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AGREEMENT OF LEASE
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111 CHELSEA LLC
LANDLORD
AND
XXXXXXXXXXXXXX.XXX LLC
TENANT
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PREMISES: Portions of the Ninth Floor
000 Xxxxxx Xxxxxx
(a/k/a 00 Xxxxx Xxxxxx)
Xxx Xxxx, Xxx Xxxx 00000
DATED: as of October 1, 1999
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TABLE OF CONTENTS
Page
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DEFINITIONS ............................................................ 1
ARTICLE 1. DEMISE, PREMISES, TERM, RENT................................ 7
ARTICLE 2. USE AND OCCUPANCY........................................... 8
ARTICLE 3. ALTERATIONS.................................................11
ARTICLE 4. CONDITION OF THE PREMISES; LANDLORD'S WORK..................14
ARTICLE 5. REPAIRS; FLOOR LOAD.........................................17
ARTICLE 6. REAL ESTATE TAXES AND LABOR RATE INCREASES..................19
ARTICLE 7. LEGAL REQUIREMENTS..........................................24
ARTICLE 8. SUBORDINATION AND NON-DISTURBANCE; ESTOPPEL CERTIFICATES....26
ARTICLE 9. SERVICES....................................................29
ARTICLE 10. INSURANCE...................................................40
ARTICLE 11. DESTRUCTION OF THE PREMISES; PROPERTY LOSS OR DAMAGE........42
ARTICLE 12. EMINENT DOMAIN..............................................44
ARTICLE 13. ASSIGNMENT AND SUBLETTING...................................45
ARTICLE 14. ACCESS TO PREMISES..........................................54
ARTICLE 15. CERTIFICATE OF OCCUPANCY....................................56
ARTICLE 16. DEFAULT.....................................................56
ARTICLE 17. REMEDIES AND DAMAGES........................................59
ARTICLE 18. FEES AND EXPENSES...........................................61
ARTICLE 19. NO REPRESENTATIONS BY LANDLORD..............................61
ARTICLE 20. END OF TERM.................................................62
ARTICLE 21. QUIET ENJOYMENT.............................................62
ARTICLE 22. NO WAIVER; NON-LIABILITY....................................63
ARTICLE 23. WAIVER OF TRIAL BY JURY.....................................64
ARTICLE 24. INABILITY TO PERFORM........................................64
ARTICLE 25. BILLS AND NOTICES...........................................65
ARTICLE 26. RULES AND REGULATIONS.......................................65
ARTICLE 27. BROKER......................................................66
ARTICLE 28. INDEMNITY...................................................66
ARTICLE 29. REDUCED PREMISES............................................67
ARTICLE 30. RIGHT OF FIRST OFFER........................................68
ARTICLE 31. LANDLORD'S CONTRIBUTION.....................................71
ARTICLE 32. SECURITY DEPOSIT............................................73
ARTICLE 33. BUILDING NAME AND SIGNAGE; FLAGPOLE.........................77
ARTICLE 34. GUARANTY OF LEASE...........................................78
ARTICLE 35. MISCELLANEOUS...............................................78
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EXHIBITS
Exhibit A: Floor Plan of Space A
Exhibit B: Floor Plan of Space B
Exhibit C: Floor Plan of Space C
Exhibit D: Form of Letter of Credit
Exhibit E: Rules and Regulations
Exhibit F: Approved Contractors
Exhibit G: Certificate of Occupancy
Exhibit H: Form of Existing Mortgagee Non-Disturbance Agreement
Exhibit I: Roof Space
Exhibit J: Article 29 Space
Exhibit K: Section 2.3 Occupancies
Exhibit L: Section 30.2 Occupancies
Exhibit M: Intentionally Deleted
Exhibit N: Existing Emergency Stairwell
Exhibit O: Form of Agreement and Guaranty
Exhibit P: Floor Plan of the Remaining B Space
Exhibit P-1: Lease Modifications Re: Remaining B Space
Exhibit Q: Louver Locations
Exhibit R: Center Shaft Location
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AGREEMENT OF LEASE ("Lease"), dated as of October 1, 1999,
between 111 CHELSEA LLC, a Delaware limited liability company with an address
c/o Taconic Investment Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Landlord"), and XXXXXXXXXXXXXX.XXX LLC, a Delaware limited liability company
with an address at 000 Xxxxxx Xxxxxx (a/k/a 00 Xxxxx Xxxxxx), Xxx Xxxx, Xxx Xxxx
00000 ("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their legal
representatives, successors and assigns, covenant and agree as follows.
DEFINITIONS
Additional Rent: Tenant's Tax Payment, Tenant's Labor Rate Payment, and any and
all other sums, other than Fixed Rent, payable by Tenant to
Landlord under this Lease.
Affiliate: With respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first
Person.
Alterations: Alterations, installations, improvements, additions or other
physical changes (other than decorations, movable fixtures and
equipment) in or about the Premises or elsewhere in the
Building.
Bertelsmann: Bertelsmann AG, a business entity organized pursuant to the
laws of the Federal Republic of Germany.
B&N Inc.: Xxxxxx & Xxxxx, Inc., a Delaware corporation.
Base Rate: The annual rate of interest publicly announced from time to
time by Citibank, N.A., New York, New York (or any successor
thereto) as its "base rate", or such other term as may be used
by Citibank, N.A. from time to time for the rate presently
referred to as its base rate.
Building: All the buildings, equipment and other improvements and
appurtenances of every kind and description now located or
hereafter erected, constructed or placed upon the land and any
and all alterations, renewals, replacements, additions and
substitutions thereto, presently known by the address of 000
Xxxxxx Xxxxxx (a/k/a 00 Xxxxx Xxxxxx), Xxx Xxxx, Xxx Xxxx.
Building Systems: The mechanical, electrical, heating, ventilating, air
conditioning, elevator, plumbing, sanitary, life-safety and
other service systems of the Building, but shall not include
the portions of such systems installed in the Premises or
elsewhere in the Building by Tenant.
Business Days: All days, excluding Saturdays, Sundays, and all days observed
by either the State of New York, the United States of America
or by the labor unions servicing the Building as legal
holidays.
Commencement As to Space A, October 1, 1999. As to Space B and Space C, the
Date: respective Delivery Dates for Space B and Space C.
Control: As to any Person: (a) the ownership, directly or indirectly,
of more than thirty per cent (30%) of (i) the outstanding
voting stock of a corporation, or (ii) the beneficial
ownership interests, however characterized, of any other
entity, or (b) the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of
voting securities or other ownership interests, by statute, or
by contract.
Default Rate: A rate per annum equal to four (4) percentage points above the
Base Rate.
Delivery Date: As to each of Space A, Space B and Space C, the date upon
which Landlord delivers possession of such Space, whether or
not the portions of Landlord's Work applicable to such Space
have been Substantially Completed.
Entity: Defined in Section 13.10(a).
Environmental
Laws: All Legal Requirements now or hereafter in effect relating to
the environment, health, safety or Hazardous Materials.
Expiration Date: February 28, 2015.
Governmental
Authority: Any of the United States of America, the State of New York,
the City of New York, any political subdivision thereof and
any agency, department, commission, board, bureau or
instrumentality of any of the foregoing, now existing or
hereafter created, having jurisdiction over the Real Property
or any portion thereof or the vaults, curbs, sidewalks,
streets and areas adjacent thereto.
Guarantor: xxxxxxxxxxxxxx.xxx inc., a Delaware corporation, and any other
Person which shall from time to time guaranty to Landlord the
payment and performance of all or any portion of the
obligations of Tenant under this Lease.
Guaranty: The Agreement and Guaranty, dated as of the date hereof, made
by Guarantor to Landlord, in the form attached to this Lease
as Exhibit O, and any amendment, modification, restatement,
confirmation or extension thereof, and any other agreement
pursuant to which any Guarantor shall
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from time to time guaranty to Landlord the payment and
performance of all or any portion of the obligations of Tenant
under this Lease.
Hazardous
Materials: Any substances, materials or wastes regulated by any
Governmental Authority or deemed or defined as a "hazardous
substance", "hazardous material", "toxic substance", "toxic
pollutant", "contaminant", "pollutant", "solid waste",
"hazardous waste" or words of similar import under applicable
Legal Requirements, including oil and petroleum products,
natural or synthetic gas, polychlorinated biphenyls, asbestos
in any form, urea formaldehyde, radon gas, or the emission of
non-ionizing radiation, microwave radiation or electromagnetic
fields at levels in excess of those (if any) specified by any
Governmental Authority or which may cause a health hazard or
danger to property, or the emission of any form of ionizing
radiation.
Initial
Alterations: Defined in Section 4.3.
Landlord's
Contribution: Defined in Section 31.1.
Landlord's Work: Defined in Section 4.2.
Legal
Requirements: All present and future laws, rules, orders, ordinances,
regulations, statutes requirements, codes, executive orders,
rules of common law, and any judicial interpretations thereof,
extraordinary as well as ordinary, of all Governmental
Authorities, including the Americans with Disabilities Act (42
U.S.C.ss.12,101 et seq.), New York City Local Law 58 of 1987,
and any law of like import, and all rules, regulations and
government orders with respect thereto, and of any applicable
fire rating bureau, or other body exercising similar
functions, affecting the Real Property or the maintenance, use
or occupation thereof, or any street or sidewalk comprising a
part of or in front thereof or any vault in or under the
Building.
Mortgage: Any mortgage or trust indenture which may now or hereafter
affect the Real Property, the Building or any Superior Lease
and the leasehold interest created thereby, and all renewals,
extensions, supplements, amendments, modifications,
consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder.
Mortgagee: Any mortgagee, trustee or other holder of a Mortgage.
Permitted Use: The use by Tenant of the Premises as executive, administrative
and/or general offices and the lawful uses ancillary thereto
described in Article 2, and for no other purpose.
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Person: Any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate,
trust, unincorporated association, business trust,
tenancy-in-common or other entity, or any Governmental
Authority.
Premises: Collectively, Space A, Space B and Space C, as and when
delivered to Tenant.
Premises Area: The Rentable Square Foot area of (i) from the Space A Delivery
Date until the Space B Delivery Date, Space A, hereby deemed
and agreed to be 46,053 Rentable Square Feet; plus (ii) from
the Space B Delivery Date until the Space C Delivery Date,
Space B, hereby deemed and agreed to be 25,763 Rentable Square
Feet (such that during such period the Premises Area of the
entire Premises (comprising Space A and Space B) shall be
deemed to be 71,816 Rentable Square Feet); plus (iii) from the
Space C Delivery Date until the Expiration Date, Space C,
hereby deemed and agreed to be 18,324 Rentable Square Feet
(such that during such period the Premises Area of the entire
Premises (comprising Space A, Space B and Space C) shall be
deemed to be 90,140 Rentable Square Feet), as such Premises
Area may be increased or decreased from time to time pursuant
to this Lease.
Real Property: The Building, together with the plot of land upon which it
stands.
Rentable Square
Feet: The deemed rentable area of the Building or any portion
thereof, computed on the basis of the current standard
employed by Landlord on the date hereof with respect to the
calculation of the deemed Rentable Square Foot area of the
Building, and according to such calculation, the Building is
deemed to contain 2,300,000 Rentable Square Feet of Space;
provided, however, that in no event shall such deemed Rentable
Square Footage constitute or imply any representation or
warranty by Landlord as to the actual size of any floor or
other portion of the Building, including the Premises.
Rules and
Regulations: The rules and regulations attached to this Lease as Exhibit E,
and such additional rules and regulations as Landlord may
reasonably adopt from time to time in accordance with the
provisions of Article 26.
Roof
Equipment: As defined in Section 9.7.
Roof Space: As defined in Section 9.7.
Security Deposit: As defined in Section 32.1.
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Space: Any of Space A, Space B or Space C.
Space A: A portion of the ninth (9th) floor of the Building,
substantially as shown on the floor plan attached as Exhibit A
to this Lease.
Space B: A portion of the ninth (9th) floor of the Building,
substantially as shown on the floor plan attached as Exhibit B
to this Lease.
Space C: A portion of the ninth (9th) floor of the Building,
substantially as shown on the floor plans attached as Exhibit
C to this Lease.
Space A Rent
Commencement March 1, 2000.
Date:
Space B Rent
Commencement The later of (i) 150 days following the Space B Delivery Date,
Date: or (ii) June 1, 2000.
Space C Rent
Commencement The later of (i) 150 days following the Space C Delivery Date,
Date: or (ii) November 1, 2000.
Substantial
Completion: As to any construction performed by any party in the Premises,
including the Initial Alterations, any other Alterations, or
Landlord's Work, that such work has been completed
substantially in accordance with (i) the provisions of this
Lease applicable thereto, (ii) the plans and specifications
for such work, and (iii) all applicable Legal Requirements,
except for minor details of construction, decoration and
mechanical adjustments, if any, the noncompletion of which
does not materially interfere with Tenant's use of the
Premises, or which, in accordance with good construction
practice, should be completed after the completion of other
work to be performed in the Premises.
Superior Lease: Any ground or underlying lease of the Real Property or any
part thereof heretofore or hereafter made by Landlord and all
renewals, extensions, supplements, amendments and
modifications thereof.
Superior Lessor: A lessor under a Superior Lease.
Tenant's
Alterations: All Alterations, including the Initial Alterations and the
installation of Roof Equipment, in and to the Premises and
elsewhere in the Building which may be made by or on behalf of
Tenant prior to and during the Term, or any renewal thereof.
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Tenant Delay: Any delay which results from any act, neglect, failure to act
(where this Lease or Legal Requirements impose a duty to act)
or omission of any Tenant Party, including delays due to
Tenant's changes in or additions to, or interference with, any
work to be done by Landlord, or delays by Tenant beyond the
periods set forth herein in submission of information,
approving working drawings or estimates or giving
authorizations or approvals.
Tenant Party: Any of Tenant, any Affiliate of Tenant, any subtenant or any
other occupant of the Premises, or any of their respective
direct or indirect partners, officers, shareholders,
directors, members, trustees, beneficiaries, employees,
principals, contractors, licensees, servants, agents or
representatives.
Tenant's Other
Lease: That certain Agreement of Lease, dated as of June 30, 1997,
between Landlord's predecessor-in-interest, as landlord, and
Tenant's predecessor-in-interest, as tenant, as amended by (i)
letter agreement of even date therewith, (ii) letter
agreement, dated July 1, 1997, (iii) Modification of Lease
Agreement dated as of January ___, 1998, (iv) Amendment of
Lease dated as of September 1, 1998, and (v) Assignment,
Assumption and Consent Agreement and Amendment to Lease, of
even date herewith, pursuant to which the tenant's interest in
Tenant's Other Lease is being assigned to and assumed by
Tenant. Landlord and Tenant mutually acknowledge that, except
as may be expressly set forth herein, this Lease and Tenant's
Other Lease represent separate and distinct agreements and
legal interests.
Tenant's
Property: Tenant's movable fixtures and movable partitions, telephone
and other communications equipment, computer systems,
furniture, trade fixtures, furnishings, and other items of
personal property which are removable without material damage
to the Premises or Building.
Term: The term of this Lease, which shall commence on the
Commencement Date and shall expire on the Expiration Date.
Transaction
Expenses: All actual, reasonable and customary costs and expenses
incurred by Tenant in effectuating a subletting or assignment,
including brokerage commissions, advertising costs, attorney's
fees and disbursements, remodeling and redecorating costs in
connection with such subletting or assignment, rental
abatements or concessions to the subtenant or assignee, and
any fees or cost reimbursements paid to Landlord pursuant to
this Lease in connection with Landlord's review or approval of
such subletting or assignment.
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Unavoidable
Delays: As defined in Article 24.
ARTICLE 1. DEMISE, PREMISES, TERM, RENT
Section 1.1 Landlord hereby leases to Tenant, and Tenant
hereby hires from Landlord, the Premises, for the Term to commence, as to Space
A on October 1, 1999 and as to each of Space B and Space C on the applicable
Delivery Date for such Space, and to end on the Expiration Date, at an annual
rent ("Fixed Rent") as follows:
(a) For the portion of the Term commencing on the Space A Rent
Commencement Date and ending on the Expiration Date, Tenant shall pay Fixed Rent
for Space A as follows:
(i) One Million Three Hundred Eighty One Thousand
Five Hundred Ninety and 00/100 Dollars ($1,381,590.00) per annum
($115,132.50 per month) for the period commencing on the Space A Rent
Commencement Date and ending one day prior to the fifth (5th)
anniversary of the Commencement Date for Space A;
(ii) One Million Five Hundred Nineteen Thousand Seven
Hundred Forty Nine and 00/100 Dollars ($1,519,749.00) per annum
($126,645.75 per month) for the period commencing on the fifth (5th)
anniversary of the Commencement Date for Space A and ending one day
prior to the tenth (10th) anniversary of the Commencement Date for
Space A; and
(iii) One Million Six Hundred Fifty Seven Thousand
Nine Hundred Eight and 00/100 Dollars ($1,657,908.00) per annum
($138,159.00 per month) for the period commencing on the tenth (10th)
anniversary of the Commencement Date for Space A and ending on the
Expiration Date.
(b) For the portion of the Term commencing on the Space B Rent
Commencement Date and ending on the Expiration Date, Tenant shall pay Fixed Rent
for Space B as follows:
(i) Seven Hundred Seventy Two Thousand Eight Hundred
Ninety and 00/100 Dollars ($772,890.00) per annum ($64,407.50 per
month) for the period commencing on the Space B Rent Commencement Date
and ending one day prior to the fifth (5th) anniversary of the
Commencement Date for Space A;
(ii) Eight Hundred Fifty Thousand One Hundred Seventy
Nine and 00/100 Dollars ($850,179.00) per annum ($70,848.25 per month)
for the period commencing on the fifth (5th) anniversary of the
Commencement Date for Space A and ending one day prior to the tenth
(10th) anniversary of the Commencement Date for Space A; and
(iii) Nine Hundred Twenty Seven Thousand Four Hundred
Sixty Eight and 00/100 Dollars ($927,468.00) per annum ($77,289.00 per
month) for the period
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commencing on the tenth (10th) anniversary of the Commencement Date for
Space A and ending on the Expiration Date.
(c) For the portion of the Term commencing on the Space C Rent
Commencement Date and ending on the Expiration Date, Tenant shall pay Fixed Rent
for Space C as follows:
(i) Five Hundred Forty Nine Thousand Seven Hundred
Twenty and 00/100 Dollars ($549,720.00) per annum ($45,810.00 per
month) for the period commencing on the Space C Rent Commencement Date
and ending one day prior to the fifth (5th) anniversary of the
Commencement Date for Space A; and
(ii) Six Hundred Four Thousand Six Hundred Ninety Two
and 00/100 Dollars ($604,692.00) per annum ($50,391.00 per month) for
the period commencing on the fifth (5th) anniversary of the
Commencement Date for Space A Rent and ending one day prior to the
tenth (10th) anniversary of the Commencement Date for Space A; and
(iii) Six Hundred Fifty Nine Thousand Six Hundred
Sixty Four and 00/100 Dollars ($659,664.00) per annum ($54,972.00 per
month) for the period commencing on the tenth (10th) anniversary of the
Commencement Date for Space A and ending on the Expiration Date.
Tenant agrees to pay Fixed Rent to Landlord, without notice or demand, in lawful
money of the United States, in monthly installments in advance on the first
(1st) day of each calendar month during the Term, at the office of Landlord or
such other place as Landlord may designate, without any set-off, offset,
abatement or deduction whatsoever, except as expressly set forth herein. Fixed
Rent and Additional Rent shall be payable by check drawn upon a bank which is a
member of the New York Clearinghouse Association or by wire transfer of
immediately available funds.
Section 1.2 Notwithstanding anything to the contrary set forth
in Section 1.1, Tenant shall have no obligation to pay Tenant's Tax Payment or
Tenant's Labor Rate Payment applicable to (a) Space A, on account of the period
commencing on the Commencement Date for Space A and ending on the day prior to
the Space A Rent Commencement Date; (b) Space B, on account of the period
commencing on the Delivery Date for Space B and ending on the day prior to the
Space B Rent Commencement Date; and (c) Space C, on account of the period
commencing on the Delivery Date for Space C and ending on the day prior to the
Space C Rent Commencement Date. Nothing contained herein shall affect Tenant's
obligation to make any other payment under this Lease during the aforementioned
periods.
ARTICLE 2. USE AND OCCUPANCY
Section 2.1 (a) Tenant shall use and occupy the Premises for
the Permitted Use and for no other purpose. Tenant shall not use or occupy or
permit the use or occupancy of any part of the Premises in any manner not
permitted hereunder, or which in Landlord's reasonable judgment would adversely
affect (a) the rendition of any service required to be
8
furnished to any tenant or other occupant of the Building, (b) the use or
enjoyment of any part of the Building by any other tenant or other occupant, or
(c) the appearance of the Building.
(b) Tenant, incidental to its executive, administrative and
general office use, shall have the right to use a portion or portions of the
Premises (i) for storage of office supplies and (ii) as a pantry or pantries for
use solely by Tenant, which may contain reheating but not cooking equipment,
including items such as a microwave, coffee maker, sink, ice maker, dishwasher,
hot water heater and refrigerator, upon and subject to the satisfaction of the
following conditions, at Tenant's sole cost and expense and subject to and in
accordance with all applicable Legal Requirements and the provisions of this
Lease (including the provisions of Article 3) and with such other reasonable
regulations as Landlord may adopt from time to time in accordance with the
provisions of Article 26: (x) no cooking or other preparation of food (other
than the reheating of food by microwave and the preparation of beverages) shall
be done in any such pantry, (y) no food or beverages will be kept or served in
the Premises in a manner or under any conditions which result in fumes or odors
being emitted from, or detectable outside of, the Premises, and (z) such portion
or portions of the Premises shall be at all times maintained by Tenant in a
clean and sanitary condition and free of refuse (including use of extermination
services whenever reasonably required).
Section 2.2 Tenant shall not use or permit the Premises or any
part thereof to be used: (a) for the business of printing or other manufacturing
of any kind, (b) as a retail branch of a bank or savings and loan association,
or as a retail loan company, or as a retail stock broker's or dealer's office,
(c) except as permitted herein, for the storage of merchandise, (d) for the
distribution, by mail-order or otherwise, of merchandise, except in connection
with Tenant's business of selling books at retail by means of the Internet, (e)
as a restaurant or bar or for the sale of food or beverages, (f) as a news or
cigar stand, (g) as an employment agency, labor union office, school,
physician's or dentist's office, dance or music studio, (h) as a xxxxxx shop or
beauty salon, (i) for the sale to the public visiting the Premises, at retail or
otherwise, of any goods or products, (j) by the United States Government, the
City or State of New York, any Governmental Authority, any foreign government,
the United Nations or any agency or department of any of the foregoing or any
Person having sovereign or diplomatic immunity, (k) for the rendition of
medical, dental or other therapeutic or diagnostic services, or (l) for the
conduct of an auction.
Section 2.3 (a) Landlord anticipates that the Delivery Date
for Space B will occur on January 1, 2000 and that the Delivery Date for Space C
will occur on June 1, 2000; provided, however, that Landlord shall not be
subject to any liability for failure of either such Delivery Date to occur on
such dates (or on any other date or dates), and the validity of this Lease shall
not be impaired under such circumstances, nor shall the same be construed to
extend the term of this Lease. The foregoing shall constitute an express
negation of Section 223-a of the New York Real Property Law or any successor law
or ordinance, which shall be inapplicable hereto, and Tenant hereby waives any
right to rescind this Lease which Tenant might otherwise have thereunder.
(b) Notwithstanding the foregoing provisions of Section
2.3(a), if the Delivery Date for Space B shall not occur on or before September
1, 2000, unless such failure is due to Tenant Delay, then, as Tenant's sole and
exclusive remedy for such delay in the Delivery Date for
9
Space B, Tenant shall have the right to terminate this Lease with respect to
both Space B (subject to the final sentence of this Section 2.3(b)) and Space C.
Tenant shall exercise such termination right by giving notice to Landlord no
later than September 10, 2000, and such termination will be effective on the
date which shall be thirty (30) days after the date such notice is given, upon
which date this Lease with respect to Space B (subject to the final sentence of
this Section 2.3(b)) and Space C shall come to an end and terminate, and
thereafter neither party shall have any liability to the other hereunder with
respect to Space B (subject to the final sentence of this Section 2.3(b)) and
Space C; provided, however, however, that if the Delivery Date for Space B shall
occur at any time within thirty (30) days following Landlord's receipt of such
notice by Tenant, such termination shall be void and of no force and effect,
and, subject to Tenant's rights pursuant to Section 2.3(c), Tenant shall have no
further right to terminate this Lease with respect to Space B and Space C
pursuant to this Section 2.3(b). Notwithstanding the foregoing, if Tenant shall
terminate this lease with respect to Space B and Space C pursuant hereto, such
termination shall not apply to that portion of Space B shown on Exhibit P (the
"Remaining B Space"), and the Remaining B Space shall be deemed automatically to
be added to the Premises as a part of Space A, the floor plan in Exhibit P shall
be deemed added to Exhibit A, the provisions of Sections 1.1, 6.1(b), 6.4, and
31.1(a) shall be modified as provided in Exhibit P-1 (and any other appropriate
adjustments shall be made to the amounts payable by Tenant on account of other
items of Additional Rent to reflect such reduction in the Premises), and the
provisions of Sections 2.3(a) and 2.3(d) shall apply as if the date of such
termination with respect to Space B (except the Remaining B Space) and Space C
were the Delivery Date for the Remaining B Space.
(c) Notwithstanding the foregoing provisions of Section
2.3(a), if the Delivery Date for Space C shall not occur on or before February
1, 2001, unless such failure is due to Tenant Delay, then, as Tenant's sole and
exclusive remedy for such delay in the Delivery Date for Space C, Tenant shall
have the right to terminate this Lease with respect to Space C only, by notice
to Landlord given no later than February 10, 2001, such termination to be
effective on the date which shall be thirty (30) days after the date such notice
is given, upon which date this Lease with respect to Space C only shall come to
an end and terminate, and thereafter neither party shall have any liability to
the other hereunder with respect to Space C. Notwithstanding anything to the
contrary contained herein, if the Delivery Date for Space C shall occur at any
time within thirty (30) days following Landlord's receipt of such notice by
Tenant, such termination shall be void and of no force and effect, and Tenant
shall have no further right to terminate this Lease with respect to Space C only
pursuant to this Section 2.3(c).
(d) In the event of any holding over by any tenant or occupant
of Space B beyond January 1, 2000, or by any tenant or occupant of Space C
beyond June 1, 2000, Landlord will (i) promptly take commercially reasonable
actions to obtain possession of such Space, including commencing and diligently
prosecuting (to completion, if necessary) appropriate legal proceedings against
any such holdover tenant or occupant, and (ii) keep Tenant advised of the
progress of such proceedings.
(e) Landlord represents that to the best of its knowledge, as
of the date of this Lease, the tenants and other occupants of each Space, and
the respective expiration dates with respect to each such Space, are as set
forth on Exhibit K attached to this Lease.
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Section 2.4 Tenant shall have the right to use the existing
emergency stairwell shown on Exhibit N as a means of ingress and egress for
Tenant's employees solely between the Premises and the premises demised pursuant
to Tenant's Other Lease, provided that Tenant first installs a card-key security
system satisfactory to Landlord which permits access to and from such stairwell
solely for such purpose. Such installation by Tenant shall be deemed an
Alteration for all purposes of this Lease. Landlord makes no representation with
respect to the compliance with applicable Legal Requirements of Tenant's use of
such stairwell pursuant to this Section 2.4.
ARTICLE 3. ALTERATIONS
Section 3.1 Tenant shall not make any Alterations without
Landlord's prior written consent in each instance, provided that Tenant's
changing of wall coverings, carpeting, paint or other decorative Alterations
(collectively, "Decorative Alterations") shall not be deemed to be Alterations
requiring such consent. Landlord's consent shall be granted or denied in
Landlord's sole discretion; provided, however, that Landlord shall not
unreasonably withhold its consent to Alterations proposed to be made by Tenant
provided that such Alterations (a) are non-structural and do not affect the
Building Systems or services, (b) are performed only by contractors approved in
writing by Landlord (subject to and in accordance with the provisions of Section
3.2(b) below), (c) do not affect any part of the Building other than the
Premises and (d) do not adversely affect any service required to be furnished by
Landlord to Tenant or to any other tenant or occupant of the Building.
Section 3.2 (a) Prior to making any Alterations (excluding
Decorative Alterations), Tenant shall (i) submit to Landlord, for Landlord's
written approval, detailed plans and specifications therefor in form reasonably
satisfactory to Landlord, (ii) if such Alterations require a filing with any
Governmental Authority or require the consent of such authority, then such plans
and specifications shall (A) be prepared and certified by a registered architect
or licensed engineer, and (B) comply with all Legal Requirements to the extent
necessary for such governmental filing or consent, (iii) at its expense, obtain
all required permits, approvals and certificates, (iv) furnish to Landlord
duplicate original policies or certificates of insurance which evidence worker's
compensation coverage (covering all persons to be employed by Tenant, and all
contractors and subcontractors supplying materials or performing work in
connection with such Alterations), comprehensive general liability (including
property damage coverage) insurance, comprehensive form automobile liability
insurance and Builder's Risk coverage (issued on a completed value basis) all in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably require, naming Landlord and any Superior Lessor and any
Mortgagee whose name and address has been furnished to Tenant as additional
insureds, and (v) with respect to any Alteration (other than the Initial
Alterations) costing more than $100,000.00 to complete, furnish to Landlord such
evidence of Tenant's ability to complete and to fully and completely pay for
such Alteration as is reasonably satisfactory to Landlord. All Alterations shall
be performed by Tenant at Tenant's sole cost and expense (A) in a good and
workmanlike manner using materials of first class quality, (B) in compliance
with all Legal Requirements, and (C) substantially in accordance with the plans
and specifications previously approved by Landlord. Tenant shall at its cost and
expense obtain all approvals, consents and permits required for such Alterations
from every Governmental Authority having or claiming jurisdiction prior to,
during and upon completion of such Alterations. Tenant shall promptly
11
reimburse Landlord, as Additional Rent and upon demand, for any and all
reasonable costs and expenses incurred by Landlord in connection with Landlord's
review of Tenant's plans and specifications (not to exceed $5,000.00 for any
such Alterations for which Tenant's plans and specifications are submitted
concurrently (i.e., on a non-"fast track" basis)).
(b) Landlord shall not unreasonably withhold, condition or
delay its approval of the contractors proposed to be used by Tenant for Tenant's
Alterations, provided that in the case of the mechanical, electrical, plumbing
and fire safety trades, Tenant shall select its contractors and sub-contractors
from Landlord's list of approved contractors. Attached hereto as Exhibit F is a
list of contractors currently approved by Landlord for the performance of work
in the Building, which list may be modified by Landlord from time to time.
(c) Notwithstanding the foregoing provisions of this Article
3, Tenant shall be permitted to make minor, non-structural alterations to the
Premises ("Minor Alterations") upon prior notice to Landlord, but without the
necessity of procuring Landlord's consent thereto, provided that the estimated
cost of each such Minor Alteration does not exceed $200,000.00 in any one
instance. The provisions of Sections 3.2(a) and 3.2(b) shall be applicable to
Minor Alterations. Prior to commencing any Minor Alteration, Tenant shall
furnish Landlord with (i) working drawings or plans for such Minor Alteration in
sufficient detail to permit Landlord to determine that such Alteration complies
with the requirements hereof, and (ii) the names of the contractors proposed to
be used by Tenant for such Minor Alteration.
(d) Upon completion of any Alterations, Tenant, at its
expense, shall promptly obtain certificates of final approval of such
Alterations as may be required by any Governmental Authority, and (except with
respect to Decorative Alterations), shall furnish Landlord with copies thereof
(together with "as-built" plans and specifications for such Alterations (or, in
case of any Minor Alterations, final plans and specifications reflecting the
final configuration thereof) prepared on an Autocad Computer Assisted Drafting
and Design System (or such other system or medium as Landlord may reasonably
accept) using naming conventions issued by the American Institute of Architects
in June, 1990 (or such other naming convention as Landlord may reasonably
accept) and magnetic computer media of such record drawings and specifications,
translated into DXF format or another format reasonably acceptable to Landlord).
Section 3.3 (a) All Tenant's Alterations shall become the
property of Landlord upon the expiration or sooner termination of this Lease.
Landlord may condition its approval of kitchen facilities, vaults, raised
floors, internal stairways, slab penetrations, private bathrooms or any other
Alterations not constituting ordinary office installations on a requirement that
Tenant agrees in writing to remove such Alterations at the end of the Term as
set forth in this Section 3.3 (any such Alterations which Landlord so requires
Tenant to agree to remove, "Non-Standard Alterations"). If Landlord does not
specify at the time of its approval that an Alteration constitutes a
Non-Standard Alteration, Tenant shall have no obligation to remove such
Alteration upon the expiration or sooner termination of this Lease. On the
Expiration Date or earlier termination of the Term or any renewal thereof (i)
Tenant shall remove Tenant's Property from the Premises, and (ii) unless
Landlord notifies Tenant no later than sixty (60) days prior to the Expiration
Date that any or all of the Non-Standard Alterations shall not be removed from
the Premises, Tenant shall remove the Non-Standard Alterations from the
Premises, at Tenant's sole
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cost and expense. Tenant shall repair and restore in a good and workmanlike
manner (reasonable wear and tear excepted) any damage to the Premises and the
Building caused by such removal of Tenant's Property and the Non-Standard
Alterations. Any of the Non-Standard Alterations or Tenant's Property which
Tenant is required to remove and which are not so removed by Tenant at or prior
to the Expiration Date or earlier termination of the Term shall be deemed
abandoned and may, at the election of Landlord, either be retained as Landlord's
property or be removed from the Premises by Landlord at Tenant's expense.
Notwithstanding the foregoing, Tenant's HVAC System (as defined in Section 9.7)
and any electric generator and other related equipment, including mountings,
supports, fuel lines, pumps, piping, and meters, if any, which Landlord may
permit Tenant to install in the Premises or elsewhere in the Building, shall not
be so removed from the Premises by Tenant. The covenants and agreements set
forth in this Section 3.3 shall survive the expiration or earlier termination of
this Lease.
(b) Landlord agrees to respond to any written request for
approval of contractors proposed to be engaged to perform Alterations within
five (5) Business Days after Tenant's request therefor. Landlord agrees to
respond to any written request for approval of plans and specifications for
Alterations proposed to be made by Tenant within twelve (12) Business Days (or
within fifteen (15) Business Days, in case such request relates to Tenant's
Initial Alterations) after receipt by Landlord of such written request, together
with substantially complete and detailed architectural, structural, mechanical
and engineering plans and specifications as required for such Alteration
(collectively, "Tenant's Plans"), and Landlord agrees that Tenant's Plans may be
submitted, and will be reviewed by Landlord, on a "fast track" basis (i.e.,
architectural, mechanical and structural plans may be submitted sequentially).
In addition, Landlord agrees to respond to any resubmission of Tenant's Plans
within five (5) Business Days after written resubmission, unless substantial
revisions are required to Tenant's Plans, in which event in which event Landlord
shall respond to Tenant within a reasonable time thereafter. If Landlord shall
disapprove all or any portion of Tenant's Plans, Landlord shall inform Tenant of
the grounds for such disapproval with reasonable specificity. If Landlord fails
to approve or disapprove Tenant's Plans or a contractor proposed by Tenant on or
before the end of the applicable review period set forth herein, Tenant shall
have the right to provide Landlord with a second written request for approval (a
"Second Request"), which shall specifically identify Tenant's Plans or the
contractor, as the case may be, to which such request relates, and set forth in
bold capital letters the following statement: IF LANDLORD FAILS TO RESPOND
WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE
ENTITLED TO COMMENCE CONSTRUCTION IN ACCORDANCE WITH THE PLANS AND
SPECIFICATIONS (OR TO ENGAGE THE CONTRACTOR) PREVIOUSLY SUBMITTED TO LANDLORD
AND TO WHICH LANDLORD HAS FAILED TO TIMELY RESPOND. In the event that Landlord
fails to respond to a Second Request within five (5) Business Days after receipt
by Landlord, then the Tenant's Plans or revisions thereto, or Tenant's
engagement of a contractor, as the case may be, for which the Second Request is
submitted, shall be deemed to be approved by Landlord, and Tenant shall be
entitled to engage the contractor for which approval was requested, or commence
construction of the Alteration or portion thereof to which Tenant's Plans
relate, provided that in the case of performing Alterations, Tenant's Plans have
been appropriately filed in accordance with applicable Legal Requirements, all
permits and
13
approvals required to be issued by any Governmental Authority shall have been
duly issued, and Tenant shall otherwise have complied with all provisions of
this Lease applicable to Alterations.
Section 3.4 If, because of any alleged act or omission of
Tenant or any Tenant Party, any mechanic's lien, U.C.C. financing statement or
other lien, charge or order for the payment of money shall be filed against
Landlord, or against all or any portion of the Premises, the Building or the
Real Property, Tenant shall, at its own cost and expense, cause the same to be
discharged of record, by bonding or otherwise, within thirty (30) days after
receipt of notice thereof, and Tenant shall indemnify, defend and save Landlord
harmless against and from all costs, expenses, liabilities, suits, penalties,
claims and demands (including reasonable attorneys' fees and disbursements)
resulting therefrom (subject to reimbursement by Landlord in the event that it
shall be finally adjudicated that the acts or omissions of Landlord or another
tenant in the building shall have given rise to such lien, charge or order).
Section 3.5 Tenant shall not, at any time prior to or during
the Term, directly or indirectly employ, or permit the employment of, any
contractor, mechanic or laborer in the Premises, whether in connection with any
Alteration or otherwise, if in Landlord's sole judgment such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by
Landlord, Tenant or others, or the use and enjoyment of other tenants or
occupants of the Building.
ARTICLE 4. CONDITION OF THE PREMISES; LANDLORD'S WORK
Section 4.1 Tenant has examined the Premises and agrees to
accept possession of each Space in its "as is" condition on the applicable
Delivery Date subject to the performance of Landlord's Work, and Tenant further
agrees that, except for the performance of such Landlord's Work and the making
of Landlord's Contribution as expressly set forth in this Article 4, Landlord
shall have no obligation to perform any work, supply any materials, incur any
expenses or make any installations in order to prepare the Premises for Tenant's
occupancy. The taking of possession of each Space by Tenant shall be conclusive
evidence as against Tenant that at the time such possession was so taken, such
Space was in the condition required hereunder, provided, however, that if Tenant
shall subsequently become aware of any latent defects in Landlord's Work or
latent defects existing in the Premises (or the Building Systems serving the
Premises) at the time such possession was so taken, which latent defects are the
responsibility of Landlord to repair pursuant to Article 5 (but excluding any
latent defects in Tenant's Alterations or arising from the negligence or
misconduct of Tenant or any Tenant Party), Tenant shall give Landlord notice of
any such latent defects promptly upon Tenant's becoming aware thereof, and
Landlord shall repair the same in accordance with the provisions of Article 5,
but the existence of any such latent defects shall not be deemed to modify the
Delivery Date hereunder.
Section 4.2 (a) With due diligence and reasonable promptness
following (y) the Commencement Date, as to Space A, and (z) the Delivery Date
for each of Space B and Space C, Landlord shall perform the following work in
the applicable Space, at Landlord's sole cost and in accordance with all Legal
Requirements ("Landlord's Work"): (i) demolish any existing improvements,
including piping and electrical conduit, which (x) are not then being used by
tenants or other occupants of any space in the Building (including use by
Landlord for any
14
purpose relating to operation of the Building or any Building Systems), and (y)
Landlord reasonably anticipates will not subsequently be used by tenants or
other occupants of any space in the Building (unless Tenant notifies Landlord
that any such improvements will subsequently be used by Tenant in connection
with the Permitted Use), and xxxxx any asbestos containing materials ("ACM")
within such Space in accordance with all Legal Requirements, and provide Tenant
with a New York City Department of Environmental Protection Form ACP-5 in
connection therewith; (ii) provide Class E System tie-in points for Tenant's use
in accordance with Legal Requirements; (iii) remove all remaining 9" x 9" floor
tiles in such Space; (iv) remove the two (2) fresh air intake ducts and attached
louver located in Space B; and (v) remove the existing air handling unit located
in Space C. Landlord shall provide Tenant reasonable access to the Premises
during the process of Landlord's demolition work pursuant hereto, and shall use
reasonable efforts to accommodate Tenant's suggestions relating to adjustments
in the demolition process to accommodate conditions disclosed by such process;
provided, however, that Landlord shall have no obligation to employ contractors
or labor at "overtime" or other premium pay rates or to incur any other
"overtime" costs or any other additional expenses whatsoever, unless Tenant
shall pay to Landlord all of Landlord's incremental increased costs to do so. In
such event Tenant shall pay, as Additional Rent upon presentation of appropriate
invoices, all such additional costs incurred by Landlord in connection
therewith. Notwithstanding anything to the contrary set forth in Section 1.1, in
the event that Landlord shall not have Substantially Completed, as to (X) Space
A, the items of Landlord's Work identified in Sections 4.2(a)(i), (ii) and (iii)
on or prior to November 17, 1999, (Y) Space B, the items of Landlord's Work
identified in Sections 4.2(a)(i), (ii), (iii) and (iv) on or prior to the date
which shall be twenty-one (21) days following the Delivery Date for Space B, and
(Z) Space C, the items of Landlord's Work identified in Sections 4.2(a)(i),
(ii), (iii) and (v) on or prior to the date which shall be twenty-one (21) days
following the Delivery Date for Space C, then in each such case, as Tenant's
sole and exclusive remedy for such failure to timely Substantially Complete such
Landlord's Work, the Rent Commencement Date with respect to such Space shall be
extended by one (1) day for each day of delay beyond November 17, 1999 or such
twenty-first (21st) day, as applicable, in the Substantial Completion of
Landlord's Work in such Space until the date upon which Landlord shall
Substantially Complete such Landlord's Work to such Space.
(b) Notwithstanding Landlord's compliance with its obligations
to xxxxx ACM pursuant to Section 4.2(a)(i), in the event the performance of
Tenant's Initial Alterations, in accordance with Tenant's plans for the Initial
Alterations as approved by Landlord, causes the Premises to become out of
compliance with any Legal Requirements applicable to ACM, Tenant shall within
seven (7) days of the occurrence of such state of facts provide to Landlord a
copy of a written report prepared at Tenant's expense by a New York City
Department of Environmental Protection-certified asbestos investigator setting
forth in reasonable detail (i) such state of facts, and (ii) the abatement work
(solely within the Premises) such investigator reasonably deems necessary in
order to xxxxx such condition in accordance with all Legal Requirements. Subject
to Unavoidable Delays and Landlord's right to contest such Legal Requirements,
Landlord shall reasonably promptly thereafter cause the abatement work specified
in such report to be commenced and thereafter prosecuted to completion with
reasonable diligence by a contractor selected by Landlord in its sole
discretion; and throughout the performance of such abatement work by Landlord,
Fixed Rent, Tenant's Tax Payment and Tenant's Labor Rate Payment shall
15
xxxxx as to the affected portion of the Premises to the extent, and for the
period of time that Tenant shall be displaced from such portion of the Premises
as a result of such work by Landlord (or, if Fixed Rent, Tenant's Tax Payment
and Tenant's Labor Rate Payment are then currently abated pursuant to Section
1.2, such abatement shall be extended day-for-day by such period of time).
Landlord shall give Tenant reasonable advance notice of the commencement of such
work (and phases thereof) and Tenant shall, at Tenant's sole cost and without
any liability to Landlord whatsoever (except for the rent abatement hereinabove
set forth), delay the commencement or continuance of Tenant's Initial
Alterations, relocate its operations and personnel within the Premises and
otherwise cooperate with Landlord as necessary in order to facilitate such work
by Landlord. Landlord shall use reasonable efforts to minimize interference with
Tenant's access to and use and occupancy of the Premises in performing such
work; provided, however, that Landlord shall have no obligation to employ
contractors or labor at "overtime" or other premium pay rates or to incur any
other "overtime" costs or additional expenses whatsoever. Any such work shall be
at the expense of Landlord, provided, however, that Tenant shall bear such
expense with respect to any and all such abatement work performed due to Tenant
bringing any ACM into the Building in connection with the performance of
Tenant's Alterations or Tenant's Property (and Tenant shall directly pay
Landlord's contractor with respect to all such work within ten (10) Business
Days after receipt from Landlord of an invoice therefor).
Section 4.3 Landlord acknowledges that Tenant intends to
perform certain Alterations in order to prepare the Premises for its occupancy
(collectively, the "Initial Alterations"), which alterations shall, subject to
all the terms, covenants and conditions of this Lease applicable to Alterations,
include (i) the installation of a sprinkler system or other fire suppression
system reasonably satisfactory to Landlord, (ii) the installation of exterior
louvers as reasonably required by Tenant through the Building's existing window
openings at the locations on the Fifteenth Street and Sixteenth Street sides of
the Building shown on the floor plan attached as Exhibit Q to this Lease, (iii)
connection to the existing Building toilet exhaust riser for one (1)
supplemental private bathroom, (iv) the installation of noise suppression
materials and/or equipment with respect to any of Tenant's Property reasonably
designated by Landlord, including Tenant's HVAC System (as defined in Section
9.7), if any, reasonably satisfactory to Landlord, and (v) the renovation of the
two (2) existing bathrooms on the ninth avenue side lobby of the ninth floor of
the Building in order to meet the requirements of the Americans With
Disabilities Act of 1990, as amended (the "ADA") in Space A, which bathrooms
shall throughout the Term remain accessible to the common areas of the ninth
floor of the Building and which renovations shall be completed by Tenant as a
part of the Initial Alterations, all in compliance with applicable Legal
Requirements. Notwithstanding anything set forth in this Article 4, Landlord
agrees to make Landlord's Contribution toward the cost of the Initial
Alterations, subject to and in accordance with Article 31.
Section 4.4 Upon the request of Tenant, Landlord, at Tenant's
cost and expense (limited to an amount equal to all out of pocket expenses
incurred by Landlord to third parties), shall join in any applications for any
permits, approvals or certificates from any Governmental Authority required to
be obtained by Tenant, and shall sign such applications reasonably promptly
after request by Tenant (provided that (i) the provisions of the applicable
Legal Requirement shall require that Landlord join in such application, and (ii)
such application is acceptable to Landlord) and shall otherwise cooperate with
Tenant in connection therewith,
16
provided that Landlord shall not be obligated to incur any cost or expense,
including attorneys' fees and disbursements, or suffer or incur any liability,
in connection therewith.
Section 4.5 Notwithstanding anything set forth in Article 2 or
this Article 4, Landlord and Tenant acknowledge that following the Delivery Date
for each Space, the performance of Landlord's Work in such Space will in
accordance with good construction practice (and except as expressly set forth
below) necessitate that Tenant not commence the Initial Alterations in such
Space until Landlord's Work in such Space is Substantially Complete.
Notwithstanding the foregoing, Landlord may, but shall not be obligated to,
afford Tenant access to Space A, Space B and Space C following the Delivery Date
for such Space but prior to the completion of Landlord's Work therein (any such
access subsequent to the Delivery Date but prior to the completion of Landlord's
Work in such Space being herein referred to as "Early Access") in order for
Tenant to commence performance of the Initial Alterations in such Space (but
Landlord shall use reasonable efforts to afford Tenant Early Access to Space C).
Landlord's grant of permission to Tenant for Early Access shall be at Landlord's
sole discretion, and shall be revocable by Landlord at will, immediately upon
notice from Landlord to Tenant that any of following conditions have not been
satisfied or no longer continue to be satisfied: (A) Tenant shall not commence
any portion of the Initial Alterations which is dependent upon the completion of
a related item of Landlord's Work until, in accordance with sound construction
practice, such item of Landlord's Work has been substantially completed, (B)
Tenant's access to or activities in such Space during the period of Early Access
shall not increase the cost to Landlord of Landlord's Work, unless Tenant agrees
in writing to pay Landlord for any such increase in the cost of Landlord's Work,
and shall not delay the progress of Landlord's Work, and (C) Tenant shall have
complied with all applicable provisions of this Lease with respect to the
commencement of the Initial Alterations, including the provisions of Articles 3
and 10.
ARTICLE 5. REPAIRS; FLOOR LOAD
Section 5.1 (a) Landlord shall maintain in condition customary
for buildings similar to the Building in Manhattan, and shall repair and
replace, to the extent necessary to achieve such condition, the Building Systems
and the public portions of the Building, both exterior and interior, and the
structural elements thereof, including the roof, foundation and curtain wall.
Tenant, at Tenant's expense, shall take good care of the Premises and the
fixtures, systems, equipment and appurtenances therein, and make all
non-structural repairs thereto as and when needed to preserve them in good
working order and condition, except for reasonable wear and tear, obsolescence
and damage for which Tenant is not responsible pursuant to the provisions of
Articles 11 and 12. Tenant shall throughout the Term, at Tenant's sole cost and
expense, cause the Premises to be exterminated on a periodic basis such that the
Premises and adjoining portions of the Building do not become infested with
vermin, employing such exterminators and such exterminating company or companies
as shall be reasonably acceptable to Landlord. Landlord shall throughout the
Term maintain Landlord's standard vermin extermination program in the Building's
public areas. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Building, or to its fixtures, equipment and
appurtenances, caused by or resulting from negligence or misconduct of, or
Alterations made by, Tenant or any Tenant Party shall be repaired at Tenant's
expense, (a) by Tenant to the satisfaction of Landlord (if the required repairs
are non-structural and do not affect any Building System), or (b) by Landlord
(if the
17
required repairs are structural or affect any Building System). Tenant also
shall repair all damage to the Building and the Premises caused by the making of
any Alterations by Tenant or by the moving of Tenant's Property. All of such
repairs shall be of quality or class equal to the original work or construction.
If Tenant fails after twenty (20) days' notice to proceed with due diligence to
make repairs required to be made by Tenant, Landlord may make such repairs at
the expense of Tenant, and Tenant shall pay the costs and expenses thereof
incurred by Landlord, with interest at the Default Rate, as Additional Rent
within fifteen (15) days after rendition of a xxxx or statement therefor.
(b) Landlord represents to Tenant that, to the best of
Landlord's knowledge, all Building Systems for which Landlord is responsible
under this Lease, including elevators, heating systems, sprinkler systems, fire
detection and life safety systems and other Building Systems, will remain fully
functional and perform their normal operations on and after January 1, 2000,
without interruption or malfunction as a result of the passage from the year
1999 to the year 2000. Landlord shall make all repairs, alterations or
replacements to any Building Systems required in order to eliminate any such
interruptions or malfunctions resulting from the passage from the year 1999 to
the year 2000.
Section 5.2 Tenant shall not place a load upon any floor of
the Premises exceeding the floor load per square foot which such floor was
designed to carry and which is allowed by law. Tenant shall not move any safe,
heavy equipment, business machines, freight, bulky matter or fixtures into or
out of the Building without Landlord's prior consent. If such safe, equipment,
freight, bulky matter or fixtures requires special handling, Tenant shall employ
only persons holding a Master Rigger's license to do such work.
Section 5.3 There shall be no allowance to Tenant for a
diminution of rental value, no constructive eviction of Tenant and no liability
on the part of Landlord by reason of inconvenience, annoyance or injury to
business arising from Landlord making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises, or in or to fixtures, appurtenances or equipment thereof. Landlord
shall use reasonable efforts to minimize interference with Tenant's access to
and use and occupancy of the Premises in making any repairs, alterations,
additions or improvements; provided, however, that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates
or to incur any other overtime costs or additional expenses whatsoever.
Section 5.4 Notwithstanding anything to the contrary contained
in any other provision of this Lease, in the event that (a) Tenant is unable to
use the Premises for the ordinary conduct of Tenant's business, due to
Landlord's breach of an obligation under this Lease to provide services, perform
repairs, or comply with Legal Requirements, in each case other than as a result
of Unavoidable Delays, and such condition continues for a period in excess of
seven (7) consecutive days (or, if Tenant's inability to use the Premises
results, in whole or in part, from Unavoidable Delays and such condition
continues for a period in excess of fifteen (15) consecutive days) after Tenant
gives a notice to Landlord (the "Abatement Notice") stating that Tenant's
inability to use the Premises is solely due to such condition, (b) Tenant does
not actually use or occupy the Premises during such period, and (c) such
condition has not resulted from the negligence or misconduct of Tenant or any
Tenant Party, then Fixed Rent, Tenant's Tax Payment
18
and Tenant's Labor Rate Payment shall be abated as to the Premises or affected
portion on a per diem basis for the period commencing on the eighth (8th) day
(or sixteenth (16th) day, if such condition results, in whole or in part, from
Unavoidable Delays, as the case may be) after Tenant gives the Abatement Notice,
and ending on the earlier of (i) the date Tenant reoccupies the Premises for the
ordinary conduct of its business, or (ii) the date on which such condition is
substantially remedied and Landlord has notified Tenant thereof.
Section 5.5 Tenant shall not require, permit, suffer or allow
the cleaning of any window in the Premises from the outside in violation of
Section 202 of the New York Labor Law or any successor statute thereto, or of
any other Legal Requirement.
ARTICLE 6. REAL ESTATE TAXES AND LABOR RATE INCREASES
Section 6.1 The following terms shall have the meanings set
forth below:
(a) "Taxes" shall include the aggregate amount of (i) all real
estate taxes, assessments (special or otherwise), sewer and water rents, rates
and charges and any other governmental levies, impositions or charges, whether
general, special, ordinary, extraordinary, foreseen or unforeseen, which may be
assessed, levied or imposed upon all or any part of the Real Property, and (ii)
any expenses (including attorneys' fees and disbursements and experts' and other
witness' fees) incurred in contesting any of the foregoing or the Assessed
Valuation (as defined in Section 6.1(d)) 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, there shall be assessed,
levied or imposed (A) a tax, assessment, levy, imposition or charge based on the
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise, (B) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Real Property and imposed
upon Landlord, (C) a license fee measured by the rents or (D) any other tax,
assessment, levy, imposition, charges or license fee however described or
imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be deemed to be
Taxes; provided, however, that any such taxes, fees or charges which are in
"addition to" taxes otherwise payable under this Section 6.1(a) shall (1) only
be deemed Taxes if such taxes shall be imposed upon owners of commercial office
buildings in Manhattan generally, and treated by such owners as constituting
real estate taxes for the purpose of calculating similar lease tax escalation
provisions, and (2) be calculated on the basis that the Real Property is the
only asset of Landlord. Taxes shall not include franchise, gift, inheritance,
estate, sales, income or profit taxes imposed upon Landlord, any Superior Lessor
or any Mortgagee by any Governmental Authority, or any penalties imposed for
late payment of Taxes.
(b) "Tenant's Share" means Two and 2/1000ths percent (2.002%);
provided, however, that, from and after the Space B Delivery Date, "Tenant's
Share" shall be and be deemed modified to mean Three and 122/1000ths percent
(3.122%); provided, further, that, from and after the Space C Delivery Date,
"Tenant's Share" shall be and be deemed modified to mean Three and 92/100ths
percent (3.92%).
19
(c) "Base Taxes" means the Taxes payable for the Tax Year
commencing on July 1, 1999 and ending June 30, 2000.
(d) "Assessed Valuation" means the amount for which the Real
Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of imposition of Taxes.
(e) "Tax Year" means the period July 1 through June 30 (or
such other period as may be duly adopted by the City of New York as its fiscal
year for real estate tax purposes).
(f) "Comparison Year" means, with respect to Taxes, any Tax
Year commencing subsequent to the 1999/2000 Tax Year.
(g) "Landlord's Statement" means an instrument or instruments
containing a comparison of either (i) the Base Taxes and the Taxes payable for
any Comparison Year, or (ii) the Base Labor Rates and the Labor Rates applicable
to any Comparison Year.
(h) "Tenant's Tax Payment" means Tenant's Share of the excess
of the Taxes payable for any Comparison Year over the Base Taxes.
Section 6.2 (a) If the Taxes payable for any Comparison Year
(any part or all of which falls within the Term) shall exceed the Base Taxes,
Tenant shall pay Tenant's Tax Payment to Landlord. Tenant shall pay Tenant's Tax
Payment in two semiannual installments in advance on the first day of June (with
respect to the period July 1 through December 31 following such payment date)
and December (with respect to the period January 1 through June 30 following
such payment date), each installment equal to one-half of Tenant's Tax Payment
for such Comparison Year, except that if Landlord has not received tax bills for
the following Tax Year in time to xxxx the June 1 installment of Tenant's Tax
Payment, Landlord may estimate the payment due on June 1, based on Landlord's
estimate of Taxes for the following Tax Year. If, upon issuance of the tax bills
for any Tax Year, the estimated amount resulted in (i) an underpayment by
Tenant, Tenant shall pay to Landlord the amount of the underpayment within ten
(10) Business Days after notice from Landlord, or (ii) an overpayment by Tenant,
Landlord shall apply a credit in the amount of the overpayment against future
installments of Fixed Rent under this Lease, and if any such credit remains
outstanding as of the Expiration Date, Landlord will pay the amount thereof to
Tenant within a reasonable time thereafter. Each of the parties' respective
obligations hereunder in the case of overpayment or underpayment shall survive
the expiration or earlier termination of this Lease.
(b) If at any time during the Term, Taxes are required to be
paid (either to the appropriate taxing authorities or as a tax escrow to the
holder of a Superior Lease or Mortgage) on any other date or dates than as
presently required, then Tenant's Tax Payments shall be correspondingly
accelerated or revised so that such payments are due at least thirty (30) days
prior to the date payments are due to the taxing authorities, Lessor or
Mortgagee, as appropriate. The benefit of any discount for any early payment or
prepayment of Taxes relating to all or any part of the Real Property shall
accrue solely to the benefit of Landlord and Taxes shall be computed without
subtracting such discount. Upon request by Tenant, Landlord will furnish
20
Tenant with copies of all available tax bills for the current Tax Year or the
immediately preceding Tax Year with respect to the Real Property.
(c) Only Landlord shall be eligible to institute Tax reduction
or other proceedings to reduce the Assessed Valuation of the Real Property, and
the filing of any such proceeding by Tenant without Landlord's prior written
consent shall constitute a default hereunder. At no time shall any recomputation
be made hereunder of Base Taxes for any Comparison Year, nor shall any
adjustment be made of Additional Rent theretofore paid or payable on account of
Tenant's Tax Payment hereunder, by reason of any reduction or increase in the
Taxes payable for the 1999/2000 Tax Year by final determination of legal
proceedings, settlement or otherwise, and Tenant shall not receive or be
entitled to claim any credit or refund in connection therewith. The provisions
of this Section 6.2 shall survive the expiration or earlier termination of this
Lease. Nothing herein contained shall obligate Landlord to file any application
or institute any proceeding seeking a reduction in Taxes or Assessed Valuation.
To the best of Landlord's knowledge as of the date of this Lease, the Real
Property is not (and will not be) the subject of any tax abatement, tax
exemption or tax incentive program, or otherwise specially assessed or
classified for purposes of the imposition of Taxes, which would affect the
amount of Base Taxes, and Landlord has not applied for any such abatement,
exemption or incentive program.
(d) Tenant's Tax Payment shall be made as provided in this
Section 6.2 regardless of the fact that Tenant may be exempt, in whole or in
part, from the payment of any taxes by reason of Tenant's diplomatic or other
tax exempt status or for any other reason whatsoever, it being understood that
the foregoing shall not be construed to affect the calculation of Taxes pursuant
to Section 6.1(a).
(e) Tenant shall pay to Landlord, as Additional Rent 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.
(f) If the Expiration Date shall occur on a date other than
June 30, any Additional Rent payable by Tenant to Landlord under this Section
6.2 for the Comparison Year in which the Expiration Date shall occur shall be
apportioned in that percentage which the number of days in the period from June
30 to the Expiration Date, inclusive, shall bear to the total number of days in
such Comparison Year. In the event of a termination of this Lease, any
Additional Rent under this Section 6.2 shall be paid or adjusted within thirty
(30) days after submission of Landlord's Statement. In no event shall Fixed Rent
ever be reduced by operation of this Section 6.2 and the rights and obligations
of Landlord and Tenant under the provisions of this Section 6.2 with respect to
any Additional Rent shall survive the expiration or earlier termination of this
Lease.
Section 6.3 The following terms shall have the meanings set
forth below:
(a) "R.A.B." shall mean the Realty Advisory Board on Labor
Relations, Incorporated, or its successor.
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(b) "Local 32B-32J" shall mean Local 32B-32J of the Building
Service Employees International Union, AFL-CIO, or its successor.
(c) "Class A Office Buildings" shall mean office buildings so
categorized under any agreement between R.A.B. and Local 32B-32J, regardless of
the designation given to such office buildings in any such agreement.
(d) "Labor Rates" shall mean a sum equal to the regular hourly
wage rate required to be paid to Others (as defined below) employed in Class A
Office Buildings pursuant to an agreement between R.A.B. and Local 32B-32J;
provided, however, that:
(i) if any such agreement shall require Others in
Class A Office Buildings to be regularly employed on days or during
hours when overtime or other premium pay rates are in effect pursuant
to such agreement, then the term "regular hourly wage rate", as used in
this Section 6.3 shall mean the average hourly wage rate for the hours
in a calendar week during which Others are required to be regularly
employed;
(ii) if no such agreement is in effect as of October
1st of any Comparison Year with respect to Others, then the term
"regular hourly wage rate", as used in this Section 6.3 shall mean the
regular hourly wage rate actually paid to Others employed in the
Building by Landlord or by an independent contractor engaged by
Landlord, provided, however, that upon the effectiveness of such
agreement, such regular hourly wage rate shall be adjusted to that
provided in such agreement, effective retroactively to the effective
date of such agreement; and
(iii) the term "regular hourly wage rate" shall
exclude all benefits of any kind, including those payable directly to
taxing authorities or others on account of the employment and all
welfare, pension and fringe employee benefits and payments of any kind
paid or given pursuant to such agreement.
(e) "Others" shall mean that classification of employee
engaged in the general maintenance and operation of Class A Office Buildings
most nearly comparable to the classification now applicable to "others" in the
current agreement between R.A.B. and Local 32B-32J.
(f) "Base Labor Rates" shall mean an amount equal to the sum
of (i) one-half (1/2) of the Labor Rates in effect for calendar year 1999, plus
(ii) one-half (1/2) of the Labor Rates in effect for calendar year 2000.
(g) "Tenant's Labor Rate Payment" is defined in Section
6.4(a).
(h) "Comparison Year" means, with respect to Labor Rates, any
calendar year commencing subsequent to December 31, 1999.
Section 6.4 (a) If the Labor Rates in effect for any
Comparison Year (any part or all of which falls within the Term) shall be
greater than the Base Labor Rates, then Tenant shall pay, as Additional Rent for
such Comparison Year and continuing thereafter until a new
22
Landlord's Statement is rendered to Tenant, an amount ("Tenant's Labor Rate
Payment") equal to (i) the number of cents (inclusive of any fractions of a
cent) by which the Labor Rates in effect for such Comparison Year exceed the
Base Labor Rates, multiplied by (ii) (X) 46,053 (from and after the Space A
Delivery Date), plus (Y) 25,763 (from and after the Space B Delivery Date), plus
(Z) 18,324 (from and after the Space C Delivery Date).
(b) At any time prior to, during or after any Comparison Year
Landlord shall render to Tenant a Landlord's Statement showing (i) a comparison
of the Labor Rates for the Comparison Year with the Base Labor Rates, and (ii)
the amount of Tenant's Labor Rate Payment resulting from such comparison.
Landlord's failure to render a Landlord's Statement during or with respect to
any Comparison Year shall not prejudice Landlord's right to render a Landlord's
Statement during or with respect to any subsequent Comparison Year and shall not
eliminate or reduce Tenant's obligation to pay Tenant's Labor Rate Payment
pursuant to this Article 6 for such Comparison Year, provided that Landlord
shall not be entitled to issue a Landlord's Statement or corrected Landlord's
Statement later than two (2) years after the end of the Comparison Year to which
such Landlord's Statement relates. Upon written request to do so, Landlord shall
promptly give Tenant a copy of any written notice actually received by Landlord
of changes in the Labor Rates which will result in an increase in Tenant's Labor
Rate Payment for the Comparison Year in which such request is made.
(c) Tenant's Labor Rate Payment shall be payable by Tenant on
the first day of the month following the furnishing to Tenant of a Landlord's
Statement, in equal monthly installments, each such installment to be equal to
1/12th of Tenant's Labor Rate Payment for such Comparison Year multiplied by the
number of months (and any fraction thereof) of the Term then elapsed since the
commencement of such Comparison Year, continuing monthly thereafter until
rendition of the next succeeding Landlord's Statement.
(d) The provisions of this Section 6.4 shall be effective
irrespective of whether or not (i) the Building is classified as a Class A
office building from time to time, or (ii) any Building employees are members of
Local 32B-32J. Tenant acknowledges and agrees that the computation of Labor
Rates hereunder is intended to serve solely as a formula for an agreed rental
adjustment, rather than an actual operating expense calculation, and is not
intended to reflect the actual cost to Landlord of wages at the Building or any
increases or decreases in such cost.
Section 6.5 (a) If the Expiration Date shall occur on a date
other than December 31, any Additional Rent under this Article 6 for the
Comparison Year in which the Expiration Date shall occur shall be apportioned in
that percentage which the number of days in the period from January 1 to the
Expiration Date, inclusive, shall bear to the total number of days in such
Comparison Year. In the event of a termination of this Lease, any Additional
Rent under this Article 6 shall be paid or adjusted within thirty (30) days
after submission of a Landlord's Statement. In no event shall Fixed Rent ever be
reduced by operation of this Section 6.5 and the rights and obligations of
Landlord and Tenant under the provisions of this Article 6 with respect to any
Additional Rent shall survive the expiration or earlier termination of this
Lease.
23
(b) The computations of Additional Rent under this Article 6
relating to Labor Rates are intended to constitute a formula for an agreed
rental adjustment and may or may not constitute an actual reimbursement to
Landlord for costs and expenses paid by Landlord with respect to the Building.
Section 6.6 Landlord's failure to render a Landlord's
Statement with respect to any Comparison Year shall not prejudice Landlord's
right to thereafter render a Landlord's Statement with respect thereto or with
respect to any subsequent Comparison Year, nor shall the rendering of a
Landlord's Statement prejudice Landlord's right to thereafter render a corrected
Landlord's Statement for that Comparison Year, provided that Landlord shall not
be entitled to issue a Landlord's Statement or corrected Landlord's Statement
later than two (2) years after the end of the Comparison Year to which such
Landlord's Statement relates. Subject to the foregoing, nothing herein contained
shall restrict Landlord from issuing a Landlord's Statement at any time there is
an increase in Taxes or Labor Rates during any Comparison Year or any time
thereafter.
Section 6.7 If any capital improvement is made to the Real
Property during any calendar year during the Term to effectuate compliance with
any Legal Requirements enacted after the date of this Lease (including the cost
of compliance with Legal Requirements enacted prior to the date of this Lease if
such compliance is required pursuant to any amendment, modification or
reinterpretation thereof which is imposed or enacted after the date of this
Lease), then Tenant shall pay to Landlord, within ten (10) Business Days after
demand therefor, Tenant's Proportionate Share of the reasonable annual
amortization (based upon the reasonable useful life of the item, but in no event
less than ten (10) years), with interest at the Base Rate, of the cost of such
improvement in each calendar year during the Term during which such amortization
occurs.
ARTICLE 7. LEGAL REQUIREMENTS
Section 7.1 Tenant, at its sole expense, shall comply with all
Legal Requirements applicable to the Premises or the use and occupancy thereof
by Tenant, and make all repairs or Alterations required thereby, whether
structural or nonstructural, ordinary or extraordinary, unless otherwise
expressly provided herein; provided, however, that Tenant shall not be obligated
to comply with any Legal Requirement requiring any structural Alteration to the
Premises unless the application of such Legal Requirement arises from (i)
Tenant's manner of use or occupancy of the Premises (as distinguished from the
use or occupancy of the Premises for office purposes generally), (ii) any cause
or condition created by or on behalf of any Tenant Party (including any
Alterations), (iii) the breach of any of Tenant's obligations under this Lease,
(iv) any Hazardous Material having been brought into the Building by any Tenant
Party or (v) the enforcement, by any Governmental Authority or as a consequence
of private action, of Title I of the Americans With Disabilities Act. 42 U.S.C.
ss. 12101 (et seq.) or New York City Local Law 58 of 1987 with respect to any
condition at the Premises. Tenant shall not do or permit to be done any act or
thing upon the Premises which will invalidate or be in conflict with Landlord's
insurance policies, and shall not do or permit anything to be done in or upon
the Premises, or use the Premises in a manner, or bring or keep anything
therein, which shall increase the rates for casualty or liability insurance
applicable to the Building. If, as a result of any act or omission by Tenant or
by reason of Tenant's failure to comply with the provisions of this Article 7,
the
24
insurance rates for the Building shall be increased, then Tenant shall desist
from doing or permitting to be done any such act or thing and shall reimburse
Landlord, as Additional Rent hereunder, for that part of all insurance premiums
thereafter paid by Landlord which shall have been charged because of such act,
omission or failure by Tenant, and shall make such reimbursement within ten (10)
Business Days after demand by Landlord.
Section 7.2 Tenant, at its expense, shall comply with all
Environmental Laws and with any directive of any Governmental Authority which
shall impose any violation, order or duty upon Landlord or Tenant under any
Environmental Laws with respect to the Premises or the use or occupation
thereof. Tenant's obligations hereunder with respect to Hazardous Materials
shall extend only to those matters arising or resulting from (a) the actual or
alleged presence of Hazardous Materials on the Premises or in the Building which
is actually caused or permitted to be brought into the Premises by Tenant
subsequent to the delivery of the Premises to Tenant hereunder, and (b) any
Environmental Claim (defined below) relating in any way to Tenant's operation or
manner of use of the Premises or the Building.
Section 7.3 Tenant shall provide Landlord with copies of all
communications and related materials regarding the Premises which Tenant shall
receive from or send to (a) any Governmental Authority relating in any way to
any Environmental Laws, or (b) any Person with respect to any claim based upon
any Environmental Laws or relating in any way to Hazardous Materials (any such
claim, an "Environmental Claim"). Landlord or its agents may perform an
environmental inspection of the Premises for any commercially reasonable purpose
at any time during the Term, upon prior notice to Tenant except in an emergency.
Landlord shall use reasonable efforts to minimize interference with Tenant's use
and occupancy of the Premises for any commercially reasonable purpose and shall
promptly restore any damage to the Premises which may be caused by any such
inspection, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever, unless Tenant shall
first pay to Landlord Landlord's reasonable estimate of all incremental cost
increases to do so. In such event Tenant shall pay, as Additional Rent upon
presentation of appropriate invoices, all additional costs incurred by Landlord
in connection therewith.
Section 7.4 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 or Tenant of any Legal
Requirement, provided that: (a) Landlord shall not be subject to criminal
penalty or to prosecution for a crime, or any other fine or charge, nor shall
the Premises or any part thereof or the Real Property or any part thereof be
subject to being condemned or vacated, nor shall the Real Property or any part
thereof be subjected to any lien or encumbrance, by reason of non-compliance or
otherwise by reason of such contest; (b) no unsafe or hazardous condition shall
remain unremedied; (c) such non-compliance or contest shall not constitute or
result in any violation of any Superior Lease or Superior Mortgage, or if any
such Superior Lease or Superior Mortgage shall permit such non-compliance 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) if Landlord so requires, Tenant shall furnish to Landlord
the bond of a surety company, in form and substance reasonably satisfactory to
Landlord, in an amount equal to one hundred ten percent (110%) of the cost (as
reasonably
25
estimated by Landlord) of compliance with such contested Environmental Law or
other Legal Requirement, or such other security reasonably satisfactory in all
respect to Landlord; (e) such non-compliance or contest shall not prevent
Landlord from obtaining any and all permits and licenses in connection with the
operation of the Building; and (f) Tenant shall keep Landlord advised as to the
status of such proceedings, including any settlement thereof. Tenant agrees to
indemnify, defend and save Landlord harmless from and against any loss,
liability, damage or expense arising out of any such deferral of compliance or
contest, including reasonable attorneys' fees and disbursements.
Section 7.5. (a) Landlord, at its expense (except as otherwise
provided herein), shall comply with all Legal Requirements, including those
requiring the performance of alterations, additions, improvements, replacements
or repairs (whether the same are structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen) in, to or upon the Building (excluding
the Premises, to the extent Tenant is obligated to comply with such Legal
Requirements pursuant to Section 7.1), only to the extent that the failure to
effect such compliance would subject Tenant to material liability or materially
adversely affect (A) Tenant's use or occupancy of the Premises for the Permitted
Use, (B) Tenant's access to the Premises, (C) the provision of Building services
which Landlord is required by this Lease to provide to Tenant, or (D) Tenant's
ability to perform Alterations which would otherwise be permitted hereunder.
(b) Notwithstanding the provisions of Section 7.5(a), Landlord
may defer compliance with any Legal Requirements which it is obligated to comply
with hereunder, so long as Landlord shall be contesting the validity or
applicability thereof in good faith by appropriate proceedings, provided that
(i) Tenant shall not be subject to criminal penalty or to prosecution for a
crime, or any other fine or charge (unless Landlord pays such other fine or
charge), (ii) neither the Premises (or any part thereof) nor any part of the
Building or Real Property which affects the Premises or Tenant's use and
occupancy thereof, shall be subject to being condemned or vacated, by reason of
non-compliance or otherwise by reason of such contest, (iii) such non-compliance
or contest shall not prevent Tenant from lawfully occupying the Premises for the
Permitted Use or performing any Alterations in the Premises, or obtaining any
and all permits and licenses required to be obtained by it in connection
therewith, and (iv) Landlord, after request by Tenant, shall use reasonable
efforts to keep Tenant advised as to the status of such proceedings.
ARTICLE 8. SUBORDINATION AND NON-DISTURBANCE; ESTOPPEL
CERTIFICATES
Section 8.1 This Lease, and all rights of Tenant hereunder,
are and shall be subject and subordinate in all respects to all Mortgages and
Superior Leases. This Section 8.1 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instrument that
Landlord or any Superior Lessor or Mortgagee may reasonably request to evidence
such subordination.
Section 8.2 In the event of any act or omission of Landlord
which would give Tenant the right, immediately or after lapse of a period of
time, to cancel or terminate this lease,
26
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) unless such act or omission shall be one which is
not capable of being remedied by Landlord or such Mortgagee or Superior Lessor
within a reasonable period of time, 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 or Superior Lessor shall have become
entitled under such Mortgage or Superior Lease, as the case may be, 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), provided such Mortgagee or Superior Lessor shall
with due diligence give Tenant written notice of its intention to remedy such
act or omission, and such Mortgagee or Superior Lessor shall commence and
thereafter continue with reasonable diligence to remedy such act or omission. If
more than one Mortgagee or Superior Lessor shall become entitled to any
additional cure period under this Section 8.2, such cure periods shall run
concurrently, not consecutively.
Section 8.3 If a Mortgagee or Superior Lessor shall succeed to
the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, then at the request of
such party so succeeding to Landlord's rights ("Successor Landlord") and upon
Successor Landlord's written agreement to accept Tenant's attornment, Tenant
shall attorn to and recognize Successor Landlord as Tenant's landlord under this
Lease, and shall promptly execute and deliver any instrument that Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as, or as if it
were, a direct lease between Successor Landlord and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease and shall be
applicable after such attornment except that Successor Landlord shall not:
(a) be liable for any previous act or omission of
Landlord under this Lease (provided, however, that nothing contained
herein shall be deemed to relieve Mortgagee or Successor Landlord of
any liability arising by reason of Mortgagee's or Successor Landlord's
acts or omissions from and after the date that Mortgagee or Successor
Landlord shall become landlord under this Lease, and Mortgagee or
Successor Landlord, as landlord under this Lease, shall be obligated to
properly maintain, operate and repair the Premises in accordance with
the provisions of this Lease, notwithstanding the fact that any
condition requiring such maintenance or repair may have arisen prior to
the date of any such foreclosure, or assignment in lieu of foreclosure,
of this Mortgage);
(b) be subject to any offset which shall have
theretofore accrued to Tenant against Landlord; or
(c) be bound by any previous modification of this
Lease, not expressly provided for in this Lease, or by any previous
prepayment of more than one month's fixed rent, unless such
modification or prepayment shall have been expressly approved in
writing by such Mortgagee or Superior Lessor.
27
SECTION 8.4 Notwithstanding the foregoing provisions of this
Article 8, as a condition to Tenant's agreement hereunder to subordinate
Tenant's interest in this Lease to any Mortgages or Superior Leases, Landlord
shall obtain from each Mortgagee or Superior Lessor an agreement, in recordable
form (and (i) with respect to the existing Mortgage, in the form attached to
this Lease as Exhibit H, and (ii) with respect to any Mortgages or Superior
Leases entered into after the date hereof, in the form attached to this Lease as
Exhibit H with such modifications thereto as shall be reasonably requested by
the Mortgagee under such Mortgage, provided that such modifications shall not
substantially (A) decrease Tenant's rights or increase Tenant's obligations
under such Non-Disturbance Agreement or (B) decrease the Mortgagee's obligations
or increase Mortgagee's rights under such Non-Disturbance Agreement), pursuant
to which such Mortgagee or Superior Lessor shall agree that if and so long as no
Event of Default hereunder shall have occurred and be continuing, the leasehold
estate granted to Tenant and the rights of Tenant pursuant to this Lease to
quiet and peaceful possession of the Premises shall not be terminated, modified,
affected or disturbed by any action which such Mortgagee or Lessor may take to
foreclose any such Mortgage or Superior Lease, and that any Successor Landlord
shall recognize this Lease as being in full force and effect as if it were a
direct lease between such Successor Landlord and Tenant upon all of the terms,
covenants, conditions and options granted to Tenant under this Lease, except as
otherwise provided in Section 8.3 (any such agreement, a "Non-Disturbance
Agreement"). Upon written request from Landlord, Tenant shall promptly execute
and deliver any such Non-Disturbance Agreement. Landlord represents to Tenant
that as of the date of this Lease (i) 111 8th Funding Company, Inc. ("Lender")
is the sole Mortgagee of the Building and the Real Property; and (ii) there are
no Superior Leases affecting the Building or the Real Property. If Landlord
fails to deliver to Tenant a Non-Disturbance Agreement executed by Lender within
thirty (30) days following the execution and delivery of this Lease, then Tenant
shall have the right to terminate this Lease by notice to Landlord, such
termination to be effective on the date which shall be thirty (30) days after
the date such notice is given, upon which date this Lease shall come to an end
and terminate, and neither party shall have any liability to the other
hereunder, and Landlord shall return to Tenant the Security Deposit (as defined
in Section 32.1) and any prepaid rent deposited by Tenant hereunder.
Notwithstanding anything to the contrary contained herein, if Landlord shall
deliver such Non Disturbance Agreement executed by Lender, to Tenant at any time
within ten (10) days following Landlord's receipt of such notice by Tenant, such
termination shall be void and of no force and effect, and Tenant shall have no
further right to terminate this Lease pursuant to this Section 8.4. Tenant shall
have the right to record any Non-Disturbance Agreement in the Register's Office,
provided that Tenant shall pay all costs, taxes and expenses necessary for the
recordation of such Non-Disturbance Agreement.
Section 8.5 Each party agrees, at any time and from time to
time, as requested by the other party, upon not less than ten (10) Business
Days' prior notice, to execute and deliver to the other a written statement
executed and acknowledged by such party (a) stating that this Lease is then in
full force and effect and has not been modified (or if modified, setting forth
all modifications), (b) setting forth the then annual Fixed Rent, (c) setting
forth the date to which the Fixed Rent and Additional Rent have been paid, (d)
stating whether or not, to the best knowledge of the signatory, the other party
is in default under this Lease, and if so, setting forth the specific nature of
all such defaults, (e) stating the amount of the Security Deposit, (f) stating
whether there are any subleases affecting the Premises, (g) stating the address
of the signatory to which all
28
notices and communication under the Lease shall be sent, the Commencement Date
and the Expiration Date, and (h) as to any other matters reasonably requested by
the party requesting such certificate. The parties acknowledge that any
statement delivered pursuant to this Section 8.5 may be relied upon by others
with whom the party requesting such certificate may be dealing, including any
purchaser or owner of the Real Property or the Building, or of Landlord's
interest in the Real Property or the Building or any Superior Lease, or by any
Mortgagee or Superior Lessor, or by any prospective or actual sublessee of the
Premises or assignee of this Lease, or permitted transferee of or successor to
Tenant.
ARTICLE 9. SERVICES
Section 9.1 Landlord shall provide, at Landlord's expense,
except as otherwise set forth herein, the following services:
Section 9.2 Electricity
(a) Landlord, at Landlord's expense, subject to the provisions
of this Article 9, shall make available to Tenant 1400 amperes (from a 1600
ampere switch), 460 volts, 3-phase, 4-wire AC electric capacity dedicated to
Tenant for use in the Premises (the "Basic Capacity"). Landlord, at Tenant's
expense, shall, as an Alteration, bring all such Basic Capacity from the bus
duct in Landlord's electrical closet "C" on the ninth floor of the Building to
the Premises and distribute it therein. In the event that Tenant shall require
electric capacity in excess of the Basic Capacity, then upon request, and
subject to the availability of additional electrical capacity in the Building,
as determined by Landlord in its sole judgment, Landlord shall make additional
electric power available to Tenant, at a location in the basement of the
Building to be designated by Landlord, and Tenant shall be solely responsible,
at Tenant's sole cost and expense for the installation of all risers and other
electrical facilities and equipment required in order to deliver such additional
electric power to the Premises and distribute it therein (and shall use
Landlord's designated electrical contractor to perform the tap into the
Building's electrical system in the basement of the Building), and Tenant shall
pay to Landlord a one-time charge equal to Landlord's then-applicable rate per
ampere (which is currently equal to $300.00 per ampere) for additional power,
multiplied by each ampere in excess of the Basic Capacity so provided by
Landlord. Tenant covenants that Tenant's use and consumption of electric current
shall not at any time exceed the electric capacity required to be supplied to
the bus duct on the ninth floor by Landlord from time to time pursuant to this
Section 9.2, nor exceed the capacity of any of the electrical facilities and
installations in or otherwise serving or being used in the Premises. Tenant
shall pay Landlord, as Additional Rent, at any time and from time to time, but
no more frequently than monthly, for its consumption of electrical energy at the
Premises, as provided herein. Notwithstanding the foregoing, in the event Tenant
shall terminate this Lease with respect to Space B or Space C in accordance with
Section 2.3, the Basic Capacity shall be reduced by an amount proportionate to
the ratio of the area of such Space to the aggregate area of Spaces A, B and C.
(b) The calculations and determinations of the charges for
electric energy consumed by Tenant shall be based on the readings of one or more
submeters to be installed reasonably promptly by Landlord at Tenant's sole
expense, applied to Landlord's Electricity Cost,
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as defined in Section 9.2(c). Tenant shall pay for electricity consumed as
determined thereunder as measured and calculated from time to time by such
submeter or submeters, plus Landlord's charge for overhead and supervision,
which charge shall not exceed seven percent (7%) of such payment by Tenant. In
addition, Tenant shall pay to Landlord, as Additional Rent (i) the fees and
expenses of Landlord's electrical contractor for services rendered by such
contractor in the maintenance and repair of such submeter(s), and (ii) the
amount of any taxes imposed by any Governmental Authority on Landlord's receipts
from the sale of electricity to Tenant.
(c) "Landlord's Electricity Cost" means the cost per kilowatt
hour and cost per kilowatt demand, adjusted by time of day factors, fuel
adjustment charges and other applicable rate adjustments, to Landlord for the
purchase of electricity from the public utility or other electricity provider
furnishing electricity service to the Building from time to time (the
"Electricity Provider"), including sales and other taxes imposed by any
Governmental Authority on Landlord's purchase of electricity. If at any time
during the Term the cost elements comprising Landlord's Electricity Cost shall
be increased by the Electricity Provider, or Landlord's Electricity Cost shall
be increased for any other reason, then effective as of the date of such
increase, Tenant's payment for submetered electricity under this Section 9.2
shall be proportionately increased. Landlord reserves the right to contract with
different Electricity Providers from time to time in its sole judgment, and
without reference to whether any Electricity Provider selected by Landlord
provides lower rates than any other electricity supplier. Currently, Landlord's
Electricity Cost is based upon Consolidated Edison Company's Service
Classification rate schedule S.C. #4 Rate II as in effect on the Commencement
Date.
(d) During the period beginning on the Commencement Date and
ending on the date upon which the submeters to be installed by Landlord in the
Premises become operational, Tenant shall pay to Landlord a fixed fee for
electric energy supplied to the Premises of (i) during the period prior to the
date upon which Tenant first occupies all or any portion of the Premises for the
conduct of its business, an amount per annum equal to One and 00/100 Dollar
($1.00) multiplied by the number of Rentable Square Feet in the delivered
portion of the Premises, in equal monthly installments on the first (1st) day of
each month during such period, and (ii) from and after the date upon which
Tenant first occupies all or any portion of the Premises for the conduct of its
business, an amount per annum equal to Four and 00/100 Dollars ($4.00)
multiplied by the number of Rentable Square Feet in the delivered portion of the
Premises, in equal monthly installments on the first (1st) day of each month
during such period, through the date upon which such submeters become
operational.
(e) Tenant covenants that Tenant's use and consumption of
electric current shall not at any time exceed the capacity of any of the
electrical facilities and installations in or otherwise serving or being used in
any Space and Tenant shall, upon the submission by Landlord to Tenant of written
notice, promptly cease the use of any of Tenant's electrical equipment which
Landlord reasonably believes will cause Tenant to exceed such capacity. Any
additional feeders, risers, electrical facilities and other such installations
required for electric service to the Premises will be supplied by Landlord, at
Tenant's expense, upon Landlord's prior consent in each instance, which consent
shall not be unreasonably withheld or delayed, provided that, in Landlord's
reasonable judgment, such additional electrical facilities and installations,
feeders or risers are necessary and are permissible under Legal Requirements
(including the New York
30
State Energy Conservation Construction Code) and insurance regulations and the
installation of such feeders or risers will not cause 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 or repairs or
interfere with, or disturb, other tenants or occupants of the Building. In
addition, Landlord shall have no obligation to consent to such additional
feeders, risers, electrical facilities and installations if in Landlord's
reasonable judgment, the same would give Tenant a disproportionate amount of the
electrical current supplied to the Building at the expense of, or in derogation
of the needs of other tenants or occupants of the Building. Notwithstanding
anything to the contrary set forth in the immediately preceding sentence,
Landlord will cooperate with Tenant if Tenant seeks to obtain additional
electric service to the Building from the Electricity Provider, provided that
Landlord shall not be required to incur any expenses (unless Landlord shall be
reimbursed therefor by Tenant within ten (10) days after demand) or incur any
liability in connection with such action by Tenant.
(f) Except as otherwise expressly provided herein, Landlord
shall not in any way be liable or responsible to Tenant for any loss, damage or
expense which Tenant may sustain or incur as a result of the unavailability of
or interruption in the supply of electric current to the Premises or a change in
the quantity or character or nature of such current and such change,
interruption or unavailability shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent (except that Tenant's liability to pay Landlord for electricity under
this Section 9.2 shall cease as of the date of such disturbance), or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord or its agents, by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise.
(g) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than sixty (60) days' notice
to Tenant. If Landlord exercises such right to discontinue, or is compelled to
discontinue furnishing electricity to Tenant, this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that from and
after the effective date of such discontinuance, Landlord shall not be obligated
to furnish electricity to Tenant, and Tenant shall have no further obligation to
pay Landlord for electricity supplied to the Premises. If Landlord so
discontinues furnishing electricity to Tenant, Tenant shall arrange to obtain
electricity directly from the Electricity Provider. Such electricity may be
furnished to Tenant by means of the then existing electrical facilities serving
the Premises to the extent that the same are available, suitable and safe for
such purposes. All meters and all additional panel boards, feeders, risers,
wiring and other equipment which may be required by Tenant to obtain electricity
directly from the Electricity Provider shall be installed by Landlord, at the
sole cost and expense of (i) Landlord, if Landlord voluntarily discontinues such
service, or (ii) Tenant, if (A) Landlord is compelled to discontinue such
service by the Electricity Provider or pursuant to applicable Legal
Requirements, or (B) such discontinuance arises out of the acts or omissions of
Tenant. Landlord will not voluntarily discontinue furnishing electricity to
Tenant until Tenant is able to receive electricity directly from the Electricity
Provider unless the Electricity Provider is not prepared to furnish electricity
to the Premises on the date required as a result of Tenant's delay or negligence
in arranging for service or Tenant's refusal to take any other action reasonably
requested by the Electricity Provider.
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(h) If submetering of electricity in the Building is hereafter
prohibited by any Legal Requirement, or by any order or ruling of the Public
Service Commission of the State of New York, then Tenant shall apply, within ten
(10) days of Tenant's receiving notice thereof, to the Electricity Provider in
order to obtain direct electric service, and Tenant shall bear all costs and
expenses necessary to comply with all rules and regulations of the Electricity
Provider pertinent thereto, and from and after the date upon which Tenant
procures direct electric service, Landlord shall be relieved of any further
obligation to furnish electricity to Tenant pursuant to this Section 9.2. Such
electricity may be furnished to Tenant by means of the then existing electrical
facilities serving the Premises, including Building feeders and risers, to the
extent that the same are suitable and safe for such purposes.
(i) Landlord acknowledges that Tenant has advised Landlord
that: (i) Tenant and the New York City Industrial Development Agency, a New York
public benefit corporation (the "XXX"), intend to enter into an agreement,
detailing a package of financial incentives that are to be made available to
Tenant or an Affiliate of Tenant (the "Incentive Program") by the New York City
Economic Development Corp. ("EDC"), (ii) pursuant to the Incentive Program,
Tenant shall be entitled to certain exemptions, abatements and/or savings in the
cost of electricity used by Tenant at the Premises (including certain savings
pursuant to Con Ed's Business Incentive Rate Program) (collectively,
"Electricity Savings"), and (iii) Electricity Savings may be made available to
Tenant pursuant to reductions in the total cost incurred by Landlord to provide
electricity to the Building (whether the Electricity Provider is Con Ed or any
other entity). In connection with the foregoing, Landlord hereby agrees that if
and to the extent the total cost incurred by Landlord to provide electricity to
the Building during a particular billing period is reduced as a result of
Electricity Savings pursuant to the Incentive Program, then such Electricity
Savings shall be for the account of and the sole property of Tenant, directly
payable solely to and/or earned by Tenant. If and so long as Tenant is paying
Landlord for electricity pursuant to Sections 9.2(a), 9.2(b) and/or 9.2(d), then
the amount of any Electricity Savings which are expressly indicated (including
the specific amount of such reduction) on Landlord's statement from the
Electricity Provider, shall be offset against and deducted from Additional Rent
otherwise due from Tenant to Landlord for the next following billing period. If
Tenant shall not be paying Landlord for electricity (including if electricity is
obtained by Tenant pursuant to Sections 9.2(g) or 9.2(h)), then such Electricity
Savings shall be for the account of and the sole property of Tenant, directly
payable solely to and/or earned by Tenant. Landlord agrees (at no cost to
Landlord) to cooperate with Tenant (by, for example, executing any necessary
documents, forms, applications and surveys) to facilitate Tenant's obtaining the
Electricity Savings pursuant to the Incentive Program.
Section 9.3 Heat, Ventilation And Air-Conditioning
(a) Landlord shall provide heat to the Premises on Business
Days from 8:00 A.M. to 6:00 P.M., when required in Landlord's judgment for the
comfortable use and occupancy of the Premises, through use of the Building
standard perimeter radiator heating system serving the Premises (the "Building
Heating System").
(b) Anything in this Section 9.3 to the contrary
notwithstanding, Landlord shall not be responsible if the normal operation of
the Building Heating System shall fail to
32
provide heat to all interior portions of the Premises at reasonable
temperatures. Tenant at all times shall cooperate fully with Landlord and shall
abide by the regulations and requirements which Landlord may reasonably
prescribe for the proper functioning and protection of the Building Heating
System.
(c) Landlord shall not be required to furnish heat during
periods other than the hours and days set forth in this Section 9.3 for the
furnishing and distributing of such services ("Overtime Periods"), unless
Landlord has received advance notice from Tenant requesting such service not
less than twenty-four (24) hours prior to the time when such service shall be
required; provided, however, that Landlord shall use reasonable efforts to
furnish heat during Overtime Periods on less than twenty-four (24) hours notice
if requested to do so by Tenant. Accordingly, if Landlord shall furnish heat to
the Premises at the request of Tenant during Overtime Periods, Tenant shall pay
Landlord, as Additional Rent within ten (10) days after demand, for such
services at the standard rate then fixed by Landlord for the Building, which
rate as of the date of this Lease is $75.00 per hour, subject to increase during
the Term to reflect increases in Landlord's costs.
(d) Landlord shall have no obligation to provide
air-conditioning or ventilation services to the Premises. Landlord acknowledges
that Tenant desires to install Tenant's HVAC System (as defined in Section 9.7),
as part of the Initial Alterations to be installed, subject to the provisions of
Article 3, at a location on the roof of the Building as provided in Section 9.7.
Section 9.4 Elevators. (a) Landlord shall provide passenger
elevator service to the Premises on Business Days from 8:00 A.M. to 6:00 P.M.
and freight elevator facilities on a non-exclusive basis, on Business Days from
8:00 A.M. to 4:45 P.M. ("Freight Business Hours"), without charge, and shall
have one passenger elevator available at all other times. Such elevator service
shall be subject to such rules and regulations as Landlord may reasonably
promulgate from time to time with respect thereto. Landlord shall have the right
to change the operation or manner of operation of any of the elevators in the
Building and/or to discontinue, temporarily or permanently, the use of any one
or more cars in any of the passenger, freight or truck elevator banks; provided
that in no event (other than for repairs or maintenance or due to Unavoidable
Delays) shall the Premises be serviced during Business Hours by fewer than three
(3) passenger elevator cars and one (1) freight elevator car. Landlord shall
afford Tenant access to the Premises 24 hours per day, 7 days per week. In
addition, if Tenant shall terminate this Lease with respect to Space B and Space
C pursuant to Section 2.3(c), then all Tenant Parties and their respective
invitees shall thereafter exclusively use the passenger elevators located on the
Ninth Avenue side of the Building, and shall not use the passenger elevators
located on the Eighth Avenue side of the Building.
(b) During the performance of Tenant's Initial Alterations and
during Tenant's move-in, Tenant shall have the right to use the freight elevator
without charge during Freight Business Hours for the delivery of construction
materials and for moving into (but not out of) the Premises provided that such
usage (i) shall be on a non-exclusive "first come first served" basis, and (ii)
shall be subject to Landlord's reasonable determination as to the availability
of such freight elevators. Landlord will make the freight elevator available to
Tenant during other than
33
Freight Business Hours, reasonably promptly (subject to availability) after
request by Tenant, and Tenant shall pay as Additional Rent the charge therefor
established by Landlord from time to time, payable within ten (10) Business Days
of rendition of a xxxx therefor. As of the date hereof, Landlord's current
charge for freight elevator service during other than Freight Business Hours is
$115.00 per hour, which charge is subject to increase to reflect increases in
Landlord's costs of providing such service (including the charges for a hoisting
engineer).
Section 9.5 Cleaning and Rubbish Removal. Tenant shall, at
Tenant's sole cost, provide cleaning services at the Premises pursuant to
reasonable rules and regulations established by Landlord from time to time, and
use a cleaning contractor approved by Landlord in the exercise of its reasonable
judgment. Tenant shall, at Tenant's sole cost, provide refuse and rubbish
removal service at the Premises at times, and pursuant to regulations,
reasonably established by Landlord from time to time.
Section 9.6 Water. Landlord shall furnish cold water in such
quantities as Landlord deems sufficient for ordinary drinking, lavatory and
cleaning purposes to the Premises. If Tenant requires, uses or consumes water
for any purpose in addition to ordinary lavatory, cleaning and drinking purposes
(including any water required for use in any pantry), Landlord may install a
water meter and thereby measure Tenant's consumption of water for all purposes.
Tenant shall (a) pay to Landlord the cost of any such meters and their
installation, (b) at Tenant's sole cost and expense, keep any such meters and
any such installation equipment in good working order and repair, and (c) pay to
Landlord, as Additional Rent, as and when billed therefor for water consumed,
Landlord's cost for water plus seven percent (7%) which Landlord's cost may
include (without duplication of any Tenant's Tax Payment) sewer rents, charges
or any other taxes, rents, levies or charges which now or hereafter are
assessed, imposed or shall become a lien upon the Premises or the Real Property
pursuant to law, order or regulation made or issued in connection with any such
metered use, consumption, maintenance or supply of water, water system, or
sewage or sewage connection or system (and in default in making such payment
Landlord may pay such charges and collect the same from Tenant). Landlord agrees
that Tenant shall have the right to connect Tenant's sprinkler system to the
standpipe provided therefor, and there shall be no charge for use of water from
such standpipe.
Section 9.7 Roof Equipment
(a) Landlord hereby grants to Tenant, for Tenant's own use
commencing on the Commencement Date and not for resale purposes, a license of an
area of the roof above the 17th floor of the Building, as shown on Exhibit I to
this Lease, containing approximately 700 square feet (the "Roof Space") for the
installation by Tenant of (i) a floor packaged direct expansion water cooled air
conditioning system, including a two cell, cross flow induced draft cooling
tower with a capacity not in excess of 454 tons of condenser water and with
pumps and auxiliary equipment ("Tenant's HVAC System") and (ii) Tenant's
telecommunications equipment, antenna and satellite dish (collectively, together
with related cabling, pumps, mountings and supports, the "Roof Equipment"), at a
location or locations within the Roof Space reasonably designated by Landlord
and reasonably acceptable to Tenant. In connection therewith, and subject to the
rights of other existing tenants in the Building, Landlord shall make available
to Tenant reasonable access to the roof for the construction, installation,
upgrade,
34
maintenance, repair, operation and use of the Roof Equipment. Tenant shall be
responsible for all reinforcement and bracing, if any, reasonably required by
Landlord to enable the roof of the Building to support the Roof Equipment. If
any of the Roof Equipment generates noise likely, in Landlord's reasonable
judgment, to disturb other tenants or occupants of the Building, then Tenant
shall install sound attenuated acoustic enclosures reasonably satisfactory to
Landlord designed to eliminate such noise or reduce such noise to acceptable
levels. If Tenant requires riser space for conduit connecting the Premises to
the Roof Equipment, Landlord shall make available to Tenant, for Tenant's use
solely in connection with the Roof Equipment, in the "Center Shaft" as shown on
the floor plan attached as Exhibit R, riser space sufficient for the
installation, at Tenant's expense, of telecommunications lines, cabling and
supply and condenser water return lines reasonably required for the operation of
the Roof Equipment, as more particularly set forth in Section 9.8. All work in
connection with the installation of such riser, including core drilling, if
required, shall be performed by Tenant at Tenant's sole cost and expense,
including the reasonable cost of a fire watch and related supervisory costs
relating to any core drilling, which shall be performed in such a manner and at
such times as Landlord shall reasonably prescribe. Landlord shall make available
to Tenant reasonable access within the core for purposes of such installation
work. References herein to the Roof Equipment shall be deemed to include such
riser and any conduits therein.
(b) The installation of the Roof Equipment shall constitute an
Alteration and shall be performed by Tenant at Tenant's sole cost and expense
(including any costs and expenses in connection with reinforcing the roof of the
Building, if required) in accordance with and subject to the provisions of
Article 3. Tenant shall pay a license fee to Landlord for the Roof Space, as
Additional Rent in advance on the first day of each month during the Term, as
follows: (i) during the period from the Commencement Date through the day before
the fifth (5th) anniversary of the Commencement Date, the product of the square
foot area of the Roof Space, multiplied by Eighteen and 00/100 Dollars ($18.00),
(ii) during the period from the fifth (5th) anniversary of the Commencement Date
through the day before the tenth (10th) anniversary of the Commencement Date,
the product of the square foot area of the Roof Space, multiplied by Twenty-One
and 00/100 Dollars ($21.00), and (iii) during the period from the tenth (10th)
anniversary of the Commencement Date through the Expiration Date, the product of
the square foot area of the Roof Space, multiplied by Twenty-Four and 00/100
Dollars ($24.00). All of the provisions of this Lease shall apply to the
installation, use and maintenance of the Roof Equipment, including all
provisions relating to compliance with Legal Requirements (including all FCC
rules and regulations), insurance, indemnity, repairs and maintenance. The
license granted to Tenant in this Section 9.7 shall not be assignable by Tenant
separately from this Lease.
(c) Landlord retains the right to use the portion of the roof
on which the Roof Equipment is located for any purpose whatsoever. Tenant shall
have reasonable access to the Roof Equipment at all times, and Landlord shall
not interfere with Tenant's use of the Roof Equipment so as to cause Tenant's
operation thereof to be materially interrupted or impaired. Tenant shall use the
Roof Equipment so as not to cause any material interference with Landlord's use
of the roof, including the use by Landlord or other tenants or occupants of the
Building of other equipment thereon (including data transmission or other
similar or dissimilar equipment), or damage to or interference with the
operation of the Building or the Building Systems. If any of Tenant's Roof
Equipment materially interferes with any equipment installed by Landlord or
35
any tenant leasing space in the Building as of the date of this Lease, or
interferes with the operation of the Building or the Building Systems, then
Tenant, at its sole cost and expense, shall take all steps necessary to
eliminate such interference, and if Tenant shall fail to eliminate such
interference, Tenant shall relocate the Roof Equipment to another area on the
roof reasonably designated by Landlord. Notwithstanding the foregoing, if
Landlord shall require Tenant to relocate Tenant's cooling tower pursuant
hereto, Landlord shall bear all costs and expenses in connection with such
relocation, and Landlord shall provide condenser water to Tenant on an interim
basis until Tenant's cooling tower is relocated and operational. In the event
Tenant fails, within ten (10) days after notice, to relocate or remove the Roof
Equipment, Landlord may do so, and Tenant shall promptly reimburse Landlord for
any costs and expenses incurred by Landlord in connection therewith. If such
interference or disturbance still occurs despite such relocation, or if Landlord
shall determine, in its reasonable judgment, that the Roof Equipment (i) may
cause a health hazard or danger to property, or (ii) is not in accordance with
governmental or quasi-governmental standards for non-ionizing radiation for
occupational and/or general public levels, then Tenant, at its sole cost and
expense, shall promptly remove the Roof Equipment from the roof of the Building.
(d) Landlord may at its option, at any time during the Term
after reasonable prior notice to Tenant (except in the event of an emergency)
relocate the Roof Equipment to another area on the roof designated by Landlord,
provided that such relocation of the Roof Equipment does not cause the operation
thereof to be interrupted or impaired, other than temporarily, and except as set
forth in Section 9.7(c), such relocation is performed at Landlord's sole cost
and expense. Landlord shall use reasonable efforts to minimize the duration of
such interruption, and agrees to employ contractors or labor at overtime or
other premium pay rates and to incur other reasonable overtime costs and
additional expenses, provided that Tenant shall first pay to Landlord Landlord's
reasonable estimate of all incremental cost increases to do so. In such event
Tenant shall pay, as Additional Rent upon presentation of appropriate invoices,
all additional costs incurred by Landlord in connection therewith.
(e) Landlord shall not have any obligations with respect to
the Roof Equipment or compliance with any Legal Requirements (including the
obtaining of any required permits or licenses, or the maintenance thereof)
relating thereto, nor shall Landlord be responsible for any damage that may be
caused to Tenant or the Roof Equipment by any other tenant or occupant of the
Building. Landlord makes no representation that the Roof Equipment (if same
includes communications equipment) will be able to receive or transmit
communication signals without interference or disturbance (whether or not by
reason of the installation or use of similar equipment by others on the roof)
and Tenant agrees that Landlord shall not be liable to Tenant therefor.
Notwithstanding the foregoing, upon request by Tenant, Landlord, at Tenant's
cost and expense, shall join in any applications for any permits, approvals or
certificates from any Governmental Authority required to be obtained by Tenant,
and shall sign such applications reasonably promptly after request by Tenant,
and shall otherwise cooperate with Tenant in connection therewith, provided that
Landlord shall not be obligated to incur any cost or expense (other than
incidental administrative expenses), including attorneys' fees and
disbursements, or suffer or incur any liability, in connection therewith.
36
(f) Tenant shall (i) be solely responsible for any damage
caused as a result of its use of the Roof Equipment, (ii) promptly pay any tax,
license, permit or other fees or charges imposed pursuant to any Legal
Requirements relating to the installation, maintenance or use of the Roof
Equipment, (iii) promptly comply with all precautions and safeguards required by
Landlord's insurance company and all Governmental Authorities, and (iv) promptly
and diligently perform all necessary repairs or replacements to, or maintenance
of, the Roof Equipment, provided, however, that if Tenant's failure after five
(5) days' notice from Landlord to so repair, replace or maintain the Roof
Equipment materially jeopardizes in any way Landlord's or any other tenant's
property located on the roof or within the Building, Landlord may, at Landlord's
option, elect to perform such repairs, replacements or maintenance at Tenant's
sole cost and expense. Landlord shall give Tenant reasonable prior notice of its
election to perform such repairs, except in an emergency.
(g) The privileges granted Tenant under this Section 9.7
merely constitute a license and shall not, now or at any time after the
installation of the Roof Equipment, be deemed to grant Tenant a leasehold or
other real property interest in the Building or any portion thereof, including
the Building's roof. The license granted to Tenant in this Section 9.7 shall
continue until and automatically terminate and expire upon the expiration or
earlier termination of this Lease and the termination of such license shall be
self-operative and no further instrument shall be required to effect such
termination. Notwithstanding the foregoing, upon request by Landlord, Tenant, at
Tenant's sole cost and expense, shall promptly execute and deliver to Landlord,
in recordable form, any certificate or other document reasonably required by
Landlord confirming the termination of Tenant's right to use the roof of the
Building upon the expiration or sooner termination of this Lease.
(h) The Roof Equipment shall be treated for all purposes of
this Lease as Tenant's Property. If requested by Landlord, Tenant shall cause
the Roof Equipment and all equipment and installations appurtenant thereto to be
designated as one or more separate tax lots by the City of New York for all
purposes of assessment and payment of Taxes, and Tenant shall pay all Taxes
imposed thereon directly to the taxing authorities, without deduction or offset
against Rent under this Lease. If for any reason Tenant fails (with or without
Landlord's consent thereto) to so cause the Roof Equipment to be designated as
one or more separate tax lots, Tenant shall pay to Landlord monthly, as
Additional Rent upon demand, the amount, determined by Landlord in its
reasonable discretion, by which Taxes imposed upon the Building have been
increased on account of Tenant's installation of the Roof Equipment.
Section 9.8 Conduit. Landlord will make available to Tenant,
without additional charge, riser space in the "Center Shaft" as shown on Exhibit
R (except as set forth in (b) below) sufficient to accommodate the following:
(a) the two (2) two1/2-inch (2 1/2") diameter electrical conduits and such other
electrical conduits as shall be required in order to deliver the Basic Capacity
to the Premises, (b) four (4) four-inch (4"), one (1) one1/2-inch (1 1/2") and
one (1) one-inch (1") diameter riser conduit sleeves for telecommunications
lines and cabling and security systems in the number eighteen freight elevator
shaft, (c) two (2) ten-inch (10") diameter riser conduit sleeves for condenser
water supply and return lines connecting the Roof Equipment to the Premises, (d)
the electrical conduits required in order to deliver EPS (if any) to the
Premises, and (e) four (4) four-inch (4") diameter riser conduit sleeves
connecting the Premises
37
to the premises demised to Tenant pursuant to Tenant's Other Lease. If Tenant
requires additional riser space for electrical and telecommunications conduits
or for use in connection with the Roof Equipment, then upon request by Tenant,
subject to availability of riser space in the Building, Landlord will make
available riser space at Landlord's then-current rates for riser space in the
Building, which rates are currently as follows: (i) for riser space not
exceeding two inches (2") in diameter, an annual charge of $5.00 per lineal
foot, and (ii) for riser space in excess of two inches (2") in diameter but not
exceeding four inches (4") in diameter, an annual charge of $10.00 per lineal
foot. All work in connection with the installation of such conduit, including
core drilling, if required, shall be performed by Tenant at Tenant's sole cost
and expense, including the reasonable cost of a fire watch and related
supervisory costs relating to any core drilling, which shall be performed in
such a manner and at such times as Landlord shall reasonably prescribe. Landlord
shall make available to Tenant reasonable access within the Building core for
purposes of such installation work.
Section 9.9 Listings in Building Directory. Landlord shall, at
the request of Tenant, maintain listings on the Building directory in the
Building lobby of the names of Tenant and any officers or employees of Tenant
(or any permitted Subtenant) provided that the number of listings shall be in
the same proportion to the capacity of the Building directory as the rentable
area of the Premises is to the rentable area of the Building. Tenant shall
deliver to Landlord, on or prior to the Commencement Date, a list of all names
to be included in the directory. Tenant may deliver revised listings to Landlord
from time to time throughout the Term (but Landlord shall not be obligated to
revise the directory more often than once a month).
Section 9.10 No Warranty of Landlord. Landlord does not
warrant that any of the services to be provided by Landlord to Tenant hereunder,
or any other services which Landlord may supply (a) will be adequate for
Tenant's particular purposes or as to any other particular need of Tenant, or
(b) will, subject to the provisions of the fourth sentence of this Section 9.10,
be free from interruption, and Tenant acknowledges that any one or more such
services may be interrupted or suspended by reason of Unavoidable Delays.
Landlord reserves the right to stop, interrupt or reduce service of the Building
Systems by reason of Unavoidable Delays, or for repairs, additions, alterations,
replacements or improvements which are, in the judgment of Landlord, necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed. Any such interruption or discontinuance of service, or the
exercise of such right by Landlord to suspend or interrupt such service shall
not (i) constitute an actual or constructive eviction, or disturbance of
Tenant's use and possession of the Premises, in whole or in part, (ii) entitle
Tenant to any compensation or to any abatement or diminution of Fixed Rent or
Additional Rent, (iii) relieve Tenant from any of its obligations under this
Lease, or (iv) impose any responsibility or liability upon Landlord or its
agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise. Landlord shall use reasonable
efforts to minimize interference with Tenant's access to and use and occupancy
of the Premises in making any repairs, alterations, additions, replacements,
decorations or improvements; provided, however, that Landlord shall have no
obligation to employ contractors or labor at "overtime" or other premium pay
rates or to incur any other "overtime" costs or additional expenses whatsoever.
Landlord shall not be required to furnish any services except as expressly
provided in this Article 9.
Section 9.11 Life Safety System. Landlord shall provide life
safety service to the Premises, in accordance with Legal Requirements, through
the Building's Class E System to the data gathering panels serving the Premises.
In connection therewith Landlord will provide points of connection to Building's
Class E System sufficient for the Permitted Use.
Section 9.12 Emergency Generator.
(a) Landlord shall make available to Tenant for use in the
Premises 350 amperes of 460-volt emergency electric power service ("EPS")
available to Tenant for use in the Premises from the Building's emergency
electric generator (the "Generator") as provided in this Section 9.12, for the
balance of the Term. Landlord shall install (i) an automatic transfer switch
(the "Transfer Switch"), in the Premises at a location to be reasonably
designated by Tenant, sufficient to supply a total connected load of up 350
amperes of EPS at 460 volts to the Premises, and (ii) a connection from the
Generator to the Transfer Switch.
(b) Tenant shall pay Landlord for EPS as follows:
(i) Tenant shall pay all actual costs and expenses
incurred by Landlord in making EPS available to the
Premises, including the actual costs to furnish and install
the Transfer Switch and all cabling and other devices
necessary to connect the Generator to the Transfer Switch,
within ten (10) days after demand by Landlord; and
(ii) (A) Tenant shall pay an annual fee (the "EPS
Fee") for the period commencing on the date on which Landlord
makes EPS available to the Premises but not earlier than
January 1, 2000 through the Expiration Date, irrespective of
whether or not emergency power is ever required or used by
Tenant, in the amount of $150.00 per ampere per year. The EPS
Fee shall be payable by Tenant to Landlord as Additional Rent
in advance in equal monthly installments on the first day of
each month during the Term in which EPS is made available to
Tenant pursuant to this Section 9.12.
(c) Tenant understands and agrees that EPS will be supplied to
Tenant only if there is an interruption or failure in the supply of electric
current to the Premises due to service failure or in connection with customary,
routine testing of Tenant's electrical systems and under no other circumstances.
(d) Tenant shall be responsible for the payment of any
occupancy tax and any other tax (other than Landlord's income tax) imposed upon
the Additional Rent paid by Tenant pursuant to this Section 9.12.
(e) The privilege of using the EPS service described in this
Section 9.12 cannot be transferred or assigned by Tenant except in connection
with an assignment of this Lease permitted under Sections 13.1, 13.10 or 13.11,
or otherwise with the express written consent of Landlord, which may be withheld
in Landlord's sole discretion, and under no circumstances can this privilege be
transferred or assigned to any party who is not a tenant under this Lease.
Tenant
39
acknowledges that the Generator (and any replacement or substitute therefor),
and all connections thereto, are and shall remain the sole property of Landlord
and may not be removed by Tenant.
(f) Landlord shall have the right, in Landlord's sole
discretion, at any time and from time to time during the EPS Term, upon not less
than thirty (30) days' prior written notice to Tenant, to relocate the Generator
to another area of the Building, and/or to substitute another Building generator
in lieu of the Generator, in either case at Landlord's expense. Tenant shall
cooperate with Landlord to effectuate any such relocation or substitution of the
Generator, provided that Landlord shall promptly reimburse any reasonable
out-of-pocket expenses incurred by Tenant in connection therewith.
(g) Upon and subject to the provisions of this Lease, Landlord
shall, at Landlord's expense, maintain and repair the Generator in accordance
with the manufacturer's recommendations and good industry standards, and shall
maintain such service contracts and take such other actions as may be necessary
in Landlord's reasonable judgment to keep the Generator in good working order
during the EPS Term; provided, however, so long as Landlord shall comply with
its obligations pursuant to this subsection (g), Landlord shall not be liable in
any way to Tenant for any delay, interruption, failure, variation or defect in
or with regard to the Generator or EPS. In no event shall Landlord be liable to
Tenant for special, indirect or consequential damages which may result from any
such delay, interruption, failure, variation or defect.
ARTICLE 10. INSURANCE
Section 10.1 Tenant, at its expense, shall obtain and keep in
full force and effect a policy of commercial general liability insurance
including premises - operations and contractual liability under which the
insurer agrees to insure Tenant's obligations under Article 28 and under which
Tenant is named as the insured and Landlord, Landlord's asset manager,
Landlord's managing agent for the Building and any Superior Lessors and any
Mortgagees (whose names shall have been furnished to Tenant) are named as
additional insureds, which insurance shall provide primary coverage without
contribution from any other insurance carried by or for the benefit of Landlord,
Landlord's asset manager, Landlord's managing agent and any Superior Lessors or
Mortgagees named as additional insureds. Tenant's primary commercial general
liability policy shall contain a provision that the policy shall be
noncancellable unless thirty (30) days' written notice shall have been given to
Landlord and Landlord shall similarly receive thirty (30) days' notice of any
material change in coverage. The minimum limits of liability shall be a combined
single limit with respect to each occurrence in an amount of not less than
$5,000,000 per location general aggregate limit; provided, however, that
Landlord shall retain the right to require Tenant to increase said coverage to
that amount of insurance which in Landlord's reasonable judgment is then being
customarily required by prudent landlords of comparable buildings in the City of
New York, and provided further that Landlord shall require similar increases of
other tenants of space in the Building comparable to the Premises, to the extent
Landlord shall then have the right to do so under applicable leases. Tenant
shall also obtain and keep in full force and effect during the Term (a)
insurance against loss or damage by fire, and such other risks and hazards as
are insurable under then available standard forms of "all risk" insurance
policies with extended coverage (including theft, sprinkler leakage, and boiler
40
and machinery, if applicable), to Tenant's Property and Tenant's Alterations for
the full insurable value thereof or on a replacement cost basis; (b) Workers'
Compensation Insurance, as required by law; (c) New York Disability Benefits Law
Policy; (d) Business Interruption Insurance; and (e) such other insurance in
such amounts as Landlord may reasonably require from time to time. All insurance
required to be carried by Tenant pursuant to the terms of this Lease shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York, and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating of "A-"
and a "Financial Size Category" of at least "XI" or if such ratings are not then
in effect, the equivalent thereof.
Section 10.2 (a) Each party hereto does hereby waive any and
all rights of recovery against the other and against the officers, employees,
partners, agents and representatives of the other, for loss of or damage to the
property of the waiving party to the extent such loss or damage is insured
against under any insurance policy carried by Landlord or Tenant hereunder. In
addition, the parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Premises,
the Building and personal property, fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and subject to obtaining such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, hereby agree not to make any claim against or seek to recover from the
other for any loss or damage to its property or the property of others resulting
from fire or other hazards covered by such fire and extended coverage insurance;
provided, however, that the release, discharge, exoneration and covenant not to
xxx herein contained shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation clause or endorsements or clauses or
endorsements consenting to a waiver of right of recovery. If the payment of an
additional premium is required for the inclusion of such waiver of subrogation
or consent to waiver provision, each party shall advise the other of the amount
of any such additional premiums and the other party at its own election may, but
shall not be obligated to, pay the same. If such other party shall not elect to
pay such additional premium, the first party shall not be required to obtain
such waiver of subrogation or consent to waiver provision. Tenant acknowledges
that Landlord shall not carry insurance on and shall not be responsible for
damage to, Tenant's Alterations (if any) or Tenant's Property, and that Landlord
shall not carry insurance against, or be responsible for any loss suffered by
Tenant due to, interruption of Tenant's business.
(b) As to each party hereto, provided such party's right of
full recovery under the applicable insurance policy is not adversely affected,
such party hereby releases the other (its servants, agents, contractors,
employees and invitees) with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction of the type covered by such insurance with respect to its
property by fire or other casualty i.e., in the case of Landlord, as to the
Building, and, in the case of Tenant, as to Tenant's Property and Tenant's
Alterations (including rental value or business interruption, as the case may
be) occurring during the Term.
41
Section 10.3 On or prior to the Commencement Date, Tenant
shall deliver to Landlord appropriate certificates of insurance required to be
carried by Tenant pursuant to this Article 10, including evidence of waivers of
subrogation required pursuant to Section 10.2. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least ten
(10) days prior to the expiration of such policy.
Section 10.4 Landlord agrees to maintain (a) insurance against
loss or damage to the Building by fire and such other risks and hazards as are
insurable under then available forms of "all risk" insurance policies with
extended coverage, and (b) a policy of commercial general liability insurance,
in each case with minimum limits of liability in amounts comparable to insurance
maintained by other prudent landlords of comparable office buildings in the City
of New York.
ARTICLE 11. Destruction of the Premises; Property Loss or
Damage
Section 11.1 (a) If the Premises shall be damaged by fire or
other casualty, or if the Building shall be so damaged that Tenant shall be
deprived of reasonable access to the Premises, Tenant shall give prompt notice
thereof to Landlord, and the damage shall be repaired by and at the expense of
Landlord to substantially the condition prior to the damage, including Tenant's
Alterations, but excluding Tenant's Property. Until such repairs shall be
substantially completed, Fixed Rent and Additional Rent shall be reduced in the
proportion which the area of the part of the Premises which is neither usable
nor used by Tenant bears to the Premises Area (provided, however, in the event
that ninety percent (90%) or more of the floor area of the Premises shall be so
damaged so as not to be usable, and Tenant is unable to conduct its business in
the remaining portion of the Premises, or if the Premises shall be rendered
inaccessible, then Fixed Rent and Additional Rent shall be entirely abated).
Tenant shall pay to Landlord all proceeds of insurance policies covering
Tenant's Alterations, and such proceeds shall be used by Landlord in the repair
of Tenant's Alterations. Landlord shall have no obligation to repair any damage
to, or to replace, any of Tenant's Property.
(b) Concurrently with the collection of any insurance proceeds
attributable to damage to Tenant's Alterations (or the payment by Tenant to
Landlord of an amount equal to such insurance proceeds, pending collection of
such proceeds from its insurer), and as a condition precedent to Landlord's
obligation to commence those repairs to Tenant's Alterations required to be
performed by Landlord pursuant to this Section 11.1, Tenant shall pay to
Landlord (i) the amount of any deductible under the policy insuring Tenant's
Alterations, and (ii) the amount, if any, by which the cost of repairing and
restoring Tenant's Alterations, as estimated by a reputable independent
contractor designated by Landlord, exceeds the available insurance proceeds
therefor; provided, however, that Tenant may dispute the reasonableness of such
estimate by arbitration of the issue in accordance with the procedural
provisions set forth in Section 30.6. If the arbitrator determines such estimate
to have been reasonable, Tenant's payment shall be calculated based upon such
estimate; and if the arbitrator determines such estimate to have been
unreasonable, the arbitrator shall, without hearing any additional submission of
evidence or arguments by the parties, further determine the highest reasonable
estimate, and Tenant's payment shall be calculated based upon such estimate. The
amounts
42
finally determined to be due in accordance with this Section 11.1(b) constitute
Additional Rent under this Lease and shall be payable by Tenant to Landlord upon
demand.
Section 11.2 (a) If the Building shall be so damaged by fire
or other casualty that, in Landlord's reasonable opinion, substantial
alteration, demolition, or reconstruction of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable),
then in any of such events, Landlord may, not later than sixty (60) days
following the date of the damage, give Tenant a notice in writing terminating
this Lease, provided (i) Landlord similarly terminates the leases of other
tenants in the Building covering at least twenty-five percent (25%) of the
Rentable Square Footage (exclusive of the Premises) of the then leased space in
the Building, and (ii) Landlord does not restore the Premises and lease the same
for office purposes.
(b) If this Lease is so terminated, the Term shall expire upon
the tenth (10th) day after such notice is given, and Tenant shall vacate the
Premises and surrender the same to Landlord. Upon the termination of this Lease
under the conditions provided for in this Section 11.2, Tenant's liability for
Fixed Rent and Additional Rent shall cease as of the date of such fire or other
casualty, and any prepaid portion of Fixed Rent or Additional Rent for any
period after such date shall be refunded by Landlord to Tenant.
(c) If this Lease is terminated pursuant to the provisions of
this Article 11, then Landlord shall collect the insurance proceeds of policies
providing coverage for Tenant's Alterations as provided in Section 11.1(a).
Landlord shall retain such proceeds to the extent of sums, if any, advanced by
Landlord to Tenant with respect to any of Tenant's Alterations. The balance of
such proceeds, if any, shall be paid to Tenant.
Section 11.3 (a) If the Premises are damaged by fire or other
casualty and are rendered wholly untenantable thereby, or if the Building shall
be so damaged that Tenant shall be deprived of reasonable access to the
Premises, and if Landlord shall not elect to terminate this Lease as permitted
by this Article 11, Landlord shall, within sixty (60) days following the date of
the damage, cause a contractor or architect selected by Landlord to give notice
(the "Restoration Notice") to Tenant of the date by which such contractor or
architect believes the restoration of the Premises shall be Substantially
Completed. If the Restoration Notice shall indicate that reasonable access to
the Premises shall not be restored, or the restoration shall not be
Substantially Completed on or before the date which shall be nine (9) months
following the date of such damage or destruction or prevention of access, Tenant
shall have the right to terminate this Lease by giving written notice (the
"Termination Notice") to Landlord not later than thirty (30) days following
receipt of the Restoration Notice. If Tenant gives a Termination Notice, this
Lease shall be deemed cancelled and terminated as of the date of the giving of
the Termination Notice as if such date were the Expiration Date, and Fixed Rent
and Additional Rent shall be apportioned and shall be paid or refunded, as the
case may be up to and including the date of such damage or destruction.
Notwithstanding anything set forth to the contrary in this Article 11, in the
event that a fire or other casualty rendering the Premises wholly untenantable
shall occur during the final year of the Term, either Landlord or Tenant may
terminate this Lease by giving the other party a Termination Notice as set forth
herein. As used in this Section 11.3(a), the term "wholly untenantable" shall be
deemed to include a condition
43
whereby less than all of the Premises shall be untenantable, but the undamaged
portion shall be inadequate for the reasonable operation of Tenant's business at
the Premises.
(b) If (i) Tenant shall have had the right to give a
Termination Notice pursuant to Section 11.3(a) but shall not have done so, and
Landlord fails thereafter to Substantially Complete the restoration of the
Premises on or before the date which is thirty (30) days following the later to
occur of (y) nine (9) months following the date of such damage or destruction,
or (z) the date set forth in the Restoration Notice, or (ii) if Tenant shall not
have had the right to give a Termination Notice pursuant to Section 11.3(a) and
thereafter Landlord shall fail to substantially complete the restoration of the
Premises on or before the date which is nine (9) months following the date of
such damage or destruction, then in either of such events Tenant shall again
have the right to terminate this Lease by giving a Termination Notice (a "Second
Termination Notice"), and, unless Landlord Substantially Completes the
restoration of the Premises within thirty (30) days following the giving of such
Second Termination Notice, this Lease shall be deemed canceled and terminated as
set forth in Section 11.3(a).
Section 11.4 This Article 11 constitutes an express agreement
governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
ARTICLE 12. EMINENT DOMAIN
Section 12.1 (a) If (i) all of the floor area of the Premises,
or so much thereof as shall render the Premises wholly untenantable, shall be
acquired or condemned for any public or quasi-public use or purpose, or (ii) a
portion of the Real Property, not including the Premises, shall be so acquired
or condemned, but by reason of such acquisition or condemnation, Tenant no
longer has means of access to the Premises, then this Lease and the Term shall
end as of the date of the vesting of title with the same effect as if that date
were the Expiration Date. In the event of any termination of this Lease and the
Term pursuant to the provisions of this Article 12, Fixed Rent and Additional
Rent shall be apportioned as of the date of such termination and any prepaid
portion of Fixed Rent or Additional Rent for any period after such date shall be
refunded by Landlord to Tenant.
(b) If the part of the Real Property so acquired or condemned
contains more than twenty-five percent (25%) of the total area of the Premises
immediately prior to such acquisition or condemnation, or if, by reason of such
acquisition or condemnation Tenant no longer has reasonable means of access to
the Premises, Tenant may terminate this Lease by notice to Landlord given within
thirty (30) days following the date upon which Tenant receives notice of such
acquisition or condemnation. If Tenant so notifies Landlord, this Lease shall
terminate and the Term shall end and expire upon the thirtieth (30th) day
following the giving of such notice.
Section 12.2 In the event of any such acquisition or
condemnation of all or any part of the Real Property, Landlord shall be entitled
to receive the entire award for any such
44
acquisition or condemnation. Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired portion of the Term or
Tenant's Alterations, and Tenant hereby expressly assigns to Landlord all of its
right in and to any such award. Nothing contained in this Section 12.2 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property included in such taking
and for any moving expenses, provided such award shall be made by the condemning
authority in addition to, and shall not result in a reduction of, the award made
by it to Landlord.
Section 12.3 If only a part of the Real Property shall be so
acquired or condemned then, subject to Section 12.1, this Lease and the Term
shall continue in force and effect. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated,
Landlord, at Landlord's expense, shall restore that part of the Premises not so
acquired or condemned so as to constitute tenantable Premises. From and after
the date of the vesting of title, Fixed Rent and 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.
ARTICLE 13. ASSIGNMENT AND SUBLETTING
Section 13.1 Except as otherwise expressly provided herein,
Tenant, for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease, nor sublet
(nor underlet), nor suffer, nor permit the Premises or any part thereof to be
used or occupied by others (whether for desk space, mailing privileges or
otherwise), without the prior written consent of Landlord in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, or if this Lease or the Premises are
encumbered (whether by operation of law or otherwise) without Landlord's
consent, then Landlord may, after default by Tenant beyond applicable grace or
notice periods, collect rent from the assignee, subtenant or occupant, and apply
the net amount collected to Fixed Rent and Additional Rent, but no assignment,
subletting, occupancy or collection shall be deemed a waiver by Landlord of the
provisions hereof, the acceptance by Landlord of the assignee, subtenant or
occupant as a tenant, or a release by Landlord of Tenant from the further
performance by Tenant its obligations under this Lease, and Tenant shall remain
fully liable therefor. The consent by Landlord to any assignment or subletting
shall not in any way be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or subletting. In no
event shall any permitted subtenant assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance. Any assignment, sublease,
mortgage, pledge, encumbrance or transfer in contravention of the provisions of
this Article 13 shall be void.
Section 13.2 (a) 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, Tenant shall give notice (a "Tenant's Notice") thereof to Landlord,
which Tenant's Notice shall set forth: (i) with respect to an assignment of this
Lease, the date Tenant desires the assignment to be effective and any
consideration Tenant would receive under such assignment, (ii) with respect to a
sublet of all or a
45
part of the Premises (x) the dates upon which Tenant desires the sublease term
to commence and expire, (y) the rental rate and other material business terms
upon which Tenant would sublet such premises, and (z) a description of the
Premises showing the portion to be sublet, the effective or commencement date of
which shall be not less than thirty (30) nor more than one hundred and eighty
(180) days after the giving of such notice, (iii) a statement setting forth in
reasonable detail the identity of the proposed assignee or subtenant, the nature
of its business and its proposed use of the Premises, (iv) current financial
information with respect to the proposed assignee or subtenant, including its
most recent financial report, and (v) an agreement by Tenant to indemnify
Landlord against liability resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or by any brokers or other
Persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. Tenant's Notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option,
(I) sublease such space (the "Leaseback Space") from Tenant upon the terms and
conditions set forth in Section 13.4, or terminate the Lease with respect to
only the Leaseback Space, or (II) if the proposed transaction is (1) an
assignment of this Lease or (2) a subletting of fifty percent (50%) or more of
the rentable area of the Premises, terminate this Lease.
(b) Landlord agrees to respond to any Tenant's Notice given in
accordance with Section 13.2(a) within twenty (20) days after request, provided
the Tenant's Notice complies in all material respects with the requirements of
Section 13.2(a). If Landlord fails to either approve or disapprove the requested
assignment or subletting on or before the end of such twenty-day period, Tenant
shall have the right to provide Landlord with a second written request for
approval (a "Second Request"), which shall include all material previously
delivered to Landlord together with Tenant's Notice, and set forth in bold
capital letters the following statement: IF LANDLORD FAILS TO RESPOND WITHIN
FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE
ENTITLED TO ENTER INTO THE PROPOSED [ASSIGNMENT] [ SUBLEASE] DESCRIBED IN THE
NOTICE ENCLOSED HEREWITH, WHICH WAS PREVIOUSLY SUBMITTED TO LANDLORD AND TO
WHICH LANDLORD HAS FAILED TO TIMELY RESPOND. In the event that Landlord fails to
respond to a Second Request within five (5) Business Days after receipt by
Landlord, the proposed assignment or sublease as to which the Second Request is
submitted shall be deemed to be approved by Landlord, and Tenant shall be
entitled to enter into such transaction, provided that such assignment or
sublease complies with the requirements of this Article 13 and all other
provisions of this Lease applicable thereto.
Section 13.3 If Landlord exercises its option to terminate
this Lease with respect to all or a portion of the Premises pursuant to Section
13.2, then this Lease shall terminate and expire (in its entirety or as it
relates to the portion of the Premises identified in the Tenant's Notice, as
applicable) on the date that such assignment or sublease was to be effective or
commence, as the case may be, and the Fixed Rent and Additional Rent due
hereunder shall be paid and apportioned to such date. In such event, Landlord
and Tenant, upon request of either party, shall enter into an amendment of this
Lease ratifying and confirming such total or partial termination, and setting
forth appropriate modifications, if any, to the terms and provisions hereof.
Following such termination, Landlord shall be free to and shall have no
liability to
46
Tenant if Landlord should lease the Premises (or any part thereof) to Tenant's
prospective assignee or subtenant.
Section 13.4 If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at a rental rate equal to the product of (i) the lesser of (A) the rental
rate per rentable square foot of Fixed Rent and Additional Rent then payable
pursuant to this Lease, or (B) the rental rate per rentable square foot of rent
and additional rent set forth in Tenant's Notice, multiplied by (ii) the number
of rentable square feet of the Leaseback Space, and shall be for the same term
as that of the proposed subletting, and such sublease shall:
(a) be upon such other terms and conditions as are
contained in Tenant's Notice, and be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this Lease,
except such as are irrelevant or inapplicable, and except as expressly
set forth in this Article 13 to the contrary;
(b) give the subtenant the unqualified and
unrestricted right, without Tenant's permission, to assign such
sublease or any interest therein and/or to sublet the space covered by
such sublease or any part or parts of such space and to make any and
all changes, alterations and improvements in the space covered by such
sublease, provided that such changes, alterations or improvements do
not materially adversely affect Tenant's use and occupancy of the
portion of the Premises other than the Leaseback Space; and if the
proposed sublease will result in all or substantially all of the
Premises being sublet, grant Landlord or its designee the option to
extend the term of such sublease for the balance of the Term less one
day, and provided further that, if the term of such sublease is twelve
(12) or more months shorter than the Term, the Premises being sublet
shall be suitable for the Permitted Use upon expiration of the sublease
term;
(c) provide that any assignee or further subtenant of
Landlord or its designee, may, at Landlord's option, be permitted to
make alterations, decorations and installations in such space or any
part thereof, provided that such changes, alterations or improvements
do not materially adversely affect Tenant's use and occupancy of the
portion of the Premises other than the Leaseback Space, and shall also
provide in substance that any such alterations, decorations and
installations in such space therein made by any assignee or subtenant
of Landlord or its designee may be removed, in whole or in part, by
such assignee or subtenant, at its option, prior to or upon the
expiration or other termination of such sublease; provided, however,
that such assignee or subtenant shall, at its sole cost and expense,
repair any damage and injury caused by such removal; and provided
further that, if the term of such sublease is twelve (12) or more
months shorter than the Term, the Premises being sublet shall be
suitable for the Permitted Use upon expiration of the sublease term;
and
(d) provide that (i) the parties to such sublease
expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said
parties, (ii) any assignment or sublease by Landlord or its designee
(as the subtenant) may be for any purpose or purposes that Landlord, in
Landlord's
47
uncontrolled discretion, shall deem suitable or appropriate,
provided that the use of the Leaseback Space for such purpose or
purposes shall not unreasonably interfere with Tenant's use and
occupancy of the portion of the Premises other than the Leaseback
Space, (iii) Tenant shall, at Tenant's sole cost and expense, at all
times provide and permit reasonably appropriate means of ingress to and
egress from such space so sublet by Tenant to Landlord or its designee,
(iv) Landlord may make such alterations as may be required or deemed
necessary by Landlord to physically separate the subleased space from
the balance of the Premises and to comply with any legal or insurance
requirements relating to such separation (all at Tenant's sole cost and
expense, unless such alterations would be the subtenant's obligation to
perform or pay for pursuant to the proposed sublease), provided,
however, that Landlord shall use reasonable efforts to minimize the
duration of such alterations and interference by reason thereof with
Tenant's access to and use and occupancy of the portion of the Premises
other than the Leaseback Space, (v) at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease in
its then existing condition, subject to the obligations of the
subtenant to make such repairs thereto as may be necessary to preserve
the premises demised by such sublease in good order and condition, and
provided that Tenant shall have no obligation under this Lease to
restore any Alterations or other changes, decorations or installations
made by or on behalf of such subtenant, or any damage caused by
Landlord's removal of alterations, decorations or installations, and
provided further that, if the term of such sublease is twelve (12) or
more months shorter than the Term, the Premises being sublet shall be
suitable for the Permitted Use upon expiration of the sublease term;
and (vi) Tenant shall have no obligation to provide services of any
kind to the Leaseback Space, provided, however, that Tenant shall
permit Landlord, Landlord's agents and public utilities servicing the
Leaseback Space to erect, use and maintain all concealed ducts, pipes
and conduits in and through the Premises as Landlord shall reasonably
require, provided that the exercise of such rights shall not materially
affect the layout or reduce the floor area of the Premises.
Section 13.5 (a) If Landlord exercises its option to sublet
the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord, except as to any obligation which arises out of or
results from the negligence or willful misconduct of Tenant or any Tenant Party.
(b) Performance by Landlord, or its designee, under a sublease
of the Leaseback Space shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall not
give rise to a default under a similar obligation contained in this Lease nor
shall Tenant be liable for any default under this Lease or deemed to be in
default hereunder, unless such default is occasioned by or arises from the
negligence or willful misconduct of Tenant or any Tenant Party.
(c) Tenant shall have no obligation, at the expiration or
earlier termination of the Term, to remove any alteration, installation or
improvement made in the Leaseback Space by Landlord (or Landlord's designee).
48
(d) Any consent required of Tenant, as Landlord under the
sublease, shall be deemed granted if consent with respect thereto is granted by
Landlord under this Lease, and any failure of Landlord (or its designee) to
comply with the provisions of the sublease other than with respect to the
payment of Fixed Rent and Additional Rent to Tenant, shall not constitute a
default thereunder or hereunder if Landlord shall have consented to such
non-compliance.
Section 13.6 In the event Landlord does not exercise either
option provided to it pursuant to Section 13.2, and provided that no Event of
Default shall have occurred and be continuing under this Lease as of the time
Landlord's consent is requested by Tenant, Landlord's consent (which must be in
writing, subject to the provisions of Section 13.2(b)) to the proposed
assignment or sublease shall not be unreasonably withheld or delayed; provided,
however, that:
(a) Tenant shall have complied with the provisions of
Section 13.2, and Landlord shall not have exercised any of its options
thereunder within the time permitted therefor;
(b) In Landlord's judgment, 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 (i) is in
keeping with the then standards of the Building, and (ii) does not
violate the restrictions set forth in Article 2;
(c) The proposed assignee or subtenant has sufficient
financial worth considering the responsibility involved, and Landlord
has been furnished with evidence thereof;
(d) In the event Landlord has comparable space in the
Building available for lease, then (i) neither the proposed assignee or
subtenant nor any Person which, directly or indirectly, controls, is
controlled by, or is under common control with, the proposed assignee
or subtenant, is then an occupant of any part of the Building, and (ii)
the proposed assignee or subtenant is not a Person (or Affiliate of a
Person) with whom Landlord or Landlord's agent is then, or has been
within the previous four (4) month period, negotiating in connection
with rental of space in the Building;
(e) The form of the proposed sublease or instrument
of assignment shall be reasonably satisfactory to Landlord and shall
comply with the applicable provisions of this Article 13, and Tenant
shall deliver a true and complete original, fully executed counterpart
of such sublease or other instrument to Landlord promptly upon the
execution and delivery thereof;
(f) Tenant and its proposed subtenant or assignee, as
the case may be, shall execute and deliver to Landlord an agreement, in
form and substance reasonably satisfactory to Landlord, setting forth
the terms and conditions upon which Landlord shall have granted its
consent to such assignment or subletting, and the agreement of Tenant
and such subtenant or assignee, as the case may be, to be bound by the
provisions of this Article 13;
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(g) There shall not be more than four (4) subtenants
of the Premises;
(h) The amount of the aggregate rent to be paid by
the proposed subtenant shall not be twenty percent (20%) or more below
the then current market rent per rentable square foot for the Premises,
determined as though the Premises were vacant, and the rental and other
terms and conditions of the sublease shall be substantially the same as
those contained in Tenant's Notice;
(i) Tenant shall reimburse Landlord, as Additional
Rent upon demand, for (A) the reasonable costs and expenses incurred by
Landlord in connection with the assignment or sublease, including the
costs of investigations as to the acceptability of the proposed
assignee or subtenant and the cost of reviewing plans and
specifications proposed to be made in connection therewith, and (B)
Landlord's reasonable legal fees and disbursements incurred in
connection with the granting of any requested consent and the
preparation of Landlord's written consent to the sublease or
assignment;
(j) Tenant shall not have (i) advertised or
publicized in any way the availability of the Premises without prior
notice of and approval by Landlord, or (ii) advertised or publicized in
any way (or caused or permitted to be advertised or publicized in any
way) the Premises for sublease or assignment at a rental rate
materially less than the fixed rent and additional rent at which
Landlord is then offering to lease comparable space in the Building for
a comparable term;
(k) The proposed occupancy shall not impose a
material extra burden upon services to be supplied by Landlord to
Tenant, unless Tenant and such proposed subtenant or assignee shall
agree with Landlord in writing to pay the costs of such additional
services; and
(l) The proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the jurisdiction
of the courts of New York State.
Except for any sublease by Tenant to Landlord or its designee pursuant to this
Article 13, each sublease pursuant to this Section 13.6 shall be subject to all
of the covenants, agreements, terms, provisions and conditions contained in this
Lease. Notwithstanding any such sublease to Landlord or any such sublease to any
other subtenant, or any acceptance of Fixed Rent or Additional Rent by Landlord
from any subtenant, Tenant will remain fully liable for the payment of the Fixed
Rent and Additional Rent due and to become due hereunder and for the performance
of all the covenants, agreements, terms, provisions and conditions contained in
this Lease on Tenant's part to be observed and performed, and for all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. If Landlord
shall decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise either of its options under Section 13.2, Tenant shall
indemnify, defend and hold harmless Landlord against and from any and all
losses, liabilities, damages, costs, and expenses (including reasonable
attorneys' fees and disbursements) resulting from any claims that
50
may be made against Landlord by the proposed assignee or subtenant arising from
or in connection with such proposed assignment or subletting, or by any brokers
or other Persons (with whom Tenant or its proposed assignee or subtenant may
have dealt) claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
Section 13.7 In the event that (a) Landlord fails to exercise
either of its options under Section 13.2 and consents to a proposed assignment
or sublease, and (b) Tenant fails to execute and deliver the assignment or
sublease to which Landlord consented within one hundred twenty (120) days after
the giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of Section 13.2 before assigning this Lease or
subletting all or part of the Premises.
Section 13.8 With respect to each and every sublease
authorized by Landlord under the provisions of this Lease, it is further agreed
that:
(a) No sublease shall be for a term ending later than
one day prior to the Expiration Date of this Lease;
(b) No sublease shall be delivered, and no subtenant
shall take possession of the Premises or any part thereof, until an
executed counterpart of such sublease has been delivered to Landlord
and approved in writing by Landlord (or deemed approved pursuant to
Section 13.2(a) or (b)); and
(c) Each sublease shall be subject and subordinate to
this Lease and to the matters to which this Lease is or shall be
subordinate, and each subtenant by entering into a sublease is deemed
to have agreed that in the event of termination, re-entry or
dispossession by Landlord under this Lease, Landlord may, at its
option, take over all of the right, title and interest of Tenant, as
sublandlord, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not (i) be
liable for any previous act or omission of Tenant under such sublease
(except to the extent such act or omission is a default under the
Sublease and continues beyond the date on which Landlord succeeds to
Tenant's interest, provided that the subtenant gives notice of such act
or omission to Landlord prior to such takeover by Landlord), (ii) be
subject to any counterclaim, offset or defense, not expressly provided
in such sublease, which theretofore accrued to such subtenant against
Tenant, (iii) be bound by any previous modification of such sublease
not consented to in writing by Landlord, or by any previous prepayment
of more than one month's Fixed Rent or of any Additional Rent, or (iv)
be obligated to perform any work in the subleased space or to prepare
it for occupancy, and in connection with such attornment, the subtenant
shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such attornment. Each
subtenant or licensee of Tenant shall be deemed, automatically upon and
as a condition of its occupying or using the Premises or any part
thereof, to have agreed to be bound by the terms and conditions set
forth in this Article 13. The provisions of this Article 13 shall be
self-operative and no further instrument shall be required to give
effect to this provision.
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Section 13.9 If Landlord shall consent to any assignment of
this Lease or to any sublease, or if Tenant shall enter into any other
assignment or sublease permitted hereunder, Tenant shall, in consideration
therefor, pay to Landlord, as Additional Rent:
(a) In the case of an assignment, on the effective
date of the assignment, an amount equal to fifty percent (50%) of (i)
all sums and other consideration paid to Tenant by the assignee for or
by reason of such assignment (including sums paid for Tenant's
Property, less, in the case of a sale thereof, the then net unamortized
or undepreciated cost thereof, determined on the basis of Tenant's
federal income tax returns) less (ii) all Transaction Expenses
reasonably and actually incurred by Tenant in connection with such
assignment; or
(b) In the case of a sublease, an amount equal to
fifty percent (50%) of (i) all rents, additional charges or other
consideration payable to Tenant under the sublease in excess of the
Fixed Rent and Additional Rent accruing during the term of the sublease
in respect of the subleased space (at the rate per square foot payable
by Tenant hereunder) pursuant to the terms hereof (including sums paid
for the sale or rental of Tenant's Property, less, in the case of the
sale thereof, the then net unamortized or undepreciated cost thereof,
determined on the basis of Tenant's federal income tax returns) less
(ii) all Transaction Expenses reasonably and actually incurred by
Tenant in connection with such sublease. The sums payable under this
clause shall be paid by Tenant to Landlord as Additional Rent as and
when paid by the subtenant to Tenant.
Section 13.10 (a) Subject to the provisions of Section 13.11,
if Tenant is a corporation, limited liability company, limited partnership,
limited liability partnership, general partnership, business trust, foundation,
or any other legal entity (any of the foregoing, an "Entity"), and a majority of
the outstanding voting stock, membership interests, partnership interests or
other legal or equitable ownership interests of any kind (any of the foregoing,
"Ownership Interests") are not publicly traded on a recognized stock exchange or
over-the-counter market, then any transfer (by one or more transfers), of a
majority of the Ownership Interests of Tenant shall be deemed an assignment of
this Lease for all purposes of this Article 13. The term "transfer" shall be
deemed to include the issuance of new Ownership Interests resulting in a
majority of the Ownership Interests of Tenant being held by Persons (other than
xxxxxxxxxxxxxx.xxx inc.) which do not hold a majority of the Ownership Interests
of Tenant on the date hereof, except in the case of a public offering of
Ownership Interests on a recognized stock exchange or over-the-counter market.
The transfer of a majority of the Ownership Interests of Tenant through one or
more transfers on a recognized stock exchange or over-the-counter market shall
not be deemed an assignment of this Lease for purposes of this Article 13.
(b) If Tenant is an Entity, and Tenant is merged or
consolidated with another Entity, or if substantially all of Tenant's assets are
transferred to another Entity, then such merger, consolidation or transfer of
assets shall be deemed an assignment of this Lease for all purposes of this
Article 13. Notwithstanding the foregoing, Landlord's consent shall not be
required for such assignment, and the provisions of Sections 13.2, 13.6 and 13.9
shall not be applicable thereto, so long as each of the following conditions
have been satisfied: (i) such merger, consolidation or transfer of assets shall
have been made for a legitimate independent business purpose and not for
52
the principal purpose of transferring this Lease, (ii) the successor to Tenant
or transferee of substantially all of Tenant's assets shall have a net worth,
computed in accordance with generally accepted accounting principles
consistently applied of not less than $300,000,000.00 (the "Successor Net
Worth"), (unless xxxxxxxxxxxxxx.xxx inc. is the successor to Tenant or is the
transferee of such assets, in which case xxxxxxxxxxxxxx.xxx inc. shall have a
net worth, computed in accordance with generally accepted accounting principles
consistently applied, at least equal to the net worth of Tenant immediately
prior to such merger, consolidation or transfer) and (iii) proof satisfactory to
Landlord of the Successor Net Worth (or, in the case of Guarantor
(xxxxxxxxxxxxxx.xxx inc.), a net worth at least equal to the net worth of Tenant
immediately prior to such merger, consolidation or transfer) shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction. Notwithstanding the foregoing, in the event that the Successor
Net Worth shall be less than $300,000,000.00, Tenant may satisfy the condition
set forth in Subsection 13.10(b)(ii) as follows: (A) if the Successor Net Worth
is less than $300,000,000.00 but more than $250,000,000.00, Tenant shall
increase the Security Deposit by $500,000.00 above the Security Deposit then
held by Landlord, (B) if the Successor Net Worth is less than $250,000,000.00
but more than $200,000,000.00, Tenant shall increase the Security Deposit by
$1,000,000.00 above the Security Deposit then held by Landlord, and (C) if the
Successor Net Worth is less than $200,000,000.00, Tenant shall provide Landlord
with a Guaranty or Guarantys, substantially in the form attached as Exhibit O to
this Lease, of Tenant's obligations under this Lease executed by B&N Inc. and/or
by Bertelsmann, provided that at the time of execution and delivery of such
Guaranty, Tenant shall provide to Landlord reasonable evidence that such
guarantor(s) shall have a net worth, computed in accordance with generally
accepted accounting principles consistently applied, of not less than
$300,000,000.00 in the aggregate.
(c) The limitations set forth in this Section 13.10 shall be
deemed to apply to assignees of this Lease, if any, and any transfer of
Ownership Interests in, or any merger, consolidation or transfer of assets of,
any such assignee in violation of this Section 13.10 shall be deemed to be an
assignment of this Lease in violation of Section 13.1.
(d) A material modification or amendment or an extension of a
sublease shall be deemed a sublease for the purposes of Section 13.1, and a
takeover agreement shall be deemed a transfer of this Lease for the purposes of
Section 13.1.
Section 13.11 Tenant may, without Landlord's consent but upon
not less than ten (10) days prior notice to Landlord, assign this Lease or
sublet all or any portion of the Premises to any wholly owned subsidiary,
Affiliate or parent of Tenant, Bertelsmann or B&N Inc. (any of the foregoing, a
"Permitted Occupant"), or permit any Permitted Occupant to occupy all or any
portion of the Premises, provided that each Permitted Occupant shall be engaged
in a business or activity which is in keeping with the standards of the Building
and which is a Permitted Use. The provisions of Sections 13.2, 13.6, 13.9 and
13.10 shall not be applicable to any such assignment, subleasing or occupancy.
Any assignment or subleasing to, or occupancy by, any such Permitted Occupant
shall not relieve, release, impair or discharge any of Tenant's obligations
under this Lease. Each notice to Landlord with respect to any assignment,
subleasing or occupancy granted pursuant to this Section 13.11 shall include (i)
the name and the nature of
53
the business or occupation of such Permitted Occupant, and (ii) the terms of
such assignment, subleasing or occupancy.
Section 13.12 (a) Any assignment or transfer, whether made
with Landlord's consent pursuant to Section 13.1 or without Landlord's consent
to the extent permitted under Sections 13.10 and 13.11, shall be made only if,
and shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance reasonably satisfactory
to Landlord whereby the assignee shall assume the obligations of this Lease on
the part of Tenant to be performed or observed from and after the effective date
of such assignment or transfer, and whereby the assignee shall agree that the
provisions in Section 13.1 shall, notwithstanding such assignment or transfer,
continue to be binding upon it in respect of all future assignments and
transfers.
(b) 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.
(c) The listing of any name other than that of Tenant, whether
on the doors of the Premises or the Building directory, 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 Premises or to the use or occupancy thereof
by others. Any such listing shall constitute a privilege extended by Landlord,
revocable at Landlord's will by notice to Tenant, provided that Landlord shall
not unreasonably revoke such privilege as to any Affiliate of Tenant, or any
subtenant of Tenant or assignee of this Lease approved by Landlord pursuant to
this Article 13 (or without Landlord's approval, to the extent permitted
pursuant to Section 13.11).
ARTICLE 14. ACCESS TO PREMISES
Section 14.1 Tenant shall permit Landlord, Landlord's agents
and public utilities servicing the Building to erect, use and maintain concealed
ducts, pipes and conduits in and through the Premises. Landlord or Landlord's
agents shall have the right to enter the Premises at all reasonable times upon
reasonable prior notice (except no such prior notice shall be required in case
of emergency), which notice may be oral, to examine the same, to show them to
prospective purchasers, Mortgagees, Superior Lessors or lessees of the Building
and their respective agents and representatives or (during the last twelve (12)
months of the Term) prospective tenants of the Premises, and to make such
repairs, alterations, improvements or additions (a) as Landlord may deem
necessary to the Premises or to any other portion of the Building, or (b) which
Landlord may elect to perform following Tenant's failure to make repairs or
perform any work which Tenant is obligated to make or perform under this Lease
after expiration of any applicable notice and cure periods, or (c) for the
purpose of complying with Legal Requirements, and Landlord shall be allowed to
take all material into and upon the Premises that may be reasonably required
55
therefor without the same constituting an eviction or constructive eviction of
Tenant in whole or in part and Fixed Rent and Additional Rent will not be abated
while said repairs, alterations, improvements or additions are being made, by
reason of loss or interruption of business of Tenant, or otherwise. Landlord
shall use reasonable efforts to minimize the duration thereof and interference
by reason thereof with Tenant's access to and use and occupancy of the Premises
in making any repairs, alterations, additions or improvements pursuant to this
Section 14.1, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever, unless Tenant shall
first pay to Landlord Landlord's reasonable estimate of all incremental cost
increases to do so. In such event Tenant shall pay, as Additional Rent upon
presentation of appropriate invoices, all additional costs incurred by Landlord
in connection therewith. Notwithstanding the foregoing, as to any rights
exercised by Landlord to make repairs, alterations, conditions and improvements
within the Premises, Landlord agrees that such exercise shall not affect the
layout or reduce the floor area of the Premises, except to a de minimis extent.
Landlord shall promptly repair and restore any damage to the Premises, including
Tenant's Alterations or Tenant's Property, caused by such exercise of Landlord's
rights, at Tenant's sole cost and expense (if such exercise was in response to
any act or omission constituting a default by Tenant), or at Landlord's sole
cost and expense (in all other cases).
Section 14.2 If Tenant shall not be present when for any
reason entry into the Premises shall be necessary, Landlord or Landlord's agents
may enter the same without 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 this Lease. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever for the care, supervision
or repair of the Building or any part thereof, other than as herein provided.
Section 14.3 Landlord shall have the right from time to time
to alter the Building and, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant therefor, to
change the arrangement or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, or other public parts of
the Building and (subject to the provisions of Article 33) to change the name,
number or designation by which the Building is commonly known, provided that
(except as may be permitted pursuant to the provisions of Article 29) such
alterations or changes do not interfere (except to a de minimis extent) with
Tenant's layout, usable floor area, use or enjoyment of the Premises, or access
to the Building or Premises. All parts (except surfaces facing the interior of
the Premises) of all walls, windows and doors bounding the Premises (including
exterior Building walls, exterior core corridor walls, exterior doors and
entrances other than doors and entrances solely servicing the Premises), all
balconies, terraces and roofs adjacent to the Premises, all space in or adjacent
to the Premises used for shafts, stacks, stairways, chutes, pipes, conduits,
ducts, fan rooms, heating, air cooling, plumbing and other mechanical
facilities, service closets and other Building facilities are not part of the
Premises, and Landlord shall have the use thereof, as well as access thereto
through the Premises for the purposes of operation, maintenance, alteration and
repair.
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ARTICLE 15. CERTIFICATE OF OCCUPANCY
Tenant shall not at any time use or occupy the Premises in
violation of the certificate of occupancy at such time issued for the Premises
or for the Building and in the event that any department of the City or State of
New York shall hereafter contend or declare by notice, violation, order or in
any other manner whatsoever that the Premises are used for a purpose which is a
violation of such certificate of occupancy, Tenant shall, upon five (5) days'
written notice from Landlord or any Governmental Authority, immediately
discontinue such use of the Premises. Failure by Tenant to discontinue such use
after such notice shall be considered a default in the fulfillment of a material
covenant of this Lease and Landlord shall have the right to terminate this Lease
immediately, and in addition thereto shall have the right to exercise any and
all rights and privileges and remedies given to Landlord by and pursuant to the
provisions of Articles 16 and 17. Landlord represents that a true and complete
copy of the current certificate of occupancy for the Building is attached as
Exhibit G. Landlord will not amend or modify the existing Certificate of
Occupancy for the Building as to prevent the use of the Premises for the
Permitted Use.
ARTICLE 16. DEFAULT
Section 16.1 Each of the following events shall be an "Event
of Default" hereunder:
(a) if Tenant defaults in the payment when due of any
installment of Fixed Rent or Additional Rent, and such default shall
continue for a period of seven (7) days after notice thereof from
Landlord; provided, however, that if Tenant shall default in the timely
payment of Fixed Rent or Additional Rent such that Landlord has given a
notice hereunder more than three (3) times in any period of twelve (12)
consecutive months which notices shall have made specific reference to
Landlord's right to terminate pursuant to this Section 16.1, then,
notwithstanding that such defaults shall have each been cured within
the applicable period provided above, upon any further similar default,
Landlord may serve a five days' notice of termination upon Tenant
without affording to Tenant an opportunity to cure such further
default; or
(b) if Tenant's interest in this Lease is transferred
in violation of Article 13; or
(c) if the Premises are abandoned; or
(d) (i) if Tenant or any Guarantor admits in
writing its inability to pay its debts as they become due; or
(ii) if Tenant or any Guarantor commences or
institutes any case, proceeding or other action (A) seeking
relief as a debtor, or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts under any existing or
future law of any jurisdiction, domestic or
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foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all
or any substantial part of its property; or
(iii) if Tenant or any Guarantor makes a
general assignment for the benefit of creditors; or
(iv) if any case, proceeding or other action
is commenced or instituted against Tenant or any Guarantor (A)
seeking to have an order for relief entered against it as
debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of
its property, which either (1) results in any such entry of an
order for relief, adjudication of bankruptcy or insolvency or
such an appointment or the issuance or entry of any other
order having a similar effect, or (2) remains undismissed for
a period of one hundred twenty (120) days; or
(v) if any case, proceeding or other action
is commenced or instituted against Tenant or any Guarantor
seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its property which results in the entry of an order
for any such relief which has not been vacated, discharged, or
stayed or bonded pending appeal within one hundred twenty
(120) days from the entry thereof; or
(vi) if Tenant or any Guarantor takes any
action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in
Subsections 16.1(d)(ii), (iii), (iv) or (v); or
(vii) if a trustee, receiver or other
custodian is appointed for any substantial part of the assets
of Tenant or any Guarantor, which appointment is not vacated
or effectively stayed within seven (7) Business Days, or if
any such vacating or stay does not thereafter remain in
effect; or
(e) if Tenant defaults in the observance or
performance of any other term, covenant or condition of this Lease on
Tenant's part to be observed or performed and Tenant fails to remedy
such default within thirty (30) days after notice by Landlord to Tenant
of such default, or, if such default is of such a nature that it cannot
be completely remedied within said period of thirty (30) days, if
Tenant fails to commence to remedy such default within such thirty-day
period, or fails thereafter to diligently prosecute to completion all
steps necessary to remedy such default; or
(f) if any Guarantor defaults beyond applicable grace
and notice periods in the payment or performance of any of its
obligations under any Guaranty; or
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(g) if there shall be any default beyond applicable
grace and notice periods under Tenant's Other Lease.
Notwithstanding the foregoing, if any of the acts set forth in Subsections
16.1(d)(i), (ii), (iii), (iv) or (v) is the act of any Guarantor, such act shall
not be an Event of Default if Tenant shall, within five (5) days after the date
on which such act occurs, deliver to Landlord proof satisfactory to Landlord
that Tenant (or a substitute Guarantor acceptable to Landlord in its sole
discretion which provides Landlord with a Guaranty, substantially in the form
attached as Exhibit O to this Lease) then has a net worth, computed in
accordance with generally accepted accounting principles consistently applied,
of not less than $300,000,000.00.
Section 16.2 If an Event of Default occurs, Landlord may at
any time thereafter give written notice to Tenant stating that this Lease and
the Term shall expire and terminate on the date specified in such notice, which
date shall not be less than seven (7) days after the giving of such notice. If
Landlord gives such notice, this Lease and the Term and all rights of Tenant
under this Lease shall expire and terminate as if the date set forth in such
notice were the Fixed Expiration Date and Tenant immediately shall quit and
surrender the Premises, but Tenant shall remain liable as hereinafter provided.
Anything contained herein to the contrary notwithstanding, if such termination
shall be stayed by order of any court having jurisdiction over any proceeding
described in Section 16.1(d), or by federal or state statute, then, following
the expiration of any such stay, or if the trustee appointed in any such
proceeding, Tenant or Tenant as debtor-in-possession shall fail to assume
Tenant's obligations under this Lease within the period prescribed therefor by
law or within one hundred twenty (120) days after entry of the order for relief
or as may be allowed by the court, or if said trustee, Tenant or Tenant as
debtor-in-possession shall fail to provide adequate protection of Landlord's
right, title and interest in and to the Premises or adequate assurance of the
complete and continuous future performance of Tenant's obligations under this
Lease, Landlord, to the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its election, to
terminate this Lease on seven (7) days' notice to Tenant, Tenant as
debtor-in-possession or said trustee and upon the expiration of said seven (7)
day period this Lease shall cease and expire as set forth above and Tenant,
Tenant as debtor-in-possession or said trustee shall immediately quit and
surrender the Premises as aforesaid.
Section 16.3 If, at any time, (a) Tenant shall comprise two
(2) or more Persons, (b) Tenant's obligations under this Lease shall have been
guaranteed by any Person other than Tenant, or (c) Tenant's interest in this
Lease shall have been assigned, the word "Tenant," as used in Section 16.1(d),
shall be deemed to mean any one or more of the Persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 16.1(d) shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of Fixed Rent and/or
Additional Rent or a waiver on the part of Landlord of any rights under this
Lease.
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ARTICLE 17. REMEDIES AND DAMAGES
Section 17.1 (a) If an Event of Default shall occur, and this
Lease and the Term shall expire and come to an end as provided in Article 16:
(i) Tenant shall quit and peacefully surrender the
Premises to Landlord, and Landlord and its agents may immediately, or
at any time after such Event of Default or after the date upon which
this Lease and the Term shall expire and come to an end, re-enter the
Premises or any part thereof, without notice, either by summary
proceedings, or by any other applicable action or proceeding, or by
legal force or other legal means (without being liable to indictment,
prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other Persons from the Premises and remove
any and all of their property and effects from the Premises; and
(ii) Landlord, at Landlord's option, may relet the
whole or any part or parts 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, on or after the Expiration Date, at such
rental or rentals and upon such other conditions, which may include
concessions and free rent periods, as Landlord, in its sole discretion,
may determine; provided, however, that Landlord shall have no
obligation to relet the Premises or any part thereof and shall in no
event be liable for refusal or failure to relet the Premises or any
part thereof, or, in the event of any such reletting, for refusal or
failure to collect any rent due upon any such reletting, and no such
refusal or failure shall operate to relieve Tenant of any liability
under this Lease or otherwise affect any such liability, and Landlord,
at Landlord's option, may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and
to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
(b) Tenant hereby waives the service of any notice of
intention to re-enter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law. Tenant, on
its own behalf and on behalf of all Persons claiming through or under Tenant,
including all creditors, does further hereby waive any and all rights which
Tenant and all such Persons might otherwise have under any present or future law
to redeem the Premises, or to re-enter or repossess the Premises, or to restore
the operation of this Lease, after (i) Tenant shall have been dispossessed by a
judgment or by warrant of any court or judge, (ii) any re-entry by Landlord, or
(iii) any expiration or termination of this Lease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Lease. The words "re-enter", "re-entry" and
"re-entered" as used in this Lease shall not be deemed to be restricted to their
technical legal meanings. In the event of a breach or threatened breach by
Tenant, or any Persons claiming through or under Tenant, of any term, covenant
or condition of this Lease, Landlord shall have the right to enjoin such breach
and the right to invoke any other remedy allowed by law or in equity as if
re-entry, summary proceedings and other special remedies were not provided in
this Lease for such
59
breach. The rights to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
Section 17.2 (a) If this Lease and the Term shall expire and
come to an end as provided in Article 16, or by or under any summary proceeding
or any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent and
Additional Rent payable under this Lease by Tenant to Landlord to the
date upon which this Lease and the Term shall have expired and come to
an end or to the date of re-entry upon the Premises by Landlord, as the
case may be;
(ii) Tenant also shall be liable for and shall pay to
Landlord, as damages, any deficiency (the "Deficiency") between (A)
Fixed Rent and Additional Rent for the period which otherwise would
have constituted the unexpired portion of the Term (conclusively
presuming the Additional Rent for each year thereof to be the same as
was payable for the year immediately preceding such termination or
re-entry), and (B) the net amount, if any, of rents collected under any
reletting effected pursuant to the provisions of Subsection 17.1(a)(ii)
for any part of such period (first deducting from the rents collected
under any such reletting all of Landlord's expenses in connection with
the termination of this Lease, Landlord's re-entry upon the Premises
and with such reletting including all repossession costs, brokerage
commissions, legal expenses, attorneys' fees and disbursements,
alteration costs and other expenses of preparing the Premises for such
reletting). Tenant shall pay the Deficiency in monthly installments on
the days specified in this Lease for payment of installments of Fixed
Rent, and Landlord shall be entitled to recover from Tenant each
monthly Deficiency as the same shall arise. No suit to collect the
amount of the Deficiency for any month shall prejudice Landlord's right
to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) whether or not Landlord shall have collected
any monthly Deficiency as aforesaid, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, in
lieu of any further Deficiency as and for liquidated and agreed final
damages, a sum equal (A) to the amount by which the Fixed Rent and
Additional Rent for the period which otherwise would have constituted
the unexpired portion of the Term (conclusively presuming the
Additional Rent for each year thereof to be the same as was payable for
the year immediately preceding such termination or re-entry) exceeds
(B) the then fair and reasonable rental value of the Premises,
including Additional Rent for the same period, both discounted to
present value at the rate of five percent (5%) per annum less (C) the
aggregate amount of Deficiencies previously collected by Landlord
pursuant to the provisions of Subsection 17.2(a)(ii) for the same
period. If, before presentation of proof of such liquidated damages to
any court, commission or tribunal, Landlord shall have relet the
Premises or any part thereof for the period which otherwise would have
constituted the unexpired portion of the Term, or any part thereof, the
amount of net rents collected in connection with such reletting shall
be
60
deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the
reletting.
(b) If Landlord shall relet the Premises, or any part thereof,
together with other space in the Building, the net rents collected under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Nothing contained
in Article 16 or this Article 17 shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained as
damages by any statute or rule of law, or of any sums or damages to which
Landlord may be entitled in addition to the damages set forth in this Section
17.2.
ARTICLE 18. FEES AND EXPENSES
Section 18.1 If an Event of Default shall occur under this
Lease, or if Tenant shall fail to comply with its obligations under this Lease
and the preservation of property or the safety of any tenant, occupant or other
person is threatened, Landlord may, after reasonable prior notice to Tenant
except in an emergency, perform the same for the account of Tenant or make any
expenditure or incur any obligation for the payment of money for the account of
Tenant. All amounts expended by Landlord in connection with the foregoing,
including reasonable attorneys' fees and disbursements in instituting,
prosecuting or defending any action or proceeding or recovering possession, and
the cost thereof, with interest thereon at the Default Rate, shall be deemed to
be Additional Rent hereunder and shall be paid by Tenant to Landlord within
twenty (20) days of rendition of any xxxx or statement to Tenant therefor.
Section 18.2 If Tenant shall fail to pay any installment of
Fixed Rent and/or Additional Rent when due, Tenant shall pay to Landlord, in
addition to such installment of Fixed Rent and/or Additional Rent, as the case
may be, as a late charge and as Additional Rent, a sum equal to interest at the
Default Rate on the amount unpaid, computed from the date such payment was due
to and including the date of payment, provided, however, that on not more than
one (1) occasion during any twelve (12) consecutive monthly period during the
Term, Tenant's failure to pay an installment of Fixed Rent or Additional Rent
when due shall not require the payment of interest at the Default Rate on such
overdue amount, provided such installment of Fixed Rent or Additional Rent shall
be paid prior to the expiration of the applicable grace period provided in
Section 16.1 or elsewhere in this Lease.
ARTICLE 19. NO REPRESENTATIONS BY LANDLORD
Except as expressly set forth in this Lease, Landlord and
Landlord's agents have made no warranties, representations, statements or
promises with respect to (a) the rentable and usable areas of the Premises or
the Building, (b) the amount of any current or future Labor Rates or Taxes, (c)
the compliance with applicable Legal Requirements of the Premises or the
Building, or (d) the suitability of the Premises for any particular use or
purpose. No rights, easements or licenses are acquired by Tenant under this
Lease, by implication or otherwise, except as expressly set forth herein. This
Lease (including any Exhibits referred to herein and all
61
supplementary agreements provided for herein) contains the entire agreement
between the parties and all understandings and agreements previously made
between Landlord and Tenant are merged in this Lease, which alone fully and
completely expresses their agreement. Tenant is entering into this Lease after
full investigation, and is not relying upon any statement or representation made
by Landlord not embodied in this Lease.
ARTICLE 20. END OF TERM
Section 20.1 Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender to Landlord the Premises, vacant, broom
clean, in good order and condition, ordinary wear and tear and damage for which
Tenant is not responsible under the terms of this Lease excepted, and Tenant
shall remove all of Tenant's Property from the Premises, and this obligation
shall survive the expiration or sooner termination of the Term. If the last day
of the Term or any renewal thereof falls on Saturday or Sunday, this Lease shall
expire on the Business Day immediately preceding. 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 20.
Section 20.2 Tenant acknowledges that Tenant or any Tenant
Party remaining in possession of the Premises after the expiration or earlier
termination of this Lease would create an unusual hardship for Landlord and for
any prospective tenant. Tenant therefore covenants that if for any reason Tenant
or any Tenant Party shall fail to vacate and surrender possession of the
Premises or any part thereof on or before the expiration or earlier termination
of this Lease and the Term, then Tenant's continued possession of the Premises
shall be as a "month-to-month" tenant, during which time, without prejudice and
in addition to any other rights and 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, an amount equal to one and one half (1
1/2) times the total monthly amount of Fixed Rent and Additional Rent payable
hereunder. The provisions of this Section 20.2 shall not in any way be deemed to
(a) permit Tenant to remain in possession of the Premises after the Expiration
Date or sooner termination of this Lease or (b) imply any right of Tenant to use
or occupy the Premises upon expiration or termination of this Lease and the
Term, and no acceptance by Landlord of payments from Tenant after the Expiration
Date or sooner termination of the Term shall be deemed to be other than on
account of the amount to be paid by Tenant in accordance with the provisions of
this Article 20. Tenant's obligations under this Article 20 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 21. QUIET ENJOYMENT
For so long as this Lease is in full force and effect, Tenant
may peaceably and quietly enjoy the Premises without hindrance by Landlord or
any Person lawfully claiming through or under Landlord, subject, nevertheless,
to the terms and conditions of this Lease.
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ARTICLE 22. NO WAIVER; NON-LIABILITY
Section 22.1 No act or thing done by Landlord or Landlord's
agents during the Term 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. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Premises prior to the termination
of this Lease. The delivery of keys to any employee of Landlord or of Landlord's
agents shall not operate as a termination of this Lease or a surrender of the
Premises. Any Building employee to whom any property shall be entrusted by or on
behalf of Tenant shall be deemed to be acting as Tenant's agent with respect to
such property and neither Landlord nor its agents shall be liable for any damage
to property of Tenant or of others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
Section 22.2 The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations set forth or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all of the force and effect
of an original violation. The receipt by Landlord of Fixed Rent and/or
Additional Rent with knowledge of the breach of any covenant of this Lease shall
not be deemed a waiver of such breach. The failure of Landlord to enforce any of
the Rules and Regulations set forth, or hereafter adopted, against Tenant or any
other tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. Landlord shall not enforce the Rules and Regulations against Tenant
in a discriminatory manner. No provision of this Lease shall be deemed to have
been waived by Landlord, unless such waiver be in writing signed by Landlord. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
Fixed Rent or any Additional Rent shall be deemed to be other than on account of
the next installment of Fixed Rent or Additional Rent, as the case may be, or as
Landlord may elect to apply same, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Fixed Rent or
Additional Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Fixed Rent or Additional Rent or pursue any other remedy in this
Lease provided. Any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of this Lease in whole or in
part unless such executory agreement is in writing and signed by the party
against whom enforcement of the change, modification, discharge or abandonment
is sought. All references in this Lease to the consent or approval of Landlord
shall be deemed to mean the written consent or approval of Landlord and no
consent or approval of Landlord shall be effective for any purpose unless such
consent or approval is set forth in a written instrument executed by Landlord.
Section 22.3 (a) Except to the extent arising from the
negligence or willful misconduct of Landlord or its agents, employees or
contractors, neither Landlord nor its agents shall be liable for any injury or
damage to persons or property or interruption of Tenant's business resulting
from fire, explosion, falling plaster, steam, gas, electricity, water, rain or
snow or leaks from any part of the Building or from the pipes, appliances or
plumbing works or from the roof, street or subsurface or from any other place or
by dampness or by any other cause of whatsoever nature provided, however, that
Tenant shall, in accordance with Section 10.2, first
63
look for recovery to any insurance required to be carried by Tenant pursuant to
the terms of this Lease; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in the Building or caused by
construction of any private, public or quasi-public work; nor shall Landlord be
liable for any latent defect in the Premises or in the Building (except that
Landlord shall be required to repair the same to the extent provided in Article
5). Nothing in the foregoing shall affect any right of Landlord to the indemnity
from Tenant to which Landlord may be entitled under Article 28 in order to
recoup for payments made to compensate for losses of third parties.
(b) If, at any time or from time to time, any windows of the
Premises are temporarily closed, darkened or bricked-up for any reason
whatsoever, or any of such windows are permanently closed, darkened or
bricked-up if required by any Legal Requirement or related to any construction
upon property adjacent to the Real Property by parties other than Landlord,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement of Fixed
Rent or Additional Rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction or constructive eviction of Tenant from the
Premises. Landlord shall take such reasonable measures as may be available to
Landlord (without the commencement or prosecution of legal action or the
expenditure of money) to minimize the period of time during which any such
windows are temporarily closed, darkened or bricked up. Landlord shall not
voluntarily close or darken such windows except temporarily in connection with
repairs or maintenance permitted or required hereunder.
ARTICLE 23. WAIVER OF TRIAL BY JURY
The respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, or for the enforcement of any remedy under any statute, emergency or
otherwise. If Landlord commences any summary proceeding against Tenant, Tenant
will not interpose any counterclaim of whatever nature or description in any
such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of
such counterclaim), and will not seek to consolidate such proceeding with any
other action which may have been or will be brought in any other court by
Tenant.
ARTICLE 24. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Fixed Rent and
Additional Rent hereunder and the obligations of Landlord and Tenant to perform
all of the other covenants and agreements hereunder will not be affected,
impaired or excused because the other party hereto is unable to fulfill any of
its obligations under this Lease expressly or impliedly to be performed by such
party or because such party is unable to make, or is delayed in making any
repairs, additions, alterations, improvements or decorations or is unable to
supply or is delayed in supplying any equipment or fixtures, if either Landlord
or Tenant is prevented or delayed from so
64
doing by reason of strikes or labor troubles or by accident, or by any cause
whatsoever reasonably beyond such party's control, including laws, governmental
preemption in connection with a national emergency or by reason of any Legal
Requirements or by reason of the conditions of supply and demand which have been
or are affected by war or other emergency ("Unavoidable Delays"), but a party's
inability to pay any amount of money shall in no event be deemed an Unavoidable
Delay.
ARTICLE 25. BILLS AND NOTICES
Except as otherwise expressly provided in this Lease, any
bills, statements, consents, notices, demands, requests or other communications
given or required to be given under this Lease shall be in writing and shall be
deemed sufficiently given or rendered if delivered by hand (against a signed
receipt), sent by a nationally recognized overnight courier service, or sent by
registered or certified mail (return receipt requested) and addressed:
if to Tenant, (a) at Tenant's address at the Premises,
Attention: Xxxxx X. Xxxxxxxxx (or, if a regularly scheduled rent xxxx
or rent escalation statement, Xxxx Xxxxxx), or (b) at any place where
Tenant or any agent or employee or Tenant may be found if mailed
subsequent to Tenant's abandoning or surrendering the Premises, in
either case (except if a routine xxxx or statement), with a copy to
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.;
or
if to Landlord, as follows: 111 Chelsea LLC, c/o Taconic
Investment Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxx Xxxxxxx, with a copy to: Xxxxxxx Xxxx & Xxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx,
Esq.
Any such xxxx, statement, consent, notice, demand, request or other
communication given as provided in this Article 25 shall be deemed to have been
rendered or given (i) on the date when it shall have been hand delivered, (ii)
three (3) Business Days from the date when it shall have been mailed, or (iii)
one (1) Business Day from the date when it shall have been sent by overnight
courier service.
ARTICLE 26. RULES AND REGULATIONS
Landlord reserves the right, from time to time, to adopt
additional reasonable and non-discriminatory Rules and Regulations and to
reasonably amend the Rules and Regulations then in effect on a nondiscriminatory
basis. Tenant and all Tenant Parties shall comply with the Rules and
Regulations, as so supplemented or amended. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce the
Rules and Regulations or terms, covenants or conditions in any other lease
against any other tenant, and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its employees, agents, visitors or
licensees. If there shall be any inconsistencies between this Lease and the
Rules and Regulations, the provisions of this Lease shall prevail.
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ARTICLE 27. BROKER
Section 27.1 Each of Landlord and Tenant represents and
warrants to the other that it has not dealt with any broker in connection with
this Lease other than Insignia/Xxxxxx X. Xxxxxx Company, Inc. ("Broker") and
that to the best of its knowledge and belief, no other broker, finder or similar
Person procured or negotiated this Lease or is entitled to any fee or commission
in connection herewith. Landlord has agreed to pay or cause to be paid a
commission to Broker in connection with this Lease pursuant to a separate
written agreement.
Section 27.2 Each of Landlord and Tenant shall indemnify,
defend, protect and hold the other party harmless from and against any and all
losses, liabilities, damages, claims, judgments, fines, suits, demands, costs,
interest and expenses of any kind or nature (including reasonable attorneys'
fees and disbursements) which the indemnified party may incur by reason of any
claim of or liability to any broker, finder or like agent (other than Broker)
arising out of any dealings claimed to have occurred between the indemnifying
party and the claimant in connection with this Lease, or the above
representation being false. The provisions of this Article 27 shall survive the
expiration or earlier termination of the Term.
ARTICLE 28. INDEMNITY
Section 28.1 Tenant shall not do or permit any act or thing to
be done upon the Premises which may subject Landlord to any liability or
responsibility for injury, damages to persons or property or to any liability by
reason of any violation of law or of any Legal Requirement, but shall exercise
such control over the Premises as to fully protect Landlord against any such
liability. Tenant shall defend, indemnify and save harmless Landlord from and
against (a) all claims of whatever nature against Landlord arising from any act,
omission or negligence of Tenant or any Tenant Party, (b) all claims against
Landlord arising from any accident, injury or damage whatsoever caused to any
person or to the property of any person and occurring during the Term in or
about the Premises, (c) all claims against Landlord arising from any accident,
injury or damage occurring outside of the Premises but anywhere within or about
the Real Property, where such accident, injury or damage results or is claimed
to have resulted from an act, omission or negligence of Tenant or any Tenant
Party, and (d) any breach, violation or nonperformance of any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed. This indemnity and hold
harmless agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or nature
(including reasonable attorneys' fees and disbursements) incurred in or in
connection with any such claim or proceeding brought thereon, and the defense
thereof.
Section 28.2 Tenant agrees to defend, indemnify and hold
harmless Landlord and any partner, shareholder, director, officer, principal,
employee or agent, directly and indirectly, of Landlord, from and against all
obligations (including removal and remedial actions), losses, claims, suits,
judgments, liabilities, penalties, damages (including consequential and punitive
damages), costs and expenses (including reasonable attorneys' and consultants'
fees and expenses) of any kind or nature whatsoever that may at any time be
incurred by, imposed on or asserted against Landlord or any such party directly
or indirectly based on, or arising or
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resulting from (a) the actual or alleged presence of Hazardous Materials on the
Premises or in the Building which is caused or (provided same is within Tenant's
reasonable control) permitted by Tenant, and (b) any Environmental Claim
relating in any way to Tenant's operation or use of the Premises or the
Building. The provisions of this Section 28.2 shall survive the expiration or
sooner termination of this Lease.
Section 28.3 In no event shall Tenant be obligated to defend,
indemnify or save harmless Landlord or any partner, shareholders, director,
officer, principal, employee or agent of Landlord against any loss, cost or
damage to the extent such loss, cost or damage is caused solely by the
negligence or misconduct of such party claiming a right to be indemnified.
ARTICLE 29. REDUCED PREMISES
Throughout the Term, including renewals and extensions, Tenant
agrees that Landlord shall have the right, upon Landlord's giving Tenant not
less than thirty (30) days prior written notice, to recapture a portion or
portions of the Premises solely for the purpose of (a) installing additional
elevator(s) in the Building, together with such space as may be required for
lobbies and other common areas, (b) improving the Building Systems, or (c)
constructing public corridors to create access to rentable space now existing or
to be constructed in the future on the floor(s) on which the Premises are
located (any or all of the foregoing work, "Building Improvements"). The amount
of such recaptured space which may be taken by Landlord pursuant to this Article
29 shall be limited to the areas shown on Exhibit J to this Lease (which
Landlord and Tenant hereby deem and agree consists of 1,800 Rentable Square Feet
of space), and within such areas, such space as is reasonably and actually
required for the proper installation, access and operation of such Building
Improvements. Tenant shall provide Landlord with access to the Premises to
perform the work to install and maintain the Building Improvements, including
the right to take all necessary materials and equipment into the Premises,
without the same constituting an eviction, and Tenant shall not be entitled to
any damages by reason of loss or interruption of business or otherwise. Landlord
shall use reasonable efforts to minimize interference with Tenant's access to
and use and occupancy of the Premises in making any Building Improvements;
provided, however, that Landlord shall have no obligation to employ contractors
or labor at overtime or other premium pay rates or to incur any other overtime
costs or additional expenses whatsoever, unless reimbursed by Tenant therefor
within ten (10) days after demand. Promptly following the completion of any
Building Improvements, Landlord shall at Landlord's expense make such repairs to
and restoration of the Premises and reasonable access thereto (including
installation of demising walls) as may be reasonably required as a direct result
thereof. Upon the earlier of (i) the date set forth for such recapture in
Landlord's notice described above, or (ii) the date on which Landlord's work in
the space to be recaptured renders such space unusable by Tenant for the
ordinary conduct of its business therein, the Lease shall be deemed
automatically amended by the deletion of such recaptured space from the
Premises, Fixed Rent and Additional Rent shall be reduced in the proportion
which the area of the part of the Premises so recaptured bears to the total area
of the Premises immediately prior thereto, and Tenant shall promptly vacate and
surrender such portion of the Premises to Landlord, and Landlord shall pay
Tenant an amount equal to (i) Tenant's actual out-of-pocket costs in performing
any Tenant's Alterations made to such recaptured space, minus (ii) the amount of
Landlord's Contribution applied to the performance of such Tenant's
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Alterations, amortized on a straight-line basis over a ten-year period (measured
from the date of substantial completion of the Alteration in question). Except
as otherwise specifically set forth in this Article 29, the terms and conditions
of this Lease shall not be modified by reason of any such recapture of space,
Building Improvements or the maintenance thereof.
ARTICLE 30. RIGHT OF FIRST OFFER
Section 30.1 If at any time prior to the tenth (10th)
anniversary of the Commencement Date, Landlord shall propose to lease all or any
portion of the space on the ninth (9th) floor of the Building which is
contiguous to the Premises as then constituted (all or any such portion of such
space, an "Expansion Space"), Landlord shall in each such case deliver notice
thereof to Tenant (the "Expansion Notice") setting forth (i) a description of
the Expansion Space in question, (ii) the Fixed Rent, (iii) the number of
Rentable Square Feet (determined in accordance with the standard set forth in
Section 30.4(e), (iv) the amount of electrical power (which shall be the
then-Building standard number of xxxxx per square foot) for the Expansion Space,
and (v) the date Landlord anticipates that such Expansion Space will become
available for leasing. Provided that all of the conditions precedent set forth
in this Article 30 are fully satisfied by Tenant, Tenant shall have the option
(the "Expansion Option"), exercisable by Tenant delivering written notice to
Landlord (an "Acceptance Notice") within ten (10) business days of the giving by
Landlord of the Expansion Notice, to lease the Expansion Space upon the terms
and conditions set forth in this Article 30, and this Lease shall thereupon be
modified as provided in Section 30.4. Time shall be of the essence as to
Tenant's giving of any Acceptance Notice. The Expansion Option may be exercised
only with respect to all of the Expansion Space which is the subject of an
Expansion Notice. If Tenant fails to timely give an Acceptance Notice with
respect to any Expansion Space, Landlord shall be free to lease such Expansion
Space to any third party or to otherwise dispose of such Expansion Space, and
Tenant shall have no further rights hereunder to lease any such Expansion Space;
provided, however, that if Landlord leases such Expansion Space to a third
party, and subsequently (but prior to the tenth anniversary of the Commencement
Date) such Expansion Space becomes available for leasing, then Tenant's rights
under this Article 30 shall again be applicable to such Expansion Space.
Section 30.2 For purposes of this Article 30, the phrase
"available for leasing" shall mean that on the date set forth in the Expansion
Notice as being the date Landlord anticipates that such Expansion Space will
become available for leasing, (a) no party leases or occupies the Expansion
Space, whether pursuant to a written lease or other written agreement, and (b)
no party holds any written option or right to lease and/or occupy the Expansion
Space, or to renew its lease and/or right(s) of occupancy therefor. In addition,
so long as a tenant or other occupant leases or occupies a portion of the
Expansion Space, Landlord shall be free to extend any such tenancy or occupancy,
whether or not pursuant to a written lease or other agreement, and such space
shall not be deemed to be available for leasing, unless Landlord shall then have
given Tenant an Expansion Notice with respect to such space. In no event shall
Landlord be liable to Tenant for any failure by any then existing tenant or
occupant to vacate any of the Expansion Space. Landlord agrees that from and
after the date hereof, it will not grant any rights to any tenant or other
occupant of the Building with respect to the Expansion Space unless such rights
are subordinate to the rights granted Tenant hereunder, except (i) to tenants or
other occupants leasing or occupying such portions of the Expansion Space as of
the date hereof, or (ii)
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to new tenants or occupants of a portion of the Expansion Space after Landlord
shall have duly offered such Expansion Space to Tenant pursuant to this Article
30 and Tenant shall have failed to timely give an Acceptance Notice with respect
to such Expansion Space. Landlord represents that to the best of its knowledge,
as of the date of this Lease, the tenants and other occupants leasing or
occupying premises which may become subject to the provisions of Section 30.1
are as set forth on Exhibit L annexed hereto.
Section 30.3 Tenant shall have no right to exercise the
Expansion Option unless all of the following conditions have been satisfied on
the date of the Acceptance Notice and on the Expansion Space Commencement Date
(as defined in Section 30.4):
(a) No Event of Default shall have occurred and be
continuing under this Lease; and
(b) The named Tenant hereunder (or a permitted
assignee, sublessee, successor or transferee pursuant to Section 13.10,
but not any other assignee or successor tenant), or its Affiliates
shall occupy not less than seventy five percent (75%) of the rentable
area of the Premises.
Section 30.4 Provided that Tenant timely delivers an
Acceptance Notice, then, effective as of the date on which Landlord delivers the
Expansion Space to Tenant (the "Expansion Space Commencement Date"):
(a) the Expansion Space shall be added to and be
deemed to be a part of the Premises for all purposes of this Lease
(except as otherwise provided in this Article 30);
(b) the Expansion Space shall be delivered "as is",
and Landlord shall not be obligated to perform any work with respect
thereto;
(c) Fixed Rent for the Expansion Space shall be
determined as of the Expansion Space Commencement Date, and shall be
the greater of (i) ninety five percent (95%) of the fair market rental
(the "FMV") for the Expansion Space as set forth in the Expansion
Notice, or (ii) the total of the per square foot amount of Fixed Rent
then payable under this Lease, multiplied by the number of rentable
square feet contained in the Expansion Space;
(d) Tenant shall pay Tenant's Tax Payment and
Tenant's Labor Rate Payment with respect to the Expansion Space in
accordance with the Base Taxes and the Base Labor Rate applicable
thereto as set forth in Article 6;
(e) Tenant's Share shall be proportionately increased
to reflect the inclusion of the Expansion Space in the Premises, and
the Premises Area shall be deemed to have been increased by the number
of Rentable Square Feet contained in the Expansion Space (as determined
in accordance with the standard of measurement then employed by
Landlord); and
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(f) Each Guarantor shall execute and deliver to
Landlord a reconfirmation of its guaranty, in form and substance
satisfactory to Landlord.
Section 30.5 If Landlord shall be prevented from delivering
possession of any portion of the Expansion Space to Tenant as provided for in
this Article 30 due to the holding over or retention of possession of any tenant
or any other occupant after using reasonable efforts to obtain possession
thereof, including, if necessary in Landlord's reasonable judgment, the
initiation and diligent prosecution of appropriate legal proceedings against any
such holdover tenant or other occupant, Landlord shall not be subject to any
liability for failure to give possession of the Expansion Space to Tenant, the
validity of this Lease shall not be impaired thereby, and Tenant shall take
possession of the Expansion Space when, as and if such space can be delivered to
Tenant; provided, however, that (a) Landlord shall keep Tenant advised of the
progress of Landlord's efforts to obtain possession of such space, and (b)
Tenant shall have no obligation to lease any Expansion Space as to which
Landlord offers to deliver possession to Tenant more than one (1) year after the
date of the applicable Acceptance Notice.
Section 30.6 (a) If Tenant shall, within ten (10) days of the
giving by Landlord of the Expansion Notice, dispute Landlord's calculation of
the FMV for the Expansion Space as set forth in an Expansion Notice, such
dispute shall be submitted to arbitration and shall be determined by a single
arbitrator appointed in accordance with the American Arbitration Association
Real Estate Valuation Arbitration Proceeding Rules. Such arbitrator shall be
impartial and shall have not less than ten (10) years' experience in the New
York metropolitan area in a calling related to the leasing of commercial space
in buildings comparable to the Building, and the fees of such arbitrator shall
be shared by Landlord and Tenant.
(b) Within fifteen (15) days following the appointment of such
arbitrator, each party shall attend a hearing before such arbitrator wherein
each party shall submit a report setting forth its determination of the FMV of
the Expansion Space, together with such information on comparable rentals, or
such other evidence, as such party shall deem relevant.
(c) The arbitrator shall, within fifteen (15) days following
such hearing and submission of evidence, render his or her decision by selecting
the determination of FMV of the Expansion Space submitted by either Landlord or
Tenant which, in the judgment of the arbitrator, most nearly reflects the FMV of
the Expansion Space. It is expressly understood that the decision of such
arbitrator shall be final and binding upon the parties hereto.
(d) (i) For purposes of the foregoing arbitration
the Expansion Space shall be considered in its "as is" condition, reasonable
wear and tear excepted.
(ii) Additionally, for purposes of the determination
of the FMV of the Expansion Space, whether by estimate of Landlord or by
arbitration, Landlord or such arbitrator shall take into account the then
current rentals or occupancy fees which Landlord shall then be receiving for the
renting of or granting of use or occupancy rights for comparable office space in
the Building for the Permitted Use, taking into account rent concessions,
abatement periods and construction allowances then being granted for comparable
space. The Base Taxes and the Base Labor Rate applicable to Tenant's Tax Payment
and Tenant's Labor Rate Payment, respectively,
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to be made by Tenant with respect to the Expansion Space pursuant to Article 6,
shall not be modified for purposes of the determination of the FMV for the
Expansion Space hereunder; provided, however, that the determination of the FMV
hereunder shall take into account the Base Taxes, the Base Labor Rates, and the
amounts payable hereunder for Tenant's Tax Payment and Tenant's Labor Rate
Payment, in assessing comparable rental rates.
(iii) It is expressly understood that any
determination of the FMV for the Expansion Space shall be based on the
assumptions and criteria stated in this Article 30, and that the arbitrator
shall not have the power to add to, modify or change any of the provisions of
this Lease.
(e) After a determination has been made of the FMV for the
Expansion Space (whether or not determined in accordance with this Section
30.6), the parties shall execute and deliver to each other an agreement setting
forth the Fixed Rent therefor as hereinabove determined, and the other terms,
provisions, covenants and conditions of the leasing of the Expansion Space,
which terms, conditions, covenants and provisions shall be as set forth in
Section 30.4.
(f) If the final determination of Fixed Rent for the Expansion
Space shall not be made on or before the Expansion Space Commencement Date in
accordance with the provisions of this Article 30, then pending such final
determination, Tenant shall pay as the Fixed Rent for the Expansion Space the
amount of Fixed Rent as set forth by Landlord in the Rental Notice. If, based
upon the final determination of such Fixed Rent as provided herein, the payments
made by Tenant on account of Fixed Rent were (i) less than the Fixed Rent as
finally determined in accordance with the provisions hereof, Tenant shall pay to
Landlord the amount of such deficiency within ten (10) days after demand
therefor, or (ii) greater than Fixed Rent as finally determined in accordance
with the provisions hereof, Landlord shall, at Landlord's option, either credit
the amount of such excess against the next installments of Fixed Rent due under
this Lease, or refund the amount of such excess to Tenant.
ARTICLE 31. LANDLORD'S CONTRIBUTION
Section 31.1 (a) Landlord shall contribute toward the actual
cost of the Initial Alterations (including carpeting, wall covering, telephone
and computer installations and wiring, and "soft costs" incurred in connection
with such alterations, including architectural, consulting, engineering and
legal fees, provided that such "soft costs" shall not exceed ten percent (10%)
of Landlord's Contribution) an amount ("Landlord's Contribution") equal to the
lesser of (a) One Million Eight Hundred Seventeen Thousand Eight Hundred and
00/100 Dollars ($1,817,800.00) (subject, however, to reduction in the amounts
set forth in Subsections 31.1(a)(ii) and 31.1(a)(iii) in the event that Tenant
shall exercise one or more of its rights of partial termination pursuant to
Section 2.3), or (b) the aggregate amount of all costs and expenses actually
incurred by Tenant in connection with the Initial Alterations; provided,
however, that this Lease shall be in full force and effect and no Event of
Default shall have occurred and be continuing hereunder, and provided, further,
that Landlord's Contribution shall be payable in stages commencing on the
Delivery Date with respect to each Space, in the following maximum amounts:
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(i) with respect to Space A, (a) Fifteen Thousand and
00/100 Dollars ($15,000.00) toward Tenant's renovation of the two (2)
existing bathrooms on the ninth avenue side lobby of the ninth floor of
the Building in order to comply with the requirements of the ADA in
Space A as more particularly set forth in Section 4.3(v), and (b) Nine
Hundred Twenty One Thousand Sixty and 00/100 Dollars ($921,060.00) for
the other items of Tenant's Initial Alterations applicable to Space A;
(ii) with respect to Space B, Five Hundred Fifteen
Thousand Two Hundred Sixty and 00/100 Dollars ($515,260.00); and
(iii) with respect to Space C, Three Hundred Sixty
Six Thousand Four Hundred Eighty and 00/100 Dollars ($366,480.00).
(b) Any cost of the Initial Alterations in excess of
Landlord's Contribution shall be paid by Tenant. Tenant shall not be entitled to
receive any portion of Landlord's Contribution with respect to each Space (and
with respect to Tenant's bathroom renovations as set forth in Section
31.1(a)(i)) if such funds are not actually expended by Tenant in the performance
of the Initial Alterations for such Space (or in the performance of such
bathroom renovations, as applicable), nor shall Tenant have any right to apply
any unexpended portion of Landlord's Contribution as a credit against Fixed
Rent, Additional Rent or any other obligation of Tenant hereunder. No part of
Landlord's Contribution may be assigned by Tenant prior to actual payment
thereof by Landlord to Tenant.
(c) A portion of the Initial Alterations, to be constructed at
a cost of $1,817,800 (subject to reduction as set forth in Section 31.1(a)),
shall be deemed to be paid for from Landlord's Contribution, and such portion of
the Initial Alterations shall not be deemed alterations, additions or
improvements made at Tenant's expense, and Landlord shall be the owner of such
portion of the Initial Alterations for all purposes (including financial
reporting and income tax purposes).
Section 31.2 Landlord shall make progress payments to Tenant
on a monthly basis, for the work performed during the previous month, less a
retainage of 10% of each progress payment (the "Retainage"). Each of Landlord's
progress payments will be limited to an amount equal to (a) the aggregate
amounts (reduced by the Retainage) theretofore paid by Tenant (as certified by
an authorized officer of Tenant and by Tenant's independent, licensed architect)
to Tenant's contractors, subcontractors and material suppliers (excluding any
payments for which Tenant has previously been reimbursed out of previous
disbursements from Landlord's Contribution), multiplied by (b) a fraction, the
numerator of which is the amount of Landlord's Contribution applicable to the
Space (or such bathroom renovations, if applicable) which is the subject of the
advance requested by Tenant, and the denominator of which is the total contract
price (or, if there is no specified or fixed contract price for the Initial
Alterations, then Landlord's reasonable estimate thereof) for the performance of
all of the Initial Alterations to be made to the Space (or such bathroom
renovations, if applicable) which is the subject of the advance requested by
Tenant, as shown on the plans and specifications approved by Landlord. Provided
that Tenant delivers requisitions to Landlord on or prior to the first (1st) day
of any month, such progress payments shall be made within thirty (30) days next
following the delivery to Landlord of
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requisitions therefor, signed by a financial officer of Tenant, which
requisitions shall set forth the names of each contractor and subcontractor to
whom payment is due, and the amount thereof, and shall be accompanied by (i)
with the exception of the first requisition, copies of partial waivers of lien
from all contractors, subcontractors and material suppliers covering all work
and materials which were the subject of previous progress payments by Landlord
and Tenant, (ii) a written certification from Tenant's architect that the work
for which the requisition is being made has been completed substantially in
accordance with the plans and specifications approved by Landlord, and (iii)
such other documents and information as Landlord may reasonably request. Any
requisitions made following the first (1st) day of any month shall be paid no
later than the last day of the month following the month in which such
requisitions are made. Landlord shall disburse the Retainage with respect to any
Space upon submission by Tenant to Landlord of a requisition therefor,
accompanied by all documentation required under this Section 31.2, together with
(A) proof of the satisfactory completion of all required inspections and
issuance of any required approvals, permits and sign-offs for the Initial
Alterations for such Space by all Governmental Authorities having jurisdiction
thereover, (B) final "as-built" plans and specifications for the Initial
Alterations for such Space as required pursuant to Section 3.2(d), and (C) the
issuance of final lien waivers by all contractors, subcontractors and material
suppliers covering all of the Initial Alterations for such Space; provided,
however, that notwithstanding Tenant's failure to deliver final lien waivers
from one or more such contractors, subcontractors or suppliers providing
materials or services costing, in the aggregate, no more than five percent (5%)
of the total amount of Landlord's Contribution, and provided that Tenant shall
deliver to Landlord a written notification stating that Tenant is engaged in a
bona fide dispute with such contractor, subcontractor or supplier, then Landlord
shall disburse to Tenant that portion of the Retainage for which Tenant has duly
delivered lien waivers to Landlord. Notwithstanding anything to the contrary set
forth in this Section 31.2, if Tenant fails to pay when due any sums due and
payable to any of Tenant's contractors or material suppliers, then unless Tenant
shall have notified Landlord that Tenant is disputing sums due to such
contractor or material supplier, and subject to the provisions of the
immediately preceding sentence, Landlord shall have the right, but not the
obligation, upon fifteen (15) days notice to Tenant, to promptly pay to such
contractor or supplier all sums so due from Tenant, and sums so paid by Landlord
shall be deducted from the amount of Landlord's Contribution then unpaid (to the
extent of such unpaid amount), and the balance of such sums so due from Tenant
shall be deemed Additional Rent and shall be paid by Tenant within ten (10) days
after Landlord delivers to Tenant an invoice therefor. If Landlord fails to
disburse Landlord's Contribution or any portion thereof when required after all
conditions therefor have been met by Tenant as set forth in this Section 31.2,
then, if such failure of Landlord shall continue for thirty (30) days following
notice from Tenant of such failure, Tenant shall have the right to apply the
amount of such installment of Landlord's Contribution not paid by Landlord as an
offset against the next ensuing installment(s) of Fixed Rent becoming due under
this Lease.
ARTICLE 32. SECURITY DEPOSIT
Section 32.1 Tenant has deposited with Landlord the sum of
Five Million and 00/100 Dollars ($5,000,000.00) as security for the full and
faithful performance of every provision of this Lease to be performed by Tenant
(all or any part of such amount, the "Security Deposit"). If an Event of Default
shall have occurred with respect to any provision of this Lease,
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including but not limited to (i) the provisions relating to the payment of Fixed
Rent and Additional Rent, or (ii) any default beyond applicable notice and grace
periods under Tenant's Other Lease; then Landlord may use, apply or retain all
or any part of the Security Deposit for the payment of any Fixed or Additional
Rent or any other sum in default or for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of such Event of
Default, or to compensate Landlord for any other loss, cost or damage to which
Landlord is entitled pursuant to this Lease by reason of such Event of Default.
Landlord shall give Tenant notice contemporaneously with such use or application
of any portion of the Security Deposit. Tenant shall, within five (5) days after
the giving of such notice, deposit with Landlord cash in an amount sufficient to
restore the Security Deposit to the amount then required pursuant to the terms
of this Article 32 (Tenant's obligation to make such payment shall be deemed a
requirement that Tenant pay an item of Additional Rent) and Tenant's failure to
do so shall be a breach of this Lease. Landlord shall deposit the Security
Deposit, if in cash, in an interest-bearing account in a bank with a branch in
New York State; however, Landlord shall not, unless otherwise required by Legal
Requirements, pay interest to Tenant on the Security Deposit, and if Landlord is
required to maintain the Security Deposit in an interest bearing account,
Landlord will retain the maximum amount permitted under Legal Requirements as a
bookkeeping and administrative charge. Tenant shall not assign or encumber any
part of the Security Deposit, and no assignment or encumbrance by Tenant of all
of any part of the Security Deposit shall be binding upon Landlord, whether made
prior to, during, or after the Term. Landlord shall not be required to exhaust
its remedies against Tenant or against the Security Deposit before having
recourse to any other form of security held by Landlord and recourse by Landlord
to any Security Deposit shall not affect any remedies of Landlord which are
provided in this Lease or which are available to Landlord in law or in equity.
If Tenant shall fully and faithfully perform every covenant and provision of
this Lease to be performed and observed by Tenant, the Security Deposit or any
balance thereof shall be returned to Tenant within thirty (30) days after the
expiration or sooner termination (other than a termination pursuant to Article
16) of the Term and Tenant's surrender to Landlord of the Premises. In the event
the Building is sold, Landlord shall transfer the Security Deposit to the new
owner and Landlord shall thereupon be released by Tenant from all liability for
the return of said Security Deposit; and Tenant agrees to look to the new owner
solely for the return of the Security Deposit. A lease of the entire Building
shall be deemed a transfer within the meaning of the foregoing sentence.
Landlord shall use reasonable efforts to notify or cause Tenant to be notified
in the event of any transfer of the Building.
Section 32.2 In lieu of a cash deposit, Tenant may deliver to
Landlord a clean, irrevocable, non-documentary and unconditional letter of
credit (the "Letter of Credit") issued by and drawn upon any commercial bank,
trust company, national banking association or savings and loan association
having offices for banking purposes in the City of New York and which is a
member of the New York Clearinghouse Association (the "Issuing Bank") and which
(or the parent company of which) shall have outstanding unsecured, uninsured and
unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness (which is otherwise uninsured and unguaranteed), that is then
rated, without regard to qualification of such rating by symbols such as "+" or
"-" or numerical notation, "Aa" or better by Xxxxx'x Investors Service and "AA"
or better by Standard & Poor's Corporation, and has combined capital, surplus
and undivided profits
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of not less than $500,000,000.00, which Letter of Credit shall have a term of
not less than one year, be in form and content satisfactory to Landlord (and
substantially as shown on Exhibit D to this Lease), be for the account of
Landlord, be in the amount of the Security Deposit then required to be deposited
hereunder, and be fully transferable by Landlord to successor owners of the
Building without the payment of any fees or charges, it being agreed that if any
such fees or charges shall be so imposed, such fees or charges shall be paid by
Tenant. The Letter of Credit shall provide that it shall be deemed automatically
renewed, without amendment, for consecutive periods of one year each thereafter
during the term of this Lease, unless the Issuing Bank sends notice (the
"Non-Renewal Notice") to Landlord by certified mail, return receipt requested,
not less than thirty (30) days next preceding the then expiration date of the
Letter of Credit that it elects not to have such Letter of Credit renewed.
Additionally, the Letter of Credit shall provide that Landlord shall have the
right, exercisable within twenty (20) days of its receipt of the Non-Renewal
Notice, by sight draft on the Issuing Bank, to receive the monies represented by
the existing Letter of Credit and to hold such proceeds pursuant to the terms of
this Section 32.2 as a cash security pending the replacement of such Letter of
Credit. If an Event of Default shall have occurred and be continuing with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of Fixed Rent and Additional Rent, Landlord
may apply or retain the whole or any part of the cash security so deposited or
may notify the Issuing Bank and thereupon receive all the monies represented by
the Letter of Credit and use, apply, or retain the whole or any part of such
proceeds, as provided in this Section 32.2. Any portion of the cash proceeds of
the Letter of Credit not so used or applied by Landlord in satisfaction of the
obligations of Tenant as to which such Event of Default shall have occurred
shall be deposited by Landlord and retained in an interest-bearing account as
provided in Section 32.1. If Landlord applies or retains any part of the cash
security or proceeds of the Letter of Credit, as the case may be, Tenant shall,
within five (5) days after written demand therefor, deposit with Landlord the
amount so applied or retained so that Landlord shall have the full Security
Deposit required pursuant to Section 32.1 on hand at all times during the Term.
If Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the Letter of Credit shall be returned
to Tenant within thirty (30) days after the Expiration Date and after delivery
of possession of the Premises to Landlord. In the event of a sale of Landlord's
interest in the Premises, within thirty (30) days of notice of such sale or
leasing, Tenant, at Tenant's sole cost and expense, shall arrange for the
transfer of the Letter of Credit to the new landlord, as designated by Landlord,
or have the Letter of Credit reissued in the name of the new landlord and
Landlord shall thereupon be released by Tenant from all liability for the return
of the Letter of Credit; provided, however, that if the Letter of Credit is
reissued, Landlord shall return the original Letter of Credit issued in
Landlord's name to Tenant.
Section 32.3 (a) Notwithstanding anything set forth in this
Article 32 to the contrary, and provided that each of the conditions set forth
in Section 32.3(b) shall have been satisfied, then reasonably promptly after
notice from Tenant to Landlord, signed by an authorized financial officer of
Tenant and certifying that the condition set forth in Section 32.3(b)(ii) has
been satisfied, the Security Deposit shall be reduced to $3,002,292.00.
(b) The following are the conditions precedent to the
reduction of the Security Deposit as provided in Section 32.3(a):
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(i) no Event of Default shall have occurred and be continuing
with respect to any provision of this Lease, including the provisions
relating to the payment of Fixed Rent and Additional Rent;
(ii) Tenant shall have submitted to Landlord true and complete
copies of (A) if Tenant is a publicly traded Entity, Tenant's annual
financial statements as filed with the Securities and Exchange
Commission, or (B) if Tenant is not a publicly traded Entity, Tenant's
annual financial statements for the preceding three (3) fiscal years of
Tenant (the "Financial Statements"), audited by a firm of certified
public accountants reasonably satisfactory to Landlord, (including
B.D.O. Xxxxxxx), and substantially in the form of Tenant's financial
statement delivered by Tenant to Landlord immediately prior to the
execution and delivery of this Lease, showing that:
(A) for the eight (8) immediately preceding fiscal
quarters of Tenant (which shall not include any fiscal quarter
all or part of which falls within calendar year 1999 or
earlier years), Tenant shall have achieved positive "Net Cash
Flow from Operating Activities" after payment of all operating
expenses and debt service, as evidenced in the Statement of
Cash Flows contained in the Financial Statements; and
(B) Tenant has a net worth, computed in accordance
with generally accepted accounting principles consistently
applied, of not less than Three Hundred Million and 00/100
Dollars ($300,000,000.00).
(c) If Tenant has deposited the Security Deposit in cash,
Landlord shall refund to Tenant the amounts by which the Security Deposit is
reduced pursuant hereto, within fifteen (15) days after notice from Tenant
pursuant to Section 32.3(a). If Tenant has provided a Letter of Credit, then,
provided that Tenant tenders to Landlord a replacement Letter of Credit (which
replacement must meet the applicable requirements set forth in Section 32.2) for
the appropriately reduced amount of the Security Deposit, Landlord shall
exchange the Letter of Credit then held by Landlord for the replacement Letter
of Credit tendered by Tenant. Tenant may, in lieu of replacing the Letter of
Credit, cause the Letter of Credit to be amended as of the date of such
reduction to reflect the reduced Security Deposit pursuant hereto.
Section 32.4 Notwithstanding anything set forth in this
Article 32 to the contrary: (a) if Tenant shall provide Landlord with a
Guaranty, substantially in the form attached as Exhibit O to this Lease, of
Tenant's obligations under this Lease executed by Bertelsmann, then the Security
Deposit shall be reduced to $1,500,000.00; and (b) if Tenant shall provide
Landlord with a guaranty, substantially in the form attached as Exhibit O to
this Lease, of Tenant's obligations under this Lease executed by B&N Inc., then
the Security Deposit shall be reduced to $3,002,292.00, provided that at the
time of execution and delivery of any such Guaranty, Tenant shall provide to
Landlord reasonable evidence that such guarantor shall have a net worth,
computed in accordance with generally accepted accounting principles
consistently applied, of not less than $300,000,000.00.
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ARTICLE 33. BUILDING NAME AND SIGNAGE; FLAGPOLE
Section 33.1 The Building may be designated and known by any
name Landlord may choose and such designated name may be changed from time to
time in Landlord's sole discretion. Tenant shall not refer to or otherwise
characterize the Building, in any written material generated or circulated by
Tenant, as the "xxxxxxxxxxxxxx.xxx Building" or any other name identifying the
Building with Tenant, and shall not place any signage anywhere in or on the
Building or the Premises, except as specifically permitted in this Section 33.1.
So long as the named Tenant hereunder and its Affiliates ("Original Tenant")
(i.e., exclusive of any subtenants who are not Affiliates) shall be in actual
occupancy for the conduct of its business of not less than the greater of (a)
ninety (90%) percent of the then Demised Premises or (b) 125,000 Rentable Square
Feet of space (the "Signage Threshold"), Original Tenant may install and
maintain, at Tenant's sole cost, at locations reasonably designated by Landlord:
(i) two signs identifying Original Tenant, to be located below the existing
signs identifying Insignia/Xxxxxx X. Xxxxxx Company, Inc. or the then managing
agent of the Building on the exterior of the Ninth Avenue side of the Building,
(ii) two signs identifying Original Tenant, to be located on the wall currently
housing the Building directory in the lobby on the Ninth Avenue side of the
Building and (iii) a flag identifying Original Tenant on one of the existing
flagpoles (designated by Landlord) attached to the exterior of the ninth floor
side of the Building; provided that such signage and flag (A) shall not diminish
access to and from the Building by other tenants, other occupants of the
Building and the general public, (B) shall not reduce the size or accessibility
of the Ninth Avenue Building entrance, (C) shall be subject to and in accordance
with all Legal Requirements and all precautions and safeguards required by
Landlord's insurance company, and (D) shall be approved by Landlord as to size,
materials and design (which approval shall not be unreasonably withheld or
delayed). Landlord may at any time during the Term after reasonable prior notice
to Tenant and at Landlord's sole cost and expense relocate any of Tenant's signs
or flag to locations designated by Landlord and reasonably acceptable to Tenant,
in order to accommodate any changes in the arrangement or location of, or other
renovations, improvements or modifications to, any public parts of the Building,
provided that such relocation does not cause the visibility of such signs or
flag to be interrupted or impaired, other than temporarily. Tenant shall be
solely responsible for any damage caused as a result of its use of, and shall be
solely responsible to promptly and diligently perform all necessary repairs or
replacements to, or maintenance of, the flagpole used by Tenant, provided,
however, that if Tenant's failure after five (5) days' notice from Landlord to
so repair, replace or maintain the flagpole materially jeopardizes in any way
Landlord's or any other tenant's property located on or within the Building,
Landlord may, at Landlord's option, elect to perform such repairs, replacements
or maintenance at Tenant's sole cost and expense. Landlord shall give Tenant
reasonable prior notice of its election to perform such repairs, except in an
emergency. Landlord represents that to the best of its knowledge, as of the date
of this Lease, no other Person has the right to use the flagpole to be
designated for Tenant's use; provided, however, that Tenant shall, at Landlord's
request, promptly remove its flag if Landlord shall become aware of any such
right of any other Person, and Tenant agrees that Landlord shall not be liable
to Tenant in connection therewith.
Section 33.2 If and when Original Tenant is no longer in
actual occupancy of the Signage Threshold, then (i) Tenant shall, at Landlord's
request, remove all of the signage
77
theretofore installed by Tenant pursuant to Section 33.1 and repair and restore
in a good and workmanlike manner any damage to the Building caused by such
removal.
Section 33.3 So long as Original Tenant shall be in actual
occupancy of not less than the Signage Threshold, Landlord shall not name the
Building for Borders Booksellers or Xxxxxx.xxx, and, to the extent that
Landlord's consent or approval is required or Landlord is otherwise in a
position to make such determination, Landlord shall not cause or permit to be
placed in the Building lobbies or on the Building exterior any signage
identifying such companies, provided, however, that Landlord may maintain
listings on the Building directory of the names of such companies, their
Affiliates, officers or employees for so long as any of such Persons occupy
space in the Building.
ARTICLE 34. GUARANTY OF LEASE
Simultaneously with the execution and delivery of this Lease
and as a condition to the effectiveness hereof, Tenant has delivered to Landlord
an Agreement and Guaranty, executed by xxxxxxxxxxxxxx.xxx inc., a Delaware
corporation, in the form attached to this Lease as Exhibit O.
ARTICLE 35. MISCELLANEOUS
Section 35.1 (a) The obligations of Landlord under this Lease
shall not be binding upon Landlord named herein after the sale, conveyance,
assignment or transfer by such Landlord (or upon any subsequent landlord after
the sale, conveyance, assignment or transfer by such subsequent landlord) of its
interest in the Building or the Real Property, as the case may be, and in the
event of any such sale, conveyance, assignment or transfer, Landlord shall be
and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and the transferee of Landlord's interest in the Building or
the Real Property, as the case may be, shall be deemed to have assumed all
obligations under this Lease, whether accruing prior or subsequent to such sale,
conveyance, assignment or transfer. Prior to any such sale, conveyance,
assignment or transfer, the liability of Landlord for Landlord's obligations
under this Lease shall be limited to Landlord's interest in the Real Property
and Tenant shall not look to any other property or assets of Landlord or the
property or assets of any of the Exculpated Parties (defined below) in seeking
either to enforce Landlord's obligations under this Lease or to satisfy a
judgment for Landlord's failure to perform such obligations.
(b) Notwithstanding anything contained herein to the contrary,
Tenant shall look solely to Landlord to enforce Landlord's obligations hereunder
and no partner, shareholder, director, officer, principal, employee or agent,
directly or indirectly, of Landlord (collectively, the "Exculpated Parties")
shall be personally liable for the performance of Landlord's obligations under
this Lease. Tenant shall not seek any damages against any of the Exculpated
Parties.
Section 35.2 (a) Wherever in this Lease Landlord's consent or
approval is required, if Landlord shall refuse such consent or approval, Tenant
in no event shall be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim or defense)
78
based upon any claim or assertion by Tenant that Landlord unreasonably withheld
or unreasonably delayed its consent or approval. Tenant's sole remedy shall be
an action or proceeding to enforce any such provision, for specific performance,
injunction or declaratory judgment.
(b) In any instance where Landlord has specifically agreed
that it will not unreasonably withhold its consent to a proposed assignment of
this Lease or a subletting of all or a portion thereof, Tenant may dispute the
reasonableness of the withholding by Landlord of such consent by arbitration of
the issue in the City of New York in accordance with the rules and regulations
for commercial matters then prevailing of the American Arbitration Association
or its successor (the "AAA") pursuant to a submission effected within ten (10)
Business Days after notice of the withholding of consent has been given by
Landlord to Tenant. Provided the rules and regulations of the AAA so permit, (i)
the AAA shall, within two (2) Business Days after such submission or
application, select a single arbitrator having at least ten (10) years'
experience in the leasing management and/or operation commercial properties
similar to the Building, (ii) the arbitration shall commence two Business Days
thereafter, and (iii) the arbitrator shall make a determination within three
Business Days after the conclusion of the presentation of Landlord's and
Tenant's cases, which determination shall be limited to a decision upon whether
Landlord's withholding of consent was reasonable. The arbitrator's determination
shall be final and binding upon the parties, whether or not a judgment shall be
entered in any court. All actions necessary to implement such decision shall be
undertaken as soon as possible, but in no event later than ten (10) Business
Days after the rendering of such decision. The arbitrator's determination may be
entered in any court having jurisdiction thereof. All fees payable to the AAA
for services rendered in connection with the resolution of the dispute shall be
paid by the unsuccessful party.
Section 35.3 (a) All of the Exhibits attached to this Lease
are incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Exhibits hereto, the terms and provisions of this Lease shall
control. This Lease may not be changed, modified, terminated or discharged, in
whole or in part, except by a writing, executed by the party against whom
enforcement of the change, modification, termination or discharge is to be
sought. Wherever appropriate in this Lease, personal pronouns shall be deemed to
include the other genders and the singular to include the plural. Wherever a
period of time is stated in this Lease as commencing or ending on any particular
date, such period of time shall be deemed inclusive of such stated commencement
and ending dates. The captions hereof are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Lease nor the intent of any provision thereof. All Article and Section
references set forth herein shall, unless the context otherwise specifically
requires, be deemed references to the Articles and Sections of this Lease.
Whenever the words "include", "includes", or "including" are used in this Lease,
they shall be deemed to be followed by the words "without limitation".
(b) This Lease shall be governed in all respects by the laws
of the State of New York applicable to agreements executed in and to be
performed wholly within said State.
(c) If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall ever be
held to be invalid or
79
unenforceable, then in each such event the remainder of this Lease or the
application of such term, covenant, condition or provision to any other person
or any other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each term, covenant, condition
and provision hereof shall remain valid and enforceable to the fullest extent
permitted by law.
(d) If at the commencement of, or at any time or times during
the Term, the Fixed Rent and Additional Rent reserved in this Lease shall not be
fully collectible by reason of any Legal Requirement, Tenant shall enter into
such agreements and take such other steps (without additional expense to Tenant)
as Landlord may request and as may be legally permissible to permit Landlord to
collect the maximum rents which may from time to time during the continuance of
such legal rent restriction be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction prior to the expiration of the Term, (i) Fixed Rent and
Additional Rent shall become and thereafter be payable hereunder in accordance
with the amounts reserved in this Lease for the periods following such
termination, and (ii) Tenant shall pay to Landlord, if legally permissible, an
amount equal to (A) the items of Fixed Rent and Additional Rent which would have
been paid pursuant to this Lease but for such legal rent restriction less (B)
the rents paid by Tenant to Landlord during the period or periods such legal
rent restriction was in effect.
(e) The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives, successors, and, except as otherwise provided
in this Lease, their assigns.
Section 35.4 Except as expressly provided to the contrary in
this Lease, Tenant agrees that all disputes arising, directly or indirectly, out
of or relating to this Lease, and all actions to enforce this Lease, shall be
dealt with and adjudicated in the state courts of New York or the Federal courts
sitting in New York City; and for that purpose hereby expressly and irrevocably
submits itself to the jurisdiction of such courts. Tenant hereby irrevocably
appoints the Secretary of the State of New York as its authorized agent upon
which process may be served in any such action or proceeding.
Section 35.5 Tenant hereby irrevocably waives, with respect to
itself and its property, any diplomatic or sovereign immunity of any kind or
nature, and any immunity from the jurisdiction of any court or from any legal
process, to which Tenant may be entitled, and agrees not to assert any claims of
any such immunities in any action brought by Landlord under or in connection
with this Lease. Tenant acknowledges that the making of such waivers, and
Landlord's reliance on the enforceability thereof, is a material inducement to
Landlord to enter into this Lease.
[NO FURTHER TEXT ON THIS PAGE]
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
executed this Lease as of the day and year first above written.
111 CHELSEA LLC, Landlord
a Delaware limited liability company
By: Taconic Chelsea Holdings LLC,
a Delaware limited liability company,
managing member
By: Taconic SL Principals LLC,
a Delaware limited liability company,
managing member
By: /s/Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Member
XXXXXXXXXXXXXX.XXX LLC, Tenant
a Delaware limited liability company
By: /s/Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Tenant's Federal Tax Identification Number: 00-0000000
EXHIBIT A
---------
FLOOR PLAN OF SPACE A
---------------------
The floor plan which follows is intended solely to identify the general outline
of Space A, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may not
exist as shown.
[Diagram Exhibit]
A-1
EXHIBIT B
---------
FLOOR PLAN OF SPACE B
---------------------
The floor plan which follows is intended solely to identify the general outline
of Space B, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may not
exist as shown.
[Diagram Exhibit]
B-1
EXHIBIT C
---------
FLOOR PLAN OF SPACE C
---------------------
The floor plan which follows is intended solely to identify the general outline
of Space C, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may not
exist as shown.
[Diagram Exhibit]
C-1
EXHIBIT D
---------
FORM OF LETTER OF CREDIT
[LETTERHEAD OF ISSUING BANK]
LETTER OF CREDIT DEPARTMENT
Issue Date: _________ ___, 199_
Our Number: ________________
No.________________________________________
Irrevocable Commercial Letter of Credit
Applicant:
Beneficiary: ____________________________
Amount (U.S.): $______________
Expiry: ____________ ___, 19__
Gentlemen:
For the account of Applicant we hereby establish this Irrevocable
Letter of Credit No. _____________________ in your favor for an amount of up to
$_______________ effective immediately, available by your drafts at sight when
accompanied by this Irrevocable Letter of Credit and the following document:
Beneficiary's statement purportedly signed by an officer of
Beneficiary or Beneficiary's authorized managing agent,
reading:
"The amount of this drawing under Irrevocable Letter
of Credit No. _____________ is being drawn pursuant to Lease
dated __________________ ____ 199_, by and between
______________________, as Landlord, and _________________, as
Tenant".
All drafts must be marked "Drawn under ____________________ Bank,
Irrevocable Letter of Credit No. ____________ dated _____________, 19___."
It is a condition of this Irrevocable Letter of Credit that it shall be
fully transferable by Beneficiary without any fees or charges payable by
Beneficiary in connection therewith.
It is a condition of this Irrevocable Letter of Credit that it shall be
automatically extended for additional periods of one year from the present or
future expiration date, unless at least 30 days prior to such expiration date we
notify you in writing by certified or registered mail,
D-1
return receipt requested, at the above address, that we elect not to renew this
Irrevocable Letter of Credit for such additional period. Upon receipt by you of
such notice you may draw drafts on us at sight for an amount not to exceed the
balance remaining in this Irrevocable Letter of Credit within the then
applicable expiry date.
We hereby agree with you that drafts drawn under and in accordance with
the terms of this Irrevocable Letter of Credit will be duly honored by us on
delivery of this Irrevocable Letter of Credit and the document so specified,
when presented at this office.
This credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500; provided, however, that in the event the expiration date
occurs during an interruption of our business of the type described in Article
17 of such publication, then the expiration date shall be deemed to be
automatically extended until the date which shall be five (5) days after the
resumption of our business.
------------------------------
Authorized Signature
D-2
EXHIBIT E
---------
RULES AND REGULATIONS
---------------------
1. The rights of tenants in the entrances, corridors,
elevators of the Building are limited to ingress to and egress from tenants'
premises for tenants and their employees, licenses and invitees, and no tenant
shall use, or permit the use of, the entrances, corridors, or elevators for any
other purpose. No tenant shall invite to such tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the entrances, corridors, elevators and other
facilities of the Building by other tenants. Fire exits and stairways are for
emergency use only, and shall not be used for any other purposes by the tenants,
their employees, licensees or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of, any of the sidewalks, entrances,
corridors, elevators, fire exits or stairways of the Building. Landlord reserves
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
tenants, in such manner as it reasonably deems best for the benefit of tenants
generally.
2. Tenant's employees shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
3. Tenant shall not alter the exterior appearance of the
Building by installing signs, advertisements, notices or other graphics on
exterior walls, or interior surfaces visible from outside, without prior written
permission from Landlord. Similarly, electrical fixtures hung in offices or
other spaces along the perimeter of the Building which affect its exterior
appearance must be fluorescent and a quality, type, design and bulb color,
previously approved in writing by Building management.
4. The cost of repairing any damage to the public portions of
the Building or the public facilities or to any facilities used in common with
other tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
5. The requirements of tenants will be attended to only upon
application at the Building Management Office. Employees of the Building shall
not perform any work or do anything outside of their regular assigned duties,
unless under special instructions from the Building Management Office.
6. Except as specifically provided in the Lease, Tenant shall
have no right of access to the roof of the Building and shall not install,
repair or replace any satellite dish, antennae, fan, air conditioner or other
devices on the roof of the Building without the prior written consent of
Landlord. Any such device installed without such written consent shall be
subject to removal, at Tenant's expense, without notice, at any time.
7. Exterior signs on doors and any directory tablet must be
approved by Landlord.
E-1
8. No awnings or other projections over or around the windows
shall be installed by any tenant and only such window blinds as are permitted by
Landlord shall be used in any tenant's premises.
9. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building.
The water and service closets and other plumbing fixtures in or serving any
tenant's premises shall not be used for any purpose other than the purpose for
which they were designed or constructed and no sweepings, rubbish, rags, acids
or other foreign substances shall be deposited therein. All damages resulting
from any misuse of the fixtures shall be borne by the tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused the same.
10. Tenant shall not disturb others. This rule prohibits any
noise audible from the hallway, adjoining office suites or outside whether
created by musical instruments, radios, television sets, group activities or any
other source.
11. All hand trucks used in the Building shall be equipped
with rubber tires and side guards.
12. No tenant shall install wires, conduit, sleeves or similar
installations in Building shaftways without prior written consent of Landlord,
and as Landlord may direct.
13. Each tenant shall, at its expense, provide artificial
light in the premises demised to such tenant for Landlord's agents, contractors
and employees while performing janitorial or other cleaning services and making
repairs or alterations therein.
14. Tenants shall not permit any cooking or food odors
emanating from their demised premises to be detectable in any other portions of
the Building.
15. Tenants shall provide Building management provided with
keys or combinations to all locks, bolts or other mechanical security systems
except those protecting high security areas. Upon vacating the Building, tenants
must return keys to storerooms, offices and toilets or pay replacement costs.
16. All entrance doors in each tenant's premises shall be left
locked when the tenant's premises are not in use. Entrance doors shall not be
left open at any time.
17. Tenants shall not keep pets, bicycles, or other vehicles
in their premises without prior written approval by Landlord. Exceptions are
made for seeing-eye dogs and conveyances required by handicapped persons.
18. Regular suppliers of outside services must be approved by
Building management, which may establish hours or other conditions for entrance
to the Building. Such suppliers include vendors of food, spring water, ice,
towels, barbering, shoe shining and other products and services.
X-0
00. Canvassing, soliciting and peddling of products or
services are prohibited in the Building, and tenants shall cooperate with
Landlord in attempting to prevent such acts in the Building.
20. Landlord may refuse admission to the Building outside of
normal hours to any person not having a pass issued by Landlord or not properly
identified, and may require all persons admitted to or leaving the Building
outside of normal business hours to register. Tenant's employees, agents and
visitors shall be permitted to enter and leave the Building whenever appropriate
arrangements have been previously made between Landlord and Tenant. Each tenant
shall be responsible for all persons for whom such person requests such
permission and shall be liable to Landlord for all acts of such persons. Any
person whose presence in the Building at any time shall, in the reasonable
judgment of Landlord, be prejudicial to the safety, character, reputation and
interests of the Building or its tenants may be denied access to the Building or
may be rejected therefrom. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the building. Landlord may require any
person leaving the Building with any package or other object to exhibit a pass
from the tenant from whose premises the package or object is being removed, but
the establishment and enforcement of such requirements shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. Landlord shall in no way be liable
to any tenant for injury or loss arising from the admission, exclusion or
ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule.
21. Tenant, at its sole cost and expense, shall cause the
Premises to be exterminated from time to time to the reasonable satisfaction of
the Building Management Office, and shall employ such exterminators therefor as
shall be approved by the Building Management Office.
22. Tenants shall not serve or permit the serving of alcoholic
beverages in the its premises unless Tenant shall have procured host liquor
liability insurance, issued by companies and in amounts reasonably satisfactory
to Landlord, naming Landlord and its managing agent as additional insureds.
23. The Building loading docks may be used only for loading
and unloading procedures. Tenants may not use the loading dock area for parking.
Tenants may not place any dumpsters at the loading docks or any other portion of
the Building without the prior written approval of Landlord.
24. No shutdowns of any Building systems will be permitted
without prior written approval of Landlord and supervision by the Building
engineer.
25. Tenant's contractors or vendors may not use any space
within the Building outside the Premises for storage or moving of materials or
equipment or for the location of a field office or facilities for the employees
of such contractors or vendors without obtaining Landlord's prior written
approval for each such use. Landlord shall have the right to terminate such use
and
E-3
remove all such contractor's or vendor's materials, equipment and other
property from such space, without Landlord being liable to tenant or to such
contractor or vendor, and the cost of such termination and removal shall be paid
by Tenant to Landlord.
26. Tenants are required to have a full service maintenance
contract covering their supplemental HVAC, Uninterrupted Power Supply (UPS) and
Automatic Transfer systems, and to provide copies of such contracts to the
Building management office.
27. The Building reserves the right to restrict the use of
certain materials (i.e., Omega sprinkler heads and piping manufactured in The
Republic of China) in the building based on notifications that declare the
materials unsafe.
28. Trucks using the Tenant Shipping Platforms on the ground
floor of the building, and the upper Floor Truck Lobbies will load and discharge
at the place or places thereat and therein as indicated by the duly authorized
representative of Landlord in charge of such operation.
29. Trucks using the Tenant Shipping Platforms on the ground
floor of the building, and the upper floor truck lobbies, will load and
discharge at the place or places thereat and therein as indicated by the duly
authorized representative of Landlord in charge of such operation.
30. Elevators for freight handling service will be operated
during Business Hours on Business Days, unless special arrangement is made with
Landlord for operation at other times.
31. The use of the private right of way and the truck
elevators will be subject to and under the reasonable direction and control of
the duly authorized representative of Landlord in charge of such operation. When
in the interest of continuity of service or in the interest of the common
service, Tenant's freight departing from or arriving at the building by truck
may at the direction of Landlord be handled over and through the Tenant Shipping
Platforms on the ground floor and the freight elevators. Landlord reserves the
right to direct such handling in lieu of truck elevator service.
32. In the interest of preserving the continuity of freight
elevator service, freight will not be floored upon the freight elevator, but
will at all times be handled and moved upon suitable vehicles of the indoor
industrial xxxxxxx type permitting such freight to be economically and
expeditiously wheeled on and off the freight elevators. Freight which cannot be
handled upon such equipment will be handled in such alternative manner as may be
approved by Landlord.
33. (a) The Tenant Shipping Platforms located on first or
ground floor of the Building are designed to accomplish the immediate transfer
and movement of freight between the freight elevators and trucks. The use of
such facility by Tenant or any of its agents, servants, employees,
representatives or contractors will be confined to such purpose, under the
reasonable
E-4
direction and control of the duly authorized representative of Landlord in
charge of such operation.
(b) No storage or holding of freight on such Tenant Shipping
Platforms awaiting the arrival of trucks, or awaiting transfer by Tenant from
such Tenant Shipping Platforms to the Premises, will be permitted. No
automobiles of Tenant or any Tenant Party may enter on or be stored in any
portion of the building, except in areas designated by Landlord, and provided
Tenant pays for such parking at rates designated by Landlord, its agents or
parking lessees.
(c) Any violation of this rule or disregard of directions
issued by Landlord will give Landlord the right to handle, transfer, remove or
store such freight in or to other premises in the building. When such handling,
transfer, removal or storage is performed by Landlord, and when it shall be
deemed necessary by Landlord to preserve the continuity of common service
provided by this facility, any and all expense will be at Tenant's sole cost and
expense. Landlord will not be responsible for any loss or damage which any such
freight may suffer by such handling, removing or storage.
34. Neither Tenant nor any Tenant Party will at any time be
permitted to operate any freight, passenger or truck elevator.
35. The Building is equipped with scuppers for carrying off
water which may result from sprinkler operation or other causes. Tenant shall
not, under any circumstances, deposit or permit to be deposited sweepings or any
other rubbish in such scuppers, and Tenant will keep the scuppers within the
Premises at all times free of any and all rubbish, sweepings, and other
obstructions of any nature whatsoever.
36. Tenant shall not, under any circumstances, permit the
accumulation of sweepings or any other rubbish in the expansion joints of the
Building, or in any other portions of the Building outside of the Premises, and
all such sweepings or rubbish shall be removed daily by Tenant in such manner as
Landlord shall direct. Tenant will keep the Building's expansion joints free of
any and all rubbish, sweepings and any other obstruction of any nature
whatsoever. Tenant will not place machinery or equipment in a position so that
such machinery or equipment straddles an expansion joint, or erect a partition
which intersects an expansion joint, unless one end of such machinery, equipment
or partition is free to permit the expansion and contraction of such expansion
joint.
37. If any electrical or telephone installations made or
operated by Tenant shall emit any electromagnetic interference, Tenant shall
immediately discontinue use of such installations until such electromagnetic
interference is eliminated to Landlord's satisfaction.
38. Tenant shall deliver to Landlord evidence that all
systems, equipment and installations used by Tenant in the Building containing
time- and date-related codes and internal programs, whether computerized or
otherwise, shall continue through the Term, including and beyond 11:59 p.m. on
December 31, 1999 (the "Millennium Date Change") without any material failure or
interruption and at substantially the same level of performance as would have
been
E-5
provided in the absence of the Millennium Date Change. Additionally, all of
Tenant's systems, equipment and installations shall be tested for operational
compatibility with the following dates: 2/29/2000 and 01/01/2001. Tenant shall
submit evidence of such compliance no later than 90 days following the
Commencement Date.
39. Landlord reserves the right at any time and from time to
time, to rescind, alter, waive, modify, add to or delete, in whole or in part,
any of these Rules and Regulations in order to protect the comfort, convenience
and safety of all tenants at the Building. Tenant shall not have any rights or
claims against Landlord by reason of non-enforcement of these rules and
regulations against any tenant, and such non-enforcement will not constitute a
waiver as to Tenant.
40. If there shall be any inconsistencies between the text of
the main body of the Lease and these Rules and Regulations, the provisions of
the Lease shall prevail.
E-6
EXHIBIT F
---------
APPROVED CONTRACTORS
--------------------
--------------------------------------------------------------------------------
CONSTRUCTION VENDOR LIST
--------------------------------------------------------------------------------
Xx. Xxxxx Xxxxxx Mr. Al Hot
President President
X.X. Xxxxxx Construction Co., Inc. Fast Track Construction
00 Xxxxx Xxxxxx 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10001
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxxxxx Xxxxxxxxxxx X. Xxxxxx
Executive Vice President Xxxx Xxxxxx & Sons, Inc.
HRH Construction Interiors, Inc. 00 Xxxx Xxxxxx
Xxx Xxxx Xxxxxx Xxx Xxxx, X.X. 00000
New York, N.Y. 10016 Tel: (000) 000-0000
Tel: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
Xx. Xxxxxx Xxxxx Xx. Xxxxx Xxxx
Ambassador Construction Co., Inc. Dominant Construction
00 Xxxx 00xx Xxxxxx 000 Xxxxx 00
Xxx Xxxx, X.X. 00000 Xxxxxxxxxx, N.Y. 10962
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xx. Xxxxx Xxxxxxx Xx. Xxxxxxx X. Xxxxxxx
Vice President Xxxxxxx Construction Co., Inc.
Tishman Construction Corp. 000 Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, X.X. 00000 New York, N.Y. 10014
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Xxxxxx XxXxxxxx Bovis Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx Xxx Xxxx Xxxx Builders Group
Xxx Xxxx, X.X. 00000 One Xxxx Xxxxxx, 0xx Xxxxx
Tel: (000) 000-0000 Xxx Xxxx, X.X. 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000
F-1
Xxxx Xxxxx
Westside Interiors Xxxxxx X. Xxxxx
000 Xxxxxxx Xxxx Regional Manager
Rock Tavern, N.Y. 12575 Gnome Group, Inc.
Tel: (000) 000-0000 000 0xx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxx, X.X. 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx
Xxxx Construction Corp.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
SUBCONTRACTORS
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
ACCESS FLOORING ARI PRODUCTS XXXXX XXXXXX
One Madison Street (000) 000-0000
Xxxx Xxxxxxxxxx, XX 00000 F (000) 000-0000
RAISED FLOOR INSTALLATION, INC. XXXX XXXXXXXXXX
00 Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxx, XX 00000 F (000) 000-0000
COMPUTER FLOORS, INC.
00 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxxx, XX 00000 F (000) 000-0000
APPLIANCES & ACCESSORIES GRINGER SALES XXXXXX XXXXXX
00 Xxxxx Xxxxxx (212) 475-2013
Xxx Xxxx, XX 00000 F (000) 000-0000
JENTEEN PARTNERS XXXXXXX XXXXXXX
00 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
AHC APPLIANCE CO. XXX TAU
000 Xxxxxx Xxxxxx (516) 569-1700
Xxxxxxx, XX 00000 F (000) 000-0000
SALES DIRECTION XXX XXXXXX
000 Xxxxxxx Xxxxx Xxxx (000) 000-0000
Xxxxxxx, XX 00000 F (000) 000-0000
ARCHITECTURAL METAL & GLASS LEXINGTON GLASS XXXXXXX XXXXXXX
00 Xxxxx 0xx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
F-2
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
METRALITE XXXX XXXXXXXXXXX
000-00 00xx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
F & F ARCH. GLASS & METALS XXXX XXXXXX
00 Xxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
CHECKER GLASS CORP. ANDY SHEER
0 Xxxxxxxxxx Xxxxxx (000) 000-0000
Xxxxxx Xxxx, XX 00000 F (000) 000-0000
CARPETING, VCT & BASE RESOURCE XXXXXX/WHITE XXXXX XXXXX
000 Xxxx 00xx Xxxxxx (212) 366-0666
Xxx Xxxx, XX 00000 F (000) 000-0000
CONSOLIDATED CARPET WORKSHOP XX XXXXXXXXXX
0000 Xxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
DUPONT FLOORING SYSTEM XXXXX XXXXXX
00 Xxxxxxx Xxxxxx (212) 376-5355
Xxx Xxxx, XX 00000 F (000) 000-0000
SHERLAND & XXXXXXXXXX XX XXXXXXX
000 0xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
CERAMIC TILE & STONE X. X. XXXXXXXX, INC. XXX XXXXXXXX
0000 Xxxxxxx Xxxxxx (000) 000-0000
Xxxxx, XX 00000 F (000) 000-0000
X. XXXXXXXXXX & SON, INC. XXXX XXXXXXXXXX
000 Xxxxxxx Xxxx. (516) 239-7893
Xxxxxx, XX 00000 F (000) 000-0000
NAVILLUS TILE INC. XXXXX X'XXXXXXXX
00-00 Xxxxxxxx Xxxx. (718) 784-0500
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
WILKSTONE XXXX XXXXXXXXX
000 00xx Xxxxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
CONCRETE, MASONRY & PLASTER EUROTECH MASONRY XXX XXXXXX
000 Xxxx 00xx Xxxxxx (212) 594-7474
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXXXX-XXXXXX CONT. INC. XXXX XXXXXX
00 Xxxx Xxxxxx (516) 847-0185
Xxxxxxxxxxx, XX 00000 F (000) 000-0000
NAVILLUS TILE INC. XXXXX X'XXXXXXXX
00-00 Xxxxxxxx Xxxx. (718) 784-0500
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
DEMOLITION PATRIOT CONTRACTING CORP. XXXX XXXXXXX
00-00 Xxxxx Xxxxxx (000) 000-0000
Xxxxxx Xxxx, XX 00000 F (000) 000-0000
F-3
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
LIBERTY CONTRACTING XXXXX XXXX
00 Xxxxx Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000 F (000) 000-0000
RITEWAY INTERNAL REMOVAL, INC. XXXXX XXXXXXX
00-00 00xx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
FORTUNE DEMOLITION XXX XXXXX
000 Xxx Xxxxxx (000) 000-0000
Xxxxxx Xxxx, XX 00000 F (000) 000-0000
DRYWALL & CARPENTRY XXXXXX PARTITIONS XXXXXXXXX XXXXXX
000 0xx Xxxxxx (212) 695-5575
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXX PARTITIONS XXXX XXXXXXXXX
00 Xxxxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXXXX ASSOCIATES XXX XXXXXXX
000 Xxxxxxxx Xxxx (516) 746-1800
Xxxxxx Xxxx Xxxx, XX 00000 F (000) 000-0000
NEW AMSTERDAM INTERIORS, INC. XXXXX XxXXXXXXXX
000 Xxxxx Xxxxxx (212) 714-3543
Xxx Xxxx, XX 00000 F (000) 000-0000
ELECTRICAL & FIRE ALARM FOREST ELEC. CORP. XXXX XXXXXXX
2 Penn Plaza (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
X.X. XXXXXXX, INC. XXXX XXXXXXX
000 Xxxx Xxxxxx Xxxxx (212) 686-6700
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXX ELECTRIC XXXXXXX XXXXXXX
000 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxx Xxxx, XX 00000 F (000) 000-0000
UNITY ELECTRIC XXXXXXX XXXXXXXXX
00-00 Xxxxx Xxxxxx Xxxx (718) 539-4300
Xxxxxxxx, XX 00000 F (000) 000-0000
FABRIC PANELS WALLCOUSTICS XXXXX XXXXX
000 Xxxxxx Xxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
LENCORE ACOUSTICS CORP. XXXXXXX XXXXXX
0000 Xxxxxxx Xxxxxx (000) 000-0000
Xxxxxxx, XX 00000 F (000) 000-0000
NOVAWALL-REGIONAL WALL SYSTEMS XXXXXX XXXX
0000 Xxxxxxx Xxxxxx (000) 000-0000
Xxxxx, XX 00000 F (000) 000-0000
F-4
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
XXX XXXXXX XXXX
00-00 Xxxxxx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
FOLDING PARTITION FLEX-WALL SYSTEMS XXXX XXXXXXX
000 Xxxxx Xxxxxx Xxxxxx (516) 561-3900
Xxxxxx Xxxxxx, XX 00000 F (000) 000-0000
MODERNFOLD/STYLES, INC. XXXX XXXX
000 Xxxxx Xxx Xxxxx Xxxxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
NATIONAL FOLDING WALL XXXXXX XXXXX
X.X. Xxx 000 (908) 727-0200
Bordentown Ave./Cheesequake F (000) 000-0000
Xxxxxxxxx, XX 00000
HVAC REACT INDUSTRIES, INC. XXXX XXXXXXXXX
0000 Xxxxxx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
BP AIR XXX XXXXXXX
000 Xxxxxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000 F (000) 000-0000
XXXXX A/C CORP. XXXXX XXXXXXXXX
0-00 00xx Xxxxxx (718) 392-6000
Log Xxxxxx Xxxx, XX 00000 F (000) 000-0000
KABACK ENTERPRISES XXXXXX XXXXXX
00 Xxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
B&G MECHANICAL XXXXX XXXXXX
Xxxxx, XX 00000 (000) 000-0000
HARDWARE SECURE DOOR & HARDWARE XXXX XXXXXX
000 00xx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
XXXXXXXXX & XXXXXXXX XXX XXXXXXXX
00 Xxxx Xxx (212) 233-4651
Xxx Xxxx, XX 00000 F (000) 000-0000
AAA LOCKSMITH XXXXX
00 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
HOLLOW METAL ACME STEEL DOOR CORP. XXX XXXXXX
000 Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
SECURE DOOR & HARDWARE XXXX XXXXXX
000 00xx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
F-5
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
XXXXXXXXX & XXXXXXXX XXX XXXXXXXX
00 Xxxx Xxx (212) 233-4651
Xxx Xxxx, XX 00000 F (000) 000-0000
POST ROAD IRON WORKS XXXXX XXXXXX
000 Xxxx Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
LATH & ACOUSTICS XXXXXXX ASSOCIATES XXX XXXXXXX
129-09 26th Avenue (718) 886-7100
Xxxxxx, XX 00000 F (000) 000-0000
SUPERIOR ACOUSTICS, INC. XXX XXXXXXXX
000 Xxxxxx Xxxx Xxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
NATIONAL ACOUSTICS XXX XXXXXXX
000 X. 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXXX PARTITION XXXXXXXXX XXXXXX
000 0xx Xxxxxx (212) 695-5575
Xxx Xxxx, XX 00000 F (000) 000-0000
LIGHT FIXTURES JDC LIGHTING XXXXX XXXXXXX
00 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXXXX LIGHTING XXXXX XXXXXXX
000-00 Xxxx 00xx Xxxxxx (212) 255-8555
Xxx Xxxx, XX 00000 F (000) 000-0000
HALLMARK ELECTRICAL SUPPLIES CORP. XXXX X. XXXXXX
000 Xxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
PROJECT LIGHTING XXXXX XXXXXXXXXX
0000 Xxxxxxx Xxxxx (000) 000-0000
Xxxxxxxx, Xxx., XX 00000 F (000) 000-0000
MILLWORK XXXXXXX WOODWORKING XXXX XXXXXXXX
0000 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxx, XX 00000 F (000) 000-0000
MIELACH / WOODWORK XXXXX XXXXXXX
0 Xxxxxx Xxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
ISLAND ARCH. MILLWORK XXXXXX XXXXXXX
0000 Xxxxxx Xxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000 F (000) 000-0000
XXXX/XXXXXX XXXXX XXXXXX
000 Xxxx 000xx Xxxxxx (000) 000-0000
Xxxxx, XX 00000 F (000) 000-0000
F-6
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
PLUMBING ABBA PLUMBING CORP. XXXX XXXXXXXX
00-00 00xx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
LAB PLUMBING XXXXXXX XXXXX
000 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
PAR PLUMBING XXXXX XXXXXX
00 Xxxxx Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
X.X. XXXXXX XXXXX XXXXXX
0 Xxxx Xxxxx (000) 000-0000
Xxx Xxxxx, XX 00000 F (000) 000-0000
PAINTING & WALLCOVERING BOND PAINTING XXX SPRECHTER
00 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
711 N.Y. PAINTING & DECORATING CO., INC. XXXX XXXXXXX
00-00 00xx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
XXXXXX XXXXX PAINTING COMPANY RICH GOETINGER
000 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
PROJECTION SCREENS JENTEEN PARTNERS ART DOVER
00 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
GRINGER SALES XXXXXX XXXXXX
00 Xxxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
RAVEN SCREEN CORP. XXXXX XXXX
000 Xxxxxx Xxxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
SPRINKLER XXXX SPRINKLER XXXXX XXXXXX
000 Xxxxxxx Xxxx (516) 593-2000
Xxxxxxxx, XX 000000 F (000) 000-0000
SIRINA FIRE PROTECTION CORP. XXXX XXXXXX
000 Xxxxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000 F (000) 000-0000
ABBA PLUMBING CORP. XXXX XXXXXX
00-00 00xx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
PREFERRED MECHANICAL XXXX XXXXXX
895 BROADWAY 460-9670
New York, N.Y. 10003 F 387-9298
F-7
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
STRUCTURAL STEEL XXXXXX IRONWORKS XXXX XXXXXXXXX
000-000 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
XXXXXXX STEEL XXXXXX XXXXXX
000 Xxxx Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
POST ROAD IRON WORKS XXXXX XXXXXX
000 Xxxx Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxx, XX 00000 F (000) 000-0000
TARRANT STEEL INC. XXXX XXXXX
000 Xxx Xxxxxx (000) 000-0000
Xxxxxx, XX 00000
TOILET PARTITION GRINGER SALES XXXXXX XXXXXX
00 Xxxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
JENTEEN PARTNERS XXXXXXXXX XXXXXX
00 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxx, XX 00000 F (000) 000-0000
XXXXXXXXXXXXX XXXXX XXXXXXXXXXX
XX Xxx 0000 (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
LEJAC METAL SPECIALTIES XXXX
000 Xxxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000
TEL/DATA CABLING US INFORMATION SYSTEMS (USIS) XXX XXXX
00 Xxxxx Xxxx Xxxx (000) 000-0000
(CWA) Xxxxx, XX 00000 F (000) 000-0000
(IF REQUIRED) LINEAR TECHNOLOGIES XXXXX XXXXX
00 Xxxx 00xx Xxxxxx - 0xx xxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
INTELLIGENT BUILDING SYSTEMS XXXXX XXXXXXX
000 Xxxx 00xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
WINDMILL COMMUNICATIONS XXX XXXX
00 Xxxx 00xx Xxxxxx - 00xx xxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
WOOD FLOORING HOBOKEN WOODWORK XXXXX XXXXXXXX
000 0xx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
METRO FLOORING XXXXXX XXXXXXX
000-00 X. Xxxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
F-8
WORK CATEGORY SUB-CONTRACTOR NAME ESTIMATING CONTACT
------------- ------------------- ------------------
XXXXXXX XXXX XXXXXXX
000 Xxxxxx Xxxxxx (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
DESIGNED FLOORING XXX XXXXXX
000 Xxxxxxx Xxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
WINDOW TREATMENT DFB (TRAK TEX) XXXXXX XXXX
00-00 Xxxxxx Xxxxxx (000) 000-0000
Xxxx Xxxxxx Xxxx, XX 00000 F (000) 000-0000
INTERNATIONAL BLINDS XXXXX X. XXXXX
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000 (000) 000-0000
Xxx Xxxx, XX 00000 F (000) 000-0000
LVC BLINDS XXXX XxxXXXXXX
000 Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxxxx, XX 00000 F (000) 000-0000
CITY VIEW BLINDS XXXXX GOLD
000 Xxxxxx Xxxxxx (000) 000-0000
Xxxxxxxx, XX 00000 F (000) 000-0000
F-9
EXHIBIT G
---------
CERTIFICATE OF OCCUPANCY
------------------------
[Exhibit on file]
G-1
EXHIBIT H
---------
FORM OF NON-DISTURBANCE AGREEMENT
---------------------------------
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
STROOCK & STROOCK & XXXXX LLP
000 XXXXXX XXXX
XXX XXXX, XXX XXXX 00000-0000
ATTN: XXXXX XXXXXXX, ESQ.
-------------------------------------------------------------------------------
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
(this "Agreement"), is entered into as of the ___ day of October, 1999, by and
among XXXXXXXXXXXXXX.XXX LLC, a Delaware limited liability company ("Tenant"),
111 CHELSEA LLC, a Delaware limited liability company ("Landlord"), and 111 8TH
FUNDING COMPANY, a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, this Agreement affects the Property described in
Exhibit A attached hereto;
WHEREAS, the terms "Tenant", "Landlord", "Lender", "Premises",
"Leases", "Property", "Loan", "Assignment of Leases and Rents", "Note", and
"Mortgage" are defined in the Schedule of Definitions attached hereto as Exhibit
B;
WHEREAS, Landlord and Tenant have entered into the Leases
covering the Premises in the Property;
WHEREAS, Lender is the holder of the Note evidencing the Loan,
and secured by, inter alia, the Mortgage covering the Property;
H-1
WHEREAS, the parties hereto desire to expressly confirm the
subordination of the Leases to the Mortgage and the Assignment of Leases and
Rents; and
WHEREAS, Tenant has requested that Lender agree not to disturb
Tenant's possessory rights in the Premises in the event Lender should foreclose
the Mortgage or the Assignment of Leases and Rents or Lender should otherwise
come into possession of the Premises and, provided that Tenant is not then in
default under the Leases beyond applicable grace and notice periods and provided
further that Tenant attorns to Lender or the purchaser at any foreclosure sale
of the Property or purchaser in lieu of foreclosure, Lender is willing to agree
to such request, upon and subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and of other good and valuable consideration, the parties agree
as follows:
1. Subordination; Consent.
Subject to the provisions of this Agreement, anything to the
contrary in the Leases notwithstanding, the Leases and the leasehold estates
created thereby, and all of Tenant's rights thereunder, are and shall be and
shall at all times remain subject, subordinate and inferior to the Mortgage and
the Assignment of Leases and Rents and all rights of Lender thereunder and to
any and all renewals, revisions, modifications, consolidations, replacements and
extensions thereof. Lender's execution of this Agreement shall be deemed to
satisfy any requirement in the Mortgage that Lender consent to the execution of
the Ninth Floor Lease and the Assignment.
2. Acknowledgment and Agreement by Tenant.
Tenant acknowledges and agrees that:
(a) Tenant has been advised of the existence of the Mortgage
and the agreements evidencing and securing the Loan; and
(b) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either immediately or
after the lapse of time, to terminate either Lease, to claim a partial or total
eviction, to withhold any rent, and/or to otherwise refuse to meet any of
Tenant's obligations to perform under either Lease, Tenant will not exercise any
such right:
(i) until it has given written notice of such act or
omission to Lender; and
(ii) until the same period of time, if any, as is
given to Landlord under such Lease to cure such act or omission and an
additional period of time of thirty (30) days shall have elapsed
following Lender's receipt of such notice; provided, however, that with
respect to any default, other than a monetary default, so long as
Lender shall be acting reasonably to remedy such default, such thirty
(30) day period shall be extended by the number of days reasonably
required for Lender to obtain possession of the Property and to cure
such default.
H-2
(c) Tenant has notice that the Leases and the rents and all
other sums due thereunder have been assigned or are to be assigned to Lender as
security for the Loan secured by the Mortgage and the Assignment of Leases and
Rents. In the event Lender notifies Tenant of the occurrence of a default under
the Mortgage and demands that Tenant pay its rents and all other sums due or to
become due under the Leases directly to Lender, Tenant shall honor such demand
and pay its rent and all other sums due under the Leases directly to Lender or
as otherwise authorized in writing by Lender. Landlord hereby irrevocably
authorizes Tenant to make the foregoing payments to Lender upon such notice and
demand.
(d) Tenant shall send a copy of any notices regarding monetary
issues, any notices regarding material non-monetary issues, and all notices of
termination and default given to Landlord under either Lease to Lender at the
same time and in the same manner such notice is sent to Landlord.
(e) Within ten (10) days after Lender's request, Tenant shall
deliver to Lender and/or to any person designated by Lender, estoppel
certificates executed by Tenant, in recordable form, certifying (if such be the
case) that each Lease is in full force and effect, the date and amount of
Tenant's most recent payment of rent under each Lease, that there are no
defenses or offsets outstanding under either Lease (or stating those claimed by
Tenant, as the case may be) and such other information about Tenant or the
Leases as Lender may reasonably request.
(f) This Agreement satisfies any condition or requirement in
the Leases relating to the granting of a nondisturbance agreement.
(g) Anything in the Leases to the contrary notwithstanding, in
the event that Lender shall acquire title to, or shall take possession of, the
Premises or the Property, Lender shall have no obligation, nor incur any
liability, beyond Lender's then interest, if any, in the Property and Tenant
shall look exclusively to such interest of Lender, if any, in the Premises or
the Property for the payment and discharge of any obligations imposed upon
Lender hereunder or under the Lease and Lender is hereby released and relieved
of any other obligations hereunder and under the Lease. Tenant agrees that with
respect to any money judgment which may be obtained or secured by Tenant against
Lender, Tenant shall look solely to the estate or interest owned by Lender in
the Premises or the Property and the rental income therefrom paid by Tenant to
Lender, and Tenant shall not collect or attempt to collect any such judgment out
of any other assets of Lender or Lender's shareholders, principals, officers,
directors, agents or employees.
3. Nondisturbance, Attornment and New Lease.
(a) In the event Lender shall come into possession of
or acquire title to either or both Premises as a result of the enforcement or
foreclosure of the Mortgage, the Note or the Assignment of Leases and Rents, or
by means of the delivery to Lender of a deed-in-lieu of foreclosure, or as a
result of any other means:
(i) Lender agrees that Tenant's rights and
obligations under the Leases (subject to the terms hereof) shall not be
affected nor shall Tenant be disturbed in its
H-3
possession of the Premises for any reason other than one which would
entitle Landlord to terminate the Leases or either of them, under their
terms or at law or in equity, or would cause, without any further
action by Landlord, the termination of the Leases or either of them, or
would entitle Landlord to dispossess the Tenant from the Premises;
provided, however, that at the time Lender comes into possession of, or
acquires title to, the Premises, Tenant is not in default under either
Lease beyond applicable grace and notice periods, which default would
cause, without any further action of Landlord, the termination of such
Lease, or would entitle Landlord to dispossess Tenant from the
Premises; and
(ii) Tenant shall be bound to Lender under all of the
terms, covenants and conditions of the Leases for the balance of the
term thereof remaining and any extensions or renewals thereof which may
be effected in accordance with any option therefor in the Leases, with
the same force and effect as if Lender were the landlord under the
Leases, and Tenant does hereby attorn to Lender as its landlord, said
attornment to be effective and self-operative without the execution of
any further instruments on the part of any of the parties hereto
immediately upon Lender coming into possession of, or acquiring title
to, the Premises. Tenant agrees, however, upon the election of and
written demand by Lender, within sixty (60) days after Lender receives
title to or acquires possession of the Premises, as the case may be, to
execute an instrument in confirmation of the foregoing provisions,
reasonably satisfactory to Lender, in which Tenant shall acknowledge
such attornment and shall set forth the terms and conditions of its
tenancy.
(b) In the event any person or entity other than Lender shall
come into possession of or acquire title to the Premises as a result of the
enforcement or foreclosure of the Mortgage, the Note or the Assignment of Leases
and Rents, or in the event that Landlord conveys its estate in the Premises to
any person or entity other than Lender, or in the event that Landlord's estate
in the Premises passes to a person or entity other than Lender by operation of
law or any other means (such person or entity being referred to hereinafter as a
"Successor Owner"), then in any of said events:
(i) Tenant's rights and obligations under the Leases
(subject to the terms hereof) shall not be affected nor shall Tenant be
disturbed in its possession of the Premises by Successor Owner for any
reason other than one which would entitle Landlord to terminate the
Leases or either of them, under their terms or at law or in equity, or
would cause, without any further action by Landlord, the termination of
the Leases or either of them, or would entitle Landlord to dispossess
Tenant from the Premises; provided, however, that at the time Successor
Owner comes into possession of, or acquires title to, the Premises,
Tenant is not in default under either Lease beyond applicable grace and
notice periods, which default would cause, without any further action
of Landlord, the termination of such Lease, or would entitle Landlord
to dispossess Tenant from the Premises; and
(ii) Tenant shall be bound to Successor Owner under
all of the terms, covenants and conditions of the Leases for the
balance of the term thereof remaining and any extensions or renewals
thereof which may be effected in accordance with any option
H-4
therefor in the Leases, with the same force and effect as if Successor
Owner were the Landlord under the Leases, and Tenant does hereby attorn
to Successor Owner as its Landlord, said attornment to be effective and
self-operative without the execution of any further instruments on the
part of any of the parties hereto immediately upon Successor Owner
coming into possession of, or acquiring title to, the Premises. Tenant
agrees, however, upon the election of Successor Owner, within sixty
(60) days after Successor Owner receives title to the Premises, to
execute an instrument in confirmation of the foregoing provisions,
reasonably satisfactory to Successor Owner, in which Tenant shall
acknowledge such attornment and shall set forth the terms and
conditions of its tenancy.
(c) In the event Lender or any Successor Owner shall come into
possession of or acquire title to the Premises, as aforesaid, neither Lender nor
Successor Owner shall be:
(i) liable for any act, omission or default of any
prior landlord under the applicable Lease (including, without
limitation, Landlord); provided, however, that nothing contained herein
shall be deemed to relieve Lender or Successor Owner of any liability
arising by reason of Lender's or Successor Owner's acts or omissions
from or after the date that Lender or Successor Owner shall become
landlord under such Lease, and Lender or Successor Owner, as landlord
under such Lease, shall be obligated to properly maintain, operate and
repair the Premises in accordance with the provisions of such Lease,
notwithstanding the fact that any condition requiring such maintenance
or repair may have arisen prior to the date of any such foreclosure, or
assignment in lieu of foreclosure, of the Mortgage; or
(ii) subject to any offsets or defenses which Tenant
might have against any prior landlord under such Lease (including,
without limitation, Landlord); or
(iii) bound by any rent or additional rent which
Tenant might have paid for more than the then current month to any
prior landlord under such Lease (including Landlord) or by any security
deposit, cleaning deposit or other prepaid charge which Tenant might
have paid in advance to any prior landlord under such Lease (including,
without limitation, Landlord), except to the extent any such security
deposit or other sum shall actually have been received by Successor
Owner; or
(iv) bound by any amendment or modification of such
Lease made without Lender's written consent, in accordance with the
terms of the Mortgage; or
(v) bound by any agreement of any landlord under such
Lease (including, without limitation, Landlord) with respect to the
completion of any improvements at the Property or the Premises or for
the payment or reimbursement to Tenant of any contribution to the cost
of the completion of any such improvements; provided, however, that:
(A) with respect to the Ninth Floor Lease,
if Successor Owner fails to commence and thereafter pursue the
completion of any such improvements, or fails to make any such payment
or reimbursement when due, in either case relating to
H-5
Space B or Space C (as defined in the Lease), after notice to do so
from Tenant specifying the date when the commencement of such
completion, payment or reimbursement is due and accompanied by
appropriate backup information, then, as Tenant's sole and exclusive
remedy, Tenant shall have the right to terminate the Ninth Floor Lease
solely with respect to such Space, by notice to Successor Owner given
no later than thirty (30) days after the date when the commencement of
such completion, payment or reimbursement is due, such termination to
be effective thirty (30) days after the date such notice is given, upon
which date the Ninth Floor Lease shall be deemed automatically amended
by the deletion of such Space from the Premises, Fixed Rent and
Additional Rent shall be reduced in the proportion which the area of
such Space bears to the total area of the Premises immediately prior
thereto, and Tenant shall promptly vacate and surrender such Space to
Successor Owner. Notwithstanding anything to the contrary contained
herein, if Successor Owner shall commence such completion, payment or
reimbursement at any time within thirty (30) days following Successor
Owner's receipt of such notice by Tenant, such termination shall be
void and of no force and effect, and Tenant shall have no further right
to terminate the Ninth Floor Lease with respect to such Space pursuant
to this Section 3(c)(v); and
(B) As of the date hereof, B&N Inc. (as
defined in Exhibit B hereto) has not received payment of a construction
allowance in the amount of $1,275,720 pursuant to a letter agreement
dated June 30, 1997 modifying the Eleventh Floor Lease (the
"Construction Claim"), and B&N Inc. has demanded payment therefor from
Landlord. Notwithstanding anything contained in this Agreement to the
contrary, by entering into this Agreement, Tenant or B&N Inc., as the
case may be, does not herein waive or release any claims, rights,
causes of action or defenses, including without limitation Tenant's or
B&N Inc., as the case may be, right to commence any action or
proceeding to recover the Construction Claim which may be available to
Tenant or B&N Inc., as the case may be, against any person.
(d) New Lease. Tenant agrees, upon demand of Lender or any
Successor Owner which shall have come into possession or acquired title to the
Premises, as aforesaid, to execute a lease of either Premises (as tenant) with
Lender or Successor Owner (as landlord) upon the same terms and conditions as
the applicable Lease between Tenant and Landlord, which lease shall cover any
unexpired term of such Lease existing at the time of such conveyance of title.
4. Acknowledgment and Agreement by Landlord.
Landlord, as landlord under the Leases and mortgagor under the
Mortgage, acknowledges and agrees for itself and its heirs, successors and
assigns, that:
(a) This Agreement does not: (i) constitute a waiver by Lender
of any of its rights under the Mortgage and the Assignment of Leases and Rents
and/or (ii) in any way release Landlord from its obligations to comply with the
terms, provisions, conditions, covenants, agreements and clauses of the Mortgage
and the Assignment of Leases and Rents.
H-6
(b) The provisions of the Mortgage and the Assignment of
Leases and Rents remain in full force and effect and must be complied with by
Landlord.
(c) In the event Lender notifies Tenant of the occurrence of
any default under the Mortgage and demands that Tenant pay its rent and all
other sums due under the Leases or either of them directly to Lender, Landlord
acknowledges and agrees that Tenant shall have the right and obligation to pay
all such rent and other sums due under the Leases directly to Lender or as
otherwise authorized in writing by Lender. Lender agrees to send Landlord copies
of all such notices given to Tenant pursuant to this Section 4(c).
(d) Landlord shall not agree to any amendment or modification
of the Leases without Lender's prior written consent, in accordance with the
terms of the Mortgage, which consent may be given or withheld in Lender's sole
and absolute discretion.
5. Miscellaneous.
(a) Any notice, demand, consent, approval, direction,
agreement or other communication (a "Notice") required or permitted hereunder or
under any other documents in connection herewith shall be in writing and shall
be addressed to the parties hereto at their addresses shown on Exhibit B hereto.
All Notices shall be (i) personally delivered (including delivery by Federal
Express or other comparable nation-wide overnight courier service) to the
aforementioned addresses, in which case they shall be deemed delivered on the
date of delivery or the first business day thereafter if delivered other than on
a business day or after 5:00 p.m. New York City time) to said addresses; (ii)
sent by certified mail, return receipt requested, in which case they shall be
deemed delivered on the delivery date shown on the receipt unless delivery is
refused or delayed by the addressee in which event they shall be deemed
delivered on the date of deposit in the U.S. Mail; or (iii) sent by means of a
facsimile transmittal machine, in which case they shall be deemed delivered on
the date of receipt with receipt thereof confirmed by telephonic acknowledgment
or first business day thereafter if delivered other than on a business day or
after 5:00 p.m. New York City time.
(b) This Agreement shall bind and inure to the benefit of all
of the parties hereto, their successors and assigns; provided, however, that in
the event of the assignment or transfer of the interest of Lender hereunder, all
obligations and liabilities of Lender under this Agreement shall terminate, and
thereupon all such obligations and liabilities shall be the responsibility of
the party to whom Lender's interest is assigned or transferred; and provided
further that the interest of Tenant under this Agreement may not be assigned or
transferred.
(c) This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
H-7
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
111 8TH FUNDING COMPANY, Lender
a Delaware corporation
By:___________________________
Name:
Title:
XXXXXXXXXXXXXX.XXX LLC, Tenant
a Delaware limited liability company
By:___________________________
Name:
Title:
111 CHELSEA LLC, Landlord
a Delaware limited liability company
By: Taconic Chelsea Holdings LLC,
a Delaware limited liability company,
its managing member
By: Taconic SL Principals LLC,
a Delaware limited liability company,
its managing member
By:___________________________
Name: Xxxx X. Xxxxxxx
Title: Member
H-8
ACKNOWLEDGMENTS
---------------
COUNTY OF __________________ )
ss.:
STATE OF____________________ )
On this ___ day of October in the year 1999 before me, the
undersigned, a notary public in and for said State, personally appeared
___________ __________________________, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
-------------------------
Notary Public
COUNTY OF __________________ )
ss.:
STATE OF____________________ )
On this ___ day of October in the year 1999 before me, the
undersigned, a notary public in and for said State, personally appeared
___________ __________________________, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
-------------------------
Notary Public
H-9
COUNTY OF __________________ )
ss.:
STATE OF____________________ )
On this ___ day of October in the year 1999 before me, the
undersigned, a notary public in and for said State, personally appeared
___________ __________________________, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her capacity, and that by his/her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
-------------------------
Notary Public
H-10
EXHIBIT A
---------
LEGAL DESCRIPTION OF PROPERTY
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of Xxxx
00xx Xxxxxx and the westerly side of Eighth Avenue;
RUNNING THENCE westerly along the northerly side of West 15th Street, 800 feet
to the easterly side of Ninth Avenue;
THENCE northerly along the easterly side of Ninth Avenue, 206 feet 6 inches to
the southerly side of Xxxx 00xx Xxxxxx;
THENCE easterly along the southerly side of West 16th Street, 800 feet to the
westerly side of Eighth Avenue; and
THENCE southerly along the westerly side of Eighth Avenue, 206 feet 6 inches to
the northerly side of West 15th Street, the point of place of BEGINNING.
A-1
EXHIBIT B
---------
SCHEDULE OF DEFINITIONS
"Lender" means 111 8th Funding Company, a Delaware
corporation. All notices to Lender shall be sent to:
X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. __________
Facsimile: (212) 837-____
and a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
"Assignment of Leases and Rents" means an Assignment of Leases
and Rents, dated as of July 9, 1999, encumbering the Property, executed by
Landlord, as assignor, to Lender, as assignee, as the same may be amended,
modified or otherwise altered, securing repayment of the Loan evidenced by the
Note and securing certain other obligations, recorded or to be recorded in the
Office of the City Register for New York County (the "Register's Office").
"Mortgage" means a Mortgage and Security Agreement and
Assignment of Leases and Rents, dated as of July 9, 1999, encumbering the
Property, executed by Landlord, as Mortgagor, to Lender, as Mortgagee, as the
same may be amended, modified, extended, consolidated, split or restated,
securing repayment of the Loan evidenced by the Note and securing certain other
obligations, recorded or to be recorded in the Register's Office.
"Landlord" means 111 Chelsea LLC, a Delaware limited liability
company. All notices to Landlord shall be sent in accordance with the terms of
the Lease.
"Leases" means, collectively, (i) that certain lease (the
"Ninth Floor Lease"), dated as of October 1, 1999, between Landlord and Tenant,
covering the Premises, and (ii) that certain Agreement of Lease, dated as of
June 30, 1997, between Landlord's predecessor-in-interest, P.A. Building Company
("PA") as landlord, and Tenant's predecessor-in-interest, Xxxxxx & Xxxxx, Inc.
("B&N Inc."), as tenant, as amended by (i) letter agreement of even date
therewith, between PA and B&N Inc., (ii) letter agreement, dated July 1, 1997,
between PA and B&N Inc. (iii) Modification of Lease Agreement dated as of
January 1998, between Landlord and B&N Inc. and (iv) Amendment of Lease dated as
of September 1, 1998, between Landlord and B&N Inc., and as further amended by
Assignment, Assumption and Consent Agreement and Amendment to Lease, dated as of
October 1, 1999, among Landlord, B&N Inc. and Tenant (the "Assignment"),
B-1
pursuant to which the tenant's interest in the Eleventh Floor Lease was assigned
to Tenant (as so amended and assigned, the "Eleventh Floor Lease").
"Loan" means a first mortgage loan from Lender to Landlord in
the original principal amount of $225,000,000.00, which Loan is evidenced by the
Note and secured by the Mortgage and by the Assignment of Leases and Rents.
"Note" means that certain Note executed by Landlord in favor
of Lender dated as of July 9, 1999 in the original principal amount of
$225,000,000.00, as the same may be amended, modified, extended, consolidated,
split or restated.
"Premises" means, collectively, (i) certain space (the "Ninth
Floor Space") consisting of up to approximately 90,140 square feet on the ninth
(9th)) floor of the improvements which are located upon the Property, as more
fully described in the Ninth Floor Lease, and (ii) certain space (the "Eleventh
Floor Space") consisting of approximately 76,654 Rentable Square Feet on the
eleventh (11th) floor of the improvements which are located upon the Property,
as more fully described in the Eleventh Floor Lease.
"Property" means the real property commonly known as 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and more particularly described in
Exhibit A to the Agreement to which this Schedule is attached, together with the
improvements thereon.
"Tenant" means xxxxxxxxxxxxxx.xxx llc, a Delaware limited
liability company. All notices to Tenant shall be sent in accordance with the
terms of the Leases.
B-2
EXHIBIT I
---------
ROOF SPACE
----------
The roof plan which follows is intended solely to identify the general outlines
of the Roof Space and should not be used for any other purpose. All areas,
dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
[Diagram Exhibit]
I-1
EXHIBIT J
---------
ARTICLE 29 SPACE
----------------
The floor plan which follows is intended solely to identify the general outlines
of the Article 29 Space and locations are approximate, and any physical
conditions indicated may not exist as shown.
[Diagram Exhibit]
J-1
EXHIBIT K
---------
SECTION 2.3 OCCUPANCIES
-----------------------
---------------------------------------------------------------------------------------------------------------------
SPACE AS AREA (SEE
INDICATED ATTACHED TERMINATION DATES COMMENTS
IN LEASE PLAN) TENANT
---------------------------------------------------------------------------------------------------------------------
SPACE A M CBS 9/30/99 An executed Termination Agreement gives
K Landlord a right to terminate the lease
upon 30 days written notice to Tenant.
Landlord delivered notice to the tenant on
August 23, 1999, designating September 30,
1999 as the termination date.
----------------------------------------------------------------------------------------------------
L Xxxxx & Tout 9/28/99 Landlord has the right to terminate the
sublease on 60 days written notice.
Landlord delivered notice to the tenant
on July 30, 1999, designating September
28, 1999 as the termination date.
---------------------------------------------------------------------------------------------------------------------
SPACE B B Frontier Global 12/31/99 Landlord has certain relocation rights
Center upon 60 days prior written notice to the
tenant. Pursuant to a Termination
Agreement, the tenant must surrender the
space as of December 31, 1999 and relocate
to the 2nd Floor.
---------------------------------------------------------------------------------------------------
C Vacant NA Currently vacant
---------------------------------------------------------------------------------------------------
D The Effects House 11/30/99 Lease expiration date
---------------------------------------------------------------------------------------------------
E Vacant NA Currently vacant
---------------------------------------------------------------------------------------------------------------------
SPACE X X CBS (Office Space) 5/31/00 Lease expiration date
---------------------------------------------------------------------------------------------------------------------
K-1
EXHIBIT L
---------
SECTION 30.2 OCCUPANCIES
------------------------
-------------------------------------------------------------------------------------------------------
AREA (SEE APPROXIMATE
ATTACHED PLAN) RENTABLE SQUARE
TENANT FEET LEASE EXPIRATIONS
-------------------------------------------------------------------------------------------------------
A Xxxxx & Tout 35,000 12/31/04
-------------------------------------------------------------------------------------------------------
F BT North America 18,000 12/31/00
-------------------------------------------------------------------------------------------------------
G Knight Maintenance 6,500 09/30/07
-------------------------------------------------------------------------------------------------------
H Urban Office Products 4,500 12/31/00
-------------------------------------------------------------------------------------------------------
I Xxxx Xxxxxxx & Xxxx 1,600 11/30/00
-------------------------------------------------------------------------------------------------------
L-1
EXHIBIT M
---------
[Intentionally Deleted]
-----------------------
M-3-1
EXHIBIT N
---------
EXISTING EMERGENCY STAIRWELL
----------------------------
[Diagram Exhibit]
N-1
EXHIBIT O
---------
FORM OF AGREEMENT AND GUARANTY
------------------------------
AGREEMENT AND GUARANTY (this "Guaranty") made as of October
___, 1999, by XXXXXXXXXXXXXX.XXX inc., a Delaware corporation with its principal
office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Guarantor") to 000 XXXXXX
XXXXXX LLC ("Landlord"), a Delaware limited liability company with an office c/o
Taconic Investment Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS:
A. Landlord has been requested by xxxxxxxxxxxxxx.xxx llc, a
Delaware limited liability company with its principal office at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant"), to enter into an Agreement of
Lease, dated as of the date hereof (the "Lease"), whereby Landlord would lease
to Tenant, and Tenant would hire and rent from Landlord, a portion of the ninth
(9th) floor, as more particularly described in the Lease (the "Premises"), in
the building known as 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
B. Guarantor owns, directly or indirectly, certain equity
interests in Tenant, and will derive substantial benefit from the execution and
delivery of the Lease.
C. Guarantor acknowledges that Landlord would not enter into
the Lease unless this Guaranty accompanied the execution and delivery of the
Lease.
NOW, THEREFORE, in consideration of the execution and delivery
of the Lease and of other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged by Guarantor:
1. DEFINITIONS. Defined terms used in this Guaranty and not
otherwise defined have the meanings assigned to them in the Lease.
2. COVENANTS OF GUARANTOR.
(a) Guarantor absolutely, unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety: (i) the full and
prompt payment of all Fixed Rent, Additional Rent and all other sums and charges
payable by Tenant under the Lease, and (ii) the full and timely performance of
all covenants, terms, conditions, obligations and agreements to be performed by
Tenant under the Lease (all of the obligations described in clauses (i) and
(ii), collectively, the "Obligations"). If an Event of Default shall occur under
the Lease, Guarantor will, without notice or demand, promptly pay and perform
all of the Obligations, and pay to Landlord when due all Fixed Rent and
Additional Rent payable by Tenant under the Lease, together with all damages,
costs and expenses to which Landlord is entitled pursuant to the Lease or under
applicable Legal Requirements.
O-1
(b) Guarantor agrees with Landlord that (i) any action, suit
or proceeding of any kind or nature whatsoever (an "Action") commenced by
Landlord against Guarantor to collect Fixed Rent, Additional Rent and any other
sums and charges due under the Lease for any month or months shall not prejudice
in any way Landlord's rights to collect any such amounts due for any subsequent
month or months throughout the Term in any subsequent Action, (ii) Landlord may,
at its option, without prior notice or demand, join Guarantor in any Action
against Tenant in connection with or based upon the Lease or any of the
Obligations, (iii) Landlord may seek and obtain recovery against Guarantor in an
Action against Tenant or in any independent Action against Guarantor without
Landlord first asserting, prosecuting, or exhausting any remedy or claim against
Tenant or against any security of Tenant held by Landlord under the Lease, and
(iv) Guarantor will be conclusively bound in any jurisdiction by a judgment in
any Action by Landlord against Tenant, as if Guarantor were a party to such
Action, even though Guarantor is not joined as a party in such Action.
3. GUARANTOR'S OBLIGATIONS UNCONDITIONAL.
(a) This Guaranty is an absolute and unconditional guaranty of
payment and of performance, and not of collection, and shall be enforceable
against Guarantor without the necessity of the commencement by Landlord of any
Action against Tenant, and without the necessity of any notice of nonpayment,
nonperformance or nonobservance, or any notice of acceptance of this Guaranty,
or of any other notice or demand to which Guarantor might otherwise be entitled,
all of which Guarantor hereby expressly waives in advance.
(b) If the Lease is renewed, or the Term extended, for any
period beyond the Expiration Date, either pursuant to any option granted under
the Lease or otherwise, or if Tenant holds over beyond the Expiration Date, the
obligations of Guarantor hereunder shall extend and apply to the full and
faithful performance and observance of all of the Obligations under the Lease
during any renewal, extension or holdover period.
(c) This Guaranty is a continuing guarantee and will remain in
full force and effect notwithstanding, and the liability of Guarantor hereunder
shall be absolute and unconditional irrespective of: (i) any modifications or
amendments of the Lease, (ii) any releases or discharges of Tenant other than
the full release and complete discharge of all of the Obligations, (iii) any
extension of time that may be granted by Landlord to Tenant, (iv) any assignment
or transfer of all of any part of Tenant's interest under the Lease, (v) any
subletting of the Premises, (vi) any changed or different use of the Premises,
(vii) any other dealings or matters occurring between Landlord and Tenant,
(viii) the taking by Landlord of any additional guarantees from other persons or
entities, (ix) the releasing by Landlord of any other guarantor, (x) Landlord's
release of any security provided under the Lease, or (xi) Landlord's failure to
perfect any landlord's lien or other security interest available under
applicable Legal Requirements. Guarantor hereby consents, prospectively, to
Landlord's taking or entering into any or all of the foregoing actions.
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4. WAIVERS OF GUARANTOR.
(a) Guarantor waives (i) notice of acceptance of this
Guaranty, (ii) notice of any actions taken by Landlord or Tenant under the Lease
or any other agreement or instrument relating thereto, (iii) notice of any and
all defaults by Tenant in the payment of Fixed Rent, Additional Rent or other
charges, or of any other defaults by Tenant under the Lease, (iv) all other
notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, omission of or delay in
which, but for the provisions of this Section 4, might constitute grounds for
relieving Guarantor of its obligations hereunder, and (v) any requirement that
Landlord protect, secure, perfect or insure any security interest or lien, or
any property subject thereto, or exhaust any right or take any action against
Tenant or any other Person or any collateral.
(b) Guarantor waives trial by jury of any and all issues
arising in any Action upon, under or in connection with this Guaranty, the
Lease, the Obligations, and any and all negotiations or agreements in connection
therewith.
5. SUBROGATION. Guarantor waives and disclaims any claim or
right against Tenant by way of subrogation or otherwise in respect of any
payment that Guarantor may be required to make hereunder, to the extent that
such claim or right would cause Guarantor to be a "creditor" of Tenant for
purposes of the United States Bankruptcy Code (11 U.S.C. ss.101 et seq., as
amended), or any other Federal, state or other bankruptcy, insolvency,
receivership or similar Legal Requirement. If any amount shall be paid to
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid and performed in full, Guarantor shall hold
such amount in trust for Landlord and shall pay such amount to Landlord
immediately following receipt by Guarantor, to be applied against the
Obligations, whether matured or unmatured, in such order as Landlord may
determine. Guarantor hereby subordinates any liability or indebtedness of Tenant
now or hereafter held by Guarantor to the obligations of Tenant to Landlord
under the Lease.
6. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor
represents and warrants that:
(a) Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, is duly
qualified to do business in each jurisdiction where the conduct of its business
requires such qualification and has full requisite corporate power and authority
to enter into and perform its obligations under this Guaranty.
(b) The execution, delivery and performance by Guarantor of
this Guaranty does not and will not (i) contravene applicable Legal Requirements
or any contractual restriction binding on or affecting Guarantor or any of its
properties, or (ii) result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to any of its
properties.
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(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required for the due execution, delivery and performance by Guarantor of this
Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms.
(e) There is no action, suit or proceeding pending or
threatened against or otherwise affecting Guarantor before any court or other
Governmental Authority or any arbitrator which may adversely affect Guarantor's
ability to perform its obligations under this Guaranty.
(f) Guarantor owns, directly or indirectly, approximately
17.86% of the issued and outstanding equity interests of Tenant.
(g) Guarantor has reviewed and acknowledges having notice of
all the provisions of the Lease and each of the documents, agreements and
instruments executed and delivered in connection with the Lease.
(h) The financial statements and accompanying letters and
documents of Guarantor, if any, made available to Landlord in connection with
the Lease (collectively, the "Financial Statements") are true, complete and
correct in all respects, and fairly present the net worth of Guarantor as of the
date thereof, and, since the date of such Financial Statements, there has been
no material adverse change in Guarantor's net worth.
7. NOTICES. All consents, notices, demands, requests,
approvals or other communications given under this Guaranty shall be given as
provided the Lease, as follows:
(a) if to Guarantor at Guarantor's address set forth on the
first page of this Guaranty, Attention: Xxxxx X. Xxxxxxxxx; and
(b) if to Landlord, as follows: 000 Xxxxxx Xxxxxx LLC, c/o
Taconic Investment Partners LLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx. Xxxx Xxxxxxx, with a copy to: Xxxxxxx Xxxx &
Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxx, Esq.; or
to such other addresses as either Landlord or Guarantor may designate by notice
given to the other in accordance with the provisions of this Section 7.
8. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES.
(a) Guarantor hereby irrevocably (i) submits to the
jurisdiction of any New York State or Federal court sitting in New York City in
any Action arising out of or relating to this Guaranty, and (ii) agrees that all
claims in respect of such Action may be heard and determined in such New York
State or Federal court. Such service may be made by mailing or delivering a copy
of such process to Guarantor in care of the Process Agent at the Process Agent's
address, and Guarantor hereby irrevocably authorizes and directs the Process
Agent to accept such service on its behalf. As an alternative method of service,
Guarantor also irrevocably
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consents to the service of any and all process in any such Action by the mailing
of copies of such process to Guarantor at its address specified in Section 7
hereof. Guarantor agrees that a final judgment in any such Action shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner permitted under Legal Requirements.
(b) Guarantor irrevocably waives, to the fullest extent
permitted by Legal Requirements, and agrees not to assert, by way of motion, as
a defense or otherwise (i) any objection which it may have or may hereafter have
to the laying of the venue of any such Action brought any of the courts
described in Section 8(a), (ii) any claim that any such Action brought in any
such court has been brought in an inconvenient forum, or (iii) any claim that
Guarantor is not personally subject to the jurisdiction of any such courts.
Guarantor agrees that final judgment in any such Action brought in any such
court shall be conclusive and binding upon Guarantor and may be enforced by
Landlord in the courts of any state, in any federal court, and in any other
courts having jurisdiction over Guarantor or any of its property, and Guarantor
agrees not to assert any defense, counterclaim or right of set-off in any Action
brought by Landlord to enforce such judgment.
(c) Nothing in this Section 8 shall limit or affect Landlord's
right to (i) serve legal process in any other manner permitted by Legal
Requirements, or (ii) bring any Action against Guarantor or its property in the
courts of any other jurisdictions.
(d) Guarantor hereby irrevocably waives, with respect to
itself and its property, any diplomatic or sovereign immunity of any kind or
nature, and any immunity from the jurisdiction of any court or from any legal
process, to which Guarantor may be entitled, and agrees not to assert any claims
of any such immunities in any Action brought by Landlord under or in connection
with this Guaranty. Guarantor acknowledges that the making of such waivers, and
Landlord's reliance on the enforceability thereof, is a material inducement to
Landlord to enter into the Lease.
(e) Guarantor agrees to execute, deliver and file all such
further instruments as may be necessary under the laws of the State of New York,
in order to make effective (i) the appointment of the Process Agent, (ii) the
consent by Guarantor to jurisdiction of the state courts of New York and the
federal courts sitting in New York, and (iii) all of the other provisions of
this Section 8.
9. MISCELLANEOUS.
(a) The provisions, covenants and guaranties of this Guaranty
shall be binding upon Guarantor and its successors and assigns, and shall inure
to the benefit of Landlord and its successors and assigns, and shall not be
deemed waived or modified unless such waiver or modification is specifically set
forth in writing, executed by Landlord or its successors and assigns, and
delivered to Guarantor.
(b) Whenever the words "include", "includes", or "including"
are used in this Guaranty, they shall be deemed to be followed by the words
"without limitation", and, whenever the circumstances or the context requires,
the singular shall be construed as the plural, the
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masculine shall be construed as the feminine and/or the neuter and vice versa.
This Guaranty shall be interpreted and enforced without the aid of any canon,
custom or rule of law requiring or suggesting construction against the party
drafting or causing the drafting of the provision in question.
(c) The provisions of this Guaranty shall be governed by and
interpreted solely in accordance with the internal laws of the State of New
York, without giving effect to the principles of conflicts of law.
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of October ___, 1999.
GUARANTOR:
XXXXXXXXXXXXXX.XXX INC.
By:__________________________________
Name:
Title:
X-0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of October, 199__, before me, the undersigned,
personally appeared _______________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s) or the person
upon behalf of which the individual(s) acted, executed the instrument.
------------------------------------
Notary Public
(Affix Notarial Stamp)
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EXHIBIT P
---------
Floor Plan of the Remaining B Space
-----------------------------------
The floor plan which follows is intended solely to identify the general outline
of the Remaining B Space, and should not be used for any other purpose. All
areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
[Diagram Exhibit]
X-0
XXXXXXX X-0
-----------
Lease Modifications regarding Remaining B Space
-----------------------------------------------
If, as and when Tenant shall terminate the Lease with respect to Space
B and Space C pursuant to the provisions of Section 2.3(c), this Lease shall be
deemed amended as set forth in Section 2.3(c) and as follows:
The Definitions of "Premises" and "Premises Area" shall be
deemed deleted and replaced with the following:
Premises: Space A
Premises Area: 48,560 Rentable Square Feet, as such Premises
Area may be increased or decreased from time
to time pursuant to this Lease.
Section 1.1(a) shall be deemed deleted and replaced with the
following:
(a) For the portion of the Term commencing on the Space A
Delivery Date and ending on the Expiration Date, Tenant shall pay Fixed Rent for
Space A as follows:
(i) One Million Four Hundred Fifty Six Thousand Eight
Hundred and 00/100 Dollars ($1,456,800.00) per annum ($121,400.00 per
month) for the period commencing on the Space A Delivery Date and
ending one day prior to the fifth (5th) anniversary of the Space A
Delivery Date;
(ii) One Million Six Hundred Two Thousand Four
Hundred Eighty and 00/100 Dollars ($1,602,480.00) per annum
($133,540.00 per month) for the period commencing on the fifth (5th)
anniversary of the Space A Delivery Date and ending one day prior to
the tenth (10th) anniversary of the Space A Delivery Date; and
(iii) One Million Seven Hundred Forty Eight Thousand
One Hundred Sixty and 00/100 Dollars ($1,748,160.00) per annum
($145,680.00 per month) for the period commencing on the tenth (10th)
anniversary of the Space A Delivery Date and ending on the Expiration
Date.
Section 1.1(b) and Section 1.1(c) shall be deemed deleted and
of no further force and effect.
Section 6.1(b) shall be deemed deleted and replaced with the
following:
(b) "Tenant's Share" means Two and 111/1000ths percent
(2.111%).
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Section 6.4(a) shall be deemed deleted and replaced with the
following:
Section 6.4 (a) If the Labor Rates in effect for any
Comparison Year (any part or all of which falls within the Term) shall be
greater than the Base Labor Rates, then Tenant shall pay, as Additional Rent for
such Comparison Year and continuing thereafter until a new Landlord's Statement
is rendered to Tenant, an amount ("Tenant's Labor Rate Payment") equal to (i)
the number of cents (inclusive of any fractions of a cent) by which the Labor
Rates in effect for such Comparison Year exceed the Base Labor Rates, multiplied
by (ii) (X) 46,053 (from and after the Space A Delivery Date, less the Remaining
B Space), plus (Y) 2,507 (from and after the date of delivery of the Remaining B
Space).
Section 9.2(a) shall be amended as follows: "1400 amperes"
shall be deemed deleted and replaced with "732 amperes".
Section 31.1(a) shall be deemed deleted and replaced with the
following:
Section 31.1 (a) Landlord shall contribute toward the actual
cost of the Initial Alterations (including carpeting, wall covering, telephone
and computer installations and wiring, and "soft costs" incurred in connection
with such alterations, including architectural, consulting, engineering and
legal fees, provided that such "soft costs" shall not exceed ten percent (10%)
of Landlord's Contribution) an amount ("Landlord's Contribution") equal to the
lesser of (a) Nine Hundred Seventy One Thousand Two Hundred and 00/100 Dollars
($971,200.00), or (b) the aggregate amount of all costs and expenses actually
incurred by Tenant in connection with the Initial Alterations; provided,
however, that this Lease shall be in full force and effect and no Event of
Default shall have occurred and be continuing hereunder, and provided, further,
that Landlord's Contribution shall be payable in stages commencing on the
Delivery Date with respect to each Space, in the following maximum amounts:
(i) with respect to Space A, less the Remaining B
Space, Nine Hundred Twenty One Thousand Sixty and 00/100 Dollars
($921,060); and
(ii) with respect to the Remaining B Space, Fifty
Thousand One Hundred Forty and 00/100 Dollars ($50,140.00).
Section 31.1(c) shall be amended as follows: "$1,817,800"
shall be deemed deleted and replaced with "$971,200".
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EXHIBIT Q
---------
Louver Locations
----------------
The floor plan which follows is intended solely to identify the locations in
which Tenant may install certain louvers as part of Tenant's Initial
Alterations, and should not be used for any other purpose. All areas, dimensions
and locations are approximate, and any physical conditions indicated may not
exist as shown.
[Diagram Exhibit]
Q-1
EXHIBIT R
---------
Center Shaft Location
---------------------
The floor plan which follows is intended solely to identify the location of the
"Center Shaft" for purposes of Sections 9.7(a) and 9.8, and should not be used
for any other purpose. All areas, dimensions and locations are approximate, and
any physical conditions indicated may not exist as shown.
[Diagram Exhibit]
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