pursuant to the terms of this Article using counsel selected by Tenant
and reasonably acceptable to Landlord, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, nor shall the
Premises or any part thereof or the Building or the Land, or any part thereof,
be subject to being condemned or vacated, nor shall the Building or the Land, or
any part thereof, be subjected to any lien or encumbrance or threat of lien or
sale, by reason of noncompliance or otherwise by reason of such contest; (b)
Tenant shall indemnify Landlord against all liability for damages, interest,
fines, penalties and expenses (including reasonable attorneys' fees and
expenses), resulting from or incurred in connection with such contest or
noncompliance; (c) such noncompliance or contest shall not constitute or result
in any violation of any Superior Lease or Mortgage or any other agreement
affecting the Land, the Building or the Project, or if such lease and/or
mortgage shall permit such noncompliance or contest on condition of the taking
of action or furnishing of security by Landlord, such action shall be taken and
such security shall be furnished at the expense of Tenant; (d) before commencing
such contest Tenant shall deliver a surety bond issued by a surety company of
recognized responsibility or other security reasonably acceptable to Landlord,
indemnifying and protecting Landlord against any liability, loss or injury by
reason of such contest; and (e) such contest or noncompliance shall not
materially adversely affect Tenant's ability to obtain any and all Permits
required or necessary in connection with its use and occupancy of the Premises
or Landlord's ability to obtain any and all Permits required or necessary in
connection with the operation of the Building or any work to be done by other
tenants. Tenant shall keep Landlord advised as to the status of such proceedings
on a regular basis.
21.4. All work required to be performed in the Premises pursuant to
this Article shall be performed by Tenant in accordance with Article 15 hereof.
All work required to be performed outside the Premises pursuant to this Article
shall be performed by Landlord, at Tenant's reasonable expense.
21.5. (a) If any mechanic's, laborer's, vendor's, materialman's or
similar statutory lien shall be filed against the Premises or the Building or
any part thereof for work claimed to have been done for or for materials claimed
to have been furnished to Tenant (in connection with any Tenant Change or
otherwise) or for any other action or omission claimed to have been made
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by Tenant, the same shall be discharged by Tenant, by either payment or by bond
or otherwise, at the sole cost of Tenant, within thirty (30) days following the
notice to Tenant of the filing of such lien, and Tenant shall provide
satisfactory proof of such discharge, to Landlord. In the event such lien is not
bonded or discharged timely as aforesaid, Landlord may discharge same for the
account of and at the expense of Tenant and Tenant shall reimburse Landlord for
all costs, disbursements, fees and expenses incurred in connection with so
bonding or discharging said lien within fifteen (15) days after demand and
receipt of reasonable evidence that such costs, disbursements, fees and expenses
have been paid. Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's lien or other lien for any such labor or materials shall attach to
or affect the reversion or other estate or interest of Landlord in and to the
Premises.
ARTICLE 22
ESTOPPEL CERTIFICATE
22.1. Tenant, at any time, and from time to time, upon at least (10)
Business Days' prior notice by Landlord, shall execute, acknowledge and deliver
to Landlord, the ground lessor under the Ground Lease, any Superior Lessor,
Mortgagee, prospective mortgagee, prospective purchaser of the Land, the
Building or the Ground Lease or any interest in Landlord or any member of
Landlord and/or any other similar person, firm, corporation or entity reasonably
specified by Landlord (each a "Recipient") a statement certifying that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the Fixed Rent and Additional
Rent have been paid, stating whether or not there exist any defaults by Landlord
under this Lease known to Tenant, and, if so, specifying each such default and
stating or certifying any other matters reasonably requested by Landlord or such
Recipient in connection with this Lease.
22.2. Landlord, at any time, and from time to time, upon at least (10)
Business Days' prior notice by Tenant, shall execute, acknowledge and deliver
to Tenant, any prospective assignee or subtenant and/or any other similar
Recipient reasonably specified by Tenant, a statement certifying that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating whether or not there exist any defaults by Tenant
under this Lease known to Landlord, and, if so, specifying each such default and
stating or certifying any other matters reasonably requested by Tenant or
Recipient in connection with this Lease.
ARTICLE 23
HOLDOVER
23.1. The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the
Premises upon the expiration or other termination of the Term will be
substantial, will exceed the amount of the monthly installments of the Fixed
Rent and the Additional Rent theretofore payable hereunder and will be
impossible to accurately measure. Tenant therefore agrees that if possession of
the Premises is not surrendered to Landlord within twenty-four (24) hours after
the Expiration Date, in addition to any other rights or remedies Landlord may
have hereunder or at law, Tenant shall pay to Landlord for each month and for
each portion of any month during which Tenant holds over in the Premises after
the Expiration Date, a sum equal to the greater of (a) one and one-half (1 1/2)
times the aggregate of that portion of the Fixed Rent and all of the Additional
Rent which was payable under this Lease for the last full calendar month of the
Term, and (b) the then fair market value of the Premises, as reasonably
determined by Landlord. Nothing herein contained shall be deemed to permit
Tenant to retain possession of the Premises after the Expiration Date and no
acceptance by Landlord of payments from Tenant after the Expiration Date shall
be deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Article. Tenant's obligations under this
Article shall survive the expiration or earlier termination of this Lease.
Tenant expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New York Civil Practice Law and Rules and of any
successor law of like import then in force in connection with any holdover
summary proceedings which Landlord may institute to enforce the foregoing
provisions of this Article.
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23.2. If Tenant shall hold over or remain in possession of any portion
of the Premises beyond the Expiration Date, Tenant shall be subject to summary
proceeding and all damages related thereto. All damages to Landlord by reason of
such holding over by Tenant may be the subject of a separate action and need
not be asserted by Landlord in any summary proceedings against Tenant.
ARTICLE 24
CONDITIONS OF LIMITATION
24.1. This Lease and the term and estate hereby granted are subject to
the limitation that (a) whenever Tenant or any Guarantor shall make an
assignment for the benefit of creditors or shall file a voluntary petition under
any bankruptcy or insolvency law, or (b) whenever an involuntary petition shall
be filed or an involuntary proceeding shall be commenced against Tenant or any
Guarantor, or (c) whenever a permanent receiver of Tenant, Guarantor or of or
for the property of Tenant or Guarantor, shall be appointed, then Landlord (i)
if such event occurs without the acquiescence of Tenant or Guarantor, as the
case may be, at any time after the event continues for one hundred twenty (120)
days, or (ii) in any other case at any time after the occurrence of such event,
may give Tenant a notice of intention to end the Term at the expiration of five
(5) days from the date of service of such notice of intention, and upon the
expiration of said five (5) day period, this Lease and the Term and estate
hereby granted, whether or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date of this
Lease, but Tenant shall remain liable for damages as provided in Article 26. As
used in this Section 24.1, the term "bankruptcy or insolvency law" shall include
the reorganization or arrangement or compromise provisions thereof.
24.2. This Lease and the Term and estate hereby granted are subject to
the further limitations that if any of the following events shall occur (an
"Event of Default"):
(a) Tenant shall fail to pay any of the Fixed Rent or the
Additional Rent within five (5) days after notice from Landlord stating that
such Rent is due, or
(b) Tenant shall, whether by action or inaction, fail to perform
any of its obligations under this Lease (other than a default in the payment of
the Fixed Rent or the Additional Rent) and such default shall continue and not
be remedied as soon as practicable and in any event within thirty (30) days
after Landlord shall have given to Tenant a notice specifying the same, or, in
the case of a default which cannot with due diligence be cured within a period
of thirty (30) days and the continuance of which for the period required for
cure will not (i) subject Landlord or any Superior Lessor or any Mortgagee to
prosecution for a crime or any other tine or charge, (ii) subject the Premises
or any part thereof or the Building or Land, or any part thereof, to being
condemned or vacated, (iii) subject the Building or the Land, or any part
thereof, to any lien or encumbrance which will not be removed and discharged in
accordance with the express terms of this Lease, or (iv) result or be likely to
result in the termination of any Superior Lease or foreclosure of any Mortgage,
if Tenant shall not (x) within said thirty (30) day period acknowledge the
existence of such default and advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (y) duly commence within said thirty
(30) day period and thereafter diligently prosecute to completion all steps
necessary to remedy the default and (z) complete such remedy within a reasonable
time after the date of said notice to Tenant, or
(c) Tenant shall abandon the Premises (and the fact that any of
Tenant's Property) remains in the Premises shall not be conclusive evidence that
Tenant has not abandoned the Premises), or
(d) a default shall occur and continue beyond any applicable
grace or cure period, if any, under any guaranty executed and delivered on
behalf of Tenant in connection with or with respect to this Lease,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the Term of this Lease at the expiration of five (5) days from the date of
the service of such notice of intention, and upon the expiration of said five
(5) days this Lease and the Term and estate hereby granted, whether or not the
Term shall theretofore have commenced, shall terminate with the same effect as
if that day was the day herein definitely fixed for the end and expiration of
this Lease, but Tenant shall remain liable for damages as provided in Article
26.
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24.3. Nothing in this Article 24 shall be deemed to require Landlord to
give the notices therein provided for prior to the commencement of a summary
proceeding for nonpayment of rent or a plenary action for recovery of rent on
account of any default in the payment of the same it being intended that such
notices are for the sole purpose of creating a conditional limitation hereunder
pursuant to which this Lease shall terminate and if Tenant thereafter remains in
possession after such a termination it shall do so as a holdover tenant.
24.4. (a) If Tenant shall have assigned its interest in this Lease, and
this Lease shall thereafter be disaffirmed or rejected in any proceeding under
the United States Bankruptcy Code or under the provisions of any Federal, state
or foreign law of like import, or in the event of termination of this Lease by
reason of any such proceeding, the assignor or any of its predecessors in
interest under this Lease, upon request of Landlord given within ninety (90)
days after such disaffirmance or rejection shall (i) pay to Landlord all of the
Fixed Rent and the Additional Rent then due and payable to Landlord under this
Lease to and including the date of such disaffirmance or rejection and (ii)
enter into a new lease as lessee with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance or rejection and ending
on the Expiration Date at the same Fixed Rent and Additional Rent and upon the
then executory terms, covenants and conditions as are contained in this Lease,
except that the rights of the lessee under the new lease shall be subject to any
possessory rights of the assignee in question under this Lease and any rights of
person claiming through or under such assignee, (y) such new lease shall require
all defaults existing under this Lease to be cured by the lessee with reasonable
diligence to the extent such defaults are capable of being cured, and (z) such
new lease shall require the lessee to pay all of the Additional Rent which, had
this Lease not been disaffirmed or rejected, would have become due after the
effective date of such disaffirmance or rejection with respect to any prior
period. If the lessee shall fail or refuse to enter into the new lease within
ten (10) days after the Landlord's request to do so, then in addition to all
other rights and remedies by reason of such default under this Lease, at law, or
in equity, Landlord shall have the same rights and remedies against the lessee
as if the lessee had entered into such new lease and such new lease had
thereafter been terminated at the beginning of its term by reason of the default
of the lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is permitted to
assign this Lease in disregard of the restrictions contained in Article 7 (or if
this Lease shall be assumed by a trustee), the trustee or assignee shall cure
any default under this Lease and shall provide adequate assurance of future
performance by the trustee or assignee including (i) of the source of payment of
rent and performance of other obligations under this Lease (for which adequate
assurance shall mean the deposit of security reasonably satisfactory to Landlord
with Landlord in an amount equal to the sum of six (6) calendar months' Fixed
Rent then reserved hereunder plus an amount equal to all of the Additional Rent
payable under Article 3 and other provisions of this Lease for the six (6)
calendar months preceding the year in which such assignment is intended to
become effective, which deposit shall be held by Landlord, in an interest
bearing account, for the balance of the Term as security for the full and
faithful performance of all of the obligations under this Lease on the part of
Tenant yet to be performed and that any such assignee of this Lease shall have a
net worth exclusive of good will computed in accordance with generally accepted
accounting principles, equal to at least five (5) times the aggregate of the
annual Fixed Rent reserved hereunder plus all of the Additional Rent for the
preceding calendar year as aforesaid) and (ii) that the use of the Premises
shall in no way diminish the reputation of the Building as a first-class office
building or impose any additional burden upon the Building or increase (other
than to a de minimis extent) the services to be provided by Landlord. If all
defaults are not cured and such adequate assurance is not provided within sixty
(60) days after there has been an order for relief under the Bankruptcy Code (or
such longer period of up to one hundred twenty (120) days as the bankruptcy
court will permit), then this Lease shall be deemed rejected. Tenant or any
other person in possession shall vacate the Premises, and Landlord shall be
entitled to retain any rent or security deposit previously received from Tenant
and shall have no further liability to Tenant or any person claiming through
Tenant or any trustee. If Tenant received or is to receive any valuable
consideration for such an assignment of this Lease, such consideration, after
deducting therefrom (A) the brokerage commissions, reasonable attorneys' fees
and disbursements and advertising expenses actually paid by Tenant to
independent third parties in connection with such assignment, (B) the amount of
any transfer gains or similar taxes payable by Tenant by reason of such
assignment, and (C) any portion of such consideration reasonably designated by
the assignee as paid for the purchase of Tenant's Property in the Premises,
shall, to the extent of any losses suffered by Landlord hereunder (i.e., the
failure of
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Landlord to receive the benefits to which Landlord is or may be entitled under
the terms of this Lease, including, without limitation, all accrued but unpaid
Rent under this Lease or interest on any amounts not paid when due hereunder),
be and become the sole and exclusive property of Landlord and shall be paid over
to Landlord directly by such assignee.
(c) If Tenant's trustee, Tenant or Tenant as debtor-in-possession
assumes this Lease and proposes to assign the same (pursuant to Title 11 U.S.C.
Section 365, as the same may be amended) to any Person, including, without
limitation, any individual partnership or corporate entity, who shall have made
a bona fide offer to accept an assignment of this Lease on terms acceptable to
the trustee, Tenant or Tenant as debtor-in-possession, then notice of such
proposed assignment, setting forth (i) the name and address of such Person, (ii)
all of the terms and conditions of such offer, and (iii) the adequate assurance
to be provided Landlord to assure such Person's future performance under the
lease, including, without limitation, the assurances referred to in Title 11
U.S.C. Section 364(b)(3) (as the same may be amended), shall be given to
Landlord by the trustee, Tenant or Tenant as debtor-in-possession no later than
twenty (20) days after receipt by the trustee, Tenant or Tenant as
debtor-in-possession of such offer, but in any event no later than ten (10) days
prior to the date that the trustee, Tenant or Tenant as debtor-in-possession
shall make application to a court of competent jurisdiction for authority and
approval to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to the
trustee, Tenant or Tenant as debtor-in-possession, given at any time prior to
the effective date of such proposed assignment, to accept 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, less any brokerage commissions which
may be payable out of the consideration to be paid by such Person for the
assignment of this Lease.
24.5. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Premises or to have a continuance of this Lease after
being dispossessed or ejected therefrom by process of law or under the terms of
this Lease or after the termination of this Lease as provided in this Lease.
ARTICLE 25
REENTRY BY LANDLORD
25.1. If this Lease shall terminate as provided in Article 24,
(a) Landlord or Landlord's agents or employees may immediately or
at any time thereafter reenter the Premises, or any part thereof, either by
summary dispossess proceedings or by any other suitable action or proceeding at
law or otherwise (without being liable to indictment, prosecution or damages
therefore) and may repossess the same and dispossess Tenant and any other
person(s) from the Premises and may remove Tenant or any and all of their
property and effects therefrom, without liability for damages thereto or
accountability therefore to the end that Landlord may have, hold and enjoy the
Premises, provided however, in no event, shall any such reentry be deemed an
acceptance of surrender under this Lease; and
(b) Landlord, at its option, may relet the whole or any
portion(s) of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before, or
on or after the date originally provided herein as the Expiration Date, at such
rentals and upon such other conditions, which may include concessions and free
rent period, as Landlord in its sole discretion may reasonably determine.
Landlord shall have no obligation to relet the Premises or any portion thereof
and shall in no event be liable for refusal or failure to relet the Premises or
any portion thereof or, in the event of any such reletting, for failure to
collect any rent due upon such reletting, and no such refusal or failure shall
operate to release or relieve Tenant from any liability under this Lease or
otherwise to affect such liability. Further, Landlord may make such repairs,
improvements, alterations, additions, decorations and other physical changes in
and to the Premises as Landlord in its sole discretion considers reasonably
advisable or necessary in connection with any such reletting or proposed
reletting, without releasing or relieving Tenant from any liability under this
Lease or otherwise affecting any such liability, provided, however, if Landlord
shall make any repairs, improvements, alterations, additions, decorations or
other physical changes in and to the Premises in connection with such reletting
or proposed reletting which are of a standard greater than the standard which
existed in the Premises immediately prior to the date of reentry or the
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termination of this Lease, then Tenant shall not be liable for the increased
costs of such repairs, improvements, alterations, additions, decorations or
other physical changes.
The word "reenter" (and grammatical variants thereof) as used herein,
is not restricted to its technical legal meaning. If this Lease is terminated
under the provisions of Article 24, or if Landlord shall reenter the Premises
under the provisions of this Article, or in the event of the termination of this
Lease, or reentry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the Fixed Rent and the Additional
Rent payable up to the time of such termination of this Lease or of such
recovery of possession of the Premises by Landlord, as the case may be, and
shall also pay to Landlord damages as provided in Article 26.
25.2. In the event of a breach or threatened breach (if threatened in
writing) by Tenant of any of its obligations under this Lease, Landlord shall
also have the right of injunction. The special remedies to which Landlord may
resort hereunder are cumulative and are not intended to be exclusive of any
other remedies to which Landlord may lawfully be entitled at any time and
Landlord may invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein.
25.3. If this Lease shall terminate under the provisions of Article 24,
or if Landlord shall reenter the Premises under the provisions of this Article,
or in the event of the termination of this Lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such monies shall be credited by Landlord against any
of the Fixed Rent or the Additional Rent due from Tenant at the time of such
termination or reentry or, at Landlord's option, against any damages payable by
Tenant under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.1. If this Lease is terminated under the provisions of Article 24,
or if Landlord shall reenter the Premises under the provisions of Article 25, or
in the event of the termination of this Lease, or of reentry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of the Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such reentry by Landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate amount of the Fixed Rent
and the Additional Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Rent to be the same as was payable for
the last twelve (12) calendar months, or if less than twelve (12) calendar
months have then elapsed since the Rent Commencement Date, for all of the
calendar months which have elapsed since the Rent Commencement Date) for the
period commencing with such earlier termination of this Lease or the date of
any such reentry, as the case may be, and ending with the date contemplated as
the Expiration Date if this Lease had not so terminated or if Landlord had not
so reentered the Premises, over (ii) the aggregate rental value of the Premises
for the same period, both discounted to present value at a rate per annum equal
to the then current interest rate on U.S. Treasury bills having maturities
approximating as closely as practicable the balance of the Term then remaining,
less any amount collected by Landlord as damages hereunder as Rent for the same
period; or
(b) sums equal to the Fixed Rent and the Additional Rent which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so reentered the Premises, payable upon the due dates therefor
specified herein following such termination or such reentry and until the date
contemplated as the Expiration Date if this Lease had not so terminated or if
Landlord had not so reentered the Premises, provided, however, that if Landlord
shall relet the Premises during said period, Landlord shall credit Tenant with
the net rents received by Landlord from such reletting, such net rents to be
determined by first deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease or in reentering the Premises and in securing possession
thereof, as well as the reasonable expenses of reletting, including, without
limitation,
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altering and preparing the Premises for new tenants, reasonable brokers'
commissions, legal fees and all other reasonable expenses properly chargeable
against the Premises and the rental therefrom, it being understood that any
such reletting may be for a period shorter or longer than the remaining Term,
but in no event shall Tenant be entitled to receive any excess of such net
rents, over the sums payable by Tenant to Landlord hereunder, nor shall Tenant
be entitled in any suit for the collection of damages pursuant to this
subdivision to a credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by Landlord. If the
Premises or any part thereof should be relet in combination with other space,
then proper apportionment on a rentable square foot basis shall be made of the
rent received from such reletting and of the expenses of reletting.
Supplementing the foregoing, (i) if this Lease is terminated under the
provisions of Article 24, or (ii) if Landlord shall reenter the Premises under
the provisions of Article 25, or (iii) in the event of the termination of this
Lease, or of reentry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of the
Tenant, or (iv) if Tenant is in default of its obligation under Section
1.3(a)(iv) hereof, then, in any such event, (a) Landlord shall have the right to
draw down the Letter of Credit pursuant to Article 43, (b) the aggregate Fixed
Rent described in Section 1.3 (a)(iv) shall be accelerated, and Tenant shall pay
to Landlord the excess of any portion of the Fixed Rent described in Section
1.3(a)(iv) then payable for the balance of the Term over the proceeds drawn from
the Letter of Credit, and (iii) Tenant shall pay to Landlord an amount equal to
any breakage fee incurred by Landlord in connection with the Tenant Initial Work
Allowance Proceeds (including, without limitation and by way of example, yield
maintenance fees due in connection with any hedge instrument).
If this Lease is terminated for Tenant's default prior to the
Commencement Date, then for the purposes of this Article 26, this Lease shall
be deemed to have commenced on the day prior to the date of such termination.
If the Premises or any part thereof be relet by Landlord for the
unexpired portion of the Term, or any part thereof, before presentation of proof
of such damages to any court, commission or tribunal the amount of rent reserved
upon such reletting shall, prima facie, be the fair and reasonable rental value
for the Premises, or part thereof, so relet during the term of the reletting.
Landlord shall not be liable in any way whatsoever for its failure or refusal to
relet the Premises or any part thereof, or if the Premises or any part thereof
are relet, for its failure to collect the rent under such reletting after
reasonable efforts to do so, and no such refusal or failure to relet or failure
to collect rent so shall release or affect Tenant's liability for damages or
otherwise under this Lease.
26.2. 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 would have expired if it had not been
so terminated under the provisions of Article 24, or had Landlord not reentered
the Premises. Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant or any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled
by reason of any default hereunder on the part of Tenant. Nothing herein
contained shall be construed to limit or prejudice the right of Landlord to
provide for and obtain as damages by reason of the termination of this Lease or
reentry on the Premises for the default of Tenant under this Lease an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved
whether or not such amount be greater than any of the sums referred to in
Section 26.1.
26.3. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord shall reenter the Premises under the provisions of
Article 25, Tenant agrees that:
(a) the Premises then shall be in the condition in which Tenant
has agreed to surrender the same to Landlord at the expiration of the term
hereof;
(b) Tenant shall have performed prior to any such termination any
covenant of Tenant contained in this Lease for the making of any Tenant
Changes or for restoring or rebuilding the Premises or any part thereof; and
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(c) for the breach of any covenant of Tenant set forth in this
Section 26.3, Landlord shall be entitled immediately, without notice or other
action by Landlord, to recover, and Tenant shall pay as damages therefor, the
reasonable cost of performing such covenant (as reasonably estimated by an
independent contractor selected by Landlord).
ARTICLE 27
LEGAL RENT RESTRICTION
27.1. If on the Rent Commencement Date, or at any time during the Term,
the Fixed Rent or the Additional Rent reserved in this Lease is not fully
collectible by reason of any Legal Requirement establishing, limiting or
regulating rents or increases therein (a "legal rent restriction"), Tenant
agrees to take such steps as Landlord may reasonably request to permit Landlord
to collect the maximum rents which may be legally permissible from time to time
during the continuance of such legal rent restriction (but not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, Tenant shall pay to Landlord to the extent permitted by Legal
Requirements, an amount equal to (a) the Rent which would have been paid
pursuant to this Lease but for such legal rent restriction, less (b) the Rent
paid by Tenant to Landlord during the period such legal rent restriction was in
effect.
ARTICLE 28
SURRENDER
28.1. On the Expiration Date or upon any reentry by Landlord upon the
Premises, Tenant shall quit and surrender the Premises to Landlord "broom-clean"
and in good order, condition and repair, except for ordinary wear and tear and
such damage or destruction as Landlord is required to repair or restore under
this Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in Sections 15.1(c) and 18.2.
28.2. On or prior to the Expiration Date, Tenant shall remove those
Tenant Changes which Tenant is required to remove pursuant to Section 15.1(c)
hereof, restore all damage caused by such removal and restore the portion of the
Premises affected by such restoration as required by Section 28.1 above.
28.3. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord.
28.4. If Landlord or Landlord's managing, rental or other agent accepts
from Tenant one or more keys to the Premises in order to assist Tenant in
showing the Premises for subletting or other disposition or for the performance
of work therein for Tenant or for any other purpose, the acceptance of such key
or keys shall not constitute an acceptance of a surrender of the Premises nor a
waiver of any of Landlord's rights or Tenant's obligations under this Lease
including, without limitation, the provisions relating to assignment and
subletting and the condition of the Premises.
ARTICLE 29
CURING TENANT'S DEFAULTS; CURING LANDLORD'S DEFAULTS
29.1. If Tenant shall be in default, other than for reasons of force
majeure, in the observance or performance of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed, Landlord may, without
thereby waiving such default and without liability, to Tenant in connection
therewith, remedy such default for the account of Tenant, upon at least thirty
(30) day's prior notice to Tenant (or immediately and without notice (a) to the
extent the giving of notice shall be impracticable, (b) if this Lease shall have
expired or been terminated, and (c) in any other case when Tenant shall fail to
remedy such default after notice by Landlord and the expiration of any other
applicable grace period hereunder). If Landlord makes any expenditures, incurs
any reasonable obligations for the payment of money in connection therewith, or
sustains or incurs any damages or fines, due to such non-observance or
non-performance by Tenant, including, but not limited to, attorneys' fees and
disbursements in instituting, prosecuting or defending any action or proceeding,
such reasonable sums paid or
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obligations, damages and fines sustained or incurred, together with interest at
the Interest Rate and costs, shall be paid by Tenant to Landlord, as Additional
Rent, within ten (10) days of rendition of any statement to Tenant therefor
together with documentation reasonably evidencing such sums, obligations and
fines.
29.2. Subject to the applicable provisions of any Superior Lease, any
Mortgage and the rights of any guarantor of Landlord's obligations hereunder,
and without limiting any rights of Tenant set forth in Section 8.3(a), if
Landlord shall be in default, other than for reasons of force majeure, in the
observance or performance of any term, covenant or condition of this Lease on
Landlord's part to be observed or performed (excluding, however, performance of
the Base Building Work except as otherwise expressly provided in Section
16.l(c)(iii)), Tenant may, without thereby waiving such default and without
liability to Landlord in connection therewith, remedy such default for the
account of Landlord upon at least thirty (30) days' prior notice to Landlord or,
in the event such non-performance impairs or is imminently likely to impair
structural support of the Building or causes or is imminently likely to cause
bodily injury to Tenant's employees, contractors or visitors to the Premises,
physical damage to the Premises, physical damage to Tenant's dedicated equipment
located in the Building but outside the Premises, or severe economic loss to
Tenant, then such notice as is reasonable under the circumstances. If Tenant
makes any expenditures, incurs any reasonable obligations for the payment of
money in connection therewith, or sustains or incurs any damages or fines, due
to such non-observance or non-performance by Landlord, including, but not
limited to, attorneys' fees and disbursements in instituting, prosecuting or
defending any action or proceeding, such reasonable sums paid or obligations,
damages and fines sustained or incurred, together with interest at the Interest
Rate and costs, shall be, at Tenant's election, either paid by Landlord to
Tenant or applied as a credit against the next installment of Fixed Rent, within
ten (10) days of rendition of any statement to Landlord therefor together with
documentation reasonably evidencing such sums, obligations and fines.
ARTICLE 30
DAMAGE OR DESTRUCTION
30.1. Except as otherwise expressly provided herein, if the Building or
the Premises shall be partially or totally damaged or destroyed by fire or other
casualty (and if this Lease shall not be terminated as in this Article 30
hereinafter provided), Landlord shall repair the damage. to and re: tore and
rebuild the Building and the Premises, including the Tenant Initial Work and any
Tenant Changes (except for Tenant's Property and except for any fit-out work
done for any other tenant) promptly and with reasonable diligence, after notice
to it or actual knowledge by it of the damage: or destruction, to a condition
substantially equivalent to the extent practicable (with respect to character,
quality, utility and appearance) to that which existed immediately prior to such
damage. To the extent insurance proceeds are not sufficient to restore, repair
or replace the Special Initial Work and the Special Tenant Changes by reason of
Tenant's failure to notify Landlord or to properly estimate the Insurable Value
with respect to any Special Tenant Change or Special Initial Work or by reason
of Tenant's request that Landlord no longer insure the Special Initial Work and
the Special Tenant Changes, Landlord shall notify Tenant of such insufficiency
and Landlord shall have no obligation to restore, repair or replace such Special
Initial Work and Special Tenant Changes unless prior to the commencement of such
restoration, repair or replacement, Tenant shall pay to Landlord as Additional
Rent the additional amount required in Landlord's reasonable judgment to perform
same. Tenant shall be responsible for any portion of the deductible amounts
under insurance policies covering such damage or destruction allocable, in
Landlord's reasonable judgment, to the Special Tenant Changes and the Special
Initial Work. If and to the extent Landlord's estimate of the amount of such
shortfall is greater than the actual amount by which the insurance proceeds were
insufficient, Landlord shall reimburse Tenant for any excess monies so funded by
Tenant.
30.2. Tenant shall give Landlord immediate notice of the occurrence of
any fire or other casualty affecting all or any part of the Premises. Subject
to the provisions of Section 30.6, if on account of any fire or other casualty
all or part of the Premises shall be untenantable or inaccessible by reason of
any damage or destruction required by this Lease to be repaired or restored by
Landlord, the Fixed Rent and the Additional Rent under Article 3 shall be abated
in the proportion that the untenantable or inaccessible area of the Premises
bears to the total area of the Premises, for the period from the date of the
fire or other casualty to the later of (a) the date the damage or destruction so
required to be repaired or restored by Landlord has been
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Substantially Completed for Restoration Purposes (provided, however, that if in
Landlord's reasonable judgment such repairs or restoration would have been
Substantially Completed for Restoration Purposes at an earlier date but for
Tenant's having failed to cooperate reasonably with Landlord in effecting the
same after notice and a reasonable opportunity to cure the failure to cooperate
reasonably, then such damage or destruction shall be deemed to have been
Substantially Completed for Restoration Purposes on such earlier date) and (b)
the Premises are accessible and tenantable (except to the extent Landlord is not
obligated to repair or restore Special Tenant Changes or Special Initial Work
pursuant to Section 30.1); provided, however, should Tenant reoccupy a portion
of the Premises for the conduct of its business prior to the aforesaid date, the
Fixed Rent and the Additional Rent under Article 3 shall be reinstated with
respect to such reoccupied portion of the Premises and shall be payable by
Tenant from the date of such occupancy. As used in this Article 30, the terms
"Substantially Completed for Restoration Purposes" and "Substantial Completion
of Restoration" shall mean the date on which the applicable work shall have been
completed, except for applicable work which is minor in nature and does not
adversely affect in any material respect the use and occupancy of the Premises
for such uses permitted under Article 2 hereof which Tenant was using the
Premises for immediately prior to such damage or destruction and except for
portions of such work which under good construction scheduling practices are
normally performed after any portion of still uncompleted repair or restoration
work of Tenant.
30.3. If (a) the Building shall be totally damaged or destroyed by fire
or other casualty, or (b) at least fifty percent (50%) of the Building shall be
so damaged or destroyed by fire or other casualty (whether or not the Premises
are damaged or destroyed) that in Landlord's reasonable opinion, either
demolition or reconstruction of the Building shall be required or the
Building, after its repair, alteration or restoration would not be economically
viable as a first-class office building (either of the foregoing "substantially
damaged"), then in any such case Landlord may terminate this Lease by giving
Tenant notice to such effect within thirty (30) days after the date of the
casualty, provided that Landlord shall terminate all other leases for office
space in the Building which are terminable by reason of such casualty.
30.4. Notwithstanding anything to the contrary contained herein, if the
Building or the Premises shall be substantially damaged or destroyed by fire or
other cause at any time during the last two (2) years of the Term or of either
Extension Term then either Landlord or Tenant may cancel this Lease upon notice
to the other party hereto given within sixty (60) days after such damage or
destruction.
30.5. Except as otherwise expressly set forth herein, Tenant shall not
be entitled to terminate this Lease and Landlord shall have no liability to
Tenant for inconvenience, loss of business or annoyance arising from repair or
restoration of the Premises or the Building or any portion of either pursuant to
this Article. Landlord shall use reasonable efforts to make such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy of the Premises, but Landlord shall not be required
to do such repair or restoration work except during Business Hours, provided,
however, Landlord shall perform all such repairs in a good and workmanlike
manner and shall promptly repair any damage to the Premises caused in the making
of such repairs.
30.6. (a) Within sixty (60) days after the occurrence of a casualty as
set forth in Section 30.1 hereof, Landlord shall deliver a statement prepared by
a licensed professional engineer selected by Landlord (who shall be reasonably
satisfactory to Tenant) setting forth such engineer's estimate of the time
required for the repair or restoration of such damage or destruction (excluding
the Special Tenant Work and the Special Initial Work) in accordance with normal
good construction practice (i.e., without the use of overtime). If such
statement shall show that the estimated time required for the repair or
restoration of such damage (excluding the Special Tenant Changes, the Special
Initial Work and Long Lead Work, as hereinafter defined) is more than one
hundred eighty (180) days from the date of such estimate, then Tenant may
terminate this Lease by giving Landlord notice to such effect within thirty (30)
days after Tenant receives the statement of such engineer. If Tenant shall
timely give such notice of termination, this Lease shall terminate on the date
which shall be sixty (60) days after Tenant's giving of such notice (unless this
Lease is required by any Legal Requirement to terminate earlier or Landlord in
its good faith judgment intends to commence any repair or restoration of the
Building or the Premises, including, without limitation, any demolition of all
or any portion thereof required in connection with such repair or restoration,
in which case this Lease shall terminate on the date
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which shall be thirty (30) days after the giving of such notice) and the Rent
and the Additional Rent under Article 3 shall be paid and apportioned to the
date of such termination.
(b) If Tenant shall not exercise its option to terminate this
Lease as provided in Section 30.6(a), or if Tenant is not entitled to terminate
this Lease pursuant to Section 30.6(a), and the repair or restoration (excluding
the Special Tenant Changes, the Special Initial Work and Long Lead Work) to be
performed by Landlord is not Substantially Completed for Restoration Purposes by
Landlord within fifteen (15) months after Landlord's engineer's estimate,
subject to extensions in the aggregate for Tenant Restoration Delays and force
majeure, then Tenant may terminate this Lease, by giving notice to Landlord not
later than ten (10) Business Days following the expiration of such fifteen (15)
month period, as the same may be extended for Tenant Restoration Delays and
force majeure as aforesaid. If Tenant exercises such option to terminate this
Lease then this Lease shall terminate on the date which shall be sixty (60) days
after the giving of such notice (unless this Lease is required by any Legal
Requirement to terminate earlier) and the Fixed Rent and the Additional Rent
under Article 3 shall be paid and apportioned to the date of such termination.
(c) Landlord shall complete the construction and installation of
the Special Tenant Changes, the Special Initial Work and any Landlord repair or
restoration work which under good construction scheduling practices would
normally be performed after any portion of still uncompleted repair or
restoration work of Tenant, within a reasonable period of time after the
occurrence of the casualty as set forth in Section 30.1 hereof in accordance
with good construction practice in the City, except as otherwise provided in
Section 30.1.
(d) The notice of Landlord's licensed professional engineer
referred to in Section 30.6(a) shall also specify those items which are Long
Lead Work. Tenant may, by notice to Landlord given within thirty(30) days after
receipt of notice from such engineer, specify with respect to the Premises items
or materials which do not constitute Long Lead Work to be substituted for such
Long Lead Work provided that such substitution (i) shall not increase the cost
of such repairs or restoration unless Tenant shall agree to pay any such
incremental cost increase, (ii) is comparable in quality and (iii) does not
impair the structural integrity of the Building, the Building systems or the
Building exterior. If Tenant shall not elect to substitute items or materials
which do not constitute Long Lead Work for Long Lead Work items, then promptly
following the expiration of said thirty (30) day period (or if Tenant shall
notify Landlord that it shall not elect to substitute items or materials which
do not constitute Long Lead Work for Long Lead Work items prior to the
expiration of said thirty (30) day period, then promptly following Landlord's
receipt of such notice), Landlord shall order such Long Lead Work.
Notwithstanding anything to the contrary contained herein, Landlord shall
complete the construction and installation of such Long Lead Work within a
reasonable period after obtaining such items.
(e) As used herein, the following terms shall have the following
meanings ascribed thereto:
(i) "Long Lead Work" shall mean any item of work, materials
and/or equipment which, in Landlord's reasonable judgment, must be specially
manufactured, fabricated and/or installed, or which is difficult to obtain and
generally requires a long lead delivery time or which is of an exceptionally
unusual or uncommon nature.
(ii) "Tenant Restoration Delays" shall mean any delay in
performing repair or restoration work suffered by Landlord as a direct result of
any act, neglect, failure or omission of Tenant or any Tenant Party.
30.7. Upon completion of the repair and restoration of the Building as
required in Section 30.1 after the Building shall have been substantially
damaged, any excess insurance proceeds shall be shared equally by Landlord and
Tenant provided (i) no monetary Event of Default is then existing and (ii)
Tenant shall have satisfied its shortfall funding obligations, if any, pursuant
to Section 30.1.
30.8. The provisions of this Article shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and Section 227 of the Rea1 Property Law of the State of New
York, providing for such contingency in the absence
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of an express agreement, and any other law of like import, now or hereafter in
force, shall have no application in such case.
ARTICLE 31
EMINENT DOMAIN
31.1. (a) In the event that all of the Building or all of the Premises
shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title.
(b) In the event that a "material part" of the Building shall be so
condemned or taken then Landlord (whether or not the Premises are affected) may
terminate this Lease and the Term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such termination within
sixty (60) days following the date on which Landlord shall have received notice
of vesting of title provided that Landlord shall terminate all leases of space
in the Building which are terminable by reason of such taking. If Landlord does
not elect to terminate this Lease as aforesaid, this Lease shall be and remain
unaffected thereby. As used in this Section 31.1 (b) a partial condemnation or
taking shall be of a "material part" of the Building if, after repair,
alteration or restoration of the Building to a tenantable office building, the
Building, in Landlord's reasonable opinion, would not be economically viable as
a first-class office building.
(c) If a part of the Premises and not the entire Premises shall be
so acquired or condemned then (i) except as hereinafter provided, this Lease and
the Term shall continue in force and effect but from and after the date of the
vesting of title, (A) such part shall no longer constitute part of the Premises,
(B) the Fixed Rent and the Additional Rent shall be reduced in the proportion
which the area of the part of the Premises so acquired or condemned bears to the
total area of the Premises immediately prior to such acquisition or
condemnation, computed in the same manner as area is computed as of the date of
this Lease, and (C) Tenant's Proportionate Operating Expense Share and or
Tenant's Proportionate Tax Share under Sections 3.1 and 3.2, respectively, shall
be redetermined based upon the ratio between the area of the Premises remaining
after such acquisition or condemnation and the area of the Premises prior to
such acquisition or condemnation, computed in the same manner as area is
computed as of the date of this Lease; and (ii) if the acquisition or
condemnation of the part of the Real Property so acquired or condemned shall (x)
contain more than fifty percent (50%) of the total rentable area of the Premises
immediately prior to such acquisition or condemnation or (y) result in the
Premises no longer being reasonably usable for the purposes permitted in Article
2 or (z) result in Tenant no longer having reasonable means of access to fifty
percent (50%) or more of total rentable area of the Premises, then, in any such
case, Tenant, at Tenant's option, may give to Landlord, within sixty (60) days
next following the date upon which Tenant shall have received notice of vesting
of title a notice of termination of this Lease as of a date set forth in such
notice, which date shall be not less than thirty (30) days (unless the date of
the vesting of title shall be earlier than thirty (30) days from the date of
Tenant's notice to Landlord) nor more than one hundred eighty (180) days from
the date of such notice. If any such notice of termination is given by Tenant,
this Lease and the Term shall come to an end and expire upon the termination
date set forth in such notice with the same effect as if such termination date
were the Expiration Date.
(d) In the event of any termination of this Lease and the Term
pursuant to the provisions of this Section, the Rent shall be apportioned as of
the date of sooner termination (provided, however, that if vesting of title to
any portion of the Premises taken shall occur prior to the date of sooner
termination, the Rent attributable to such portion shall be apportioned as of
the date of vesting) and any prepaid portion of the Fixed Rent or the Additional
Rent for any period after such date shall be refunded by Landlord to Tenant,
which obligation shall survive the Expiration Date.
31.2. In the event of termination in any of the cases hereinbefore
provided, this Lease and the Term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the Expiration
Date, and the Fixed Rent and the Additional Rent payable hereunder shall be
apportioned as of such date.
31.3. In the event of any condemnation or taking hereinbefore mentioned
of all or a part of the Building or the Premises, Landlord shall be entitled to
receive the entire award of the
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condemnation proceeding, including any award made for the value of the estate
vested by this Lease in Tenant. Tenant hereby expressly assigns to Landlord any
and all right, title and interest of Tenant now or hereafter arising in or to
any such award or any part thereof, and Tenant shall be entitled to receive no
part of such award. Notwithstanding the foregoing, Tenant shall be entitled to
seek a separate award for any fixtures or Tenant's Property paid for by Tenant
or relocation expenses, provided Landlord's award is not diminished thereby.
31.4. In the event of any taking of less than the whole of the Premises
which does not result in a termination of this Lease, Landlord shall proceed
with reasonable diligence to repair, alter and restore the remaining part of the
Premises to a self-contained rental unit in substantially its former condition
(including the Tenant Initial Work and Tenant Changes) to the extent that the
same may be feasible and may be accomplished without expenditure of funds in
excess of the amount awarded for purposes of such work.
ARTICLE 32
SUBORDINATION, ATTORNMENT
32.1. This Lease shall be subject and subordinate to each and every
ground, overriding or underlying lease of the Real Property or the Building now
or hereafter made by Landlord (collectively the "Superior Leases") and to each
and every trust indenture and mortgage, including, without limitation, leasehold
mortgages whether such trust indenture, mortgage or leasehold mortgage shall
cover other lands or buildings or leases (collectively the "Mortgages" and
individually a "Mortgage") which may now or hereafter affect all or any part of
the Real Property, the Building or any Superior Lease and the leasehold interest
created thereto, substitutions therefor and advances made thereunder, and to all
renewals, modifications, replacements and extensions of such Superior Leases and
Mortgages. Landlord agrees to obtain from (a) any mortgagee, an assignable and
recordable agreement to the effect that; if there shall be a foreclosure of its
Mortgage, and subject to the provisions hereinafter set forth, such mortgagee
will not make Tenant a party defendant to such foreclosure, evict Tenant,
disturb Tenant's possession under this Lease, or terminate or disturb Tenant's
leasehold estate or rights under this Lease, or (b) the landlord under any
Superior Lease, an assignable and recordable agreement to the effect that if its
lease shall terminate or be terminated for any reason, such landlord will
recognize Tenant as the direct tenant of such landlord on the same terms and
conditions as are contained in this Lease (subject to the provisions hereinafter
set forth), provided no event of default shall have occurred and be continuing
pursuant to this Lease beyond any applicable grace period (any such agreement or
any agreement of similar import from any such Mortgagee or landlord under a
Superior Lease being hereinafter called a "Non-Disturbance Agreement"). The
lessor of a Superior Lease or its successor-in-interest at the time
referred to is sometimes herein called a "Superior Lessor," and the holder of a
Mortgage or its successor-in-interest at the time referred to is sometimes
herein called a "Motgagee."
32.2. In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after the lapse of a period of time, to cancel
or terminate this Lease, or to claim a partial or total eviction, Tenant shall
not exercise such right (a) until it has given written notice of such act or
omission to each Mortgagee and Superior Lessor whose name and address shall
previously have been furnished to Tenant in writing, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Mortgagee and Superior
Lessor shall have become entitled under its Mortgage or Superior Lease to remedy
the same (which reasonable period shall in no event be less than the period to
which Landlord would be entitled under this Lease or otherwise, after similar
notice to effect such remedy) and which reasonable period of time shall in no
event exceed ninety (90) days unless such default cannot with due diligence be
cured within a period of ninety (90) days, in which event such period of time
shall be extended as shall be reasonable under the circumstances provided that
such Mortgagee or Superior Lessor, as the case may be, shall have commenced to
cure such act or omission within such ninety (90) day period and shall
thereafter be diligently prosecuting such cure to completion.
32.3. If, at any time prior to the termination of this Lease, any
Superior Lessor or Mortgagee or any Person, or any Superior Lessor's or
Mortgagee's or such Person's successors or assigns (Superior Lessor, Mortgagee
and any such Person, successor or assign being herein collectively referred to
as "Successor Landlord") shall succeed to the rights of Landlord under this
Lease through possession or foreclosure action or delivery of a new lease or a
deed or
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otherwise, Tenant agrees, at the election and upon request of any such Successor
Landlord, from time to time, to fully and completely attorn to and recognize any
such Successor Landlord, as Tenant's landlord under this Lease upon the then
existing terms of this Lease and subject to the terms and conditions of any
Non-Disturbance Agreement then in effect. Tenant, upon demand of any such
Successor Landlord, and at Successor Landlord's expense, shall execute, from
time to time, instruments to evidence and confirm the foregoing provisions of
this Section (including, if Successor Landlord shall so request, a new lease on
terms identical to this Lease), reasonably satisfactory to any such Successor
Landlord and Tenant, acknowledging such attornment and setting forth the terms
and conditions of its tenancy. Upon such attornment, this Lease shall continue
in full force and effect as a direct lease between such Successor Landlord and
Tenant upon all of the then existing terms of this Lease as modified by any
Non-Disturbance Agreement in effect except that such Successor Landlord shall
not be (a) liable for any previous act or omission or negligence of Landlord
under this Lease; (b) subject to any counterclaim, defense or offset, which
theretofore shall have accrued to Tenant against Landlord; (c) bound by any
previous modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification, amendment or prepayment
shall have been approved in writing by the Superior Lessor or Mortgagee through
or by reason of which the Successor Landlord shall have succeeded to the rights
of Landlord under this Lease; (d) obligated to perform or complete the Base
Building Work or any alteration of the Premises (provided, however, that
Tenant's obligation to attorn shall be subject to the Successor Landlord
electing to complete the Base Building Work within a reasonable period of time
following the succession to Landlord's interest in this Lease); (e) liable for
any security deposited pursuant to this Lease, if any, unless such security
shall have actually been delivered to Successor Landlord; (f) obligated to
repair the Premises or the Building or any part thereof beyond such repair as
can reasonably be accomplished from the net proceeds of insurance actually made
available to Successor Landlord; or (g) obligated to repair the Premises or the
Building or any part thereof, in the event of partial condemnation beyond such
repair as can reasonably be accomplished from the net proceeds of any award
actually made available to Successor Landlord, as consequential damages
allocable to the part of the Premises or the Building not taken.
32.4. The effectiveness of this Lease shall be subject to Landlord
delivering to Tenant Non-Disturbance Agreements from the existing Superior
Lessor and the existing Mortgagee, if any, both in form and substance
satisfactory to Tenant in its commercially reasonable discretion. Subordination
with respect to any future Mortgage or Superior Lease pursuant to Section 32.1
and the obligation to attorn pursuant to Section 32.3 are conditional on
delivery of a Non-Disturbance Agreement. Non-Disturbance Agreements from any
Future Superior Lessor or Future Mortgagee shall be substantially in the form of
Non-Disturbance Agreements from the existing Superior Lessor and the existing
Mortgagee, or shall be satisfactory to Tenant in its commercially reasonable
discretion.
32.5. If any prospective mortgagee of the Land, the Building or any
leasehold interest therein requires, as a condition precedent to issuing its
loan, the modification of this Lease in such manner as does not lessen Tenant's
rights or increase its obligations hereunder (except to a de minimis extent) or
reduce the obligations of Landlord hereunder, Tenant shall not delay or withhold
its consent to such modification and shall execute and deliver such confirming
documents therefor as such mortgagee requires. Further, Tenant shall cooperate
with the reasonable requests of Landlord and prospective lenders in connection
with Landlord's obtaining for the Building or the Premises construction and
permanent financing or refinancing provided no such request shall have a
material, adverse impact on Tenant's use and occupancy of the Premises, the
conduct of Tenant's business at the Premises or Tenant's obligations or
liabilities under the Lease.
ARTICLE 33
NOTICES
33.1. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party pursuant to this Lease or to any Legal Requirement (collectively,
"notices") shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made only
if sent by (a) registered or certified mail return receipt requested, posted in
a United States post office station or letter box in the continental United
States, (b) by a nationally recognized overnight courier (e.g., Federal Express)
with receipt acknowledged or (c) by personal delivery
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with receipt acknowledged, to Landlord or Tenant, as the case may be, at the
address of such party set forth below:
If to Landlord:
Legal Department
Forest City Xxxxxx Companies
One Metrotech Center North, 1l/th/ Floor
Brooklyn, New York 11201
Forest City Myrtle Associates, LLC
c/o Forest City Xxxxxx Companies
Xxx Xxxxxxxxx Xxxxxx Xxxxx, 00/xx/ Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
With copies to:
Forest City Enterprises, Inc.
0000 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 000000
Attention: Legal Department
and
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Notices to Tenant shall be addressed as follows:
If to Tenant:
Empire HealthChoice, Inc.
00 X. 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
with copies to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Any notice, if sent by registered or certified mail as aforesaid, shall be
deemed to have been given, rendered or made on the day received, or if receipt
is refused, on the date so refused. Notices delivered by courier or by personal
delivery shall be deemed given when delivered to the proper address, whether or
not delivery is accepted. Either party may, by notice as aforesaid, designate a
different address or addresses for notices intended for it.
33.2. Notices hereunder from Landlord may be given by Landlord's
managing agent or Landlord's attorney. Notices hereunder from Tenant may be
given by Tenant's attorney.
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ARTICLE 34
EXPEDITED CONSTRUCTION ARBITRATION
34.1. If Landlord and Tenant are unable to agree whether any portion of
the Premises then being delivered by Landlord is Ready for Delivery and such
dispute has been referred to arbitration pursuant to this Article 34 or in any
other instance where this Lease provides that a dispute is to be resolved
pursuant to this Article 34, and only in such cases, the dispute shall be
resolved by arbitration conducted in The City of New York, County of Kings (and
not by litigation), in accordance with the provisions of this Article 34, and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof.
34.2. The party hereto desiring to arbitrate a dispute pursuant to this
Article 34 shall give notice (a "Dispute Notice") to that effect to the other
party, and such dispute shall be presented for resolution to the first available
arbitrator set forth on the list below. In the event the arbitrator listed first
is not available or is unwilling to serve, the arbitrator next set forth on the
list shall be engaged, and so on, until arriving at an available arbitrator:
(a) Mr. Xxxxx XxXxxxx
Xxxxxx Construction
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(b) Xxxxx Xxxxxx, Esq.
XxXxxxxxx Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(c) Mr. Xxxxxxx Xxxxx, Sr. Vice President
Related Companies
000 Xxxxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, XX 00000
(000) 000-0000
(d) Xxxx Xxxxxxxx, Esq.
Solomon & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(e) Xx. Xxxxx Xxxxxxx, Vice President
Sciame Contracting
00 Xxxxx Xxxxxx, 0xx Xx.
Xxx Xxxx, XX 00000
(000) 000-0000
(f) Xx. Xxxxxx Xxxxxx, Principal
Xxxxxx Associates
00 Xxxx 00xx Xxxxxx, 0xx Xx.
Xxx Xxxx, XX 00000
(000) 000-0000
(g) Xxxxxx Xxxxxxxxx, Esq.
Xxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(h) Xx. Xxxxxxx Xxxxx
Xxxxxx Seinuk Group P.C.
000 Xxxx 00/xx/ Xxxxxx
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Xxx Xxxx, XX 00000
(000) 000-0000
(i) Xx. Xxxxxx Xxxxx
Xxxxx and Xxxxx Consulting Engineers, LLP
000 Xxxxx Xxxxxx.
Xxx Xxxx, XX 00000
(000) 000-0000
(j) Xxxx XxXxxxxxxxx, Consultant
Rockefeller Group Development Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Except during the pendency of an arbitration proceeding pursuant to
this Article 34, Tenant and Landlord may each, by written notice to the other,
disqualify any of the listed arbitrators for any reason whatsoever and propose
additional arbitrators to be added to the list to be agreed upon in accordance
with the provisions of the immediately following paragraph. The remaining
arbitrators shall move up on the list to fill any vacancies so created. The
arbitrator serving to resolve any dispute hereunder is hereinafter referred to
as the "Arbitrator".
If any of the named arbitrators dies, goes out of business, is
disqualified by Landlord or Tenant or otherwise pursuant to this Article 34.2,
or elects to withdraw from the list, then the Landlord and Tenant shall agree on
a replacement within twenty (20) days after notice thereof. If Landlord and
Tenant fail to so agree, each, within five (5) days after such twenty (20) day
period, shall designate one (1) of the remaining arbitrators and the two (2)
arbitrators so chosen shall appoint a replacement within twenty (20) days
thereafter. All newly chosen arbitrators shall be placed at the bottom of the
list of potential arbitrators.
34.3. Within two (2) Business Days after the Dispute Notice has been
delivered, both parties shall make whatever presentations they wish to the
Arbitrator, including, without limitation, the submission of photographs taken
at the time of the walk-through inspection and the applicable portions of the
construction manager's daily log book. Immediately thereafter, the Arbitrator
shall attempt to cause Landlord and Tenant to agree on a resolution to the
dispute and, failing that, the Arbitrator shall immediately make its decision.
The Arbitrator's decision may be made orally provided the Arbitrator confirms
such decision in writing within two (2) Business Days thereafter. Copies of the
Arbitrator's decision shall be sent to Landlord and to Tenant and shall be
binding on both. Any costs incurred by or payable to the Arbitrator in any such
proceeding shall be paid by the party which does not prevail or as shall be
determined by the Arbitrator, and each party shall bear the costs of its own
attorneys and other experts. The Arbitrator shall have no power to vary or
modify any of the provisions of this Lease, and his or her powers and
jurisdiction are hereby limited accordingly. During the consideration of any
issue by the Arbitrator pursuant to this Article 34, Tenant and Landlord shall
observe and perform each and every one of its obligations hereunder, including,
without limitation, the obligation to pay timely all Rent that may be or become
due or payable hereunder. Any construction lender of Landlord, or such lender's
representative, shall have the right to attend any and all arbitration
proceedings conducted pursuant to this Article 34 for the purpose of observing
such proceedings, provided, however, that such lender shall have no right to
participate in any way in any such proceeding.
ARTICLE 35
GENERAL ARBITRATION
35.1. Wherever in this Lease it is provided that a dispute shall or may
be submitted to or be detemined by arbitration, then the arbitration shall be
conducted as provided in this Article 35 unless otherwise expressly set forth.
The party desiring such arbitration shall give notice to that effect to the
other party, which notice shall indicate the name and address of the arbitrator
designated by such party to act on its behalf in the arbitration process
hereinafter described.
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35.2. (a) If the matter in dispute is the Fixed Rent, the Additional
Rent or the fair market rent:
(i) Within ten (10) days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. If the
second arbitrator shall not have been appointed as aforesaid, the first
arbitrator shall proceed to determine such matter.
(ii) Both arbitrators shall determine and promptly report (and in
no event later than the twentieth (20/th/) day following the appointment of the
second arbitrator) to the parties in writing the determination of the rental
valuation. If the reports indicate proposed rental valuations that are within
five (5%) percent of each other, Landlord and Tenant agree that the rental shall
be an average of the two amounts. However, if the amounts are not within five
(5%) percent of each other and after receiving the reports, the parties are
unable to agree on the rental valuation, then within five (5) days, the two
arbitrators shall jointly appoint a third arbitrator to determine the rental
valuation by selecting either Landlord's arbitrator's rental determination or
Tenant's arbitrator's rental determination according to whichever of the two
valuations is closer to the actual rental value in the opinion of such third
arbitrator. The third arbitrator shall have no discretion other than to select
one or the other valuations as aforesaid. If the arbitrators appointed by
Landlord and Tenant cannot timely agree on a third arbitrator, then
either Landlord or Tenant, on behalf of both parties hereto and on notice to the
other, may request such appointment by the American Arbitration Association (or
any organization successor thereto) in accordance with its rules then
prevailing, but if such appointment by the American Arbitration Association (or
any organization successor thereto) is not made within fifteen (15) days after
such, request is made, then either party may apply, on notice to the other, to
the Supreme Court, New York County, New York (or any other court having
jurisdiction and exercising functions similar to those now exercised by
said Court) for the appointment of such third arbitrator. The third arbitrator
shall issue a determination of valuation in writing within ten (10) Business
Days after designation of such third arbitrator and the third arbitrator's
receipt of the reports of the first two arbitrators.
(b) If the matter in dispute is any other determination:
(i) Within ten (10) days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall meet within ten (10) days after the second
arbitrator is appointed and if, within thirty (30) days after the second
arbitrator is appointed, the two arbitrators shall not agree upon the question
in dispute, they shall together appoint a third arbitrator.
(ii) If the two arbitrators appointed by the parties shall be
unable to agree within forty (40) days after the appointment of the second
arbitrator, upon the selection of the third arbitrator, then within five (5)
days thereafter either of the parties upon notice to the other party may request
such appointment by the American Arbitration Association (or any organization
successor thereto) or in its absence, refusal, failure or inability to act, may
apply for a court appointment of such arbitrator. Such third arbitrator chosen
or appointed pursuant to this subsection shall determine the matter in dispute.
(c) Any arbitration shall be conducted, to the extent consistent
with this Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto).
(d) Any determination and award made as provided in this Section
35.2 shall be final and conclusive on the parties. The arbitrators shall not add
to, subtract from or otherwise modify the provisions of this Lease.
35.3. Each party shall pay the fees and expenses of the arbitrator
appointed by or for such party, as well as the attorneys' fees, witness fees
and similar expenses incurred by such party. The fees and expenses of the third
arbitrator and all other expenses of the arbitration shall be borne by the
parties equally.
35.4. If the matter in dispute is the Fixed Rent, the Additional Rent,
the fair market rent or any other charge payable under this Lease, each of the
arbitrators selected as herein provided (i) shall be a fit and impartial person,
(ii) shall have at least ten (10) years' experience in the leasing of office
space in, or the appraisal of, first class office buildings in Kings County or
New
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York County, and (iii) shall be a member of one of the ten largest (determined
by the number of leasing brokers employed and the volume of first class office
space leased in the City during the preceding calendar year) office leasing
firms maintaining its main office in the City. In all other cases, the
arbitrator shall be a fit and impartial person who shall have had at least ten
(10) years experience in the City in a calling connected with the matter of the
dispute.
35.5. Nothing contained in this Article 35 shall be deemed in any
way to alter, modify or affect the provisions of Article 3 hereof.
ARTICLE 36
DEFINITIONS
36.1. For the purposes of this Lease and all agreements
supplemental to this Lease:
(a) "and/or" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(b) "force majeure" shall mean any delay resulting from any
acts of God, war, sabotage, terrorism, hostilities, invasion, insurrection, riot
or civil commotion, mob violence, embargo, enemy action, strike(s), lockouts,
labor troubles, inability to procure labor or materials, failure of power,
earthquake, flood, fire or other casualty other than the fire or casualty giving
rise to the damage or destruction of the Building or the Premises, as the case
may be, governmental restrictions, governmental preemption of priorities and
other controls in connection with a national or other public emergency or
shortages of fuel, supplies or labor resulting therefrom, or any similar or
dissimilar cause beyond Landlord's reasonable control.
(c) "herein," "hereof' and "hereunder" and words of similar
import, shall be construed to refer to this Lease as a whole, and not to any
particular article or section, unless expressly so stated.
(d) "Index" shall mean the Consumer Price Index for All Urban
Consumers, New York, N.Y. Northeastern N.J., base year 1982-1984 Equals 100
specified for "All Items," as issued by the Bureau of Labor Statistics of the
United States Department of Labor, whether or not the composition of the items
upon which such indexes are based, their relative effects thereon or the region
considered may be changed from time to time. If the Consumer Price Index for all
Urban Consumers shall cease to be published, then the Index shall mean the
successor index thereto and if there is no successor thereto, the Index shall be
such other index as Landlord and Tenant shall reasonably agree upon
(e) "Insurance Requirements" shall mean all requirements of
any insurance policy covering or applicable to all or any part of the Real
Property or the Premises or the use thereof, all requirements, policies or
recommendations of the issuer of any such policy and orders, rules, regulations,
requirements, policies or recommendations of the New York Board of Fire
Underwriters or the Insurance Services Office or any other body exercising the
same or similar functions or any insurance rating agency (e.g., Factory
Mutual).
(f) "Interest Rate" shall refer to two percent (2%) plus the
prime commercial lending rate of Citibank, NA (or its successor) from time to
time in effect for ninety (90) day unsecured loans.
(g) "Landlord" shall mean only the owner, at the time in
question, of the Building or that portion of the Building of which the Premises
are a part, or of a lease of the Building or that portion of the Building of
which the Premises are a part.
(h) "Landlord Parties" shall mean Landlord and any principal,
partner, member, officer, stockholder, director, employee or agent of Landlord
or of any partner or member of any partnership or limited liability company
constituting Landlord or any other direct or indirect holder of an ownership
interest in Landlord, disclosed or undisclosed; Landlord Party shall have the
corresponding singular meaning.
(i) "Landlord shall not have liability to Tenant" or "the
same shall be without liability to Landlord" or "without incurring any
liability to Tenant therefor" and words of similar import shall mean that Tenant
is not entitled to terminate this Lease, or to claim actual or
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constructive eviction, partial or total or to receive any abatement or
diminution of rent, or to be relieved in any manner of any of its other
obligations hereunder, or to be compensated for loss or injury suffered or to
enforce any other right or kind of liability whatsoever against Landlord under
or with respect to this Lease or with respect to Tenant's use of occupancy of
the Premises.
(j) "Legal Requirements" shall mean laws, statutes and ordinances,
including, without limitation, codes, approvals, permits and zoning regulations
(including without limitation the Zoning Resolution of the City of New York and
the Metrotech Design Guidelines), and ordinances; and the orders, rules,
regulations, interpretations, directives and requirements of all federal, state,
county, city and borough departments, bureaus, boards, agencies, offices,
commissions and other sub-divisions thereof, or of any official thereof, or of
any other governmental public or quasi-public authority, whether now or
hereafter in force; and all requirements, obligations and conditions of all
instruments of record which may be applicable to the Real Property or the
Premises or any part thereof or xxx xxxxxxx, xxxxx, xxxxxxx, sidewalks, curbs or
areas or vaults adjacent thereto.
(k) "Mortgagee Parties" shall mean any Mortgagee and any principal,
partner, member, officer, stockholder, director, employee or agent thereof.
(l) "Person" includes any one or more natural persons,
partnerships, trusts, corporations, companies, associations or any other form of
legal entity.
(m) "Project" shall mean the project known as "Metrotech Center," a
commercial, academic and high technology office complex covering approximately
sixteen (16) acres in Downtown Brooklyn as shown on Exhibit R annexed hereto and
made a part hereof as well as any existing or future buildings or parts of
buildings in downtown Brooklyn which are not within the sixteen (16) acres but
which have a Metrotech Center address.
(n) "such consent shall not be unreasonably withheld" and words of
similar import shall mean such consent shall not be unreasonably withheld or
delayed.
(o) "Superior Lessor Parties" shall mean any Superior Lessor and
any principal, partner, member, officer, stockholder, director, employee or
agent thereof.
(p) "Tenant" shall mean the Tenant herein named or any assignee or
other successor in interest (immediate or remote) of the Tenant herein named,
which at the time in question is the owner of the Tenant's estate and interest
granted by this Lease.
(q) "Tenant's Designated Mechanical Space" shall mean that certain
space in the mechanical room(s) or areas of the Building determined by Landlord
within thirty (30) days after Commencement of Construction of the Building and
reasonably acceptable to Tenant.
(r) "Tenant's Designated Roof Space" shall mean the space on the
roof of the Building determined by Landlord within thirty (30) days after
Commencement of Construction of the Building and reasonably acceptable to
Tenant, which space shall be approximately equal in size to Tenant's
Proportionate Operating Expense Share of the portion of the roof Landlord shall
allocate for all rooftop equipment.
(s) "Tenant hereby indemnities Landlord against liability" or
"Landlord hereby indemnifies Tenant against liability" and words of similar
import shall mean that Tenant or Landlord, as the case may be, hereby agrees to
and hereby does indemnify, hold and save all Landlord Parties (and Mortgagee
Parties and Superior Lessor Parties) or Tenant Parties, as the case may be,
harmless from and against any and all loss, cost, liability, claim, action,
proceeding, damage, fine, penalty and expense, including reasonable attorneys'
fees and disbursements incurred by any Landlord Party (or Mortgagee Party or
Superior Lessor Party) or Tenant Party, as the case may be, in the investigation
or defense of any claim, action or proceeding made or brought against such
Landlord Party (or Mortgagee party or Superior Lessor Party) or Tenant Party, as
the case may be, including any separate attorneys' fees and disbursement
incurred by such Landlord Party (or Mortgagee Party or Superior Lessor Party) or
Tenant Party, as the case may be, in any claim, action or proceeding being
resisted, defended or settled by Tenant or Landlord, as the case may be, as
hereinafter provided. Upon demand by the other party, Landlord or Tenant, as the
case may be, shall either resist, defend or satisfy such claim, action or
proceeding in such Landlord Party's (Mortgagee Party's or Superior Lessor
Party's) or Tenant
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Party's, as the case may be, name, by the attorneys for, or approved by, such
party's insurance carrier (if such claim, action or proceeding is covered by
insurance) or by such other attorneys as Landlord or Tenant, as the case may be,
shall approve, such approval not to be unreasonably withheld. All indemnity
provisions of this Lease shall survive the expiration or earlier termination of
this Lease.
(t) "Tenant Parties" shall mean Tenant and any subtenant and any
principal, partner, member, officer, stockholder, director, employee, agent,
contractor, licensee or invitee thereof; Tenant Party shall have the
corresponding singular meaning.
(u) "unreasonably withheld" (and grammatical variants thereof)
shall mean "unreasonably withheld, conditioned or delayed."
ARTICLE 37
PARKING GARAGE
37.1. (a) Landlord shall operate the underground parking garage in the
Building as a public garage, subject to Legal Requirements and Insurance
Requirements. Any parking by Tenant, its officers or employees in the garage
shall be limited to cars and minivans and shall be subject to such reasonable
rules and regulations as Landlord or Landlord's third-party garage operator
("Operator") shall adopt. Unless Landlord, any Affiliate of Landlord or any of
the Landlord Parties shall be the Operator, Landlord shall have no liability to
Tenant or any of the Tenant Parties for any loss or damage, including personal
injury or damage to personal property, which results, in any manner, from the
operation of the parking garage or Tenant's rental of parking space therein.
(b) Commencing on the Rent Commencement Date, Landlord shall
make available, or shall cause Operator to make available, up to five (5)
monthly parking permits, at no additional cost to Tenant or its Affiliates, for
use by Tenant's officers and employees at the Premises or the officers and
employees of Tenant's Affiliates at the Premises.
(c) On or before the one hundred twentieth (120/th/) day after
execution and delivery of this Lease by the parties and again sixty (60) days
before the Rent Commencement Date, Tenant shall notify Landlord of the number of
paid monthly parking permits which Tenant desires Landlord or the Operator to
make available for use by the officers and employees of Tenant and its
Affiliates at the Premises. If Tenant shall so notify Landlord, Operator shall
make available the number of paid parking permits requested on the Rent
Commencement Date or as soon as reasonably practicable thereafter.
(d) After the Rent Commencement Date, Tenant may from time to
time notify Landlord that it requires fewer or additional paid parking permits
and if Tenant shall so notify Landlord, Operator shall, subject to availability,
promptly make available the number of paid parking permits requested as soon as
reasonably practicable thereafter.
37.2. Tenant shall pay Landlord or Operator its posted rates for paid
monthly parking permits or such other rates as Landlord (or Operator) and Tenant
shall agree upon.
ARTICLE 38
COMMUNICATIONS EQUIPMENT AND ANTENNA
38.1. (a) Subject to and in accordance with the terms and provisions
of this Lease, Tenant shall have the right to install, maintain, operate,
repair, replace and remove satellite and microwave dishes and appurtenances
thereto as may be reasonably approved by Landlord (hereinafter collectively
referred to as the "Antenna") in Tenant's Designated Roof Space, the size and
location of which within Tenant's Designated Roof Space shall be subject to
Landlord's reasonable approval (provided that the location of the Antenna shall
not adversely affect the ability thereof to transmit or receive signals), and
run lines and conduits and cables (including, without limitation, lines to
supply electricity for operation of the Antenna from Tenant's dedicated
electrical equipment in the Building) between the Antenna and the Premises,
provided that (and in the event Tenant makes or causes to be made such
installation, Tenant hereby covenants and agrees that): (i) such installations
are performed in accordance with all Legal
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Requirements and in compliance with the terms of Article 15 of this Lease
relating to Tenant Changes; (ii) Tenant shall indemnify and hold Landlord
harmless from any liability, cost or expense (including reasonable attorneys'
fees and disbursements) connected therewith or arising therefrom of any nature
whatsoever; (iii) Tenant shall promptly repair any damage caused to the roof or
any other portion of the Building by reason of such installation including,
without limitation, any repairs, restorations, maintenance, renewals or
replacement of the roof necessitated by or in any way caused by or relating to
such installations; (iv) Tenant shall cooperate with Landlord to mitigate any
disturbance or interference with the use or intended use of any antenna or other
communications equipment by Landlord or any other tenant or occupant of the
Building caused by the installation or maintenance of the Antenna, including,
without limitation, by moving the Antenna to another location specified by
Landlord, at Landlord's sole cost and expense, provided that (A) the
transmission and reception of the Antenna, following such move, modification or
alteration, shall not be diminished and (B) any such move shall be done at a
time reasonably acceptable to Tenant and shall be done in a manner to avoid
material disruption to the operation of Tenant's business; (v) the Antenna shall
be deemed Special Initial Work or Special Tenant Changes, as the case may be,
for all purposes of this Lease; (vi) Tenant shall obtain any additional
insurance coverage with respect to such installations for the benefit of
Landlord in such amount and of such type as Landlord may reasonably require and
is customarily obtained for owners of office buildings in the City for similar
type installations; (vii) if Landlord's structural engineer shall reasonably
deem it advisable that there be structural reinforcement of the roof of the
Building in connection with any such installation because the load on the roof
exceeds forty (40) pounds per square foot, Landlord shall perform same at
Tenant's cost and expense and Tenant shall not perform any such installation
prior to the completion of any such structural reinforcement; (viii) the Antenna
shall be used only in connection with Tenant's, Tenant's Affiliates' and
Tenant's permitted occupants', assignees' and subtenants' normal business
activities, and (ix) Tenant shall not permit the Antenna to be used by or for
any third party other than Tenant's Affiliates and Tenant's permitted occupants
and subtenants.
(b) Tenant shall have reasonable access to the roof as may be
reasonably necessary in connection with the installation, maintenance,
operation, repair, replacement and removal of the Antenna and related risers,
conduits and cable, provided that Tenant shall give Landlord reasonable prior
notice of such access requirements. If any installation by Tenant or any
contractor or agent of Tenant referred to in this Article or act or omission
relating thereto should revoke, negate or in any manner impair or limit any roof
warranty or guaranty obtained by Landlord, then Tenant shall reimburse Landlord
for any loss or damage sustained or costs or expenses incurred by Landlord as a
result of such impairment or limitation to the extent caused by Tenant, any of
the Tenant Parties, any Affiliate of Tenant or any of Tenant's permitted
occupants or subtenants.
38.2. Subject to and in accordance with the terms of this Lease, upon
prior notice to Landlord, Tenant may substitute any antenna or communication
dish for its Antenna provided that such substituted antenna and communication
dish are substantially equivalent to or less than the size and scope of such
Antenna and meet with the reasonable rules, regulations and guidelines therefor
promulgated by Landlord, from time to time.
38.3. Subject to the terms and conditions of this Lease, to the extent
that Tenant is permitted hereunder to construct and operate (or cause to be
constructed and operated) an antenna, a facility or any other item of equipment
for the purpose of transmitting telecommunication signals to satellites (a
"Facility"), Tenant shall comply with the requirements set forth in this Section
38.3 and shall cause provisions substantially in accordance with the following
to be included in subleases permitted hereunder:
(a) To the extent required by applicable law or by the City
under the Ground Lease, Tenant or any subtenant to whom this Section applies
(collectively, the "Facility Operators") will, before constructing and/or
installing a Facility (or having same constructed or installed), do the
following:
(i) devise a program for monitoring electromagnetic radiation
levels on and in the vicinity of the Building (the "Program");
(ii) select a firm to carry out the Program (the "Monitor"); and
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(iii) obtain through the Bureau of Radiation Control of the New
York City Department of Health (the "Bureau"), the City's approval of both the
Program and the Monitor.
(b) Monitoring electromagnetic radiation levels under a
Program will commence when the Facility covered by such Program begins to
transmit telecommunication signals, through its antenna, or whenever the antenna
is reactivated after being shut down for repair, or whenever a substitute
antenna (or substitute Facility) starts operation after replacing the old
equipment.
(c) While Programs are in operation, the Facility Operators
shall do the following:
(i) submit to the Bureau all reports (the writing and
submission of which must occur no less frequently than twice (or such greater
number as may be required by applicable law or by the City under the Ground
Lease) per calendar year) as produced by the Monitor with regard to the results
of monitoring electromagnetic radiation levels under the Program;
(ii) substitute the City as Monitor if and when the City
develops its own capability to monitor electromagnetic radiation;
(iii) pay for all costs and expenses incurred by the City as a
Monitor if and when the City becomes same; and
(iv) insure that the Program occur at locations in the
Premises which are accessible to the general public.
(d) If and when the Monitor finds the level of
electromagnetic radiation produced at the Building, as measured at one or more
locations generally or readily accessible to the general public, exceeds either
fifty (50) microwatts per square centimeter or any maximum permissible standard
hereinafter adopted by the City, the relevant Facility Operator or Operators
will take whatever steps are necessary to reduce the level of electromagnetic
radiation produced at the relevant locations to a power density below the
applicable level.
ARTICLE 39
EXTENSION OF TERM
39.1. (a) Tenant shall have the right to extend the Term of this
Lease for two (2) successive additional ten (10 year periods (each, an
"Extension Term"), the first ending on the tenth (10th) anniversary of the
Expiration Date of the initial Term of this Lease (the "First Extension Term"
and the second ending on the twentieth (20th) anniversary of the Expiration
Date of the initial Term of this Lease (the "Second Extension Term"), both upon
the same terms and conditions as provided in this Lease for the initial Term,
except that the Fixed Rent, Tenant's Proportionate Tax Share, Tenants'
Proportionate Operating Expense Share and certain other provisions shall be
adjusted as provided in Sections 39.2. The rights to extend the Term may be
exercised with respect to (A) the entire Premises, or (B) less than the entire
Premises provided that (i) such extension shall be for one (1) or more
contiguous full floors (the "First Extension Floor(s)"), (ii) Tenant shall only
have the right to exercise the Second Extension Term with respect to one (1) or
more contiguous full floors (the "Second Extension Floor(s)") which were the
subject of the First Extension Term, and (iii) with respect to any portion of
the Premises for which the Term is not extended as aforesaid, this Lease shall
terminate on the expiration of the initial Term or the First Extension Term, as
the case may be, and all provisions hereof with respect to the termination of
this Lease and the expiration of the Term shall apply thereto, including any
restoration requirements with respect to such space.
(b) The right to extend the Term is subject to the following:
(i) With respect to the First Extension Term, Tenant shall
give Landlord notice (the "First Extension Notice") of its election to extend
the Term at least eighteen (18) months prior to the Expiration Date of the
initial Term of this Lease, which notice shall specify whether Tenant has
elected to extend the Term with respect to the entire Premises or for the First
Extension Floor(s);
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(ii) With respect to the Second Extension Term, Tenant shall
give Landlord notice (the "Second Extension Notice") of its election to extend
the Term at least eighteen (18) months prior to the Expiration Date of the
First Extension Term of this Lease, which notice shall specify whether Tenant
has elected to extend the Term with respect to the entire then Premises or the
Second Extension Floor(s);
(iii) This Lease shall be in full force and effect as of the
time of the giving of either the First Extension Notice or the Second Extension
Notice; and
(iv) Tenant and its Affiliates (and corporate successors and
assigns permitted in accordance with Section 7.1) shall be in actual occupancy
of not less than fifty percent (50%) of the Premises (or if Tenant desires to
exercise the right to extend with respect to the Extension Floor(s), fifty
percent (50%) of the Extension Floor(s)) as of the time of the giving of the
First Extension Notice or the Second Extension Notice, as the case may be, and
as of the commencement of the Extension Term; or if Tenant and its Affiliates
(and corporate successors and assigns permitted in accordance with Section 7.1)
shall not be in actual occupancy of at least fifty percent (50%) of the Premises
(or the Extension Floor(s)) as of the time of the giving of the First Extension
Notice or the Second Extension Notice, as the case may be, the chief operating
officer of Tenant shall certify to Landlord that Tenant and its Affiliates (and
corporate successors and assigns permitted in accordance with Section 7.1)
shall, upon the commencement of the Extension Term, occupy at least fifty
percent (50%) of the Premises (or the Extension Floor(s)).
39.2. (a) The Fixed Rent payable by Tenant to Landlord during the
First Extension Term shall be the fair market rent per rentable square foot for
the Premises or the Extension Floor(s) determined as of the date six (6) months
prior to the commencement of the First Extension Term but in no event less than
the Rent per rentable square foot payable under this Lease on the Expiration
Date.
(b) The Fixed Rent payable by Tenant to Landlord during the
Second Extension Term shall be the fair market rent per rentable square foot for
the Premises or the Expansion Floor(s) determined as of the date six (6) months
prior to the commencement of the Second Extension Term but in no event less than
the Rent per rentable square foot payable under this Lease on the Expiration
Date of the First Extension Term.
(c) The "fair market rent" shall mean the going rate of fixed
annual rent for comparable office space giving due consideration to (i)
location, size and the interior construction and fittings in the Premises, (ii)
the Base Tax Year and Base Year Taxes and the Base Year Operating Expenses,
(iii) the fact that Landlord shall not be obligated to perform any work to
prepare the Premises for Tenant's occupancy, (iv) the fact that Tenant shall not
be entitled to any work allowance or credit against the Fixed Rent in lieu
thereof, (v) the absence of so-called "down time," and (vi) any other relevant
factors which would be taken into account in leasing the Premises or the
Extension Floor(s) to a third party in an arm's length transaction, including,
without limitation, brokerage commissions. Landlord and Tenant shall in good
faith attempt to arrive at an agreement as to the fair market rent as soon as
possible after Tenant gives the First Extension Notice or the Second Extension
Notice, as the case may be. In the event that the fair market rent has not been
agreed upon by Landlord and Tenant six (6) months prior to the commencement of
the relevant Extension Term, then upon the written request of either Landlord or
Tenant, the determination shall be submitted to arbitration in accordance with
the provisions of Section 35.2 hereof. In the event that such arbitration shall
not have been finally determined prior to the commencement of the Extension
Term, Tenant shall pay Landlord's proposed Fixed Rent for the Extension Term
until such determination is made. If the Fixed Rent determined to be payable
shall be less than that paid by Tenant prior to the final determination of such
arbitration, at Tenant's election Landlord shall within thirty (30) days after
such final determination either pay to Tenant the amount of the excess plus
interest on the disputed amount at the Interest Rate or credit the same against
the next installment of Fixed Rent.
(d) If Tenant exercises its right to extend the Term for less
than the entire Premises, Tenant's Proportionate Tax Share and Tenants'
Proportionate Operating Expense Share shall be correspondingly revised (i.e., to
a percentage represented by a fraction having a numerator equal to the rentable
square footage of the portion of the Premises for which the Term is being
extended and a denominator equal to the total rentable square footage of the
Building or the number of rentable square feet of office space contained in the
Building, as the case may be), and Landlord shall have the right to
proportionately reduce the size of Tenant's Designated Roof
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Space, provided that Landlord shall us its good faith efforts to minimize the
disruption of Tenant's then current use of Tenant's Designated Roof Space in
connection with such reduction.
39.3. If this Lease is extended for one or both Extension Terms,
Landlord or Tenant may request that the other party hereto execute a certificate
in form reasonably satisfactory to the parties setting forth the exercise of
Tenant's right to extend the term of this Lease, the last day of such Extension
Tenn and the Fixed Rent payable during such Extension Term.
If Tenant exercises its right to extend the Term for an Extension Term
pursuant to this Article 39, the phrases "Term," "term of this Lease" or as used
in this Lease, shall be construed to include, when practicable, the applicable
Extension Term.
ARTICLE 40
EARLY EXPANSION RIGHTS AND REDUCTION RIGHTS; EXPANSION OPTIONS
40.1. (a) Through and including the ninetieth (90/th/) day following
the Commencement of Construction of the Building, Tenant shall have a one-time
right to increase the size of the Premises to include (subject to availability)
the entire tenth (10/th/) floor of the Building or the entire tenth (10/th/)
and eleventh (11/th/) floors of the Building by written notice to Landlord
exercising such right and designating the floor(s) Tenant intends to add to the
Premises (the "Early Expansion Notice"). If timely delivered, the Early
Expansion Notice shall be deemed irrevocable (except to the extent expressly
provided to the contrary in this Article) and the floor(s) referenced in the
Early Expansion Notice shall be included in the Premises. If Tenant shall fail
timely to send the Early Expansion Notice, Tenant shall be deemed to have
irrevocably, waived the early expansion right set forth in this Section 40.1
(a). If Tenant shall timely exercise the early expansion right as aforesaid (the
subject floor(s) hereinafter referred to as the "Early Expansion Space"), then:
(i) Landlord hereby leases to Tenant and Tenant hereby rents
from Landlord the Early Expansion Space;
(ii) all references in this Lease to the "Premises" shall be
deemed to include the Early Expansion Space and the total rentable square
footage of the Premises shall be increased accordingly (for purposes of this
Article 40, the parties agree that the entire tenth (10/th/) floor is deemed to
consist of 35,143 rentable square feet and the entire eleventh (11/th/) floor is
deemed to consist of 35,143 rentable square feet);
(iii) Fixed Rent shall be increased by an amount equal to the
product of (x) the rentable square footage of the Early Expansion Space and (y)
the Fixed Rent per rentable square foot provided in Section 1.3(a) hereof;
(iv) Tenant's Proportionate Tax Share and Tenants'
Proportionate Operating Expense Share shall be correspondingly increased (i.e.,
by a percentage represented by a fraction having a numerator equal to the
rentable square footage of the Early Expansion Space and a denominator equal to
the total rentable square footage of the Building or the number of rentable
square feet of office space contained in the Building, as the case may be);
(v) Tenant's Initial Work Allowance (other than the Rentalized
Amount) shall be increased by an amount equal to the product of (i) Thirty-Five
Dollars ($35.00) per rentable square foot and (ii) the total rentable square
footage of the Early Expansion Space;
(vi) Tenant shall have the right to elect in the Early
Expansion Notice to proportionately increase the size of Tenant's Designated
Roof Space; and
(vii) all of the terms, provisions and conditions of this Lease
(including Article 39 hereof) shall apply to the Early Expansion Space with the
same force and effect as if it were initially leased to Tenant as part of the
initial space demised hereunder and the access rights granted under Section
10.1(a)(i) shall be deemed extended to the Early Expansion Rights.
(b) Unless Tenant shall have previously exercised the early
expansion right pursuant to Section 40.1(a), then through and including the
ninetieth (90/th/) day following the Commencement of Construction of the
Building, Tenant shall have a one-time right to reduce the size of the Premises
to exclude (i) the entire ninth (9/th/) floor of the Building or (ii) the entire
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eighth (8/th/) and ninth (9/th/) floors of the Building, by irrevocable, written
notice to Landlord exercising such right and indicating the floor(s) Tenant
intends to excluded from the Premises (the "Reduction Notice"). If Tenant shall
fail to timely send the Reduction Notice, Tenant shall be deemed to have
irrevocably waived the early reduction right set forth in this Section 40.1(b).
If Tenant shall timely exercise the early reduction right as aforesaid (the
subject floor(s) hereinafter referred to as the "Reduction Space"), then:
(i) all references in this Lease to the "Premises" shall be
deemed to exclude the Reduction Space and the total rentable square footage of
the Premises shall be decreased accordingly;
(ii) Fixed Rent shall be decreased by an amount equal to the
product of (x) the rentable square footage of the Reduction Space and (y) the
Fixed Rent per rentable square foot provided in Section 1.3(a) hereof;
(iii) Tenant's Proportionate Tax Share and Tenant's Proportionate
Operating Expense Share shall be correspondingly decreased (i.e., by a
percentage represented by a fraction having a numerator equal to the rentable
square footage of the Reduction Space and a denominator equal to the total
rentable square footage of the Building or the number of rentable square feet of
office space contained in the Building, as the case may be);
(iv) The Base Allowance shall be decreased by (A) with respect
to the Thirty-Five Dollars ($35.00) per rentable square foot referenced in
Section 16.20(b), an amount equal to the product of (i) Thirty-Five Dollars
($35.00) per rentable square foot and (ii) the total rentable square footage of
the Early Reduction Space and (B) with respect to the Eight Hundred Eighty-Nine
Thousand One Hundred Twenty Three Dollars ($889,123.00) referenced in Section
16.20(b), an amount equal the product of (i) $899,123.00 and (ii) the ratio of
the total rentable square footage of the Early Reduction Space to the total
rentable square footage of the Premises prior to any such reduction; and
(v) Landlord shall have the right to proportionately reduce the
size of Tenant's Designated Roof Space.
40.2. (a) If Tenant has not previously leased the tenth (10/th/) and
eleventh (11/th/) floors pursuant to Section 40.1(a) and provided Tenant shall
not then be in default of any of its material obligations under this Lease
(after the giving of any required notice and the expiration of any applicable
cure period), Tenant shall have the option (the "Year Five Expansion Option")
pursuant to the terms and conditions of this Section 42.2, to lease one (1)
entire floor of the Building contiguous with the Premises (the "Year Five
Expansion Space") by giving irrevocable notice to Landlord at least twelve (12)
months prior to the fifth (5/th/) anniversary of the Rent Commencement Date. If
Tenant shall timely exercise the Year Five Expansion Option, the term hereof
with respect to the Year Five Expansion Space shall commence on the later to
occur of (i) the fifth (5/th/) anniversary of the Rent Commencement Date and
(ii) the date on which Landlord delivers vacant possession of the entire Year
Five Expansion Space to Tenant (such later date, the "Year Five Expansion Space
Commencement Date") and shall end on the Expiration Date. If Tenant shall fail
timely to exercise the Year Five Expansion Option, (x) Tenant shall be deemed to
have irrevocably waived the Year Five Expansion Option, (y) Landlord shall be
free to lease the Year Five Expansion Space to any third party at any rental
rate and upon any terms determined by Landlord, and (z) subject to Section
40.2(b), the Year Five Expansion Space shall be unencumbered by the provisions
of this Article, and Landlord shall be under no further obligation to offer the
space to Tenant, except as expressly provided in Article 41 hereof.
(b) If Tenant shall not have leased the tenth (10/th/) and
(11/th/) floors pursuant to Section 40.1(a) and/or Section 40.2(a), and provided
Tenant shall not then be in default of any of its material obligations under
this Lease (after the giving of any required notice and the expiration of any
applicable cure period), Tenant shall have the option (the "Year Ten Expansion
Option"), pursuant to the terms and conditions of this Section 40.2, to lease
one (1) entire floor of the Building contiguous with the Premises (the "Year Ten
Expansion Space") by giving irrevocable notice to Landlord at least twelve (12)
months prior to the tenth (10/th/) anniversary of the Rent Commencement Date. If
Tenant shall timely exercise the Year Ten Expansion Option, the term hereof with
respect to the Year Ten Expansion Space shall commence on the later to occur of
(i) the tenth (l0/th/) anniversary of the Rent Commencement Date and (ii) the
date on which Landlord delivers vacant possession of the entire Year Ten
Expansion Space to Tenant
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(such later date, the "Year Ten Expansion Space Commencement Date") and shall
end on the Expiration Date. If Tenant shall fail timely to exercise the Year Ten
Expansion Option, (x) Tenant shall be deemed to have irrevocably waived the Year
Ten Expansion Option, (y) Landlord shall be free to lease the Year Ten Expansion
Space to any third party at any rental rate and upon any terms determined by
Landlord, and (z) the Year Ten Expansion Space shall be unencumbered by the
provisions of this Article and Landlord shall be under no further obligation to
offer the space to Tenant, except as expressly provided in Article 41 hereof.
(c) If (i) Tenant shall exercise the Year Five Expansion
Option, then effective as of the Year Five Expansion Space Commencement Date
and/or (ii) if Tenant shall exercise the Year Ten Expansion Option, then
effective as of Year Ten Expansion Space Commencement Date, the following
conditions shall apply to the Year Five Expansion Space and/or the Year Ten
Expansion Space, as the case may be (the applicable expansion space, given the
context, the "Expansion Space"):
(i) Landlord hereby leases to Tenant and Tenant hereby rents
from Landlord the Expansion Space, and the total rentable square footage of the
Premises shall be increased accordingly;
(ii) all references in this Lease to the "Premises" shall be
deemed to include the Expansion Space;
(iii) the Fixed Rent hereunder shall be increased by an amount
equal to the fair market value of the Expansion Space, as determined in Section
39.2(c) hereof, but in no event less than the Rent per rentable square foot then
payable by Tenant under this Lease;
(iv) Tenant's Proportionate Tax Share and Tenant's Operating
Expense Proportionate Share shall be correspondingly increased (i.e., by a
percentage represented by a fraction having a numerator equal to the rentable
square footage of the Expansion Space and a denominator equal to the total
rentable square footage of the Building or the number of rentable square feet of
office space contained in the Building, as the case may be);
(v) Tenant shall have the right to elect in Tenant's expansion
election notice to prcportionately increase the size of Tenant's Designated Roof
Space.
(vi) Tenant agrees to accept such Expansion Space in its "as is"
condition in all respects as of the Year Five Expansion Space Commencement Date
or Year Ten Expansion Space Commencement Date, as applicable, provided Landlord
delivers the same broom clean, "as is" and in the surrender condition required
by the lease of the vacating tenant;
(vii) except as expressly provided in this Section 40.2, all of
the terms, provisions and conditions of this Lease (including Article 39 hereof
and the Tax Base Year and Base Year Operating Expenses, as applicable and as
specified in Article 3) shall apply to the Expansion Space with the same force
and effect as if it were initially leased to Tenant as part of the initial
Premises demised hereunder, except that nothing contained in this Section
40.2(c)(vii) is intended to impute any retroactive liability on Tenant for the
Year Five Expansion Option or the Year Ten Expansion Option, as the case may be,
prior to the Year Five Expansion Space Commencement Date or the Year Ten
Expansion Space Commencement Date, respectively;
(d) if Landlord shall be prevented from-delivering possession
to Tenant of any or all of the Year Five Expansion Space on the Year Five
Expansion Space Commencement Date or any or all of the Year Ten Expansion Space
on the Year Ten Expansion Space Commencement Date due to the holdover or
retention of possession of any tenant thereof or subtenant, successor or
assignee of such tenant, Landlord shall not be subject to any liability
for failure to give possession of such Expansion Space to Tenant, the validity
of this Lease shall not be impaired thereby, and Tenant shall take possession of
such Expansion Space if, as and when vacant possession of the entire Expansion
Space at issue is delivered to Tenant, provided, however, that if possession of
such space is not delivered to Tenant within six (6) months after the fifth
(5/th/) anniversary of the Rent Commencement Date with respect to the Year Five
Expansion Option or the tenth (l0/th/) anniversary of the Rent Commencement Date
with respect to the Year Ten Expansion Option, as the case may be, Tenant shall
have the right to revoke its exercise of the Year Five Expansion option or the
Year Ten Expansion option, respectively, on
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thirty (30) days' prior notice to Landlord unless possession is delivered prior
to the expiration of such thirty (30) day period.
40.3. If on the commencement date of the term of any such Expansion Space,
Tenant shall be in default in the performance of any of the terms, conditions or
provisions of this Lease (after receipt of any required notice and the
expiration of any applicable cure period), Tenant's exercise of such option and
the expansion or reduction of space hereby contemplated shall, at the option of
Landlord exercised by written notice to Tenant, be rendered null and void and
shall be of no further force or effect, and Tenant shall have no further
additional right to exercise said option.
40.4. If Tenant exercises any option provided for in this Article 40,
then, at Landlord's request after (a) with respect to Section 40.1(a), the later
to occur of delivery of the Early Expansion Notice, (b) with respect to Section
40.1(b), delivery of the Reduction Notice and (c) with respect to Section 40.3,
the Year Five Expansion Space Commencement Date or the Year Ten Expansion Space
Commencement Date, as applicable, Tenant agrees to execute, acknowledge and
deliver to Landlord within ten (10) days of Landlord's request an instrument in
form and substance reasonably acceptable to Landlord confirming (i) the Fixed
Rent payable under this Lease, (ii) the leasing or reduction of the space that
is the subject of the option and (iii) any other modifications provided for in
this Article 40, but no such instrument shall be required in order to make the
provisions hereof effective.
ARTICLE 41
RIGHT OF FIRST OFFER
41.1. If at any time during the Term after the initial leasing of all of
the space in the Building, any space in the Building has become, or Landlord
anticipates will become, available for leasing (such space that becomes
available being referred to as the "Offering Space"), then Landlord, before
offering such space to any other party, shall offer to Tenant the right (the
"ROFO") to lease such Offering Space on the terms and conditions hereinafter
provided (but exclusive of any rent abatements, tenant work allowances or work
to be performed by Landlord to prepare the Offering Space for occupancy, except
as may specifically be provided in this Article 41) and such additional terms
and conditions as are hereinafter set forth. Such right shall be offered to
Tenant at least nine (9) months prior to the date the existing lease for such
space is scheduled to expire (or, if such lease is terminated prior to its
scheduled expiration date, then as soon as reasonably practicable in the
circumstances).
41.2. Any offer pursuant to this Article 41 shall be made by Landlord to
Tenant in a written notice (hereinafter called the "Offering Space Notice")
which offer shall set forth, inter alia (a) the Offering Space being offered,(b)
the Fixed Rent per rentable square foot for the Offering Space, which shall be
the fixed annual rent at which such space would be offered to third parties (as
adjusted to reflect any rent or tenant improvement allowance concessions
Landlord would offer to any such third party or work which would be performed by
Landlord for such third party unless Landlord elects to give such concession(s)
or work to Tenant) multiplied by the number of rentable square feet of the
Offering Space, (c) the number of rentable square feet of, and Tenant's
Proportionate Tax Share and Tenant's Proportionate Operating Expense Share with
respect to, the Offering Space, and (d) the date on which Landlord anticipates
that the Offering Space will become available for delivery to Tenant in the
condition specified below in this Section 41.2. Tenant may accept the offer set
forth in the Offering Space Notice by delivering to Landlord an unconditional
acceptance (hereinafter called "Tenant's Acceptance Notice") of such offer
within thirty (30) days after delivery by Landlord of the Offering Space Notice
to Tenant. Tenant may only accept the offer as to the entire Offering Space
described in the Offering Space Notice. If Tenant exercises the right to lease
the Offering Space as aforesaid, Tenant shall accept the Offering Space offered
to Tenant vacant, broom clean, "as is" and in the surrender condition required
by the lease of the vacating tenant, on the Offering Space Inclusion Date
(defined below), and Tenant agrees that Landlord shall not be required to make
any improvements therein to prepare the Offering Space for Tenant's occupancy.
41.3. If Tenant shall duly deliver to Landlord a Tenant's Acceptance
Notice in accordance with this Article 41, then Tenant shall conclusively and
irrevocably be deemed to have accepted Landlord's offer and this Lease shall
automatically and without any further act by either party be deemed amended as
of the later to occur of (i) the date set forth in the Offering
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Space Notice or (ii) the date that such Offering Space is available for Tenant's
possession in the condition in which such space is required to be delivered in
accordance with this Article 41 (as the case may be, the "Offering Space
Inclusion Date") to reflect that:
(a) Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord the Offering Space, and the total rentable square footage of the
Premises shall be increased by the amount set forth in the Offering Space
Notice;
(b) all references in this Lease to the "Premises" shall be
deemed to include the Offering Space;
(c) the Fixed Rent hereunder shall be increased by the amount set
forth for the same in the Offering Notice;
(d) Tenant's Proportionate Tax Share and Tenant's Proportionate
Operating Expense Share shall be correspondingly increased by the respective
amounts for the same set forth in the Offering Notice;
(e) Tenant shall have the right to elect in Tenant's Acceptance
to proportionately increase the size of Tenant's Designated Roof Space; and
(f) all of the terms, provisions and conditions of this Lease
(including Article 39 hereof and the Base Tax Year, Base Year Taxes and Base
Year Operating Expenses, as applicable and as set forth in Article 3) shall
apply to the Offering Space with the same force and effect as if it were
initially leased to Tenant as part of the initial space demised hereunder,
except that nothing contained in this Section 41.3(e) is intended to impute any
retroactive liability on Tenant for the Offering Space prior to the Offering
Space Inclusion Date.
In confirmation of the exercise of the ROFO, Landlord may request that
Tenant execute, acknowledge and deliver, and the Tenant shall so exercise,
acknowledge and deliver, an instrument in form acceptable to Landlord confirming
the exercise of the ROFO and the terms specific to the Offering Space; however,
no such documentation shall be necessary to effectuate the self-operative
amendments to the Lease provided above.
41.4. If Tenant does not deliver (or fails timely to deliver) a
Tenant's Acceptance Notice within the thirty (30) day period described in
Section 41.2, then Tenant shall have automatically, completely and irrevocably,
without any further act by any party, waived its rights under this Article 41
with respect to the leasing of the Offering Space described in the Offering
Space Notice and Landlord shall at any and all times thereafter be entitled to
lease such Offering Space to others at such rentals and upon such terms and
conditions as Landlord in its sole and absolute discretion may desire, whether
such rental terms, provisions and conditions are the same as those offered to
Tenant or more or less favorable, provided, however, that (i) before Landlord
may lease such Offering Space to any proposed tenant for a rental which (taking
into account any rent or tenant improvement allowance concessions offered to
such proposed tenant and any work which would be performed by Landlord for such
proposed tenant, unless Landlord shall have offered such concession(s) or work
to Tenant) shall be more than seven and one half percent (7.5%) less than the
rental set forth in the Offering Space Notice with respect to such Offering
Space, or (ii) if Landlord does not consummate a lease for the Offering Space
with a third party within six (6) months from the date of Tenant's waiver (or
deemed waiver) of its rights to lease the Offering Space, as aforesaid, then, in
either case, Landlord shall again offer the Offering Space to Tenant in
accordance with the provisions of this Article 41 on the basis of the then
applicable terms.
41.5. The provisions of this Article 41 shall be effective only if,
upon (i) the date the Offering Space becomes available for leasing, (ii) the
date of the Tenant's Acceptance Notice and (iii) the date the Offering Space
becomes available for possession (a) the named Tenant and its Affiliates or
permitted successor corporation permitted pursuant to Section 7.1 is in actual
physical occupancy and possession of an amount of space equal to at least fifty
percent (50%) of the Premises previously delivered by Landlord to Tenant, and
(b) no Event of Default shall have occurred and be continuing. The rights
described in this Article 41 are personal to Empire HealthChoice, Inc. d/b/a
Empire Blue Cross Blue Shield and/or any Affiliate of Tenant and/or any
successor-in-interest to Tenant by assignment or subletting pursuant to Section
7.1(b), and no other person or entity shall be entitled to exercise any right
granted by this Article 41.
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(a) The parties hereto acknowledge that the Offering Space is
currently and/or may be in the future occupied by another tenant and/or
subtenants and that Landlord shall not deliver to Tenant the Offering Space
until such tenant and/or subtenants have vacated and surrendered the Offering
Space to Landlord. If Landlord is unable to give possession of the Offering
Space to Tenant because of the holding-over or retention of possession of such
tenant and/or subtenants, or any other undertenant or other occupant of the
Offering Space, or for any other reason, Landlord shall not be subject to any
claims or damages of any kind or nature whatsoever for failure to give
possession, and the validity of this Lease shall not be impaired in any manner
under such circumstances, Tenant hereby waiving all rights under Section 223-a
of the Real Property Law of New York or any successor or similar statute with
respect thereto. If Landlord has not delivered possession of the Offering Space
to Tenant within six (6) months of the date set forth in the Offering Space
Notice for such, Tenant shall have the right to revoke its exercise of the ROFO
on thirty (30) days' prior notice to Landlord unless possession is delivered
prior to the expiration of such thirty (30) day period.
ARTICLE 42
MISCELLANEOUS PROVISIONS
42.1. In no event shall Tenant pay Landlord any sums on account of the
Fixed Rent for more than one (1) month in advance.
42.2. In the event that an excavation should be made for building or
other purposes upon land adjacent to the Building, or should be authorized to be
made, Tenant shall, subject to the provisions of Article 10 of this Lease, if
necessary, afford to the person or persons causing or authorized to cause such
excavation, license to enter upon the Premises for the purpose of doing such
work as shall reasonably be necessary to protect or preserve the wall or walls
of the Building, or the Building, from injury or damage and to support them by
proper foundations, pinning and/or underpinning.
42.3. From time to time during the Term, but not more than once in any
calendar year, upon ten (10) days prior request by Landlord, Tenant shall
accurately complete a report on a form provided by Landlord which requests the
following type of information with respect to Tenant's employment practices
within the Premises: number of full-time and part-time employees, number of
existing employees relocated to the Premises, number of new employees hired
after relocation to the Premises, number of minority employees and approximate
salary categorization of employees. The requirements of this Section 42.3 shall
be deemed to apply to any assignee of Tenant's interest herein and to any
sublessee of Tenant's interest in the Premises.
42.4. Tenant hereby pledges that it will not, during the Term of this
Lease, intentionally fail to hire any otherwise qualified applicant for
employment, or intentionally discriminate against any otherwise qualified
employee with respect to compensation or other terms, conditions and privileges
or employment at the Premises, solely on the basis of said individual's race,
creed, color, national origin, sex, age, marital status, sexual orientation or
physical handicap (provided such physically handicapped individual can satisfy
the essential requisites of the job or benefit in question). This pledge is made
on the express conditions that (a) any breach hereof shall not constitute a
default under the Lease and that the Landlord shall have no redress against
Tenant for breach of this pledge, (b) by virtue of Tenant's breach hereof, no
party shall have any additional claim, right or remedy against Tenant by virtue
of the execution of this pledge, nor shall Tenant have any greater liability to
any party other than that which exists under otherwise applicable Legal
Requirements, and (c) the agreements continued in this pledge extend only to
Landlord and no other person shall be deemed a third-party beneficiary thereof.
42.5. Any floor plans or space diagrams annexed to this Lease by
Landlord to show the area of the Premises are approximations only. Without
limiting Landlord's obligation to deliver a certification to Tenant pursuant to
Section 13.3, Landlord makes no representations concerning the illustrated
dimensions of the leased space or the location and size of the fixed
architectural elements shown on such plans or diagrams.
42.6. Tenant expressly acknowledges and agrees that Landlord and its
agents have not made and are not making, and Tenant, in executing and delivering
this Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease or in any other written agreement which may be made
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between the parties concurrently with the execution and delivery of this Lease
and which expressly refers to this Lease.
42.7. This Lease shall be governed in all respects by the laws of the
State of New York.
42.8. If any term or provision of this Lease or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and be enforced to the full extent permitted by law.
42.9. This Lease shall not be recorded. Either party shall, upon
request of the other, execute and deliver a statutory form of memorandum (for
the purpose of recording) of (a) this Lease, (b) any amendment to this Lease,(c)
any supplemental agreement pursuant to this Lease, and (d) any other documents
required in order to record such memoranda, but said memorandum of this Lease or
of any amendment to this Lease or of any supplemental agreement shall not in any
circumstances be deemed to modify or to change any of the provisions of this
Lease, any amendment thereto or any supplemental agreement.
42.10. (a) Tenant shall, for itself, its subtenants, and any assignee,
report to Landlord, for each calendar year included in whole or in part in the
period ending on the fifth (5th) anniversary of the commencement of this Lease,
by February 1 of the following year, the gross number of jobs at the Premises at
the end of the prior calendar year and the number of employees at such Premises
who were New York City residents and to submit to Landlord Form IA-5 (Employer's
Report of Unemployment Insurance Contributions). Except to the extent
contemplated in this Lease or otherwise in any document or instrument affecting
the Real Property, the Building or the Project of required by law, Landlord
shall use its best efforts to avoid disclosing, making known, divulging,
disseminating or communicating any of the information reported to Landlord on a
Landlord Form IA-5 without the express written consent of Tenant.
(b) Tenant shall meet with the New York City Economic Development
Corporation or its successors ("EDC"), within ninety (90) days after EDC's
written request (which request shall not be made more often than once each
calendar year and shall be sent by certified or registered mail to the Tenant's
address as supplied to EDC by Landlord) on a date mutually agreeable to EDC and
Tenant, for the purpose of permitting EDC to deliver a presentation to Tenant
regarding EDC's City-wide or project specific employment programs. The agreement
of any tenant of the Building to meet with EDC as aforesaid shall not imply any
obligation of such tenant to take any action concerning such programs. The
failure by Tenant to provide such report or to meet with EDC shall not be a
default under this Lease, but Landlord reserves its right to seek specific
performance by Tenant of its obligations to submit its annual employment report
or to meet with EDC.
42.11. The table of contents, captions, headings and titles in this
Lease are solely for convenience of references and shall not affect is
interpretation. This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted. Each covenant, agreement, obligation or other provision of this Lease
on Tenant's part to be performed shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease shall be deemed to include any
other number and any other gender as the context may require.
42.12. The effectiveness of this Lease shall be conditioned upon the
execution, delivery and effectiveness of the Ground Lease and shall be subject
to the terms and conditions of the Ground Lease as if each such term and
condition were recited in full in this Lease.
ARTICLE 43
LETTER OF CREDIT
43.1. On or before the date which is ten (10) days after this Lease is
executed and delivered by the parties (i.e., released from escrow), Tenant shall
deliver to Landlord and shall thereafter, except as otherwise provided herein,
maintain in effect at all times during the Term, a
-96-
clean, stand-by, irrevocable letter of credit substantially in the form attached
hereto as Exhibit C, in the amount equal to (x) the Rentalized Amount minus (y)
Ten Million Dollars ($l0,000,000) (unless Tenant shall have elected to have the
Rentalized Amount be less than or equal to Ten Million Dollars ($l0,000,000),
issued by a banking corporation having assets of at least One Billion
($1,000,000,000.00) Dollars satisfactory to Landlord and having its principal
place of business or its duly licensed branch or agency in the City of New York,
and, if the issuing bank is not a member of the New York Clearing House
Association, confirmed by Citibank, N.A. or another bank reasonably satisfactory
to Landlord which is a member of the New York Clearing House Association, which
letter of credit may be presented for payment in the City of New York. Such
letter of credit shall have an expiration date no earlier than the first
anniversary of the date of issuance thereof and shall be automatically renewed
from year to year unless terminated by the issuer thereof by notice to Landlord
given by certified or registered mail, return receipt requested not less than
thirty (30) days prior to the expiration thereof. Except as otherwise provided
in this Article 43, Tenant shall, throughout the Term deliver to Landlord, in
the event of the termination of any such letter of credit, replacement letters
of credit acceptable to Landlord in lieu thereof (each such letter of credit and
each such extension or replacement thereof, as the case may be, is hereinafter
referred to as a "Letter of Credit") no later than thirty (30) days prior to the
expiration date of the preceding Letter of Credit. The term of each such Letter
of Credit shall be not less than one (1) year and shall be automatically
renewable from year to year as aforesaid. If Tenant shall fail to obtain any
replacements of a Letter of Credit within the time limits set forth in this
Section 43.1, Landlord may draw down the full amount of the existing Letter of
Credit and apply the proceeds to repayment to Landlord's lender of the then
outstanding balance of the Rentalized Amount, plus any breakage fees thereby
incurred by Landlord.
43.2. In the event Tenant defaults in payment pursuant to Section
1.3(a)(iv) of the Rentalized Amount beyond any applicable notice and grace
period, Landlord may draw down the full amount of the existing Letter of Credit
and may apply the proceeds to repayment to Landlord's lender of the of the then
outstanding balance of the Rentalized Amount, plus any breakage fees thereby
incurred by Landlord. To insure that Landlord may use the proceeds of the
Letter of Credit in the manner, for the purposes, and to the extent provided in
this Article 43, each Letter of Credit shall provide that the full amount
thereof may be drawn down by Landlord upon presentation to the issuing or
confirming bank of Landlord's sight draft drawn on the issuing bank.
43.3. If Tenant shall fully and faithfully comply with all of Tenant's
covenants and obligations under this Lease, the Letter of Credit or any portion
thereof the proceeds of which shall not have been applied pursuant to this
Article 43 shall be returned to Tenant within thirty (30) days after the
Expiration Date. In the event of any sale, transfer or leasing of Landlord's
interest in the Building, Landlord shall have the right to transfer any interest
it may have in the Letter of Credit, to the vendee, transferee or lessee and
Landlord shall thereupon be released by Tenant from all liability for the return
thereof, and Tenant shall look solely to the new landlord for return of same.
The provisions of the preceding sentence shall apply to every sale, transfer or
leasing of the Building, and any successor of Landlord may, upon a sale,
transfer, leasing or other cessation of the interest of such successor in the
Building, whether in whole or in part, transfer any interest it may have in the
Letter of Credit, as the case may be, to any vendee, transferee or lessee of the
Building, and shall thereupon be relieved of any liability with respect thereto.
In the event of a sale of the Building, Landlord shall have the right to require
Tenant to deliver a replacement Letter of Credit naming the new Landlord as
beneficiary and, if Tenant shall fail to deliver the same within thirty (30)
days after notice, to draw down the existing Letter of Credit and apply the
proceeds as provided in Section 43.1. Tenant shall not assign or encumber the
Letter of Credit and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, or attempted assignment or
encumbrance.
43.4. Notwithstanding anything to the contrary in this Article 43,
commencing with the first (1st) anniversary of the Rent Commencement Date and
continuing on each anniversary of the Rent Commencement Date thereafter, Tenant
may substitute for the then existing Letter of Credit a replacement Letter of
Credit in an amount reduced by the same percentage which the outstanding balance
of the Rentalized Amount shall have been reduced by during the during the
preceding twelve (12) month period. By way of example, if on the Rent
Commencement Date the outstanding balance of the Rentalized Amount were
Twenty-Five Million Dollars ($25,000,000) and the Letter of Credit were Fifteen
Million Dollars ($l5,000,000), then if during the year preceding the first
(1st) anniversary of the Rent Commencement Date the outstanding balance of the
Rentalized Amount were reduced to Twenty-Four Million Dollars ($24,000,000),
-97-
then on the first (1st) anniversary of the Rent Commencement Date the amount of
the Letter of Credit would be permitted to be reduced to Fourteen Million Four
Hundred Thousand Dollars ($14,400,000).
-98-
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD: FOREST CITY MYRTLE ASSOCIATES, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx, President
TENANT: EMPIRE HEALTHCHOICE, INC. d/b/a Blue
Cross Blue Shield
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, CEO
S-1
EXHIBIT A
[PLAN]
A-1
[PLAN]
A-2
[PLAN]
A-3
Exhibit B
------------------------------------------------------------------------------------------------------
Activity Activity Orig
1D Description Start Finish Dur
------------------------------------------------------------------------------------------------------
MILESTONES
CONSTRUCTION
------------------------------------------------------------------------------------------------------
CORE/SHELL
------------------------------------------------------------------------------------------------------
M2 Start Sheeting/Excavation 01NOV01 0
------------------------------------------------------------------------------------------------------
M3 Complete Foundations 01APR02 0
------------------------------------------------------------------------------------------------------
M4 Start Steel 02APR02 0
------------------------------------------------------------------------------------------------------
M5 Steel Top-out 02AUG02 0
------------------------------------------------------------------------------------------------------
M10 Permanent Power Available 27JAN03 0
------------------------------------------------------------------------------------------------------
M6 Start Pre-cast 05JUN02 0
------------------------------------------------------------------------------------------------------
M8 Building Enclosure (windows/precast/curtainwall) 21NOV02 0
------------------------------------------------------------------------------------------------------
M9 Complete Roofing 18DEC02 0
------------------------------------------------------------------------------------------------------
M13 Elevator Turnover 1-4 08JAN03 0
------------------------------------------------------------------------------------------------------
X00 Xxxxxxxx Xxxxxxxx XX0, XX00 06FEB03 0
------------------------------------------------------------------------------------------------------
M14 Elevator Turnover 5-8 27MAR03 0
------------------------------------------------------------------------------------------------------
M20 Core/Shell TCO 01APR03 0
------------------------------------------------------------------------------------------------------
CONSTRUCTION
EXCAVATION/FOUNDATIONS
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
1000 Excavation/foundations 01NOV01* 01APR02 105
------------------------------------------------------------------------------------------------------
STEEL
------------------------------------------------------------------------------------------------------
PRE-CONSTRUCTION
------------------------------------------------------------------------------------------------------
2000 Bid/award steel 01OCT01 31OCT01 23
------------------------------------------------------------------------------------------------------
2002 Steel engineering/fabrication 01NOV01 30APR02 126
------------------------------------------------------------------------------------------------------
CONSTRUCTION
------------------------------------------------------------------------------------------------------
2043 Steel mobilize/build cranes 19MAR02 01APR02 10
------------------------------------------------------------------------------------------------------
2003 Steel/deck: level C 1 02APR02 08APR02 5
------------------------------------------------------------------------------------------------------
2004 Steel/deck: level 1 09APR02 15APR02 5
------------------------------------------------------------------------------------------------------
2005 Steel/deck: level 2 16APR02 22APR02 5
------------------------------------------------------------------------------------------------------
2006 Steel/deck: level 3 23APR02 29APR02 5
------------------------------------------------------------------------------------------------------
2007 Steel/deck: level 4 30APR02 06MAY02 5
------------------------------------------------------------------------------------------------------
2008 Steel/deck: level 5 07MAY02 10MAY02 4
------------------------------------------------------------------------------------------------------
2009 Steel/deck: level 6 13MAY02 16MAY02 4
------------------------------------------------------------------------------------------------------
2010 Steel/deck: level 7 17MAY02 22MAY02 4
------------------------------------------------------------------------------------------------------
2011 Steel/deck: level 8 23MAY02 29MAY02 4
------------------------------------------------------------------------------------------------------
2012 Steel/deck: level 9 30MAY02 04JUN02 4
------------------------------------------------------------------------------------------------------
2013 Steel/deck: level 10 05JUN02 10JUN02 4
------------------------------------------------------------------------------------------------------
2014 Steel/deck: level 11 11JUN02 14JUN02 4
------------------------------------------------------------------------------------------------------
2015 Steel/deck: level 12 17JUN02 20JUN02 4
------------------------------------------------------------------------------------------------------
2016 Steel/deck: level 13 21JUN02 26JUN02 4
------------------------------------------------------------------------------------------------------
2017 Steel/deck: level 14 27JUN02 02JUL02 4
------------------------------------------------------------------------------------------------------
2018 Steel/deck: level 15 03JUL02 09JUL02 4
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
2001 2002 2003
------------------------------------------------------------------------------------------------------
F O N D J F M A M I I A S O N D J A S O N D J F M A M J
------------------------------------------------------------------------------------------------------
[_] Start Sheeting/Excavation
[_] Complete Foundations
[_] Start Steel
[_] Steel Top-out
[_] Permanent Power Available
[_] Start Pre-cast
Building Enclosure (windows/precast/curtainwall) [_]
[_] Complete Roofing
[_] Elevator Turnover 0-0
Xxxxxxxx Xxxxxxxx XX0, XX 10 [_]
Elevator Turnover 5-8 [_]
[_] Core/Shell TCO
------------------------------------------------------------------------------------------------------
[_______________] Excavation/foundations
------------------------------------------------------------------------------------------------------
[____] Bid/award steel
[____________________] Steel engineering/fabrication
------------------------------------------------------------------------------------------------------
[_] Steel mobile/build cranes
[_] Steel/deck level C 1
[_] Steel/deck: level 1
[_] Steel/deck: level 2
[_] Steel/deck: level 3
[_] Steel/deck: level 4
[_] Steel/deck: level 5
[_] Steel/deck: level 6
[_] Steel/deck: level 7
[_] Steel/deck: level 8
[_] Steel/deck: level 9
[_] Steel/deck: level 10
[_] Steel/deck: level 11
[_] Steel/deck: level 12
[_] Steel/deck: level 13
[_] Steel/deck: level 14
[_] Steel/deck: level 15
------------------------------------------------------------------------------------------------------------------------------------
Start Date 15FEB00 9SOC Sheet 1 of 6
Finish Date 16JUN03
Data Date 01OCT01 Forest City Xxxxxx 9 MTC South Project Xxxxxx Xxxxxxxxx Construction
Run Date 11OCT01 08 47 COMPANIES Forest City Xxxxxx Companies [LOGO] Consultants
Preliminary Project Schedule-10-10-01 Accel. 0000 XxxXxxxxx Xxxx.
Xxxxxx. XX 00000
000-000-0000
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
Activity Activity Orig 2001 2002 2003
---------------------------------------------------------
ID Description Start Finish Dur F O N D J F M A M J J A S O N D J F M A M J
------------------------------------------------------------------------------------------------------------------------------------
2023 Steel/deck: level 16 10JUL02 15JUL02 4 [_] Steel/deck: level 16
--------------------------------------------------------------------------
2028 Steel/deck: level 17 16JUL02 16JUL02 4 [_] Steel/deck: level 17
--------------------------------------------------------------------------
2033 Steel/deck: level 18 22JUL02 25JUL02 4 [_] Steel/deck: level 18
--------------------------------------------------------------------------
2038 Steel/deck: level 19/roof 26JUL02 02AUG02 5 [_] Steel/deck: level 19/roof
------------------------------------------------------------------------------------------------------------------------------------
CONCRETE
--------------------------------------------------------------------------
3001 Concrete: level C 1 07MAY02 13MAY02 5 [_] Concrete: level C 1
--------------------------------------------------------------------------
3002 Concrete: level 1 14MAY02 20MAY02 5 [_] Concrete: level 1
--------------------------------------------------------------------------
3003 Concrete: level 2 21MAY02 28MAY02 5 [_] Concrete: level 2
--------------------------------------------------------------------------
3004 Concrete: level 3 29MAY02 04JUN02 5 [_] Concrete: level 3
--------------------------------------------------------------------------
3005 Concrete: level 4 05JUN02 11JUN02 5 [_] Concrete: level 4
--------------------------------------------------------------------------
3006 Concrete: level 5 12JUN02 17JUN02 4 [_] Concrete: level 5
--------------------------------------------------------------------------
3007 Concrete: level 6 18JUN02 21JUN02 4 [_] Concrete: level 6
--------------------------------------------------------------------------
3008 Concrete: level 7 24JUN02 27JUN02 4 [_] Concrete: level 7
--------------------------------------------------------------------------
3009 Concrete: level 8 28JUN02 03JUL02 4 [_] Concrete: level 8
--------------------------------------------------------------------------
3010 Concrete: level 9 05JUL02 10JUL02 4 [_] Concrete: level 9
--------------------------------------------------------------------------
3011 Concrete: level 10 11JUL02 16JUL02 4 [_] Concrete: level 10
--------------------------------------------------------------------------
3012 Concrete: level 11 17JUL02 22JUL02 4 [_] Concrete: level 11
--------------------------------------------------------------------------
3013 Concrete: level 12 23JUL02 26JUL02 4 [_] Concrete: level 12
--------------------------------------------------------------------------
3014 Concrete: level 13 29JUL02 01AUG02 4 [_] Concrete: level 13
--------------------------------------------------------------------------
3015 Concrete: level 14 02AUG02 07AUG02 4 [_] Concrete: level 14
--------------------------------------------------------------------------
3016 Concrete: level 15 08AUG02 13AUG02 4 [_] Concrete: level 15
--------------------------------------------------------------------------
3021 Concrete: level 16 14AUG02 19AUG02 4 [_] Concrete: level 16
--------------------------------------------------------------------------
3026 Concrete: level 17 20AUG02 23AUG02 4 [_] Concrete: level 17
--------------------------------------------------------------------------
3031 Concrete: level 18 26AUG02 29AUG02 4 [_] Concrete: level 18
--------------------------------------------------------------------------
3036 Concrete: level 19/roof 30AUG02 09SEP02 6 [_] Concrete: level 19/roof
------------------------------------------------------------------------------------------------------------------------------------
SPRAY-ON FIREPROOFING
--------------------------------------------------------------------------
--------------------------------------------------------------------------
4001 SOFP: level C 1 05JUN02 10JUN02 4 [_] SOFP: level C 1
--------------------------------------------------------------------------
4002 SOFP: level 1 12JUN02 17JUN02 4 [_] SOFP: level 1
--------------------------------------------------------------------------
4003 SOFP: level 2 18JUN02 21JUN02 4 [_] SOFP: level 2
--------------------------------------------------------------------------
4004 SOFP: level 3 24JUN02 27JUN02 4 [_] SOFP: level 3
--------------------------------------------------------------------------
4005 SOFP: level 4 28JUN02 03JUL02 4 [_] SOFP: level 4
--------------------------------------------------------------------------
4006 SOFP: level 5 05JUL02 10JUL02 4 [_] SOFP: level 5
--------------------------------------------------------------------------
4007 SOFP: level 6 11JUL02 16JUL02 4 [_] SOFP: level 6
--------------------------------------------------------------------------
4008 SOFP: level 7 17JUL02 22JUN02 4 [_] SOFP: level 7
--------------------------------------------------------------------------
4009 SOFP: level 8 23JUL02 26JUL02 4 [_] SOFP: level 8
--------------------------------------------------------------------------
4010 SOFP: level 9 29JUL02 01AUG02 4 [_] SOFP: level 9
--------------------------------------------------------------------------
4011 SOFP: level 10 02AUG02 07AUG02 4 [_] SOFP: level 10
--------------------------------------------------------------------------
4012 SOFP: level 11 08AUG02 13AUG02 4 [_] SOFP: level 11
--------------------------------------------------------------------------
4013 SOFP: level 12 14AUG02 19AUG02 4 [_] SOFP: level 12
--------------------------------------------------------------------------
4014 SOFP: level 13 20AUG02 23AUG02 4 [_] SOFP: level 13
--------------------------------------------------------------------------
4015 SOFP: level 14 26AUG02 29AUG02 4 [_] SOFP: level 14
--------------------------------------------------------------------------
4016 SOFP: level 15 30AUG02 05SEP02 4 [_] SOFP: level 15
--------------------------------------------------------------------------
4021 SOFP: level 16 10SEP02 13SEP02 4 [_] SOFP: level 16
--------------------------------------------------------------------------
4026 SOFP: level 17 16SEP02 19SEP02 4 [_] SOFP: level 17
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Sheet 2 of 6
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
Activity Activity Orig 2001 2002 2003
---------------------------------------------------------
ID Description Start Finish Dur F O N D J F M A M J J A S O N D J F M A M J
------------------------------------------------------------------------------------------------------------------------------------
4031 SOFP: level 16 20SEP02 25SEP02 4 [_] SOFP: level 18
------------------------------------------------------------------------
4036 SOFP: level 19/roof 26SEP02 04OCT02 4 [_] SOFP: level 19
------------------------------------------------------------------------
PRE-CAST
------------------------------------------------------------------------
PRE-CONSTRUCTION
------------------------------------------------------------------------ -----------
5000 Precast submittals/fabrication 02JAN02* 28JUN02 127 Precast submittals/fabrication
-----------
------------------------------------------------------------------------------------------------------------------------------------
CONSTRUCTION
------------------------------------------------------------------------
5005 Pre-cast panels: level 1 06NOV02 13NOv02 6 [_] Pre-cast panels:level 1
------------------------------------------------------------------------
5006 Pre-cast panels: level 2 05JUN02 12JUN02 6 [_] Pre-cast panels: level 2
------------------------------------------------------------------------
5007 Pre-cast panels: level 3 13JUN02 20JUl02 6 [_] Pre-cast panels: level 3
------------------------------------------------------------------------
5008 Pre-cast panels: level 4 21JUN02 28JUl02 6 [_] Pre-cast panels: level 4
------------------------------------------------------------------------
5009 Pre-cast panels: level 5 01JUL02 09JUL02 6 [_] Pre-cast panels: level 5
------------------------------------------------------------------------
5010 Pre-cast panels: level 6 10JUL02 17JUL02 6 [_] Pre-cast panels: level 6
------------------------------------------------------------------------
5011 Pre-cast panels: level 7 18JUL02 25JUL02 6 [_] Pre-cast panels: level 7
------------------------------------------------------------------------
5012 Pre-cast panels: level 8 26JUL02 02AUG02 6 [_] Pre-cast panels: level 8
------------------------------------------------------------------------
5013 Pre-cast panels: level 9 05AUG02 12AUG02 6 [_] Pre-cast panels: level 9
------------------------------------------------------------------------
5014 Pre-cast panels: level 10 13AUG02 20AUG02 6 [_] Pre-cast panels: level 10
------------------------------------------------------------------------
5015 Pre-cast panels: level 11 21AUG02 28AUG02 6 [_] Pre-cast panels: level 11
------------------------------------------------------------------------
5016 Pre-cast panels: level 12 29AUG02 06SEP02 6 [_] Pre-cast panels: level 12
------------------------------------------------------------------------
5017 Pre-cast panels: level 13 09SEP02 16SEP02 6 [_] Pre-cast panels: level 13
------------------------------------------------------------------------
5018 Pre-cast panels: level 14 17SEP02 24SEP02 6 [_] Pre-cast panels: level 14
------------------------------------------------------------------------
5019 Pre-cast panels: level 15 25SEP02 02OCT02 6 [_] Pre-cast panels: level 15
------------------------------------------------------------------------
5024 Pre-cast panels: level 16 03OCT02 10OCT02 6 [_] Pre-cast panels: level 16
------------------------------------------------------------------------
5029 Pre-cast panels: level 17 11OCT02 18OCT02 6 [_] Pre-cast panels: level 17
------------------------------------------------------------------------
5034 Pre-cast panels: level 18 21OCT02 28OCT02 6 [_] Pre-cast panels: level 18
------------------------------------------------------------------------
5039 Pre-cast panels: level 19 29AUG02 05NOV02 6 [_] Pre-cast panels: level 19
------------------------------------------------------------------------------------------------------------------------------------
WINDOWS
------------------------------------------------------------------------
PRE-CONSTRUCTION
------------------------------------------------------------------------ -----------
5501 Fabricate windows 01FEB02* 05AUG02 130 Fabricate windows
-----------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
5505 Windows - 2nd 21JUN02 28JUN02 6 [_] Windows - 2nd
------------------------------------------------------------------------
5506 Windows - 0xx 00XXX00 00XXX00 6 [_] Windows - 3rd
------------------------------------------------------------------------
5507 Windows - 0xx 00XXX00 00XXX00 6 [_] Windows - 4th
------------------------------------------------------------------------
5508 Windows - 0xx 00XXX00 00XXX00 6 [_] Windows - 5th
------------------------------------------------------------------------
5509 Windows - 6th 26JUL02 02AUG02 6 [_] Windows - 6th
------------------------------------------------------------------------
5510 Windows - 7th 05AUG02 12AUG02 6 [_] Windows - 7th
------------------------------------------------------------------------
5511 Windows - 8th 13AUG02 20AUG02 6 [_] Windows - 8th
------------------------------------------------------------------------
5512 Windows - 9th 21AUG02 28AUG02 6 [_] Windows - 9th
------------------------------------------------------------------------
5513 Windows - 10th 29AUG02 06SEP02 6 [_] Windows - 10th
------------------------------------------------------------------------
5514 Windows - 11th 09SEP02 16SEP02 6 [_] Windows - 11th
------------------------------------------------------------------------
5515 Windows - 12th 17SEP02 24SEP02 6 [_] Windows - 12th
------------------------------------------------------------------------
5516 Windows - 13th 25SEP02 02OCT02 6 [_] Windows - 13th
------------------------------------------------------------------------
5517 Windows - 14th 03OCT02 10OCT02 6 [_] Windows - 14th
------------------------------------------------------------------------
5518 Windows - 15th 11OCT02 18OCT02 6 [_] Windows - 15th
------------------------------------------------------------------------
5519 Windows - 16th 21OCT02 28OCT02 6 [_] Windows - 16th
------------------------------------------------------------------------
5520 Windows - 17th 29OCT02 05NOV02 6 [_] Windows - 17th
------------------------------------------------------------------------
5521 Windows - 18th 06NOV02 13NOV02 6 [_] Windows - 18th
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Sheet 3 of 6
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
Activity Activity Orig 2001 2002 2003
----------------------------------------------------
ID Description Start Finish Dur F O N D J F M A M J J A S O N D J F M A M J
------------------------------------------------------------------------------------------------------------------------------------
5522 Windows - 19th 14NOV02 21NOV02 6 [_] Windows - 19th
------------------------------------------------------------------------------------------------------------------------------------
SOUTHEAST CURTAINWALL
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6000 Curtain wall 21JUN02 21NOV02 108 [_____________] Curtain wall
--------------------------------------------------------------------------------
6005 Hoist removal/close-in 07FEB03 20MAR03 20 Hoist removal/close-in [______]
------------------------------------------------------------------------------------------------------------------------------------
PRIMETER DRYWALL
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6505 Perimeter drywall - 2nd 21AUG02 26AUG02 4 [_] Perimeter drywall - 2nd
--------------------------------------------------------------------------------
6506 Perimeter drywall - 3rd 27AUG02 30AUG02 4 [_] Perimeter drywall - 3rd
--------------------------------------------------------------------------------
6507 Perimeter drywall - 4th 03SEP02 06SEP02 4 [_] Perimeter drywall - 4th
--------------------------------------------------------------------------------
6508 Perimeter drywall - 5th 09SEP02 12SEP02 4 [_] Perimeter drywall - 5th
--------------------------------------------------------------------------------
6509 Perimeter drywall - 6th 13SEP02 18SEP02 4 [_] Perimeter drywall - 6th
--------------------------------------------------------------------------------
6510 Perimeter drywall - 7th 19SEP02 24SEP02 4 [_] Perimeter drywall - 7th
--------------------------------------------------------------------------------
6511 Perimeter drywall - 8th 25SEP02 30SEP02 4 [_] Perimeter drywall - 8th
--------------------------------------------------------------------------------
6512 Perimeter drywall - 9th 01OCT02 04OCT02 4 [_] Perimeter drywall - 9th
--------------------------------------------------------------------------------
6513 Perimeter drywall - 10th 07OCT02 10OCT02 4 [_] Perimeter drywall - 10th
--------------------------------------------------------------------------------
6514 Perimeter drywall - 11th 11OCT02 16OCT02 4 [_] Perimeter drywall - 11th
--------------------------------------------------------------------------------
6515 Perimeter drywall - 12th 17OCT02 22OCT02 4 [_] Perimeter drywall - 12th
--------------------------------------------------------------------------------
6516 Perimeter drywall - 13th 23OCT02 28OCT02 4 [_] Perimeter drywall - 13th
--------------------------------------------------------------------------------
6517 Perimeter drywall - 14th 29OCT02 01NOV02 4 [_] Perimeter drywall - 14th
--------------------------------------------------------------------------------
6518 Perimeter drywall - 15th 04OCT02 07NOV02 4 [_] Perimeter drywall - 15th
--------------------------------------------------------------------------------
6519 Perimeter drywall - 16th 08OCT02 13NOV02 4 [_] Perimeter drywall - 16th
--------------------------------------------------------------------------------
6520 Perimeter drywall - 17th 14NOV02 19NOV02 4 [_] Perimeter drywall - 17th
--------------------------------------------------------------------------------
6521 Perimeter drywall - 18th 22NOV02 27NOV02 4 [_] Perimeter drywall - 18th
--------------------------------------------------------------------------------
6522 Perimeter drywall - 19th 29NOV02 04DEC02 4 [_] Perimeter drywall - 19th
------------------------------------------------------------------------------------------------------------------------------------
ELEVATORS
--------------------------------------------------------------------------------
PARKING GARAGE ELEVATORS (11, 12)
--------------------------------------------------------------------------------
7007 Elevators 11/12 27JUN02 11OCT02 75 [____________] Elevators 11/12
------------------------------------------------------------------------------------------------------------------------------------
SERVICE ELEVATORS (SE9, SE10)
--------------------------------------------------------------------------------
7016 Rails & brackets 05AUG02 28OCT02 60 [_____] Rails & brackets
--------------------------------------------------------------------------------
7027 EMT dry 17SEP02 0 | EMR dry
--------------------------------------------------------------------------------
7028 Hoistway/EMR equipment & winng/cabs 17SEP02 23JAN03 90 Hoistway/EMT & wiinng/cabs [__________]
--------------------------------------------------------------------------------
7034 Test & Adjust XX0, XX00 24JAN03 06FEB03 10 [__] Test & Adjust SE9. SE10
------------------------------------------------------------------------------------------------------------------------------------
ELEVATORS 1-4 (LOW RISE)
--------------------------------------------------------------------------------
7035 Rails & brackets 27JUN02 06SEP02 50 [_________] Rails & brackets
--------------------------------------------------------------------------------
7046 EMR dry 02AUG02 0 | EMR dry
--------------------------------------------------------------------------------
7047 Hoistway/EMR equipment & winng/cabs 09SEP02 02DEC02 50 [__________] Hoistway/EMR
equipmenmt & winng/
cass
--------------------------------------------------------------------------------
7053 Test & adjust LR Elev 1-4 03DEC02 08JAN03 25 [___] Test & Adjust LR Eleb 1-4
------------------------------------------------------------------------------------------------------------------------------------
ELEVATORS 5-8 (HIGH RISE)
--------------------------------------------------------------------------------
7055 Rails & brackets 05AUG02 11NOV02 70
--------------------------------------------------------------------------------
7064 EMR dry 08OCT02 0
--------------------------------------------------------------------------------
7065 Hoistway/EMR equipment & winng/cabs 08OCT02 27FEB03 100
--------------------------------------------------------------------------------
7071 Test & adjust LR Elev 5-8 26FEB03 27MAR03 20
------------------------------------------------------------------------------------------------------------------------------------
ROOF
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
8001 0xx xxxxx xxxx 00XXX00 00XXx00 20 [___] 4th floor roof
------------------------------------------------------------------------------------------------------------------------------------
Sheet 4 of 6
--------------------------------------------------------------------------------------------------------------
Activity Activity Orig
ID Description Start Finish Dur
--------------------------------------------------------------------------------------------------------------
8002 0xx xxxxx xxxx 00XXX00 00XXX00 20
--------------------------------------------------------------------------------------------------------------
0003 PH roof 06NOV02 18DEC02 30
--------------------------------------------------------------------------------------------------------------
FIRE PROTECTION
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
9003 Standpipe risers/core branches/loops (thru 10) 03JUN02 01OCT02 85
--------------------------------------------------------------------------------------------------------------
9004 Standpipe risers/core branches/loops (11th-19th) 20OCT02 31JAN03 85
--------------------------------------------------------------------------------------------------------------
9006 Fire Pumps 10JAN03 06MAR03 40
--------------------------------------------------------------------------------------------------------------
HVAC SYSTEMS
--------------------------------------------------------------------------------------------------------------
HVAC RISERS
--------------------------------------------------------------------------------------------------------------
9101 Fuel oil tank delivery 23APR02 23APR02 1
--------------------------------------------------------------------------------------------------------------
9102 Air handling unit deliveries (thru 10th) 29MAY02 21AUG02 60
--------------------------------------------------------------------------------------------------------------
9104 Air handling unit deliveries (11th-19th) 22AUG02 14NOV02 60
--------------------------------------------------------------------------------------------------------------
9103 Fuel oil risers (thru 10th) 01JUL02 19SEP02 57
--------------------------------------------------------------------------------------------------------------
9105 Fuel oil risers (11th-19th) 20SEP02 10DEC02 57
--------------------------------------------------------------------------------------------------------------
9300 HVAC ductwork/pipe risers (thru 10th) 11JUL02 03OCT02 60
--------------------------------------------------------------------------------------------------------------
9301 HVAC ductwork/pipe risers (11th-19th) 04OCT02 30DEC02 60
--------------------------------------------------------------------------------------------------------------
ROOF
--------------------------------------------------------------------------------------------------------------
9118 Rig roof equipment 03SEP02 30SEP02 20
--------------------------------------------------------------------------------------------------------------
9106 Boiler. C.T., HX piping/start-up 17SEP02 01APR03 138
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
9112 Air conditioning available 01APR03 0
--------------------------------------------------------------------------------------------------------------
9117 Heat available 01APR03 0
--------------------------------------------------------------------------------------------------------------
LOBBY WORK
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
10001 Lobby MEP rough-in 03OCT02 13JAN03 70
--------------------------------------------------------------------------------------------------------------
10003 Lobby ceilings/walls 21NOV02 24FEB03 65
--------------------------------------------------------------------------------------------------------------
10005 Lobby interior finishes 07JAN03 31MAR03 60
--------------------------------------------------------------------------------------------------------------
STOREFRONTS
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
10010 Xxxxxxxxxxx 00XXX00 00XXX00 88
--------------------------------------------------------------------------------------------------------------
SHAFT/CORE WALL DEVELOPMENT
--------------------------------------------------------------------------------------------------------------
CORE SHAFT
--------------------------------------------------------------------------------------------------------------
11000 Core walls/elec. closet build-out (thru 10th) 22AUG02 20NOV02 64
--------------------------------------------------------------------------------------------------------------
11001 Core walls/elec. closet build-out (11th-19th) 21NOV02 21FEB03 64
--------------------------------------------------------------------------------------------------------------
ELECRIAL
--------------------------------------------------------------------------------------------------------------
SERVICE GEAR
--------------------------------------------------------------------------------------------------------------
12200 Set/assemble switchboards/terminate & inspect 31JUL02 19DEC02 100
--------------------------------------------------------------------------------------------------------------
CON ED
--------------------------------------------------------------------------------------------------------------
12306 Set atmrs/netwk protectors & service work 24OCT02 27JAN03 65
--------------------------------------------------------------------------------------------------------------
12309 Permanent power available 27JAN03 0
--------------------------------------------------------------------------------------------------------------
ELECTRICAL RISERS/CLOSETS
--------------------------------------------------------------------------------------------------------------
12400 Electrical risers (thru 10th) 11JUL02 29OCT02 78
--------------------------------------------------------------------------------------------------------------
12402 Electrical risers (11th-19th) 30OCT02 19FEB03 78
--------------------------------------------------------------------------------------------------------------
12401 Electrical/telephone closets (thru 10th) 04OCT02 20DEC02 55
--------------------------------------------------------------------------------------------------------------
12403 Electrical/telephone closets (11th-19th) 23DCE02 11MAR03 55
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
2001 2002 2003
---------------------------------------------------------------------------------------------------------------------------
S O N D J F M A M J J A S O N D J F M A M J
---------------------------------------------------------------------------------------------------------------------------
----
6th floor roof
----
-------
PH roof
-------
---------------------------------------------------------------------------------------------------------------------------
---------------
Standpipe risers/core branches/loops (thru 10)
---------------
----------------------
Standpipe risers/core branches/loops (11th-19th)
----------------------
---------
Fire Pumps
---------
---------------------------------------------------------------------------------------------------------------------------
|| Fuel oil tank delivery
------------
Air handling unit deliveries (thru 10th)
------------
------------
Air handling unit deliveries (11th-19th)
------------
-----------
Fuel oil risers (thru 10th)
-----------
-----------
Fuel oil risers (11th-19th)
-----------
------------
HVAC ductwork/pipe risers (thru 10th)
------------
------------
HVAC ductwork/pipe risers (11th-19th)
------------
---------------------------------------------------------------------------------------------------------------------------
------
Rig roof equipment
------
----------------------------------
Boiler.C.T., HX piping/start-up
----------------------------------
---------------------------------------------------------------------------------------------------------------------------
Air conditioning Available|
| Heat available
---------------------------------------------------------------------------------------------------------------------------
--------------
Lobby MEP rough-in
--------------
------------
Lobby ceilings/walls
------------
------------
Lobby interior finishes
------------
---------------------------------------------------------------------------------------------------------------------------
--------------------
Storefronts
--------------------
---------------------------------------------------------------------------------------------------------------------------
--------------
Core walls/elec.closet build-out (thru 10th)
--------------
--------------
Core walls/elec.closet build-out (11th-19th)
--------------
---------------------------------------------------------------------------------------------------------------------------
-----------------------
Set/assemble switchboards/terminate & inspect
-----------------------
---------------------------------------------------------------------------------------------------------------------------
--------------
Set atmrs/netwk protectors & service work
--------------
| Permanent power available
---------------------------------------------------------------------------------------------------------------------------
----------------
Electrical risers (thru 10th)
----------------
----------------
Electrical risers (11th-19th)
----------------
-------------
Electrical/telephone closets (thru 10th)
-------------
-------------
Electrical/telephone closets (11th-19th)
-------------
===========================================================================================================================
-----------------------------------------------------------------------------------------
Activity Activity Orig
ID Description Start Finish Dur
-----------------------------------------------------------------------------------------
EMERGENCY GENERATOR
-----------------------------------------------------------------------------------------
12501 Set/build-out Generator 08OCT02 13FEB03 90
-----------------------------------------------------------------------------------------
FIRE ALARM
-----------------------------------------------------------------------------------------
12700 FA users & boxes (class E lie-ins)(thru 10th) 15AUG02 19NOV02
-----------------------------------------------------------------------------------------
12701 FA users & boxes (class E lie-ins)(11th-19th) 20NOV02 26FEB03 60
-----------------------------------------------------------------------------------------
12702 Fire alarm devices (thru 10th) 31DEC02 11FEB03 30
-----------------------------------------------------------------------------------------
12703 Fire alarm devices (11th-19th) 12FEB03 25MAR03 30
-----------------------------------------------------------------------------------------
PLUMBING
-----------------------------------------------------------------------------------------
RISERS
-----------------------------------------------------------------------------------------
13100 Plumbing users (thru 10th) 18JUL02 23OCT02 69
-----------------------------------------------------------------------------------------
13101 Plumbing users (11th-19th) 24OCT02 31JAN03 69
-----------------------------------------------------------------------------------------
TOILET ROOM DEVELOPMENT
-----------------------------------------------------------------------------------------
13700 Rough-in (thru 10th) 22AUG02 05NOV02 53
-----------------------------------------------------------------------------------------
13701 Rough-in (11th-19th) 06NOV02 22JAN03 53
-----------------------------------------------------------------------------------------
13702 Fixtures (thru 10th) 16DEC02 28JAN03 30
-----------------------------------------------------------------------------------------
13703 Fixtures (11th-19th) 29JAN03 11MAR03 30
-----------------------------------------------------------------------------------------
SITEWORK
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
10015 Sitework 17MAR03* 16JUN03 65
-----------------------------------------------------------------------------------------
TESTING
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
13707 Test/sign-off 12MAR03 01APR03 15
-----------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2001 2002 2003
--------------------------------------------------------------------------------
F O N D I F I M A M I I A S O N D I F M A M I
--------------------------------------------------------------------------------
-------
Set/build-out Generator
-------
--------------------------------------------------------------------------------
------
FA users & boxes (class E lie-ins)(thru 10th)
------
------------
FA users & boxes (class E lie-ins)(11th-19th)
------------
-----
Fire alarm devices (thru 10th)
-----
------
Fire alarm devices (11th-19th)
------
------------------------------------------------------------------------
---------
Plumbing users (thru 10th)
---------
----------
Plumbing users (11th-19th)
----------
------------------------------------------------------------------------
----------
Rough-in (thru 10th)
----------
------------
Rough-in (11th-19th)
------------
-------
Fixtures (thru 10th)
-------
-------
Fixtures (11th-19th)
-------
------------------------------------------------------------------------
------------
Sitework
------------
------------------------------------------------------------------------
--------
Test/sign-off
--------
------------------------------------------------------------------------
EXHIBIT C
FORM OF LETTER OF CREDIT
ISSUE DATE: ____________, 200_ L/C NO.:__________
APPLICANTS:
EMPIRE HEALTHCHOICE, INC.
EMPIRE HEALTHCHOICE ASSURANCE, INC.
EMPIRE HEALTHCHOICE HMO, INC.
BENEFICIARY: AMOUNT: USD___________
FOREST CITY MYRTLE ASSOCIATES, LLC
BENEFICIARY ADDRESS:
_________________
_________________
_________________
GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO.____________ IN
FAVOR OF FOREST CITY MYRTLE ASSOCIATES, LLC (THE "LANDLORD") FOR AN AGGREGATE
AMOUNT NOT TO EXCEED U.S. DOLLARS ______________. THIS LETTER OF CREDIT IS
AVAILABLE AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON THE BANK OF NEW
YORK, AT OUR COUNTERS AT 000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX (OR AT SUCH
OTHER OFFICE IN NEW YORK CITY AS WE SHALL NOTIFY YOU IN WRITING FROM TIME TO
TIME) WHEN ACCOMPANIED BY THE FOLLOWING:
BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS
READING AS FOLLOWS: "THE BENEFICIARY IS ENTITLED TO DRAW AGAINST THE BANK
OF NEW YORK LETTER OF CREDIT NUMBER ___________ PURSUANT TO THAT CERTAIN
LEASE AGREEMENT DATED AS OF JANUARY 17, 2002 BY AND BETWEEN FOREST CITY
MYRTLE ASSOCIATES, LLC, AS LANDLORD, AND EMPIRE HEALTHCHOICE, INC. D/B/A
BLUE CROSS/BLUE SHIELD, AS TENANT."
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED. WE FURTHER UNDERTAKE THAT ANY
DRAFT(S) PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE PAID.
THIS LETTER OF CREDIT EXPIRES AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF
BUSINESS ON __________,200_ (the date that is 12 months after the date hereof).
IT IS A CONDITION OF THIS IRREVOCABLE LETTER OF CREDIT THAT IT SHALL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR AN ADDITIONAL PERIOD OF ONE YEAR
FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 30 DAYS PRIOR
TO SUCH DATE WE SEND YOU NOTICE IN WRITING BY REGISTERED MAIL, OR HAND DELIVERY,
AT THE ABOVE ADDRESS, THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR SUCH
ADDITIONAL
PERIOD. HOWEVER IN NO EVENT SHALL THIS LETTER OF CREDIT BE EXTENDED BEYOND THE
FINAL EXPIRY DATE OF _____________. UPON SUCH NOTICE TO YOU, YOU MAY DRAW DRAFTS
ON US AT SIGHT FOR AN AMOUNT NOT TO EXCEED THE BALANCE REMAINING IN THIS LETTER
OF CREDIT WITHIN THE THEN APPLICABLE EXPIRY DATE, ACCOMPANIED BY YOUR DATED
STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS READING: "THE AMOUNT OF
THIS DRAWING USD _____________ UNDER THE BANK OF NEW YORK LETTER OF CREDIT
NUMBER _____________ REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM THE
BANK OF NEW YORK OF ITS DECISION NOT TO EXTEND LETTER OF CREDIT NUMBER _________
FOR AN ADDITIONAL YEAR, AND THE LEASE IS STILL OUTSTANDING."
THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY (BUT NOT IN PART) TO A
SUCCESSOR LANDLORD. WE SHALL NOT RECOGNIZE ANY TRANSFER OF THIS LETTER OF CREDIT
UNTIL THIS ORIGINAL LETTER OF CREDIT TOGETHER WITH ALL AMENDMENTS AND A SIGNED
AND COMPLETED TRANSFER FORM AS PER EXHIBIT A ATTACHED HERETO IS RECEIVED BY US.
ALL TRANSFER FEES ARE FOR THE ACCOUNT OF THE APPLICANTS.
THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER
FORMS MUST BE VERIFIED BY YOUR BANK.
IN CASE OF ANY TRANSFER UNDER THIS LETTER OF CREDIT, THE DRAFT(S) AND ANY
REQUIRED STATEMENT MUST BE EXECUTED BY A PURPORTED OFFICIAL OF THE TRANSFEREE.
THIS LETTER OF CREDIT MAY NOT BE TRANSFERRED TO ANY PERSON WITH WHICH U.S.
PERSONS ARE PROHIBITED FROM DOING BUSINESS UNDER U.S. FOREIGN ASSETS CONTROL
REGULATIONS OR OTHER APPLICABLE U.S. LAWS AND REGULATIONS.
ALL CORRESPONDENCE AND ANY DRAWINGS PRESENTED IN CONNECTION WITH THIS LETTER OF
CREDIT ARE TO BE DIRECTED TO OUR OFFICE AT 000 XXXXXXX XXXXXX, XXX XXXX, XXX
XXXX (OR AT SUCH OTHER OFFICE IN NEW YORK CITY AS WE SHALL NOTIFY YOU IN WRITING
FROM TIME TO TIME). CUSTOMER INQUIRY NUMBERS AT OUR BANK ARE 000-000-0000 AND
000-000-0000. WE HEREBY ISSUE THIS STANDBY LETTER OF CREDIT IN YOUR FAVOR. IT IS
SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1994)
REVISION, ICC PUBLICATION NUMBER 500 ("UCP") AND, AS TO MATTERS NOT COVERED BY
THE UCP, IS SUBJECT TO NEW YORK LAW. THE DATE OF OUR CREDIT AND THE NAME OF OUR
BANK MUST APPEAR ON ALL DRAFTS REQUIRED.
THE BANK OF NEW YORK
BY:__________________
-2-
EXHIBIT D
SAMPLE STATEMENT DETAIL
Wages
Payroll and Hospitalization Insurance
Security Services
Electricity
Gas
Oil
Water and Sewer
Submetering Service
Cleaning
Rubbish Removal
Exterminating
Repairs and Maintenance
Elevator Maintenance
Supplies
Fire Safety
Interior Landscaping
Exterior Landscaping
Insurance
Management Fee
Consulting Fee
Professional Fees
Stationary
Telephone
Miscellaneous Operating Expenses
EXHIBIT E
BUILDING HOLIDAYS
1. New Year's Day
2. Xxxxxx Xxxxxx Xxxx Day
3. Washington's Birthday (President's Day)
4. Memorial Day
5. Independence Day
6. Labor Day
7. Thanksgiving Day
8. the day following Thanksgiving Day
9. Christmas Day
E-1
EXHIBIT F
CLEANING SPECIFICATIONS
ONE METROTECH CENTER
TENANT CLEANING SPECIFICATIONS
GENERAL CLEANING
Nightly
Nightly (i.e., after 5:00 p.m.) services shall be rendered five (5) nights
each week. No Saturday, Sunday or Holiday services (holidays are those days
stated in Exhibit E of this Lease).
Damp and/or mop and sweep floors, removing gum and tar, as needed to
maintain in clean condition throughout the Building, including tenant spaces,
entrance foyers, vestibules and all public areas, including Building corridors,
all stone, ceramic tile, marble, terrazzo, asphalt tile, linoleum, rubber, vinyl
and other type of flooring to insure dust-free floors with special attention to
hard to reach areas.
Carpet sweep nightly all carpeted areas and rugs, moving light furniture
other than desks, file cabinets, etc. and vacuum at night once per week.
Empty and damp wipe all wastepaper baskets and disposal receptacles, wash
ash trays, sanitary cans, wastepaper towel cans and any other receptacles.
(Install liners as necessary, liners supplied by owner at Tenant's cost).
Collect and remove from Building wastepaper and all rubbish from normal
operation of Building to a designated area in the Premises, daily.
Dust and wipe clean all furniture, telephones, cabinets, window xxxxx, door
casings, and clean all glass tables and desk tops with impregnated cloths, as
needed.
Damp wipe and disinfect all telephones, including dials or buttons and
crevices.
Remove all finger marks, smudges, scuff marks, gum or foreign matter from
glass desk tops, glass table tops, glass directory boards, metal partitions and
other marks from walls, window sill frames and other similar surfaces, and glass
table cabinets, as necessary.
Wipe clean all metal door knobs, kick plates, directional signs, door
saddles, mail chutes and all metals.
Lavatories & Rest Rooms Nightly
Sweep, scrub and/or wash and dry all flooring with approved germicidal
detergent solution using spray tank method, to remove all spills, smears,
scuff marks and foot tracks throughout.
Wash and polish all mirrors, powder shelves, brightwork, enamel surfaces,
including flushometers, piping toilet seat hinges and all metal.
Scour, wash and disinfect all basins, bowls and urinals with approved
germicidal detergent solution, including tile walls near urinals. Upon
completion, pour one ounce of bowl cleaner into urinal and do not flush.
Wash both sides of all toilet seats with approved germicidal detergent
solution.
Disinfect and damp wipe and wash all partitions, enamel surfaces, tile
walls, dispensers, doors and receptacles. Empty and clean paper towel and
sanitary disposal receptacles. Remove wastepaper and refuse, including soiled
sanitary napkins to a designated area in the Premises and dispose of same. All
wastepaper receptacles to be thoroughly cleaned and washed.
If applicable, wash and wax all resilient tile floors in toilet powder
rooms, or vacuum if carpeted. Spot clean and shampoo, as needed.
F-1
Fill and maintain mechanical operation of all toilet tissue holders (with
two-ply toilet tissue), soap dispensers and towel dispensers and fill, maintain
and collect money from any sanitary napkin machines.
Remove stains as necessary, clean underside of rims of urinals and bowls.
It is the intention to keep lavatories thoroughly clean and not to use a
disinfectant to mask odors. If disinfectants are necessary, an odorless
disinfectant shall be used.
Periodic Cleaning Lavatories & Rest Rooms
Machine scrub floor as necessary, with approved germicidal detergent
solution.
Wash and polish all partitions, tile walls and enamel surfaces from ceiling
to floor as necessary, but not less than once per month using proper
disinfectant.
Do all high (i.e., over 80") dusting approximately once a month.
Wash all painted wall surfacing as needed, but not less than once every two
(2) months.
Clean urinals and bowls with scale-solvent as needed, but not less than
once a week.
Public Areas & Elevator Landings
Machine scrub flooring, as necessary.
Clean lights, globes, diffusers and fixtures as often as necessary.
Dust down and wash lobby and stairway walls, flooring to ceiling, as
necessary, but not less than once per month. Wipe clean and polish all brass,
stainless steel, metal and other bright work using a non-acid polish.
High (i.e., over 80") Dusting - Office Area
Do all high dusting every three (3) months, unless otherwise specified,
including the following:
Vacuum and dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning. Damp dust, as required.
Once a month, dust and wash all door louvers and other ventilating louvers
within reach
Wash and remove all fingermarks, ink stains, smudges, scuff marks and other
marks from metal partitions, xxxxx, all vertical surfaces (doors, walls, window
xxxxx, saddles) including elevator doors and other surfaces, as necessary.
All marble and terrazzo walls, elevator, stairway, office and utility doors
to be washed, as necessary, using clear water or approved cleanser.
Wash light fixtures, including reflectors, globes, diffuses and trim,
annually.
Vacuum, clean and polish car and corridor saddles of elevator doors on all
floors, as needed.
Clean all vertical surfaces not attended to in nightly, weekly, quarterly
or semi-annual cleaning.
F-2
EXHIBIT G
LOUVER LOCATIONS
[PLAN OF METROTECH CENTER - BUILDING 9 SOUTH]
EXHIBIT J
PART I
BASE BUILDING WORK
TENANT WORK LETTER
AND
M.E.P. DESIGN CRITERIA
FOR
0 XXXXXXXXX XXXXXX XXXXX
XXX
XXXXXX XXXX XXXXXX COMPANIES
ARCHITECT:
XXXXXX XXXXXX XXXXXXX ARCHITECTS
PREPARED BY:
XXXXXXXXX ASSOCIATES
XXX XXXXXXXXXXXX XXXXX
XXX XXXX, XX 00000
Empire Blue Cross Lease Version
November 2, 2001
J-1
I. HVAC OUTLINE SYSTEM DESCRIPTION AND DESIGN CRITERIA
A. HVAC BASE BUILDING DESIGN CRITERIA
1. System Performance Criteria
a. Cooling/Heating Design Criteria Used to Size All Base
Building Air Conditioning Equipment serving Tenant Floors.
For both winter/summer purposes the use of interior shading
in the cooling load calculation and winter heating load
criteria is excluded
b. Summer Design Temperatures
Outdoor -95(degrees)F.D.B. - 75(degrees)F.W.B. (78(degrees)
W.B. Cooling Tower)
Indoor - 74(degrees)F.D.B. - 50% X.X.
x. Xxxxxx Design Temperatures
Outdoor - 5(degrees)F DB
Indoor - 72(degrees) DB (No added humidification)
. Population - 1 person per 100 sq. ft. useable area.
. Ventilation - 20 cfm per person (ASHRAE 62-89R)
. Normal working hours 8:00 a.m. - 6:00 p.m. Monday -
Friday.
. Tenant Lighting & Power
. Cooling for 5w/sq.ft. useable office area.
. Tenant Condenser Water - 24/365 capacity for
supplemental air conditioning tenant.
- 1 ton/1500 useable sq.ft. on Tenant floor.
Provided 2 1/2" valved outlets off condenser riser
located in fan room. Tenant to connect to riser at
core. Cost of supplemental is $ $300/ton/year with
no connection charge.
. After hours air conditioning and heating. Tenant may
request after hours air conditioning and heating.
Tenant shall pay the actual cost of after hours air
conditioning.
- Supply design air temperature leaving the unit is
55(degrees)F.
. The summer load sizing criteria does not include the use
of interior shading.
. The winter heating load criteria does not include a
tenant interior heating load.
2. Acoustical Criteria
Within ten feet of fan room, NC 40 with an NC 35 in the balance
of the areas
B. HVAC BASE BUILDING SYSTEM DESCRIPTION
1. General
a. Air quality standards as defined by ASHRAE 62-89R will be
maintained.
J-2
b. Medium efficiency (minimum 60%) air filtration will be utilized
in the typical floor by floor, DX units serving occupied areas.
c. Floor by floor DX units will be provided with fully drainable
cooling coil drain pans, single wall construction, high
efficiency centrifugal fans or plug fans, inverter drives on VAV
systems. Water-side economizer will be used for "free cooling" in
winter.
d. Materials, equipment and systems installed shall meet all
pertinent requirements of all authorities having jurisdiction and
local codes.
e. Where mandated by code, non-structural system components will be
seismically designed (zone 2) to resist the earthquake effects in
accordance with the New York City Building Code.
f. Spill air fans, which serves as Smoke Exhaust in a fire mode can
be used to purge VOC's from the floor on a scheduled basis by
Landlord. 100% make-up damper will be provided in fresh air duct
for purge cycle.
C. AIR CONDITIONING FOR GENERAL OFFICE SPACES
1. DX Unit System Design (Base Building)
(Floor By Floor Package DX Unit)
a. The units will have a minimum four-inch construction in their fan
and plenum section. 20kW electric heating coil sections will be
provided for morning warm-up. Make-up air is filtered and heated
(50(degrees)F max).
b. The typical office floors will receive conditioned air from
individual floor packaged, water cooled DX variable air volume
(VAV) units. All units are provided with condenser water from the
building's central condenser water system. All DX units will be
good quality air handling construction complete with centrifugal
fans, insulated construction, DX coils, free cooling coils,
internal coil piping, internal sound xxxxxxxx, medium efficiency
filtration (60%), internal and external vibration isolation,
inverter drives and direct digital controls.
c. Outdoor ventilation air is filtered and heated (50(degrees)F max)
and supplied to each floor air conditioning unit via a central
outdoor air riser system. Constant volume box will be provided to
regulate fresh air. No central humidification is provided. Smoke
detectors and shut down designed as per NYC code. Distribution of
fresh air to supplemental units is by tenant off the building
fresh air riser located in the fan room. A review of the location
of intake and exhaust louvers will be made to insure proper
separation.
2. Air Distribution Design
Variable Air Volume (VAV) Box Design
a. Base core & shell ductwork stops outside fan room including
associated acoustical treatment. All medium pressure ductwork,
VAV boxes, diffusers and controls are tenant fit-up, as approved
by Landlord. All boxes shall be specified to building standard
with DDC controls and capable of being tied to Landlord BMS.
Landlord will provide code required smoke dampers at core only.
Unit prices for boxes will be provided.
D. CONDENSER WATER SYSTEM
1. Base Building
J-3
a. A central condenser water system will serve the Building and is
available for special areas and 24 hour AC unit requirements.
Three condenser water pumps will be provided for the primary
cooling tower loop and three pumps for the building secondary
side. A common standby pump will serve both the primary and
secondary side of the heat exchangers. This system will be
available 24 hours per day, year round. Condenser water will be
derived from base building cooling towers and distributed from
the main condenser risers. Flat-plate heat exchangers with
primary (open loop) and a secondary (closed loop) pumping system
will provide closed loop condenser water to all areas. The plate
and frame heat exchanger will be provided with sand filtration.
At each office floor, 2 1/2" valved outlets will be provided for
Tenant connections for supplemental or after-hour cooling AC
units at the Tenant's cost.
b. Cooling tower shall be multiple cell and winterized space for
tenant cooling towers is provided and can be tied to base
building system at Tenant's cost. Towers are winterized.
E. CENTRAL HEATING
1. Base Building
a. Two dual fuel (gas and oil) hot water boilers will be provided by
Landlord in the roof Mechanical Equipment Room to supply heating
to perimeter hot water baseboard. Hot water baseboard is provided
with control, through the use of Danfoss valves at each riser per
floor. Continuous baseboard covers are standard manufacturer
units with factory finish.
F. MISCELLANEOUS HEATING SYSTEMS
1. All back-of-house areas shall be provided with ventilation and
heating.
2. Heat tracing is provided on all piping in non-conditioned areas such
as at the loading dock area, cellar garage, and garage elevator entry.
G. TOILET EXHAUST SYSTEMS
1. A dedicated toilet exhaust riser will extend vertically through the
base building core to ventilate the toilet rooms. System is sized at 2
CFM/SF. Toilets will be provided with electric baseboard heating on
perimeter wall.
H. SMOKE EXHAUST
1. Office Tower
a. A combination spill air/smoke exhaust system will be provided as
per NYC code. The general exhaust (spill) duct will be used for
relief air at all times the outside air system is energized. The
smoke exhaust system will be sized to remove a minimum of (6) air
changes from the largest floor. The spill air/smoke exhaust
system will exhaust air at the Roof Mechanical Equipment Room.
2. Office Lobby
The return fan in the lobby AC unit will be utilized to satisfy smoke
exhaust requirements for the office lobby.
J-4
I. SHAFTWAY VENTING
1. All shaftways (i.e., stairs, elevator shafts and riser shafts) will be
provided with code required venting systems. Vent ductwork will be
enclosed in 2 hour rated construction from the shaft to the outdoor
vent location. Tenant shafts, if any, will be ventilated by Tenant as
per code.
J. FUEL OIL SYSTEM
1. Generator
An above slab steel (20,000 gallon) fuel oil tank located in the
lowest cellar will be provided to service the boilers and building
generator. The system will include fuel oil fill and vent lines, fuel
oil tank, duplex fuel oil transfer pumps, fuel oil transfer piping
(supply and return). Horizontal piping within the building shall be
pipe within a pipe construction with an additional 2-hour fire rated
enclosure system and vertical piping shall be enclosed in 2-hour fire
rated masonry construction. The fuel oil tank will be sized to
accommodate minimum code requirements. Generator(s) will be located on
the Roof Mechanical Equipment Room. Fill box and containment design
shall be as per EPA and NYC requirements. A 275-gallon day tank will
be provided for fuel-oil feed on the Roof Mechanical Equipment Room.
Space for a future Tenant generators and risers are available. All
equipment and associated material is by Tenant.
K. MISCELLANEOUS COOLING AND VENTILATING SYSTEMS
1. The Mechanical Equipment Rooms, storage rooms and utility rooms shall
be mechanically heated and ventilated an exhausted with a minimum of
six (6) air changes per hour.
2. The switchgear rooms shall be mechanically ventilated.
3. The elevator machine rooms will be mechanically cooled and heated (if
necessary) using water-cooled packaged ceiling mounted heat pump
units.
4. The gas meter room will be provided with six (6) air changes per-hour
of exhaust ventilation, per the New York City Building Code.
5. The electric closets will be provided with exhaust fans.
6. Building louvers will be provided for Tenant's fresh air and exhaust
on ground floor. Additional building louvers for specific Tenant needs
may be allowed in a zone to be provided and approved by Landlord.
7. Underground parking will be provided with mechanical ventilation sized
at 1.5 CFM/SF, as per code.
L. AUTOMATIC TEMPERATURE CONTROLS & BUILDING AUTOMATION SYSTEM
1. An independent temperature control and building automation system will
be provided as a part of core and shell systems for base building and
Tenant use.
2. The automatic temperature control and building automation management
system will be microprocessor "open protocol" (Bacnet) based with
distributed direct digital processing. It will incorporate the use of
direct digital electronic controls for all central mechanical
equipment. The system shall be provided with separate DDC controls
capable of providing the following features:
a. Central optimized starting and stopping of all air conditioning
systems, cooling
J-5
tower fans, exhaust fans and air conditioning pumps.
b. Status of all equipment that is started and stopped.
c. Temperature indication of the following:
(1) Supply air temperatures for each air conditioning and heating
and ventilating system.
(2) Condenser water and hot water, supply and return temperatures
to each AC unit, cooling tower, flat plate exchanger, etc.
(3) Outside air temperature and humidity
d. Interface with the independent stand-alone multiplexed fire alarm
system for a common alarm.
e. System shall maintain operating hours for each system.
f. All automatic dampers shall be by the automatic temperature
control manufacturer.
g. Provide switches and relays as required for smoke detection system
interface.
h. Provide for each supply and exhaust fan a motorized damper at
louver location or discharge point.
i. For each AC unit, provide multiple points to allow operator to
properly control and monitor AC systems.
j. Provide condenser and chilled water optimization and pump
sequencing for pumping systems.
k. Provide alarm for critical items:
(1) High temperature (elevator mech. rooms, cooling towers etc.)
(2) High water (sump, ejector, cooling towers, etc.)
(3) Low water (cooling towers, water storage etc.)
(4) Emergency generator(s).
(5) Fuel oil system - low level and high level and common alarms.
Status of all fuel oil isolation and shut-off valves.
(6) Switchboard and telephone room high temperature.
(7) Transfer switch alarms.
(8) Failure of normal power.
(9) Failure of emergency power.
(10) Domestic water low pressure.
(11) Primary transformer room hi-temperature alarms.
(12) Water sensors for all mechanical rooms above tenant occupied
spaces.
J-6
(13) Annunciate alarms for all base building A/C units.
(14) The system will be designed to accommodate Tenant VAV boxes
plus 10-15 floor points for Tenant fit-up. Tenant will be
required to tie-in terminal boxes and supplemental A/C units
at Tenant's cost.
J-7
II. ELECTRICAL SYSTEMS
A. SERVICE
1. The project is provided with a 460/265 volt network service
served from the Con Edison grid, via multiple transformers and
network protectors. Con Edison will be providing a second
contingency service, which allows full utility service to be
provided to the building even if any two transformers or high
tension feeders supplying them are out of service. Con Edison's
reliability is further ensured by the continuous monitoring of
transformer and high tension feeders to anticipate developing
problems and thus assure continuity of service.
B. DISTRIBUTION
1. The electrical distribution system is designed to support
lighting and power demand loads, based on useable areas, of 8
xxxxx useable square foot on all office floors. This is exclusive
of base building air conditioning, heating, core loads and
domestic hot water loads.
2. In the event an area requires more power than the 8 xxxxx useable
square foot that has been provided on each floor in the electric
closet, 25% excess power is available in the service located in
the basement electrical rooms and can be distributed by conduit
and wire via space provided in electric closet via sleeves or
slots at Tenant's cost.
3. Core and shell electrical distribution of the Landlord provided 8
xxxxx useable per square foot of power as defined elsewhere, is
being distributed via dedicated bus duct from dedicated
switchboards. A second electric room on each floor (8' x 8') can
be provided.
C. METERING & ELECTRICAL CLOSET WORK
1. Tenant power will be electronically direct metered.
2. Base Building work includes disconnect switch and high voltage
distribution panel with feed to DX unit. All other panels,
transformers, etc. are by tenant. Size of high voltage panel will
be mutually agreed upon by Landlord and Tenant.
D. TELECOMMUNICATIONS/TELEPHONE SERVICE
1. Two (2) telecommunication entry points will be provided for
Tenants. Air conditioning, floor drains, leak detection and
intrusion alarms will be provided in the service entry rooms at
Tenant's cost. The Tenant will arrange for his own
telecommunications services to be brought into the building and
distributed directly to their floors. Incoming service rooms and
all distribution systems will be capable of receiving fiber optic
cabling for delivery of services. Additionally, the following
criteria is being maintained for the project:
a. Two (2) telecommunication service entrances capable of
receiving services from multiple telecommunications vendors.
b. Telecommunications service entrance room will be located in
areas protected from water damage. No water piping
(drainage, sprinkler, waste, etc.) will be run near
telecommunications closets or equipment rooms.
c. Sleeves for empty conduits run into the building from the
J-8
telecommunications two (2) service entrances. Two (2)4"
conduits shall be provided and to Tenant from each service
entry (a total of four (4) conduits) and will be run to the
main service room. Additional conduits may be added by
Tenant at its cost. Pull boxes will be provided at all 180
(degrees) turns.
d. Vertically stacked telecommunications closets will be
located in the core. The closet to be provided with (4)
slots/sleeves to support required vertical
telecommunications services by the Tenant.
e. 2 - Four (4)inch sleeves shall be provided in each
telephone closet and (1)4" conduit will be provided from
highest floor closets to the roof for future satellite
microwave dishes by Tenant.
f. Space on the roof will be provided for satellite and
microwave dishes furnished by Tenant. Related costs to
install such systems is by Tenant.
E. EMERGENCY POWER
1. A base building life safety generator will be provided on the
Roof Mechanical Equipment Room, to support life safety needs.
Space will be allocated for up to one (1) future Tenant generator
up to 1,500 KW, including adequate space for the fuel oil storage
for 24-hour support, pumps, and riser facilities. Cost of
generator and associated equipment is by Tenant.
2. Riser slots or sleeves will be provided within the floor electric
closet to allow for the distribution of emergency power cabling
from a future Tenant generator. 4-3 inch sleeves in each closet
will be provided.
3. A fuel oil treatment system for base building generator will be
provided to filter and insure that the fuel oil is clean when
needed. Fuel levels will be monitored from the BMS.
F. MISCELLANEOUS
1. The building will provide cable T.V. sleeves located in the
communications closet. The Tenant will make arrangements with the
local cable provider for service to its premises.
J-9
III. LIFE SAFETY SYSTEM DESCRIPTION
A. COMMUNICATION SYSTEM (BASE BUILDING SYSTEM]
1. A life safety communications system will be provided as per Local
Law No. 16 and 58 and will be ADA compliant. The system will
provide for alarm signals to be automatically broadcast on the
alarm floor and the floor above in the event of actuation of
manual or automatic alarm initiating devices. Speaker/strobes
will be provided at core areas and common areas only. Spare
connection points can be made available at life safety panels to
accommodate special Tenant life safety systems. Life safety
system to be of the addressable type. One floor warden station
shall be on each floor.
B. ELEVATOR RECALL SYSTEMS (BASE BUILDING)
1. Local Law No. 16 provides for the elevator control system to
recall to the lobby level in the event of actuation of the
sprinkler system or smoke detector in the building.
C. STANDBY POWER LIGHTS AND EMERGENCY (BASE BUILDING SYSTEM
1. Emergency power for building life safety requirements will be
provided by means of a diesel engine driven generator which will
supply power, in the event of a utility company failure to
critical life safety loads identified hereinafter. The base
building, 275 gallon fuel oil day tank located at the generator
level will be provided. The base building fuel oil storage
facility in the lower cellar shall support minimum code
requirements.
2. Specific items to be connected to the base building generator
include:
a. Class E fire alarm system.
b. Equipment supporting main incoming telephone service room.
c. Capability to operate 3 elevators in any bank at the same
time.
d. Emergency lighting to be provided in the following areas:
(1) All mechanical rooms.
(2) Loading dock.
(3) Fire Stairs.
(4) Core Bathrooms.
(5) All core closets, electric and communications
closets.
(6) 1/4 watt/square foot for tenant lighting.
e. Building Management System (BMS).
f. Core and shell exit signage.
g. All fire pumps.
h. Smoke purge fans.
i. Landlord to provide two (2) strobe circuits, two (2) speaker
circuits, 1 warden station circuit and 1 addressable loop
for each of the Tenants floors. Landlord to provide at no
cost to Tenant all points and programming to accommodate
Tenants fire alarm work, and final connections of Tenants
fire alarm equipment to base building panels.
J-10
D. SMOKE DETECTION SYSTEM
1. Smoke detectors will be provided in all core mechanical,
electrical, and telephone/communication equipment rooms,
elevator lobbies and in base building fan system ducts. In
addition to actuating alarm signals, operation of the
detectors will cause elevator recall, shutdown of fan
systems and release of any locked fire stair doors.
E. FIRE COMMAND STATION LOCATION
1. A fire command station is located in the Office Lobby.
J-11
IV. PLUMBING AND FIRE PROTECTION SYSTEM DESCRIPTION
A. UTILITY SERVICES
1. Sanitary, storm water, gas, domestic and tire services from
the building and connecting to public utilities in adjacent
streets.
2. Domestic cold water, fire and gas services to be fully
metered. Provide double detector check valve on domestic
water service and on fire service all in accordance with
local requirements.
3. Domestic cold water and Fire water services are provided.
B. DOMESTIC COLD WATER SYSTEM (BASE BUILDING SYSTEM)
1. The building will be under pressure by a constant pressure
duplex pumping system for all office floors.
2. The building shall be divided into two zones utilizing
master pressure reducing valve stations.
3. All domestic water connections to HVAC systems and other
non-potable sources shall be provided with suitable backflow
preventors.
4. One (1) cold water valved outlet shall be provided in the
core at each office floor for future Tenant requirements.
5. Provide wall hydrant at each roof level and around the base
of the building.
6. Provide a complete domestic cold water distribution system
serving all fixtures and equipment requiring cold water in
core and shell areas.
C. DOMESTIC HOT WATER SYSTEM (BASE BUILDING)
1. Domestic hot water for the core toilets will utilize one
point of use electrical heater per floor. Heater shall be
ceiling mounted at core toilets.
D. SANITARY DRAINAGE SYSTEMS
1. Building will have multiple stacks with all areas above
grade flowing by gravity to adjacent sewers on site.
2. The areas below the elevation of the sanitary house drains
will extend to duplex sewage ejector stations and will be
provided with emergency power.
3. Sanitary and vent plugged outlets in the core will be
provided at each office floor for Future Tenant
requirements.
4. Provide floor drains within all core mechanical rooms and
within the loading dock.
E. STORM DRAINAGE SYSTEM
1. A complete storm drainage system serving all roof areas,
areaways, terraces, etc. shall be provided. In accordance
with DEP regulations, a storm water roof-top detention
system will be provided.
2. All areas above grade shall flow by gravity through multiple
house drains to sewers in adjacent streets.
3. Sump pump pits and silt traps will be provided to serve all
storm drainage located
J-12
below the elevation of storm water house drains and the foundation
drainage system if required. Each sump pump station will have duplex
sump pumps and provided with emergency power.
F. DRINKING WATER SYSTEM
1. Individual self-contained lead-free electric water coolers with
point-of-use filters shall be provided by base building.
G. GAS SYSTEM
1. A natural gas service shall extend into the building to a
dedicated gas meter room.
2. Provide complete distribution system to all core and shell
equipment requiring gas service.
3. Future Tenant connection in cellar is provided. Riser is by
Tenant.
H. FIRE PROTECTION SYSTEMS (BASE BUILDING)
1. A complete combination standpipe sprinkler system throughout the
complex is provided. (Light hazard classification).
2. The system shall be pressurized by an automatic electric fire
pump taking suction from two independent street mains.
3. All pumps shall be equipped with normal and emergency power and
automatic transfer switches.
4. The core and shell shall be fully sprinklered in accordance with
New York City Building Code (Light Hazard 0.10 gpm/1500SF).
Tenant shall extend sprinkler piping and install heads from riser
at fire stairs. Landlord will sprinkler core areas only. Loop
piping and heads are by Tenant.
5. Sprinkler design densities shall be in accordance with The NYC
Building Code and appropriate insurance requirements. System
shall be hydraulically calculated and required by Landlord at
Tenant's cost.
6. Fire department hose racks and cabinets shall be provided as
required to meet the requirements of the NYC Building Code.
7. Fire Department siamese connections shall be provided as required
by the FDNY.
8. Tamper switches will be provided on each fire protection control
valve for core and shell.
9. Each sprinkler floor control assembly will be provided with an
OS&Y control valve with tamper switch, water flow indicator, and
test and check valve. Pressure reducing valve and relief valve
shall be provided for floor systems having excessive pressure.
I. WET COLUMNS
1. Two (2) wetstacks and risers for soil and vent plugged outlets
and cold water valved outlets on each floor at core and (one in
core and two on the floor). In locations as designated on the
plans
J. PLUMBING FIXTURES
1. Core and shell fixtures shall be of the low consumption design
type.
J-13
2. Provide core and shell vitreous china and acid resistant enameled
cast iron fixtures, complete with all trim, stops, hangers, flow
restrictors, carriers, supports, (vandal-proofing), etc.
Selection based on maintaining sanitary conditions ADA
requirements and specific function of each fixture type as
selected with Architect.
K. SEISMIC REQUIREMENTS
1. Provide seismic design and restraints for all core and shell Life
Safety Systems as required by the New York City Building Code and
as listed below:
a. Standpipe system.
b. Sprinkler system including all components of dry-pipe
systems. This will include air compressors, pull stations,
detectors, strobes, bells, wiring and conduits and panels.
c. Fire protection water services and water services, which
supply standpipe or sprinkler systems.
d. All fire pumps and controllers.
e. All roof tanks utilized for fire protection including
combination domestic/fire reserve tanks.
f. House pumps and constant pressure pumps including tank, fill
piping and accessories utilized to fill fire reserve tanks.
g. Natural gas systems.
h. Any and all services which occur over the path of egress.
i. Electric core & shell.
J-14
V. TENANT FIT-OUT ITEMS
The following items if provided by the Tenant at his cost:
A. HVAC
1. Window blinds.
1. Medium pressure ductwork from core fan room.
2. Variable air volume boxes.
4. Supplemental or after-hour AC units, piping and systems.
5. Diffusers, grilles, controls tied to Landlord BMS.
6. Low pressure ductwork.
7. Perimeter slot diffusers.
8. Elevator lobby duct distribution, diffusers, grilles and controls
tied to Landlord BMS.
9. Controls for fan-powered VAV boxes and supplemental AC units tied
to Landlord BMS.
10. AC units for telephone rooms, switches, etc.
11. Kitchen exhaust ductwork, fans, shafts, etc.
12. Supplemental fuel oil tanks, piping and monitoring/control.
Location of shafts/fans provided by Landlord.
B. ELECTRICAL
1. Electric panels 460/265V and 120/208V panels and transformer.
2. All circuiting to lighting and receptacles on Tenant floors.
3. Telecom and data wiring, conduit and power supplies from nearest
closet.
4. Lighting and lighting controls beyond core and shell areas.
5. Audio Visual, security and acoustics on Tenant floors.
6. Tenant generator & associated equipment.
7. Telephone security and special system conduits from service room
in cellar to Tenant floor.
8. Satellite TV, microwave dishes, cable TV satellite dishes and
associated wire, conduit and equipment
9. Fire alarm devices on Tenant floors connected to core and shell
fire alarm system at Tenant's cost.
C. PLUMBING
1. Kitchen
J-15
2. Pantries
3. Gas branch piping to kitchen equipment from valved outlet (meter) in
cellar, if any.
4. Fit-out of fixtures served by wet stacks.
D. SPRINKLER
1. Sprinkler, piping and heads for office floors not including core and
shell.
E. SECURITY
1. Power and conduit for Tenant security.
J-16
EXHIBIT J (Continued)
PART II
ARCHITECTURAL CORE & SHELL
DESIGN GUIDELINES
for
Nine XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx X/X
Xxxxxxxx, Xxx Xxxx
Developer
Forest City Xxxxxx Companies
Xxx XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Project Team
Xxxxxx Xxxxxx Xxxxxxx & Partners LLP
Xxxxx Xxxxx & Associates
Xxxxxxxx-Xxxxxxxxx, PC
Xxxxxxxxx Associates, LLP
Van Deusen Associates
G. Xxxxxx Xxxxx & Associates
Date
October 31, 2001
J-17
I. INTRODUCTION
The 9 MetroTech Center South parcel is bounded by Myrtle Promenade / Flatbush
Court to the south, Polytechnic University Student Center and Nine MetroTech
Center North to the north, and MetroTech Commons to the west.
The building is a 19-story commercial office tower with retail space on the
ground floor and two below-grade cellar levels of parking.
Development of this site shall be in compliance with the zoning requirements
contained in the MetroTech ULURP drawings, other applicable provisions of
the New York City Zoning Resolution and the MetroTech Design Guidelines for
this site.
Site area
Site Area: 42,709 SF
Uses
The Occupancy for the building is primarily office use as well as accessory
uses to the office use.
The building will provide two below-grade levels for commercial parking
facilities and incoming mechanical services. The ground floor will
accommodate up to two entrance lobbies, retail space, loading docks and a
ramp entry to the parking facility. Floors will be designed for commercial
office floors. A mechanical penthouse, with enclosed and screened mechanical
spaces, elevator machine rooms and space for satellite and microwave
antennas will be on the roof.
Above ground parking is not permitted.
Ground Level Access
Entrances
The building's Main Lobby accommodates the Low-rise and High Rise office
floors. The design of the lobby will be comparable to MetroTech Center
buildings. The lobby entrance is from the former Bridge Street facing the
urban open space known as MetroTech Commons. The below-grade-parking garage
is accessed from the Flatbush Avenue Service Road.
Pedestrian Circulation
Pedestrian site circulation will include trees and other plant materials,
light fixtures and other site details, in conformance to the MetroTech
Design Guidelines.
The ground floor commercial retail spaces will be accessible from the
Commons and Myrtle Promenade.
Building Servicing
A fully enclosed two-berth loading dock and separate trash compactor berth
are located on the Flatbush Avenue Service Road. Utility rooms for electric
will be located along Flatbush Court. Five transformer vaults including a
spare are provided.
All utility rooms shall be a minimum size as permitted by the respective
utility companies. Electrical service equipment must be configured and
installed consistent with utility company
J-18
specifications required for equipment to be owned and maintained by the utility
company.
Telecommunications design
Vertical riser shafts / closets will be provided in the core.
Space for antenna mounting area and cable trays will be provided at the roof
level for satellite and microwave dishes. Space for satellite and microwave
equipment rooms shall be included in the bulkhead-enclosed space. The service
elevator will extend to the roof level, allowing for easier servicing and
replacement of roof equipment. Rated hatch and lift will be provided to allow
hoisting of equipment to the upper roof level.
An emergency generator, plus space provisions for one future spare generators,
and a common emergency fuel tank will also be provided.
Architectural design
The building will be steel-framed with concrete slab-on-grade foundations and
poured concrete foundation walls. All above-grade floor slabs will be composite
steel-and-concrete decks.
Typical floor-to-floor heights will be 13'-6". Typical floors will be designed
to allow for 6" high access floors. Second and third floor levels will be
designed with 15'-6" floor-to-floor height and allow 6" high access floors for
both cable and HVAC horizontal distribution. All accessible flooring will be by
tenant. Refer to drawings for additional information.
The building exterior design materials and system will be comparable to Nine
MetroTech Center North (FDNY Headquarters). It will feature stone-clad precast
concrete and architectural precast concrete panels at the building's base,
brick-clad precast concrete panels above, aluminum windows with thermally
broken, double-glazed, Low-E insulating glass units, metal and glass curtain
wall and storefronts.
II. BUILDING DESCRIPTION
A. Structural Work:
1. Refer to the Structural Design Guidelines/Outline Specifications
for additional information.
2. The building shall be designed per the latest New York City
Building Code. The building will be designed to meet the seismic
regulations incorporated into the NYC Building Code as of
02/20/96.
B. Site Work.
1. All site work (i.e. sidewalks, curbs, landscaping, etc.) shall be
installed in accordance to the requirements of the MetroTech
Master Plan and Design Guidelines.
C. Exterior Wall - Precast Concrete:
1. Provide low stone-clad pre-cast concrete cladding system at the
building's base similar to MetroTech Center buildings.
2. Provide brick-clad precast concrete composite panel cladding
system comparable to Nine MetroTech Center North. Composite
panels shall consist of precast concrete back-up panel with brick
veneer. Refer to the drawings for panel jointing design. (The
Owner reserves the right to install
J-19
a conventional system.)
a. Brick shall be laid in a running bond pattern utilizing
special size brick (2 1/4" thick x 3 5/8" x 7 5/8") and full
width returns at all brick corners.
b. Brick pattern accents will be a separate color.
c. All exterior exposed precast concrete shall be face quality
and smooth finish.
3. Granite Base with a flamed finish.
D. Interior Stone:
1. Provide a dimensional stone floor in the Entry Lobby comparable
to MetroTech Center buildings.
2. Provide stone countertop at Lobby Information Desk(s).
3. Provide stone vanity countertops in all core toilets.
E. Metal Fabrications:
1. Stairs shall be constructed of channel stringers and metal pans
with concrete fill. Handrails and guardrails will be provided in
accordance to code requirements.
2. Loading dock and service ramp exposed corners to be protected by
4' high; 8" diameter steel bollards.
3. Aluminum parapet railings as required to satisfy the NYC building
code.
F. Ornamental Metal:
1. At base-building lobby, provide miscellaneous ornamental metal
cladding and trim at selected doors, elevator doors and lobby
information desk.
G. Rough Carpentry:
1. Provide rough carpentry for the following:
a. Allowance for miscellaneous wood blocking and roof
blocking
b. Installation of hollow metal doors and hardware.
c. Plywood support of stone at vanities and plywood panels
in the telephone rooms.
H. Finish Carpentry:
1. Architectural details for the Base Building lobby and lobby
ceiling comparable to MetroTech Center buildings.
I. Preformed Roofing and Siding:
1. At selected roof areas, mechanical spaces enclosed and screen
walls provided with preformed metal siding enclosure with PVDF
finish similar
J-20
to other MetroTech buildings, supported on a steel girt system
and insulated at the exterior walls of enclosed rooms.
J. Insulation:
1. Provide insulation as required to conform to the New York State Energy
Code.
2. Provide insulation on underside of ground floor slab (Ceiling of
upper garage level).
K. Roofing, Sheet Metal and Accessories:
1. Provide an inverted roof membrane assembly (XXXX) with rigid
insulation and ballast. Provide concrete ballast pavers as
required to access and provide maintenance to all equipment and
window washing equipment. (The Owner reserves the right to review
alternate roof assembly systems).
2. Provide metal flashing and counter-flashing in accordance to
SMACNA standards.
L. Metal Doors and Frames:
1. Provide single or double hollow metal doors and frames as
indicated on plans with hardware. All hardware shall be in
conformance to Local Law 58 and ADA.
M. Base Buildings Lobby Doors:
1. Provide stainless steel revolving door(s); class 1 by Crane.
2. Provide stainless steel doors with glazing and hardware.
N. Exterior Wall - Metal Windows:
1. Windows shall be aluminum, thermally broken and
double-glazed with Low-E clear insulating glass units equivalent
to Wausau windows.
a. Certain windows shall be structurally glazed.
b. Aluminum finish shall be manufacturer's standard PVDF
finishes.
2. Provide for manufacturer standard perimeter hot water radiator
system, and metal convector enclosures with standard
manufacturer's finish.
3. Provide aluminum window xxxxx reinforced for proper man-load
support at all windows coordinated with the exterior wall.
0. Aluminum Enframement - Lobby Entry and Storefronts:
1. Provide an aluminum storefront system with manufacturer's
standard PVDF finishes and clear glazing equivalent to Kawneer
(except lobby entry doors, revolving doors and adjacent
storefront framing shall be a stainless steel finish).
2. Where glazed curtain wall construction is utilized at the Ground
Floor windows, provide double-glazed Low-E clear insulating glass
units.
3. Where required, provide 1/4" spandrel glass with patterned
ceramic frit and insulation backing or double-glazed insulating
glass units with an opaque finish.
J-21
4. Where required by Code, tempered glass and safety glazing shall
be provided.
P. Exterior Wall - Glazed Curtain Wall:
1. Provide an aluminum curtain wall system with manufacturer's
standard PVDF finishes and double-glazed Low-E clear insulating
glass units equivalent to Kawneer.
2. Curtain wall shall be designed to withstand wind loads in
accordance to NYC Building Code.
3. Where required, provide 1/4" spandrel glass with patterned
ceramic frit and insulation backing or double-glazed insulating
glass units with an opaque finish.
Q. Drywall - Base Building:
1. Base Building drywall partitions shall be as follows:
a. Interior partitions: one layer 5/8" GWB on each side of
metal stud.
b. Shaftwall: two layers 5/8" GWB-type `X' on one side with 1"
liner board on shaft side with C-H metal stud framing.
c. Rated partitions:
(1) Two-hours: two layers 5/8" Type `X' GWB on both sides
of metal stud framing.
(2) One-hour: same as item 1.a above except Type `X' GWB.
d. Furring: Metal stud framing with foil faced batt insulation
and 5/8" GWB finish at exterior wall, including the exterior
perimeter column enclosures.. GWB to be taped, spackled,
sanded and ready for painting
e. Interior columns are not enclosed (drywall enclosure by
tenant.)
f. Lobby walls: Provide two layers of 5/8" GWB to allow for
1/2" x 1" aluminum channel reveal and pattern similar to
MetroTech Center buildings. Second decorative layer of GWB
to have a polished skim coat finish.
2. Ceilings:
a. Base Building Lobby: provide one layer 5/8" GWB with a
polished skim coat on suspended black iron ceiling system
for the Base Building Entry Lobby with light coves, details,
etc. comparable to MetroTech buildings.
b. General: provide one layer 518" GWB on suspended black iron
ceiling system where indicated on drawings.
c. Garage: provide suspended, acoustical, accessible 2' x 4'
tile ceiling (upper parking level and garage lobby spaces
only).
S. Tile:
1. Base Building Toilets:
J-22
a. Provide ceramic tile floor and base with a 5'-0" high
ceramic wall tile wainscot.
T. Acoustical Treatment:
1. Provide 2'-0" x 2'-0" Fineline lay-in acoustical ceiling tile
with vinyl finish at core toilets.
2. Provide acoustic insulation/vibration insulation of all
mechanical equipment.
U. Painting:
1. Provide painting for the following base building areas:
a. Metal pan stairs
b. Hollow metal doors and frames
c. Core toilet walls
d. Concrete masonry walls (core and shell)
e. Drywall partitions: 2 coats for exposed walls and ceilings (core
and shell.) Painting of partitions on walls exposed to the Tenant
side to be provided by the Tenant.
V. Specialties:
1. Exterior Louvers: provide aluminum louvers with manufacturer's
standard PVDF finish at mechanical equipment rooms where shown on
drawings.
2. Screening and Roof Bulkheads: provide brick masonry screen walls
and enclosures at selected area as shown on the drawings.
3. Base Building Signage: provide code required life safety and
interior signage (core & shell only).
4. Toilet Partitions: provide manufacturer's enamel painted finish
ceiling hung metal toilet partitions with miscellaneous metal
support.
5. Toilet Accessories: provide stainless steel toilet accessories
and mirrors for core toilets including code required grab bars.
6. Overhead Roll-Up Doors and grilles: provide exterior roll-up
doors at loading dock and parking garage entry. Doors at loading
docks are to be insulated solid panel type. Doors at parking ramp
are to be perforated slat type.
7. Loading Dock Equipment: provide miscellaneous loading dock
equipment (i.e. bumpers, wall guards, etc.)
8. Entrance Canopy: provide laminated frit glass canopy and cables
with stainless steel framing.
9. Window Washing: provide window-washing system, including
roof-mounted davits and concealed tieback.
J-23
10. Window Treatments: Landlord to determine a window treatment
specification at a future date for compliance by all Tenants.
W. Elevators:
1. Refer to the attached elevator specifications. The design of the
elevator cabs shall be comparable to MetroTech Center buildings.
X. Mechanical, Electrical, Plumbing and Fire Protection:
1. Refer to the MEP Outline Specification System Description for
additional information.
J-24
EXHIBIT J (Continued)
PART III
STRUCTURAL DESIGN CRITERIA
AND OUTLINE SPECIFICATIONS
9 METROTECH CENTER
DATE: October 17, 2001
1. GENERAL
A. Design Criteria
(1) Applicable Codes: All structural elements shall be designed in
accordance with the requirements of the Building Code of the City of
New York, 1996- 1997 edition.
(2) Structural Steel: All structural steel shall be designed in accordance
with the Building Code of the City of New York. In general, details
and design of structural steel shall be in accordance with the
American Institute of Steel Construction, "Manual of Steel
Construction, Load and Resistance Factor Design", latest edition.
(3) Concrete: All concrete structures shall be designed in accordance with
the Building Code of the City of New York. Ultimate strength design
shall be used in accordance with ACI-318-89, "American Concrete
Institute, Building Code for Structural Concrete". In general, details
shall be in accordance with AC1 315, "Manual of Standard Practice for
Detailing Reinforced Concrete Structures", latest edition.
B. Design Loads:
(1) Uniformly Distributed Live Loads
Ground Floor 100 lbs./sq. ft.
Xxxxxx Xxxxx Xxxxxxx Xxxx 000 lbs./sq. ft.
Offices 2/nd/, 4/th/- 12/th/, 15/th/-19/th/ 100 lbs./sq. ft.
Data Centers 3/rd/, 13/th/, 14/th/ 200 lbs./sq. ft.
Lobbies and Corridors 100 lbs./sq. ft.
Stairways 100 Ibs./sq. ft.
Exit Facilities 100 lbs./sq. ft.
Light Storage Area 125 lbs./sq. ft.
Loading Dock 250 1bs./sq. ft.
or AASHTO HS20-44
Mechanical Rooms 150 lbs./sq. ft.
Sidewalks 600 lbs./sq. ft.
Roofs 30 lbs./sq. ft. plus snow drift
Rooftop Terraces 100 lbs./sq. ft.
Parking Areas 50 lbs/sq. ft.
(2) Unbalanced Loading: Unbalanced Loads shall be used where such
loading will result in larger members or connections.
(3) Live Load Reduction:
No live load reduction will be permitted on the following:
a) Roof areas
b) Members and connections (other than columns, piers and
walls) supporting:
i) Storage areas
ii) Areas used for parking
iii) Areas used as place of assembly
iv) Sales areas
J-25
For columns, piers and wails supporting such floor areas, the maximum
live load reduction shall be 20 percent.
The uniform live load to be used for design for all other members shall be
the basic value listed in Section 1.B(1) of the structural design criteria
multiplied by the percentages given in the following table:
==========================================================
Contributory Area Ratio of Live Load to Dead Load*
----------------- ------------------------------------
(sq.ft.)
0.625 or less 1 2 or more
==========================================================
149 or Less 100 100 100
----------------------------------------------------------
150 to 299 80 85 85
----------------------------------------------------------
300 to 449 60 70 75
----------------------------------------------------------
450 to 599 50 60 70
----------------------------------------------------------
600 or more 40 55 65
==========================================================
"*": For intermediate values of live load/dead load, the applicable
percentages of live load may be interpolated.
(4) Concentrated Loads: Provision shall be made in designing floors for a
concentrated loads as prescribed below placed upon any space 2 feet square,
unless otherwise noted, wherever this load upon an otherwise unloaded floor
would produce stresses greater than those caused by the uniform load
required therefor.
Location Concentrated Load
-------- -----------------
Sidewalks or Vehicular
Driveway 8000 lbs.
Stair Treads 300 lbs.
Office Floor Areas 2000 lbs.
Retail Areas 2000 lbs.
Roof 250 lbs.
Balcony, Guard Rails,
Hand Rails & Parapets 40 lbs./1 in. ft. lateral and 50 lbs./1 in.
ft vertical acting simultaneously
OR
200 lb. concentrated load vertical and
horizontal at top of railing or parapet.
Should actual conditions occur (e.g.: equipment loads) producing higher
concentrated loads than those tabulated, the structure shall be designed
for the higher loads.
(5) Design Wind Pressures: Design wind pressures on vertical surfaces, acting
normal to that surface, shall be applied according to the following table:
==========================================================
Design Wind Pressure on
Height Zone Vertical Surfaces
(ft. above curb level) (psf of projected solid surface
---------------------------------
Structural Panels
Frame Glass
----------------------------------------------------------
0 to 100 20 30
----------------------------------------------------------
101 to 300 25 30
----------------------------------------------------------
301 to 600 30 35
==========================================================
J-26
On horizontal surfaces and on surfaces with a slope of 30 degrees
or less with respect to the horizontal, wind pressure and/or
suction equal to 40 percent of the value listed in the above table
shall be applied over the entire surface area.
On surfaces at a slope greater than 30 degrees with respect to the
horizontal, wind pressures equal to 60 percent of the tabulated
value above shall be applied to the windward surface. Wind suction
equal to 40 percent of the tabulated value above shall be applied
to the leeward surface.
Minimum wind pressures to be used in the design of other building
elements shall be the values indicated in the table above
multiplied by the following shape factors:
Construction Shape Factor
Signs (and their supports), or portions 1.5
thereof, having 70 percent or more solid
surface
Signs (and their supports), or portions 2.0
thereof, having less than 70 percent of
solid surface
Tanks, cooling towers and 1.5
similar construction
Square and rectangular chimneys 1.5
(6) Impact Loads:
Elevators: All moving elevator loads shall be increased one
hundred percent (100%) for impact.
Machinery: Weight of machinery and moving loads shall be increased
as follows to allow for impact:
Elevator machinery 100%
Machinery-shaft or motor drive 20%
Reciprocating machinery 50%
Hangers: All hanger loads shall be increased as follows to allow
for impact:
Floors or balconies 33%
(7) Superimposed Loads:
Hung ceilings 5 psf
Suspended mechanical (typ. floor) 5 psf
Suspended mechanical (floors above mechanical) 20 psf
Fixed partitions Actual weight
Moveable partitions 20 psf
3" Floor finish (at lobbies) 38 psf
Raised Floor (office floors) 12 psf
2. DESIGN CONSIDERATIONS
A. Stability
(1) Dead Load + Permanent Anchorage = 1.5 x Overturning
(2) Dead Load + Permanent Anchorage = 1.5 x Sliding
B. Load Combinations
Notation:
J-27
D = Dead Load
L = Live Load due to occupancy and moveable equipment
L\\T\\ = Roof Live Load
S = Snow Load
E = Earthquake Load
H = Earth Pressure Load
W = Wind Load
R = Load due to initial rainwater or ice exclusive of ponding
(1) Allowable Stress Design (ASD)
ASD requires that the structure strength and its elements be
determined from the appropriate critical combination of loads. The
most critical effect may occur when one or more of the loads are
not acting. The load combinations to be investigated are:
a. D + L
b. 0.75(D + L + W)
c. 0.75(0.9D + W)
d. 0.75(D + L + E)
e. 0.75(0.9D + E)
Additional load combinations for Moment Frame Columns
f. 0.75(D + 0.8L + 3/8 Rw E)
g. 0.75(0.85D + 3/8 Rw E)
Additional load combinations for Lateral System Connections
h. 0.75(D + L + 3/8 Rw E)
(2) Ultimate Strength Design Combinations (ACI-318)
ACI 318 requires that strength, U, shall be one of the following
combinations, with the stipulation that load combination a. is
always satisfied. For all ACI-318 load combinations, no
differentiation is made between live loads due to occupancy and
moveable equipment (L), roof live loads (L\\T\\) and snow (S).
Thus, in equations a. through f. below, L=L + L\\T\\ + S.
a. U = 1.4D + 1.7L
b. U = .75(1.4D + 1.7L + 1.7W)
c. U = .9D + 1.3W
d. U = .75(1.4D + 1.7L + 1.87E)
e. U = .9D + 1.43E
f. U = 1.4D + 1.7L + 1.7H except if dead load (D) or live load (L)
reduce the effect of H then use U = .9D + 1.7H
C. Deflections
(1) The live load deflection of steel beams and girders shall not
exceed 1/360 of the span length.
(2) The deflection of the composite slab under superimposed loads
shall not exceed 1/360 of the span length.
(3) The wind load deflection of the building shall not exceed 1/450
of the total building height.
(4) Maximum live load + curtain wall weight + superimposed dead load
deflection shall not exceed 1/2".
(5) Elevator structural supports shall be designed within limits of
deflection prescribed by ANSI A17.1.
J-28
D. Seismic Criteria:
All structural elements, at a minimum, shall be designed and
constructed to resist the effects of seismic ground motions as
prescribed in reference standard RS 9-6 of the Building Code of the
City of New York, 1996-l997 edition.
E. Miscellaneous
Hydrostatic pressure 62.4 lbs./cu.ft.
Buoyancy 62.4 lbs./sq.ft./ft. of depth
Earth Pressure 35 lbs./cu.ft. equivalent water pressure
Saturated earth pressure 80 lbs./cu.ft. equivalent water pressure
Shrinkage (stone concrete) .0002 x Length expansion between joints
Shrinkage (X. X. concrete) .0003 x Length expansion between joints
F. Vibration:
Recommendations for required floor system frequency to dampen
vibration range from 5 to 10 Hertz.
MATERIALS
A. Structural Steel
(1) All rolled shapes excluding angles and channels shall conform of
ASTM A572, Grade 50 or Grade 65.
(2) All connection material and base plates shall conform to ASTM
A36.
(3) All angles and channels shall conform to ASTM A36.
(4) All anchor bolts shall conform to ASTM A 307, unless otherwise
noted on drawings.
(5) All bolts other than anchor bolts shall conform to A 325 or A
490.
B. Metal Deck
(1) 2" and 3" 18 gage type VL composite floor deck as manufactured by
Vulcraft or approved equal.
C. Concrete:
(1) Design Strengths (28 days):
a. Footings, slab on grade 4000 psi
b. Foundation and retaining walls 4000 psi
c. Slab on Metal Deck 4000 psi
(2) Reinforcing Steel:
a. All reinforcing bars shall be ASTM A615 Grade 60 deformed
bars. The actual yield strength based on mill tests may not
exceed 78 ksi and the ratio of the actual ultimate tensile
strength to the actual tensile yield strength may not be
less than 1.25.
b. All stirrups and column ties shall be deformed bars with
60,000 psi minimum yield strength, ASTM A615, Grade 60.
c. Welded wire fabric shall conform to ASTM A185 and A82.
(3) Concrete exposed to weather shall contain an air-entraining
agent.
J-29
Exhibit L
[PLAN OF METROTECH CENTER - BUILDING 9 SOUTH]
EXHIBIT M
List of Agencies
NEW YORK CITY AGENCIES
1. Department of Aging
2. Department of Buildings
3. Human Resources Administration
4. Community Development Agency
5. Housing Development Corporation
6. NYC Loft Board
7. NYC Youth Bureau
8. Division of Veteran Affairs
9. Mayor's Office of Construction
10. Bureau of Labor Services
11. Office of the Comptroller - NYC
12. Office of Business Development
13. Office of the Comptroller, Bureau of Engineering
14. Office of the Chief Medical Examiner
15. Office of Payroll Administration
16. Offices of Mental Health
17. Office of Mental Retardation
18. Public Development Corporation
19. New York City Fire Department
20. Department of Finance
21. Department of Housing Preservation & Development
22. Department of Sanitation
23. Financial Information Service Agency
24. Health and Hospitals Corporation
25. Office of Management & Budget
26. Department of Transportation
27. Board of Education
STATE AGENCIES
1. NYS Dormitory Authority
2. Surrogates Courts
3. State of NY Insurance Department
4. Division of Housing & Community Renewal
5. New York State Urban Development
6. NYS Facilities Development Corporation & Housing Finance Agency
7. Office of Management/Labor Relations
8. NYS Racing & Wagering Board
M-1
FEDERAL AGENCIES
1. Food & Drug Administration
2. Federal Communications Commission
3. Federal Department of Insurance Corporation
4. Department of Treasury, Comptroller Currency
5. Bureau of Labor Statistics/Employment Standards/OSHA
6. U.S. Attorney
M-2
EXHIBIT N
Tenant Enhancements In Base Building Work
Item 1 200 tons of supplemental condenser water shall be provided on emergency
power with N + 1 redundancy at tenant's expense. Landlord shall provide
valved outlets from the condenser water risers of the sizes and on the
floors as directed by Tenant. "Landlord shall provide at Tenant's
expense, 200 tons of supplemental condenser water capacity from the base
building condenser water system to support Tenant's critical technology
areas and disaster recovery floor with the following minimum condenser
water plant criteria:
All condenser water system equipment and controls shall be on emergency
power to allow the system to operate in the event of a power outage or
emergency.
The cooling towers shall have N+1 redundancy.
The primary and secondary pumping systems each shall have N+l
redundancy.
Domestic water pumps providing make-up water shall be on emergency power
and have N+1 redundancy."
Item 2 Tenant will have the right to install louvers at the perimeter of the
building for ventilation and miscellaneous venting purposes, subject to
the landlord's approval.
Item 3 Landlord to provide an additional + (6.0) square feet of contiguous
space for miscellaneous HVAC riser, stacked on each floor, from Tenant's
floors to the main roof and basement, provided the same can be contained
within Tenant's proportionate share of space, and if Tenant needs
additional space the same shall be contained within Tenant's Premises or
base building core areas at tenants expense.
Item 4 Tenant, at its expense, shall have the right to install a dedicated
control Sub-system connected to the base building control system, which
shall control the Tenant's mechanical/electrical equipment.
Item 5 Tenant also requires that certain building monitoring systems (with view
only capabilities) be duplicated within the Premises so that Tenant can
monitor certain building systems, which serve the Premises, including,
but not limited to, the temperature of the chilled or condenser water
delivered to the Premises. The cost of such duplication shall be borne
solely by tenant.
Item 6 Landlord to work with Tenant to provide the following items of
electrical Work at the Tenants expense:
a. 400 amps demand electrical capacity at 465 volts, three
phase, directly metered and delivered to the Premises as
directed by the Tenant for Tenant's independent critical
supplemental air conditioning systems from separate
service switchboards with diverse distribution routes.
b. 400 amps demand electrical capacity at 465 volts, three
phase, directly metered and delivered to the Premises as
directed by the Tenant for technical power from separate
service switchboards with diverse distribution.
c. 500 amps demand electrical capacity at 465 volt, three
phase, directly metered and delivered to the Premises as
N-1
directed by the Tenant for Tenant's independent noncritical
supplemental air conditioning systems.
Item 7 EMERGENCY POWER
1. Landlord shall provide, at Tenant's expense, a 1000 KW of emergency
power, (combined with base building plant. Total plant is sized at
3-1500 KW generators) with the following minimum generator plant
Criteria:
a. The generator plant shall have paralleling
switchgear.
b. Capacity of the generator plant fuel oil system
shall be capable of operating the entire generator
plant for a minimum of 24 hours continuous use at
full load.
c. Generator plant shall be capable of starting from
multiple automatic transfer switch signals.
d. Generator plant shall have generation equipment
with N + 1 redundancy for critical loads as
mutually agreed upon.
e. Fuel oil pumping system shall have N+ 1
redundancy.
f. Tenant shall have the right to monitor generator
status, ATS status, generator alarms, fuel oil
pumping and storage system alarms and fuel oil
level via the base building BMS.
g. Tenant has the right to review the selected
equipment and design.
h. Base building BMS and fire alarm system shall be
connected to the generator plant.
i. Each of the elevators serving Tenant's Premises
shall be connected to the generator plant such
that one elevator will be operational for Tenant's
business use in the event of an emergency or power
outage.
Item 8 Tenant shall be responsible for the incremental cost to Landlord for
consumption of temporary electric power resulting from construction of
Tenant Work.
Item 9 TELECOMMUNICATIONS/TELEPHONE SERVICE
1. Two (2) telecommunication entry points will be provided for
Tenants. The point of entries shall be diametrically opposed to
the widest extent allowed by the basement utility conditions and
services in the street. As a minimum, two (2) different building
sides shall be used. Air conditioning, floor drains, leak
detection and intrusion alarms will be provided in the service
entry rooms at Tenant's cost. The Tenant will arrange for his own
telecommunication splices to be brought into the building and
distributed directly to their floors. Incoming service rooms and
all distribution systems will be capable of receiving fiber optic
cabling
N-2
for delivery of services. Additionally, the following
criteria is being maintained for the project:
a. Landlord, at its sole cost and expense, shall
provide six 4" foundation wall penetrations at
each of the XXX'x for the Tenant's exclusive use.
b. Landlord, at its sole cost and expense, shall
provide two 4" EMT conduits from each of the XXX'x
to the Tenant's Premises. These conduits shall
bypass the building frame room and be routed
directly to the Tenant's Premises via two (2)
diverse vertical paths (East and West building
telephone closets).
c. Landlord, at Tenant's expense, shall provide two
to four (2-4) 4" EMT conduits, as directed by the
Tenant, from each of the XXX'x to the Tenant's
Premises. These conduits shall bypass the building
frame room and be routed directly to the Tenant's
Premises via two (2) diverse vertical paths (East
and West building telephone closets),
d. Landlord, at Landlord's expense, shall provide one
4" EMT conduit from the Tenant's main technology
room via the East building telephone closet to the
rooftop for Tenant's satellile and/or microwave
connectivity.
e. Landlord, ,at Tenant's expense, shall provide one
4" EMT conduit from the Tenant's main technology
room via the West building telephone closet to the
rooftop for tenant's satellite and/or microwave
connectivity.
f. Landlord shall provide space (1.0ft./2/ area)
within the East and West Telephone closets for
Tenant's use for the purpose of installing and
maintaining conduit systems (also including pull
boxes and support hardware) to connect future
non-contiguous or partial floors.
g. Tenant shall have the right to install security
devices as necessary in strategic core areas,
common areas and building perimeter locations for
closed circuit television equipment, subject to
Landlord's reasonable approval, not to be
unreasonably withheld.
h. Tenant reserves the right to review the Landlord's
selected security system, if any, in order to
achieve compatibility and common card by access
with Tenant system.
Item 10 Tenant reserves the right to install gas fired domestic water boiler on
the roof or within Landlord's base building mechanical spaces. Landlord
shall provide adequate shaft space for the installation of domestic hot
water supply and return risers for the domestic hot water plant to the
Premises.
Item 11 Landlord to provide a 6" gas connection in the cellar by means of a
valved outlet for Tenant's future use. Meter, piping, and riser is by
Tenant.
Item 12 Landlord to provide at its cost a permanent air quality monitoring
system, which shall monitor base building ventilation systems, for
noxious and
N-3
poisonous gases and micro-biological growth fungus and
bacteria. That system shall monitor continually and monthly
reports shall be produced. Any CO identified by system shall
cause the ventilation system to alarm and automatically
shutdown.
N-4
EXHIBIT O
CONSTRUCTION MANAGERS
Xxxxxxx Construction Co., Inc Xxxx Construction Corp.
000 Xxxx 00/xx/ Xxxxxx 000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Contact: Xx. Xxxx Xxxxx Contact: Mr. Xxxx Xxxxxxxx
Tel: 000 000 0000 Tel: 000 000 0000 x 000
Fax: 000 000 0000 Fax: 000 000 0000
X.X. Xxxxx Construction Group X.X. Xxxxx & Company, Inc.
0 Xxxx 00/xx/ Xxxxxx 00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Contact: Xx. Xxxxxx Xxxxxxxx Contact: Xx. Xxxxxxx Xxxxx
Tel: 000 000 0000 Tel: 000 000 0000
Fax: 000 000 0000 Fax: 000 000 0000
StructureTone Inc. Tishman Realty & Construction
00 Xxxx 00/xx/ Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Contact: Mr. Xxxx Xxxxxxx Contact: Xx. Xxxxxx Xxxx
Tel: 000 000 0000 Tel: 000 000 0000
Fax:
Xxxxxx Construction Company Landlord -
000 Xxxxxx Xxxxxx FCR Construction Division
New York, New York 10014
Contact: Xx. Xxxx XxXxxx
Tel: 000 000 0000
Fax: 000 000 0000
EXHIBIT O
SUBCONTRACTOR LIST
Specialties
X. Xxxx & Co., Inc. Jenteen Partners Inc.
32-15 58th Dt. 00 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Contact: Mr. Art Dover Contact: Xx. Xxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Apex Interiors, Inc.
000 X. 00xx Xx., #x0XX
Xxx Xxxx, XX 00000
Contact: Mr. Xxxxxxx Xxxx
Tel.: 000-000-0000
Fax.: 000-000-0000
Demolition
Avanti Demolition & Carting Corp. Metro Demolition Contracting Corp.
000 Xxxxxx Xxx. 00-00 Xxxxx Xxx.
Xxxxxx, XX 00000 Xxxxxxx, XX 00000
Contact: Xx. Xxxx Xxxxxxxx Contact: Xx. Xxxxxxx Xxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Liberty Contracting Corp. Rite-Way Internal Removal, Inc.
00-00 00xx Xx. 00-00 00xx Xxx.
Xxxxx Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Xx. Xxxxxxxx Xxxxxxx Contact: Xx. Xxxx XxXxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Masonry/Concrete/Fireproofing
EuroTech Construction Corp. Landmark Construction
000 Xxxx 00xx Xx. 000 X. 00xx Xx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Xx. Xxx Xxxxxx Contact: Estimating Department
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000
Xxxxxx Environmental Group
000 X. 00xx Xx., Xxxxx 000
Xxx Xxxx, XX 00000
Contact: Xx. Xxxxx Xxxxxxxx
Tel.: 000-000-0000
Fax.: 000-000-0000
Architectural Woodwork
Xxxx/Xxxxxx Inc. Nordic Interiors, Inc.
000 Xxxx 000xx Xx. 00-00 Xxxxxxx Xxx.
Xxxxx, XX 00000 Xxxxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxxx Contact: Xx. Xxxxx Xxxxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Patella Woodworking Xxxxxxxx/Xxxxxx/Spurge, Inc.
000 Xxxxx Xxxxxx 000 Xxxxxxx Xxx., Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, XX 00000
Contact: Xx. Xxxxxxx Xxxxxxx Contact: Xx. Xxxxxx Xxxxxx
Tel: 000 000 0000 Tel.: 000-000-0000
Fax: 000 000 0000 Fax.: 000-000-0000
Millwright
000 Xxxx 00/xx/ Xxxxxx; Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Contact: Xx. Xxxxxx Xxxxxxxx
Tel: 000 000 0000
Fax: 000 000 0000
Hollow Metal
Acme Architectural Products, Inc. General Fire-Proof Door Corp.
000 Xxxxxx Xxx. 000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
Contact: Mr. David Wardeck Contact: Xx. Xxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax : 000-000-0000 Fax.: 718-893-l770
DCI Metro Inc. Secure Door & Hardware, Inc.
000 Xxxxxxxx Xxxxx Xx. 000 00xx Xx.
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Xx. Xxxxxx Xxxxxxxxxx Contact: Xx. Xxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Hardware
AAA Architectural Hardware Co. DCI Metro Inc.
00 Xxxx 00xx Xx. 000 Xxxxxxxx Xxxxx Xx.
Xxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxx Contact: Xx. Xxxxxx Xxxxxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Acme Architectural Products Secure Door & Hardware, Inc.
000 Xxxxxx Xxx. 000 00xx Xx.
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Mr. David Wardeck Contact: Xx. Xxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Glass & Glazing
F&F Architectural Glass & Metal, Inc. Metralite Industries Inc.
000 Xxxx 000xx Xx. 000-00 00xx Xxx./XX Xxx 0000
Xxxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Xx. Xxxxxx Xxxxxxx Contact: Estimating Department
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Xxxxxxxx Metal & Glass, Ltd. New Jersey Glass Co.
000-00 Xxxxxxx Xxx. 000 Xxxxx 00xx Xx./XX Xxx 0000
Xxxxxxxx Xxxx, XX 00000 Xxxxxx, XX 00000
Contact: Xx. Xxxxxxx Xxxxx Contact: Xx. Xxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Drywall/Carpentry
Xxxxxxxxx Acoustics Co., Inc. Xxxxx Partition Inc.
000 Xxxxxxxx Xxxx. 00 Xxxxxx Xx.
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Xx. Xxxxxxx Xxxxx Contact: Mr. Xxxxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
EuroTech Construction Corp. X.X. Xxxxxxxx, Inc.
000 Xxxx 00xx Xx. P.O. Box 1236
New York, NY 10001 Xxxxxxxxx, XX 00000
Contact: Xx. Xxx Xxxxxx Contact: Xx. Xxxxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Xxxxxxx & Associates Inc. Rivco Construction Corp.
000 Xxxxxxxx Xxxx 246 East 000/xx/ Xxxxxx
Xxxxxx Xxxx Xxxx Xxxxx, Xxx Xxxx 00000
Xxxxxx Xxxx, Xxx Xxxx 00000 Contact: Xx. Xxx Xxxxxxxx
Contact: Xx. Xxxxxxx Xxxxxxx Tel: 000 000 0000
Tel: 000 000 0000 Fax: 000 000 0000
Fax: 000 000 0000
Interstate Drywall
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Contact: Xx. Xxxxx XxXxxxxx
Tel: 000 000 0000
Fax: 000 000 0000
Ceramic Tile & Stone
Interior Design Flooring Corp. Xxxxxxx Xxxxx & Son, Inc.
000 X. 00xx Xx. 0 Xxxxx Xx.
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Mr. Xxx Xxxxx Contact: Xx. Xxxxx Xxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Eastern Design Tile & Marble Port Xxxxxx Tile & Marble Corp.
00 Xxxxxxx Xxxxxx 0000 Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000 Bronx, New York New York 10474
Contact: Mr. Xxxxx X'Xxxx Tel: 000 000 0000
Tel.: 000 000-0000 Fax: 000 000 0000
Fax.: 000 000-0000
Acoustical Ceilings
Xxxxxxxxx Acoustics Co., Inc. X.X. Xxxxxxxx, Inc.
00 Xxxxxx Xx. X.X. Xxx 0000
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Contact: Xx. Xxxxxxx Xxxxx Contact: Xx. Xxxxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
EuroTech Construction Corp. National Acoustics, Inc.
000 Xxxx 00xx Xx. 515 West 36th St., 2nd fl.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Xx. Xxx Xxxxxx Contact: Xx. Xxx XxXxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Xxxxxxx & Associates Inc. Rivco Construction Corp.
000 Xxxxxxxx Xxxx 246 East 000/xx/ Xxxxxx
Xxxxxx Xxxx Xxxx Xxxxx, Xxx Xxxx 00000
Xxxxxx Xxxx, Xxx Xxxx 00000 Contact: Xx. Xxx Xxxxxxxx
Contact: Xx. Xxxxxxx Xxxxxxx Tel: 000 000 0000
Tel: 000 000 0000 Fax: 000 000 0000
Fax: 000 000 0000
Painting & Wallcovering
Xxxxxx-Xxxxx Painting Co., Inc. Xxxxxx Hill Painting Co., Inc.
000 X. 00xx Xx. 00-00 00xx Xxx.
Xxx Xxxx, XX 00000 Xxxx Xxxxxx Xxxx, XX 00000
Contact: Xx. Xxxx Xxxxxx Contact: Mr. Xxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Mid-Manhattan Painting, Inc. Newport Painting & Decorating Co., Inc.
000 00xx Xx. 000 Xxxx 00xx Xx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Xx. Xxxx Xxxxxx Contact: Mr. Xxxxxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax : 000-000-0000 Fax.: 000-000-0000
Raised Flooring
ARI Products, Inc. Hi Tech Data Floors, Inc.
X.X. Xxx 000 1885 Swarthmore Ave.
Morrestown, NJ 08057 Xxxxxxxx, XX 00000
Contact: Xx. Xxxxxxxx Xxxxxx Contact: Xx. Xxxxxx XxXxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Computer Floors, Inc. Raised Computer Floors Inc.
00 Xxxxxxxx Xx. 000 Xx. Xxxxxxx Xxx., Xxxx. "X"
Xxxxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
Contact: Mr. Tor Sundlin Contact: Xx. Xxxxxx Xxxxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Blinds/Window Treatment
City View Blinds of New York Inc. International Blind Contractors, Ltd.
Bklyn Navy Yard Bldg#3/63 Flushing Ave 200 Park Ave. So.
Xxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Mr. Moishe Gold Contact: Mr. Xxxxx Xxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
DFB Sales Inc. LVC Window Blinds & Drapery Inc.
00-00 Xxxxxx Xxx. 000 Xxxxxx Xx.
Xxxx Xxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
Contact: Xx. Xxx Xxxxx Contact: Xx. Xxxx XxxXxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Sprinklers
Abco Peerless Sprinkler Corp. Preferred Sprinkler Corp.
00 Xxxxxxx Xxx. 0000 Xxxxxx Xxx.
Xxxxxxxxxx, XX 00000 Xxxxx, XX 00000
Contact: Xx. Xxxxx Xxxx Contact: Xx. Xxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Triangle Fire Protection Corp.
00-00 Xxxxxx Xxx.
Xxxxxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxxxxxxxx
Tel.: 000-000-0000
Fax.: 000-000-0000
Plumbing
Lab Plumbing & Heating Co., Inc. Preferred Mechanical, Inc.
000 Xxxx 00xx Xx. 0000 Xxxxxx Xxx.
Xxx Xxxx, XX 00000 Xxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxxxxxx Contact: Xx. Xxxx Xxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Par Plumbing Co.
00 Xxxxx Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Contact: Xx. Xxxxx Xxxxxx
Tel.: 000-000-0000
Fax.: 000-000-0000
HVAC/Mechanical
B.P. Air Conditioning Corp. Xxxxxx-Xxxx Inc.
000 Xxxxxxxxxx Xxx. 00-00 Xxxxx Xx.
Xxxxxxxx, XX 00000 Xxxx Xxxxxx Xxxx, XX 00000
Contact: Xx. Xxx Xxxxxxx Contact: Xx. Xxxxx Xxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Harbour Mechanical Corp. Penguin Air Conditioning Corp.
000 Xxxx 00xx Xx. 00 Xxxx Xx.
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Xx. Xxxxxxx Xxxxxxx Contact: Xx. Xxxxxx Xxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Kaback Enterprises, Inc.
00 Xxxx 00/xx/ Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Contact: Mr. Xxxx Xxxxxx
Tel.: 000-000-0000
Fax.: 000-000-0000
X.X. Mechanical Corp.
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Cortact: Xx. Xxxxx Xxxxxx
Tel: 000 000 0000
Fax: 000 000 0000
Manhattan Mechanical
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Contact: Xx. Xxxx Xxxxx
Tel: 000 000 0000
Fax: 000 000 0000
Electrical
Adco Electrical Corp. Forest Electric Corp.
000 Xxxxxxx Xx. Xxx Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000 Xxx Xxxx, XX 00000
Contact: Mr. Xxxxxx Xxxxxx Contact: Xx. Xxxxxx Xxxxxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Xxxxxxxx and Xxxxx Ltd. Unity Electric Co., Inc.
00-00 000xx Xx. 00-00 Xxxxx Xxxxxx Xx.
Xxx Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Contact: Xx. Xxxx Xxxxx Contact: Xx. Xxx Xxxxxxxx
Tel.: 000-000-0000 Tel.: 000-000-0000
Fax.: 000-000-0000 Fax.: 000-000-0000
Xxxxxxxxxxx Electric Company, Inc. X-X Electric Installation Co.
000 Xxxxxx Xxxxxx 00-00 Xxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Tel: 000 000 0000 Contact: Mr. Xxxxxx Xxxx
Fax: 000 000 0000 Tel: 000 000 0000
Fax: 000 000 0000
X.X. Xxxxxxx, Inc.
000 Xxxx Xxxxxx Xxxxx X.X. Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx
Xxxxxxx: Xxx Xxxx, Xxx Xxxx 00000
Tel: 000 000 0000 Contact:
Fax: 000 000 0000 Tel: 000 000 0000
Fax: 000 000 0000
Xxxx X'Xxxx Electric
000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
EXHIBIT P
CONSTRUCTION RULES AND REGULATIONS
1.0 Introduction
These rules and regulations have been established to facilitate the needs
of the tenants within Nine MetroTech South to complete any construction work
following the completion of the initial construction. The building owner
(Forest City Myrtle Associates, LLC. hereinafter defined as (FCMA)) has
designated a building architect and engineer who are familiar with the
building and its critical systems as well as the following rules and
regulations. These professional consultants have been designated in order to
assist with the review and coordination of such alteration work.
Building Architect: Xxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Building Engineer: Xxxxxxx Xxxxxxx
Xxxxxxxxx Associates
0 Xxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Building Expediter: Xxxxxx Ansersen
(Required by FCMA) JAM Consultants
000 Xxxx 00/xx/ Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
FCMA Representative: Xxxxxxx Flocks
Forest City Xxxxxx Companies
0 XxxxxXxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
The use of any other consultants must be approved by (FCMA), which approval
will not be unreasonably withheld or delayed. In the event other consultants
are used; it is required they comply with the following.
2.0 General
(2.1) Tenant will make no alterations, additions, improvements or
replacements (which are hereinafter defined as "alterations") to or about
the premises without (FCMA) prior written consent, and then only by (FCMA)
architects and engineers and contractors or mechanics or Tenant's
consultants approved by (FCMA).
(2.2) Tenant shall, prior to commencement of any work, submit for (FCMA)
written approval, a complete set of plans of the anticipated
"alteration" area.
(2.3) The proposed "alteration" area must comply with all New York City code
requirements as applicable to the "alteration" area.
(2.4) No work will commence without a valid New York City Department of
Buildings permit. If required.
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(2.5) All inquiries, submissions and approvals shall be submitted to the
designated (FCMA) representative.
(2.6) Tenant shall make no "alterations" in the building that are in
excess of One Hundred Thousand Dollars ($100,000.00), provided,
however that on the first anniversary of the "Commencement Date"
and on each anniversary thereafter such amount shall be increased
by multiplying the amount in effect immediately prior to such
anniversary of the "Commencement Date" and the denominator of which
is the index for the month fifteen (15) months prior to such
anniversary of the "Commencement Date". For the purposes of this
Section 2.6, "Index" shall mean the Consumer Price Index, published
by the United States Department of Labor.
3.0 Building Approval
(3.1) Tenant shall submit to (FCMA) the following:
1.) A list of Tenant's proposed contractors and or sub-contractors.
2.) Four complete sets of plans and specifications (when
applicable) properly stamped by a register architect or
professional engineer.
3.) All forms that are required by the most current New York City
Building Code.
(3.2) (FCMA) will return the following to Tenant:
1.) Plans approved or with comments (such approval or comments
shall not constitute a waiver of the Department of Buildings
approval or approval of other jurisdictional agencies)
2.) (FCMA) executed building applications as submitted by Tenant.
3.) Insurance requirements.
4.0 Building Construction Requirements and Procedures
(4.1) Tenant shall obtain Department of Buildings approval and a permit
from the Department of Buildings. Tenant/Contractor shall submit copies
of all approved plans and permits to (FCMA) representative and shall post
the original permit on the premises prior to the commencement of any
work. All work, if performed by a contractor or subcontractor, shall be
subject to reasonable supervision and inspection by an (FCMA)
representative, and Tenant shall not bear any costs for such supervisory
and inspection services.
(4.2) All structural and floor loading requirements shall be subject to
the prior approval of the (FCMA) designated structural engineer. All
third party costs for such review shall be reimbursed to (FCMA) with no
xxxx up by (FCMA).
(4.3) All MEP requirements shall be subject to the prior approval of the
(FCMA) designated mechanical and electrical engineer. When necessary,
(FCMA) will require engineering shop drawings, which drawings must be
approved by the (FCMA) designated engineers before the work can proceed.
All third party costs for such review shall be reimbursed to (FCMA) with
no xxxx up by (FCMA).
(4.4) All building demolition shall be at the direction and supervision
of the designated (FCMA) representative.
(4.5) If a shutdown of the risers, electrical mains or HVAC systems is
required, such work shall be approved by the designated (FCMA)
representative and under building supervision. This work may be required
on an after hours schedule; adequate notice shall be given to (FCMA) for
such shutdowns.
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(4.6) Tenant's Contractor Shall:
(1) Have a superintendent or xxxxxxx on the premises at all
times.
(2) Maintain cleanliness and protection of all areas including
elevators and lobbies.
(3) Protect the front and top of all peripheral HVAC units.
Thoroughly clean units at the completion of such work.
(4) Block off supply and return grills, diffusers and ducts.
(5) Obtain and pay for all permits, including but not limited to
trash removal and street dumpster permits from the City of
New York.
(4.7) All equipment and installations, which are visible from outside
the building, must be equal to the existing base building standards.
Any deviation from the building standards will be permitted only if
indicated or specified on initial set of "approved alteration plans".
(4.8) An air balancing report signed by a professional engineer shall
be submitted to the designated (FCMA) representative.
(4.9) Upon completion of the "alteration", Tenant shall submit to
(FCMA) an executed Form TR-1 (if required) and or other documents
including a sign-off by Tenant's architect indicating total compliance
and final of approval by the New York City Department of Buildings.
(4.10) Tenant shall submit to (FCMA) a final set of "as-built" plans
within 45 days of completion of "alterations".
(4.11) Additional and differing provisions in the "Lease", if any, will
be applicable and will take precedence.
(4.12) Security of Tenant space, tools, material etc. is the
Contractor/Tenant responsibility.
5.0 Electrical
(5.1) All conduits will be supported by standoffs, not to the ceiling
supports.
(5.2) Plans with electrical load requirements shall be submitted to
(FCMA's) electrical engineer to determine existing riser capacity.
(5.3) Contractor/Tenant will provide the extension of existing fire
alarm systems within their space. All wiring shall be in rigid
galvanized steel conduit. Work to be coordinated with (FCMA) designated
fire command company. All costs associated with the programming and
reprogramming of the existing fire command center will be by Tenant.
6.0 Equipment
(6.1) All mechanical equipment shall be suspended with fishplate
through the slab or steel beams depending on the structural load
requirements.
7.0 Public Area Signage
(7.1) All tenant signage in public areas must be in accordance with the
base building standards and approved by the (FCMA) designated
architect. No tenant occupying only a single floor or less shall have
the right to place tenant signage in public areas.
8.0 HVAC
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(8.1) Contractor/Tenant shall be responsible for alterations to the
existing HVAC system and for insuring that such work is properly
integrated into the existing building HVAC systems in accordance with
the "approved alteration plans".
(8.2) Any variation or deviation from the approved HVAC plans must be
brought to the attention of the designated (FCMA) representative.
(8.3) All periphery shut-off valves must be accessible to (FCMA)
building personnel.
(8.4) All exhaust fans shall be discharged to the atmosphere not into
the existing ceilings or building return air systems.
(8.5) All ductwork and condensate lines must be insulated.
9.0 Plumbing
(9.1) All plumbing work will be in accordance with the most current
New York City Building Code.
(9.2) All new fixtures shall match existing base building standards.
The design of specific fixtures need not match each other unless
located in the same lavatory.
(9.3) No exposed plumbing is permitted.
(9.4) All unused piping shall be removed or capped at the respective
riser.
(9.5) All runs from the plumbing risers shall be in copper pipe.
(9.6) All plumbing lines shall be properly insulated where applicable.
(9.7) No modifications to the existing plumbing systems will be
permitted without prior written approval from the designated (FCMA)
representative.
10.0 Sprinklers
(10.1) All sprinkler work will be in accordance with the most current
New York City Building Code.
(10.2) All hydraulic calculations will be provided to designated
(FCMA) representative for review.
(10.3) Pipe and all connections are to be screwed not welded. No
mechanical connections will be permitted within the Tenant space.
(10.4) All sprinkler heads must be Factory Mutual approved.
11.0 Ceilings
(11.1) All ceiling work will be in accordance with the most current
New York City Building Code.
(11.2) All ceiling work will be supported independently.
12.0 Preservation of Utilities
(12.1) The Contractor/Tenant shall take every precaution to preserve
and protect utilities such as power lines, telephone lines, sewers
etc., that may be within the limits of the "alteration work". The
Contractor/Tenant will be charged for all damage caused by the
"alteration work" to the existing utilities within the building.
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13.0 Negligence
(13.1) Any cost of performance due to the negligence of the
Contractor/Tenant or anyone directly employed by him or due to failure
to comply with all applicable laws, ordinances, rules and regulations
which should be generally known to a contractor or due to failure to
observe and comply with the contract either for repairs, replacement,
refinishing, disposal of material wrongly supplied or the making good
of defective work or damage to the property shall be borne by the
Contractor/Tenant.
14.0 Repair to adjacent areas
(14.1) It shall be the responsibility of the Contractor/Tenant to
repair any areas damaged by the approved "alteration work" outside of
the approved work area.
15.0 Material Moving
(15.1) It shall be the responsibility of the Contractor/Tenant to make
all arrangements through the building office and pay all charges for
hoisting, material moving and elevator charges associated with it.
(15.2) Contractor is to contact the building manager for the
scheduling and coordination of freight elevator usage for deliveries
and rubbish removal.
16.0 Protection
(16.1) It will be the responsibility of the Contractor/Tenant to
provide, erect and maintain weather protection, and all other items
required for the proper protection of the workmen engaged in the
demolition operation, the public and any adjacent work areas. To
provide and maintain weather protection at exterior openings so as to
fully protect the interior premises against all damage from the
existing structure designated to remain where demolition and removal
work is being done, connections made, materials handled or equipment
moved.
(16.2) Contractor/Tenant will be responsible for any damage caused to
the existing structure or contents by reason of not providing required
protection.
(16.3) All marble and lobby areas must be protected with masonite or
material with similar protection characteristics.
17.0 Requirements for Construction
(17.1) Construction workers are to enter through a designated entrance
only.
(17.2) All deliveries must be made through a designated area, unless
otherwise directed by building management.
(17.3) Drinking alcohol or the use of drugs will not be permitted.
(17.4) Construction personnel may only use designated bathroom
facilities and must maintain them to the existing building standards.
At the end of the approved "alterations work" bathrooms are to be in
the same condition prior to the commencement of construction; except
for normal wear and tear.
18.0 Requirements for exterior work
(18.1) All exterior work must be tiled and approved with the proper
governmental agencies.
(18.2) Protection must be provided to the general public.
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(18.3) If any work is to take place other than normal business hours,
it must be approved by designated (FCMA) representative.
(18.4) All disturbed public areas must be restored to their original
condition.
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EXHIBIT Q
RULES AND REGULATIONS
The following shall be the Rules and Regulations for the Building except
that, with regard to Tenant (i) Rule I 14 and 17 shall be inapplicable, (ii)
Rule I 15 and 31 shall be superseded by the applicable provisions of the Lease,
(iii) Rule II 7 and 8 shall be inapplicable, and (iv) Rule II 9 shall be
superseded by the applicable provisions of Section 8.2(a) of the Lease:
I. Tenant shall not:
1. Obstruct, encumber or use, or allow to permit any of its employees,
agents, licensees or invitees to use, the sidewalks, driveways, entrances,
passages, courts, arcades, esplanade areas, plazas, elevators, vestibules,
stairways, corridors or halls of the Building, outside of the Premises, in such
a manner as to obstruct ingress and egress to and from the Building or the
Premises.
2. Attach awnings or other projections to the outside walls of the
Building or place bottles, parcels or other articles, or lettering visible from
the exterior, on the windows, windowsills or peripheral air-conditioning
enclosures.
3. Attach to, hang on or use in connection with, any exterior windows or
entrance door of the Premises, any blinds, except as designate by Landlord, or,
at Tenant's option, blinds, shades or screens designated by Tenant and approved
by Landlord, such approval not to be unreasonably withheld. All drapes shall be
hung on the interior side of the window blinds.
4. Place or leave any doormat or other floor covering in any area outside
of the Premises.
5. Exhibit, inscribe, paint or affix any sign, insignia, advertisement,
object or other lettering in or on any windows, doors, walls or part of the
outside or inside of the Building (exclusive of the inside of the Premises)
without Landlord's approval, which approval shall not unreasonably be denied or
withheld. The name(s) of Tenant and any permitted sublessee may be displayed on
the entrance doors and, with respect to any full floor that Tenant leases, the
walls of the elevator lobby on any such floor, of the Premises occupied by each.
The method by which any signs are to be affixed to the Building shall be subject
to Landlord's approval, which shall not be denied provided that Landlord is
satisfied same will not damage the finish of the Building's interior surface
upon removal.
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6. Cover or obstruct the sashes, sash doors, skylights, windows and doors
that reflect or admit light and air into the halls, passageways or other public
areas of the Building.
7. Place in, attach to, put in front of, or affix to any part of the
exterior of the Building, or any of the Building's halls, doors, corridors or
vestibules located outside of the Premises, any lettering, signs, decorations,
showcases, displays, display windows, packages, boxes or other articles, unless
and except to the extent expressly permitted in the Lease.
8. Except in the normal decoration of the interior of the Premises, xxxx,
paint, drill into or in any way deface any part of the Building or the Premises
or cut, bore or string wires therein.
9. Permit or allow bicycles or vehicles of any kind to be brought into or
kept on or about the Building or the Premises other than in any area
specifically provided for same.
10. Make, or permit or allow to be made, any unseemly or disturbing noises,
whether by musical instruments, recordings, radio talking machines, television,
whistling, singing or in any other way, which might unreasonably disturb other
occupants in the Building or those having business with them or impair or
unreasonably interfere with the use or enjoyment by others of neighboring
buildings or Premises.
11. Bring into or keep on any part of the Premises or the Building any
inflammable, combustible, radioactive or explosive fluid, chemical or substance,
other than customary office supplies.
12. Place upon any of the doors (other than closet or vault doors) or
windows in the Building any locks or bolts which shall not be operable by the
grand master key for the Building, or make any changes in locks or the
mechanisms thereof which shall make such locks inoperable by said grand master
key unless such change is approved by Landlord, in which event Tenant shall give
Landlord duplicate keys for such locks or bolts.
13. Remove, or carry into or out of the Premises or the Building, any safe,
freight, furniture, any bulky packages, boxes or crates or any heavy objects
except in such freight or other elevators as Landlord may reasonably determine
from time to time.
14. Engage or pay any employees on the Premises except those actually
working for Tenant in the Premises, or advertise for laborers giving the
Premises as an address.
15. Obtain, permit or allow in the Building the purchase, or acceptance for
use in the Premises, by means of a service cart, vending machines or otherwise,
of any ice, drinking water,
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food, tobacco in any form, beverage, towel, barbering, boot blackening,
cleaning, floor polishing or other similar items or services from any persons,
except such persons, during such hours, and at such places within the Building
and under such requirements as may be reasonably determined by Landlord with
respect to the furnishing of such items and service, provided that the charges
for such items and services by such persons are not excessive.
16. Close and leave the Premises at any time without closing all operable
windows.
17. Permit entrance doors to the Premises to be left open at any time or
unlocked when the Premises are not in use.
18. Encourage canvassing, soliciting or peddling in any part of the
Building outside of the Premises.
19. Use, or permit or allow any of its employees, contractors, suppliers or
invitees to use, any space or part of the Building, including the passenger
elevators or public halls thereof, in the moving, delivery or receipt of safes,
freight, furniture, packages, boxes, crates, paper, office material or any other
matter or thing, any hand trucks, wagons or similar items which are not equipped
with such rubber tires, side guards and other safeguards which shall have been
approved by Landlord or use any such hand trucks, wagons or similar items in any
of the passenger elevators.
20. Cause or permit any food odors or any other unusual or objectionable
odors to emanate from the Premises or permit any cooking or preparation of food
except in areas approved by Landlord and in compliance with local ordinances.
21. Create or permit a public or private nuisance.
22. Throw or allow or permit to be thrown anything out of the doors,
windows or skylights or down the passageways of the Building.
23. Lay vinyl tile or other similar floor covering so that the same shall
come in direct contact with the floor or in a manner or by means of such pastes
or other adhesives which shall not have been approved by Landlord, it being
understood that if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first affixed to the
floor, by a paste or other material which is soluble in water, the use of cement
or other similar adhesive material being expressly prohibited.
24. Use, allow or permit the passenger elevators to be used by Tenant's
working hands (persons in rough clothing handling packages, cartons and
shipments of materials - routine
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mailroorn deliveries excepted) or persons carrying bulky packages or by persons
calling for or delivering goods to or from the demised Premises in a manner
likely to cause damage to the passenger elevators and Tenant shall cooperate
with Landlord in enforcing this rule on those making deliveries to Tenant.
25. Request any of Landlord's agents, employees or contractors to perform
any work, or do anything, outside of their regular duties, unless previously
approved by the Building manager
26. Invite to the Premises or the Building, or permit the visit of,
persons in such numbers or under such conditions as to unreasonably interfere
with the use and enjoyment of any of the plazas, entrances, corridors, arcades,
escalators, elevators or other facilities of the Building by other occupants
thereof.
27. Use, permit or allow the use of any fire exits or stairways for any
purpose other than emergency use, except to the extent expressly provided in the
Lease.
28. Employ any firm, person or persons to move safes, machines or other
heavy objects into or out of the Building, without prior approval of Landlord of
such persons and the manner in which such items will be moved, which approval
shall not be unreasonably withheld or delayed.
29. Install or use any machines or machinery of any kind whatsoever which
may unreasonably disturb any persons outside of the Premises.
30. Use the water and wash closets or other plumbing fixtures for any
purpose other than those for which they were constructed, or allow or permit
sweepings, rubbish, rags or other solid substances to be thrown therein.
31. Install any carpeting or drapes, or paneling, grounds or other
decorative wood products considered furniture, which are not treated with fire
retardant materials and, in such event, shall submit, to Landlord's
reasonable satisfaction, proof or other reasonable certification of the
materials' reasonably satisfactory fire retardant characteristics.
II. Tenant shall:
1. Pay Landlord for any damages, costs or expenses incurred by Landlord
with respect to the breach of any of the Rules and Regulations by Tenant, or any
of its servants, agents, employees, licensees or invitees, or the misuse by
Tenant, or any of the aforesaid, of any fixture or part of the Premises or the
Building and shall cause its servants, agents, employees,
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licensees and invitees to comply with the Rules and Regulations contained in or
provided for by this Lease.
2. Upon the termination of this Lease, turn over to Landlord all keys,
either furnished to, or otherwise procured by, Tenant with respect to any locks
used by Tenant in the Premises or the Building and, in the event of the loss of
such keys, pay to Landlord the cost of procuring same.
3. Subject to the provisions of Article 34 hereof, refrain from, and
immediately upon receipt of notice thereof, discontinue any violation or breach
of the Rules and Regulations contained in or provided for by this Lease.
4. Request Landlord to furnish passes to persons whom Tenant desires to
have access to the Premises during times other than Business Hours and be
reasonable and liable to Landlord for all persons and acts of such persons for
whom Tenant request such passes.
5. Furnish artificial light and electrical energy (unless Landlord shall
furnish electrical energy as a service included in the Rent) at Tenant's expense
for the employees of Landlord or Landlord's contractors while doing janitorial
or other cleaning services or while making repairs or alterations in the
Premises.
6. Apply at the office of the Building's manager with respect to all
matters and requirements of Tenant which require the attention of Landlord, its
agents or any of its employees.
7. Pay Landlord's reasonable charges for the installation and
replacement of ceiling tiles removed for Tenant by telephone installers or other
in the Premises and public corridors, if any.
8. INTENTIONALLY OMITTED.
9. Pay Landlord's reasonable charges for the hiring or providing of
security guards during times when Tenant, or any subtenant of Tenant, is moving
into or out of portions of the Premises or when significant quantities of
furniture or other materials are being brought into or removed from the
Premises.
10. Comply with such rules and regulations as may be promulgated from
time to time with respect to the use of the common areas of the Metrotech
Complex as are applicable to all tenants of the Metrotech Complex.
III. Landlord shall:
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1. Have the right to inspect all freight objects or bulky matter (except
printed matter) brought into the Building and to exclude from the Building all
object and matter which violate any of the Rules and Regulations contained in or
provided by this Lease.
2. Have the right to require any person leaving the Premises with any
package, or other object or matter, to submit a pass, listing such package or
object or matter, from Tenant.
3. Have no liability or responsibility for the protection of any of
Tenant's property as a result of damage or the unauthorized removal of any such
property resulting wholly or in part from Landlord's failure to enforce in any
particular instance, or generally, any of Landlord's rights.
4. Have the right to require all persons entering or leaving the Building,
during hours other than Business Hours, to sign a register and may also exclude
from the Building, during such hours, all persons who do not present a pass to
the Building signed by Landlord.
5. Furnish passes to persons for whom Tenant requests same.
6. Have the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of other occupants of the Building.
7. Subject to the notice and cure provisions expressly provided in the
Lease, have the right to remove any violation of paragraph I items 2, 3, 4, 5, 6
or 7 of these Rules and Regulations without any right of Tenant to claim any
liability against Landlord, and have the right to impose a reasonable charge
against Tenant for removing any such violation or repairing any damages
resulting therefrom.
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EXHIBIT R
Primary Corporate, Public
and Academic Tenants
Bear Steams & Company
1 MetroTech Center North
Dibner Library and Center
for Advanced Technology
in Telecommunications
5 MetroTech Center
Internal Revenue Service
10 MetroTech Center
X.X. Xxxxxx Xxxxx
0 & 0 XxxxxXxxx Xxxxxx
KeySpan Energy
1 MetroTech Center
Minority Business
Innovation Center
14 MetroTech Center
[MAP OF METROTECH CENTER] New York City Department of
Information Technology &
Telecommunications
00 XxxxxXxxx Xxxxxx
Xxx Xxxx Xxxx Police
Department Public Safety
Answering Center (E-911)
00 XxxxxXxxx Xxxxxx
Xxx Xxxx Xxxx Fire
Department Headquarters
9 MetroTech Center North
Polytechnic University, Xxxxxx Xxxx
6 MetroTech Center
Securities Industry Automation
Corporation (SIAC)
2 MetroTech Center
Verizon
7 & 8 MetroTech Center
EXHIBIT U
BASE BUILDING
TENANT'S MINIMUM SECURITY SPECIFICATIONS
TO BE PROVIDED BY LANDLORD
A. Security CCTV
1. Digital with enough storage for 90 days of activity
2. Cameras located in Elevators, Lobby, Parking Garage, Loading Dock
3. EBCBS to be able to monitor all cameras. Monitors at Tenant's expense
B. Physical Security - 24 hours/7 days
1. Dedicated security personnel in Lobby.
FIRST AMENDMENT OF LEASE
This FIRST AMENDMENT OF LEASE made as of this 23rd day of April, 2002
between FOREST CITY MYRTLE ASSOCIATES, LLC ("Landlord") having an office located
c/o Forest City Xxxxxx Companies, Xxx XxxxxXxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000 and EMPIRE HEALTHCHOICE, INC. d/b/a EMPIRE BLUE CROSS BLUE SHIELD, a New
York not-for-profit corporation ("Tenant") having an office at 00 Xxxx 00/xx/
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter, this "First Amendment").
W I T N E S S E T H:
WHEREAS, Landlord, as landlord, and Tenant, as tenant, entered into a
certain Agreement of Lease, dated as of January 17, 2002, (the "Lease") for the
lease of certain premises more fully and particularly described in the Lease
(the "Premises") on the second through ninth (2/nd/-9/th/) floors of the
building known as Nine MetroTech Center South, Borough of Brooklyn, County of
Kings, New York;
WHEREAS, Landlord and Tenant now desire to amend the Lease as hereinafter
set forth.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the parties, and intending to be legally bound hereby, the
parties hereto by these presents do covenant and agree as follows:
1. The following provisions of the Lease are hereby amended as follows:
(a) Section 7.1(d) of the Lease is hereby deleted and replaced with
the following:
"(d) Tenant has advised Landlord that Tenant presently intends to
convert into a for-profit corporation that will be a wholly-owned
subsidiary of a publicly traded corporation to be known as "WellChoice"
("Well") promptly upon obtaining all necessary regulatory approvals and the
fulfillment of all other requirements and conditions for the closing of
such transaction or series of transactions, and, in connection with such
transaction or series of transactions, Tenant presently intends to transfer
all or substantially all of its assets to Well (such transactions are
hereinafter collectively referred to as the "Conversion"), or wholly-owned
direct or indirect subsidiaries of Well, and in connection with such
transfer of all or substantially all of its assets, to assign this Lease to
Well. Accordingly, supplementing Section 7.1(b) and without limiting any
other provision of this Article 7, Landlord expressly agrees that Tenant
shall have the right, upon prior notice to Landlord, but without the
consent of Landlord, to assign this Lease to Well, or a successor
corporation or partnership, or an Affiliate of Well or an entity acquiring
all or substantially all of the issued and outstanding stock or all or
substantially all of the assets of Well (provided, that the acquiring
entity, on a consolidated basis with all of its wholly-owned direct or
indirect subsidiaries, shall have a tangible net worth immediately
following such acquisition at least equal to the tangible net worth of Well
immediately prior to such acquisition), and to have Well assume all the
obligations under this Lease, which assignment and assumption are intended
to be incident to the Conversion; provided, however, that (i) Well shall
provide Landlord and/or any
Mortgagee with a debt credit rating (or shadow rating) report by Standard
and Poors and/or Xxxxx'x with respect to Well and its direct and indirect
wholly-owned subsidiaries (A) promptly following the request of any
Mortgagee made after the effective date of any such assignment and
assumption, and (B) thereafter from time to time promptly following the
reasonable request by Landlord or the request any Mortgagee, and (ii) the
other conditions set forth in Section 7.1(b) are satisfied. In the event
that Well shall not, at the time of any such request, be able to provide a
debt credit rating by Standard and Poors and/or Xxxxx'x, Well shall
promptly make all necessary arrangements to obtain a shadow rating with the
foregoing rating agencies, and shall cooperate with such agencies and
provide all information regarding the businesses and affairs of Well and
its direct and indirect wholly-owned subsidiaries as such agencies shall
customarily require in order to obtain such shadow rating, it being
acknowledged and agreed by Tenant and Well that the obligation to provide
any such debt credit rating (or shadow rating) report shall be a material
obligation under this Lease. Within ten (10) Business Days after the
closing of the Conversion, Tenant shall deliver to Landlord a fully
executed counterpart original of an assignment and assumption agreement
effectuating, pursuant to the Conversion, the assignment of this Lease from
Tenant to Well and the assumption by Well of all of the obligations of
Tenant under this Lease, which assignment and assumption shall be effective
upon the closing of the Conversion."
(b) Section 7.13 of the Lease is hereby deleted and replaced with the
following:
"(a) If (1) there shall be an assignment of this Lease by Tenant to
any entity other than Well having a Minimum Credit Rating (as hereinafter
defined) both on the date of Tenant's Notice (if applicable) and on the
effective date of the assignment and assumption, and an assumption by such
entity of all the obligations of Tenant under this Lease, in each case in
accordance with the terms of this Article 7, and provided Tenant shall not
be in default of any of its monetary and material non-monetary obligations
hereunder either on the date of Tenant's Notice (if applicable) or on the
effective date of the assignment and assumption, and (2) such assignee
shall have a Minimum Credit Rating, then Tenant (i.e., the assignor) shall
be released from any and all liability hereunder (except with respect to
obligations that expressly survive the Expiration Date, and except for the
obligation to provide and maintain in full force and effect the Letter of
Credit (or a replacement thereof) as required pursuant to Article 43 of
this Lease) accruing from and after the later to occur of (i) the effective
date of such assignment and assumption and (ii) the date on which Tenant
shall establish to Landlord's reasonable satisfaction and Mortgagee's
satisfaction that such assignee has the Minimum Credit Rating. The term
"Minimum Credit Rating" shall mean in connection with any assignment or
subletting permitted under this Article 7, that the assignee or subtenant,
as applicable, has a debt credit rating by Standard and Poors and/or
Xxxxx'x equal to or greater than "BBB+" and/or "Baal", respectively.
(b) If (1) there shall be an assignment of this Lease by Tenant to
Well, and an assumption by Well of all obligations of Tenant under this
Lease, in each case in accordance with the terms of Section 7.1(d) of this
Lease, including, without limitation, an assumption by Well of all
obligations of Tenant that accrued prior to the Asset Transfer Date and the
obligation to provide and maintain in full force and effect the Letter of
Credit (or a replacement thereof) as required pursuant to Article 43 of
this Lease, and (2) Tenant shall not be in default of any of its monetary
or material non-
2
monetary obligations hereunder either on (A) the date of Tenant's Notice
(if applicable), (B) the effective date of the assignment and assumption,
or (C) the Asset Transfer Date (as hereinafter defined), and (3) on or
prior to the Asset Transfer Date, Tenant or Well shall provide Landlord and
Mortgagee with a written certification of a Certified Public Accountant (as
hereinafter defined) certifying, to Landlord's reasonable satisfaction and
Mortgagee's satisfaction, that all or substantially all of the assets of
Tenant (i.e., the assignor) have been transferred to Well and/or its direct
and indirect wholly-owned subsidiaries, then Tenant (i.e., the assignor)
shall be released from any and all liability hereunder accruing from and
after the Asset Transfer Date. The term "Certified Public Accountant" shall
mean an independent, nationally-recognized certified public accountant
reasonably satisfactory to Landlord and satisfactory to Mortgagee, and the
term "Asset Transfer Date" shall mean the date on which all or
substantially all of the assets of Tenant (i.e., the assignor) have been
transferred to Well and/or its direct and indirect wholly-owned
subsidiaries. At any time that there has been an assignment of this Lease
by Tenant to Well and until all of the conditions of 1, 2 and 3 above have
been satisfied and the Asset Transfer Date has occurred, both Tenant and
Well shall be jointly and severally liable for all of Tenant's payment and
performance obligations under this Lease."
2. The definition of the term "Guarantor" in Section 12.1 is hereby
deleted.
3. The parties confirm that Landlord commenced of construction of the
Building on or about November 15, 2001 and has diligently prosecuted
construction of the Building through the date hereof.
4. Tenant has timely given an Early Expansion Notice pursuant to Section
40.1(a) of the Lease, and the Early Expansion Space consists of the entire
10/th/ and 11/th/ floors of the Building. Tenant has not given a Reduction
Notice pursuant to Section 40.1(b) of the Lease, and Tenant's right to give a
Reduction Notice has expired or been irrevocably waived.
5. The sum of "Eleven Million Two Hundred Seventy-Seven Thousand Nine
Hundred and Eighty and 00/100 Dollars ($11,277,980)" in Section 16.20(b)(i)(A)
of the Lease is hereby deleted and replaced with the sum of "Thirteen Million
Seven Hundred Thirty-Seven Thousand Nine Hundred and Ninety and 00/100 Dollars
($13,737,990)". The sum of "One Million Two Hundred Fifty-Nine Thousand Four
Hundred and Thirty-Five and 00/100 Dollars ($1,259,435)" in Section
16.20(b)(i)(B) of the Lease is hereby deleted and replaced with the sum of "One
Million Five Hundred Two Thousand Three Hundred Nineteen and 00/100 Dollars
($1,502,319)". The parenthetical expression "as each of (A) and (B) may be
adjusted pursuant to Section 40.1(b)(iv))" in Section 16.20(b)(i) is hereby
deleted.
6. Section 1.3(a)(iv)(C) is hereby amended to delete the words "actual
portion of" and "drawn down" in the first and second lines of such clause (C),
it being agreed by Landlord and Tenant that if the entire Rentalized Amount
shall not be drawn down by Tenant in accordance with Sections 16.20(d) and (e)
of the Lease as of the Rent Commencement Date, Landlord shall deposit the
balance of the Rentalized Amount remaining to be disbursed to Tenant into an
interest-bearing escrow account maintained with the Institutional Lender making
its construction loan, and Tenant shall (1) continue to have the right to draw
down the balance of the Rentalized Amount remaining to be disbursed pursuant to
Sections 16.20(d) and (e) of the Lease, together with any interest accruing on
the sums held from time-to-time in such escrow account,
3
in accordance with such Sections, and (2) Tenant shall make payments of interest
to Landlord required under Section 1.3(a)(iv) on the entire Rentalized Amount.
7. Section 43.2 of the Lease is hereby modified by adding the following at
the end thereof:
Furthermore, Landlord shall have the right at any time and from
time-to-time to transfer any interest Landlord may have in the Letter of
Credit to Landlord's then Institutional Lender, which shall thereafter have
the rights of Landlord under the Letter of Credit to draw down the full
amount of the Letter of Credit pursuant to the terms of this Section 43.2
and apply the proceeds thereof to the repayment of any loan made by such
Institutional Lender to Landlord on account of the Rentalized Amount. For
the avoidance of doubt, Landlord and Tenant agree that the rights of
Landlord or Landlord's Institutional Lender to draw down the full amount of
the Letter of Credit and apply the proceeds thereof to the repayment of any
loan made by such Institutional Lender to Landlord on account of the
Rentalized Amount shall not be limited or impaired in any way as a result
of (a) any bankruptcy filing or proceeding by or against Tenant, (b) any
limit or cap on Landlord's claim against Tenant in any such bankruptcy
filing or proceeding or (c) any rejection of this Lease in a bankruptcy of
Tenant.
8. The Lease, as amended by this First Amendment, sets forth the entire
understanding and agreement of Landlord and Tenant with respect to the Premises
and the transactions set forth therein and herein, and any and all prior
understandings or agreements, oral or written, between Landlord and Tenant are
merged herein. Neither the Lease nor this First Amendment may be changed orally,
but only by an agreement in writing signed by Landlord and Tenant.
9. The covenants, conditions, provisions and agreements contained in this
First Amendment shall bind and inure to the benefit of the parties hereto and
their respective legal representatives, successors and, except as otherwise
provided in the Lease, their respective permitted assigns.
10. Capitalized terms used and not otherwise defined herein shall have the
respective meanings set forth in the Lease.
11. This First Amendment may be executed by the undersigned on any number
of separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
12. Except as specifically amended by this First Amendment, all terms and
conditions of the Lease shall remain in full force and effect. The Lease, as
amended by this First Amendment, is hereby ratified and confirmed by Landlord
and Tenant for all purposes and in all respects.
13. (a) Tenant has requested and Landlord has agreed, subject to the
provisions of this Paragraph 13, (i) to enter into a Change Order modifying
Paragraph C.1. of Exhibit J to the Lease by, among other things, providing, as
part of the Base Building Work, two (2) rather than one (1) DX variable air
volume unit(s) (the "DX unit(s)") for each floor of the Premises (the "DX Change
Order"), (ii) that all DX units in the Premises shall be connected to Tenant's
exclusive electric risers and two of such DX units on an office floor of the
Premises selected by Landlord and in a location reasonably agreed upon by
Landlord and Tenant shall be sub-metered
4
(collectively, the "Sub-Metered DX Units") so as to measure Tenant's consumption
of electricity on a rentable square footage basis in that portion of the
Premises served by such Sub-Metered DX Units during Business Hours during the
Base Operating Expense Year, (iii) that Tenant shall pay for the electricity
used to operate all DX units in the Premises during Business Hours directly to
the public utility company, and (iv) that there shall be an annual credit to
Tenant's Operating Expense Payment equal to the Base Year DX Unit Business Hours
Electric Cost as more fully set forth in sub-paragraph (d) below.
(b) The scope of work for the DX Change Order is set forth in the
correspondence attached hereto as Exhibit A and in Landlord's construction
bulletin 8 which Tenant is currently reviewing in accordance with the applicable
provisions of the Lease. Notwithstanding anything to the contrary in Section
16.5(a) of the Lease: (i) Landlord has provided Tenant with a proposal including
Landlord's estimate of the costs to be incurred by Tenant if Landlord performs
the DX Change Order; (ii) Tenant has tentatively accepted Landlord's proposal,
subject only to Landlord furnishing reasonably detailed back-up for Landlord's
cost estimate (the "DX Change Order Back-Up") to Tenant for Tenant's approval;
(iii) Landlord shall furnish the DX Change Order Back-Up to Tenant as soon as
reasonably practicable after the execution and delivery of this First Amendment
by Landlord and Tenant; (iv) Tenant's approval of the DX Change Order Back-Up
shall constitute final acceptance of Landlord's proposal by Tenant; (v) in order
to minimize Tenant Delay in connection with incorporating the DX Change Order
into the Base Building Work, Landlord shall commence work on the DX Change Order
prior to Tenant's approval of the DX Change Order Back-Up; and (vi) within five
(5) Business Days after Tenant's receipt of the DX Change Order Back-Up, Tenant
shall either approve the DX Change Order Back-Up or withdraw its request for the
DX Change Order (Tenant's failure to approve the DX Change Order Back-Up within
such five (5) Business Day period shall constitute Tenant's election to withdraw
its request for the DX Change Order); provided, however, that in the event that
Tenant in good faith believes Landlord has made an arithmetic miscalculation in
the cost estimate contained in the DX Change Order Back-Up, then the DX Change
Order shall be deemed approved and the parties shall mutually and reasonably
agree to correct such arithmetic miscalculation.
(c) Landlord acknowledges that as a consequence of the DX Change
Order, the electricity used by Tenant to operate all DX units in the Premises
during Business Hours shall be paid for by Tenant directly to the public utility
company, all in accordance with Article 4 of the Lease. Accordingly, if Tenant
approves the DX Change Order Back-Up and thereby accepts Landlord's proposal for
the DX Change Order, then upon such approval and acceptance Section 3.2(a)(iv)
of the Lease shall be deemed amended to delete the words "so-called `DX Units'
(or similar apparatus) within tenantable portions of the Building during
Business Hours" from the definition of "Building Operating Expenses", and
deleting from exclusion (3) of such definition the words "other than electricity
for the operation of so-called `DX Units' (or similar apparatus) within
tenantable portions of the Building during Business Hours".
(d) As part of the DX Change Order, Landlord shall install sub-meters
or other devices as shall be necessary in order to measure the electricity used
by Tenant to operate the Sub-Metered DX Units in the Premises during Business
Hours during the Base Operating Expense Year (the "DX Sub-Meter"). If Tenant
approves the DX Change Order Back-Up and thereby accepts Landlord's proposal for
the DX Change Order, then (1) Landlord agrees to cause Quad Logic or any other
reputable submeter company selected by Landlord (the "Sub-Meter Reader"), to
monitor the DX Sub-Meter so as to measure the electricity used by Tenant to
operate the Sub-Metered DX Units during Business Hours during the Base Operating
Expense
5
Year, and Landlord shall furnish Tenant, as part of the first Operating Expense
Statement issued by Landlord pursuant to Section 3.2(c) of the Lease, with a
reasonably detailed analysis of the cost per rentable square foot of the
Premises (excluding for these purposes, the rentable square footage of Tenant's
data center in the Premises and any other portion of the Premises served by
supplemental (i.e. not general office use) DX units) which would have been
incurred by Landlord to the public utility company in order to furnish the
electricity used by Tenant to operate all DX units in the Premises (excluding
for these purposes, the rentable square footage of Tenant's data center in the
Premises and any other portion of the Premises served by supplemental (i.e. not
general office use) DX units) during Business Hours during the Base Operating
Expense Year (the "Base Year DX Unit Business Hours Electric Cost"), which
calculation shall be based upon the product of (A) the cost per rentable square
foot which would have been incurred by Landlord to the public utility company in
order to furnish the electricity used by Tenant to operate the Sub-Metered DX
Units during Business Hours during the Base Operating Expense Year, multiplied
by (B) the rentable square footage of the Premises (including for this purpose,
the rentable square footage of Tenant's data center in the Premises and any
other portion of the Premises served by supplemental (i.e. not general office
use) DX units) during the Base Operating Expense Year; (2) Tenant shall have the
right to (A) dispute the Base Year DX Unit Business Hours Electric Cost in
accordance with Section 3.3(a) of the Lease, (B) dispute the readings made by
the Sub-Meter Reader with respect to the DX Sub-Meter and (C) check the DX
Sub-Meter from time to time during the Base Operating Expense Year to confirm
the Sub-Meter Reader's readings thereof; and (3) Landlord and Tenant agree that
during the Term there shall be an annual credit to Tenant's Operating Expense
Payment equal to the Base Year DX Unit Business Hours Electric Cost, which
credit shall be given in twelve (12) equal monthly installments equal to
one-twelfth (1/12/th/) of the Base Year DX Unit Business Hours Electric Cost.
(e) If Tenant disapproves the DX Change Order Back-Up or Tenant's
request for the DX Change Order is deemed withdrawn, then (i) Landlord shall
install the DX units referred to in the existing Paragraph C.1. of Exhibit J to
the Lease instead of the DX Units referred to in the DX Change Order, (ii)
Tenant shall reimburse Landlord, within thirty (30) days after receipt of
Landlord's invoice therefor, for all reasonably documented costs incurred by
Landlord in connection with stopping work on the DX Change Order and reinstating
the work set forth in the existing Paragraph C.1. of Exhibit J to the Lease,
(iii) all delays incurred by Landlord in commencing or completing the Initial
Base Building Work or in commencing or completing any item(s) of the Post
Delivery Base Building Work and arising from stopping work on the DX Change
Order and reinstating the work set forth in the existing Paragraph C.1. of
Exhibit J to the Lease shall be deemed Tenant Delays, (iv) notwithstanding
anything to the contrary in Section 16.7(a) of the Lease, no further notice to
Tenant of the circumstances giving rise to such Tenant Delays shall be required,
but Landlord shall provide a reasonably detailed initial estimate of the extent
of the time delay and the increase in Landlord's costs within thirty (30) days
after Tenant's withdrawal or deemed withdrawal of the DX Change Order as set
forth above, and thereafter Landlord shall advise Tenant of any additional time
delay or increased costs promptly after Landlord has actual knowledge of same,
(v) Landlord shall be entitled to all rights and remedies available to Landlord
under the Lease with respect to such Tenant Delays, (vi) any costs to be
reimbursed by Tenant pursuant to subsection (ii) of this subparagraph (e) shall
be disregarded for purposes of the Five Million Dollar ($5,000,000) limitation
set forth in the last sentence of Section 16.7(b) of the Lease; and (vii) the
provisions of subparagraphs (c) and (d) of this Paragraph 13 shall be of no
further force and effect.
6
IN WITNESS WHEREOF, the parties hereto have respectively executed this
First Amendment as of the day and year first above written.
Landlord: FOREST CITY MYRTLE ASSOCIATES, LLC
By: RRG Myrtle, LLC, Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: XXXXX X. XXXXXXXX
Title: SR. VICE PRESIDENT
Tenant: EMPIRE HEALTHCHOICE, INC. d/b/a
EMPIRE BLUE CROSS BLUE SHIELD
By:________________________________
Name:
Title:
7
IN WITNESS WHEREOF, the parties hereto have respectively executed this
First Amendment as of the day and year first above written.
Landlord: FOREST CITY MYRTLE ASSOCIATES, LLC
By: RRG Myrtle, LLC, Member
By:______________________________
Name:
Title:
Tenant: EMPIRE HEALTHCHOICE, INC. d/b/a
EMPIRE BLUE CROSS BLUE SHIELD
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx, MD
Title: CEO
7
EXHIBIT A
FOREST CITY MYRTLE
ASSOCIATES LLC
April 12th, 2002
Xx. Xxxxxxx Xxxxxxxx
Linea Architects
000 Xxxx 00/xx/ Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000
RE: Lease between "Empire HealthChoice, Inc. d/b/a
Blue Cross Blue Shield and Forest City Myrtle
Associates, LLC."
Dear Xxxxxxx,
Attached is the Landlord's TAW #1 for the splitting of the HVAC units in the
amount of $409,089.46. Also attached is Landlord's TAW #2 in the amount of
642,834.00 for the N+1 upgrade for the mechanical systems portion only. Please
have the appropriate person execute the attached and process for payment. Upon
receipt back to Forest City, we will execute and provide Empire with a fully
executed copy.
Should you have any further questions please call me at 000-000-0000.
Sincerely,
/s/ Xxxxxxx Flocks
----------------------------
Xxxxxxx Flocks
cc: w/ attachment
Xxxxxx Xxxxx
Xxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxx Xxxxxxxx
Xxx Xxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx, Esq.
Xxxx Xxxxxxx, Esq.
EHC, Inc., General Counsel
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxx
1 MetroTech Center North Brooklyn NY 00000 (000) 000-0000 Fax: (000) 000-0000
================================================================================
Forest City Myrtle Associates, LLC TENANT ADDITIONAL WORK
0 Xxxxx Xxxx Xxxxxx Xxxxx Xx. 00000
3rd Floor Phone: 000-000-0000
Xxxxxxxx, XX 00000 Fax: 000-000-0000
--------------------------------------------------------------------------------
TITLE: Splitting of the HVAC Units DATE: 4/11/2002
PROJECT: 9 MetroTech South JOB: 1381
TO: Empire Blue Cross Blue Shield CONTRACT NO: 1381-00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxxx
RE: To: From: Number:
DESCRIPTION OF CHANGE
This Tenant Additional Work (TAW) is for the splitting of the HVAC units. The
cost is as follows:
$374,830.00 - ASM Mechanical
$ 26,238.10 - General Conditions 7%
$ 8,021.36 - Fee 2%
--------------------
$409,089.46
Unit Cost: $0.00
Unit Tax: $0.00
Lump Sum: $409,089.46
Lump Tax: $0.00
------------
Total: $409,089.46
---------------------------------------------------------------------------------------------------
The Original contract Sum was ........................................................ $0.00
Net Change by Previously Authorized Requests and Changes ............................. $0.00
The Contract Sum Prior to This Tenant Additional Work was ............................ $0.00
The Contract Sum Will be Increased ................................................... $409,098.46
The New Contract Sum Including This Tenant Additional Work ........................... $409,089.46
The Contract Time Will Not be Changed ................................................
The Date of Substantial Completion as of this Tenant Additional Work Therefore is ....
---------------------------------------------------------------------------------------------------
ACCEPTED:
Empire Blue Cross Blue Shield Forest City Myrtle Associates, LLC FCR Construction Services, LLC
By:__________________________ By:_______________________________ By:___________________________
Xxxx Xxxxxxx Matt Flocks Xxxxxx Xxxxxxxx
Date:________________________ Date:_____________________________ Date:_________________________
--------------------------------------------------------------------------------
Forest City Myrtle Associates, LLC TENANT ADDITIONAL WORK
0 Xxxxx Xxxx Xxxxxx Xxxxx Xx. 00000
3rd Floor Phone: 000-000-0000
Xxxxxxxx, XX 00000 Fax: 000-000-0000
--------------------------------------------------------------------------------
TITLE: Splitting of the HVAC Units DATE: 4/ll/2002
PROJECT: 9 MetroTech South JOB: 1381
TO: Empire Blue Cross Blue Shield CONTRACT NO: 1381-00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxxx
RE: To: From: Number:
DISTRIBUTION OF CHANGE
Total to Distribute: $409,089.46
999999-C-74J Tenant Recoverables - Empire Blue $409,089.46
------------
Total Distributed: $409,089.46
Forest City Myrtle
ASSOCIATES LLC
March 26, 2002
Xx. Xxxxxxx Xxxxxxxx
Linea Architects
000 Xxxx 00/xx/ Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000
RE: Lease between "Empire HealthChoice, Inc.
d/b/a Blue Cross Blue Shield and Forest City
Myrtle Associates, LLC."
Dear Xxxxxxx,
Please find attached the additional back-up for the splitting of the HVAC-units
as requested at last weeks job meeting. In addition, ASM Mechanical Systems
contacted AMA to clarify any questions I believe they had as it related to this
change.
Should you have any questions please call me at 000-000-0000.
Sincerely,
/s/ Xxxxxxx Flocks
--------------------------
Xxxxxxx Flocks
cc: w/o attachment
Xxxxxx Xxxxx
Xxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxx
ASM Mechanical Systems
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Fax (000) 000-0000
To: Forest City Xxxxxx Date: 3/20/02
One Metrotech Center
Brooklyn, New York Doc No.: PCO-1
Project: 9 Metrotech Center
Attn: Xxx Xxxxxxxx 22-020me
Subject: Low Rise Core Plan Changes
Proposed Change Order
--------------------------------------------------------------------------------
As per your request, below is the itemized breakdown for PCO-1 "Low Rise Core
Plan Changes".
Drafting: $ 1,200.00
Low Rise 2 thru 5
-----------------
Furnish and install duct, $1,200.00/per floor (4 floors) $ 4,800.00
Furnish and install auto damper, $2,000.00/per floor (4 floors) $ 8,000.00
Wiring and controls $800.00/per floor (4 floors) $ 3,200.00
Floor 6 thru 11
---------------
Equipment, $19,250.00/per floor (6 floors) $115,500.00
Set and assemble (6) units, $3,800.00/per floor (6 floors) $ 22,800.00
Piping, valves & gauges, $9,500.00/per (6 floors) $ 57,000.00
Insulation, $1,200.00/per floor (6 floors) $ 7,200.00
Furnish and install duct and lining, $14,000.00/per floor (6 floors) $ 84,000.00
Controls, $3,000.00/per floor (6 Floors) $ 18,000.00
Balancing, $600.00/per floor (6 Floors) $ 3,600.00
-----------
Subtotal $325,300.00
10% Overhead $ 32,530.00
-----------
Subtotal $357,830.00
5% Profit $ 17,000.00
-----------
TOTAL $374,830.00
Should you have any questions, please contact the undersigned.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx
-----------------------
Xxxxxxx Xxxxxxx
President
ASM Mechanical Systems
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Fax (000) 000-0000
To: Forest City Xxxxxx Date: 3/14/02
One Metrotech Center
Brooklyn, New York Doc No.: PCO-1
Project: 9 Metrotech Center
Attn: Xxx Xxxxxxxx 22-020me
Subject: Low Rise Core Plan Changes
Proposed Change Order
Additional charges to furnish and install the following work as shown
on sketches "low rise core plan 2 thru 5, add 6/th/ thru 11/th/ floor", as per
fax dated 3/7/02. (sketches enclosed)
Breakdown:
----------
Drafting = $ 1,200.00
New duct and lining = $114,400.00
Piping and insulation = $127,000.00
Controls = $ 16,000.00
New equipment = $115,400.00
Total cost of proposed change to contract............................$374,000.00
Change to contract completion date................................... 0 days
Originated by ASM Mechanical Systems Acknowledged by Forest City Xxxxxx
Signed: /s/ Xxxxxxx Xxxxxxx Signed:
----------------------------
By: Xxxxxxx Xxxxxxx, President
Date: 3/14/02 __________________________________
(print name here)
Date: __________________________________
[PLAN]
NOTE (WITH 2 UNITS PER FLOOR)
-----------------------------
1. EACH UNIT SHALL BE NOMINAL 55-60 TON.
----------
2. MER ROOM TO BE ENLARGED.
--------------------------------
6TH THRU 11TH FL.
-----------------
[PLAN]
NOTE:
-----
1. ALD NORMALLY CLOSED. IF ALD OPEN, SM ON RETURN ON STAND-BY UNIT IS CLOSED.
LOW RISE CORE PLAN
------------------
2ND THRU 5TH FL.
----------------
================================================================================
Forest City Myrtle Associates, LLC TENANT ADDITIONAL WORK
0 Xxxxx Xxxx Xxxxxx Xxxxx Xx.00000
0xx Xxxxx Phone: 000-000-0000
Xxxxxxxx, XX 00000 Fax: 000-000-0000
--------------------------------------------------------------------------------
TITLE: N + 1 Upgrade DATE: 4/11/2002
PROJECT: 9 MetroTech South JOB: 1381
TO: Empire Blue Cross Blue Shield CONTRACT NO: 1381-00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxxx
RE: To: From: Number:
DESCRIPTION OF CHANGE
This Tenant Additional Work (TAW) is for the N + 1 upgrade. The cost is as
follows:
$589,000.00 - ASM Mechanical
$ 41,230.00 - General Conditions 7%
$ 12,604.60 - Fee 2%
-------------------
$642,834.60
Unit Cost: $0.00
Unit Tax: $0.00
Lump Sum: $642,834.60
Lump Tax: $0.00
--------------
Total: $642,834.60
--------------------------------------------------------------------------------------------------
The Original Contract Sum was ........................................................ $0.00
Net Change by Previously Authorized Requests and Changes ............................. $0.00
The Contract Sum Prior to This Tenant Additional Work was ............................ $0.00
The Contract Sum Will be Increased ................................................... $642,834.60
The New Contract Sum Including This Tenant Additional Work ........................... $642,834.60
The Contract Time Will Not Be Changed ................................................
The Date of Substantial Completion as of this Tenant Additional Work Therefore is ....
--------------------------------------------------------------------------------------------------
ACCEPTED:
Empire Blue Cross Blue Shield Forest City Mytrle Association, LLC FCR Construction Services, LL
By: ___________________________ By: _______________________________ By: ____________________________
Xxxx Xxxxxxx Matt Flocks Xxxxxx Xxxxxxxx
Date: _________________________ Date: _____________________________ Date: __________________________
================================================================================
Forest City Myrtle Associates, LLC TENANT ADDITIONAL WORK
0 Xxxxx Xxxx Xxxxxx Xxxxx Xx. 00000
3rd Floor Phone: 000-000-0000
Xxxxxxxx, XX 00000 Fax: 000-000-0000
--------------------------------------------------------------------------------
TITLE: N + 1 Upgrade DATE: 4/11/2002
PROJECT: 9 MetroTech South JOB: 1381
TO: Empire Blue Cross Blue Shield CONTRACT NO: 1381-00
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxxx
RE: To: From: Number:
DISTRIBUTION OF CHANGE
Total to Distribute: $642,834.60
999999-C-74J Tenant Recoverables - Empire Blue $642.834.60
-------------------
Total Distributed: $642,834.60
ASM Mechanical Systems
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Fax (000) 000-0000
Date: 3/8/02
To: Forest City Xxxxxx
One Metrotech Center
Brooklyn, New York Doc No.: Let-1
Project: 9 Metrotech Center
Attn: Xxxx XxxXxxx 22-020me
Subject: Add Alternate 404
Dear Xx. XxxXxxx,
Tenant HVAC enhancement for floors 2 through 10 above base building requirements
to support tenant's critical technology areas and disaster recovery floor with
the following minimum criteria to include:
CW Plant
Increase by 200T plus 200T of spare capacity
Equipment (Primary & secondary pumping equipment) Towers, pumps, plate & frame
exchangers and all associated accessories and components (ie: vibration
isolation, thermometers & gauges, starters, speed drives etc.)
Equipment Add $70,600.00
Piping Add $247,000.00
Insulation Add $35,000.00
Controls Add $140,000.00
Fuel Oil Pumping System
Additional 100KU generator plant fuel oil system, fuel oil pumping and storage
equipment
Fuel Oil Pumping System Add $15,400.00
Fuel Oil Piping Add $81,000.00
TOTAL Add $589,000.00
Approximate - 400 tons @ $1,472.50/ton
Sincerely,
ASM Mechanical Systems
/s/ Xxxxxxx Xxxxxxx
--------------------
Xxxxxxx Xxxxxxx
President
Forest City Myrtle
ASSOCIATES LLC
January 14, 2002
Xx. Xxxxxxx Xxxxxxxx
Linea Architects
000 Xxxx 00/xx/ Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000
RE: Lease between "Empire HealthChoice, Inc. d/b/a
Blue Cross Blue Shield and Forest City Myrtle
Associates, LLC."
Dear Xxxxxxx,
Attached is the Landlords notification for the costs of the N+1 upgrade.
This is in accordance with section 16.5 (a) (iii) of the above referenced Lease.
As you will see from the attached, the estimated cost for the upgrades is
$2,305,833.00. This cost does not include the owners and or owner's
constructions manager's general conditions and fee.
The 1/11/03 documents have been released and a better-defined scope and
price for this work will be available in approximately 3 weeks. We will provide
those numbers to you upon receipt of same.
Should you have any questions please call me at 000-000-0000.
Sincerely,
/s/ Xxxxxxx Flocks
--------------------------
Xxxxxxx Flocks
Project Manager
cc: w/o attachment
Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx, Esq.
Xxxx Xxxxxxx, Esq.
EHC, Inc., General Counsel
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxx
[LETTERHEAD OF ASM MECHANICAL SYSTEMS]
January 10, 2002
Forest City Xxxxxx
One Metrotech Center
Brooklyn, New York
Attn: Xx. Xxx Xxxxxxxx
RE: 9 Metrotech Center
Dear Xx. Xxxxxxxx,
We are pleased to submit our price for the HVAC work at the above referenced
location. All work will be in accordance with mechanical drawings M-001 -- M-503
dated 12/03/01 as prepared by Xxxxxxxxx Associates.
Our price for this work is: $12,240,000.00
Our breakout pricing for Tenant Work is as follows:
1. Fuel Oil Pumping System Add 800 Gls. $ 115,000.00
2. Additional 400 tons Cond. Water plant $ 440,000.00
(NOT INCLUDING DX UNITS)
3. Controls (100 pts.) $ 138,000.00
Excluded from our price:
- Specifications for H.V.A.C work and ATC work
- Power Wiring; Fire Alarm and life safety work
- Seismic requirement (Life Safety only)
- Any tenant distribution work
- Concrete pads, inertia concrete
- Slabs or roof penetrations
- Hoisting charges
- Tower crane -- Pick for equipment, pipe and duct
- Rubbish Removal
- Temporary heat, A/C, ventilation etc.
- Painting and stenciling
[LETTERHEAD OF ASM MECHANICAL SYSTEMS]
Re: 9 Metrotech Center
Continued -- Exclusions
- Fire Smoke and smoke dampers as shown only
- Structural steel work
- Cooling towers service platforms, stairs, railing etc.
- Fire rated enclosures
If you should have any questions, or wish to discuss this further, please feel
free to call me at any time.
Sincerely,
/s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx
President
RM:arm
[GRAPHIC] Xxxx Xxxxxx Electrical, Inc.
Electrical Contractors and Engineers
00-00 00xx Xxxxxx Xxxx Xxxxxx Xxxx, X.X. 00000
Tel. (000) 000-0000 Fax (000) 000-0000
January 14, 2002
Forest City Xxxxxx Companies
Xxx Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Reference: 9 MetroTech Center South
EBCBS-Electrical Enhancements
FGE Estimate #2878-02
Gentlemen:
We are pleased to issue our proposal to provide for electrical work associated
with the EBCBS-Electrical Enhancements in accordance with the following
documents prepared by Xxxxxxxxx Associates:
. Drawings E-302, E-306 and E-401 all dated 12/12/01
. Cosentini Electrical Enhancement items 1 thru 7, 2-pages (undated
received by FCR on 12/18/02)
Proposal Breakdown
------------------
1. Provide additional 1200A service switch at MS-A $17,900.00
2. Provide additional 2000A service switch at MS-B $21,700.00
3. Provide 800A distribution panel DP-HBCBS-A $13,600.00
4. Provide 1600A distribution panel DP-HBCBS-B $21,200.00
5. Feeders for: AC Critical Power:
a) Normal AC Critical Power
DP-HBCBS-A to 2/nd/ floor west $50,200.00
DP-HBCBS-B to 2/nd/ floor east $36,100.00
b) Emergency AC Critical Power:
Paralleling Switchboard 9/th/ floor west $46,700.00
Paralleling Switchboard 9/th/ floor east $33,800.00
Xxxx Xxxxxx Electrical, Inc.
January 14, 2002
Page 2
Reference: 0 XxxxxXxxx Xxxxxx Xxxxx
XXXXX- Electrical Enhancements
FGE Estimate #2878-02
Proposal Breakdown - continued
6. Feeders for: Technical Power:
a) Normal Tech Power
DP-HBCBS-A to 2/nd/ floor west $ 50,200.00
DP-HBCBS-B to 2/nd/ floor east $ 36,100.00
b) Emergency Tech Power:
Paralleling Switchboard to 9/th/ floor west $ 46,700.00
Paralleling Switchboard to 9/th/ floor east $ 33,800.00
7. Normal Non-Critical Supplemental AC Power $ 31,800.00
DP-HBCBS-B to 2/nd/ floor East
8. Emergency Plant:
Total value of Emergency Plant consisting of:
(3) 1500KW - in door generators
(1) Paralleling switchboard
(1) 800A AT'S (serving Dp-HER)
Start Up
Load Bank testing
Commissioning
Total Value = $ 2,210,000.00
Total KW/AMPS = 4500 KW/5421 AMPS
Cost per KW = $491.00 per KW/ $408.00 per AMP
Conclusion:
EBCBS's total fused amps at the paralleling
switchboard is equal to 2600AMPS or 2163 KW @
$491.00 per KW $1,062,033.00
9. Tele Communications Conduit
(6) 4" Foundation sleeves at (2)XXX $ 3,000.00
(2) 4" Conduits 0/xx/ xxxxx xxxx & xxxx xxxx xxxxxx $ 65,000.00
(1) 4" conduit from upper mech PH to 9/th/ floor east and
west telephone closets $ 43,000.00
Total Items 1 thru 9 $1,612,833.00
Xxxx Xxxxxx Electrical, Inc.
January 14, 2002
Page 3
Reference: 0 XxxxxXxxx Xxxxxx Xxxxx
XXXXX- Electrical Enhancements
FGE Estimate #2878-02
We thank you for the opportunity to be of service to you. Should you
require additional information, please contact the undersigned.
Very truly yours,
XXXX XXXXXX ELECTRICAL, INC.
/s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Executive VP
cc: X. Xxxx
COSENTINI
---------
9 SOUTH
EMPIRE BASE BUILDING MEP ENHANCEMENTS WITHOUT FEES
Xxxxxxxxx Associates
Consulting Engineers
HVAC
----
1. 200 tons of additional condenser water plus 200 tons of spare capacity
shall be provided as part of combined condenser water system above
base building requirements. Base building cooling towers, primary and
secondary condenser water pumps, heat exchangers and condenser water
risers will be upsized accordingly. Emergency generators will be
increased in capacity to provide for emergency power to run cooling
tower (cells), pump(s) and critical supplementary A/C units. This is
shown on drawings X-000, X-000, X-000, X-000, M-402.
2. Monitoring of critica1 building system functions using subsystem of
the building management system (BMS), key temperature, status and
alarm points related to condenser water, emergency power, fuel oil,
supplemental A/C, etc. Fee sha11 be provided for tenant use. This
will be shown in base building fina1 specs. Assume 100 Points.
3. Increase fuel oil system to provide emergency power for 1000 KW plus
ful1 standby. Base building fuel system will be sized for life safety
and tenant critical loads. Total plant size is 4500KW including
redundancy. Fuel oil system wil1 be provided for 24 hour service. 2
tanks, risers, pumps (N+1) and connection to day tanks on roof will
be provided. See drawings M-101 and M-503.
Electrical
----------
1. Two (2) 400A, 46OV, 3 phase directly metered feeders shall be provided
from separate electrical services and dedicated for this tenant
distribution panels 1ocated in main switchboard room in the cellar,
and delivered to 2nd floor East and West electrical closets with
diverse distribution routes. Two (2) same size feeders will be
delivered from paralleling switchgear located in lower mechanical
penthouse to 9th floor East and West electrical closets with diverse
distribution routes. These feeders are for tenant's independent
critical air conditioning systems and shall be terminated in pull
boxes in electrica1 closets on floors mentioned above. This is shown
on drawings X-000, X-000 and E-401.
2. Two (2) 400A, 460V, 3 phase directly metered feeders sha11 be provided
from separate electrical services and dedicated for this tenant
distribution panels located in main switchboard room in the cellar,
and delivered to 2nd floor East and West electrical closets with
diverse distribution routes. Two (2) same size feeders will be
delivered from paralleling switchboard located in lower mechanical
penthouse to 9th floor East and West electrical closets with diverse
distribution routes. These feeders are for tenant's technical power
and sha11 be terminated in pull boxes in electrical closets on floors
mentioned above. This is shown on drawings X-000, X-000 and E-401.
Xxxxxxxxx Associates
Consulting Engineers
3. 500A, 460V, 3 phase directly metered feeder shall be delivered to 2/nd/
floor East electrical closet from dedicated for this tenant distribution
panel located in main switchboard room in cellar. This feeder is for
tenant's non-critical supplemental air conditioning system. This
information is shown on drawings X-000, X-000 and E-401.
4. Six (6) 4" sleeves through foundation wall shall be provided at two (2)
diverse X.X.X. for telecommunication system. This information is shown on
drawings E-102 and E-306.
5. Two (2) 4" empty conduits (EMT) shall be delivered to 2/nd/ floor East and
West telephone closets from each X.X.X. with diverse routes. Each closet
shall receive two (2) conduits, one from each X.X.X. These conduits are for
tenant's telecommunication system and will bypass building main telephone
closets. This information is shown on drawing E-102 and E-306.
6. Separate 4" empty conduits (EMT) shall be delivered to 9/th/ floor East and
West telephone closets with diverse routes from satellite equipment closet
located in upper mechanical penthouse. These conduits are for tenant's
telecommunication system. This information is shown on drawing E-306.
7. The switchboards, generator plant, and paralleling switchgear are
increasing in size to accommodate for redundancy and 1000KW of emergency
power plus full standby (N/1). This information is shown on drawings E-111,
E-301, and E-401.
[LETTERHEAD OF FOREST CITY MYRTLE]
March 26, 2002
Xx. Xxxxxxx Xxxxxxxx
Linea Architects
000 Xxxx 00/xx/ Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000
RE: Lease between "Empire HealthChoice, Inc. d/b/a
Blue Cross Blue Shield and Forest City Myrtle
Associates, LLC."
Dear Xxxxxxx,
Please find attached the additional back-up for the splitting of the HVAC units
as requested at last weeks job meeting. In additon, ASM Mechanical Systems
contacted AMA to clarify any questions I believe they had as it related to this
change.
Should you have any questions please call me at 000-000-0000.
Sincerely,
/s/ Xxxxxxx Flocks
--------------------------
Xxxxxxx Flocks
cc: w/o attachment
Xxxxxx Xxxxx
Xxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxx
ASM Mechanical Systems
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Fax (000) 000-0000
To: Forest City Xxxxxx Date: 3/20/02
One Metrotech Center
Brooklyn, New York Doc No.: PCO-1
Project: 9 Metrotech Center
Attn: Xxx Xxxxxxxx 22-020me
Subject: Low Rise Core Plan Changes
Proposed Change Order
As per your request, below is the itemized breakdown for PCO-1 "Low Rise Core
Plan Changes".
Drafting: $ 1,200.00
Low Rise 2 thru 5
-----------------
Furnish and install duct, $1,200,00/per floor (4 floors) $ 4,800.00
Furnish and install auto damper, $2,000.00/per floor (4 floors) $ 8,000.00
Wiring and controls $800.00/per floor(4 floors) $ 3,200.00
Floor 6 thru 11
---------------
Equipment, $19,250.00/per floor,(6 floors) $115,500.00
Set and assemble (6) units $3,800.00/per floor (6 floors) $ 22,800.00
Piping, valves & gauges, $9,500.00/per (6 floors) $ 57,000.00
Insulation, $1,200.00/per floor (6 floors) $ 7,200.00
Furnish and install duct and lining, $14,000.00/per floor (6 floors) $ 84,000.00
Controls, $3,000.00/per floor(6 Floors) $ 18,000.00
Balancing, $600.00/per floor(6 Floors) $ 3,600.00
-----------
Subtotal $325,300.00
10% Overhead $ 32,530.00
-----------
Subtotal $357,830.00
5% Profit $ 17,000.00
-----------
TOTAL $374,830.00
Should you have any questions, please contact the undersigned.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx
---------------------
Xxxxxxx Xxxxxxx
President
ASM Mechanical Systems
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Fax (000) 000-0000
To: Forest City Xxxxxx Date: 3/14/02
One Metrotech Center
Brooklyn, New York Doc No.: PCO-1
Project: 9 Metrotech Center
Attn: Xxx Xxxxxxxx 22-020me
Subject: Low Rise Core Plan Changes
Proposed Change Order
Additional charges to furnish and install the following work as shown on
sketches "low rise core plan 2 thru 5, add 6/th/ thru 11/th/ floor", as per fax
dated 3/7/02. (sketches enclosed)
Breakdown:
Drafting = $ 1,200.00
New duct and lining = $114,400.00
Piping and insulation = $127,000.00
Controls = $ 16,000.00
New equipment = $115,400.00
Total cost of proposed change to contract ......................... $374,000.00
Change to contract completion date ................................ 0 days
Originated by ASM Mechanical Systems Acknowledged by Forest City Xxxxxx
Signed: /s/ Xxxxxxx Xxxxxxx Signed:
-----------------------------
By: Xxxxxxx Xxxxxxx, President
Date: 3/14/02 __________________________________
(print name here)
Date:_____________________________
[6TH THRU 11TH FL. PLAN]
[LOW RISE CORE PLAN 2ND THRU 5TH FL.]
