LEASE BETWEEN
CREDIT SUISSE FIRST BOSTON (USA), INC.
AND
THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
AS OF OCTOBER 30, 2001
LEASE BETWEEN
CREDIT SUISSE FIRST BOSTON (USA), INC.
AND
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
AS OF OCTOBER 30, 2001
--------------------------------------------------------------------------------
DOCUMENT TAB
-------- ---
Lease.................................................................. 1
Overlandlord Consent................................................... 2
Subordination and Non-Disturbance Agreement............................ 3
CREDIT SUISSE FIRST BOSTON (USA), INC.
Landlord
TO
THE PORT AUTHORITY OF
NEW YORK AND NEW JERSEY
Tenant
-------------------------------------
LEASE
-------------------------------------
Dated as of October 30, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
ARTICLE 2
PREMISES; TERM; USE
Section 2.01. Demise...................................................... 2
Section 2.02. Term........................................................ 3
Section 2.03. Possession Date............................................. 3
Section 2.04. Special Termination Rights.................................. 4
Section 2.05. Use......................................................... 6
ARTICLE 3
RENT
Section 3.01. Rent........................................................ 6
Section 3.02. Fixed Rent.................................................. 6
Section 3.03. Additional Charges.......................................... 6
Section 3.04. Tax Payments................................................ 7
Section 3.05. [Intentionally Omitted]..................................... 9
Section 3.06. Tax Provisions.............................................. 9
Section 3.07. Electric Charges............................................10
Section 3.08. Manner of Payment...........................................12
Section 3.09. Operating Expenses..........................................13
ARTICLE 4
LANDLORD SERVICES
Section 4.01. Landlord Services...........................................19
Section 4.02. Auditorium and Cafeteria....................................23
Section 4.03. Telecommunications..........................................24
ARTICLE 5
LEASEHOLD IMPROVEMENTS; TENANT COVENANTS
Section 5.01. Initial Improvements........................................25
Section 5.02. Alterations.................................................27
Section 5.03. Landlord's and Tenant's Property............................29
Section 5.04. Access and Changes to Building..............................30
Section 5.05. Repairs.....................................................31
Section 5.06. Compliance with Laws/Compliance Language....................32
Section 5.07. Tenant Advertising..........................................33
Section 5.08. Right to Perform Tenant Covenants...........................33
ARTICLE 6
ASSIGNMENT AND SUBLETTING
Section 6.01. Assignment; Etc.............................................34
Section 6.02. Landlord's Option Right.....................................35
Section 6.03. Assignment and Subletting Procedures........................38
Section 6.04. General Provisions..........................................39
Section 6.05. Assignment and Sublease Profits.............................41
Section 6.06. Assignor Cure Rights........................................42
Section 6.07. Landlord Non-Disturbance....................................42
ARTICLE 7
SUBORDINATION; DEFAULT; INDEMNITY
Section 7.01. Subordination...............................................42
Section 7.02. Estoppel Certificate........................................44
Section 7.03. Default.....................................................45
Section 7.04. Re-entry by Landlord........................................45
Section 7.05. Damages.....................................................45
Section 7.06. Other Remedies..............................................46
Section 7.07. Right to Injunction.........................................46
Section 7.08. Certain Waivers; Waiver of Trial by Jury....................47
Section 7.09. No Waiver...................................................47
Section 7.10. Holding Over................................................47
Section 7.11. Attorneys' Fees.............................................48
Section 7.12. Nonliability and Indemnification............................48
Section 7.13. Protest of Landlord Charges.................................49
ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION
Section 8.01. Compliance with Insurance Standards.........................49
Section 8.02. Tenant's Insurance..........................................50
Section 8.03. Subrogation Waiver..........................................51
Section 8.04. Condemnation................................................52
Section 8.05. Casualty....................................................53
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.01. Notice......................................................55
Section 9.02. Building Rules..............................................56
Section 9.03. Severability................................................56
Section 9.04. Certain Definitions.........................................56
Section 9.05. Quiet Enjoyment.............................................56
Section 9.06. Limitation of Liability.....................................57
Section 9.07. Counterclaims...............................................57
Section 9.08. Survival....................................................57
Section 9.09. Certain Remedies............................................57
Section 9.10. No Offer....................................................58
Section 9.11. Captions; Construction......................................58
Section 9.12. Amendments..................................................58
Section 9.13. Broker......................................................58
Section 9.14. Merger......................................................58
Section 9.15. Successors..................................................58
Section 9.16. Applicable Law..............................................58
Section 9.17. No Development Rights.......................................58
Section 9.18. Surrender...................................................59
Section 9.19. Arbitration.................................................59
Section 9.20. Signage.....................................................59
Section 9.21. Attorneys' Fees.............................................60
Section 9.22. Counterparts................................................60
Section 9.23. Invoices....................................................60
ARTICLE 10
SUBLEASE PROVISIONS
Section 10.01. Sublease Provisions.........................................60
ARTICLE 11
REPRESENTATIONS AND WARRANTIES
Section 11.01. Landlord's Representations and Warranties...................64
Section 11.02. Tenant's Representations and Warranties.....................65
EXHIBITS
A. Description of Land
B. Initial Premises Floor Space Plan
C. Rules and Regulations
X. Xxxxxxxxx
E. HVAC Specifications
F. Form of Non-Disturbance Agreement
G. Overlandlord Consent
H. Cleaning Specifications
INDEX OF DEFINED TERMS
-----------------------
Definition Where Defined
---------- -------------
4th Floor Space....................................... Section 2.01
5th Floor Space....................................... Section 2.01
8th Floor Space....................................... Section 2.01
5% Fee................................................ Section 3.07
AAA Rules............................................. Section 9.19
Action................................................ Section 7.11
Additional Charges.................................... Section 3.03
Additional Premises................................... Section 2.01
Additional Rent for Electricity....................... Section 3.07
Additional Space Notice............................... Section 2.01
Affiliate............................................. Section 6.01
Alteration Plans...................................... Section 5.02
Arbitrator............................................ Section 9.19
Auditorium............................................ Section 1
Assignment Consideration.............................. Section 6.05
Base Operating Year................................... Section 3.09
Base Rate............................................. Section 3.08
Base Tax Amount....................................... Section 3.04
Bid Taxes............................................. Section 3.04
Broker................................................ Section 9.13
Building.............................................. Recitals
Building Rate......................................... Section 4.01
Business Days......................................... Section 4.01
Business Hours........................................ Section 4.01
Cafeteria............................................. Section 1
Casualty.............................................. Section 8.05
Commencement Date..................................... Section 2.02
Contractor(s)......................................... Section 5.01
Control............................................... Section 6.01
Cost Savings.......................................... Section 3.09
Curing Party.......................................... Section 5.08
Cut-Off Date.......................................... Section 3.09
Eighth Floor Space.................................... Section 2.01
Electing Party........................................ Section 9.19
Electric Capacity..................................... Section 3.07
Expiration Date....................................... Section 2.02
Fixed Rent............................................ Section 3.02
Fixtures.............................................. Section 5.03
Force Majeure......................................... Section 4.01
Hazardous Materials................................... Section 5.06
HLW Report............................................ Section 1
HVAC.................................................. Section 4.01
Improvements and Betterments.......................... Section 5.03
Definition Where Defined
---------- -------------
Indemnified Party..................................... Section 7.12
Initial Premises...................................... Section 2.01
Interest Rate......................................... Section 5.08
Land.................................................. Recitals
Landlord.............................................. Introduction
Landlord Lease Termination Date....................... Section 2.04
Landlord Lease Termination Notice..................... Section 2.04
Landlord Services..................................... Section 4.01
Laws.................................................. Section 5.06
Lease................................................. Introduction
Lease Procurement Costs............................... Section 2.04
Material Alteration................................... Section 5.02
Minor Alterations..................................... Section 5.02
New Tenant............................................ Section 7.10
Non-Retail Space...................................... Section 2.05
Operating Expenses.................................... Section 3.09
Operating Payment..................................... Section 3.09
Operating Statement................................... Section 3.09
Operating Year........................................ Section 3.09
Optional Location..................................... Section 2.01
Other Sublease Consideration.......................... Section 6.05
Overlandlord.......................................... Section 1
Xxxxxxxxx............................................. Section 1
Overtime Periods...................................... Section 4.01
PASNY................................................. Section 3.07
Port Consolidation Event.............................. Section 2.04
Possession Date....................................... Section 2.03
Premises.............................................. Section 2.01
Project............................................... Recitals
Recapture Space....................................... Section 6.02
Rent.................................................. Section 3.01
Repair Estimate Notice................................ Section 8.05
Required Substantial Completion Date.................. Section 8.05
Rules and Regulations................................. Section 4.01
South Building........................................ Section 1
Standard.............................................. Section 5.05
Subsequent Landlord Lease Termination Date............ Section 2.04
Subsequent Notice..................................... Section 2.04
Successor Entity...................................... Section 6.01
Successor Landlord.................................... Section 7.01
Superior Lease........................................ Section 7.01
Superior Lessor....................................... Section 7.01
Superior Mortgage..................................... Section 7.01
Superior Mortgagee.................................... Section 7.01
Tax Payment........................................... Section 3.04
Tax Year.............................................. Section 3.04
ii
Definition Where Defined
---------- -------------
Taxes................................................. Section 3.04
Tenant................................................ Introduction
Tenant Assignor....................................... Section 6.06
Tenant Assignee....................................... Section 6.06
Tenant Casualty Repair Obligations.................... Section 8.05
Tenant Lease Termination Date......................... Section 2.04
Tenant Termination Notice............................. Section 2.04
Tenant's Basic Cost................................... Section 6.05
Tenant's Initial Improvements......................... Section 5.01
Tenant's Offer Notice................................. Section 6.02
Tenant's Plans........................................ Section 5.01
Tenant's Property..................................... Section 5.03
Tenant's Share........................................ Section 3.04
Term.................................................. Section 2.02
Tower................................................. Section 1
Transfer Notice....................................... Section 6.03
iii
LEASE (this "LEASE"), dated as of October 30, 2001, between CREDIT
SUISSE FIRST BOSTON (USA), INC. ("LANDLORD"), a
New York corporation whose
address is Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and THE PORT
AUTHORITY OF
NEW YORK AND NEW JERSEY ("TENANT"), a body corporate and politic,
created by compact between the States of New Jersey and
New York, with the
consent of the Congress of the United States of America, whose address is 000
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H
WHEREAS, Landlord is willing to lease to Tenant and Tenant is willing
to hire from Landlord, on the terms hereinafter set forth, certain space in the
office building commonly known as One Madison Avenue,
New York,
New York (the
"BUILDING") on the land more particularly described in EXHIBIT A (the "LAND";
the Land and the Building and all plazas, sidewalks and curbs adjacent thereto
are collectively called the "PROJECT").
NOW, THEREFORE, Landlord and Tenant agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Lease, the following terms shall have the following
respective meanings:
(a) "AUDITORIUM" means the auditorium located in the South Building
Lobby.
(b) "CAFETERIA" means the cafeteria located on the B-2 floor of the
South Building.
(c) "HLW Report" means that certain report, dated December 6, 2000 and
prepared by HLW and designated as Area Calculations, Project 3785.
(d) "OVERLANDLORD" means the Metropolitan Life Insurance Company, a
New York corporation, or any successor or assign of its interest under the
Xxxxxxxxx.
(e) XXXXXXXXX" means that certain Lease by and between Landlord and
Overlandlord, dated as of February 22, 2001, as the same may amended, modified
or supplemented from time to time. A true and correct copy of the Xxxxxxxxx
(with financial terms redacted) is attached hereto as Exhibit D.
(f) "SOUTH Building" means the portions of the Building shown on the
floor plans included in the HLW Report as "Area Calculations-South Building."
(g) "TOWER" means the portions of the Building shown on the floor
plans included in the HLW Report as "Area Calculations-Tower."
ARTICLE 2
PREMISES: TERM: USE
SECTION 2.01. DEMISE. (a) Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord, subject to the terms and conditions of this Lease,
the entire 7th floor of the South Building and the entire 6th floor of the Tower
substantially as shown on the plan annexed as EXHIBIT B (collectively, the
"INITIAL PREMISES") and the Additional Premises (the Initial Premises and the
Additional Premises being collectively, the "PREMISES") together with the
non-exclusive right to use and to permit its permitted subtenants, assignees and
invitees to use, in common with other tenants and occupants of the Project, the
lobbies (other than the Tower lobby), loading dock and other public portions and
common facilities of the Project subject to, and in accordance with the terms of
this Lease, including without limitation the Rules and Regulations. Landlord and
Tenant agree that the Initial Premises is conclusively deemed to contain 98,348
rentable square feet. The amount of rentable square feet in the Additional
Premises shall be as set forth in Section 2.01(b) hereof. Subject to the terms
and conditions of this Lease, Tenant shall have access to the Premises
twenty-four (24) hours per day, seven (7) days per week.
(b) Landlord shall, in accordance with this Section 2.01(b) and
the other provisions of this Lease, separately demise to Tenant premises (the
"ADDITIONAL PREMISES") comprised, at Landlord's option, of either (x) a portion
of the 8th floor of the South Building and, if applicable, 7th floor of the
Tower (the "EIGHTH FLOOR SPACE"), (y) a portion of the 4th floor of the South
Building and, if applicable, the 3rd floor of the Tower (the "4TH FLOOR SPACE")
or (z) a portion of the 5th floor of the South Building and, if applicable, the
4th floor of the Tower (the "5TH FLOOR SPACE") (each, an "OPTIONAL LOCATION").
Landlord shall give written notice to Tenant within five days after Landlord
receives notice as to when any particular Optional Location shall be delivered
by Overlandlord to Landlord. Landlord shall deliver to Tenant written notice
(the "ADDITIONAL SPACE NOTICE") setting forth, INTER ALIA, in which Optional
Location the Additional Premises will be located in as timely a fashion from and
after the date hereof as practicable taking into consideration Landlord's own
space planning needs and the anticipated delivery schedule of the Optional
Locations from Overlandlord. Landlord shall deliver the Additional Premises to
Tenant within thirty (30) days from the date that it receives possession of the
4th Floor Space or the 5th Floor Space, as the case may be, or such longer
period as Landlord may reasonably need to physically separate the premises as
hereinafter provided, should either such Optional Locations be designated as the
Additional Premises or upon not less than fifteen (15) days after the date of
delivery of the Additional Space Notice or such longer period as Landlord may
reasonably need to physically separate the premises should Landlord designate
the 8th Floor Space as the Additional Premises. The Additional Premises shall
comprise approximately 50,000 rentable square feet and shall be located in such
portions of an Optional Location as Landlord may determine, subject to Tenant's
reasonable approval, provided, that, the Additional Premises shall, except to
the extent of DE MINIMIS variations, be divided on a north/south axis and shall
consist of an eastern or western portion. Unless the parties shall otherwise
mutually agree, in no event shall the rentable square footage of the Additional
Premises exceed 55,000 rentable square feet or be less than 45,000 rentable
square feet, such relative square footage amount being reasonably determined by
Landlord with reference to such factors as the location or proximity of
2
common areas to general floor plate of the Additional Premises and the ease and
cost of physical demise. The Additional Space Notice shall contain a floor plan
delineating the Additional Premises. In the event Tenant reasonably disapproves
of the location of the Additional Premises within such Optional Location by
written notice to Landlord, and such notice is received by Landlord within
fifteen (15) days after receipt of the Additional Space Notice, the Additional
Space Notice shall be deemed to have been delivered to Tenant on the date that
Landlord and Tenant agree on an appropriate location or the date that Landlord
delivers to Tenant a revised Additional Space Notice setting forth a location
for the Additional Premises for which Tenant has no reasonable objection. Any
dispute as to whether Landlord has acted reasonably in connection with selecting
the location of the Additional Premises shall be resolved pursuant to an
expedited arbitration in accordance with the procedures set forth in Section
9.19 hereof. The parties acknowledge and agree that the Additional Premises may
or may not contain space located on the contiguous Tower floor. The Additional
Space Notice shall set forth Landlord's determination as to the amount of
rentable square feet contained within the Additional Premises. The rentable
square footage shall be calculated using the same methodology as Landlord used
in determining the rentable square footage of the Initial Premises. Upon
possession of the Additional Premises being delivered to Tenant, Tenant shall be
deemed to have received, and is hereby granted, such rights in common with
Landlord, or other occupants of the floor on which the Additional Premises is
located, to use such corridors, hallways, restrooms, electrical closets and
other common areas on such floor as may be reasonably necessary for the
operation of Tenant's business. On or prior to the Possession Date of the
Additional Premises, Landlord shall take all steps reasonably necessary, at its
sole cost and expense, to physically separate the Additional Premises from the
premises retained by Landlord, including, without limitation, the erection of a
demising wall.
SECTION 2.02. TERM. The term of this Lease (the TERM") shall commence
on the date (the "COMMENCEMENT DATE") that is the latest to occur of (a) the
Possession Date with respect to the Initial Premises and (b) the date that
Overlandlord's Consent to this Lease has been obtained by Landlord in the form
attached hereto as Exhibit G (or such other form as may be reasonably acceptable
to Tenant) and Overlandlord shall have executed a Subordination and
Non-Disturbance Agreement substantially in the form attached hereto as Exhibit F
and shall end, unless sooner terminated as herein provided, on the last day of
the calendar month in which occurs the tenth (10th) anniversary of the
Commencement Date ("EXPIRATION DATE").
SECTION 2.03. POSSESSION DATE. (a) "POSSESSION DATE" shall mean (x)
with respect to the Initial Premises, the date possession of the Initial
Premises is delivered to Landlord by Overlandlord pursuant to the Xxxxxxxxx and
(y) with respect to the Additional Premises, on or prior to July 1, 2002,
subject to receipt by Landlord of possession of the Additional Premises from
Overlandlord pursuant to the terms of the Xxxxxxxxx. Landlord anticipates that
the Initial Premises shall be delivered by Overlandlord to Landlord on or prior
to November 12, 2001. In the event that the Initial Premises shall be delivered
subsequent to November 12, 2001, Landlord shall give Tenant two (2) Business
Days prior written notice of such subsequent delivery date of the Initial
Premises. Landlord shall keep Tenant reasonably apprised of the delivery
schedule of the Initial Premises as Landlord receives such information from
Overlandlord. Landlord agrees to use good faith efforts to cause Overlandlord to
deliver the Additional Premises to Landlord as soon after the date hereof as may
be reasonably practicable, provided, however, that the foregoing obligation
shall not be deemed or construed to require Landlord to expend sums of
3
money, grant any concessions to Overlandlord under the Xxxxxxxxx or undertake
any other measures of a significant monetary or non-monetary nature. Provided
Landlord has received Overlandlord's consent hereto, Landlord shall deliver
possession of the Premises to Tenant on the Possession Date. In the event that
Landlord is delayed in delivering possession of the Initial Premises or the
Additional Premises as a result of the failure of the Overlandlord to deliver
possession of the same to Landlord and Landlord shall have received any
additional rental abatement from Overlandlord as a result thereof, Tenant shall
be entitled to the same number of days of additional rental abatement with
respect to the premises so not delivered as Landlord shall have received from
Overlandlord, it being understood that Landlord shall have no obligation to pass
through any rental abatement for the Premises received from Overlandlord with
respect to the period prior to November 12, 2001.
(b) Subject to Landlord's obligation to physically separate the
Additional Premises from the premises retained by Landlord as heretofore
provided, Landlord shall deliver the Premises to Tenant in the condition
Overlandlord delivers the Premises to Landlord and Tenant shall accept the
Premises "as is", provided, that, Landlord shall deliver the Premises with such
existing furniture in place as is delivered to Landlord by Overlandlord pursuant
to the Xxxxxxxxx. The parties hereby agree that the value of the existing
furniture is DE MINIMIS and no portion of the Rent payable hereunder is
allocable to the existing furniture. Tenant represents and warrants that Tenant
is exempt from
New York State and New York City sales tax and agrees that it
shall indemnify Landlord against any New York State or New York City sales tax
which may be due and payable in connection with the leasing of such furniture.
Landlord does not make, and Tenant acknowledges that Landlord has not made or
given, any representation or warranty, express or implied, with respect to the
existing furniture or the present or future merchantability, condition, quality,
durability, fitness or suitability of the existing furniture or any part thereof
in any respect or in connection with or for the purposes and uses of Tenant, or
any other representation or warranty of any kind or character, expressed
implied. Tenant accepts the existing furniture "as-is". Notwithstanding any
other provision of this Lease, Tenant shall not be obligated to remove the
furniture delivered with the Premises from Landlord from the Premises on the
Expiration Date. Tenant waives any right to rescind this Lease under Section
223-a of the New York Real Property Law or any successor statute of similar
nature and purpose then in force and further waives the right to recover any
damages which may result from Landlord's failure for any reason to deliver
possession of the Premises for the commencement of the Term. The provisions of
this Article are intended to constitute an "express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property Law.
SECTION 2.04. SPECIAL TERMINATION RIGHTS. (a) In the event that the
Tenant named herein (i.e., the Port Authority of New York and New Jersey) or a
Permitted Successor has either (i) signed a binding, written commitment to
relocate a majority of its staff in the Building to a new building for which
construction has commenced or (ii) has undertaken a bonafide, company-wide plan
of consolidation pursuant to which Tenant shall lease no less than 4000,000
rentable square feet in a single building (or connected building complex) in
which a majority of its staff located at the Building shall be relocated to such
building (the circumstances described in the foregoing clauses (i) and (ii)
being each a "PORT CONSOLIDATION EVENT"), then, in such event, Tenant may elect
by written notice to Landlord (the "TENANT TERMINATION NOTICE") to terminate
this Lease effective as of the date (the "TENANT LEASE TERMINATION DATE") set
forth in the Tenant Termination Notice, which Tenant Lease Termination Date may
be no earlier than the
4
sixth (6th) anniversary of the Commencement Date and no later than the seventh
(7th) anniversary of the Commencement Date. In no event shall Tenant have the
right to terminate this Lease unless Tenant shall have delivered to Landlord the
Tenant Termination Notice at least eighteen (18) months prior to the Tenant
Lease Termination Date. In consideration of the right granted to Tenant herein,
Tenant shall be obligated to pay to Landlord on or prior to the Tenant Lease
Termination Date Landlord's Lease Procurement Costs. As used herein, the term
"LEASE PROCUREMENT COSTS" means, (A) if the Tenant Lease Termination Date shall
be the 6th anniversary of the Commencement Date, the sum of $1,254,877.00, (B)
if the Tenant Lease Termination Date shall be the 7th anniversary of the
Commencement Date, the sum of $977,625.00,and (C) if the Tenant Lease
Termination Date shall be a date between the 6th and 7th anniversary of the
Tenant Lease Termination Date, a sum obtained by pro-rating the amounts
described in the foregoing clauses (B) and (C) on a straight-line basis. In the
event that Tenant has properly exercised its right to terminate the Lease under
this Section 2.04(a), this Lease shall terminate on the Tenant Lease Termination
Date and the Term shall come to an end as if such date were the Expiration Date
and Tenant shall thereafter be discharged of any and all liabilities accruing
from and after the Tenant Lease Termination Date, except such obligations as by
the terms hereof expressly survive the Expiration Date.
(b) In the event that Landlord desires to occupy the Premises for its
own use and occupancy or the use and occupancy of one of its Affiliates,
Landlord may elect by written notice to Tenant (the "LANDLORD LEASE TERMINATION
NOTICE") to terminate this Lease effective as of the date (the "LANDLORD LEASE
TERMINATION DATE") set forth in the Landlord Lease Termination Notice, which
Landlord Lease Termination Date may be no earlier than the sixth (6th)
anniversary of the Commencement Date and no later than the seventh (7th)
anniversary of the Commencement Date, provided, however, that in the event
Tenant submits to Landlord within thirty (30) days from receipt of the Landlord
Lease Termination Notice reasonably satisfactory evidence that a Port
Consolidation Event has occurred, the Landlord Lease Termination Notice shall be
deemed to have been rescinded. Landlord shall thereafter have the option, by
written notice to Tenant, to terminate this Lease effective as of the date (the
"SUBSEQUENT LANDLORD LEASE TERMINATION DATE") set forth in a subsequent written
notice to Tenant (a "SUBSEQUENT NOTICE") occurring on or after the eighth (8th)
anniversary of the Commencement Date. In no event shall Landlord have the right
to terminate this Lease unless Landlord shall have delivered to Tenant the
Landlord Termination Notice or the Subsequent Notice, as the case may be, at
least eighteen (18) months prior to the Landlord Lease Termination Date or the
Subsequent Landlord Lease Termination Date, as applicable. In the event that
Landlord has properly exercised its right to terminate the Lease under this
Section 2.04(b), this Lease shall terminate on the Landlord Lease Termination
Date or the Subsequent Landlord Lease Termination Date, as applicable, and the
Term shall come to an end as if such date were the Expiration Date and Tenant
shall thereafter be discharged of any and all liabilities accruing from and
after the Landlord Lease Termination Date or the Subsequent Landlord Lease
Termination Date, as the case may be, except such obligations as by the terms
hereof survive the Expiration Date. The right of Landlord to terminate the Lease
as provided in this Section 2.04(b) shall be personal to the Landlord originally
named herein (i.e., Credit Suisse First Boston (USA), Inc.) and its present and
future Affiliates and their successors by merger, consolidation, corporate
reorganization or sale of all or substantially all of its assets.
5
SECTION 2.05. USE. Except to the extent expressly waived by
Overlandlord, Tenant shall use the Premises only for such uses as are permitted
pursuant to SECTION 6.1 and 6.2 of the Xxxxxxxxx, the terms and provisions of
which are incorporated herein by reference as if fully set forth herein, except
that the term "NON-RETAIL SPACE" theirin shall be deemed to refer to the term
"Premises" herein and Section 6.1(b) shall not be so incorporated. To the extent
permitted by the Xxxxxxxxx, Tenant shall have the right to include up to four
(4) classrooms in the Premises for managerial and administrative training of
Tenant's employees and contract employees only.
ARTICLE 3
RENT
SECTION 3.01. RENT. "RENT" shall consist of fixed Rent and Additional
Charges.
SECTION 3.02 FIXED RENT. (a) The fixed rent ("FIXED RENT") for the
Initial Premises shall be, for the period commencing on the Commencement Date
and ending on the day immediately preceding the fifth anniversary of the
Commencement Date, Four Million Six Hundred Twenty Two Thousand Three Hundred
Fifty Six Dollars ($4,622,356), payable in equal monthly installments of Three
Hundred Eighty Five Thousand One Hundred Ninety Six Dollars and Thirty Three
Cents ($385,196.33) and (ii) for the period commencing on the fifth anniversary
of the Commencement Date and ending on the day immediately preceding the tenth
anniversary of the Commencement Date, Five Million One Hundred Fourteen Thousand
Ninety Six Dollars ($5,114,096), payable in equal monthly installments of Four
Hundred Twenty Six Thousand One Hundred Seventy Four Dollars and Sixty Seven
Cents ($426,174.67).
(b) The Fixed Rent for the Additional Premises shall be, (i) for the
period commencing on the later to occur of (x) the Commencement Date and (y) the
date that possession of the Additional Premises is delivered to Tenant in
accordance with Section 2.01(b), and ending on the day immediately preceding the
fifth anniversary of the Commencement Date, a sum equal to the product of (A)
$47.00 and (B) the number of rentable square feet in the Additional Premises and
(ii) for the period commencing on the fifth anniversary of the Commencement Date
and ending on the tenth anniversary of the Commencement Date, a sum equal to the
product of (A) $52.00 and (B) the number of rentable square feet in the
Additional Premises.
(c) Fixed Rent shall be payable by Tenant in equal monthly
installments in advance on the Commencement Date and on the first day of each
calendar month thereafter, provided, that, if the Commencement Date or the date
the Additional Premises is delivered is not the first day of the month, the
Fixed Rent shall be appropriately prorated.
SECTION 3.03. ADDITIONAL CHARGES. "ADDITIONAL CHARGES" means Tax
Payments, Operating Payments and all other sums of money, other than Fixed Rent,
at any time payable by Tenant under this Lease, all of which Additional Charges
shall be deemed to be rent.
6
SECTION 3.04. TAX PAYMENTS. (a) "BASE TAX AMOUNT" means the Taxes
(excluding any amounts described in Section 3.04(b)(iii)) for the calendar year
2002.
(b) "TAXES" means (i) the real estate taxes, vault taxes, assessments
and special assessments levied, assessed or imposed upon or with respect to the
Land and the Building by any federal, state, municipal or other government or
governmental body or authority (including, without limitation, any taxes,
assessments or charges imposed upon or against Project, Landlord or the owner of
the Project with respect to any business improvement district (collectively,
"BID TAXES")) but only if and to the extent that the same shall be reflected in
any tax xxxx with respect to the Project and after giving effect to any and all
abatements, refunds, reductions and credits which are not made expressly for the
benefit of another tenant by the Building, but expressly excluding any benefit
accruing to Landlord under any discretionary municipal incentive program (as
opposed to benefits granted by the applicable governmental entity on a
Building-wide basis "as of right", including any Building-wide benefits which
may be granted pursuant to the Industrial and Commercial Incentive Program),
(ii) all taxes assessed or imposed with respect to the rentals payable under
this Lease other than general income and gross receipts taxes; PROVIDED, that
any such tax shall exclude Commercial Rent or Occupancy Taxes imposed pursuant
to Title 11, Chapter 7 of the New York City Administrative Code so long as such
tax is required to be paid by Tenants directly to the taxing authority and (iii)
any expenses incurred by Landlord in contesting such taxes or assessments and/or
the assessed value of the Project, which expenses shall be allocated to the Tax
Year to which such expenses relate. If at any time the method of taxation shall
be altered so that in lieu of or as an addition to or as a substitute for, the
whole or any part of such real estate taxes, assessments and special assessments
now imposed on real estate, there shall be levied, assessed or imposed (x) a
tax, assessment, levy, imposition, fee or charge wholly or partially as a
capital levy or otherwise on the rents received therefrom, or (y) any other
additional or substitute tax, assessment, levy, imposition, fee or charge,
including without limitation, business improvement district and transportation
taxes, fees and assessments, then all such taxes, assessments, levies,
impositions, fees or charges or the part thereof so measured or based shall be
included in "TAXES," computed as if Landlord's sole asset were the Project. If
the owner, or lessee under a Superior Lease, of all or any part of the Project
is an entity exempt from the payment of taxes described in CLAUSES (i) and (ii),
there shall be included in "TAXES" the taxes described in clauses (i) and (ii)
which would be so levied, assessed or imposed if such owner or lessee were not
so exempt and such taxes shall be deemed to have been paid by Landlord on the
dates on which such taxes otherwise would have been payable if such owner or
lessee were not so exempt. Except as permitted in this SECTION 3.04(b), "TAXES"
shall not include (x) any municipal, state or federal taxes on Landlord's
income, franchise taxes, taxes on gross receipts or revenue, estate or
inheritance taxes value added, transfer, transfer gains, succession, capital
stock excise, excess profits, gift, foreign ownership or control, corporate
franchise, corporate, unincorporated association, payroll or stamp tax, or any
similar taxes or charges imposed or assessed against Landlord, including any
other tax, assessment, charge or levy on the rent reserved under leases,
including this Lease or (y) unless due to default in Tenant timely paying
Tenant's Tax Share hereunder, any penalties, late charges or fines imposed
against Landlord with respect to real estate taxes, assessments and the like
than are otherwise includable within the term "Taxes." If the Bid Taxes are
eliminated or reduced after the date hereof, then, as of the date of such
elimination or reduction, the Base Tax Amount shall be recalculated to take into
account the elimination or reduction of the Bid Taxes.
7
(c) "TAX YEAR" means each period of 12 months, commencing on the first
day of July of each such period, in which occurs any part of the Term, or such
other period or 12 months occurring during the Term as hereafter may be adopted
as the fiscal year for real estate tax purposes of the City of New York.
(d) "TENANT'S SHARE" means 6.97%, as the same may be increased or
decreased in accordance with the terms of this Lease. The parties hereto agree
that the rentable square foot area of the Premises shall be deemed to be, as of
the date hereof and prior to the addition of the Additional Premises, 98,348
rentable square feet and the rentable square foot area of the Building shall be
deemed to be 1,410,765 rentable square feet. Tenant's Share has been, and shall
be upon the addition of the Additional Premises and as otherwise provided for
herein, determined and/or redetermined by dividing the rentable square foot area
of the Premises by the rentable square foot area of the Building.
(e) If Taxes for any Tax Year, shall exceed the Base Tax Amount,
Tenant shall pay to Landlord (each, a "TAX PAYMENT") Tenant's Share of the
amount by which Taxes for such Tax Year are greater than the Base Tax Amount.
Landlord shall give Tenant a statement showing the computation of Tenant's Share
of Taxes, which statement shall cover only those Taxes which Landlord is then
required to pay pursuant to the Xxxxxxxxx and such statement shall be
accompanied by copies of the applicable tax bills or other evidence showing the
Taxes or tax assessments. The Tax Payment for each Tax Year shall be due and
payable in installements in the same manner that Taxes for such Tax Year are due
and payable to the City of New York, except that Tenant shall pay each such
installment to Landlord on or before the later of (A) twenty (20) days after the
rendering by Landlord to Tenant of the above-referenced statement or (B) thirty
(30) days prior to the date such installment first becomes due and payable to
the City of New York; PROVIDED, HOWEVER, that if Landlord shall at any time be
required pursuant to the terms of any Superior Mortgage to make any escrow
payments in respect of Taxes on a more frequent basis than such installments are
due and payable to the City of New York, then Tenant shall pay to Landlord on
the first day of each period for which Landlord is required make such escrow
payments during such Tax Year an amount equal to the Tax Payment for such Tax
Year divided by the number of such escrow payments that Landlord is required to
make in respect of Taxes for such Tax Year. If there shall be any increase or
decrease in the Taxes for any Tax Year, the Tax Payment for such Tax Year shall
be appropriately adjusted and paid or refunded, as the case may be, in
accordance herewith. In no event, however, shall Tenant be entitled to a refund
or credit against any sums payable under this Lease if Taxes are reduced below
the Base Tax Amount. Except as heretofore provided, Tenant shall receive an
equitable share of any and all real estate tax incentives, abatements and
credits granted to the Building and Land during the Term of this Lease, PROVIDED
that such real estate tax incentives, abatements and credits may be directly
attributed, at least in part, to Tenant's use and occupancy of the Premises (or
any portion thereof located in the Building). Similarly, if any such incentives,
abatements or credits are directly attributed to space in the Building not
leased to Tenant in no event shall Tenant be entitled to share in any such
benefits. Landlord, at Tenant's in no event shall Tenant be entitled to share in
any such benefits. Landlord, at Tenant's sole cost and expense, shall reasonably
cooperate with Tenant in Tenant's efforts to obtain municipal tax rebates,
credits or other incentives with respect to the Premises; it being acknowledged
that any such incentives shall be the sole property of Tenant.
8
(f) If Landlord shall receive a refund of Taxes for any Tax Year,
Landlord shall pay to Tenant Tenant's Share of the net refund (after deducting
from such refund the costs and expenses of obtaining the same, including,
without limitation, appraisal, accounting and legal fees, to the extent that
such costs and expenses were not included in the Taxes for such Tax Year);
PROVIDED, that (i) Tenant shall not be eligible to receive such payment if, at
the time such payment is required to be refunded to Tenant, Tenant is in default
under the Lease beyond any notice and grace period, if applicable, until such
time as such default iS cured, at which time such payment shall be made to
Tenant, PROVIDED, that Landlord shall be entitled to deduct any costs and
expenses arising from such default (including, withhold limitation, any payments
made to cure such default) from any such payment to be made to Tenant and (ii)
such payment to Tenant shall in no event exceed Tenant's Tax Payment paid for
such Tax Year. Such refund shall be made to Tenant within sixty (60) days of
Landlord's receipt thereof.
(g) If the Taxes comprising the Base Tax Amount are reduced as a
result of an appropriate proceeding or otherwise, the Taxes as so reduced shall
for all purposes be deemed to be the Base Tax Amount and Landlord shall notify
Tenant of the amount by which the Tax Payments previously made were less than
the Tax Payments required to be made under this SECTION 3.04, and Tenant shall
pay the deficiency within twenty (20) days after demand therefor.
SECTION 3.05. [INTENTIONALLY OMITTED]
SECTION 3.06. TAX PROVISIONS. (a) Landlord's failure to render or
delay in rendering any statement with respect to any Tax Payment or installment
thereof shall not prejudice Landlord's right to thereafter render such a
statement, nor shall the rendering of an incorrect statement for any Tax Payment
or installment thereof prejudice Landlord's right to thereafter render a
corrected statement therefor. If Landlord fails to render a statement with
respect to any particular Tax Payment or installment thereof within two (2)
years after the Expiration Date of this Lease, Landlord shall be deemed to have
waived its right to claim any deficiency.
(b) Landlord and Tenant confirm that the computations under this
ARTICLE 3 are intended to constitute a formula for agreed rental escalation and
may or may not constitute an actual reimbursement to Landlord for the Taxes. If
the Building shall be condominiumized, then Tenant's Tax Payments shall, if
necessary, be equitably adjusted such that Tenant shall thereafter continue to
pay the same share of the Taxes of the condominiumized Building as Tenant would
pay in the absence of such condominimization.
(c) Each Tax Payment in respect of a Tax Year, which begins prior to
the commencement of the Term or ends after the expiration or earlier termination
of this Lease, and any tax refund pursuant to SECTION 3.04(f), shall be prorated
to correspond to that portion of such Tax Year occurring within the Term.
(d) Landlord shall have no obligation to bring any application or
proceeding seeking a reduction in Taxes or the assessed valuation of the
Building. Tenant hereby waives to the fullest extent permitted by law any right
Tenant may now or in the future have to protest or contest any Taxes or to bring
any application or proceeding seeking a reduction in Taxes or the assessed
valuation of the Building or otherwise challenging the determination thereof.
9
SECTION 3.07. ELECTRIC CHARGES. (a) Landlord shall supply the Premises
with electrical service equal to six (6) xxxxx, demand load, exclusive of the
HVAC System serving the Premises, per rentable square foot contained in the
Premises ("ELECTRIC CAPACITY"), and shall cause Tenant's electric energy usage
to be measured on a submetering basis. If the electric service supplied to the
Premises is supplied by more than one (1) submeter, then the readings will be
aggregated through a totalizing meter and billed on a coincident demand basis as
if billed through a single meter. Landlord shall, at Landlord's expense,
purchase and install the submeter(s). Tenant shall pay Landlord, as additional
rent within thirty (30) days of receipt of its next rent xxxx, for the kw hours
and kw demand used by Tenant at Landlord's average cost per kilowatt hour for
the Building, plus five (5%) percent thereof for providing, reading and billing
the submetering service (the "5% FEE"). Landlord shall have the sole right to
select the provider of electricity for the Building; PROVIDED, however, that
Landlord shall not select a provider of electricity for the Buildings in which
Landlord has an economic interest other than the ownership of publicly-traded
common stock. Tenant, from time to time, shall have the right to review the
readings of Tenant's submeter(s) and Landlord's calculation of the Additional
Charges for electricity, at reasonable times and on reasonable prior notice, on
or prior to the ninetieth (90th) day after the date on which Tenant receives the
rent xxxx or statement which includes such Additional Charges. If (x) Tenant
participates in a rebate or incentive program sponsored by the utility company
serving the Project, (y) such rebate inures exclusively to the benefit of Tenant
and (z) such rebate or credit is paid or given to Landlord, Landlord shall pay
the amount of the same to Tenant thirty (30) days after the receipt of a request
from Tenant therefor. Notwithstanding the foregoing, Tenant shall have the right
to obtain electric service directly from the Power Authority of the State of New
York ("PASNY") provided that (i) Tenant shall have notified Landlord that it has
elected to obtain electric service from PASNY, (ii) Tenant shall pay all costs
and expenses incurred by Tenant or Landlord in connection with obtaining such
direct electric service from PASNY, including without limitation, the cost of
installing any direct meters and risers required in connection therewith, (iii)
Tenant shall pay to Landlord the 5% Fee, (iv) Tenant shall have obtained such
direct service on or before the six (6) month anniversary of the date of this
Lease, and (v) Tenant at its cost and expense shall remove all meters, risers or
other equipment installed in the Building or Premises in connection with such
direct electrical service from PASNY upon the Expiration Date or the earlier
termination of this Lease. In the event that Tenant has not contracted with
PASNY on or before the 6th month anniversary of the date of this Lease, Tenant
shall be required to obtain electrical service from Landlord in accordance with
the provisions of this Section 3.07.
(b) Prior to the date that Landlord shall install submeter(s) at the
Initial Premises or the Additional Premises, as the case may be, Tenant shall
pay in monthly installments in advance, as additional rent for its consumption
of electricity at the Initial Premises or the Additional Premises, as
applicable, a per annum sum equal to the product of (A) $2.50 and (B) the
rentable square feet of the Initial Premises and/or the Additional Premises, as
applicable, provided, however, that until such time as Tenant shall have
occupied the Initial Premises or the Additional Premises, respectively, for the
conduct of its business, Tenant shall pay for its consumption of electricity a
per annum sum equal to the product of (A) $1.00 and (B) the rentable square feet
of the Initial Premises and/or the Additional Premises. Landlord shall install
submeter(s) at the Premises no later than one year from the Possession Date with
respect to each of the Initial Premises and the Additional Premises,
respectively.
10
(c) If it shall become unlawful for Landlord to submeter Tenant's
electric energy usage, such usage shall thereafter be paid for and measured as
follows:
(i) Tenant agrees to pay for its electric usage as additional
rent (hereinafter referred to as the "ADDITIONAL RENT FOR ELECTRICITY"). The
Additional Rent for Electricity shall be determined initially by a survey of the
Premises made by an electrical consultant or electrical engineer chosen by
Landlord. The survey so made will determine the number of kw hours and kw demand
based on the electrical equipment and fixtures in the Premises and the period of
use thereof, and based thereon will determine the value, expressed in dollars
per year, of Tenant's electric energy usage. The rate Tenant shall pay will be
the service classification under which the public utility bills Landlord
commensurate with the rate of usage as shown by the survey, plus five (5%)
percent of such amount for Landlord's administrative costs. The Additional Rent
for Electricity so determined, as adjusted from time to time pursuant to
subparagraphs (ii), (iii) and (iv), shall be paid by Tenant in equal monthly
installments in advance on the first day of each month during the Term, without
any set off or deduction of any kind.
(ii) If the public utility rate schedule for the supply of
electric current to the Building shall be increased or decreased subsequent to
the date of the survey referred to above, or if there shall be an increase or
decrease in the fuel adjustment or taxes, or if additional taxes, surcharges, or
charges of any kind shall be imposed upon the sale or furnishing of such
electric current, the Additional Rent for Electricity shall be increased or
decreased by applying the changed rate, fuel adjustment and taxes to the kw
hours and kw demand shown on the electric survey then in effect.
(iii) If there shall be a change subsequent to the initial
survey, or any future survey, in the Premises, or in the number of hours during
which the Premises is used, or if Tenant's failure to maintain its installations
in good order and repair causes greater consumption of electric current, or if
Tenant uses electricity for purposes other than the use permitted hereunder, or
if Tenant adds and fixtures, machinery or equipment which significantly
increases its electricity usage, the Additional Rent for Electricity,
theretofore adjusted, shall be increased by applying to the additional kw hours
and kw demand furnished by Landlord the Service Classification Rate under which
the public utility bills Landlord commensurate with the rate for the usage as
shown by the survey, plus five (5%) percent of such amount for Landlord's
administrative costs. If Tenant's electricity usage shall decrees due to the use
of its electric fixtures or equipment, the Additional Rent for Electricity,
theretofore adjusted, shall be decreased by applying the Service Classification
Rate aforesaid to the lesser kw hours and kw demand.
(iv) Landlord and Tenant shall each have the right from time to
time during the Term to have an electric rate consultant or electrical engineer
survey the electric current consumed by Tenant in the Premises. If such
consultant determines that the value of the electric current furnished Tenant is
more or less than the Additional Rent for Electricity, as most recently
adjusted, such annual amount shall be further adjusted to equal the amount
determined by said consultant. The cost of the survey shall be borne by the
party ordering the same.
11
(v) Landlord shall deliver a copy of the initial survey, and a
copy of any future survey made pursuant to this Section 3.07(c), to Tenant, and
Tenant shall have ninety (90) days within which it may protest the findings
contained therein. If Tenant fails to protest within the ninety (90) day period,
the findings contained in the survey shall be final. If Tenant protests within
the ninety (90) day period (by sending Landlord a notice in the manner herein
provided for the giving of notices), Tenant shall have a second survey made by
an electric engineer or electric rate consultant of its choice, and deliver a
copy thereof to Landlord within ninety (90) days of the date of the protest. If
Landlord's and Tenant's surveyors are unable to agree upon the amount of
electric energy consumed by Tenant, or the amount of any increase or decrease,
or an any other matter contained in the surveys, the determination of the same
shall be submitted to arbitration under the rules of the American Arbitration
Association then obtaining. The determination of the electric rate consultant or
engineer, or the American Arbitration Association if there is disagreement and
the determination is submitted to arbitration made pursuant to this
subparagraph, shall be binding on Landlord and Tenant. The parties hereto shall,
within ten (10) days from the date of any such determination, execute,
acknowledge and deliver to each other an agreement setting forth the adjusted
Additional Rent for Electricity, but such increase or decrease shall be
effective from the date of the increase or decrease (subparagraph (ii)), or
change (subparagraph (iii)), or new survey (subparagraph (iv)), whether or not
such agreement is executed, and notwithstanding the date of execution thereof.
(d) Landlord shall not in any way be liable or responsible to
Tenant, except where due to Landlord's negligence, for any loss, damage or
expense which Tenant may sustain or incur if, during the Term, by reason of
the act or inaction of the public utility servicing the Project, either the
quantity or character of electrical energy is changed or is no longer
available or suitable for Tenant's requirements. Landlord shall not be
obligated to increase the existing electrical capacity of any portion of the
Building's systems, nor to provide any additional wiring or capacity to meet
Tenant's requirements, other than as set forth in SECTION 3.07(a). Tenant
shall make no substantial alteration or addition to the electrical equipment
in the Premises as of the commencement of the Term, nor increase the use of
electricity in the Premises (except to a DE MINIMIS extent) without the prior
written consent of the Landlord in each instance, which consent Landlord
agrees not to unreasonably withhold or delay. Subject to Tenant's Electric
Capacity right under SUBSECTION 3.07(a) herein, Tenant covenants and agrees
that at all times its use of electric current shall never exceed the capacity
of the then existing feeders of the Building or the risers or wiring
installations, and further agrees, subject to its Electric Capacity right
under SUBSECTION 3.07(a) herein, that Tenant may not use any electrical
equipment which, in Landlord's opinion, reasonably exercised, will overload
such installations or interfere with the use thereof by any other tenants of
the Building.
SECTION 3.08. MANNER OF PAYMENT. Tenant shall pay all Rent as the same
shall become due and payable under this Lease (a) in the case of Fixed Rent and
recurring Additional Charges, by wire transfer of immediately available federal
funds as directed by Landlord, and (b) in the case of all other sums, either by
wire transfer as aforesaid or by check (subject to collection) drawn on a New
York Clearing House Association member bank, in each case at the times provided
herein without notice or demand and without setoff or counterclaim. If Landlord
shall direct Tenant to pay Fixed Rent by wire transfer, then Tenant shall not be
in default of Tenant's obligation to pay any such Fixed Rent if and for so long
as Tenant shall timely comply with Landlord's wire instructions in connection
with such payments. If Tenant shall have timely
12
complied with Landlord's instructions pertaining to a wire transfer, but the
funds shall thereafter have been misdirected or not accounted for properly by
the recipient bank designated by Landlord, then the same shall not relieve
Tenant's obligation to make the payment so wired, but shall toll the due date
for such payment until the wired funds shall have been located. All Rent shall
be paid in lawful money of the United States to Landlord at its office or such
other place as Landlord may from time to time designate. If Tenant fails timely
to pay any Rent, Tenant shall pay interest thereon from the date when such Rent
became due to the date of Landlord's receipt thereof at the lesser of (i) the
base rate from time to time to announced by Citibank, N.A. (or if Citibank, N.A.
shall not exist, such other major bank in New York, New York as shall be
designated by Landlord in a notice to Tenant) to be in effect at its principal
office in New York, New York (the "BASE RATE") plus 3% per annum or (ii) the
maximum rate permitted by law. Any Additional Charges for which no due date is
specified in this Lease shall be due and payable on the 30th day after the date
of Landlord's invoice therefor. All bills, invoices and statements rendered to
Tenant with respect to this Lease shall be binding and conclusive on Tenant
subject to Section 6.13 hereof. Notwithstanding anything to the contrary
contained in this Lease, Rent shall be due and payable on the first day of the
month and failure to pay such Rent on or prior to the first day of any month
shall be considered a default under this Lease and interest shall accrue as
provided in this SECTION 2.08 from and after the first day the Rent becomes due
and payable.
SECTION 3.09. OPERATING EXPENSES. (a) The term "OPERATING EXPENSES"
shall mean all expenses of each and every type and nature, foreseen and
unforeseen, ordinary and extraordinary paid or incurred (without duplication of
an included item) by Landlord in respect of the operation, repair, safety,
management, security and maintenance (including deferred maintenance) of the
Premises which are necessary or appropriate for the operation of the Building as
a First-Class Office Building (as defined in the Xxxxxxxxx), but specifically
excluding (or deducting as appropriate) expenses incurred in connection with or
arising from:
(i) Taxes,
(ii) Fees paid or payable for managing and/or operating the
Building in excess of the amount customarily charged by highly
reputable managing and/or operating firms providing such services in
First-Class Office Buildings;
(iii) Any capital expenditure made by Landlord unless such
capital expenditure results in a savings of, or reduction in,
Operating Expenses ("COST SAVINGS"); provided, however, (i) the costs
of such capital expenditure shall only be included in Operating
Expenses in any Operating Year to the extent of the annual
amortization thereon calculated on a straight-line basis over the
useful life of such capital improvement (as reasonably determined in
accordance with generally accepted accounting principles), together
with interest thereon at the Interest Rate and (ii) in no event shall
there be included in Operating Expenses for any Operating Year an
amount greater than the amount by which Operating Expenses are reduced
in such Operating Year due to such capital expenditure;
(iv) Any other capital improvement or replacement not described
in clause (iii) above made by Landlord unless such capital improvement
is required by a Law enacted after the Commencement Date other than a
Law which affects
13
only leaseable space other than the than the Premises; provided,
however, the costs of such capital improvement shall only be included
in Operating Expenses in any Operating Year to the extent of the
annual amortization thereon calculated on a straight-line basis over
the useful life of such capital improvement (as reasonably determined
in accordance with generally accepted accounting principles), together
with interest thereon at the Interest Rate;
(v) Any repairs (whether or not pursuant to Laws) made solely
for the benefit of leaseable space other than Premises;
(vi) Any machinery, equipment or tools used (A) solely within, or
solely for the benefit of leaseable areas (other than the Premises) or
(B) in connection with any alteration or other capital improvement or
replacement which is excluded from Operating Expenses;
(vii) Premiums for any insurance carried by Landlord other than
(A) the insurance specified in Section 7.1(a), (b), (c), (d), (e),
(f), (g) and (i) of the Xxxxxxxxx and (B) the insurance specified in
Section 7.1 (h) of the Xxxxxxxxx to the extent that such insurance
relates to a capital expenditure which is not excluded from Operating
Expenses pursuant hereto.
(viii) Professional and consulting fees, including legal and
accounting fees, not directly related to the operation of the
Premises;
(ix) Computer time, telephone, bookkeeping and other expenses not
directly related to the operation of the Premises;
(x) Security within any leaseable space;
(xi) Leasing or procuring subtenants for the Building, including
leasing commissions and advertising expenses, and all legal,
accounting and consultants, fees, disbursements and expenses incurred
in disputes with subtenants or enforcement of subleases or entering
into sublease or preparing space for any subtenant;
(xii) Any items which are reimbursable to Landlord by insurance,
warranties or otherwise other than pursuant to operating expense
clauses similar to those in this Article 3;
(xiii) Charges for which Landlord is entitled to reimbursement
from any subtenant, including services rendered or performed directly
for the account of subtenants at such subtenants' cost or for which a
separate charge is made (other than pursuant to operating expense
clauses similar to those in this Article 3);
(xiv) Depreciation (provided, however, that such exclusion of
depreciation shall not affect the inclusions in Operating Expenses of
the amortized items required to be amortized pursuant to the
provisions of clauses (iii) and (iv) of this Section 3.09(a));
14
(xv) Any debt incurred by Landlord, including, without
limitation, installments of principal and interest and any other sum
due and payable under any mortgage (provided that the foregoing shall
not exclude the costs of performing and obligations under such
mortgage if such costs are not otherwise excluded under this Section
3.09), and any expenses incurred in connection therewith;
(xvi) Rent and other charges due and payable under the Xxxxxxxxx
(provided that the foregoing shall not exclude the costs of performing
any obligations under the Xxxxxxxxx if such costs are not otherwise
excluded under this Section 3.09);
(xvii) The cost of installing, operating and maintaining any
specialty service or facility, such as the Auditorium, an observatory,
broadcasting facilities, athletic or recreational club, other than the
net costs of operating the Cafeteria during any period in which the
Cafeteria is in operation;
(xviii) The portion of any costs paid to a party related to
Landlord and included in Operating Expenses which is in excess of the
amount which would have been paid in the absence of such relationship;
(xix) The costs of acquiring, maintaining, displaying and
insuring all sculptures, paintings and other works of art in the
Building (other than the costs of maintaining and insuring the Works
of Art (as defined in the Xxxxxxxxx);
(xx) Lease payments for rented equipment, the cost of which
equipment if purchased would not be includable in Operating Expenses;
(xxi) Income, franchise, capital stock, transfer, inheritance,
estate or gift taxes of Landlord;
(xxii) Investigation, removal, enclosure or encapsulation of
asbestos or other Hazardous Materials;
(xxiii) All employee wages, salaries and other labor costs for
personnel above the grade of building manager and the portion of
employee wages, salaries and other labor costs attributable to time
not spent in connection with the Building or for items excludable from
Operating Expenses (it being agreed that items such as vacation time,
sick days and such other time off included in other labor costs shall
not be deemed to be "time not spent in connection with the Building"
but shall be apportioned in the same manner as wages and salaries);
(xxiv) The gross negligence, willful misconduct or other tortious
conduct of Landlord or any of Landlord's subtenants (other than Tenant
and any person (other than Landlord) rightfully claiming by, through
or under Tenant in its capacity as subtenant under this Lease);
(xxv) Fines or penalties, interest or late fees imposed upon
Landlord;
15
(xxvi) Advertising and other promotional expenditures or any
signage installed by Landlord in or on the Building;
(xxvii) Landlord's Roof Installations (as defined in the
Xxxxxxxxx);
(xxviii) The contest of any Law if such Law applies solely to
leaseable space other than the Premises;
(xxix) Any special events (e.g., receptions, concerts);
(xxx) Any violation by Landlord or any of Landlord's subtenants
(other than Tenant and any person (other than Landlord) rightfully
claiming by, through or under Tenant in its capacity as subtenant
under this Lease) of any other sublease of space in the Building
(provided that the foregoing shall not exclude the costs incurred by
Landlord in performing any of Landlord's obligations (such as repairs)
under such sublease if such costs are not otherwise excluded under
this Section 3.09);
(xxxi) Landlord's general corporate overhead and general and
administrative expenses;
(xxxii) All charitable or political contributions (other than any
reasonable fees, dues and other contributions paid by or on behalf of
Landlord to real estate organizations such as the Real Estate Board of
New York and BOMA (and their successors) to the extent generally that
landlords of First-Class Office Buildings are members thereof or make
contributions thereto);
(xxxiii) The incremental additional cost of providing services to
another occupant of the Building in excess of the services which
Landlord is obligated to provide to Tenant under this Lease at
Landlord's expense; and
(xxxiv) Any takeover lease obligations or lease or sublease
obligations assumed by Landlord.
(b) The term "OPERATING YEAR" shall mean the Base Operating Year and
each succeeding calendar year thereafter.
(c) The term "OPERATING STATEMENT" shall mean a written statement
prepared by Landlord or its agent, setting forth Landlord's computation of the
sum payable by Tenant under this Section 3.09 for a specified Operating Year.
(d) In determining the amount of Operating Expenses for any Operating
Year (including the Base Operating Year), if less than all of the Building
leasable area shall have been occupied by Landlord and/or subtenant(s)
(including Tenant) at any time during any such Operating Year, Operating
Expenses shall be determined for such Operating Year to be an amount equal to
the like expenses which would normally be expected to be incurred had all such
areas (to the extent of ninety-eight percent (98%) of the leasable area of the
Building, excluding
16
all Mechanical Space (as defined in the Xxxxxxxxx) and areas used to provide
services to which Tenant is not granted access) been occupied throughout such
Operating Year.
(e) For each Operating Year, Tenant shall pay to Landlord as
Additional Rent, an amount (herein called the "OPERATING PAYMENT") equal to
Tenant's Share of the Operating Expenses for such Operating Year to the extent
such Operating Expenses are in excess of the Operating Expenses for the calendar
year 2002 (the "BASE OPERATING YEAR"). If Tenant's Share for an applicable
Operating Year is redetermined in a particular Operating Year, Tenant's
Operating Payment for that Operating Year shall be adjusted accordingly to
reflect the applicable redetermination of Tenant's Share.
(f) Landlord shall furnish to Tenant, prior to the commencement of
each Operating Year after the Base Operating Year, a written statement setting
forth in reasonable detail Landlord's reasonable estimate of the Operating
Payment for such Operating Year, based upon the method set forth in the
preceding sections for computing the Operating Payment. Tenant shall pay to
Landlord on the first day of each month during such Operating Year an amount
equal to one-twelfth (1/12th) of Landlord's reasonable estimate of the Operating
Payment for such Operating Year (or the amount necessary to pay the estimate in
full in equal monthly installments prior to the expiration of the then Operating
Year). If, However, Landlord shall furnish any such estimate for an Operating
Year subsequent to the thirtieth (30th) day prior to the commencement thereof,
then (a) until the first day of the month following the month in which such
estimate is furnished to Tenant, Tenant shall pay to Landlord on the first day
of each month an amount equal to the monthly sum payable by Tenant to Landlord
under this Section 3.09 in respect of the last month of the preceding Operating
Year; (b) promptly after such estimate is furnished to Tenant, Landlord shall
give notice to Tenant stating whether the installments of the Operating Payment
previously made for the Operating Year were greater of less than the
installments of the to be made for such Operating Year in accordance with such
estimate, and (i) if there shall be a deficiency, Tenant shall pay the amount
thereof within thirty (30) days after demand therefor, and (ii) if there shall
have been an overpayment, Landlord shall, within thirty (30) days of providing
Tenant with such estimate, at Tenant's election either refund to Tenant the
amount thereof or permit Tenant to credit the amount thereof against the Rent
against the Rent payable hereunder, and (c) on the first day of the month
commencing at least thirty (30) days subsequent to date on which such estimate
is furnished to Tenant, and monthly thereafter throughout the remainder of such
Operating Year, Tenant shall pay to Landlord an amount equal to one-twelfth
(1/12th) of the Operating Payment shown on such estimate. Landlord may, not more
than twice during each Operating Year, furnish to Tenant a revised statement of
Landlord's estimate of the Operating Payment for such Operating Year, based upon
the method set forth in the preceding sections for computing the Operating
Payment; and in such case, the Operating Payment for such Operating Year shall
be adjusted and paid or refunded, as the case may be, substantially in the same
manner as provided in the preceding sentence.
(g) Within one hundred twenty (120) days after the end of each
Operating Year occurring after the Base Operating Year, Landlord shall furnish
to Tenant an Operating Statement for such Operating Year, based on the method
set forth in the preceding sections for computing the Operating Payment and
certified by a reputable independent certified public accountant selected by
Landlord setting forth in reasonable detail the actual Operating Expenses
17
incurred by Landlord during such Operating Year. If the Operating Statement
shall show that the sums paid by Tenant exceeded the Operating Payment to be
paid by Tenant for such Operating Year, Landlord shall promptly at Tenant's
election either refund to Tenant the amount of such excess or permit Tenant to
credit the amount of such excess against subsequent payments of Rent payable
under this Lease; and if the Operating Statement for such Operating Year shall
show that the sums so paid by Tenant were less than the Operating Payment to be
paid by Tenant for such Operating Year, Tenant shall pay the amount of such
deficiency within thirty (30) days after demand therefor. If the Operating
Statements shall show that the estimated sums theretofore estimated by Landlord
and paid by Tenant for such operating Year exceeded the Operating Payment for
such Operating Year by more than ten (10%) percent, Landlord shall pay to Tenant
interest on the excess over ten (10%) percent at the Interest Rate from the end
of the applicable Operating Year to which the overpayment relates to the date
such overpayment is refunded or credited.
(h) Each Operating Statement given by Landlord shall be conclusive and
binding upon Tenant (i) unless within three (3) months after the receipt of the
Operating Statement for the succeeding Operating Year, Tenant shall notify
Landlord that it disputes the correctness of the Operating Statement specifying
the particular respects in which the Operating Statement is claimed to be
incorrect, and (ii) if such disputes shall not have been settled by agreement
within three (3) months after such notice of dispute, either party may submit
the dispute to arbitration in accordance with the provisions of Section 8.19
hereof. Pending the determination of such dispute by agreement or arbitration as
aforesaid, Tenant shall within thirty (30) days after the receipt of such
Operating Statement pay the Operating Payment in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's Operating
Statement and interest, if applicable, in accordance with Section 3.09(g)
hereof.
(i) If an Operating Year ends after the expiration or termination of
this Lease, the Operating Payment in respect thereof shall be appropriately
prorated.
(j) The failure of Landlord to render an Operating Statement for any
Operating Year shall not prejudice Landlord's right, or relieve Landlord of the
obligation, to thereafter render such Operating Statement or relieve or release
Tenant from any obligation to pay Tenant's Share of Operating Expenses for any
Operating Year, but, if Landlord shall fail to render an Operating Statement for
any year by June 30 of the succeeding calendar year, Tenant may cease to pay,
until such Operating Statement is rendered, estimated installments of Tenant's
Operating Payment. Further, Landlord shall be precluded from adjusting any
Operating Statement to increase the costs included within Tenant's Share of
Operating Expenses subsequent to the date (the "CUT-OFF DATE") that is
thirty-six (36) months subsequent to the expiration of the Operating Year to
which the applicable Operating Statement relates, but nothing shall preclude or
prevent Landlord from furnishing Tenant with corrections or adjustments to any
Operating Statement for any applicable Operating Year prior to the applicable
Cut-Off Date.
(k) Tenant, upon reasonable notice, may (but only with its authorized
employees or with a firm of reputable independent certified public accountants
selected by Tenant) elect to examine such of Landlord's books and records with
respect to the applicable Operating
18
Statement (collectively, "Records") as are directly relevant to any disputed
amount included in the Operating Statement in question. In making such
examination, Tenant shall, and shall cause its officers, employees and
accountants to, keep confidential any and all information contained in the
Records.
(l) Subject to the foregoing clause (j) of this Section, the
provisions of this Article 3 shall survive the expiration or earlier termination
of this Lease as to all Additional Charges due Landlord or credit owed Tenant
accruing on or before the date of such expiration or termination, including all
disputed items as well as the Additional Charges due for the last Operating
Year, or portion thereof, falling within the Term. Within one hundred fifty
(150) days following such expiration or earlier termination, Landlord shall
render to Tenant a preliminary uncertified Operating Statement, and Landlord and
Tenant shall, subject to year-end adjustments, preliminarily adjust the amount
due Landlord or Tenant, as the case may be, for such last year or portion
thereof, subject to year-end adjustments, and the party owing any portion of the
same to the other shall promptly pay the same. Landlord shall issue a final
Operating Statement for such last year or portion thereof on or before April 30
of the succeeding calendar year, and all amounts due Landlord or Tenant based
thereon shall be adjusted between the parties.
ARTICLE 4
LANDLORD SERVICES
SECTION 4.01. LANDLORD SERVICES. (a) From and after the date that
Tenant first occupies any portion of the Premises for the conduct of Tenant's
business, Landlord shall continue to operate the Building in the same manner as
it is being operated as of the date hereof and Landlord shall furnish Tenant
with the following services (collectively, "LANDLORD SERVICES"):
(i) Landlord shall furnish air conditioning, ventilation and heat
("HVAC") (i) to the common areas of the Building, including, without limitation,
the Building lobby to the extent such areas would customarily be provided with
such services and (ii) to the Premises, during the hours between 8:00 A.M. and
6:00 P.M. on Business Days, subject to all Laws and in accordance with the
Specifications for HVAC, which are attached hereto as Exhibit E. Landlord,
throughout the Term, shall have free access to any and all mechanical
installations of Landlord, including, but not limited to, air-cooling, fan,
ventilating and machine rooms and electrical closets; Tenant shall not construct
partitions or other obstructions which may unreasonably interfere with
Landlord's free access thereto, or unreasonably interfere with the moving of
Landlord's equipment to and from the enclosures containing said installations.
Neither Tenant, nor its agents, employees or contractors shall at any time enter
the said enclosures or tamper with, adjust or touch or otherwise in any manner
affect said mechanical installations.
(ii) Tenant acknowledges that, during hours other than Business
Hours ("OVERTIME PERIODS"), the Premises will likely require overtime or
alternative HVAC for comfortable occupancy. Tenant further acknowledges that the
normal operation of the HVAC
19
System is not designed to provide sufficient cooling of portions of the Premises
which shall have an electrical load in excess of 4 xxxxx per square foot of area
for all purposes (including lighting and power) or which shall have a human
occupancy factor in excess of one person per 150 square feet of usable area.
Tenant shall be responsible for the proper distribution of HVAC throughout each
floor of the Premises based upon its design criteria, occupancy, equipment and
lighting and other factors which affect the effective cooling or heating of each
floor.
(iii) The Fixed Rent does not reflect or include any charge to
Tenant for the furnishing of any HVAC to Premises during Overtime Periods.
Accordingly, if Landlord furnishes HVAC to the Premises at the request of Tenant
during Overtime Periods, then Tenant shall pay Landlord additional rent for such
services at the Building Rate. As used herein, the term "BUILDING RATE" shall
mean Landlord's cost of providing HVAC services, as reasonably determined by
Landlord (without additional charge), computed on the basis of (a) the cost of
labor and (b) charges for electricity and other utilities. Landlord shall not be
required to furnish any such services during any Overtime Period unless Landlord
has received advance written notice delivered to Landlord's designated building
manager from Tenant requesting such services prior to 3:00 P.M. of the day upon
which such services are requested or by 3:00 P.M. of the last preceding Business
Day if such Overtime Periods are to occur on a day other than a Business Day. If
Tenant fails to give Landlord such advance notice, then failure by Landlord to
furnish or distribute any such services during such Overtime Periods shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of Rent, 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. If more than one tenant
utilizing the same system as Tenant requests the same Overtime Periods for the
same services as Tenant, the charge to Tenant shall be adjusted pro rata.
(iv) Tenant shall be entitled to Tenant's Share of the 500 tons of
condenser water in the Building and Landlord agrees to reserve Tenant's Share
for the operation of Tenant's supplemental air conditioning units servicing the
Premises on a twelve-month basis. Tenant shall advise Landlord by no later than,
with respect to the Initial Premises, May 1, 2002 and, with respect to the
Additional Premises, the later of May 1, 2002 ninety (90) days after delivery of
the Additional Premises, of the amount of condenser water Tenant shall
thereafter need for its supplemental condenser water requirements. Prior to the
date that Tenant advises Landlord of the amount of air conditioning required,
Landlord shall reserve Tenant's Share of the condenser water. If Tenant fails to
advise Landlord of the amount of condenser water to reserve for Tenant by the
dates set forth in the preceding sentence, Tenant shall be deemed to reserve the
Tenant's Share thereof. Tenant shall pay Landlord's actual cost (not to include
depreciation or amortization of equipment) for the amount of condenser water
reserved, whether or not actually used. Landlord agrees to reasonably
substantiate such costs to Tenant with bills, invoices and other pertinent
documentation. Landlord, upon request of Tenant, will consider in good faith
increasing Tenant's Share with respect to the 500 tons of condenser water in the
Building based on the current and anticipated needs of Landlord and other
tenants at the Building. Should Landlord, after good faith consideration, advise
Tenant that it is unable to increase Tenant's share with respect to such
condenser water, Landlord shall, at Tenant's request, consider in good faith
after consideration of the amount of current and future riser space and roof
space and other relevant factors, allowing Tenant to install, at Tenant's sole
cost and
20
expense, a cooling tower on the roof of the Building for Tenant's additional air
conditioning needs, subject to such reasonable requirements and reimbursement
and indemnity obligations as Landlord may impose with respect thereto.
(v) Landlord shall provide non-exclusive passenger elevator
service to each floor of the Premises twenty-four (24) hours per day, seven (7)
days per week, it being agreed that Landlord may reasonably reduce the number of
elevator cars in operation at times other than Business Hours.
(vi) Landlord will, through vertical plumbing risers in the
Building, supply Tenant with (i) an adequate quantity of warm and cool water for
(a) lavatory, cleaning and drinking purposes, and (b) pantry purposes, provided
that there is no more than (4) pantries per floor of the Premises consuming not
more than (3) gallons per minute per pantry, and such pantry consists of no more
than a sink, a unit for brewing and dispensing coffee, a microwave, vending
machines and a refrigerator, and that the same are used by Tenant for standard
pantry purposes in keeping with a First-Class Office Building and (ii) a
quantity of water for Tenant's sprinklers in the Premises which complies with
Laws.
(vii) Landlord shall provide electrical capacity equal to 6
xxxxx, demand load, exclusive of the HVAC system serving the Premises, per
rentable square foot contained in the Premises; [such electrical capacity shall
be available at the electrical closet on each floor of the Building on which the
Premises is located (it being understood that Tenant shall be responsible for
distributing such electrical capacity from the electrical closet to the
Premises)]. In no event shall Tenant's consumption of electricity exceed the
capacity of existing feeders to the Building or the risers or wiring serving the
Premises (which shall not be less than 6 xxxxx, demand load, exclusive of the
HVAC system serving the Premises, per rentable square foot), nor shall Tenant be
entitled to any unallocated power available in the Building unless, in
Landlord's judgment (taking into account the then existing and future reasonably
anticipated needs of other then existing and future tenants, including Landlord,
and other needs of the Building), the same is available and reasonably necessary
for Tenant's use. If such additional capacity is not available, Landlord shall,
if reasonably feasible, extend or install, at Tenant's sole cost and expense
(which expense shall equal Landlord's actual out-of-pocket costs), additional
risers.
(viii) From and after the date that Tenant first occupies any
portion of the Premises for the conduct of Tenant's business, cleaning services
shall be provided in accordance with the standards set forth on Exhibit H
attached hereto. Landlord shall not be required to perform any (A) extra
cleaning work in the Premises required because of (w) carelessness,
indifference, misuse or neglect on the part of Tenant, its subtenants or their
respective employees or visitors, (x) interior glass partitions or an unusual
quantity of interior glass surfaces, (y) non-building standard materials or
finishes installed in the Premises and/or (z) the use of the Premises other than
during Business Hours on Business Days and/or (B) removal from the Premises and
the Building of any refuse of Tenant (x) in excess of that ordinarily
accumulated in business office occupancy, including, without limitation, kitchen
refuse and/or (y) at times other than Landlord's standard cleaning times, which
times shall be consistent with the times during which offices are customarily
cleaned. Notwithstanding the foregoing, Landlord shall not be required to clean
any portions of the Premises used for preparation, serving or consumption of
food or beverages, training rooms, data processing or reproducing operations,
21
private lavatories or toilets or other special purposes requiring greater or
more difficult cleaning work than office areas, and Tenant shall retain
Landlord's cleaning staff or Landlord's cleaning contractor, as applicable, to
perform such cleaning at Tenant's expense; provided, however, that Landlord
shall, to the extent practicable, perform the cleaning services specified on
Exhibit H in any training rooms and data processing or reproducing operations,
at no additional charge. Landlord agrees that the rate charged to Tenant for any
additional cleaning services shall be at Landlord's standard cleaning rates.
Landlord's cleaning staff or Landlord's cleaning contractor, as applicable,
shall have access to the Premises after 5:00 p.m. and before 8:00 a.m. and shall
have the right to use, without charge therefore, all light, power and water in
the Premises reasonably required to clean the Premises.
(ix) Freight elevator service shall be provided to the Premises
on an equitable basis from 8:00 a.m. to 5:00 p.m. Monday through Friday, and on
a reserved basis at all other times upon the payment of Landlord's actual cost
for the use of the freight elevator and loading dock, including, without
limitation, the cost of an operator for elevator.
(b) Landlord may stop or interrupt any Landlord Services, electricity,
or other service and may stop or interrupt the use of any Building facilities
and systems at such times as may be necessary and for as long as may reasonably
be required by reason of accidents, strikes, or the making of repairs,
alterations or improvements, or inability to secure a proper supply of fuel,
gas, steam, water, electricity, labor or supplies, or by reason of any other
cause (other than lack of funds) beyond the reasonable control of Landlord
("FORCE MAJEURE"). Landlord shall have no liability to Tenant by reason of any
stoppage or interruption of any Landlord Service, electricity or other service
or the use of any Building facilities and systems for any reason. Landlord shall
use reasonable diligence (which shall not include incurring overtime charges
unless (x) the stoppage or interruption is the result of Landlord's negligence
or (y) Tenant requests the same in which event Landlord shall employ contractors
or labor at so-called overtime or other premium pay rates and incur any other
overtime costs or expenses in making any repairs, and Tenant, if Tenant has
requested such service shall pay to Landlord, as additional rent, within thirty
(30) days after demand, an amount equal to the difference between the overtime
or other premium pay rates and the regular pay rates for such labor together
with any other overtime costs or expenses so incurred) to make such repairs as
may be required to machinery or equipment within the Project to provide
restoration of any Landlord Services and, where the cessation or interruption of
such Landlord Services has occurred due to circumstances or conditions beyond
the Project boundaries, to cause the same to be restored by diligent application
or request to the provider. Notwithstanding anything herein to the contrary, in
the event that any stoppage or interruption of services arises solely from
Landlord's negligence and as a result thereof Tenant is not able to occupy all
or any portion of its Premises for the conduct of its business therein for a
period in excess of ten (10) days, Fixed Rent and Additional Charges for the
portion of the Premises so affected shall be abated on a day-for-day basis for
each day following such 10-day period until such time as Tenant is able to
re-occupy the Premises (or portion thereof) for the conduct of its business.
(c) Without limiting any of Landlord's other rights and remedies, if
Tenant shall be in material monetary default beyond any applicable notice and/or
grace period, Landlord shall not be obligated to furnish to the Premises any
service outside of Business Hours on Business Days, and Landlord shall have no
liability to Tenant by reason of any failure to provide, or
22
discontinuance of, any such service during the continuance of any such default.
For purposes hereof, material monetary default shall mean default in the payment
of Fixed Rent, recurring Additional Charges and non-recurring Additional Charges
in an amount in excess of $50,000.
(d) "BUSINESS HOURS" means 8:00 a.m. to 6:00 p.m., Monday through
Friday. "BUSINESS DAYS" means all days except Saturdays, Sundays and holidays,
which shall include (but shall not be limited to) days which are either (i)
observed by both the federal and the state governments as legal holidays or (ii)
designated as a holiday by the applicable building service union employee
service contract or operating engineers contract; provided, that the holidays
covered under subsections (i) and (ii) above shall not be duplicative and
provided, further, that Lincoln's Birthday shall be deemed to be a Business Day.
(e) "RULES AND REGULATIONS" means the rules and regulations attached
hereto as EXHIBIT C, as the same may be modified or amended from time to time in
Landlord's reasonable discretion, provided that Tenant shall have been given
reasonable notice of such modifications or amendments. If there is any conflict
between the provisions of the Rules and Regulations and the provisions of this
Lease, the provisions of this Lease will control. Landlord shall not
discriminate against Tenant in the promulgation and enforcement of the Rules and
Regulations.
SECTION 4.02. AUDITORIUM AND CAFETERIA. (a) Effective as of January 1,
2002, Tenant shall have the right to utilize the Auditorium no more frequently
than once per calendar month, subject to the provisions of this SECTION 4.02.
(b) If Tenant desires to use the Auditorium, Tenant shall give notice
to Landlord prior to November 1st of each calendar year of the dates on which
Tenant desires to use the Auditorium during the period January 1st through June
30th of the subsequent calendar year and prior to May 1st of each calendar year
of the dates on which Tenant desires to use the Auditorium during the period
July 1st through December 31st of the current calendar year. Landlord shall
grant to Tenant the use of the Auditorium on such requested dates provided the
same have not been previously reserved by Landlord or Overlandlord. In addition,
Tenant shall have the right to request the use of the Auditorium on other dates
upon such prior notice as may be practicable. Landlord shall reasonably consider
such requests in light of its and Overlandlord's anticipated use of the
Auditorium for other purposes. Landlord represents and warrants that
Overlandlord is granted the right by Landlord to use the Auditorium no more than
twelve (12) times annually and the charges therefor are the same as those set
forth in Section 4.02(c) hereof. Tenant acknowledges that Overlandlord must
specify the dates it desires to use the Auditorium on or prior to November 1st
of each calendar year and that in the event Tenant and Overlandlord request the
same date, Landlord shall give Overlandlord first priority, as is required by
the prior agreement of the parties. Landlord shall promptly notify Tenant of the
dates that Overlandlord has requested use of the Auditorium upon obtaining the
same.
(c) Landlord shall charge Tenant for use of the Auditorium $5,000 per
day. The Auditorium may be reserved in full day or half day increments (and the
charges therefor adjusted accordingly). The foregoing charge shall be
"all-inclusive" and shall cover the costs of Landlord's supplying a customary
number of employees to operate the media equipment, cleaning, air conditioning
and all other services within the customary scope of operation of the
23
Auditorium. To the extent Tenant may request supplemental services outside of
such scope, Tenant shall billed at Landlord's actual cost therefor.
(d) All media equipment in the Auditorium shall be operated by
Landlord's employees or agents, provided that Tenant's employees shall have the
right to be present during the operation of the media equipment to ensure the
confidentiality of all of Tenant's presentations and confidential information
and Landlord's employees or agents shall reasonably cooperate with Landlord's
employees to ensure such confidentiality.
(e) The Cafeteria shall be operated by Landlord and Landlord's agents.
For so long as Landlord maintains the Cafeteria in the Building, Tenant will
have the right to use the Cafeteria on the same basis as Landlord and Landlord
agrees not to discriminate against Tenant in the use and enjoyment of, or access
to, the Cafeteria. In the event Landlord does not charge its employees for use
of the Cafeteria, Landlord shall change Tenant's employees the standard menu
prices for Cafeteria, Landlord agrees to make available for purchase by Tenant's
business visitors and employees "charge up" cards on the same basis as Landlord
makes such cards available to Landlord's employees and visitors by installing
one or more "cash to card" machines outside the Cafeteria. Notwithstanding
anything to the contrary in this Section 4.02(e), in no event shall the
Cafeteria be made available to any construction workers performing work at the
Building on behalf of Tenant or employees of Tenant not occupying portions of
the Premises. Landlord may establish from time to time reasonable rules and
regulations for the operation of the Cafeteria.
SECTION 4.03. TELECOMMUNICATIONS. Subject to Landlord's reasonable
prior approval and, to the extent required by the Xxxxxxxxx, the written
approval of Overlandlord, Tenant shall have the right to install, maintain and
operate, at Tenant's sole cost and expense, communications equipment (e.g. a
satellite dish) in a location on the roof of the Building, which location shall
be determined in Landlord's sole discretion. Such communications equipment shall
not exceed a footprint of five (5') feet by five (5') feet and shall weigh no
more than twenty (20) pounds. Landlord shall have the right to charge Tenant for
the use of space on the roof, in an amount not to exceed $1,250.000 per annum,
and such charge shall be considered an Additional Charge under this Lease. In
addition Landlord shall provide Tenant with sufficient shaft space within the
Building which is reasonably required to satisfy Tenant's telecommunication
needs to the extent such needs are not based on telecommunications use in excess
of that which is customary for commercial tenants of First-Class Office
Buildings using premises for general administrative office use.
SECTION 4.04. SECURITY. Landlord will furnish security for the common
areas of the Building, the procedures for which and type of security systems and
personnel involved shall be determined by Landlord, it being understood and
agreed that Landlord shall have no obligation to provide any security services
or systems to the Premises or to any area or system that is exclusively used by,
or is exclusively available to, Tenant other than existing tap-in points to the
Building's main vertical sprinkler riser and existing class "E" life-safety
system on each floor of the Premises, at Tenant's expense. Tenant, at Tenant's
expense, shall be allowed to interface its electronic security and life safety
systems with the Building's systems so that Tenant will be able to trigger the
Building's (i) security alarms through its security system (if the existing
security system, as modified, is capable of handling the same), and (ii) life
safety system
24
alarms through its life safety system (if the existing life safety system, as
modified, is capable of handling the same) provided that Tenant's systems (and
the interfacing of the same with the Building's systems) are compatible with,
and do not materially adversely affect, the Building's systems. Landlord shall
provide to Tenant employee access cards for the employees of Tenant located at
the Building, the number of which Tenant estimates to be 750, it being
understood that no employee shall be permitted access to the Building without a
valid and proper access card. The cost of the first 750 access cards shall be
borne by Landlord. Tenant shall reimburse Landlord for its actual cost of
supplying any future access cards or any replacement cards.
SECTION 4.05. SPECIAL PARKING RESTRICTION. Tenant agrees that,
irrespective of any right it may be granted pursuant to Laws to do otherwise, it
shall not park any vehicles in the "No Standing" or "No Parking" areas on 00xx
xxxxxx xxxxxxx Xxxxxxx xxx Xxxx Xxxxxxx.
ARTICLE 5
LEASEHOLD IMPROVEMENTS; TENANT COVENANTS
SECTION 5.01. INITIAL IMPROVEMENTS. (a) On the Possession Date, Tenant
shall accept the Premises in its "as is" condition on such date, subject to
Landlord's obligation to physically separate the Additional Premises as
heretofore provided. Except to the extent expressly provided for herein, all
improvements shall be performed by Tenant at Tenant's expense in accordance with
the terms of this Article 5.
(b) Tenant may improve the Initial Premises and the Additional
Premises for Tenant's initial occupancy in accordance with detailed
specifications and working drawings to be prepared by Tenant's architect. The
detailed specifications and working drawings are hereinafter referred to as
"TENANT'S PLANS", and the work shown by the Tenant's Plans is hereinafter
referred to as "TENANT'S INITIAL IMPROVEMENTS".
(c) Tenant shall proceed forthwith to cause Tenant's Plans to be
prepared by an architect licensed as such in the State of New York. Tenant's
Plans, including structural and mechanical drawings and specifications, shall be
prepared at Tenant's sole cost and expense. Tenant shall submit five (5) sets of
Tenant's Plans and two (2) CAD discs which shall contain such Tenant's Plans in
CAD format to Landlord for Landlord's approval. Landlord agrees to review
Tenant's plans and to approve the same or make written exceptions thereto within
five (5) Business Days from the date of the submission of the plans. Landlord
agrees not to unreasonably withhold or delay its approval of Tenant's Plans, and
failure by Landlord to provide the written exceptions within the ten (10)
Business Day period aforesaid shall be deemed approval of Tenant's Plans. If
Landlord disapproves Tenant's Plans, Tenant shall revise them and re-submit them
to Landlord for approval. Any disapproval given by Landlord shall be accompanied
by a statement in reasonable detail of the reasons for such disapproval,
itemizing those portions of the plans so disapproved. Landlord shall advise
Tenant within ten (10) Business Days following receipt of Tenant's revised plans
of Landlord's approval or disapproval of the revised plans or portions thereof,
and shall set forth its reasons for any such further disapproval in writing and
in reasonable detail. If Landlord fails to approve or disapprove such
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revised plans within such ten (10) Business Day period, Landlord shall be
deemed to have approved such revised plans or such portions thereof; PROVIDED
that ten (10) days prior to the expiration of such ten (10) Business Day
period, Tenant shall send a second notice to Landlord with the phrase
"FAILURE TO APPROVE OR DISAPPROVE TENANT'S PLANS, AS REVISED, WITHIN TEN (10)
DAYS AFTER THE DATE HEREOF SHALL RESULT IN THE DEEMED APPROVAL OF TENANT'S
PLANS, AS REVISED" in bold lettering at the top of such notice. Any dispute
regarding the reasonableness of Landlord's withholding of its consent to
Tenant's Plans shall be submitted to expedited arbitration pursuant to
SECTION 9.19 hereof. Upon approval by Landlord of Tenant's Plans, Tenant
shall submit the same to the New York City Department of Buildings for
approval and for issuance of a building permit to perform the Improvements.
Landlord agrees, at Tenant's cost and expense, to cooperate with Tenant and
Tenant's architect and engineer in providing information needed for the
preparation of Tenant's Plans, the application for a building permit and all
other permits required for the Improvements, and to promptly execute all
documents required to be signed by Landlord.
(d) Tenant agrees to hire a reputable general contractor, construction
manager or subcontractors and materialmen (hereinafter "CONTRACTOR(S)") to be
approved by Landlord such approval not to be unreasonably withheld or delayed,
(other than with respect to Contractors performing connections to any Building
systems which Contractors shall be those designated by Landlord provided such
Contractors shall perform such work at market prices) to perform Tenant's
Initial improvements in a good and workmanlike manner in accordance with (x) the
approved Tenant's Plans and any material amendments or additions thereto
approved by Tenant and Landlord and all municipal authorities having
jurisdiction; PROVIDED that Landlord shall not unreasonably withhold or delay
its approval of any such material amendments or additions (it being agreed that
Landlord's approval shall not be required for any amendments, additions, change
orders or modifications to Tenant's Plans costing less than $100,000 unless the
same (i) affects the usage or the proper functioning of any of the Building
systems or (ii) materially changes the scope of Tenant's Initial Improvements)
and further provided, that, with respect to any subsequent amendments,
additions, change orders or modifications after Landlord's approval of Tenant's
Plans, Landlord shall approve or disapprove of such changes within ten (10)
business days of the receipt of such changes (to the extent such approval of
Landlord is required pursuant to this SECTION 5.01(d)) from Tenant and (y) all
provisions of Laws and any and all permits and other requirements specified by
any ordinance, law or public regulation. Tenant shall cause the Contractor(s) to
obtain and maintain throughout the work, Workers' Compensation Insurance and New
York State Disability Insurance in the amounts required under any applicable
Laws and comprehensive general liability insurance, including contractual
liability coverage, in an amount of not less than $2 million combined single
limit for bodily injury or death for any one occurrence, and for property
damage, plus a $10 million umbrella policy; PROVIDED however, that any
subcontractor or materialman shall only be required to carry such liability
insurance as is being carried by prudent subcontractors or materialman is being
employed by Tenant or its Contractors. The liability coverage shall name
Landlord and Overlandlord as additional insured parties, and Tenant shall
deliver to Landlord proper certificates of insurance confirming the coverages
described above prior to commencement of Tenant's Initial Improvements. If
Tenant acts as its own General Contractor or Construction Manager, Tenant shall
obtain and maintain such insurance. All Contractor(s) shall be members of a
union affiliated with the building trades in the city of New York that has
jurisdiction over the Building and Tenant's Initial Improvements. Tenant shall
pay
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Landlord, within thirty (30) days after being billed therefor, the actual out of
pocket fees and disbursements paid by Landlord to architects, engineers and
other technical advisors, other than the regular staff of Landlord for reviewing
Tenant's Plans, provided such fees are commercially reasonable.
SECTION 5.02. ALTERATIONS (a) Tenant shall make no Material
Alterations without Landlord's and, to the extent required pursuant to the terms
of the Xxxxxxxxx, Overlandlord's prior written approval. "MATERIAL ALTERATION"
means an Alteration that (i) is not limited to the interior of the Premises or
which affects the exterior (including the appearance) of the Building, (ii) is
structural and which in Landlord's sole judgment adversely affects the
structural integrity or the strength of the Building either during construction
or upon completion, (iii) affects the usage or the proper function of any of the
base building systems provided by Landlord, (iv) requires the consent of any
Superior Mortgage or Superior Lessor, or (v) requires any governmental permits.
In no event shall Tenant have any right to install interior stairwells or a
kitchen or other food preparation facility (other than pantries). Alterations
shall not include (and Landlord's approval shall not be required for)
decorations, painting, wall papering, carpeting or the installation or removal
of Tenant's Property or any other movable equipment, furniture, furnishings and
other personal property that is not affixed to the Premises. Tenant shall be
permitted to make improvements, changes or alterations ("MINOR ALTERATIONS") in
or to the Premises which are not Material Alterations provided that prior to
commensing performance of such Minor Alterations Tenant shall submit to Landlord
Alteration Plans therefor for Landlord's review. If Landlord notifies Tenant
that Landlord Alteration Plans therefor for Landlord's review. If Landlord
notifies Tenant that Landlord objects to such Alteration Plans within five (5)
Business Days of receipt of such plans, Tenant shall discontinue the performance
of such Minor Alterations until such plans are revised to satisfy Landlord's
reasonable objections. Upon completion of any Minor Alterations, Tenant shall
submit to Landlord a set of completed as-built drawings reflecting such Minor
Alterations.
(b) Tenant, in connection with any Alteration, shall comply with
the Rules and Regulations applicable thereto. Tenant shall not proceed with
any Material Alteration unless and until Landlord approves Tenant's plans and
specifications ("ALTERATION PLANS") therefor in writing. Landlord shall have
twenty (20) Business Days from the submission of Tenant's Alteration Plans to
approve or disapprove of such plans. If Landlord fails to approve or
disapprove Tenant's Alteration Plans during such period, the same shall be
deemed approved. If Landlord disapproves of Tenant's Alteration Plans, such
disapproval shall be accompanied by a statement in reasonable details of the
reasons from such disapproval, itemizing those portions of the plans so
disapproved. Landlord shall advise Tenant within thirty (30) days following
the receipt of Tenant's revised plans of Landlord's approval or disapproval
of the revised Alteration Plans or portions thereof and shall set forth its
reasons for any such further disapproval in writing. If Landlord fails to
approve or disapprove such revised Alteration Plans within thirty (30) days
following the receipt thereof, Landlord shall be deemed to have approved such
revised Alteration Plans; PROVIDED that ten (10) days prior to the expiration
of such thirty (30) day period, Tenant shall send a second notice to Landlord
with the phrase "FAILURE TO APPROVE OR DISAPPROVE ALTERATION PLANS, AS
REVISED, WITHIN TEN (10) DAYS AFTER THE DATE HEREOF SHALL RESULT IN THE
DEEMED APPROVAL OF ALTERATION PLANS, AS REVISED" in bold lettering at the top
of such notice. Any dispute regarding the reasonableness of Landlord's
withholding of its approval to Tenant's Alteration Plans may be submitted to
expedited arbitration by either party pursuant to SECTION
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9.19 of this Lease. Any review or approval by Landlord of Tenant's Alteration
Plans is solely for Landlord's benefit, and without any representation or
warranty to Tenant with respect to the adequacy, correctness or efficiency
thereof, its compliance with Laws or otherwise.
(c) Tenant shall pay to Landlord within thirty (30) days of receipt of
Landlord's invoice therefor Landlords reasonable, actual out-of-pocket costs and
expenses paid to architects, engineers and other technical advisors by Landlord
or any Superior Lessor or Superior Mortgagee for reviewing Tenant's Alteration
Plans and inspecting Alterations.
(d) Upon the completion of any Alteration in accordance with the terms
of this SECTION 5.02 Tenant shall submit to Landlord (x) proof evidencing the
payment in full for said Alteration, (y) written unconditional lien waivers of
mechanics' liens and other liens on the Project from all contractors performing
said Alteration and (z) all submissions required pursuant to Laws.
(e) Tenant shall obtain (and furnish copies to Landlord of) all
necessary governmental permits and certificates for the commencement and
prosecution of Alterations and for final approval thereof upon completion, and
shall cause Alterations to be performed in compliance therewith, and in
compliance with all Laws and with the Alteration plans approved (or deemed
approved) by Landlord. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the then standards for the Building reasonably established by
Landlord. Alterations shall be performed by contractors first approved by
Landlord (which approval shall not be unreasonably withheld or delayed);
PROVIDED that any Alterations which involve performing connections to any
Building system shall be performed only by the contractor(s) designated by
Landlord, which contractors shall perform such work at market prices. The
performance of any Alteration shall not be done in a manner which would violate
Landlord's union contracts affecting the project, or create any work stoppage,
picketing, labor disruption, disharmony or dispute or any interference with the
business of Landlord or any tenant or occupant of the Building. Tenant shall
immediately stop the performance of any Alteration if Landlord notifies Tenant
that continuing such Alteration would violate Landlord's union contracts
affecting the Project, or create any work stoppage, picketing, or labor
disruption, disharmony or dispute or any interference with the business of
Landlord or any tenant or occupant of the Building.
(f) Throughout the performance of Alterations, Tenant shall carry, or
shall cause its contractors to carry, worker's compensation insurance in
statutory limits, "all risk" Builders Risk coverage and general liability
insurance, with completed operation endorsement, for any occurrence in or about
the Project, under which Landlord and its agent and any Superior Lessor and
Superior Mortgagee whose name and address have been furnished to Tenant shall be
named as parties insured, in such limits as Landlord may reasonably require,
with insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord
with evidence that such insurance is in effect at or before the commencement of
Alterations and, on request, at reasonable intervals thereafter during the
continuance of Alterations.
(g) Should any mechanics' or other liens be filed against any portion
of the Project by reason of the acts or omissions of, or because of a claim
against, Tenant or anyone claiming under or through Tenant, Tenant shall cause
the same to be canceled or discharged of
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record by bond or otherwise within twenty (20) days after notice from Landlord.
If Tenant shall fail to cancel or discharge said lien or liens within said
twenty (20) day period. Landlord may cancel or discharge the same and, upon
Landlord's demand, Tenant shall reimburse Landlord for all costs incurred in
canceling or discharging such liens, together with interest thereon at the
Interest Rate from the date incurred by Landlord to the date of payment by
Tenant, such reimbursement to be made within twenty (20) days after receipt by
Tenant of a written statement from Landlord as to the amount of such costs.
Tenant shall indemnify and hold Landlord harmless from and against all costs
(including, without limitation, reasonable attorneys' fees and disbursements and
costs of suit), losses, liabilities or causes of action arising out of or
relating to any Alteration, including, without limitation, any mechanics' or
other liens asserted in connection with such Alteration.
(h) Tenant shall deliver to Landlord, within 60 days after the
completion of an Alteration, five (5) sets of "as-built" drawings thereof and
two (2) CAD discs which shall contain such "as-built" drawings in CAD format,
both of which shall have been prepared by Tenant's architect. During the Term,
Tenant shall keep records of Material Alterations including plans and
specifications, copies of contracts, invoices, evidence of payment and all other
records customarily maintained in the real estate business relating to
Alterations and the cost thereof and shall, within 30 days after demand by
Landlord, furnish to Landlord copies of such records.
(i) All Alterations to and Fixtures installed by Tenant in the
Premises shall be fully paid for by Tenant in cash and shall not be subject to
conditional bills of sale, chattel mortgages, or other title retention
agreements.
SECTION 5.03. LANDLORD'S AND TENANT'S PROPERTY. (a) All fixtures,
equipment, improvements and appurtenances attached to or built into the
Premises, whether or not at the expense of Tenant (collectively, "FIXTURES"),
shall be and remain a part of the Premises and shall not be removed by Tenant,
unless such Fixtures are replaced. All Fixtures constituting Improvements and
Betterments shall be the property of Tenant during the Term and, upon expiration
or earlier termination of this Lease, shall become the property of Landlord. All
Fixtures other than Improvements and Betterments shall, upon installation, be
the property of Landlord. "IMPROVEMENTS AND BETTERMENTS" means (i) all Fixtures,
if any, installed at the expense of Tenant, whether installed by Tenant or by
Landlord (I.E., excluding any Fixtures paid for by Landlord directly or by way
of an allowance) and (ii) all carpeting in the Premises.
(b) All movable partitions, business and trade fixtures, machinery and
equipment, and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively, "TENANT'S
PROPERTY") shall be and shall remain the property of Tenant and may be removed
by Tenant at any time during the Term; PROVIDED, that if any Tenant's Property
is removed, Tenant shall repair any damage to the Premises or to the Building
resulting from the installation and/or removal thereof.
(c) At or before the Expiration Date or any earlier termination of
this Lease, Tenant at Tenant's expense, shall remove Tenant's Property from the
Premises (except such items thereof as Landlord shall have expressly permitted
to remain, which shall become the property of Landlord), and Tenant shall repair
any damage to the Premises or the Building resulting from any installation
and/or removal of Tenant's Property. Any items of Tenant's
29
Property which remain in the Premises after the Expiration Date or any earlier
termination of this Lease, may, at the option of Landlord, be deemed to have
been abandoned, and may be retained by Landlord as its property or disposed of
by Landlord, without accountability, in such manner as Landlord shall determine,
at Tenant's expense.
(d) Landlord shall advise Tenant at the time it approves Tenant's
plans therefore whether Landlord will require Tenant, notwithstanding SECTION
5.03(a), to remove all or any Fixtures, Improvements and Betterments, including
without being limited to, kitchens, vaults, safes, raised flooring and interior
stairwells; PROVIDED, however, that Tenant shall not be required to remove any
improvements that are solely decorative work or constitute a standard office
installation. If Landlord shall have so advised Tenant, then Tenant, at Tenant's
expense, prior to the Expiration Date or, in the case of an earlier termination
of this Lease, within 15 days after the giving of such notice by Landlord shall
remove the same from the Premises, shall repair and restore the Premises to the
condition existing prior to installation thereof and shall repair any damage to
the Premises or to the Building due to such removal. Notwithstanding the
foregoing, Tenant shall not be required to remove any Fixtures, Betterments or
Improvements located, as of the date hereof, on or in the Upper Floors of the
Premises.
SECTION 5.04. ACCESS AND CHANGES TO BUILDING. (a) Subject to the terms
of subsection (d) below, Landlord reserves the right, at any time, to make
changes in or to the Project as Landlord may deem necessary or desirable, and
Landlord shall have no liability to Tenant therefor, provided that after such
change access to the Premises is reasonably equivalent to that which existed
prior to such change, it being agreed that the "reasonably equivalent" standard
shall not apply if such changes are made in order to comply with Laws, does not
affect the nature of the Project and does not eliminate any of the specific
benefits granted to Tenant under this Lease. Landlord may install and maintain
pipes, fans, ducts, wires and conduits within or through the walls, floors or
ceilings of the Premises; PROVIDED, that if there are no dropped ceilings in any
of the floors of the Premises, such pipes, fans, ducts, wires and conduits shall
be installed in a manner consistent with any other exposed elements. In
exercising its rights under this SECTION 5.04, Landlord shall use reasonable
efforts to (1) minimize any interference with Tenant's use of the Premises for
the ordinary conduct of Tenant's business and (2) to not reduce the size of the
Premises except to a de minimis extent. In the event that the floor space in any
floor in the Premises is reduced by more than 300 square feet and the change
which caused such reduction did not benefit Tenant, the Fixed Rent and
Additional Charges for such floor shall be proportionately reduced. Tenant shall
not have any easement or other right in or to the use of any door or any passage
or any concourse or any plaza connecting the Building with any subway or any
other building or to any public conveniences, and the use of such doors,
passages, concourses, plazas and conveniences may, without notice to Tenant, be
regulated or discontinued at any time by Landlord.
(b) Except for the space within the inside surfaces of all walls, hung
ceilings, floors, windows and doors bounding the Premises, all of the Building,
including, without limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrance, any terraces or roofs adjacent to the
Premises, and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as access thereto through the
Premises, are
30
reserved to Landlord and are not part of the Premises. Landlord reserves the
right to name the Building to change the name or address of the Building at any
time and from time to time.
(c) Landlord shall have no liability to Tenant if at any time any
windows of the Premises are either temporarily darkened or obstructed by reason
of any repairs, improvements, maintenance and/or cleaning in or about the
Building (or permanently darkened or obstructed if required by Law) or covered
by any translucent material for the purpose of energy conservation, or if any
part of the Building, other than the Premises, is temporarily or permanently
closed or inoperable; PROVIDED, that if the same adversely affects Tenant's use
and occupancy of the Premises, Landlord shall only have the right to do so if
required by Law. If any time the windows of the Premises are temporarily closed,
darkened or bricked-up, Landlord shall perform such repairs, maintenance,
alterations or improvements with reasonable diligence as are reasonably required
to restore the same and, unless such condition has been imposed pursuant to Law,
Landlord shall use reasonable efforts to minimize the period of time during
which such windows are temporarily closed, darkened or bricked up.
(d) Landlord and persons authorized by Landlord shall have the right,
at reasonable times and upon reasonable advance notice to Tenant (except in an
emergency), to enter the Premises (together with any necessary materials and/or
equipment), to inspect or perform such work as Landlord may reasonably deem
necessary or to allow Overlandlord to exhibit the Premises to prospective
purchasers or others and, during the last 24 months of the Term, to exhibit to
prospective tenants, or for any other purpose as Landlord may deem necessary or
desirable. Landlord shall use reasonable efforts not to interfere with Tenant's
use and occupancy of the Premises in connection with the exercise of Landlord's
rights under this SECTION 5.04(d). To the extent that Tenant has designated
portions of the Premises as "secured areas," except in cases of emergency,
Landlord shall not enter into such areas unless accompanied by an employee of
Tenant. Landlord shall have no liability to Tenant by reason of any such entry.
Landlord shall not be required to make any improvements or repairs of any kind
or character to the Premises during the Term, except as otherwise set forth in
this Lease. Any work performed or installations made pursuant to this Section
shall be made with reasonable diligence, and Landlord shall use due diligence to
repair any damage to the Premises or Tenant's Property as a result of such work
or installations.
SECTION 5.05. REPAIRS. (a) Tenant shall keep the Premises (including,
without limitation, all Fixtures) in good condition and, upon expiration or
earlier termination of the Term, shall, subject to the terms and conditions of
SECTION 5.03(d) herein, surrender the same to Landlord in the same condition as
when first occupied, reasonable wear and tear excepted. Tenant's obligation
shall include, without limitation, the obligation to repair all damage caused by
Tenant, its agents, employees, invitees and licensees to the equipment and other
installations in the Premises or anywhere in the Building. Any maintenance,
repair or replacement to the windows (including, without limitation, any solar
film attached thereto), the Building systems, the Building's structural
components or any areas outside the Premises and which is Tenant's obligation to
perform shall be performed by Landlord at Tenant's expense (which expense shall
be equal to Landlord's actual out-of-pocket costs, which shall be commercially
reasonable). Tenant shall not commit or allow to be committed any waste or
damage to any portion of the Premises or the Building.
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(b) Landlord shall at all times operate and maintain the Building in
accordance with the standards that are customarily followed in the operation and
maintenance of First-Class Office Buildings (as defined in the Xxxxxxxxx)(the
"STANDARD").
(c) Landlord shall use reasonable efforts to minimize interference
with Tenant's use and occupancy of the Premises in making any repairs,
alterations, additions or improvements to the Building or in the cleaning and
maintenance thereof; PROVIDED, HOWEVER, that Landlord shall have no obligation
to employ contractors or labor at so-called overtime or other premium pay rates
or to incur any other overtime costs or expenses whatsoever, except that
Landlord, at its expense shall employ contractors or labor at so-called overtime
or other premium pay rates if necessary to make any repair required to be made
by it hereunder to remedy any condition that either (i) results in a denial of
access to the Premises and/or (ii) except in the case of a fire or other
casualty, precludes Tenant from conducting its business from more than thirty
percent (30%) of the Premises. In all other cases, at Tenant's request, Landlord
shall employ contractors or labor at so-called overtime or other premium pay
rates and incur any other overtime costs or expenses in making any repairs,
alterations, additions or improvements to the extent it is practicable to do so,
and Tenant shall pay to Landlord, as additional rent, within twenty (20) days
after demand, an amount equal to the difference between the overtime or other
premium pay and straight time pay.
SECTION 5.06. COMPLIANCE WITH LAWS/COMPLIANCE LANGUAGE. (a) Tenant
shall comply with all laws, ordinances, rules, orders and regulations (present,
future, ordinary, extraordinary, foreseen or unforeseen) of any governmental,
public or quasi-public authority and of the New York Board of Underwriters, the
New York Fire Insurance Rating Organization and any other entity performing
similar functions, at any time duly in force (collectively "LAWS"), attributable
to any work, installation, occupancy, particular use or particular manner of use
(as opposed to mere "office" use) by Tenant of the Premises or any part thereof.
Nothing contained in this SECTION 5.06 shall require Tenant to make any
structural changes unless the same are necessitated by reason of Tenant's
particular manner of use of the Premises or the particular use by Tenant of the
Premises for purposes other than normal and customary ordinary office purposes.
Tenant shall procure and maintain all licenses and permits required for its
business. Nothing contained herein shall be deemed or be construed as a
submission by Tenant to the application to itself of any such laws.
(b) Except to the extent the same is Tenant's responsibility pursuant
to SECTION 5.06(a) above or elsewhere in this Lease, Landlord shall comply with
all Laws in effect as of the Possession Date applicable to the common areas of
the Building generally made available to tenants of the Building, but only if
Tenant's use of the Premises shall be materially and adversely affected by
non-compliance therewith, subject to Landlord's right to contest the
applicability or legality of such Laws.
(c) Tenant, at its sole cost and expense and after reasonable, written
notice to Landlord, may contest by appropriate proceedings prosecuted diligently
and in good faith, the legality or applicability of any Laws affecting the
Premises and with which it is obligated to comply pursuant to SUBSECTION (a)
above, provided that (a) Landlord shall not be subject to imprisonment or to
prosecution for a crime, nor shall the Project or any part there of be subject
to being condemned or vacated, nor shall the certificate of occupancy for the
Premises or the
32
Building be suspended or threatened to be suspended by reason of non-compliance
or by reason of such contest; (b) such non-compliance or contest shall not
constitute or result in a violation (either with the giving of notice or the
passage of time or both) of the terms of any Superior Mortgage or Superior
Lease; (c) Tenant shall indemnify Landlord against the cost of such compliance
and liability resulting from or incurred in connection with such contest or
non-compliance, and (d) Tenant shall keep Landlord regularly advised as to the
status of such proceedings. Landlord agrees that it shall reasonably cooperate
with Tenant's efforts to contest the validity or applicability to the Premises
of any Laws; PROVIDED that (i) the provisions of clauses (a) through (d) of this
Section shall be complied with and (ii) Landlord shall not incur any expense or
liability in connection therewith.
(d) Tenant shall not use or dispose of any Hazardous Materials in the
Premises. "HAZARDOUS MATERIALS," as used herein, shall mean any flammables,
explosives, radioactive materials, hazardous wastes, hazardous and toxic
substances or related materials, as defined by any Federal, state or local
environmental law, ordinance, rule or regulation, including, without limitation,
the Comprehensive Environmental Response Liability Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing, except that the term
"Hazardous Materials" shall not include any such materials in amounts typically
found in office buildings of a similar age and character as the Buildings,
including asbestos and asbestos containing materials. Landlord shall enforce the
obligations of Overlandlord with respect to asbestos removal in the Premises
pursuant to Section 28.10 of the Xxxxxxxxx.
SECTION 5.07. TENANT ADVERTISING. Tenant shall not use, and shall
cause each of its Affiliates not to use, the name or likeness of the Building or
the Project in any advertising (by whatever medium) without Landlord's consent,
but shall be permitted to use the address of the Building for such purposes.
SECTION 5.08 RIGHT TO PERFORM TENANT COVENANTS. If Tenant fails to
perform any of its obligations under this Lease, Landlord, any Superior Lessor
or any Superior Mortgagee (each, a "CURING PARTY") may perform the same at the
expense of Tenant (a) immediately and without notice in the case of emergency or
in case such failure unreasonably interferes with the use of space by any other
tenant in the Building or adversely affects the efficient operation of the
Building or may result in a violation of any Law or in a cancellation of any
insurance policy maintained by Landlord and (b) in any other case if such
failure continues beyond any applicable grace period. If a Curing Party performs
any of Tenant's obligations under this Lease, Tenant shall pay to Landlord (as
Additional Charges) the costs thereof, together with interest at the Interest
Rate from the date incurred by the Curing Party until paid by Tenant, within
twenty (20) days after receipt by Tenant of a statement as to the amounts of
such costs. If the Curing Party effects such cure by bonding any lien which
Tenant is required to bond or otherwise discharge, Tenant shall obtain and
substitute a bond for the Curing Party's bond and shall reimburse the Curing
Party for the cost of the Curing Party's bond. "INTEREST RATE" means the lesser
of (i) the Base Rate plus 2% per annum or (ii) the maximum rate permitted by
law.
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ARTICLE 6
ASSIGNMENT AND SUBLETTING
SECTION 6.01. ASSIGNMENT; ETC. (a) Subject to SECTION 6.02, and except
as otherwise provided in this Article, neither this Lease nor the term and
estate hereby granted, nor any part hereof or thereof, shall be assigned,
mortgaged, pledged, encumbered or otherwise transferred voluntarily,
involuntarily, by operation of law or otherwise, and neither the Premises, nor
any part thereof, shall be subleased, be licensed, be used or occupied by any
person or entity other than Tenant or be encumbered in any manner by reason of
any act or omission on the part of Tenant, and no rents or other sums receivable
by Tenant under any sublease of all or any part of the Premises shall be
assigned or otherwise encumbered, without the prior consent of Landlord. The
dissolution or direct or indirect transfer of control of Tenant (however
accomplished including, by way of example, the admission of new partners or
members or withdrawal of existing partners or members, or transfers of interests
in distributions of profits or losses of Tenant, issuance of additional stock,
redemption of stock, stock voting agreement, or change in classes of stock)
shall be deemed an assignment of this Lease regardless of whether the transfer
is made by one or more transactions occurring over a twenty-four (24) month
period (provided that if any such transactions made subsequent to such
twenty-four (24) month period are made pursuant to a plan designed to effect
such transfer over an extended period of time, the same shall be deemed to have
been made during the twenty-four (24) month period), or whether one or more
persons or entities hold the controlling interest prior to the transfer or
afterwards. An agreement under which another person or entity becomes
responsible for all or a portion of Tenant's obligations under this Lease shall
be deemed an assignment of this Lease or a sublease, as the case may be. Except
as provided in SECTION 6.02(d) herein, no assignment or other transfer of this
Lease and the term and estate hereby granted, and no subletting of all or any
portion of the Premises shall relieve Tenant of its liability under this Lease
or of the obligation to obtain Landlord's prior consent to any further
assignment, other transfer or subletting. Any attempt to assign this Lease or
sublet all or any portion of the Premises in violation of this ARTICLE 6 shall
be null and void. If Tenant shall become a publicly held entity, the sale or
transfer of shares of Tenant shall not require the consent of Landlord, shall be
permitted under this Lease and shall not be deemed a transfer or an assignment
hereunder if such transfer or sale is effected through the "over-the-counter
market" or through any recognized stock exchange.
(b) Notwithstanding SECTION 6.01(a), without the consent of Landlord
and without Tenant being subject to the requirements of the Xxxxxxxxx and
SECTIONS 6.02, 6.03 or 6.05 of this Lease, this Lease may be assigned to (x) if
Tenant named herein is the assignor, (i) an entity with which Tenant is merged,
(ii) an entity which succeeds to Tenant, or (iii) a newly created entity,
provided that any of the foregoing have been formed or created by the State of
New York and/or New Jersey for the purposes of performing functions similar to,
or ancillary with, those performed by Tenant and such entity intends to continue
to perform one or more of the operations which the Tenant is permitted to
perform or (y) if this Lease shall have been assigned to a "private" entity (i)
to an entity created by merger, reorganization or recapitalization of or with
Tenant or (ii) a purchaser of all or substantially all of Tenant's assets, stock
or interests
34
(such entity or purchaser being referred to herein as a "SUCCESSOR ENTITY");
PROVIDED that (A) Landlord shall have received a notice of such assignment from
Tenant, (B) the assignee assumes by written instrument satisfactory to Landlord
all of Tenant's obligations under this Lease, (C) such assignment is for a valid
business purpose and not to avoid any obligations under this Lease, and (D) the
assignee is a reputable entity of good character and shall have, immediately
after giving effect to such assignment, an aggregate net worth reasonably
acceptable to Landlord.
(c) Notwithstanding SECTION 6.01 (a), without the consent of Landlord
and without, Tenant being subject to the requirements of SECTION 6.02, 6.03 or
6.05 of this Lease, Tenant may, subject to the requirements of the Xxxxxxxxx,
assign this Lease or sublet all or any part of the Premises (x) if Tenant named
herein is the assignor or sublessor, to a corporation which is wholly owned by
the Tenant and which has been or may be created pursuant to the laws of the
State of New York or New Jersey to perform one or more operations which the
Tenant is permitted to perform pursuant to such laws or (y) if this Lease shall
have been assigned to a "private" entity, to an Affiliate of Tenant; PROVIDED,
that (x) Landlord shall have received a notice of such assignment or sublease
from Tenant; and (y) in the case of any such assignment, (A) the assignment is
for a valid business purpose and not to avoid any obligations under this Lease,
and (B) the assignee assumes by written instrument satisfactory to Landlord all
of Tenant's obligations under this Lease. "AFFILIATE" means, as to any
designated person or entity, any other person or entity which controls or is
controlled by, such designated person or entity. "CONTROL" (and with correlative
meaning, "controlled by" and "under common control with") means ownership and
control by Tenant, directly or indirectly, of 51% or more of the stock,
partnership interests or other beneficial ownership interests of the entity in
question and the power to direct the management and affairs of such entity.
SECTION 6.02. LANDLORD'S OPTION RIGHT. (a) If Tenant desires to assign
this Lease or sublet all or a portion of the Premises (other than in accordance
with SECTIONS 6.01 (b) OR 6.01 (c)), Tenant shall give to Landlord notice
("TENANT'S OFFICER NOTICE") thereof, specifying (i) in the case of a proposed
subletting, the location of the space to be sublet and the proposed terms of the
subletting of such space, (ii) (A) in the case of a proposed assignment,
Tenant's good faith offer of the consideration Tenant desires to receive or pay
for such assignment or (B) in the case of a proposed subletting, Tenant's good
faith offer of the fixed annual rent which Tenant desires to receive for such
proposed subletting (assuming that a subtenant will pay for Taxes, expense
escalations and electricity as described in ARTICLE 3 herein in the same manner,
and utilizing the same base year or base amount, as Tenant pays for such amounts
under this Lease) and (iii) the proposed assignment or sublease commencement
date.
(b) Tenant's Offer Notice shall be deemed an offer from Tenant to
Landlord whereby Landlord (or Landlord's designee) may, at Landlord's option,
(i) sublease such space from Tenant or (ii) have this Lease assigned to it or
terminate this Lease, provided that if the proposed transactions is (x) an
assignment or (y) a sublease of all or substantially all of the Premises for all
or substantially all of the remainder of the Term or (z) a sublease of a portion
of the Premises which, when aggregated with other subleases then in effect,
covers all or substantially all of the Premises for all or substantially all of
the remainder of the Term, Landlord's option shall be limited to having this
Lease assigned to it or to terminating this Lease (any such space being referred
to as the "RECAPTURE SPACE"). Said option may be exercised by
35
Landlord by notice to Tenant within 60 days after a Tenant's Offer Notice,
together with all information required pursuant to SECTION 6.02(a), has been
given by Tenant to Landlord.
(c) If Landlord exercises its option under SECTION 6.02(b)(ii) to
terminate this Lease, then this Lease shall terminate on the proposed assignment
or sublease commencement date specified in the applicable Tenant's Offer Notice,
all Rent shall be paid and appointed to such date and the date of such
termination shall be deemed the Expiration Date for all purposes of this Lease.
(d) If Landlord exercises its option under SECTION 6.02(b)(ii) to have
this Lease assigned to it (or its designee), then Tenant shall assign this Lease
to Landlord (or Landlord's designee) by an assignment in form and substance
reasonably satisfactory to Landlord, effective on the proposed assignment or
sublease commencement date specified in the applicable Tenant's Offer Notice. If
Landlord exercises its option to take an assignment of this Lease as it relates
to the Recapture Space, Tenant shall be released from Tenant's obligations under
this Lease arising from and after the date of such assignment. Tenant shall not
be entitled to consideration or payment from Landlord (or Landlord's designee)
in connection with any such assignment. If the Tenant's Offer Notice provides
that Tenant will pay any consideration or grant any concessions in connection
with the proposed assignment, then Tenant shall pay such consideration and/or
grant any such concessions to Landlord (or Landlord's designee) on the date
Tenant assigns this Lease to Landlord (or Landlord's designee).
(e) [INTENTIONALLY OMITTED]
(f) If Landlord exercises its option under SECTION 6.02(b)(i) to
sublet the Premises, such sublease to Landlord or its designee (as subtenant)
shall be in form and substance reasonably satisfactory to Landlord at the lower
of (i) the rental rate per rentable square foot of Fixed Rent and Additional
Charges then payable pursuant to this Lease or (ii) the rental set forth in the
applicable Tenant's Offer Notice with respect to such sublet space, and shall be
for the term set forth in the applicable Tenant's Offer Notice, and:
(A) shall be subject to all of the terms and conditions of this
Lease except such as are irrelevant or inapplicable, and except as otherwise
expressly set forth to the contrary in this SECTION 6.02(f).
(B) shall be upon the same terms and conditions as those
contained in the applicable Tenant's Offer Notice and otherwise on the terms and
conditions of this Lease, except such as are irrelevant or inapplicable, and
except as otherwise expressly set forth to the contrary in this SECTION 6.02(f).
(C) shall permit the sublease, without Tenant's consent, freely
to assign such sublease or any interest therein or to sublet all or any part of
the space covered by such sublease and to make any and all alterations and
improvements in the space covered by such sublease, provided that Tenant shall
not be responsible for removing such alterations or improvements at the
expiration of the Term, unless the Offer Notice reasonably restricts the making
of any such alterations or improvements in which event Landlord or its designee
(as
36
subtenant) shall also be reasonably restricted in the making of any such
alterations or improvements;
(D) shall provide that any assignee or further subtenant of
Landlord or its designee may, at the election of Landlord, make alterations,
decorations and installations in such space or any part thereof, any or all of
which may be removed, in whole or in part, by such assignee or subtenant, at its
option, prior to or upon the expiration or other termination of such sublease,
provided that such assignee or subtenant, at its expense, shall repair any
damage caused by such removal, unless the Offer Notice reasonably restricts the
making of any such alterations or improvements in which event Landlord shall
impose the same restrictions on any assignee or further subtenant of Landlord or
its designee; and
(E) shall provide that (1) the parties to such sublease expressly
negate any intention that any estate created under such sublease be merged with
any other estate held by either of said parties, (2) any assignment or
subletting by Landlord or its designee (as the subtenant) may be for any purpose
or purposes that Landlord shall deem appropriate, (3) Landlord, at Tenant's
expense, may make such alterations as may be required or deemed necessary by
Landlord to demise separately the subleased space and to comply with any Laws
relating to such demise, unless the Offer Notice reasonably restricts the making
of any alterations or improvements in which event Landlord shall only make
alterations or improvements to demise separately such subleased space if
Landlord shall restore, or shall cause to be restored, the subleased space to
the same condition in which such subleased space was delivered from Tenant to
Landlord, and (4) at the expiration of the term of such sublease, Tenant shall
accept the space covered by such sublease in its then existing condition,
subject to the obligations of the sublessee to make such repairs thereto as may
be necessary to preserve such space in good order and condition.
(g) In the case of any proposed sublease requiring Landlord's consent
under this Article 6, Tenant shall not sublet any space to a third party at a
rental which is less (on a per rentable square foot basis) that 95% of the
rental (on a per rentable square foot basis) specified in Tenant's Offer Notice
with respect to such space, without complying once again with all of the
provisions of this SECTION 6.02 and re-offering such space to Landlord at such
lower rental. In the case of a proposed assignment, Tenant shall not assign this
Lease to a third party where Tenant pays consideration greater than 5% more or
grants a greater concession to such third party for such assignment than the
consideration offered to be paid or concession offered to be granted to Landlord
in Tenant's Offer Notice without complying once again with all of the provisions
of this SECTION 6.02 and re-offering to assign this Lease to Landlord and paying
such consideration or grant such concession to Landlord.
(h) If Landlord fails to respond to Tenant's Offer Notice within 60
days after the receipt of such Tenant's Offer Notice, together with all
information required pursuant to SECTION 6.02(a), has been given by Tenant to
Landlord, Landlord shall be deemed to have declined Tenant's offer, PROVIDED,
that 15 days prior to the expiration of such 60-day period, Tenant shall send a
second notice to Landlord with the phrase "FAILURE TO RESPOND ON OR BEFORE THE
15TH DAY AFTER THE GIVING OF THIS NOTICE SHALL BE DEEMED TO BE A WAIVER OF
LANDLORD'S OPTION RIGHT UNDER SECTION 5.02 OF THE LEASE" in bold lettering at
the top of such notice.
37
SECTION 6.03. ASSIGNMENT AND SUBLETTING PROCEDURES. (a) If Tenant
delivers to Landlord a Tenant's Offer Notice with respect to any proposed
assignment of this Lease or subletting of all of the Premises and Landlord does
not timely exercise any of its options under SECTION 6.02, and Tenant thereafter
desires to assign this Lease or sublet the Premises as specified in Tenant's
Offer Notice, Tenant shall notify Landlord (a "TRANSFER NOTICE") of such desire,
which notice shall be accompanied by (i) a statement of the material terms and
conditions of the proposed subletting or assignment, as the case may be, the
effective date of which shall be at least 30 days after the giving of the
Transfer Notice, (ii) a statement setting forth in reasonable detail the
identity of the proposed use of the Premises, (iii) current financial
information with respect to the proposed assignee or subtenant, including,
without limitation, its most recent financial statement or other evidence of
proposed entity's creditworthiness and (iv) such other information as Landlord
may reasonably request (provided such request is made within fifteen (15) days
of Landlord's receipt of the Transfer Notice), and Landlord's consent to the
proposed assignment or sublease shall not be unreasonably withheld, provided
that:
(A) Such Transfer Notice shall be delivered to Landlord within
three months after the delivery to Landlord of the applicable Tenant's Offer
Notice.
(B) In Landlord's reasonable judgment the proposed assignee or
subtenant will use the Premises in a manner that (x) is in keeping with the
Standard and (y) is limited to the use expressly permitted under the Lease.
(C) The proposed assignee or subtenant is, in Landlord's
judgment, a reputable person or entity of good character and, in Landlord's
reasonable judgment, has sufficient financial worth considering the
responsibility involved.
(D) Neither the proposed assignee or sublessee, nor any Affiliate
of such assignee or sublessee, is then an occupant of any part of the Building.
(E) The proposed assignee or sublessee is not a person with whom
Landlord is then negotiating or has within the prior 3 months negotiated to
lease space in the Building.
(F) The form of the proposed sublease shall be reasonably
satisfactory to Landlord and shall comply with the applicable provisions of this
ARTICLE 6.
(G) There shall be no more than 4 subtenants (excluding
Affiliates) in the Premises at any one time and no subtenant shall sublet less
than 25,000 rentable square feet.
(H) Tenant shall reimburse Landlord within twenty (20) days of
demand for any reasonable out-of-pocket costs that may be incurred by Landlord
in connection with said assignment or sublease, including, without limitation,
the costs of making investigations as to the acceptability of the proposed
assignee or subtenant, and reasonable legal costs incurred in connection with
the granting of any requested consent.
(I) With respect to any subletting or assignment entered into
prior to the second anniversary of the Commencement Date, the proposed sublessee
or assignee does not
38
conduct or operate any business which is in direct competition with the
principal lines of business of Landlord.
(J) The subletting or assignment complies with all of the terms
and provisions of the Xxxxxxxxx.
(b) If Landlord's consent to a proposed assignment or sublease is
required under this Article 6 and Landlord so consents (or is deemed to have
consented) and Tenant thereafter fails to execute and deliver the assignment or
sublease to which Landlord consented within 45 days (or if such request is made
pursuant to subsection (d) below, within 60 days) after the giving of such
consent, then Tenant shall again comply with this ARTICLE 6 before assigning
this Lease or subletting all or part of the Premises.
(c) If Landlord fails to respond to a Transfer Notice within 30 days
(or if such request is made pursuant to subsection (d) below, within 60 days)
after such Transfer Notice, together with all information required pursuant to
SECTION 6.03(a) has been given by Tenant to Landlord, Landlord shall be deemed
to have consented to such proposed assignment or subletting; PROVIDED, that 15
days prior to the expiration of such 30 day period (or if such request is made
pursuant to subsection (d) below, within 60 days), Tenant shall send a second
notice to Landlord with the phrase "FAILURE TO RESPOND WITHIN TEN (10) DAYS
AFTER THE DATE HEREOF SHALL BE DEEMED CONSENT TO THE ASSIGNMENT OR SUBLETTING
PROPOSED IN TENANT'S TRANSFER NOTICE" in bold lettering at the top of such
notice.
(d) If Tenant delivers to Landlord a Transfer Notice, together with
all information required under SECTION 6.03(a) above, at the same time that
Tenant delivers Tenant's Offer Notice, together with all information required
under SECTION 6.02(a) above, then Landlord shall either (i) exercise its options
under SECTION 6.02 or (ii) approve or deny Tenant's request to assign this Lease
or sublet the Premises under the provisions of SECTION 6.03 within 60 days after
Tenant's Offer Notice, together with all information required pursuant to
SECTION 6.02 (a), and the Transfer Notice, together with all information
required pursuant to SECTION 6.03(a), have been given by Tenant to Landlord. If
Landlord fails to respond within 60 days after receiving Tenant's Offer Notice,
together with all information required pursuant to SECTION 6.02(a) and the
Transfer Notice, together with all information required pursuant to SECTION
6.03(b), Landlord shall be deemed to have consented to such proposed assignment
or subletting; PROVIDED, that 15 days prior to the expiration of such 60-day
period, Tenant shall send a second notice to Landlord with the phrase "FAILURE
TO RESPOND SHALL BE DEEMED TO BE A WAIVER OF LANDLORD'S OPTION RIGHT UNDER
SECTION 5.02 OF THE LEASE AND CONSENT TO THE ASSIGNMENT OR SUBLETTING PROPOSED
IN TENANT'S TRANSFER NOTICE (SUCH TENANT'S OFFER NOTICE AND TRANSFER NOTICE
HAVING BEEN DELIVERED SIMULTANEOUSLY)" in bold lettering at the top of such
notice.
SECTION 6.04. GENERAL PROVISIONS. (a) If this Lease is assigned,
whether or not in violation of this Lease, Landlord may collect rent from the
assignee. If the Premises or any part thereof are sublet or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant, and expiration of Tenant's time to cure such
39
default, collect rent from the subtenant or occupant. In either event, Landlord
may apply the net amount collected against Rent, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of SECTION 6.01(a), or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance of Tenant's
obligations under this Lease.
(b) No assignment or transfer shall be effective until the assignee
delivers to Landlord (i) evidence that the assignee, as Tenant hereunder, has
complied with the requirements of SECTIONS 8.02 and 8.03, and (ii) an agreement
in form and substance reasonably satisfactory to Landlord whereby the assignee
assumes Tenant's obligations under this Lease.
(c) Notwithstanding any assignment or transfer, whether or not in
violation of this Lease, and notwithstanding the acceptance of any Rent by
Landlord from as assignee, transferee, or any other party, other than with
respect to any assignment or sublease to Landlord or its designee pursuant to
Section 6.02, the original named Tenant and each successor Tenant shall remain
fully liable for the payment of the Rent and the performance of all the Tenant's
other obligations under this Lease. The joint and several liability of Tenant
and any immediate or remote successor in interest of Tenant shall not be
discharged, released or impaired in any respect by any agreement made by
Landlord extending the time to perform, or otherwise modifying, any of the
obligations of Tenant under this Lease, or by any waiver or failure of Landlord
to enforce any of the obligations of Tenant under this Lease.
(d) Each subletting by Tenant shall be subject to the following:
(i) No subletting shall be for a term (including any renewal or
extension options contained in the sublease) ending later than one day prior to
the Expiration Date.
(ii) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until there has been delivered
to Landlord, both (A) an executed counterpart of such sublease, and (B) a
certificate of insurance evidencing that (x) Landlord and Overlandlord are
additional insureds under the insurance policies required to be maintained by
occupants of the Premises pursuant to SECTION 8.02, and (y) there is in full
force and effect, the insurance otherwise required by SECTION 8.02.
(iii) Each sublease shall provide that it is subject and
subordinate to this Lease, and that in the event of termination, reentry or
dispossess by Landlord under this Lease, Landlord may, at its option, take over
all of the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be liable for, subject to or bound by any item of the type that a
Successor Landlord is not so liable for, subject to or bound by in the case of
an attornment by Tenant to a Successor Landlord under SECTION 7.01(a).
(e) Each sublease shall provide that the subtenant may not assign its
rights thereunder or further sublet the space demised under the sublease, in
whole or in part, without Landlord's consent, which shall not be unreasonably
withheld and shall be granted or denied in
40
accordance with the standards applicable to an assignment or subletting by
Tenant which requires Landlord's consent provided that any sublease requiring
Landlord's consent hereunder may only be further sublet one time without
complying with all of the terms and conditions of this ARTICLE 6, including,
without limitation, SECTION 6.02 and SECTION 6.05, which for purposes of this
SECTION 6.04(e) shall be deemed to be appropriately modified to take into
account that the transaction in question is an assignment of the sublease or a
further subletting of the space demised under the sublease, as the case may be.
(f) Tenant shall not publicly advertise the availability of the
Premises or any portion thereof as sublet space or by way of an assignment of
this Lease, without first obtaining Landlord's consent, which consent shall not
be unreasonably withheld or delayed provided that Tenant shall in no event
advertise the rental rate or any description thereof.
SECTION 6.05. ASSIGNMENT AND SUBLEASE PROFITS. (a) If the aggregate of
the amounts payable as Fixed Rent and as Additional Charges on account of Taxes
and electricity by a subtenant under a sublease of the Premises and the amount
of any Other Sublease Consideration payable to Tenant by such subtenant, whether
received in a lump-sum payment or otherwise, shall be in excess of Tenant's
Basic Cost therefor at that time then, promptly after the collection thereof,
Tenant shall pay to Landlord in monthly installments as and when collected, as
Additional Charges, 50% of such excess. Tenant shall deliver to Landlord within
60 days after the end of each calendar year and within 60 days after the
expiration or earlier termination of this Lease a statement specifying each
sublease in effect during such calendar year or partial calendar year, the
rentable area demised thereby, the term thereof and a computation in reasonable
detail showing the calculation of the amounts paid and payable by the subtenant
to Tenant, and by Tenant to Landlord, with respect to such sublease for the
period covered by such statement. "TENANT'S BASIC COST" for sublet space at any
time means the sum of (i) the portion of the Fixed Rent and Tax Payments which
is attributable to the sublet space, plus (ii) the amount payable by Tenant on
account of electricity in respect of the sublet space, plus (iii) the amount of
any costs reasonably incurred by Tenant in making changes in the layout and
finish of the sublet space for the subtenant amortized on a straight-line basis
over the term of the sublease plus (iv) the amount of any reasonable brokerage
commissions and reasonable legal fees (including those of Tenant's in-house
counsel) paid by Tenant in connection with the sublease amortized on a
straight-line basis over the term of the sublease. "OTHER SUBLEASE
CONSIDERATION" means all sums paid for the furnishing of services by Tenant and
the sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal 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.
(b) Upon any assignment of this Lease, Tenant shall pay to Landlord
50% of the Assignment Consideration received by Tenant for such assignment,
after deducting therefrom customary and reasonable closing expenses which shall
include commissions and legal fees (including those of Tenant's in-house
counsel). "ASSIGNMENT CONSIDERATION" means an amount equal to all sums and other
considerations paid to Tenant by the assignee for or by reason of such
assignment (including, without limitation, sums paid for the furnishing of
services by Tenant and the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal 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).
41
SECTION 6.06. ASSIGNOR CURE RIGHTS.
If this Lease shall have been assigned by Tenant (other than to an
Affiliate of Tenant), Landlord shall give the initially named Tenant (the
"TENANT ASSIGNOR"), a copy of each notice of default given by Landlord to the
then current tenant (the "TENANT ASSIGNEE") under this Lease. Landlord shall not
have any right to terminate this Lease, or otherwise to exercise any of
Landlord's rights and remedies hereunder, after a default by such Tenant
Assignee, unless and until (A) Landlord shall have made a demand on the Tenant
Assignee to cure the default in question, (B) the Tenant Assignor receives a
copy of the default notice in question, and (C) the Tenant Assignor has an
opportunity to remedy such default within the time periods set forth in this
Lease (such time periods, with respect to the Tenant Assignor, being deemed to
run from the date that Landlord gives such Tenant Assignor a copy of the default
notice in question); provided, that this sentence shall not be applicable if the
Tenant Assignee under this Lease in an Affiliate of the Tenant Assignor.
Landlord shall accept timely performance by the Tenant Assignor of any term,
covenant, provision or agreement contained in this Lease on the Tenant
Assignee's part to be observed and performed with the same force and effect as
if performed by the Tenant Assignee (but only if such Tenant Assignee is not an
Affiliate of the Tenant Assignor). If the Tenant Assignor shall cure the default
by such Tenant Assignee, or if the default shall be incurable (such as
bankruptcy), and Landlord or the Tenant Assignee, seeks to terminate this Lease,
then the Tenant Assignor shall have the right to enter into a new lease with
Landlord upon all of the then executory terms of this Lease and to resume actual
possession of the Premises for the unexpired balance of the Term; provided, that
this sentence shall not be applicable if the Tenant Assignee under this Lease is
an Affiliate of the Tenant Assignor.
SECTION 6.07. LANDLORD NON-DISTURBANCE If Tenant shall so request at
the same time it requests Landlord's approval of a sublease, Landlord agrees
that it shall enter into a non-disturbance, attornment agreement with permitted
sublessees of one full floor or more of the Premises provided that (x) such
floor or floors shall be the uppermost or the bottommost floor and/or any floor
contiguous thereto, (y) such sublease shall be for the balance of the term of
this Lease and (z) if the rent such subtenant is paying at the time of
attornment is less than that required pursuant of the terms of this Lease, such
subtenant shall agree to pay Fixed Rent and Additional Charges in accordance
with the terms of this Lease and provided, further, that in determining whether
or not Landlord shall consent to such a sublease, it shall be reasonable for
Landlord to take into account that under certain circumstances Landlord may have
to have such subtenant as its direct tenant.
ARTICLE 7
SUBORDINATION; DEFAULT; INDEMNITY
SECTION 7.01. SUBORDINATION. (a) Subject to the provisions of this
ARTICLE 7, this Lease is subject and subordinate to each mortgage (a
"SUPERIOR MORTGAGE") and each underlying lease including, without limitation,
the Xxxxxxxxx (a "SUPERIOR LEASE") which may now or hereafter affect all or
any portion of the Project or any interest therein; provided that the
Superior Mortgagee under such Superior Mortgage or Superior Lessor under such
Superior Lease shall
42
have executed and delivered a non-disturbance and attornment agreement
substantially to the effect that so long as Tenant is not in default hereunder
beyond any applicable notice and grace periods, (i) this Lease will not be
terminated or cut off not shall Tenant's possession hereunder be disturbed by
enforcement of any rights given to such Superior Mortgagee or Superior Lessor
pursuant to such Superior Mortgage or Superior Lease, and (ii) such Superior
Mortgagee or Superior Lessor shall recognize Tenant as the tenant under this
Lease. The lessor under a Superior Lease is called a "SUPERIOR LESSOR" and the
mortgagee under a Superior Mortgage is called a "SUPERIOR MORTGAGEE". Tenant
shall execute, acknowledge and deliver any instrument reasonably requested by
Landlord, a Superior Lessor or Superior Mortgagee to evidence such
subordination, but no such instrument shall be necessary to make such
subordination effective if a non-disturbance and attornment agreement shall have
been delivered. Notwithstanding anything contained in this SECTION 7.01 to the
contrary, if any Superior Mortgagee or Superior Lessee executes and delivers a
non-disturbance and attornment agreement either (i) in the form attached hereto
as EXHIBIT F or (ii) in a form which is not in any material respect less
favorable to Tenant as the non-disturbance and attornment agreement executed and
delivered contemporaneously herewith by Tenant and the existing Superior
Mortgagee or Superior Lessor, as applicable, and Tenant either fails or refuses
to execute and deliver such agreement within 30 days after delivery of such
agreement to Tenant, then this Lease shall automatically and without further act
be deemed to be subject and subordinate to such Superior Mortgage or Superior
Lease and such non-disturbance and attornment agreement shall then be deemed to
be in effect with respect to such Superior Mortgage or Superior Lease. Tenant
acknowledges and agrees that simultaneously herewith Tenant and the existing
Superior Mortgagee and the existing Superior Lessor have executed and exchanged
non-disturbance and attornment agreements which satisfy the requirements of this
SECTION 7.01. Tenant shall execute any amendment of this Lease requested by a
Superior Mortgagee or a Superior Lessor; PROVIDED such amendment shall not (i)
result in a material increase in Tenant's obligations under this Lease or a
material reduction in the benefits available to Tenant or (ii) diminish the
rights, privileges, interest or estate or Tenant or alter the Term, the Premises
or the services to be provided to Tenant by Landlord hereunder (except, in
either case, to a DE MINIMIS extent). In the event of the enforcement by a
Superior Mortgagee of the remedies provided for by law or by such Superior
Mortgage, or in the event of the termination or expiration of a Superior Lease,
Tenant, upon request of such Superior Mortgagee, Superior Lessor or any person
succeeding to the interest of such mortgagee or lessor (each, a "SUCCESSOR
LANDLORD"), shall, subject to the terms of this ARTICLE 7 and the delivery of a
subordination, non-disturbance and attornment agreement in accordance with this
Section automatically become the tenant of such Successor Landlord without
change in the terms or provisions of this Lease (it being understood that Tenant
shall, if requested, enter into a new lease on terms identical to those in this
Lease); provided, that any Successor Landlord shall not be (i) liable for any
act, omission or default of any prior landlord (including, without limitation,
Landlord); (ii) liable for the return of any monies paid to or on deposit with
any prior landlord (including, without limitation, Landlord), except to the
extent such monies or deposits are delivered to such Successor Landlord; (iii)
subject to any offset, claims or defense that Tenant might have against any
prior landlord (including, without limitation, Landlord); (iv) bound by any Rent
which Tenant might have paid for more than thirty (30) days in advance of the
date upon which such payment was due to any prior landlord (including, without
limitation, Landlord) unless actually received by such Successor Landlord or
expressly approved in writing by it or received by it; (v) bound by any covenant
to perform or complete any construction in
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connection with the Project or the Premises or to pay any sums to Tenant in
connection therewith, or (vi) bound by any waiver or forbearance under, or any
amendment, modification, abridgement, cancellation or surrender of this Lease
made without the consent of such Successor Landlord. Nothing contained herein
shall be deemed to relieve any Successor Landlord of any liability arising by
reason of its acts or omissions from or after the date that such Successor
Landlord shall become the landlord under this Lease, and such Successor Landlord
shall be obligated to perform Landlord's obligations under this Lease arising
from and after becoming landlord, in accordance with the provisions of this
Lease. Upon request by such Successor Landlord, Tenant shall, subject to the
terms of this ARTICLE 7 and the delivery of a subordination, non-disturbance and
attornment agreement in accordance with this Section execute and deliver an
instrument or instruments, reasonably requested by such Successor Landlord,
confirming the attornment provided for herein, but no such instrument shall be
necessary to make such attornment effective. It is hereby acknowledged and
agreed that the foregoing provisions are not intended to relieve any Successor
Landlord from its obligations under this Lease from and after the date it
becomes Landlord under this Lease.
(b) Tenant shall give each Superior Mortgagee and each Superior Lessor
a copy of any notice of default served upon Landlord, provided that Tenant has
been notified of the address of such mortgagee or lessor. If Landlord fails to
cure any default as to which Tenant is obligated to give notice pursuant to the
preceding sentence within the time provided for in this Lease, then each such
mortgagee or lessor shall have an additional 30 days after receipt of such
notice within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if, within such
30 days, any such mortgagee or lessor has commenced and is diligently pursuing
the remedies necessary to cure such default (including, without limitation,
commencement of foreclosure proceedings or eviction proceedings, if necessary to
effect such cure), in which event this Lease shall not be terminated and Tenant
shall not exercise any other rights or remedies under this Lease or otherwise
seek a termination of this Lease while such remedies are being so diligently
pursued. Nothing herein shall be deemed to imply that Tenant has any right to
terminate this Lease or any other right or remedy, except as may be otherwise
expressly provided for in this Lease.
SECTION 7.02 ESTOPPEL CERTIFICATE. Each party shall, at any time and
from time to time, but in any event no more than two (2) times in any twelve
month period, within 10 days after request by the other party, execute and
deliver to the requesting party (or to such person or entity as the requesting
party may designate) a statement certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), certifying the
Premises Possession Date, Expiration Date and the dates to which the Fixed Rent
and Additional Charges have been paid and stating whether or not, to the best
knowledge of such party, the other party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such default of
which such party has knowledge, it being intended that any such statement shall
be deemed a representation and warranty to be relied upon by the party to whom
such statement is addressed. Tenant also shall include or confirm in any such
statement such other information concerning this Lease as Landlord may
reasonably request. Any statement delivered pursuant to this SECTION 7.02 shall
reflect the state of facts existing only as of the date it is given by such
party.
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SECTION 7.03. DEFAULT. (a) This Lease and the term and estate hereby
granted are subject to the limitation that:
(i) if Tenant defaults in the payment of any Fixed Rent, and such
default continues for 5 days after Landlord gives to Tenant a notice specifying
such default, or if Tenant defaults in the payment of any Additional Charges,
and such default continues for 10 days after Landlord gives to Tenant a notice
specifying such default, or
(ii) if Tenant defaults in the keeping, observance or performance
of any covenant or agreement (other than a default of the character referred to
in SECTION 7.03(a)(i), (iii), (iv) OR (v)), and if such default continues and is
not cured within 30 days after Landlord gives to Tenant a notice specifying the
same, or, in the case of a default which for causes beyond Tenant's reasonable
control cannot with due diligence be cured within such period of 30 days, if
Tenant shall not immediately upon the receipt of such notice, (x) advise
Landlord of Tenant's intention duly to institute all steps necessary to cure
such default and (y) institute and thereafter diligently prosecute to completion
all steps necessary to cure the same,
(iii) if this Lease or the estate hereby granted would, by
operation of law or otherwise, devolve upon or pass to any person or entity
other than Tenant, except as expressly permitted by ARTICLE 6, or
(iv) if Tenant shall abandon the entire Premises, has removed a
substantial portion of its personal property and left the Premises unattended
for a period in excess of sixty (60) days, or
(v) if there shall be a failure of Tenant to comply with any of
the material terms and provisions of that certain Overlandlord Consent entered
into by and among Landlord, Overlandlord and Tenant in connection with this
Lease beyond applicable notice and cure periods relating thereto, if any.
SECTION 7.04. RE-ENTRY BY LANDLORD. If this Lease shall terminate as
in SECTION 7.03 provided, Landlord or Landlord's agents and servants may
immediately or at any time thereafter re-enter into or upon the Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the Premises. The words
"re-enter" and "re-entering" as used in this Lease are not restricted to their
technical legal meanings. Upon such termination or re-entry, Tenant shall pay to
Landlord any Rent then due and owing (in addition to any damages payable under
SECTION 7.05).
SECTION 7.05. DAMAGES. (a) If this Lease is terminated under SECTION
7.03 Tenant shall pay to Landlord as damages, at the election of Landlord,
either:
(b) a sum which, at the time of such termination, represents the value
(discounted to present value using Base Rate) of the excess, if any, of (1) the
aggregate of the Rent which, had this Lease not terminated, would have been
payable hereunder by Tenant for the period commencing on the day following the
date of such termination to and including the Expiration Date over (2) the
aggregate fair rental value of the Premises for the same period (for
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the purposes of this CLAUSE (a) the amount of Additional Charges which would
have been payable by Tenant under SECTIONS 3.04 and 3.05 shall, for each
calendar year ending after such termination, be deemed to be an amount equal to
the amount of such Additional Charges payable by Tenant for the calendar year
immediately preceding the calendar year in which such termination shall occur),
or
(c) sums equal to the Rent that would have been payable by Tenant
through and including the Expiration Date had this Lease not terminated, payable
upon the due dates therefor specified in this Lease; PROVIDED, that if Landlord
shall relet all or any part of the Premises for all or any part of the period
commencing on the day following the date of such termination or re-entry to and
including the Expiration Date, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
reletting the expenses incurred or paid by Landlord in terminating this Lease
and of re-entering the Premises and of securing possession thereof, as well as
the expenses of reletting, including, without limitation, altering and preparing
the Premises for new tenants, brokers' commissions, legal fees and all other
expenses properly chargeable against the Premises and the rental therefrom in
connection with such reletting, it being understood that any such reletting may
be for period equal to or shorter or longer than said period; PROVIDED, FURTHER,
that (i) in no event shall Tenant be entitled to receive any excess of such net
rents over the sums payable by Tenant to Landlord under this Lease, (ii) in no
event shall Tenant be entitled, in any suit for the collection of damages
pursuant to this SECTION 7.05(b), to a credit in respect of any net rents from a
reletting except to the extent that such net rents are actually received by
Landlord prior to the commencement of such suit, (iii) if the Premises or any
part thereof should be relet in combination with other space, then proper
apportionment on a square foot rentable area basis shall be made of the rent
received from such reletting and of the expenses of reletting and (iv) Landlord
shall have no obligation to so relet the Premises and Tenant hereby waives any
right Tenant may have, at law or in equity, to require Landlord to so relet the
Premises.
Suit or suits for the recovery of any damages payable hereunder by
Tenant, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall require Landlord to
postpone suit until the date when the Term would have expired but for such
termination or re-entry.
SECTION 7.06. OTHER REMEDIES. Nothing contained in this Lease shall be
construed as limiting or precluding the recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Anything in this Lease to the contrary notwithstanding,
during the continuation of any default by Tenant, Tenant shall not be entitled
to exercise any rights or options, or to receive any funds or proceeds being
held, under or pursuant to this Lease.
SECTION 7.07. RIGHT TO INJUNCTION. In the event of a breach or
threatened breach by Tenant of any of its obligations under this Lease,
including, but not limited to, holding over after the Expiration Date or the
date of any earlier termination of this Lease, Landlord subject to applicable
law shall also have the right of injunction and, in the case of a threatened
holdover, the right to bring a summary proceeding for possession of the Premises
on the Expiration Date or
46
the date of any earlier termination of this Lease. The specified remedies to
which Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may
lawfully be entitled, and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not herein provided for.
SECTION 7.08. CERTAIN WAIVERS; WAIVER OF TRIAL BY JURY. (a) Tenant
waives and surrenders all right and privilege that Tenant might have under or by
reason of any present or future law to redeem the Premises or to have a
continuance of this Lease after Tenant is dispossessed or ejected therefrom by
Landlord, by process of law or under the terms of this Lease or after any
termination of this Lease. Tenant also waives the provisions of any law relating
to notice and/or delay in levy of execution in case of any eviction or
dispossession for nonpayment of rent, and the provisions of any successor or
other law of like import.
(b) Landlord and Tenant each waive trial by jury in any action in
connection with this Lease.
SECTION 7.09. NO WAIVER. Failure by either party to declare any
default immediately upon its occurrence or delay in taking any action in
connection with such default shall not waive such default but such party shall
have the right to declare any such default at any time thereafter. Any amounts
paid by Tenant to Landlord may be applied by Landlord, in Landlord's discretion,
to any items then owing by Tenant to Landlord under this Lease. Receipt by
either party of a partial payment shall not be deemed to be an accord and
satisfaction (notwithstanding any endorsement or statement on any check or any
letter accompanying any check or payment) nor shall such receipt constitute a
waiver by such party of the other party's obligation to make full payment. No
act or thing done by Landlord or its agents shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such surrender shall be
valid unless in writing and signed by Landlord and by each Superior Lessor and
Superior Mortgagee whose lease or mortgage provides that any such surrender may
not be accepted without its consent.
SECTION 7.10. HOLDING OVER. If Tenant holds over without the consent
of Landlord after expiration or termination of this Lease, Tenant shall (a) pay
as holdover rental for each month of the holdover tenancy an amount equal to (w)
125% for the first month of the holdover tenancy, (x) 150% for the second month
of the holdover tenancy, (y) 175% for the third month of the holdover tenancy
and (z) 200% for the fourth month and any additional month(s) of the holdover
tenancy of the greater of (i) the fair market rental value of the Premises for
such month (as reasonably determined by Landlord) or (ii) the Rent which Tenant
was obligated to pay for the month immediately preceding the end of the Term;
and (b) be liable to Landlord for and indemnify Landlord against (i) any payment
or rent concession which Landlord may be required to make to any tenant obtained
by Landlord for all or any part of the Premises (a "NEW TENANT") by reason of
the late delivery of space to the New Tenant not to terminate its lease by
reason of the holding over by Tenant, (ii) the loss of the benefit of the
bargain if any New Tenant shall terminate its lease by reason of the holding
over by Tenant, and (iii) any claim for damages by any New Tenant. No holding
over by Tenant after the Term shall operate to extend the Term. Notwithstanding
the foregoing, the acceptance of any rent paid by Tenant pursuant to this
47
SECTION 7.10 shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding.
SECTION 7.11. ATTORNEYS' FEES. If Landlord places the enforcement of
this Lease or any part thereof upon the default of Tenant, or the collection of
any Rent due or to become due hereunder, or recovery of the possession of the
Premises, in the hands of an attorney, or files suit upon the same, or in the
event any bankruptcy, insolvency or other similar proceeding is commenced
involving Tenant (an "ACTION"), Tenant shall, within twenty (20) days of demand,
reimburse Landlord for landlord's attorney's fees and disbursements and court
costs, provided, however, that if a court of competent jurisdiction renders a
final unappealable verdict there was no basis for the Action, Landlord shall not
be entitled to recover such fees and costs.
SECTION 7.12. NONLIABILITY AND INDEMNIFICATION. (a) Neither Landlord,
any Superior Lessor or any Superior Mortgagee, nor any partner, director,
officer, shareholder, principal, agent, servant or employee of Landlord, any
Superior Lessor or any superior Mortgagee (whether disclosed or undisclosed),
shall be liable to Tenant for (i) any loss, injury or damage to Tenant or to any
other person, or to its or their property, irrespective of the cause of such
injury, damage or loss, nor shall the aforesaid parties be liable for any loss
of or damage to property of Tenant or of others, entrusted to employees of
Landlord; PROVIDED, that, except to the extent of the release of liability and
waiver of subrogation provided in SECTION 8.03 hereof, the foregoing shall not
be deemed to relieve Landlord of any liability to the extent resulting from the
willful misconduct or negligence of Landlord, its agents, servants or employees
in the operation or maintenance of the Premises to the Building. (ii) any loss,
injury or damage described in CLAUSE (i) above caused by other tenants or
persons in, upon or about the Building, or caused by operation in construction
of any private, public or quasi-public work, or (iii) even if negligent,
consequential damages arising out of any loss of use of the Premises or any
equipment, facilities or other Tenant's Property therein.
(b) Tenant shall indemnify and hold harmless Landlord, all Superior
Lessors and all Superior Mortgagees and each of their respective members,
partners, directors, officers, shareholders, principals, agents and employees
(each, an "INDEMNIFIED PARTY"), from and against any and all claims arising from
or in connection with (i) the conduct or management of the Premises or of any
business therein, or any work or thing done, or any condition created, in or
about the Premises, (ii) any negligence or wrong doing of Tenant or any person
claiming through or under Tenant or any of their respective members, partners,
directors, officers, agents, employees or contractors, (iii) any accident,
injury or damage occurring in, at or upon the Premises, (iv) any default by
Tenant in the performance of Tenant's obligations under this Lease and (v) any
brokerage commission or similar compensation claimed to be due by reason of any
proposed subletting or assignment by Tenant; together with all costs, expenses
and liabilities incurred in connection with each such claim or action or
proceeding brought thereon, including without limitation, all reasonable
attorneys' fees and disbursements; PROVIDED ,that the foregoing indemnity shall
not apply to the extent such claim results from the negligence (other than
negligence to which the release of liability and waiver of subrogation provided
in SECTION 8.03 below applies) willful misconduct of the Indemnified Party. If
any action or proceeding is through against any Indemnified Party by reason of
any such claim, Tenant, upon notice from such Indemnified Party shall resist and
defend such action or proceeding (by counsel, including Tenant's in-house
counsel, reasonably satisfactory to such Indemnified Party)
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(c) In the event of any claim, action or proceeding which may
give rise to liability under the indemnity contained in this SECTION 7.12 or
other provision of this Lease. (a) the indemnified party shall give the
indemnifying party prompt notice of such claim or action, (b) the indemnifying
party may defend against such claim or action with counsel selected by it,
subject to the reasonable approval of indemnified party, which approval shall
not be unreasonably withheld or delayed, (c) the indemnified party shall
reasonably cooperate with the indemnifying party and its counsel in the defense
of such claim or action and, (d) the indemnified party shall not settle such
claim or action without indemnifying party's prior written consent, which
consent shall not be unreasonably withheld or delayed.
SECTION 7.13. PROTEST OF LANDLORD CHARGES. Except as otherwise set
forth, Tenant shall have ninety (90) days from receipt (i) of a xxxx or other
request from Landlord for payment of any charge, other than the Fixed Rent,
payable by Tenant under this Lease or (ii) a refund or credit under the terms of
this Lease within which to protest the correctness of such charge or credit,
provided however, if, in connection with a disputed payment, Tenant shall pay
such disputed amount to Landlord under Protest prior to the expiration of such
90 day period, such 90 day period shall be extended to 120 days. If Tenant fails
to make such protest, which shall be made in the manner herein set forth for the
giving of notices, within the ninety (90) day or one hundred twenty (120) day
period, as applicable, the charge set forth in such xxxx or other request or the
applicable refund or credit shall be deemed to have been accepted by Tenant and
shall no longer be contestable by Tenant, time being of the essence.
ARTICLE 8
INSURANCE; CASUALTY; CONDEMNATION
SECTION 8.01. COMPLIANCE WITH INSURANCE STANDARDS. (a) Tenant shall
not violate, or permit the violation of, any condition imposed by any insurance
policy then issued in respect of the Project and shall not do, or permit
anything to be done, or keep or permit anything to be kept in the Premises,
which would subject Landlord, any Superior Lessor or any Superior Mortgagee to
any liability or responsibility for personal injury or death or property damage,
or which would increase any insurance rate in respect of the Project over the
rate which would otherwise then be in effect or which would result in insurance
companies of good standing refusing to insure the Project in amounts reasonably
satisfactory to Landlord, or which would result in the cancellation of, or the
assertion of any defense by the insurer in whole or in part to claims under, any
policy or insurance in respect of the Project. Landlord hereby agrees that the
users permitted under SECTION 2.05 do not violate its insurance policies.
(b) if, by reason of any failure of Tenant to comply with this Lease,
the premiums on Landlord's insurance on the Project shall be higher than they
otherwise would be, Tenant shall reimburse Landlord, within twenty (20) days of
demand, for that part of such premiums attributable to such failure on the part
of Tenant. A schedule or "make up" of rates for the Project or the Premises, as
the case may be, issued by the New York Fire Insurance Rating Organization or
other similar body making rates for insurance for the Project or the Premises as
the case may be, shall be conclusive evidence of the facts therein stated and of
the several items
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and charges in the insurance rate then applicable to the project or the
Premises, as the case may be.
SECTION 8.02. TENANT'S INSURANCE. (a) Tenant shall maintain at all
times during the Term (i) "all risk" property, insurance covering all present
and future Tenant's Property, Fixtures and Tenant's Improvements and Betterments
to a limit of not less than the full replacement cost thereof, and (ii)
commercial general liability insurance, including a contractual liability
endorsement, and personal injury liability coverage, in respect of the Premises
and the conduct or operation of business therein, with Landlord and each
Superior Lessor and Superior Mortgagee whose name and address shall have been
furnished to Tenant, as additional insureds, with limits of not less than
$10,000,000 combined single limit for bodily injury and property damage
liability in any one occurrence and (iii) boiler and machinery insurance, if
there is a boiler, supplementary air conditioner or pressure object or similar
equipment in the Premises, with Landlord and each Superior Lesser and Superior
Mortgagee whose name and address shall have been furnished to Tenant, as
additional insureds, with limits of not less than $10,000,000 and (iv) when
Alterations are in process, the insurance specified in SECTION 5.02(f) hereof.
The limits of such insurance shall not limit the liability of Tenant. Tenant
shall deliver to Landlord and any other additional insureds, at least 10 days
prior to the Commencement Date, such fully paid-for policies or certificates of
insurance, in form reasonably satisfactory to Landlord issued by the insurance
company or its authorized agent. Tenant shall procure and pay for renewals of
such insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any other additional insureds such renewal policy or a
certificate thereof atleast 30 days before the expiration of any existing
policy. All such policies shall be issued by companies of recognized
responsibility approved to do business in New York State and rated by Best's
Insurance Reports or any successor publication of comparable standing as A-/VIII
or better or the then equivalent of such rating, and all such policies shall
contain a provision whereby the same cannot be canceled, allowed to lapse or
modified unless Landlord any additional insureds are given at least 30 days'
prior written notice of such cancellation, lapse or modification. The proceeds
of policies providing "all risk" property insurance of Fixtures and Improvements
and Betterments shall be payable to Landlord, Tenant and each Superior Lessor
and Superior Mortgagee as their interests may appear. Tenant shall have the
right to receive the proceeds paid with respect to Tenant's Property of any
policy maintained by Tenant to provide insurance of Tenant's property. Tenant
shall cooperate with Landlord in connection with the collection of any insurance
monies that may be due in the event of loss and Tenant shall execute and deliver
to Landlord such proofs of loss and other instruments which may be required to
recover any such insurance monies. Landlord may from time to time require that
the amount of the insurance to be maintained by Tenant under this SECTION 8.02
be increased, so that the amount thereof adequately protects Landlord's interest
but such increase shall not be in excess of to that amount of insurance which in
Landlord's reasonable judgment is then being customarily required by prudent
landlords of non-institutional first class office buildings in New York City.
Any insurance policy with respect to the insurance required to be maintained by
Tenant hereunder may be carried under a blanket policy covering the Premises and
other locations of Tenant, if any, provided that (x) the coverages and limits
applicable to the Premises are separately stated in amounts not less than the
amounts required hereunder and (y) the coverage afforded under such blanket
policy allocable to the Premises shall not be less than the coverage which would
have been afforded had such insurance not been covered under a blanket policy.
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(b) To the extent not maintained by Overlandlord, Landlord agrees
that Landlord shall maintain at all times during the Term such (i) "all risk"
property insurance, (ii) commercial general liability insurance and (iii) any
other form of insurance, and in such amounts, as is carried by prudent owners of
similar properties. Landlord shall be deemed to have satisfied the foregoing
obligation of this Section 8.02(b) if Landlord maintains the insurance required
by the Xxxxxxxxx.
(c) Notwithstanding anything in this Lease to the contrary, so
long as (i) Tenant is not in default of its obligations under this Lease to pay
Fixed Rent and Additional Charges beyond applicable notice and grace periods,
(ii) Tenant maintains substantially the same creditworthiness as exists on the
date hereof and (iii) Tenant named herein, any Successor Entity or any Affiliate
is the Tenant hereunder, Tenant may, in lieu of maintaining the liability
insurance required under this Lease, self-insure and assume the risks of, and
shall pay all costs of or related to, all liability claims that may be asserted
against Tenant and all liability claims which may be asserted against Landlord,
Landlord's agents, any Superior Mortgagee or any Superior Lessor in a combined
aggregate amount not to exceed $5,000,000.00 (it being understood that Tenant
shall maintain coverage for liability in excess of such amount otherwise in
accordance with Section 8.02(a) above) for which Tenant is responsible pursuant
to this Lease and with respect to which Tenant has self-insured. As a
self-insurer Tenant shall be responsible for any and all obligations of Tenant
to indemnify and hold Landlord harmless from and against any matters refereed to
in this Lease or which otherwise would have been included within the coverage of
any insurance policy required by Tenant to be obtained under any provision of
this Lease. If Tenant elects to provide insurance coverage for which Tenant is
responsible under this Section by self-insurance, it shall provide coverage upon
the same terms and conditions as would be provided by an insurance company if
Tenant had procured such policies as described in this Section and as if
Landlord, Overlandlord and any Superior Mortgagee were named in such policies as
additional insureds. In the event Tenant elects to act as self-insurer pursuant
to the provisions of this paragraph, then, without limiting the provisions of
this Section, Tenant shall act as insurer of Landlord, Overlandlord and any
Superior Mortgagee with respect to, shall defend and answer actions against
Landlord and Overlandlord against all claims and demands of third persons,
including, without limitation, any claim or demand of any third person arising
out of any willful or negligent act or omission of Landlord or Overlandlord, and
their respective directors, officers, agents or employees and liability therefor
to the same extent that an insurance company would have done and to the same
extent as would be covered under the policy of commercial general liability
insurance described in this Section. If Tenant elects to self-insure, Tenant
will provide a written statement of Tenant's self-insurance. In the event that
any of the conditions specified in CLAUSES (i), (ii) or (iii) are no longer
satisfied, then within 5 Business Days thereafter Tenant shall obtain and keep
in full force and effect during the Team of this Lease the liability insurance
otherwise required by this Lease. If Tenant fails to obtain such insurance
within such 5 Business Day period, Landlord may purchase such insurance at
Tenant's expense. Tenant may elect to cease its self-insurance program hereunder
at any time so long as not less than 10 days prior thereto Tenant puts in place
all liability insurance required under this Lease and delivers evidence thereof
to Landlord.
SECTION 8.03. SUBROGATION WAIVER. Landlord and Tenant shall each
include in each of its insurance policies (insuring the Project in case of
Landlord, and insuring Tenant's Property, Fixtures and Improvements and
Betterments in the case of Tenant, against loss,
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damage or destruction by fire or other casualty) a waiver of the insurer's right
of subrogation against the other party during the Term or, if such waiver should
be unobtainable or unenforceable, (a) an express agreement that such policy
shall not be invalidated if the assured waives the right of recovery against any
party responsible for a casualty covered by the policy before the casualty or
(b) any other form of permission for the release of the other party. Each party
hereby releases the other party with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damage or destruction with respect to its property occurring during the Term to
the extent to which it is, or is required to be, insured under a policy or
policies containing a waiver of subrogation or permission to release liability.
Nothing contained in this SECTION 8.03 shall be deemed to relieve either party
of any duty imposed elsewhere in this Lease to repair, restore or rebuild or to
nullify any abatement of rents provided for elsewhere in this Lease.
SECTION 8.04. CONDEMNATION. (a) If there shall be a total taking of
the Land and/or the Building in condemnation proceedings or by any right of
eminent domain, this Lease and the term and estate hereby granted with respect
to the Premises shall terminate as of the date of taking of possession by the
condemning authority and all Rent shall be prorated and paid as of such
termination date. If there shall be taking of any material (in Landlord's
reasonable judgment) portion of the Land and/or Building (whether or not the
Premises or any portion thereof are affected by such taking), then Landlord may
terminate this Lease and the term and estate granted hereby by giving notice to
Tenant within 60 days after the date of taking of possession by the condemning
authority. If there shall be a taking of the Premises of such scope (but in no
event less than 25% thereof) that the untaken part of the Premises would in
Tenant's reasonable judgment no longer suited for the purposes set forth in
Article 2 of this Lease, or Tenant no longer has responsible means of access to
such Premises then Tenant may terminate this Lease and the term and estate
granted hereby by giving notice to Landlord within 60 days after the date of
taking of possession by the condemning authority. If either Landlord or Tenant
shall give a termination notice as aforesaid, then this Lease and the term and
estate granted hereby shall terminate as of the date of such notice and all Rent
shall be prorated and paid as of such termination date. In the event of taking
of Premises which does not result in the termination of this Lease (i) the term
and estate hereby granted with respect to the taken part of the Premises shall
terminate as of the date of taking of possession by the condemning authority and
all Rent shall be appropriately abated for the period from such date to the
Expiration Date and (ii) Landlord shall with reasonable diligence restore the
remaining portion of the Premises (exclusive of Tenant's Property) as nearly as
practicable to its condition prior to such taking.
(b) In the event of any taking of all or a part of the Building,
Landlord shall be entitled to receive the entire award in the condemnation
proceeding, including, without limitation, any award made for the value of
the estate vested by this Lease in Tenant or any value attributable to the
unexpired portion of the Term, and Tenant hereby assigns to Landlord any and
all right, title and interest of Tenant now or hereafter arising in or to any
such award or any part thereof, and Tenant shall be entitled to receive no
part of such award; PROVIDED, that nothing shall preclude Tenant from
intervening in any such condemnation proceeding to claim or receive from the
condemning authority any compensation to which Tenant may otherwise lawfully
be entitled in such case in respect of Tenant's Property, Tenant's
Alterations, Betterments or Improvements (except to the extent such
Alterations constitute property which is, or at the expiration of the Term,
becomes Landlord's property) or moving expenses, provided the same does not
include
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any value of the estate vested by this Lease in Tenant or of the unexpired
portion of the Term and does not reduce the award available to Landlord or
materially delay the payment thereof.
(c) If all or any part of the Premises shall be taken for a limited
period, Tenant shall be entitled, except as hereinafter set forth, to that
portion of the award for such taking which represents compensation for the use
and occupancy of the Premises, for the taking of Tenant's Property, Tenant's
Alterations (except to the extent such Alterations constitute property which is,
or at the expiration of the Term, becomes Landlord's property) or for moving
expenses, and Landlord shall be entitled to that portion which represents
reimbursement for the cost of restoration of the Premises. This Lease shall
remain unaffected by such taking and Tenant shall continue responsible for all
of its obligations under this Lease to the extent such obligations are not
affected by such taking and shall continue to pay in full all Rent when due. If
the period of temporary use of occupancy shall extend beyond the Expiration
Date, that part of the award which represents compensation for the use and
occupancy of the Premises shall be apportioned between Landlord and Tenant as of
the Expiration Date. Any award of temporary use and occupancy for a period
beyond the date to which the Rent has been paid shall be paid to, held and
applied by Landlord as a trust fund for payment of the Rent thereafter becoming
due.
(d) In the event of any taking which does not result in termination of
this Lease, (i) Landlord, whether or not any award shall be sufficient therefor,
shall proceed with reasonable diligence to repair the remaining parts of the
Building and Premises (other that those parts of the Premises which constitute
Tenant's Property) to substantially their former condition to the extent that
the same may be feasible (subject to reasonable changes which Landlord deems
desirable) and so as to constitute a complete and rentable Building and Premises
and (ii) Tenant, whether or not any award shall be sufficient therefor, shall
proceed with reasonable diligence to repair the remaining parts of the Premises
which constitute Tenant's Property, to substantially their former condition to
the extent that the same may be feasible, subject to reasonable changes which
shall be deemed Alterations.
SECTION 8.05. CASUALTY. (a) If the Building or the Premises shall be
partially or totally damage or destroyed by fire or other casualty (each, a
"CASUALTY") and if this Lease is not terminated as provided below, then (i)
Landlord shall repair and restore the Building, including the exterior and
public portions thereof (including, without limitation, the Building lobbies,
exterior walls, elevator shafts), Building systems servicing the Premises, and
the Premises (excluding Tenant's Improvements and Betterments, Fixtures and
Tenant's Property) with reasonable dispatch to substantially the condition as
existed prior to the damage to the extent permitted by applicable Law (but
Landlord shall not be required to perform the same on an overtime or premium pay
basis) after notice to Landlord of the Casualty and the collection of the
insurance proceeds attributable to such Casualty provided, however, in the event
that Landlord fails to maintain the insurance customarily carried by prudent
Landlords of similar type buildings, the collection of insurance proceeds shall
not be a condition to Landlord performing such restoration and (ii) Tenant shall
repair and restore in accordance with SECTION 5.02 all Tenant's Property,
Fixtures and Improvements and Betterments with reasonable dispatch after the
Casualty, including any tenant build-out existing in the Premises on the date of
delivery thereof by Landlord (collectively, "TENANT CASUALTY REPAIR
OBLIGATIONS"). Landlord agrees that, if and to the extent, Landlord, any
Superior Mortgagee or any Superior Lessor receives insurance proceeds in respect
of Tenant Casualty Repair Obligations Landlord shall notify Tenant thereof
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and upon request of Tenant, make such proceeds available to Tenant so that
Tenant may perform its Tenant Casualty Repair Obligations. In the event Landlord
has received proceeds in respect of Tenant Casualty Repair Obligations and
Landlord does not make such proceeds available to Tenant, Landlord shall be
obligated, at Landlord's cost and expense, to perform the Tenant Casualty Repair
Obligations with reasonable dispatch after the Casualty. In the event any
Superior Mortgagee or any Superior Lessor has received proceeds in respect of
Tenant Casualty Repair Obligations and such Superior Mortgagee or Superior
Lessor shall refuse to release such proceeds to Tenant, Landlord shall be
obligated, at Landlord's cost and expense, to perform or cause to be performed
the Tenant Casualty Repair Obligations.
(b) If all or part of the Premises shall be rendered untenantable by
reason of a Casualty, the Fixed Rent and the Additional Charges under SECTION
3.04 and 3.05 shall be abated in the proportion that the untenantable area of
the Premises bears to the total area of the Premises, for the period from the
date of the Casualty to the earlier of (i) the date the Premises is made
tenantable (PROVIDED, that if the Premises would have been tenantable at an
earlier date but for Tenant having failed to cooperate with Landlord in
effecting repairs or restoration or collecting insurance proceeds or (ii) the
date Tenant or any subtenant reoccupies a portion of the Premises (in which case
the Fixed Rent and the Additional Charges allocable to such reoccupied portion
shall be payable by Tenant from the date of such occupancy). Landlord's
determination of substantial completion of the restoration of the Premises
(excluding Tenant's Improvement, Betterments, Fixtures and Tenant's Property the
repair of which shall be Tenant's obligation), shall be controlling unless
Tenant disputes same by notice to Landlord within 30 days after such
determination by Landlord, and pending resolution of such dispute, Tenant shall
pay Rent in accordance with Landlord's determination. Notwithstanding the
foregoing, if by reason of any act or omission by Tenant, any subtenant or any
of their respective partners, directors, officers, servants, employees, agents
or contractors, Landlord, any Superior Lessor or any Superior Mortgagee shall be
unable to collect all of the insurance proceeds (including, without limitation,
rent insurance proceeds) applicable to the Casualty, then, without prejudice to
any other remedies which may be available against Tenant, there shall be no
abatement of Rent. Nothing contained in this SECTION 9.05 shall relieve Tenant
from any liability that may exist as a result of any Casualty. Prior to the
substantial completion of Landlord's repair obligations set forth in this
Section, Landlord shall provide Tenant and Tenant's contractors, subcontractors
and materialmen access to the Premises to perform such repairs that Tenant is
required or desire to make hereunder as a result of the Casualty (but not to
occupy the same for the conduct of business); PROVIDED that any such access
shall be subject to all of the applicable provisions of the Lease, and, shall
not interfere with the conduct of Landlord's work AND in the Premises or in any
other damaged portion of the Building.
(c) If by reason of a Casualty (i) the Building shall be totally
damaged or destroyed, (ii) the Building shall be so damaged or destroyed
(whether or not the Premises are damaged or destroyed) that repair or
restoration shall require more than 270 days or the expenditure of more that 25%
percent of the full insurable value of the Building (which, for purposes of this
SECTION 9.05(c), shall mean replacement cost less the cost of footings,
foundations and other structures below the street and first floors of the
Building) immediately prior to the Casualty or (iii) more than 50% of the
Premises shall be damaged or destroyed (as estimated in any such case by a
reputable contractor, architect or engineer designated by
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Landlord), then in any such case Landlord may terminate this Lease by notice
given to Tenant within 180 days after the Casualty.
(d) Within ninety (90) days after notice to Landlord of any Casualty,
Landlord shall deliver to Tenant a statement prepared by a reputable contractor
selected by Landlord setting forth such contractor's estimate as to the time
required for Landlord to substantially complete the repairs required to be
performed by it hereunder (the "REPAIR ESTIMATE NOTICE"). If the estimated time
period exceeds eighteen (18) months from the date of such statement, Tenant may
elect to terminate this Lease by notice to Landlord not later than thirty (30)
days following receipt of such statement. If Tenant makes such election, the
Term shall expire upon the 30th day after notice of such election is given by
Tenant.
(e) If Landlord shall have delivered a notice to Tenant pursuant to
SECTION 9.05(d) and no right to terminate this Lease shall have accrued to
Tenant by reason thereof, but Landlord shall have failed to substantially
complete the repairs by the date which is six (6) months after the date set
forth in the Repair Estimate Notice (the "REQUIRED SUBSTANTIAL COMPLETION
DATE"), as the same may be extended by reason of Unavoidable Delays (but not in
excess of one hundred twenty (120) days), Tenant may elect to terminate this
Lease by notice to Landlord given not later than thirty (30) days after the
Required Substantial Completion Date and if Tenant makes such election, the Term
shall expire on the thirtieth (30th) day after notice of such election is given
by Tenant.
(f) Notwithstanding anything to the contrary contained in this SECTION
8.05, if more than twenty-five percent (25%) of the Premises shall be damaged
during the last eighteen (18) months of the Term (as the same may be renewed or
extended), Landlord or Tenant may elect by notice, given within sixty (60) days
after the occurrence of such damage, to terminate this Lease and, if either
party makes such election, the Term shall expire upon the sixtieth (60th) day
after notice of such election is given by such party.
(g) Landlord shall not carry any insurance on Tenant's Property,
Fixtures or on Tenant's Improvements and Betterments and shall not be obligated
to repair or replace Tenant's Property, Fixtures or Improvements and
Betterments. Tenant shall look solely to its insurance for recovery of any
damage to or loss of Tenant's Property, Fixtures or Tenant's Improvements and
Betterments. Tenant shall notify Landlord promptly of any Casualty in the
Premises.
(h) This SECTION 9.05 shall be deemed an express agreement governing
any damage or destruction of the Premises by fire or other casualty and Section
277 of the New York Real property Law providing for such a contingency in the
absence of an express agreement, and any other law of like import now or
hereafter in force, shall have no application.
ARTICLE 9
MISCELLANEOUS PROVISIONS
SECTION 9.01. NOTICE. All notices, demands, consents, approvals,
advices, waivers or other communications which may or are required to be given
by either party to the
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other under this Lease shall be in writing and shall be deemed to have been
given one Business Day after deposit in the United States mail, certified or
registered, postage prepaid, (return receipt requested) or, rendered if
delivered by hand (against a signed receipt) or nationally recognized, overnight
courier service (against a signed receipt), and addressed to the party to be
notified at the address for such party specified in the first paragraph of this
Lease 5 day's notice to the notifying party. In the case of each notice to
Landlord, such notice shall be sent to the attention of: Managing Director,
Corporate Services, with a copy to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, Esq. and, in the case of
each notice to Tenant at the Premises to the attention of General Counsel and
Chief, Real Estate and Environmental Law Division, Law Department, The Port
Authority of New York and New Jersey. Any such xxxx, statement, consent, notice,
demand, request or other communication shall be deemed to have been rendered or
given on the date when it shall have been delivered (or upon refusal to accept
delivery). Notices from Tenant may be given by Tenant's attorney. Notices from
Landlord may be given by Landlord's managing agent, if any, or by Landlord's
attorney.
SECTION 9.02. BUILDING RULES. Tenant shall comply with, and Tenant
shall cause its licensees, employees, contractors, agents and invitees to comply
with, the rules of the Building set forth in the Rules and Regulations, as the
same may be reasonably modified or supplemented by Landlord from time to time
for the safety, care and cleanliness of the Premises and the Building and for
preservation of good order therein. Landlord shall not be obligated to enforce
the rules of the Building against Tenant or any other tenant of the Building or
any other party, and Landlord shall have no liability to Tenant by reason of the
violation by any tenant or other party of the rules of the Building; PROVIDED,
that Landlord shall not enforce the rules of the Building in a manner which
discriminates against Tenant. If any rule of the Building shall conflict with
any provision of this Lease, such provision of this Lease shall govern.
SECTION 9.03. SEVERABILITY. If any term or provision of this Lease, or
the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected, and each provision of this
Lease shall be valid and shall be enforceable to the extent permitted by law.
SECTION 9.04. CERTAIN DEFINITIONS. Landlord shall have no liability to
Tenant" or words of similar import mean that Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial, or total, or
to receive any abatement or diminution of Rent, or to be relieved in any manner
or any of its other obligations under this Lease, or to be compensated for loss
or injury suffered or to enforce any other right or kind of liability whatsoever
against Landlord under or with respect to this Lease or with respect to Tenant's
use or occupancy of the Premises.
SECTION 9.05. QUIET ENJOYMENT. Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises, subject to the other terms of this
Lease and to Superior Leases and Superior Mortgages, provided that Tenant is not
in default of its obligations hereunder beyond any applicable notice and cure
periods.
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SECTION 9.06. LIMITATION OF LIABILITY (a) Tenant shall look solely to
Landlord's interest in the Project, the proceeds of any sale thereof (provided a
claim shall have been made within three (3) months of such sale), casualty
proceeds and any condemnation award for the recovery of any judgment against
Landlord, and no other property or assets of Landlord or Landlord's members,
partners, officers, directors, shareholders or principals, direct or indirect,
disclosed or undisclosed, shall be subject to levy, execution attachment or
other enforcement procedure for the satisfaction of any judgment or Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder, or Tenant's use and occupancy of the Premises, or any other
liability of Landlord to Tenant.
(b) In the event of a transfer of title to the land and Building of
which the Premises is a part, or in the event of a lease of the Building of
which the Premises is a part, or of the land and Building, upon notification to
Tenant of such transfer or lease, the said transferor landlord named herein
shall be and hereby is entirely freed and relieved of all future covenants,
obligations and liabilities of Landlord hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the transferee of title to or lessee of
said land and Building, that the transferee or lessee has assumed and agreed to
carry out all of the covenants and obligations of Landlord thereunder.
(c) Neither the Commissioners of the Port Authority nor any of them
nor any officer, employee or agent shall be personally liable for the
performance of Tenant's obligations under this Lease.
SECTION 9.07. COUNTERCLAIMS. If Landlord commences any summary
proceeding or action for nonpayment of Rent or to recover possession of the
Premises, Tenant shall not interpose any counterclaim of any nature or
description in any such proceeding or action, unless Tenant's failure to
interpose such counterclaim in such proceeding or action would result in the
waiver of Tenant's right to bring such claim in a separate proceeding under
applicable law.
SECTION 9.08. SURVIVAL. All obligations and liabilities of Landlord or
Tenant to the other which accrued before the expiration or other termination of
this Lease and all such obligations and liabilities which by their nature or
under the circumstances can only be, or by the provisions of this Lease may be,
performed after such expiration or other termination, shall survive the
expiration or other termination of this Lease. Without limiting the generality
of the foregoing, the rights and obligations of the parties with respect to any
indemnity under this Lease, and with respect to Tax payments and any other
amounts payable under this Lease, and with respect to Tax Payments and any other
amounts payable under this Lease, shall survive the expiration or other
termination of this Lease.
SECTION 9.09. CERTAIN REMEDIES. If Tenant requests Landlord's consent
and Landlord fails or refuses to give such consent, Tenant shall not be entitled
to any damages for any withholding by Landlord of its consent, it being intended
that Tenant's sole remedy shall be an action for specific performance or
injunction or for arbitration as provided for in Section 8.19 herein, and that
such remedy shall be available only in those cases where this Lease provides
that Landlord shall not unreasonably withhold its consent. No dispute relating
to this Lease or the relationship of Landlord and Tenant under this Lease shall
be resolved by arbitration unless this Lease expressly provides for such dispute
to be resolved by arbitration.
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SECTION 9.10. NO OFFER. The submission by Landlord of this Lease in
draft form shall be solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed a
lease and duplicate originals thereof shall have been delivered to the
respective parties.
SECTION 9.11. CAPTIONS; CONSTRUCTION. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed, shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease.
SECTION 9.12. AMENDMENTS. This Lease may not be altered, changed or
amended nor any of its provisions waived, except by an instrument in writing
signed by the party to be charged.
SECTION 9.13. BROKER. Each party represents to the other that such
party has dealt with no broker other than Insignia/ESG, Inc. (the "BROKER") in
connection with this Lease or the Building, and each party shall indemnify and
hold the other harmless from and against all loss, cost, liability and expense
(including, without limitation, reasonable attorneys' fees and disbursements)
arising out of any claim for a commission or other compensation by any broker
other than Broker who alleges that is has dealt with the indemnifying party in
connection with this Lease or the Building. Landlord shall pay Broker a
commission in accordance with the terms and conditions of a separate agreement
between Landlord and Broker.
SECTION 9.14. MERGER. Tenant acknowledges that Landlord has not made
and is not making, and tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease. This Lease
embodies the entire understanding between the parties with respect to the
subject matter hereof, and all prior agreements, understanding and statements,
oral or written, with respect thereto are merged in this Lease.
SECTION 9.15. SUCCESSORS. This Lease shall be binding upon and inure
to the benefit of Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and Tenant's permitted
assigns.
SECTION 9.16. APPLICABLE LAW. This Lease shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to any principles of conflicts of laws.
SECTION 9.17. NO DEVELOPMENT RIGHTS. Tenant acknowledges that it has
no rights to any developments rights, air rights or comparable rights
appurtenant to the Project, and Tenant consents, without further consideration,
to any utilization of such rights by Landlord. Tenant shall promptly execute and
deliver any instruments which may be requested by Landlord,
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including instruments merging zoning lots, evidencing such acknowledgement and
consent. The provisions of this SECTION 9.17 shall be construed as an express
waiver by Tenant of any interest Tenant may have as a "party in interest" (as
such term is defined in Section 12-10 Zoning Lot of the Zoning Resolution of the
City of New York) in the Project.
SECTION 9.18. SURRENDER. Upon the expiration or earlier 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, casualty,
condemnation and damage for which Tenant is not responsible under the terms of
this Lease excepted, provided, however, that the foregoing shall not obligate
Tenant to restore the Premises to any greater condition than was delivered to
Tenant by Landlord. 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 Section 9.18. Tenant acknowledges that possession
of the Premises must be surrendered to Landlord on the Expiration Date.
SECTION 9.19. ARBITRATION. If expressly permitted under this Lease,
Landlord or Tenant (the "ELECTING PARTY") may elect to resolve a dispute by
arbitration pursuant to the provisions of this Section. Such Electing Party
shall deliver to the other party a written notice specifying the nature of the
dispute, the reasons therefor and such Electing Party's determination of the
item in dispute. If the other party shall not agree with the Electing Party's
determination of the item in dispute, then either party shall have the right to
submit such dispute to arbitration pursuant to this SECTION 9.19 by notice to
the other party. The parties hereby agree that all such disputes submitted to
arbitration shall be resolved by an arbitrator mutually agreed to by the
parties, and if the parties cannot agree on an arbitrator, either party may
apply to the American Arbitration Association for the appointment of an
arbitrator (the "ARBITRATOR"). The Arbitrator shall, as promptly as possible,
determine the matter which is the subject of the arbitration and the decision of
the Arbitrator shall be conclusive and binding on all parties and judgment upon
the award may be entered in any court having jurisdiction. The arbitration shall
be conducted in the City and County of New York and, to the extent applicable
and consistent with this SECTION 9.19, shall be in accordance with the
Commercial Arbitration Rules then obtaining of the American Arbitration
Association or any successor body of similar function. The expenses of
arbitration shall be shared equally by the parties but each party shall be
responsible for the fees and disbursements of its own attorneys and the expenses
of its own proof. The Arbitrator shall be a licensed professional appropriate to
the dispute, having at least ten (10) years' continuous experience in the real
estate industry including the management of multi-tenant, commercial office
buildings in Manhattan similar in type to the Project. At the option of either
party, any arbitration under this Lease shall be governed by the Expedited
Procedures provisions of the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA RULES") (presently Section 53 through 57 of
the AAA Rules and, to the extent applicable, Section 19 thereof).
SECTION 9.20. SIGNAGE. Tenant shall be permitted to install, at its
sole cost and expense, signs identifying Tenant in the elevator lobby of the
Initial Premises and the Additional Premises, subject to Landlord's reasonable
approval as to design and materials. Landlord, at
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Landlord's option, shall either (i) in the Building lobby a sign of appropriate
size and suitable design identifying Tenant as an occupant of the Building, (ii)
maintain a Building directory in which Tenant shall be allocated an appropriate
number of listings, or (iii) provide some other reasonable and appropriate means
of indicating in the lobby of the Building that Tenant is an occupant of the
Building and Tenant's location therein, provided, that, with respect to the
matters set forth in clauses (ii) and (iii) above, Landlord agrees that the
directory related services or means of identification Landlord provides to
Tenant described therein shall be at least commensurate in quality and
extensiveness with the directory related services or means of identification
Landlord provides to Overlandlord.
SECTION 9.21. ATTORNEYS' FEES. Each party shall reimburse the other
party, within twenty (20) days following written demand, for all reasonable
costs and expenses (including reasonable attorneys' fees, disbursements and
court costs) incurred by such other party in connection with enforcing such
other party's obligations hereunder or in protecting such other party's rights
hereunder, whether incurred in connection with an action or proceeding commenced
by Landlord, by Tenant, by a third party or otherwise, if such other party is
successful in such proceeding.
SECTION 9.22. COUNTERPARTS. This Lease may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Lease to produce or account for
more than one such counterpart.
SECTION 9.23. INVOICES. Wherever in the Lease it is provided that
either party shall render a xxxx or invoice to the other, the party giving such
xxxx or invoice shall include evidence of the amounts set forth in the xxxx or
invoice.
ARTICLE 10
SUBLEASE PROVISIONS
SECTION 10.01.SUBLEASE PROVISIONS. (a) Notwithstanding the title of
this document as "Lease", the parties acknowledge that this Lease is a sublease.
This Lease is subject to, and Tenant accepts this Lease subject to, all of the
terms, covenants, provisions, conditions and agreements contained in the
Xxxxxxxxx and the matters to which the Xxxxxxxxx is subject and subordinate.
This Lease shall also be subject to, and Tenant accepts this Lease also subject
to, any future amendments or supplements to the Xxxxxxxxx hereafter made between
Overlandlord and Landlord, provided that any such future amendment or supplement
to the Xxxxxxxxx, except as herein expressly recognized, contemplated or agreed,
does not in any material respect increase Tenant's obligations or decrease
Tenant's rights from, out of or under this Lease or prohibit Landlord from
meeting its obligations under hereunder. Except to the extent provided in this
Subordination and Non-Disturbance Agreement between Tenant and Overlandlord, in
the event of termination, re-entry or dispossess by Overlandlord under the
Xxxxxxxxx, Overlandlord may, at its option, take over all of the right, title
and interest of Landlord, as sublessor, under this Lease, and Tenant shall, at
Overlandlord's option, attorn to
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Overlandlord pursuant to the then executory provisions of this Lease, except
that Overlandlord shall not (i) be liable for any previous act or omission of
Landlord under this Lease, (ii) be subject to any offset, not expressly provided
in this Lease, which theretofore accrued to Tenant against Landlord, or (iii) be
bound by any previous modification of this Lease made without Overlandlord's
consent or by any previous prepayment of more than one month's rent. In the
event of any conflict between the terms of any Subordination and Non-Disturbance
Agreement entered into between Tenant and Overlandlord and the provisions of
this Lease, including the foregoing sentence, the terms and provisions of the
Subordination and Non-Disturbance Agreement shall govern.
(b) The term "Landlord", as used in this Lease, shall mean only the
owner from time to time of the interest of the tenant under the Xxxxxxxxx. In
the event of any transfer or assignment of such interest, the transferor or
assignor shall be relieved and freed of all covenants, obligations and liability
of Landlord under this Lease accruing after such transfer or assignment, and it
shall be deemed, without further agreement, that the transferee or assignee has
assumed and agreed to perform and observe all obligations of Landlord under this
Lease subsequent to the effective date of the transfer or assignment.
(c) Whenever Landlord has agreed that a required consent or approval
shall not be withheld or delayed or unreasonably withheld or delayed, Landlord
may withhold its consent or approval and/or it shall be deemed reasonable for
Landlord to withhold or delay its consent or approval if Overlandlord, to the
extent its consent is required pursuant to the terms of the Xxxxxxxxx, shall
have delayed or refused to give any consent or approval which may be requested
of it. Landlord shall promptly forward to Overlandlord such requests as Tenant
may submit for approval or consent from Overlandlord. In the event a matter
hereunder requires the consent of Overlandlord pursuant to the terms hereof or
the Xxxxxxxxx and the time period for obtaining Overlandlord's consent to a
particular matter under the Xxxxxxxxx exceeds the time period set forth in the
Lease with respect to such matter, such time period in the Lease shall be
extended to the date set forth in the Xxxxxxxxx, plus an additional five (5)
Business Days. If Landlord is willing to grant its consent to Tenant to a
particular matter and Overlandlord is not willing to grant such consent,
Landlord shall use good faith efforts to intermediate with Overlandlord to
obtain such consent (without the obligation to spend sums of money, grant any
concessions to Overlandlord under the Xxxxxxxxx or undertake any other
significant monetary or non-monetary measures) and Tenant shall have the right
to take whatever action may available at law or under the Xxxxxxxxx to obtain
such consent in its own name, and for that purpose and only to such extent, all
of the rights of Landlord under the Xxxxxxxxx hereby are conferred upon and
assigned to Tenant and Tenant is subrogated hereby to such rights to the extent
that the same shall apply to the matter for which consent is sought. If any such
action against Overlandlord in Tenant's name shall be barred by reason of lack
of privity, nonassignability or otherwise, Tenant may take such action in
Landlord's name provided Tenant has obtained the prior written consent of
Landlord, which consent shall not be unreasonably withheld, provided, and Tenant
hereby agrees, that Tenant shall indemnify and hold Landlord harmless from and
against all liability, loss, damage or expense, including, without being limited
to, reasonable attorneys' fees and expenses, which Landlord shall suffer or
incur by reason of such action. Landlord agrees to cooperate with Tenant in any
reasonable manner requested by Tenant in connection with an action or proceeding
by Tenant against Overlandlord to enforce Landlord's rights under the Xxxxxxxxx
in respect of such consent; PROVIDED, HOWEVER, that Tenant shall have agreed in
writing
61
to reimburse Landlord for any out-of-pocket expenses incurred by Landlord in
connection with such cooperation
(d) Tenant covenants and agrees to perform (including to refrain from
any action not permitted on the part of Landlord under the Xxxxxxxxx) and to
observe all of the covenants, agreements, terms, provisions and conditions of
the Xxxxxxxxx on the part of the Landlord to be performed and observed, to the
extent that they apply to the Premises or the use and occupancy by Tenant of the
Premises and the services and facilities of the Building. Tenant also covenants
and agrees not to do or cause to be done or suffer or permit any act or thing to
be done or suffered which would or might (i) constitute or cause a default under
the Xxxxxxxxx, (ii) cause the Xxxxxxxxx or the rights of Landlord as tenant
thereunder to be canceled, terminated or forfeited, (iii) cause Landlord to
become liable for any damages, costs, claims or penalties, or (iv) adversely
affect or reduce any of Landlord's rights or benefits under the Xxxxxxxxx.
Without limiting the generality of foregoing, Tenant acknowledges that Landlord
is obligated pursuant to the terms of the Xxxxxxxxx, including, without
limitation, Section 27.26 thereof, to reasonably cooperate with Overlandlord in
connection with the conversion of the Building ownership to a synthetic
condominium in connection with a transaction with the New York City Industrial
Development Agency. Tenant agrees that it shall reasonably cooperate with
Landlord to the extent necessary for Landlord to fulfill its obligations under
the Xxxxxxxxx in connection with the foregoing condominium conversion, provided
that Tenant's rights and obligations under the Lease shall not be adversely
affected thereby, except to a DE MINIMIS extent. Tenant agrees to indemnify,
defend and hold Landlord harmless of, from and against any and all liabilities,
losses, damages, suits, penalties, claims and demands of every kind or nature,
including, without being limited to, reasonable attorneys' fees and expenses of
defense and of enforcing this indemnity, by reason of Tenant's failure to comply
with the foregoing provisions of this clause (d) or arising from the use,
occupancy or manner of use and/or occupancy of the Premises or of any business
conducted therein, or from any work or thing whatsoever done or any condition
created by or any other act or omission of Tenant, its assignees or subtenants,
or their respective employees, agents, servants, contractors, invitees, visitors
or licensees, in or about the Premises or any other part or the Building,
provided, however, that Tenant shall not be obligated to indemnify Landlord with
respect to the acts and omissions of its invitees and visitors committed outside
of the Premises to the extent such parties were not specifically authorized or
invited by Tenant to enter the Building, it being understood that, without
limiting the generality of the foregoing, that messengers from outside
companies, delivery personnel, federal express and other courier service workers
bringing packages to Tenant shall be deemed to be "not specifically authorized
or invited" for the purposes of this Section.
(e) Landlord covenants and agrees to perform and observe all of the
terms, covenants, provisions, conditions and agreements of the Xxxxxxxxx
(including any and all rules and regulations which shall be in effect from time
to time during the term of this Lease) in such manner so as to prevent the
Xxxxxxxxx from being terminated and so as to not adversely affect or reduce the
rights and benefits of Tenant under the Lease, it being understood that the
foregoing relates solely to Landlord's compliance with the Xxxxxxxxx in
accordance with its terms and shall not be deemed or construed to obligate
Landlord to seek to amend or contest, or otherwise act in any manner in
contradiction to the express terms of the Xxxxxxxxx, or to commence any action
against Overlandlord. Landlord represents that the Xxxxxxxxx is in full force
and effect and that, to the best of Landlord's knowledge, Landlord is not in
default with respect to any material
62
obligation of Landlord under the Xxxxxxxxx. Provided that Tenant is not then in
default under the terms of this Lease, Landlord agrees that it will not agree to
a termination of the Xxxxxxxxx unless in connection therewith Overlandlord
accepts this Lease as direct lease between Overlandlord and Tenant. Unless the
parties have otherwise entered into a Subordination and Non-Disturbance
Agreement, the terms of which will govern, if Landlord desires to terminate the
Xxxxxxxxx, Tenant agrees to attorn to Overlandlord in connection with any such
termination and to execute an attornment agreement in such form as may
reasonably be requested by Landlord or Overlandlord. Landlord further covenants
and agrees that if and so long as Tenant pays the Fixed Rent and Additional
Charges and performs and observes all of the agreements, terms, conditions,
covenants and provisions hereof, (i) Tenant shall quietly hold and enjoy the
Premises, subject, however, to the terms of this Lease and the Xxxxxxxxx and to
the matters to which the Xxxxxxxxx is subject and subordinate, and (ii) Landlord
shall not do or suffer or permit anything to be done or suffered which would
cause the Xxxxxxxxx to be cancelled, terminated or forfeited, except as provided
in the casualty and condemnation sections contained therein.
(f) Tenant acknowledges and agrees that all services, repairs,
restorations, and access to and from the Premises may be provided by
Overlandlord, particularly during the Gross Lease Period (as defined in the
Xxxxxxxxx), and Landlord shall have no obligation during the term of this Lease
to provide any such services, repairs, restorations, equipment and access to the
extent the same is an obligation of Overlandlord under the Xxxxxxxxx. Tenant
agrees to look solely to Overlandlord for the furnishing of such services,
repairs, restorations, equipment and access. Landlord shall in no event be
liable to Tenant nor shall the obligations of Tenant hereunder be impaired or
the performance thereof excused because of any failure or delay on
Overlandlord's part in furnishing such services, repairs, restorations,
equipment and access; PROVIDED, HOWEVER, that if Landlord's rent is actually
abated pursuant to the Xxxxxxxxx in respect of the Premises with respect to a
service or condition that Overlandlord is required to provide or maintain, then
Fixed Rent payable hereunder by Tenant shall also be abated during the same
period that Landlord's rent is so abated. If Overlandlord shall default in any
of its obligations to Landlord with respect to the Premises, Tenant shall be
entitled to participate with Landlord in the enforcement of Landlord's rights
against Overlandlord, but Landlord shall have no obligation to bring any action
or proceeding or to take any steps to enforce Landlord's rights against
Overlandlord. If, after written request from Tenant, Landlord shall fail or
refuse to take appropriate action for the enforcement of Landlord's rights
against Overlandlord in respect of the Premises within a reasonable period of
time considering the nature of Overlandlord's default, Tenant shall have the
right to take such action in its own name, and for that purpose and only to such
extent, all of the rights of Landlord under the Xxxxxxxxx hereby are conferred
upon and assigned to Tenant and Tenant is subrogated hereby to such rights to
the extent that the same shall apply to the Premises. If any such action against
Overlandlord in Tenant's name shall be barred by reason of lack of privity,
nonassignability or otherwise, Tenant may take such action in Landlord's name
provided Tenant has obtained the prior written consent of Landlord, which
consent shall not be unreasonably withheld, provided, and Tenant hereby agrees,
that Tenant shall indemnify and hold Landlord harmless from and against all
liability, loss, damage or expense, including, without being limited to,
reasonable attorneys' fees and expenses, which Landlord shall suffer or incur by
reason of such action. Landlord agrees to cooperate with Tenant in any
reasonable manner requested by Tenant in connection with an action or proceeding
by Tenant against Overlandlord to enforce Landlord's rights under the Xxxxxxxxx
in respect of the
63
Premises; PROVIDED, HOWEVER, that Tenant shall have agreed in writing to
reimburse Landlord for any out-of-pocket expenses incurred by Landlord in
connection with such cooperation.
(g) This Lease is subject to and conditioned upon Landlord's obtaining
the prior written consent of Overlandlord hereto as provided in Article 14 of
the Xxxxxxxxx. Promptly following execution and delivery hereof, Landlord will
submit this Lease to Overlandlord for such consent. Tenant agrees that it shall
cooperate in good faith with Landlord and shall comply with any reasonable
request made of Tenant by Landlord or Overlandlord in connection with the
procurement of such consent including, without being limited to, the execution
and delivery of a written form of Consent to Sublease. However, in no event
shall Landlord be obligated to make any payment to Overlandlord in order to
obtain the consent of Overlandlord to this Lease or any provision hereof. In the
event that Overlandlord has not executed the form of Overlandlord Consent
attached hereto as Exhibit G (or such other form of consent as may be reasonably
acceptable to Tenant) on or prior to November 30,12001, then either party hereto
shall have the right to terminate this Lease on five (5) Business Days prior
written notice to the other, in which event this Lease shall terminate and the
parties hereto shall be fully discharged and released from all obligations
hereunder. In the event that Overlandlord has not executed the Subordination and
Non-Disturbance Agreement substantially in the form attached hereto as Exhibit F
on or prior to November 30, 2001, the Tenant shall have the right, upon five (5)
Business Days prior written notice to Landlord to terminate this Lease, in which
event this Lease shall terminate and the parties hereto shall be fully
discharged and released from all obligations hereunder.
ARTICLE 11A
REPRESENTATIONS AND WARRANTIES
SECTION 11.01. LANDLORD'S REPRESENTATIONS AND WARRANTIES. (a) Landlord
hereby represents and warrants to Tenant that, as of the date hereof:
(b) This Lease has been duly authorized by all necessary action on the
part of Landlord.
(c) The person executing this Lease on behalf of Landlord, has full
power and authority to execute and deliver this Lease on behalf of Landlord and
perform any action in connection therewith.
(d) The execution, delivery and performance of this Lease by Landlord,
and the consummation of the transaction contemplated hereby, will not result in
any violation of, or be in conflict with or constitute a default under any term
or provision of the operating agreement or governing corporate documents of
Landlord.
(e) Except for the consent of Overlandlord, no consent, approval or
authorization is required in connection with the execution, delivery and
performance hereof by Landlord from any governmental entity or agency, or any
party pursuant to any contract, mortgage, credit agreement, lease or other
agreement or instrument to which Landlord is a party or by which it is bound.
64
(f) Landlord knows of no outstanding claims, actions, suits, or
proceedings affecting Landlord that, if adversely determined, would have a
material adverse effect upon the operation of the Project.
SECTION 11.02. TENANT'S REPRESENTATIONS AND WARRANTIES. (a) Tenant
hereby represents and warrants to Landlord that, as of the date hereof:
(b) This Lease has been duly authorized by appropriate action of its
Commissioners.
(c) The officer executing this Lease on behalf of Tenant has all
necessary licenses, authorization, permits and approvals, and full power and
authority, to execute and deliver this Lease on behalf of Tenant and perform any
action in connection therewith.
(d) The execution, delivery and performance of this Lease by Tenant,
and the consummation of the transaction contemplated hereby, will not result in
any violation of, or be in conflict with or constitute a default under:
(i) any term or provision of the articles or certificate of
incorporation, by-laws and/or any other similar document of Tenant.
(ii) any term or condition of any contract, mortgage, loan
agreement, lease, or other agreement or instrument to which Tenant is a party or
by which it is bound; or
(iii) any term or condition of any judgment, decree, order, law,
statute, rule, regulation, ordinance, franchise, certificate, permit or the like
applicable to Tenant or by which Tenant or its properties or assets are bound or
affected.
(e) No consent, approval or authorization is required in connection
with the execution, delivery and performance hereof by Tenant from any
governmental entity or agency, or any party pursuant to any contract, mortgage,
credit agreement, lease or other agreement or instrument to which Tenant is a
party or by which it is bound.
(f) Tenant knows of no outstanding claims, actions, suits, or
proceedings affecting Tenant that, if adversely determined, would have a
material adverse effect upon the financial condition of Tenant or upon the
operation of the Premises.
65
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first written above.
Landlord: CREDIT SUISSE FIRST BOSTON (USA), INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
Tenant: THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
By:
-------------------------------
Xxxxxxx Xxxxxxxx
Director Real Estate Department
Tenant's Federal Tax I.D. No.: -------------------------------
I-69
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first written above.
Landlord: CREDIT SUISSE FIRST BOSTON (USA), INC.
By:
-------------------------------
Name:
Title:
Tenant: THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx
Director Real Estate Department
Tenant's Federal Tax I.D. No.: -------------------------------
I-69
Metropolitan Life Insurance Company
Real Estate Investments (EIM)
000 Xxxx Xxxxxx / 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
October 30, 0000
Xxxxxx Xxxxxx Xxxxx Xxxxxx (XXX), Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Agreement of Lease dated February 22, 2001 (the "Lease") between
Metropolitan Life Insurance Company ("Landlord") and Credit Suisse First Boston
(USA), Inc. ("Tenant") demising the building known as Xxx Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Demised Premises")
Gentlemen:
In accordance with your request, Landlord, having declined its option to
recapture the Demised Premises, hereby grants its consent (the "Consent") to the
execution and delivery of the sublease (the "Sublease") dated October 30, 2001
between Tenant, as sublessor, and The Port Authority of New York and New Jersey,
("Subtenant"), a body corporate and politic, created by compact between the
States of New York and New Jersey, with the consent of the Congress of the
United States of America, having an office at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as sublessee of portions of the Demised Premises as more
particularly in the Sublease (the "Sublet Space"), subject to the following
terms and conditions:
1. This consent shall not be assignable.
2. This Consent is for this transaction only.
3. The Sublet Space may be used and occupied, solely as general,
executive and administrative offices keeping with the character and reputation
in a manner befitting a "First-Class Office Building", by the following
departments of Subtenant (collectively, the "Permitted Users"), and none other
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed: Law Department, Comptroller's Department,
Aviation Department (headquarters staff), Treasury Department, Technology
Services Department and Tunnel, Bridges and Terminals Department (headquarters
staff).
4. Solely with respect to the Sublease to Subtenant (and any "Permitted
Successor Entity", hereinafter defined in this Paragraph 4) for the exclusive
use of the Sublet Space by the Permitted Users and none others, Landlord hereby
expressly waives the "Prohibitions" contained in Section 6.2.(a)(i) of the Lease
further provided that notwithstanding the foregoing, nothing herein contained
shall be deemed or construed to modify, waive, impair or affect any of the
provisions, covenants, agreements, terms or conditions contained in the Lease
(except as may be herein expressly provided), or to waive any breach thereof, or
any right of Landlord against Tenant, or to enlarge or increase Landlord's
obligations under the Lease, and all provisions, covenants, agreements, terms
and conditions contained in the Lease are (except as expressly herein modified,
waived, impaired or affected) hereby ratified and confirmed as being in full
force and effect. As used herein, the term "Permitted Successor Entity" shall
mean (i) an entity that is merged with Subtenant; (ii) a governmental or
quasi-governmental entity that succeeds to subtenant; or (iii) an entity that is
newly created by the State of New York and/or the State of New Jersey further
provided that the departments of the Permitted Successor Entity that would
occupy the Sublet Space are substantially comparable to the Permitted Users with
respect to the functions to be performed.
5. Notwithstanding any subletting provided for herein, Tenant shall be and
remain fully liable for payment of the rent, additional rent due and all other
sums to become due under the Lease and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in the Lease on the part
of Tenant to be performed and all acts and omissions of Subtenant or anyone
claiming under or through Subtenant which shall be in violation of any of the
covenants, agreements, terms, provisions and conditions contained in the Lease,
shall be deemed a violation by Tenant.
6. The Sublease shall be subject and subordinate at all times to the Lease,
to all of the provisions, covenants, agreements, terms and conditions contained
in the Lease and in this Consent, and to the matters to which the Lease and this
Consent are or shall be subject and subordinate, and Subtenant shall not do or
permit anything to be done which may or shall violate any of said provisions,
covenants, agreements, terms and conditions and matters. The use of the Demised
Premises as general and executive business offices, shall not be deemed such a
violation.
7. This Consent shall not be deemed or construed as a consent by Landlord
to, or as permitting, any other or further subletting by Tenant or anyone
claiming under or through Tenant (including without limitation,
2
Subtenant), and no other or further sublease of the premises demised by the
Lease or any part thereof or any assignment of the Lease or of the Sublease
shall be made by Tenant or anyone claiming under or through Tenant (including
without limitation, Subtenant) without Landlord's prior written consent in each
instance. Notwithstanding the foregoing, expressly subject and subordinate to
Landlord's "right of recapture" contained in the Lease, Landlord agrees that its
consent to one (1) such further subletting shall not be unreasonably withheld or
denied.
8. In the event of termination, re-entry or dispossess by Landlord under
the Lease, expressly provided (i) Subtenant is not in default, subject to
applicable notice and cure periods under the Sublease, and (ii) all payments of
annual rent and additional rent due under the Sublease being current, Landlord
agrees not to disturb Subtenant's possession of the Sublet Space and to take
over all of the right, title and interest of Tenant, as sublessor, under the
Sublease, and Subtenant shall attorn to Landlord pursuant to the then executory
provisions of the Sublease, except that Landlord shall not (i) be liable for any
previous act or omission of Tenant under the Sublease, (ii) be subject to any
offset which theretofore accrued or may thereafter accrue to Subtenant against
Tenant, or (iii) be bound by any previous modification of the Sublease or by any
previous prepayment of more than one (1) month's rent.
9. The Sublease shall not be valid, and Subtenant shall not take possession
of the Sublet Space or any part thereof, until an executed counterpart of the
Sublease has been delivered to Landlord.
10. Notwithstanding any provision of the Sublease to the contrary, the term
of the Sublease (including any extension or renewal thereof, if any) shall
expire and terminate at least one (1) day prior to the expiration date of the
Lease.
11. Except as otherwise provided in paragraph 8 of this Consent, nothing
contained herein or in the Sublease shall or shall be deemed to create any
landlord-tenant relationship between Landlord and Subtenant.
12. Tenant and Subtenant warrant and represent to Landlord that they have
had no dealings, conversations or negotiations with any broker other than
Insignia/ESG, Inc. (the "Broker") concerning the execution and delivery of the
Sublease. Tenant agrees to pay the commission of the Broker, if any, further
provided that Tenant and Subtenant each agree to defend, indemnify and hold
harmless Landlord against and from any claims by the Broker or other party
claiming to have dealt with them for any brokerage commissions in connection
with the Sublease and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees
3
and disbursements, arising out of their respective representations and
warranties contained in this Paragraph 12 being untrue.
13. Tenant and Subtenant each acknowledges, as contained in the Lease, that
there are general tenant guidelines for the Building covering construction,
maintenance, repair or other work. Tenant and Subtenant each agrees that all
repairs, renovations, alterations, installations, additions and improvements and
other activities within the scope of the general tenant guidelines for the
Building (including, without limitation, electrical and communications systems
and fireproofing) effected by or on behalf of Tenant and/or Subtenant in the
Sublet Space shall be conducted in accordance with and pursuant to the aforesaid
tenant guidelines, as well as any applicable governmental requirements and
regulations. Tenant and Subtenant each agrees that it is their responsibility to
ensure that Tenant and Subtenant and those working for them and/or either of
them comply with the aforesaid tenant guidelines as well as any other applicable
governmental requirements and regulations. Tenant and Subtenant each
acknowledges that they are aware that the aforesaid tenant guidelines are
available for their reference and use in the Building Manager's Office.
14. In the event of any inconsistency between the terms and conditions of
this Consent and the terms and conditions of the Sublease, the terms and
conditions of this Consent shall govern.
Upon the return to Landlord of six counterpart copies hereof with the
acceptance of Tenant and Subtenant endorsed thereon, not later than ten (10)
business days from the date hereof, this Consent shall be deemed to be the
binding obligation of each party in respect of all matters herein required on
the part of such party to be done or performed. In the event this Consent is not
executed by duly authorized officers of Tenant and Subtenant and returned to
Landlord within ten (10) days from the date hereof, this Consent, at Landlord's
option, shall be deemed to be null and void and of no force and effect.
Very truly yours,
Metropolitan Life Insurance Company,
Landlord
By: /s/ W. Xxxx Xxxxxx
------------------------------------
W. Xxxx Xxxxxx, Vice-President
4
The undersigned hereby agree to the terms, provisions and conditions of this
letter agreement as set forth above this 30th day of October, 2001
Credit Suisse First Boston (USA), Inc.,
Tenant
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Its MANAGING DIRECTOR
The Port Authority of New York and New Jersey,
Subtenant
By: /s/ [ILLEGIBLE]
---------------------------
Its Director of Real Estate
5
OVER LANDLORD'S
NON-DISTURBANCE AGREEMENT
AND
SUBTENANT'S AGREEMENT TO ATTORN
This Agreement, made as of this 30th day of October, 2001, by and
between METROPOLITAN LIFE INSURANCE COMPANY, a corporation organized and
existing under the laws of the State of New York, having its principal office
and place of business located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "OVERLANDLORD") and THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, a body corporate and politic, created by compact between the
States of New York and New York, with the consent of the United States of
America, having an office and place of business located at 000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "SUBTENANT").
W I T N E S S E T H:
WHEREAS, Overlandlord is the present holder of the fee estate land and
in the building located at One Madison Avenue, New York, New York (hereinafter
referred to as the "BUILDING");
WHEREAS, by indenture of lease (hereinafter referred to as the
"LEASE") dated February 22, 2001, between Overlandlord, as landlord, and Credit
Suisse First Boston (USA) Inc., as tenant (hereinafter referred to as "TENANT"),
Overlandlord leased the Building to Tenant;
WHEREAS, Tenant, as sublandlord, and Subtenant, as subtenant, entered
into a certain sublease of space in the Building dated as of October ____, 2001,
which sublease is hereinafter referred to as "SUBLEASE" and the premises demised
thereby are hereinafter referred to as "DEMISED PREMISES" and which Demised
Premises are more particularly described in the Sublease;
WHEREAS, Subtenant has requested that Overlandlord agree not to
disturb Subtenant's possessory rights in the Demised Premises in the event that
Overlandlord should terminate the Tenant's interest in the Lease or otherwise
cancels the Lease provided that Subtenant is not in default under the Sublease
(for a period in excess of the applicable grace period contained in the
Sublease) and further provided the Subtenant attorns to Overlandlord; and
WHEREAS, Overlandlord is willing to so agree on the terms and
conditions hereinafter provided.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein and TEN ($10.00) DOLLARS and other good and valuable
consideration each to
I-1
the other in and paid, receipt of which is hereby acknowledged, Overlandlord and
Subtenant hereby agree as follows:
1. The Sublease is and shall be subject and subordinate in all
respects to the Lease and to all renewals, modifications, replacements,
amendments and/or extensions of the same.
2. a. Subject to the provisions of Section 2(b) below, provided
Subtenant complies with this Agreement and is not in default under the Sublease
of (A) any payment of rent or additional rents called for under the Sublease
(for a period in excess of the applicable grace period contained in the
Sublease), or (B) in the performance of any of the other terms, conditions,
covenants, clauses or agreements on Subtenant's part to be performed under the
Sublease (for a period in excess the applicable grace period contained in the
Sublease), then as of the date Overlandlord cancels or terminates the Lease for
any reason before the expiration date or earlier termination date provided in
the Sublease, as the same may have been modified, extended, renewed and/or
replaced, no cancellation or termination of the Lease will disturb Subtenant's
possession under the Sublease and the Sublease will not be affected or cut off
thereby (except that Subtenant's right to receive or set off any monies or
obligations owed or to be performed by the Tenant or the successors or assigns
to Tenant's interest in the Lease shall not be enforceable thereafter against
Overlandlord or any subsequent fee owner of the Building) and notwithstanding
any such termination or cancellation of the Lease or other acquisition of the
Tenant's interest in the Lease and merger with the Overlandlord's fee interest
in the Building, the Sublease will be recognized as a direct lease from
Overlandlord or any subsequent holder of the fee estate in the Building, except
that the Overlandlord or any subsequent holder of the fee estate in the Building
shall not (a) be liable for any previous act or omission under the Sublease by
the holder of the Lease interest, (b) be subject to any offset which Subtenant
may have against Tenant, (c) have any obligation with respect to any security
deposited under the Sublease unless such security has been physically delivered
to Overlandlord, (d) be bound by any previous modification of the Sublease or by
any previous prepayment of rent for a period greater than one (1) month, unless
such modification or prepayment shall have been expressly approved in writing by
the Overlandlord, or (e) be obligated to complete or permit the construction of
any improvements under the Sublease.
b. Notwithstanding anything contained herein or in the Sublease, in
the event that the rent and additional rent under the Sublease (after
deducting therefrom an amount equal to the impositions payable by
Tenant under the Lease prorated on a rentable square foot basis with
respect to the Demised Premises and an amount equal to the expenses
payable by Tenant to provide to the Demised Premises with the services
required to be provided under the Sublease prorated on a rentable
square foot basis) (such net rent herein called the "SUBLEASE NET
RENT") shall be less than the portion of the Minimum Rent (as defined
in the Lease) payable by the Tenant prorated on a rentable square foot
basis with respect to the Demised premises (the "APPLICABLE MINIMUM
RENT"); then, effective as of the date of aforementioned attornment
and recognition, the Sublease shall be deemed to be automatically
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amended to increase the Sublease Net Rent to an amount equal to the
Applicable Minimum Rent and to provide for Subtenant to continue to
pay additional rent under the Sublease at least equal to the sum of
(i) the Impositions payable by Tenant under the Lease prorated on a
rentable square foot basis with respect to the Demised Premises and
(ii) an amount equal to the expenses payable by Tenant to provide to
the Demised Premises with the services required to be provided under
the Sublease prorated on a rentable square foot basis.
3. If Overlandlord elects to accept from the then holder of Tenant's
interest in the Lease a surrender or an assignment of the leasehold interest in
the Lease in lieu of canceling or terminating the Lease, Tenant's right to
receive or set off any monies or obligations owed or to be performed by the then
holder of the leasehold interest in the Lease shall not be enforceable
thereafter against Overlandlord or any subsequent holder of the fee estate in
the Building.
4. Subtenant will, upon request of the Overlandlord or any subsequent
holder of the fee estate in the Building, execute a written agreement whereunder
Subtenant (A) confirms this attornment to Overlandlord or any such subsequent
holder of the fee estate in the Building, (B) affirms Subtenant's obligations
under the Sublease, (C) agrees to pay all rentals and charges then due or to
become due as they become due to Overlandlord or any such subsequent holder of
the fee estate in the Building, and (D) confirms the automatic amendments to the
Sublease provided for in Section 2(b) above.
5. Subtenant from and after the date hereof shall send a copy of any
notice of default or statement of default under the Sublease to Overlandlord at
the same time such notice or statement is sent to the landlord under the
Sublease.
6. Subtenant hereby agrees that from and after the date hereof in the
event of any act or omission by the landlord under the Sublease which would give
Subtenant the right, either immediately or after the lapse of a reasonable
period of time, to terminate the Sublease, or to claim a partial or total
eviction, Subtenant will not exercise any such right (i) until it has given
written notice of such act or omission to Overlandlord by delivering such notice
of such act or omission, by certified mail, return receipt requested, addressed
to Overlandlord, at the Overlandlord's address as given herein (Metropolitan
Life Insurance Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Vice President, Real Estate Investments (EIM), 12th Floor, with a duplicate
thereof, simultaneously being sent by the same mailing procedure to Metropolitan
Life Insurance Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Attorney-in-Charge, Law/REI 12th Floor, and to Kronish Xxxx Xxxxxx & Xxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxxxx, Esq.), or at the last address of Overlandlord, furnished to Subtenant
in writing and (ii) until a reasonable period for remedying such act or omission
shall have elapsed following such giving of notice and following the time when
Overlandlord shall have become entitled under the Sublease to remedy the same;
provided that Overlandlord, at its option
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shall, following the giving of such notice, have elected to commence and
continue to remedy such act or omission or to cause the same to be remedied.
7. Subtenant will neither offer nor make prepayment of rent (for a
period in excess of one month) nor further change the terms, covenants,
conditions and agreements of the Subtenant in any manner without the express
consent in writing of the Overlandlord, except for those modifications which
would have been permitted under Article 14 of the Lease had they been made at
the time the Sublease was executed.
8. No modification, amendment, waiver or release of any provision of
this Agreement or of any right, obligation, claim or clause of action arising
hereunder shall be valid, or binding for any purpose whatsoever unless in
writing and duly executed by the party against whom the same is sought to be
asserted.
9. This Agreement shall inure to the benefit of the parties hereto,
their successors and assigns; provided, however, that in the event of the
assignment or transfer of the interest of Overlandlord, all obligations and
liabilities of Overlandlord under this Agreement thereafter accruing shall
terminate, and thereupon all such obligations and liabilities shall be the
responsibility of the party to whom Overlandlord's interest is assigned or
transferred; and provided further that the interest of Subtenant under this
Agreement may not be assigned or transferred except in connection with an
assignment permitted under and in accordance with the terms of the Sublease.
10. Subtenant agrees that this Agreement satisfies any condition or
requirements in the Sublease relating to the granting of a non-disturbance
agreement from the fee owner of the real property of which the Demised Premises
are a part.
11. In the event that Overlandlord notifies Subtenant of an Event of
Default under the Lease and demands that Subtenant pay its rent and all other
sums due under the Sublease to Overlandlord, Subtenant agrees that it will honor
such demand and pay its rent and all other sums due under the Sublease directly
to the Overlandlord during the continuance of such default.
12. Subtenant covenants and acknowledges that it has no right or
option of any nature whatsoever, whether pursuant to the Sublease or otherwise,
to purchase the Demised Premises or the real property of which the Demised
Premises are a part, or any portion thereof or any interest therein and to the
extent that Subtenant has, or hereafter acquires any such right or option, the
same is hereby acknowledged to be subject to and subordinate to the Lease and is
hereby waived and released as against Xxxxxxxxxxxx.
00. Xxxxxxxxxxxx shall have no obligation, nor incur any liability,
with respect to any warranties of any nature whatsoever, whether pursuant to the
Sublease or otherwise, including, without limitation, any warranties respecting
use, compliance with zoning, title of landlord under
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the Sublease, the authority of landlord under the Sublease, habitability,
fitness for purpose and possession.
14. Anything herein or in the Sublease to the contrary
notwithstanding, Overlandlord shall have no obligation, nor incur any liability,
beyond Overlandlord's then interest, if any, in the fee estate in the Building
and Subtenant shall look exclusively to such interest of Overlandlord, if any,
in the fee estate in the Building for the payment and discharge of any
obligations imposed upon Overlandlord hereunder or under the Sublease and
Overlandlord is hereby released or relieved of any other obligations hereunder
and under the Sublease. Subtenant agrees that with respect to any money judgment
which may be obtained or secured by Subtenant against Overlandlord, Subtenant
shall look solely to the fee estate or interest owned by the Overlandlord in the
Building, and Subtenant will not collect or attempt to collect any such judgment
out of any other assets of Overlandlord.
15. No disclosed or undisclosed officers, shareholders, principals,
directors, employees, members or servants of Overlandlord shall be personally
liable for the performance of Overlandlord's obligations under this Agreement or
the Sublease. Notwithstanding anything to the contrary contained herein,
Subtenant's sole recourse for the enforcement of Overlandlord's obligations
under the Sublease and this Agreement is to satisfy a judgment for
Overlandlord's failure to perform such obligations shall be against the Building
(or any casualty proceeds or condemnation awards paid to Overlandlord and not
applied to a restoration of the Building), and in no event shall any other
assets of Overlandlord be subject to any claim arising under the Sublease or
this Agreement, except for any claim relating to misappropriation by
Overlandlord of, or fraud by Overlandlord with respect to, any casualty proceeds
disbursed to, received by or otherwise in Overlandlord's custody and control.
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IN WITNESS WHEREOF, the parties hereto have respectively signed and sealed
this Agreement as of the day and year first above written.
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ W. Xxxx Xxxxxx
------------------------------
Name: W. XXXX XXXXXX
Title: VICE PRESIDENT
THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY
By: /s/ [ILLEGIBLE]
------------------------------
Name:
Title: Director of Real Estate
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Tenant, as landlord under the Sublease and as the tenant under the
Lease, agrees for itself and its successors and assigns, that (i) the within
Agreement does not (a) constitute a waiver by Overlandlord of any of its rights
under the Lease and/or (b) in any way release the Tenant from its obligation to
comply with the terms provisions, conditions, covenants, agreements and clauses
of the Lease, (ii) the provisions of the Lease remain in full force and effect
and must be complied with by Tenant, and (iii) upon the occurrence and
continuance of an Event of Default under the Lease, Subtenant may pay all rent,
additional rents and all other sums due under the Sublease to the Overlandlord
as provided in the within Agreement.
CREDIT SUISSE FIRST BOSTON
(USA), INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name : XXXXXX X. XXXXXXXXXX
Title: MANAGING DIRECTOR
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