Exhibit 10.27
THIS LEASE ("LEASE") entered into as of the 15th day of April,
1999, between 20 PLACE ASSOCIATES LLC, a New York limited liability company,
with an office c/o The Witkoff Group LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("LANDLORD") and XXXXXX.XXX, LTD., a New York corporation, with an
office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("TENANT").
FUNDAMENTAL LEASE PROVISIONS
Landlord shall lease the Premises (as hereinafter defined) to
Tenant, and Tenant shall let the Premises from Landlord, pursuant to the
following Fundamental Lease Provisions:
Premises: The Premises shall consist of the following
areas upon delivery of such areas to Tenant in
accordance with the provisions of Section
7.1(b):
(i) the entire thirteenth (13th)
floor consisting of 23,940 rentable
square feet and marked on the drawing
attached hereto as EXHIBIT A-1;
(ii) the entire fourteenth (14th)
floor consisting of 23,940 rentable
square feet and marked on the drawing
attached hereto as EXHIBIT A-2;
(iii) the entire fifteenth (15th)
floor consisting of 22,700 rentable
square feet and marked on the drawing
attached hereto as EXHIBIT A-3;
(iv) the entire fifty (50th) floor
consisting of 5,500 rentable square
feet and marked on the drawing
attached hereto as EXHIBIT A-4;
(v) a portion of below grade space on
Level B consisting of 5,000 usable
square feet and marked on the drawing
attached hereto as EXHIBIT A-5,
subject to Landlord's right to
relocate such space in accordance
with Section 2.6 of this Lease; and
(vi) a portion of the roof shown at a
location to be designated (subject to
the reasonable approval of Landlord
and Tenant) sufficient to allow
Tenant to install a satellite
antenna.
All of the foregoing located at 00
Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
excluding all vertical penetrations,
subject to expansion pursuant to
Article 38.
Rentable Area
of Premises: On the Lease Commencement Date, 76,080
rentable square feet, which area is composed
of 23,940 rentable square feet on the
thirteenth floor, 23,940 rentable square
feet on the fourteenth floor, 22,700
rentable square feet on the fifteenth floor,
and 5,500 rentable square feet on the
fiftieth floor, subject to expansion
pursuant to the provisions of Article 38.
The below grade space and the roof space
shall not be included within the Rentable
Area of the Premises.
Lease Commencement
Date: Subject to the provisions set forth in
Article 40, the first day following the
occurrence of the following events: (i) the
date that Landlord and Tenant have both
executed this Lease; (ii) Landlord's lender
shall have approved this Lease; and (iii)
Landlord, Landlord's lender and Tenant have
executed a subordination, nondisturbance and
attornment agreement substantially in the
form attached hereto as EXHIBIT B.
Term: The period of years (or any portion thereof)
commencing on the Term Commencement Date and
ending, unless otherwise terminated in
accordance with the terms hereof, on the
Expiration Date, as same may be extended
pursuant to the provisions of Section 2.4.
Term Commencement
Date: The Beneficial Occupancy Date.
Base Rent
Commencement Date: The first day following the twelve (12)
month anniversary of the Beneficial
Occupancy Date. The aforesaid date shall be
extended on the basis of (i) one day of
extension for each day that the Base Rent is
abated under this Lease prior to the Base
Rent Commencement Date for Tenant or (ii)
one day of extension for each day of delay
deemed to be a Landlord Delay.
Base Rent: The Base Rent for the Premises (other than
the below grade space and the roof space)
shall be as follows:
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(i) For each Lease Year during
the period commencing on the
second (2nd) anniversary of
the Term Commencement Date
through the fifth (5th)
anniversary of the Term
Commencement Date, $26.50
multiplied by the Rentable
Area of the Premises;
(ii) For each Lease Year during
the period commencing on the
first day following the fifth
(5th) anniversary of the Term
Commencement Date through the
tenth (10th) anniversary of
the Term Commencement Date,
$30.00 multiplied by the
Rentable Area of the
Premises; and
(iii) For each Lease Year during
the period commencing on the
first day following the tenth
(10th) anniversary of the
Term Commencement Date
through the fifteenth (15th)
anniversary of the Term
Commencement Date, $33.00
multiplied by the Rentable
Area of the Premises.
The Base Rent for the below grade space
shall be as follows:
(i) For each Lease Year during
the period commencing on the
second (2nd) anniversary of
the Term Commencement Date
through the fifth (5th)
anniversary of the Term
Commencement Date, $13.25
multiplied by the usable
area of the below grade
space;
(ii) For each Lease Year during
the period commencing on the
first day following the
fifth (5th) anniversary of
the Term Commencement Date
through the tenth (10th)
anniversary of the Term
Commencement Date, $15.00
multiplied by the usable
area of the below grade
space; and
(iii) For each Lease Year during
the period commencing on the
first day following the
tenth (10th) anniversary of
the Term Commencement Date
through the fifteenth (15th)
anniversary of the Term
Commencement Date, $16.50
multiplied by the usable
area of the below grade
space.
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There shall be no Base Rent due and payable
for the roof space.
The Base Rent for each Lease Year shall be
payable in twelve (12) equal monthly
installments.
The Base Rent for the Renewal Term shall be
determined pursuant to the provisions of
Section 2.4.
The aforesaid Base Rent is not applicable to
any expansion space leased pursuant to the
provisions of Article 38. The Base Rent for
such expansion space shall be as set forth
in Article 38.
To the extent that delivery of possession of
any such floor is delayed as a result of a
Landlord Delay, with respect to the
particular floor for which possession is
delayed, the Base Rent Commencement Date
will be delayed one additional day for each
day of delay (i.e. if Landlord delays
delivery of such space for 30 days, the rent
abatement period shall be 13 months from the
Beneficial Occupancy Date rather than 12
months).
Tenant Improvement
Allowance: The Tenant Improvement Allowance shall be
$3,233,400.
With respect to the roof space, there shall
be no Tenant Improvement Allowance.
The aforesaid amounts shall be advanced by
Landlord to Tenant in accordance with the
provisions of Section 7.6.
Beneficial Occupancy
Date: As defined in Section 7.3(a).
Tenant's Proportionate
Share: 11.59%
Tenant's Proportionate Share shall be
subject to increase pursuant to the
provisions of Article 38.
Security Deposit: None.
Permitted Use: General and administrative office use, which
may include a cafeteria, telecommunications
facilities, data services, conference
center, mail or other commonly used
facilities of Tenant for use for Tenant's
employees and such ancillary uses which are
consistent with the Class A nature of the
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Building and which are compatible with
general and administrative office use.
Tenant's Notice
Address/Contact: Xxxxxx.Xxx, Ltd.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairperson, Real Estate Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Landlord's Notice
Address/Contact: 20 Place Associates LLC
c/o The Witkoff Group LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
The Witkoff Group LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
1. DEFINITIONS AND BASIC PROVISIONS.
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1.1 FUNDAMENTAL LEASE PROVISIONS. The Fundamental Lease
Provisions set forth on pages 1 through 7, inclusive, (the "FUNDAMENTAL LEASE
PROVISIONS") shall be read in conjunction with all other provisions of this
Lease applicable thereto. Each reference in this Lease to any of the Fundamental
Lease Provisions shall be construed to incorporate all of the terms provided for
under such provisions. If there is any conflict between any of the Fundamental
Lease Provisions and any other provisions of this Lease, the latter shall
control. The listing in the Fundamental Lease Provisions of monetary amounts
payable by Tenant shall not be construed to be an exhaustive list of all
monetary amounts payable by Tenant under this Lease.
1.2 DEFINITIONS. In addition to other terms defined herein,
the following terms shall have the meanings set forth herein unless the context
otherwise requires:
1.2.1 "AAA" shall mean the American Arbitration
Association and its successors.
1.2.2 "ABATEMENT APPLICATION" shall mean Abatement
Application as defined in Section 41.8(b).
1.2.3 "ACTUAL LMP BENEFITS" shall mean Actual LMP
Benefits as defined Section 41.5.
1.2.4 "ADA" shall mean ADA as defined in Section
38.5(a).
1.2.5 "ADDITIONAL RENT" shall mean Tenant's Tax
Payment, Tenant's Operating Payment and any and all other sums other than Base
Rent due and payable by Tenant to Landlord under this Lease.
1.2.6 "ALTERATIONS" shall mean Alterations as defined
in Section 12.1.
1.2.7 "APPLICABLE LAWS" shall mean Applicable Laws as
defined in Section 33.2(a).
1.2.8 "APPLICATION FOR PAYMENT" shall mean Application
for Payment as defined in Section 7.6(b).
1.2.9 "APPROVED CONTRACTORS" shall mean those
contractors selected by Tenant and approved by Landlord.
1.2.10 "ASSIGNMENT" shall mean Assignment as defined
in Section 19.1.
1.2.11 "AVAILABLE FOR LEASING" shall mean Available
for Leasing as defined in Section 43.2(e).
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1.2.12 "AVAILABLE SPACE" shall mean Available Space as
defined in Section 43.2.
1.2.13 "AVAILABLE SPACE SCHEDULED DATE" shall mean
Available Space Scheduled Date as defined in Section 43.2(b).
1.2.14 "BANKRUPTCY CODE" shall mean the Bankruptcy
Code of 1978, as same may be amended.
1.2.15 "BASE OPERATING EXPENSES" shall mean the Base
Operating Expenses as defined in Section 5.1(a).
1.2.16 "BASE RENT" shall mean the Base Rent as set
forth in the Fundamental Lease provisions.
1.2.17 "BASE RENT COMMENCEMENT DATE" shall mean the
Base Rent Commencement Date as defined in the Fundamental Lease Provisions.
1.2.18 "BASE TAX FACTOR" shall mean Base Tax Factor as
defined in Section 5.1(b).
1.2.19 "BENEFICIAL OCCUPANCY DATE" shall mean the
Beneficial Occupancy Date as defined in Section 7.3(a).
1.2.20 "BUILDING" shall mean the building located on
the Land and having the street address 00 Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx.
1.2.21 "BUSINESS HOURS" shall mean Business Hours as
defined in Section 8.3.
1.2.22 "CALENDAR YEAR" shall mean Calendar Year as
defined in Section 5.1(f).
1.2.23 "CLASS E LIFE-SAFETY SYSTEM" shall mean Class E
Life-Safety System as defined in Section 11.2(a).
1.2.24 "COMMON AREA" or "COMMON AREAS" shall mean
those areas of the Building, whether interior or exterior, open to the public,
or all of the tenants of the Building and not leased to a particular tenant,
including, but not limited to, the lobby of the Building.
1.2.25 "CONDENSER WATER" shall mean Condenser Water as
defined in Section 8.1(f).
1.2.26 "EFFECTIVE DATE" shall mean Effective Date as
defined in Section 43.2(d).
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1.2.27 "ELECTION TO LEASE NOTICE" shall mean Election
to Lease Notice as defined in Section 43.2(c).
1.2.28 "ELECTRICAL RATES" shall mean Electrical Rates
as defined in Section 8.6(d).
1.2.29 "ESCALATION YEAR" shall mean Escalation Year as
defined in Section 5.1(d).
1.2.30 "EVENT OF DEFAULT" shall mean an Event of
Default as defined in Section 25.1.
1.2.31 "EXISTING LEASE" shall mean Existing Lease as
defined in Section 2.4.
1.2.32 "EXPANSION SPACE TENANT IMPROVEMENT ALLOWANCE"
shall mean Expansion Space Tenant Improvement Allowance as defined in Section
38.5(b).
1.2.33 "EXPIRATION DATE" shall mean 11:59 p.m., New
York, New York time on the fifteenth (15th) anniversary of the Term Commencement
Date, subject to extension pursuant to the provisions of Section 2.5.
1.2.34 "EXTERNAL SHAFTS" shall mean External Shafts as
defined in Section 7.2(b).
1.2.35 "FAIR MARKET RENTAL VALUE" shall mean the
annual rate or rates a prospective tenant would pay for rental of premises of
comparable size and quality in similar office buildings in the area of the
Building for a term comparable to the then remaining Term or renewal term, as
the case may be, and otherwise on terms comparable to the terms and provisions
of the Lease, provided that Fair Market Rental Value determined in connection
with any renewal Term shall include the terms and conditions of this Lease for
such renewal term, including brokerage commissions, if any, arising in
connection therewith, and with respect to any expansion space, the other terms
and conditions set forth in Article 38. Fair Market Rental Value shall be
determined upon the assumption that (i) the types or forms of rent which a
landlord would be able to obtain in a new lease made under then-existing market
conditions shall be similar to the forms of Rent provided for in Articles 4 and
5 and consist of a base rentable rate and additional rent payments based upon a
tenant's proportionate share of real estate taxes, operating expenses and other
charges and expenses payable by Tenant hereunder, (ii) any escalation for
operating expenses will be based upon actual increases in operating costs, and
(iii) the prospective tenant will accept the premises "as is" and will have the
benefit of all improvements and installments which are the property of the
Landlord within the Premises.
1.2.36 "FIRST PARTY" shall mean First Party as defined
in Section 2.5(d).
1.2.37 "FORCE MAJEURE" shall mean Force Majeure as
defined in Section 37.7.
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1.2.38 "FUNDAMENTAL LEASE PROVISIONS" shall mean the
Fundamental Lease Provisions as defined in Section 1.1.
1.2.39 "FURTHER BENEFITS" shall mean Further Benefits
as defined in Section 41.9.
1.2.40 "FURTHER COOPERATION" shall mean Further
Cooperation as defined in Section 41.9.
1.2.41 "GENERAL CONTRACTOR" shall mean any licensed
general contractor retained by Tenant and approved by Landlord, which contractor
must be an Approved Contractor. Tenant shall give Landlord, Landlord's managing
agent or their respective affiliates bona fide opportunities to bid on all of
the Tenant's Work and all Alterations as a potential General Contractor and
shall not discriminate against Landlord, Landlord's managing agent or their
respective affiliates.
1.2.42 "GOVERNMENTAL AUTHORITIES" shall mean the
United States, the State of New York, the City of New York and all political
subdivisions thereof, and any agency, department, commission, board, bureau or
instrumentality of any of them, now or hereafter having or claiming jurisdiction
over the Premises.
1.2.43 "HAZARDOUS MATERIALS" shall mean Hazardous
Materials as defined in Section 33.6.
1.2.44 "HOLIDAYS" shall mean Holidays as defined in
Section 8.3.
1.2.45 "HVAC" shall mean HVAC as defined in Section
8.1(f).
1.2.46 "INDEX" shall mean the Consumer Price Index as
measured by the U.S. Department of Labor revised Consumer Price Index for urban
wage earners and clerical workers, New York-Northeastern N.J. region, all items
figure, (1982-84 = 100) published by the Bureau of Labor Statistics, or if such
index shall be ceased to be published, such comparable index reasonable selected
by the Landlord and adjusted so as to fairly reflect increases in the cost of
living.
1.2.47 "INSURANCE REQUIREMENTS" shall mean Insurance
Requirements as defined in Section 10.1.
1.2.48 "LAND" shall mean the parcel of land more
particularly described in EXHIBIT C annexed hereto.
1.2.49 "LANDLORD" shall mean 20 Place Associates LLC,
a New York limited company, its successors or assigns.
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1.2.50 "LANDLORD'S APPROVAL CRITERIA" shall mean
Landlord's Approval Criteria as defined in Section 7.2(c).
1.2.51 "LANDLORD DELAY" shall mean Landlord Delay as
defined in Section 7.1(c).
1.2.52 "LANDLORD'S RESTORATION WORK" shall mean
Landlord's Restoration Work as defined in Section 23.2.
1.2.53 "LANDLORD'S STATEMENT" shall mean Landlord's
Statement as defined in Section 5.3(b).
1.2.54 "LANDLORD'S WORK" shall mean Landlord's Work as
defined in Section 7.1(a).
1.2.55 "LANDLORD'S WORK MODIFICATIONS" shall mean
Landlord's Work Modifications as defined in Section 7.1(e).
1.2.56 "LEASE" shall mean the Lease as defined in the
first paragraph.
1.2.57 "LEASE COMMENCEMENT DATE" shall mean the Lease
Commencement Date as defined in the Fundamental Lease provisions.
1.2.58 "LEASE NOTICE" shall mean Lease Notice as
defined in Section 43.2(c).
1.2.59 "LEASE YEAR" or "LEASE YEARS" shall mean each
twelve (12) month period beginning on the Term Commencement Date and each twelve
(12) month period thereafter beginning on the anniversary of the Term
Commencement Date; provided, however, if the Term Commencement Date is a day
other than the first day of a calendar the first "LEASE YEAR" shall include the
number of days from the Lease Commencement Date through the last day of the
calendar month in which the Lease Commencement Date occurs.
1.2.60 "LEGAL REQUIREMENTS" shall mean Legal
Requirements as defined in Section 10.1.
1.2.61 "LMP ABATEMENT BENEFITS" shall mean LMP
Abatement Benefits as defined in Section 41.3
1.2.62 "LOWER MANHATTAN PLAN" shall mean Lower
Manhattan Plan as defined in Section 41.1.
1.2.63 "NET PROFITS" shall mean Net Profits as defined
in Section 19.4(c).
1.2.64 "NOTICE" shall mean a Notice as defined in
Section 31.1(b).
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1.2.65 "OPERATING EXPENSES" shall mean Operating
Expenses as defined in Section 5.1(e).
1.2.66 "PERMITTED USE" shall mean Permitted Use as
defined in the Fundamental Lease Provisions.
1.2.67 "PREMISES" shall mean the Premises as defined
in the Fundamental Lease Provisions.
1.2.68 "PRIME RATE" shall mean the Prime Rate as
defined in Section 6.1.
1.2.69 "RELATED CORPORATION" shall mean any natural
person, corporation, partnership, joint venture, association or other business
or legal entity which directly or indirectly controls, is controlled by, or is
under common control with Tenant or Omnicom Group Inc., but only for such period
as such Related Corporation occupies the portion of the Premises (or the entire
Premises, in the case of an Assignment) for any of the Permitted Uses and such
Related Corporation continues to qualify as a Related Corporation, under the
terms of this Lease. "CONTROL" shall be deemed to mean ownership or control of
not less than twenty-five percent (25%) of all of the outstanding voting stock
of such corporation or not less than twenty-five percent (25%) of all of the
legal and equitable interest in any other entity. For all purposes under this
Lease, Omnicom Group Inc. shall be deemed to be a Related Corporation.
1.2.70 "RENT" shall include Base Rent and all
Additional Rent and other sums required to be paid by Tenant to Landlord under
this Lease.
1.2.71 "RENTABLE AREA OF THE PREMISES" shall mean the
Rentable Area of the Premises as defined in the Fundamental Lease Provisions.
1.2.72 "RENT INCLUSION DATE" shall mean Rent Inclusion
Date as defined in Section 8.6(b).
1.2.73 "RIGHT OF FIRST OFFER" shall mean Right of
First Offer as defined in Section 43.2(a).
1.2.74 "SECOND PARTY" shall mean Second Party as
defined in Section 2.5(d).
1.2.75 "SECOND PERIOD" shall mean Second Period as
defined in the Fundamental Lease Provisions.
1.2.76 "SECURITY AREA" shall mean Security Area as
defined in Section 35.1.
1.2.77 "STRUCTURAL ALTERATION" shall mean an
Alteration which (i) affects a Building system (including, without limitation,
utility, life safety, electrical,
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plumbing, sewage line and HVAC systems), (ii) affects the structural integrity
of the Building, or (iii) involves a vertical penetration of the Building,
including core drilling or other similar item.
1.2.78 "SUBSTANTIALLY COMPLETED" shall mean
Substantially Completed as defined in Section 7.3(b).
1.2.79 "SUCCESSOR LANDLORD" shall mean a Successor
Landlord as defined in Section 20.2.
1.2.80 "SUBLEASE" shall mean a Sublease as defined in
Section 19.1.
1.2.81 "SUPERIOR LANDLORD" shall mean a Superior
Landlord as defined in Section 20.1.
1.2.82 "SUPERIOR LEASE" shall mean a Superior Lease as
defined in Section 20.1.
1.2.83 "SUPERIOR MORTGAGE" shall mean a Superior
Mortgage as defined in Section 20.1.
1.2.84 "SUPERIOR MORTGAGEE" shall mean a Superior
Mortgagee as defined in Section 20.1.
1.2.85 "TAXES" shall mean Taxes as defined in Section
5.1(g).
1.2.86 "TAX YEAR" shall mean Tax Year as defined in
Section 5.1(c).
1.2.87 "TENANT" shall mean the Tenant as defined in
Section 2.6.
1.2.88 "TENANT DELAY" shall mean Tenant Delay as
defined in Section 7.1(b).
1.2.89 "TENANT IMPROVEMENT ALLOWANCE" shall mean
Tenant Improvement Allowance as defined in the Fundamental Lease Provisions.
1.2.90 "TENANT'S CORRIDOR SIGNS" shall mean Tenant's
Corridor Signs as defined in Section 14.1.
1.2.91 "TENANT'S ELECTRIC CONSUMPTION" shall mean
Tenant's Electric Consumption as defined in Section 8.6(b).
1.2.92 "TENANT'S FURNISHINGS" shall mean Tenant's
Furnishings as defined in Section 7.4(b).
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1.2.93 "TENANT'S MODIFICATIONS" shall mean Tenant's
Modifications as defined in Section 7.2(c).
1.2.94 "TENANT'S OPERATING PAYMENT" shall mean
Tenant's Operating Payment as defined in Section 5.3(a).
1.2.95 "TENANT'S PLANS" shall mean the Tenant's Plans
as defined in Section 7.2(c).
1.2.96 "TENANT'S PROPORTIONATE SHARE" shall mean a
fraction, expressed as a percentage, the numerator of which is the Rentable Area
of the Premises (as same may be increased in accordance with the provisions of
this Lease) and the denominator of which is 656,310. Tenant's Proportionate
Share shall be calculated each time that the Rentable Area of the Premises
changes.
1.2.97 "TENANT'S PUNCH LIST ITEMS" shall mean Tenant's
Punch List Items as defined in Section 7.5.
1.2.98 "TENANT'S RESTORATION WORK" shall mean Tenant's
Restoration Work as defined in Section 23.3.
1.2.99 "TENANT'S TAX PAYMENT" shall mean Tenant's Tax
Payment as defined in Section 5.2(a).
1.2.100 "TENANT'S WORK" shall mean Tenant's Work as
defined in Section 7.2(a).
1.2.101 "TERM" shall mean the Term as defined in the
Fundamental Lease Provisions.
1.2.102 "TERM COMMENCEMENT DATE" shall mean the Term
Commencement Date as defined in the Fundamental Lease Provisions.
1.2.103 "THREE BROKER METHOD" shall mean three Broker
Method as defined in Section 2.5(d).
1.2.104 "YEAR-END STATEMENT" shall mean Year-End
Statement as defined in Section 5.3(c).
2. LANDLORD'S AUTHORITY; PREMISES; TERM; RENEWAL.
2.1 Landlord is the owner of the Land and the Building
and Landlord represents and warrants
that it has full right and authority to lease the Premises to Tenant and to
otherwise enter into this Lease on the terms and conditions set forth herein.
2.2 Landlord leases to Tenant, and Tenant leases from
Landlord, the Premises, together with all improvements and appurtenances
attached thereto or installed
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therein. All portions of the Premises shall be delivered by Landlord and Tenant
in accordance with Section 7.1(b) herein.
2.3 The term of this Lease shall commence on the Lease
Commencement Date and end, unless otherwise terminated pursuant to the terms
hereof, on the Expiration Date, both dates inclusive.
2.4 (a) Provided no Event of Default under this Lease
has occurred at the time Notice is given
or at the expiration of the initial Term and that Tenant is in occupancy of the
Premises at the expiration of the initial Term, Tenant shall have the right and
option, to renew the Term for one (1) consecutive period of five (5) years. It
shall also be a precondition to such renewal that Omnicom Group Inc. confirm in
writing that the Guaranty of Lease (to the extent same has not terminated in
accordance with its terms) has been extended to cover the renewal period, to
reaffirm all of the terms and conditions of such Guaranty and to affirm that
Omnicom has NO DEFENSES, offsets, or counterclaims to the enforcement of the
Guaranty existing on the date of the reaffirmation. In the event Omnicom does
not so reaffirm the Guaranty, Tenant must deliver to Landlord a substitute
guarantor, acceptable to Landlord in its sole discretion, who shall execute a
substitute Guaranty of Lease in substantially the form attached hereto as
EXHIBIT U. Tenant may exercise such option by giving Notice to Landlord of such
exercise not less than thirteen (13) months prior to the expiration of the
initial Term. In such Notice, Tenant shall specify whether Omnicom shall confirm
its guaranty or shall specify the substitute guarantor. If a substitute
guarantor is proposed, TENANT SHALL ALSO SIMULTANEOUSLY DELIVER TO LANDLORD
sufficient financial information to enable Landlord to judge the acceptability
of such guarantor. The renewal Term shall commence immediately upon the
expiration of the initial Term, and, upon the giving of such Notice and delivery
of such extended guaranty from Omnicom or such substitute guaranty by a
guarantor acceptable to Landlord, as the case may be, this Lease shall
automatically be extended for the five (5) year period(s) and no instrument of
renewal need be executed. At the time Tenant gives Notice of its election to
renew, Tenant shall also specify in such Notice the full floors of the Premises
which Tenant desires to continue its occupancy and those full floors which
Tenant desires to vacate. Tenant's Notice of the floors it desires to occupy and
to vacate, as the case may be, shall be irrevocable without Landlord's prior
approval. Within sixty (60) days after receipt of Tenant's Notice, Landlord
shall give Tenant Notice of the proposed Base Rent for the portion of the
Premises being renewed and if a substitute guarantor is proposed, the
acceptability of such substitute guarantor. In the event that Tenant fails to
give such Notice to Landlord as herein provided OR FAILS TO OBTAIN AN EXTENSION
OF THE OMNICOM GUARANTY OR FAILS TO OBTAIN A SUBSTITUTE GUARANTOR WHICH IS
ACCEPTABLE TO LANDLORD, AS THE CASE MAY BE, this Lease shall automatically
terminate at the end of the initial Term and Tenant shall have no further right
or option to extend this Lease. Tenant's right to so extend the Term is personal
to Xxxxxx.Xxx Ltd. or a Related Corporation and may not be exercised by any
independent assignee (except a permitted assignee of the entire Premises) or
subtenant.
(b) Tenant may exercise such renewal option
for less than the entire Premises provided, however, if Tenant is renewing this
Lease for less than the entire Premises, Tenant may only renew this Lease:
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(i) if Tenant occupies a full floor,
for the entire floor;
(ii) if Tenant occupies more than one
full floor, for contiguous full floors;
(iii) if Tenant occupies contiguous
full floors in a block of space, from the top or from the bottom of such block
of space;
(iv) if Tenant occupies a portion of
a floor, for that portion of such floor; and
(v) if Tenant occupies a full floor
and a portion of a floor, for the entire floor and the portion of such floor so
occupied by Tenant.
(c) The renewal Term shall be upon the same
covenants, agreements, provisions, terms and conditions as the original Term,
except that Tenant shall have no further options to renew or extend the Term
beyond the expiration of the renewal term and that annual Base Rent during the
first renewal Term for all space other than the below grade space shall equal
ninety-five percent (95%) of the Fair Market Rental Value of the Premises as of
the commencement date of the first renewal Term. Within thirty (30) days after
Landlord delivers to Tenant Landlord's proposed Base Rent, Tenant shall deliver
to Landlord its proposed Base Rent. If Landlord and Tenant agree on a Base Rent
for the renewal Term, the new Base Rent shall be the rent so agreed upon and
same shall be effective as of the first day of the renewal Term. If Landlord and
Tenant cannot agree on the Fair Market Rental Value, within thirty (30) days
after Tenant delivers to Landlord Notice of its proposed Base Rent, or if Tenant
objects to Landlord's proposed Fair Market Rental Value, Tenant may rescind its
Notice to extend the Term. Such Notice shall be irrevocable and this Lease shall
automatically terminate at the end of the applicable initial Term. If Tenant
does not rescind its Notice as aforesaid, the Fair Market Rental Value shall be
determined by the Three Broker Method.
(d) The "THREE BROKER METHOD" used to
determine Fair Market Rental Value shall be applied as follows. Either Landlord
or Tenant (the "FIRST PARTY") may initiate a determination of the Fair Market
Rental Value by giving Notice to the other (the "SECOND PARTY") of the name of a
real estate broker who has at least ten (10) years of experience as a broker for
the leasing of office space in downtown Manhattan and is not related to or
affiliated with either Landlord or Tenant or any affiliate of either of the
foregoing parties. Within ten (10) days after receipt of such Notice, the Second
Party shall name a real estate broker who meets the same criteria by Notice to
the First Party. If the Second Party fails to name such a broker within such ten
(10) day period, then the Fair Market Rental Value established by the broker
named by the First Party shall be the Fair Market Rental Value. If the Second
Party does name such a broker within such ten (10) day period, then within
fifteen (15) days after the Second Party names a broker the two brokers shall
together appoint a third broker who meets the same criteria and within an
additional fifteen (15) days the three brokers shall jointly determine the Fair
Market Rental Value. Each broker shall consider only the components set forth in
the definition of Fair Market Rental Value. The Fair Market Rental Value
determined by the brokers shall not be greater
15
than the Fair Market Rental Value proposed by Landlord, nor less than the Fair
Market Rental Value proposed by Tenant. If the three brokers cannot agree to a
Fair Market Rental Value, the average of the determinations of the brokers who
are the closest to each other shall be binding and conclusive (or, if the middle
broker is exactly midway between the other two, the middle determination shall
be binding and conclusive). Each party shall pay all costs, fees and expenses of
the broker selected by it and the parties shall equally share the costs, fees
and expenses of the third party broker.
(e) Notwithstanding any other provision of
this Lease to the contrary, during the renewal Term, the fair market value of
the below grade space shall equal fifty percent (50%) of the Fair Market Rental
Value.
2.5 In the event Tenant shall lease any additional
space in the Building other than pursuant to the expansion options as described
in Article 38, such space shall be measured based upon the then prevailing
measurement standards of the New York Real Estate Board, on the basis of a full
floor with a twenty percent (20%) loss factor.
2.6 Landlord has leased Tenant below grade space on the
B Level of the Building. Once during the Term, Landlord may relocate the below
grade space upon Notice to Tenant provided the relocated space is in the same
elevator bank as the original below grade space. The substitute space shall have
substantially the same area and configuration as the space being replaced.
Landlord shall be responsible for duplicating in the substitute space any work
which Tenant has installed in THE ORIGINAL BELOW GRADE SPACE and shall be
responsible for all reasonable moving costs incurred by Tenant in occupying such
space.
3. RENTABLE AREA.
3.1 For the purposes of this Lease the Building shall
consist of 656,310 rentable square feet. The parties have had an opportunity to
measure the Premises and all rentable square footages set forth in this Lease
are binding and conclusive, notwithstanding any subsequent measurement or change
in measurement methodology.
4. BASE RENT.
4.1 During the period beginning on the Base Rent
Commencement Dates to and including the Expiration Date, the Base Rent for the
Premises shall be at the rate set forth in the Fundamental Lease Provisions for
the appropriate period described therein. All payments of Base Rent shall be
payable by Tenant, in United States dollars, in equal monthly installments as
set forth in the Fundamental Lease Provisions, on or before the first day of
each month, in advance, payable to Landlord or Landlord's agent at the address
to which Notices to Landlord are to be sent hereunder, or such other place as
Landlord may from time to time designate by a Notice, without any prior demand
therefor and without any deductions or set-off whatsoever, except as otherwise
permitted by this Lease. If any Base Rent Commencement Date or the Expiration
Date occurs on a day other than the first or last day, respectively, of a
calendar month, then the Base Rent for the month in question shall be pro-rated
on a per diem basis based on the number of days in the month in question.
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4.2 Tenant shall commence the payment of Base Rent on
the applicable Base Rent Commencement Dates.
5. ADDITIONAL RENT - ESCALATIONS.
5.1 For the purposes of this Lease, the following terms
shall have the following meanings:
(a) "BASE OPERATING EXPENSES" shall mean
Operating Expenses for Calendar Year 2000, subject to any increase for
additional services as more particularly set forth in clause (xix) of this
Section 5.1(a).
(b) "BASE TAX FACTOR" shall mean Taxes for the
1999-2000 Tax Year.
(c) "TAX YEAR" shall mean the twelve (12)
month period commencing July 1 of each year, or such other period of twelve (12)
months as the fiscal year for real estate tax purposes in the City of New York.
(d) "ESCALATION YEAR" shall mean each Calendar
Year which shall include any part of the Term.
(e) "OPERATING EXPENSES" shall mean all
expenses, costs and disbursements which Landlord shall pay or become obligated
to pay because of, or in connection with, the ownership, management, operation,
repair and maintenance of the Building or the Land, including, without
limitation:
(i) Wages, salaries, disability
benefits, pensions, contributions, hospitalization, retirement plans, all fringe
benefits and group insurance and other indirect expenses respecting employees of
Landlord and Landlord's contractors and agents engaged in the operation,
maintenance and repair of the Building or the Land up to and including the grade
of building manager; uniforms and working clothes for such parties and the
cleaning thereof; expenses imposed upon Landlord pursuant to any requirements of
Governmental Authorities or any collective bargaining agreement with respect to
such employees; worker's compensation insurance, payroll, social security,
unemployment and other similar taxes with respect to such employees;
(ii) All supplies and materials used
in the operation, management, maintenance and repair of the Building;
(iii) Fuel expenses for heating,
ventilating and air conditioning for the Building and any other utility expenses
relating to the Building;
(iv) Water and sewer rents or
charges, however termed;
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(v) Cost of operation, maintenance,
service, repair and replacement of the Building systems which provide heating,
ventilating and air conditioning to the Building;
(vi) Cost of repairs, maintenance and
replacement of heating, ventilating and air conditioning equipment installed by
Landlord and located inside the on-floor heating, ventilating and air
conditioning machinery rooms excluding therefrom any supplemental heating,
ventilating and air conditioning equipment installed by Tenant servicing the
Premises;
(vii) Cost of all maintenance and
service for the Common Areas and the equipment therein, including but not
limited to, security, metal, all Building elevators and elevator cab maintenance
(whether or not such elevator services the Premises), lobby and interior and
exterior plaza maintenance, lobby decoration and display, removal of snow, ice
and debris, cleaning services, trash removal, Common Area landscape maintenance
and interior and exterior window repairs, replacements and cleaning;
(viii) Expenditures for capital
improvements, which expenditures under generally accepted accounting principles,
consistently applied, are required to be amortized over the useful life of the
capital improvement, including (w) expenditures for capital improvements for
equipment used in cleaning, maintenance and providing Building services, (x)
expenditures for equipment which reduces any component cost included in
Operating Expenses, (y) expenditures for capital improvements required by
Governmental Authorities for capital improvements required by Governmental
Authorities in the future but not required on the date hereof, and (z)
expenditures for equipment or improvements acquired or made in lieu of repair,
maintenance or replacement, which expenditures reduce any component cost
included in Operating Expenses, provided that the amount included in Operating
Expenses in any Calendar Year shall not exceed the reduction in the component
cost of Operating Expenses resulting from such expenditures in such Calendar
Year;
(ix) Fire, extended coverage, special
extended coverage, owner's protective, and other casualty coverage, boiler and
machinery, sprinkler, apparatus, public liability and umbrella liability and
property damage, rent or rental value and plate glass insurance and any other
insurance which Landlord may deem necessary or which is required by any
mortgagee of the Building and/or the Land;
(x) Maintenance of the exterior of
the Building (including interior and exterior window repairs, replacements and
cleaning) and improvements which are appropriate for the continued operation of
the Building as a Class A office building but excluding repairs and general
maintenance paid by the proceeds of insurance or by Tenant or other third
parties;
(xi) Rental of equipment used in
cleaning and maintenance;
(xii) Painting and decoration of
non-tenant areas;
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(xiii) A property management fee not
to exceed two percent (2%) per annum;
(xiv) Cost of maintenance, operation
and inspection of any sprinkler system and alarm system;
(xv) Cost of extermination service
administered in the Building and general office areas of tenants (but not any
kitchen, cafeteria or special food preparation areas) for rodent and pest
control;
(xvi) The cost of any additional
services not provided to the Building at the commencement of the Term but
thereafter provided by Landlord in order to comply with Legal Requirements;
(xvii) Electricity for the operation
of elevators, Building systems and the Building (not otherwise provided directly
to or otherwise chargeable to tenants, but including certain convenience outlets
on each floor of the Building and any voltage loss resulting from the supply of
electricity to any floors in the Building) and for lighting of Common Areas (the
division of electricity between electricity chargeable to tenants and
electricity chargeable to the Building is 70/30);
(xviii) Sales, excise and other taxes
imposed upon the services, materials or expenses enumerated herein; and
(xix) Subject to the exclusions from
Operating Expenses set forth below, such other expenses, costs and disbursements
paid or incurred by Landlord for services (A) which are initially provided to
the Building after the date of this Lease, provided that the cost of providing
such services during the initial twelve (12) month period that such services are
provided to the Building shall be included with Base Operating Expenses
(thereafter Tenant shall be responsible for its Proportionate Share of any
increase in the cost of such service), and (B) upon Tenant's prior written
consent, for additional services not provided to the Building as of the date of
this Lease.
"OPERATING EXPENSES" shall be deemed not to include the
following:
(i) The portion of electric allocable to
tenants under Section 5.1(e)(vvii) for supplying electric current, ventilating
or air conditioning, or supplying other services, for use within premises
occupied by tenants;
(ii) Real estate brokerage and leasing
commissions incurred by Landlord in connection with the leasing of the Building;
(iii) Wages, salaries or other compensation or
benefits paid to any persons above the grade of building manager;
(iv) Expenditures for capital improvements
other than as set forth in Section 5.1(e)(viii), except that Operating Expenses
shall include the cost during the Term, which costs under generally accepted
accounting principles, consistently applied,
19
are required to be amortized over the useful life of the capital improvement, of
(w) expenditures for capital improvements for equipment used in cleaning,
maintenance and providing Building services, (x) expenditures for equipment
which reduces any component cost included in Operating Expenses, (y)
expenditures for capital improvements required by Governmental Authorities in
the future but not required on the date hereof, and (z) expenditures for
equipment or improvements acquired or made in lieu of repair, maintenance or
replacement, which expenditures reduce any component cost included in Operating
Expenses, provided that the amount included in Operating Expenses in any
Calendar Year shall not exceed the reduction in the component cost of Operating
Expenses resulting from such expenditures in such Calendar Year;
(v) Advertising and promotional expenditures
incurred by Landlord for the Building;
(vi) Legal fees incurred in disputes with
tenants and other legal and auditing fees (including legal fees incurred for
services which do not generally benefit the tenants of the Building on a
Building wide basis), other than legal and auditing fees incurred (x) in
connection with the maintenance, management and operation of the Land and/or the
Building or (y) in connection with the preparation of statements required
pursuant to this Article 5 or (z) in connection with any assessment reduction
challenge, appeal or other contest by Landlord to reduce Taxes or any other
component of Operating Expenses;
(vii) Depreciation and amortization of the
Building, except that Operating Expenses shall include annual depreciation and
amortization of capital improvements for expenditures covered under clause (iv)
above;
(viii) Expenses for preparing, renovating or
redecorating space to be occupied by tenants as part of their demised premises
or for tenants renewing their leases;
(ix) Taxes;
(x) Any rent under any ground or underlying
lease;
(xi) Debt service on any mortgage encumbering
the Land or Building;
(xii) Transfer, gains, franchise, inheritance,
estate and income taxes imposed upon Landlord;
(xiii) Costs for which Landlord receives
compensation through the proceeds of insurance or for which Landlord would have
been compensated by insurance had it carried the coverage required under the
Lease;
(xiv) Costs incurred with respect to a sale of
all or any portion of the Building or any interest therein or in any person of
whatever tier owning an interest therein;
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(xv) Costs of any financing and refinancing of
mortgage loans encumbering the Building;
(xvi) Amounts otherwise includable in
Operating Expenses but reimbursed to Landlord directly by Tenant or other
tenants;
(xvii) Lease takeover costs incurred by
Landlord in connection with leases in the Building;
(xviii) To the extent any costs includable in
Operating Expenses are incurred with respect to both the Building and other
properties (including, without limitation, salaries, fringe benefits and other
compensation of Landlord's personnel who provide services to both the Building
and other properties), there shall be excluded from Operating Expenses a fair
and reasonable percentage thereof which is properly allocable to such other
properties;
(xvix) Cost of any judgment, settlement, or
arbitration award resulting from any liability of Landlord (other than a
liability for amounts otherwise includable in Operating Expenses hereunder);
(xx) Cost of providing any service customarily
provided by a managing agent as part of its base or standard management fee;
(xxi) Any profits that Landlord receives on
so-called sundry charges to individual tenants;
(xxii) Costs relating to withdrawal liability
or unfunded pension liability under the Multi-Employer Pension Plan Act or
similar law except to the extent that such costs would otherwise be included in
fringe benefits, which are includable as Operating Expenses;
(xxiii) Cost of installing, operating and
maintaining any specialty facility, such as an observatory, broadcasting
facilities, luncheon club, athletic or recreational club, child care or similar
facility, cafeteria or dining facility;
(xxiv) Costs of acquisition of any sculptures,
paintings and other objects of art located within or outside the Building,
provided, however, the costs of maintaining such objects in the public areas of
the Building shall be included in Operating Expenses;
(xxv) Any profits received by Landlord on
account of computations where the aggregate of the proportionate shares for all
tenants in the Building equals a number greater than 100;
(xxvi) Except as otherwise provided in this
Lease, costs of remedying violations of municipal building code requirements or
other Legal Requirements that arise by reason of Landlord's failure to
construct, maintain or operate the Building or
21
any part thereof in compliance with such building code requirements or other
Legal Requirements and regulations (but not for violations caused by Tenant);
and
(xxvii) Costs incurred in connection with
making any additions to, or building additional stories on, the Building or its
plazas, or adding buildings or other structures adjoining the Building (which
increase the square footage of the Building), or connecting the Building to
other structures adjoining the Building.
In computing Operating Expenses, Landlord
shall include only those expenses, costs and disbursements which Landlord has
paid, or is required to amortize pursuant to Section 5.1(e)(viii), because of or
in connection with the ownership, management, operation, repair and maintenance
of the Building and/or the Land, in a manner consistent with the standards of
Class A office buildings, all of which shall be subject to the foregoing
exclusions from Operating Expenses set forth in this Section 5.1(e). There shall
be credited as a deduction to Operating Expenses all amounts collected from
specific tenants of the Building to the extent the amount billed to such tenant
and subsequently collected were included in Operating Expenses. Operating
Expenses shall be net only and for that purpose shall be deemed reduced by the
amount of all reimbursements, recoupments, payments, discounts, credits,
reductions, allowances or the like actually received by Landlord in connection
with Operating Expenses; provided, however, that Landlord shall include in
Operating Expenses the reasonable costs and expenses, if any, incurred by
Landlord in obtaining such reimbursements, recoupments, payments, discounts,
credits, reductions, allowances or the like; provided, further, however,
Landlord shall use reasonable and customary efforts to take any action to
receive such reimbursement, recoupment, payment, discount, credit, reduction,
allowance or the like. In the event Landlord obtains any services, equipment or
materials from a Related Corporation of Landlord, the cost of such services,
equipment or material shall not exceed the reasonable, fair market value of such
services, equipment or materials as if same was obtained from an independent,
non-affiliated party.
Operating Expenses shall be categorized in the
categories set forth on EXHIBIT D.
In the event the Building is not ninety five
percent (95%) occupied by tenants during all or any portion of a Calendar Year,
then Landlord shall make appropriate adjustments in the cost of those components
of Operating Expenses which vary with the occupancy level of the Building, to
reflect the Operating Expenses which would have been paid or incurred by
Landlord for such Calendar Year or portion thereof had the Building been
ninety-five percent (95%) occupied by tenants during such Calendar Year or
portion thereof.
(f) "CALENDAR YEAR" shall mean each calendar
year, commencing with the calendar year in which the Term Commencement Date
occurs, and each subsequent calendar year in which any part of the Term falls,
through and including the calendar year in which the Term expires.
(g) "TAXES" shall mean all real estate taxes
and/or payments in lieu of real estate taxes and assessments, special or
otherwise, levied or assessed upon the
22
Land and/or the Building, including any business improvement district taxes.
Should the City of New York, the State of New York, or any political subdivision
thereof, or any other Governmental Authority having jurisdiction over the Land
and/or the Building (i) impose a tax, assessment, charge or fee, in substitution
(whether in whole or in part) for such real estate taxes or payments in lieu of
real estate taxes, or (ii) impose an income or franchise tax or a tax on rents
in substitution (whether in whole or in part) for such real estate taxes, all
such taxes, assessments, charges or fees shall be deemed to constitute Taxes
hereunder. Taxes shall not include any inheritance, estate, succession,
transfer, gift, franchise, net income or capital stock tax imposed against
Landlord, or any penalties, interest or late charges incurred in connection
therewith. Tenant shall not be responsible for any increase in Taxes resulting
from physical additions or improvements (excluding any tenant improvements
and/or capital expenditures) to the Building or any sale or refinancing of the
Building.
5.2 (a) If Taxes payable in any Tax Year falling wholly
or partially within the Term shall be in such amount as shall constitute an
increase above the Base Tax Factor, Tenant shall pay as Additional Rent for such
Tax Year a sum ("TENANT'S TAX PAYMENT") equal to Tenant's Proportionate Share of
such excess. Tenant's Tax Payment for each Tax Year shall be due and payable in
two semi-annual installments on the first day of July and January during each
Tax Year and shall be set forth in the first instance in a Landlord's Statement
given to Tenant. If a Landlord's Statement is furnished to Tenant after the
commencement of a Tax Year in respect of which such Landlord's Statement is
rendered, Tenant shall, within thirty (30) days thereafter, pay to Landlord an
amount equal to the amount of any underpayment of Tenant's Tax Payment with
respect to such Tax Year and, in the event of any overpayment, Landlord shall
either pay to Tenant, or, at Tenant's election, credit against subsequent
payments of Base Rent and Additional Rent under this Lease the amount of
Tenant's overpayment. If there shall be any increase in Taxes for any Tax Year,
whether during or after such Tax Year, or if there shall be any decrease in the
Taxes for any Tax Year during such Tax Year, Landlord may furnish a revised
Landlord's Statement for such Tax Year, and Tenant's Tax Payment for such Tax
Year shall be adjusted and paid or credited or refunded, as the case may be,
substantially in the same manner as provided in the preceding sentence. If
during the Term, Taxes are required to be paid (either to the appropriate taxing
authorities or as tax escrow payments to the Superior Landlord or the Superior
Mortgagee), in full or in monthly, quarterly, or other installments (but no more
frequently than monthly) on any other date or dates than as presently required,
then Tenant's Tax Payments shall be correspondingly accelerated or revised so
that said Tenant's Tax Payments are due at least thirty (30) days prior to the
date payments are due to the taxing authorities or the Superior Landlord or the
Superior Mortgagee. If Landlord makes an early payment or prepayment of Taxes
entitling Landlord to a discount and if Tenant shall have paid Tenant's Tax
Payment to Landlord with respect to such discounted Taxes in advance of
Landlord's early payment or prepayment, then Tenant shall be entitled to
Tenant's Proportionate Share of such discount. In addition, if any tax exemption
or abatement relating to all or part of the Land applies generally to real
property located in downtown Manhattan (as opposed to resulting from a specific
exemption or abatement program related to the specific acts of Landlord or of
any tenant), then Tenant shall be entitled to Tenant's Proportionate Share (the
share in effect for the Tax Year in question) of such abatement or exemption.
Otherwise, the benefit of any discount for any early payment or prepayment of
Taxes, as well as any tax exemption or abatement relating to all or any part of
the Land,
23
shall accrue solely to the benefit of Landlord and such discount or exemption
shall not be subtracted from Taxes.
(b) If the real estate tax fiscal year of The
City of New York shall be changed at any time after the date hereof, any Taxes
for such fiscal year, a part of which is included within a particular Tax Year
and a part of which is not so included, shall be apportioned on the basis of the
number of days in such fiscal year included in the particular Tax Year for the
purposes of making the computations under this Section.
(c) If Landlord shall receive a refund of
Taxes for any Tax Year, Landlord shall, at Landlord's election, either credit
Tenant's Proportionate Share (the share in effect for the Tax Year in question)
of such refund against subsequent payments of Base and Additional Rent under
this Lease, or pay Tenant's Proportionate Share (the share in effect for the Tax
Year in question) of the refund to Tenant, in either case, after deducting from
such refund the costs and expenses incurred by Landlord in obtaining such
refund. Landlord shall be obligated to use its best efforts to file any
application or institute any proceeding seeking a reduction in Taxes or assessed
valuation. Tenant agrees to cooperate fully with Landlord in prosecuting any
such reduction.
(d) Tenant's Tax Payment and any credits with
respect thereto as provided in this Section shall be made as provided in this
Section regardless of the fact that Tenant may be exempt, in whole or in part,
from the payment of any taxes by reasons of Tenant's diplomatic or other tax
exempt status or for any other reason whatsoever.
(e) In the event of a termination of this
Lease, any Additional Rent under this Section shall be paid or adjusted within
thirty (30) days after submission of Landlord's Statement. Except to the extent
that overpayments made by Tenant under this Section 5.2 may be credited against
Base Rent as herein provided, in no event shall Base Rent ever be reduced by
operation of this Section, and the rights and obligations of Landlord and Tenant
under the provisions of this Section with respect to any Additional Rent shall
survive the termination of this Lease; provided however, that Landlord shall be
deemed to have waived any right to Additional Rent pursuant to this Section 5.2
for which Landlord has not submitted a Landlord's Statement within twenty-four
(24) months after the end of the Tax Year which is in effect upon the expiration
or sooner termination of this Lease.
(f) Each Landlord's Statement furnished by
Landlord with respect to Tenant's Tax Payment shall be accompanied by a copy of
the real estate tax xxxx for the Tax Year referred to therein, but Landlord
shall have no obligation to deliver more than one such copy of the real estate
tax xxxx in respect of any Tax Year.
5.3 (a) For each Calendar Year during the Term, Tenant
shall pay, as Additional Rent, an operating payment ("TENANT'S OPERATING
PAYMENT"), which payment shall be equal to Tenant's Proportionate Share of the
amount by which Operating Expenses for such Calendar Year exceed Base Operating
Expenses provided, however, that the percentage increase in Tenant's Operating
Payment in any Calendar Year from the prior Calendar Year's payment shall not
exceed seventy-five percent (75%) of the percentage increase in the Index for
the prior Calendar Year, provided further if the percentage increase
24
in Operating Expenses for the prior Calendar Year exceeded four percent (4%),
the percentage increase in Tenant's Operating Payment shall not be less than
four percent (4%).
(b) Landlord shall furnish to Tenant, prior to
the commencement of each Calendar Year, a Landlord's Statement ("LANDLORD'S
STATEMENT") setting forth Tenant's Tax Payment and Landlord's estimate of
Tenant's Operating Payment for such Calendar Year, and the method of calculation
of Tenant's Operating Payment for such Calendar Year. Landlord's estimate of
Tenant's Tax Payment and Tenant's Operating Payments set forth in Landlord's
Statement shall not exceed the prior year's Tenant's Tax Payment and Tenant's
Operating Payments increased by an amount equal to five percent (5%) of such
payments, unless such increase is otherwise documented. Tenant shall pay to
Landlord on the first day of each month during such Calendar Year an amount
equal to one-twelfth (1/12th) of Landlord's estimate of Tenant's Operating
Payment for such Calendar Year. If, however, Landlord shall furnish any such
estimate for a Calendar Year subsequent to the commencement thereof, then (x)
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 in respect of the last month of the preceding Calendar Year; (y)
promptly after such estimate is furnished to Tenant or together therewith,
Landlord shall give notice to Tenant stating whether the installments of
Tenant's Operating Payment previously made for such Calendar Year were greater
or less than the installments of the Tenant's Operating Payment to be made for
such Calendar 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, or (ii) if there shall have been an overpayment, Landlord
shall, at Landlord's option, promptly either refund to Tenant the amount thereof
or credit the amount thereof against subsequent payments of Base and Additional
Rent under this Lease; and (z) on the first day of the month following the month
in which such estimate is furnished to Tenant, and monthly thereafter throughout
the remainder of such Calendar Year, Tenant shall pay to Landlord an amount
equal to one-twelfth (1/12th) of Tenant's Operating Payment shown on such
estimate. Landlord may at any time or from time to time furnish to Tenant a
revised Landlord's Statement of Landlord's estimate of Tenant's Operating
Payment for such Calendar Year; and in such case, Tenant's Operating Payment for
such Calendar Year shall be adjusted and paid or refunded, as the case may be,
substantially in the same manner as provided in the preceding sentence.
(c) Within one hundred twenty (120) days after
the end of each Calendar Year Landlord shall furnish to Tenant a statement (the
"YEAR-END STATEMENT") for such Calendar Year of Tenant's Operating Payment then
in effect. Each such Year-End Statement for any Calendar Year in which Tenant's
Operating Payment is due shall be accompanied by a computation of Operating
Expenses for the Building prepared by the Building manager from which Landlord
shall make the computation of Operating Expenses hereunder. If the Landlord's
Statement shall show that the sums paid by Tenant under this Section exceeded
Tenant's Operating Payment for such Calendar Year, Landlord shall, at Landlord's
option, either refund to Tenant the amount of such excess within thirty (30)
days after the furnishing of the Landlord's Statement to Tenant or credit the
amount of such excess against subsequent payments of Base and Additional Rent
under this Lease; and if the Landlord's Statement for such Calendar Year shall
show that the sums so paid by Tenant were less than Tenant's Operating Payment
for such Calendar Year,
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Tenant shall pay the amount of such deficiency within thirty (30) days after
demand therefor.
(d) In the event of a termination of this
Lease, any Additional Rent under this Section shall be paid or adjusted within
thirty (30) days after submission of Landlord's Statement. Except to the extent
that overpayments made by Tenant under this Section 5.3 may be credited against
Base Rent as herein provided, in no event shall Base Rent ever be reduced by
operation of this Section and the rights and obligations of Landlord and Tenant
under the provisions of this Section with respect to any Additional Rent shall
survive the termination of this Lease; provided however, that Landlord shall be
deemed to have waived any right to Additional Rent pursuant to this Section 5.3
for which Landlord has not submitted a Landlord's Statement within thirty-six
(36) months after the end of the Escalation Year which is in effect upon the
expiration or sooner termination of this Lease.
5.4 If the Commencement Date or the Expiration Date
shall occur on a date other than January 1 or December 31, respectively, any
Additional Rent under this Section for the Escalation Year in which such
Commencement Date or Expiration Date shall occur shall be apportioned in that
percentage which the number of days in the period from the Lease Commencement
Date to December 31 or from January 1 to the Expiration Date, as the case may
be, both inclusive, shall bear to the total number of days in such Escalation
Year.
5.5 The computations of Additional Rent under this
Article are intended to constitute a formula for an agreed rental adjustment,
may or may not include all costs and expenses incurred by Landlord with respect
to the Building and accordingly may or may not constitute an actual
reimbursement to Landlord for costs and expenses paid by Landlord with respect
to the Building.
5.6 Landlord shall keep, for a period of three (3)
years (five years, if a dispute with respect to such year is pending) after any
Year-End Statement required under this Article 5 is delivered to Tenant, either
at the Building or at Landlord's offices in New York, New York, records in
reasonable detail of the Operating Expenses for the period covered by such
statement. After the expiration of the aforesaid three or five year period,
Landlord shall have no obligation to retain such records.
5.7 Each Year-End Statement shall be conclusive and
binding upon Tenant unless within three hundred sixty-five (365) days after its
receipt of any such statement Tenant shall, by Notice to Landlord, dispute the
correctness of said statement. Landlord shall permit Tenant, at Tenant's
expense, within the aforesaid three hundred sixty five (365) day period (or if a
dispute is pending during the pendency of such dispute), to examine, copy and
audit such records during business hours at reasonable times following
reasonable Notice at the office where Landlord is keeping such records. If
Tenant fails to send the aforesaid Notice within three hundred sixty-five (365)
days after its receipt of the Year-End Statement, Tenant shall be conclusively
deemed to have accepted such Year-End Statement and waived any right to audit
such Year-End Statement or Landlord's records pertaining thereto; provided,
however, if Tenant thereafter properly and timely disputes any such statement,
Tenant may audit any statement issued in the past five years provided Landlord
has maintained the records required under Section 5.6 for the periods set forth
in
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Section 5.6. In the event Landlord is not required under Section 5.6 to maintain
the records, and in fact has not maintained the records, Tenant shall have no
right to dispute the statement corresponding to such records. Any such Notice
shall set forth in reasonable detail the basis of such dispute. Any such dispute
that is not settled by Landlord and Tenant within twenty (20) days after the
delivery of such Notice, or such longer period to which they may mutually agree,
may, at the option of either party, be submitted to arbitration in accordance
with Article 34 of this Lease. Pending the determination of any such dispute by
agreement or otherwise, Tenant shall pay Tenant's Tax Payment and Tenant's
Operating Payment in accordance with the applicable Year-End Statement, and such
payment shall be without prejudice to Tenant's position. If it is determined
that Landlord owes Tenant a refund, Landlord shall pay to Tenant any unpaid
amounts within thirty (30) days after the resolution of any dispute regarding
same together with interest on such unpaid amount at the rate set forth in
Section 6.1.
5.8 Landlord shall have the right at any time within
fifteen (15) months from the delivery of any Year-End Statement to Tenant to
render revised Year-End Statements to Tenant reflecting any adjustment in
Operating Expenses, Tenant's Operating Payment and/or Tenant's Tax Payment.
Within thirty (30) days after Tenant's receipt of any Year-End Statement, Tenant
shall pay Landlord any deficiency, or receive a credit from Landlord for any
excess against any ensuing payments hereunder, in either case, between the
amount due pursuant to the revised Year-End Statement and the Year-End Statement
to which such revised Year-End Statement pertains. Each such revised Year-End
Statement shall be conclusive and binding upon Tenant unless within ninety (90)
days after its receipt of any such revised statements Tenant shall, by Notice to
Landlord, dispute the correctness of said revised statement. If Tenant fails to
send the aforesaid Notice within ninety (90) days after its receipt of the
revised Year-End Statement, Tenant shall be conclusively deemed to have accepted
such revised Year-End Statement and waived any right to audit such revised
Year-End Statement or Landlord's records pertaining thereto. Any such Notice
shall set forth in reasonable detail the basis of such dispute. Any such dispute
that is not settled by Landlord and Tenant within twenty (20) days after the
delivery of such Notice, or such longer period to which they may mutually agree,
may, at the option of either party, be submitted to arbitration in accordance
with Article 34 of this Lease. Pending the determination of any such dispute by
agreement or otherwise, Tenant shall pay Tenant's Tax Payment and Tenant's
Operating Payment in accordance with the applicable revised Year-End Statement,
and such payment shall be without prejudice to Tenant's position. If it is
determined that Landlord owes Tenant a refund, Landlord shall pay to Tenant the
amount determined to be owed to Tenant within thirty (30) days after the
resolution of any dispute regarding same together with interest in such unpaid
amount at the rate set forth in Section 6.1.
5.9 Each and every payment required under this Article
5, as well as any other amounts which are owed by Tenant to Landlord under this
Lease, whether requiring lump sum payments or constituting projected monthly
amounts in addition to the Base Rent, shall for all purposes be treated and
considered as Additional Rent. The failure of Tenant to pay such Additional Rent
as and when due without demand shall have the same effect as failure to pay any
installment of Base Rent and shall afford Landlord all remedies provided in the
Lease therefor.
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5.10 Both Tenant's obligation for payment of Additional
Rent for any period during the Term of the Lease and Landlord's obligation to
refund excess payments on account of Additional Rent for any period during the
Term of the Lease shall survive the expiration or any sooner termination of the
Lease, subject, however, to the provisions of Section 5.8 hereof.
6. LATE CHARGE.
6.1 Any installment of Base Rent or Additional Rent
hereunder that is not paid within five (5) days of the date when due hereunder
shall bear interest from the due date until paid at the rate of two percent (2%)
over the then "PRIME RATE" as published in The Wall Street Journal or The New
York Times for ninety (90) day unsecured loans to major corporate borrowers
(unless such rate is usurious as applied to Tenant in which case the highest
rate permitted by law shall apply). In the event the Prime Rate is no longer the
reference rate for ninety (90) day unsecured loans, then the rate for 90 day
Treasury bills plus three percent (3%) shall be used as the replacement or
successor reference rate to the Prime Rate in determining the interest to be
paid by Tenant pursuant to this Section.
7. LANDLORD'S WORK.
7.1 Landlord shall have no obligation to perform any
work in, or make any alterations or improvements to (i) any floor within the
Premises in connection with Tenant's initial occupancy of the Premises other
than the work described in EXHIBIT E annexed hereto (individually for each floor
and collectively, for all floors, "LANDLORD'S WORK") and (ii) any floor acquired
in connection with any one or more of Tenant's extension options which are set
forth in Article 38 herein. Notwithstanding the foregoing, in the below grade
space, Landlord shall demise and sheetrock such space and install within the
space Building standard lighting.
(b) For the purpose of this Lease, the term
"TENANT DELAY" shall mean any delay that Landlord actually encounters in the
prosecution of Landlord's Work caused solely by any act, neglect, failure or
omission of Tenant, its agents, employees or contractors, including, without
limitation, (i) any delay in Tenant making a submission or furnishing a response
under Sections 7.1 or 7.2, or (ii) and delay due to the implementation of any
Landlord's Work Modification or making any deposit in connection therewith. Any
delays in the completion of Landlord's Work caused by Tenant Delay shall not
serve to defer the applicable Base Rent Commencement Date. For the purpose of
this Lease, the term "LANDLORD DELAY" shall mean any delay that Tenant actually
encounters in the prosecution of Tenant's Work caused solely by any act,
neglect, failure or omission of Landlord, its agents, employees or contractors,
including without limitation, (i) any delay in Landlord making a submission or
furnishing a response not caused by a Tenant Delay, (ii) any delay in the
prosecution of or completion of Landlord's Work not caused by a Tenant Delay,
(iii) any other failure defined as Landlord Delay under the Lease, and (iv) any
delay in Tenant's prosecution of Tenant's Work caused by the performance of
Landlord's Work taking precedence over the performance of Tenant's Work.
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(c) It is understood by Landlord and Tenant
that the schedule for completion of Landlord's Work is contingent upon the
absence of change orders or other modifications or revisions requested by
Tenant, other than minor or a de minimis number of changes. Any change order,
revision or other modification requested by Tenant shall be in writing, shall
set forth in detail the nature of the revision or modification and shall have
attached thereto all appropriate drawings and specifications to illustrate such
revision or modification (collectively, "LANDLORD'S WORK MODIFICATIONS"). In the
event Tenant requests a Landlord's Work Modification, Tenant shall submit such
Landlord's Work Modification to Landlord for Landlord's review and approval.
Within fifteen (15) days after Landlord's receipt of any Landlord's Work
Modification, Landlord shall furnish Tenant with a statement of the cost of the
implementation of Landlord's Work Modification, together with Landlord's
estimate of the period of Tenant Delay which would result on account thereof and
Landlord (i) shall give its approval thereto, or (ii) Landlord shall request
revisions or modifications to such Landlord's Work Modification. Within five (5)
days following Landlord's request, Tenant shall revise the Landlord's Work
Modification and submit such revisions or modifications to Landlord for
Landlord's approval. Within two (2) days following receipt by Landlord of such
revisions or modifications, Landlord shall give its written approval thereto or
shall request further revisions or modifications. The preceding two sentences
shall be implemented repeatedly until Landlord gives its written approval to the
Landlord's Work Modification. Landlord shall not be required to stop or postpone
the performance of Landlord's Work, or any portion thereof, because Landlord has
received from Tenant a Landlord's Work Modification affecting Landlord's Work,
or a portion thereof, unless Tenant delivers to Landlord a Notice with such
Landlord's Work Modification specifically requesting such stoppage or
postponement, in which event such stoppage or postponement shall be deemed to be
Tenant Delay commencing on the date of delivery of such Notice to Landlord and
Tenant shall be responsible for all costs arising therefrom, regardless whether
the Landlord's Work Modification is implemented. Within two (2) business days of
its receipt of the aforesaid approval, Tenant shall instruct Landlord by a
Notice to either (i) proceed with such Landlord's Work Modification or (ii)
withdraw such Landlord's Work Modification. If Tenant shall instruct Landlord to
proceed with such Landlord's Work Modification, the same shall be binding upon
Tenant. Tenant shall pay, as Additional Rent, the net cost, if any, of the
implementation of such Landlord's Work Modification. Landlord may pay the cost
of any Landlord's Work Modification by applying the Tenant Improvement Allowance
to such costs. Landlord may require Tenant, as a condition of the approval of
such Landlord's Work Modification, to deposit up to ten percent (10%) of the
cost of the Landlord's Work Modification, with Landlord prior to Landlord
implementing such Landlord's Work Modification. Otherwise, Tenant shall pay the
cost of the Landlord's Work Modification within thirty (30) days of receipt of
an invoice therefor.
(d) To the extent there is any conflict
between Landlord's Work described in EXHIBIT E and the body of this Lease,
Landlord's Work shall control, provided, however, in the event and to the extent
the Lease provides for Landlord's approval or consent, Tenant shall obtain such
approval or consent. Notwithstanding the foregoing, to the extent that any plans
and specifications are approved by Landlord, such plans and specifications shall
govern.
(e) In the event Tenant exercises the option
to terminate this Lease pursuant to Section 40.1, Tenant shall, within thirty
(30) days of receipt of an
29
invoice therefor, reimburse Landlord for all reasonable fees and actual expenses
incurred by Landlord in regard to the Lease, including any real estate
commissions paid by Landlord.
7.2 (a) For the purposes of this Lease, the term
"TENANT'S WORK" shall mean the work, installations, improvements and equipment
described in Tenant's Plans. Tenant, at Tenant's sole cost and expense, shall
perform, or cause to be performed, Tenant's Work subject to the provisions of
this Article 7 and substantially in accordance with Tenant's Plans, as modified
by Change Orders approved by Landlord pursuant to Article 7.
(b) Except as otherwise set forth in Tenant's
Plans, Tenant may not connect into any portion of the Building located outside
of the Premises or to any pipes, shafts or conduits outside of the Premises
(collectively, the "EXTERNAL SHAFTS") without Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed.
(c) From time to time, Tenant, at its expense,
shall prepare and submit to Landlord complete drawings (including sprinkler,
HVAC, electrical, plumbing, telephone, reflected ceiling and partition plans)
for Tenant's Work ("TENANT'S PLANS"). Tenant's Plans shall consist of six (6)
copies , including one (1) sepia. Tenant may submit to Landlord Tenant's Plans
in stages determined by Tenant. In the event Tenant submits Tenant's Plans in
stages and Landlord reasonably requires a stage which has not been submitted in
order to approve the earlier submission, Landlord may defer such approval until
Landlord receives the necessary submissions and such delay shall not be deemed
to be a Landlord Delay. Within thirty (30) days of submission, Landlord (i)
shall give its approval on an applicable floor by floor basis thereto or (ii) if
Landlord reasonably believes that Tenant's Plans may adversely affect the
structure or systems of the Building or do not comply with all Legal
Requirements, Insurance Requirements or any provision of this Lease (the
"LANDLORD'S APPROVAL CRITERIA"), Landlord shall request revisions or
modifications ("TENANT'S MODIFICATIONS") to Tenant's Plans in order that same
shall comply with Landlord's Approval Criteria. Tenant shall revise the Tenant's
Plans and submit Tenant's Modifications to Landlord for Landlord's approval.
Landlord shall approve or request revisions or modifications to such revised
plans within five (5) business days of receipt of such revised plans. The
preceding procedure shall be implemented repeatedly until Landlord gives its
written approval to the Tenant's Modifications. Within seven (7) days after
Landlord has given its written approval of Tenant's Plans, as modified by
Tenant's Modifications, Tenant shall transmit to Landlord five (5) copies of
final Tenant's Plans which incorporate Tenant's Modifications.
(d) Tenant shall retain the General Contractor
to construct Tenant's Work in a good and workmanlike manner. In the event
Landlord determines that the employment of the General Contractor shall, or
during the course of Tenant's prosecution of Tenant's Work does, interfere with
construction performed by, or cause any conflict or labor dispute with, any
other contractor, subcontractor or other party engaged in the construction,
maintenance or operation of the Building or the Premises, Landlord shall have
the right to require the replacement of the General Contractor with another
contractor selected by Tenant and approved by Landlord. Landlord may disapprove
any contractors and subcontractors for cause or if such contractors or
subcontractors are or become known to be a probable cause of a labor dispute
relating to the Building or the Premises or in the
30
event any such Approved Contractor changes its nature or method of operation to
an extent which is reasonably deemed by Landlord to be inconsistent with the
then standards of the Building.
7.3 (a) Possession of the Premises shall be delivered
to Tenant when Landlord's Work is Substantially Completed, but in no event will
Landlord deliver nor will Tenant be required to accept the Premises prior to
August 1, 1999. For the purposes of this Lease, the term "BENEFICIAL OCCUPANCY
DATE" shall be deemed to mean the date upon which Landlord's Work in the
Premises (not including the payment of the Tenant Improvement Allowance) is
Substantially Completed and Landlord shall have delivered to Tenant Notice
setting forth that Landlord's Work in the Premises (not including the payment of
the Tenant Improvement Allowance) is Substantially Completed. Landlord shall
give not less than ten (10) business days Notice of the date of expected
Substantial Completion of Landlord's Work in the Premises (not including the
payment of the Tenant Improvement Allowance). Promptly after the occurrence of
any Beneficial Occupancy Date, Landlord and Tenant shall execute an agreement in
the form annexed hereto as EXHIBIT F confirming such Beneficial Occupancy Date
and specifying that Landlord's Work (not including payment of the Tenant
Improvement Allowance) has been Substantially Completed, but the failure of the
parties to execute such an agreement shall not defer the applicable Beneficial
Occupancy Date, the Term Commencement Date or the Base Rent Commencement Date,
or otherwise affect or invalidate this Lease.
(b) Landlord's Work shall be deemed
"SUBSTANTIALLY COMPLETED" when all of the following have occurred, and such
shall be certified in writing to Tenant by Landlord and Tenant's architect
(Tenant represents that Tenant's architect has agreed to so certify the
completion of Landlord's Work, when and to the extent appropriate):
(i) Landlord's Work within the
Premises (not including the payment of any Tenant Improvement Allowance) shall
have been substantially completed, the completion or non-completion of which
does not delay or materially interfere with Tenant's ability to construct
Tenant's Work, provided, however, Landlord and Tenant agree that to determine
substantial completion, Landlord shall not be required to complete (A) the
installation of the windows, which installation may proceed and be completed
while Tenant is constructing Tenant's Work, and (B) the remodeling of the
bathrooms on the applicable floors, provided such remodeling shall commence at a
time reasonably determined by Landlord and Tenant and Landlord agree to
diligently pursue such remodeling in order to substantially complete same prior
to Tenant's scheduled occupancy of the particular floor in question provided,
however, (1) Landlord and Tenant shall use reasonable efforts to coordinate
their respective work, (2) such window installation and bathroom remodeling
shall not delay, or interfere with, beyond a de minimis degree, Tenant's Work,
and (3) in the event Landlord causes any damage to Tenant's Work, Landlord, at
its sole cost and expense, shall repair such damage within a reasonable time
thereafter; and
(iii) reasonable means of access to
the Premises (taking into account that portions of Landlord's Work may still be
continuing) shall exist.
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7.4 (a) Prior to the applicable Beneficial Occupancy
Date, Tenant may inspect the progress of Landlord's Work upon reasonable prior
Notice to Landlord. Tenant shall be accompanied by a representative of Landlord
during such inspection. Tenant shall give Notice to Landlord of any defects in
Landlord's Work which Tenant receives knowledge thereof during such inspection
within five (5) days after Tenant receives such knowledge. Landlord shall
promptly correct such defects.
(b) Commencing on the applicable Beneficial
Occupancy Date and provided Tenant has complied with the provisions of Section
7.2, Tenant shall be permitted to enter upon the Premises and commence
construction of Tenant's Work and may bring and install into the Premises
installations, furniture and equipment necessary for Tenant's occupancy of the
Premises ("TENANT'S FURNISHINGS"). Unless Tenant has reserved access to the
Building with Landlord, Tenant shall have access on a "first-come, first-serve"
basis in common with Landlord and other tenants in the Building. Tenant shall
access the Premises for the delivery and installation of Tenant's Work and
Tenant's Furnishings by way of the Building freight elevators only, and Tenant
shall not be permitted to use the passenger elevators for the delivery to or
removal from the Premises of any Tenant's Furnishings or for any material or
supplies necessary to construct Tenant's Work. During Business Hours, Tenant's
use of the freight elevators shall be on a non-exclusive basis. During
Non-Business Hours, Tenant may reserve the use of the freight elevator and
Tenant shall pay for Landlord's providing such freight elevator service within
thirty (30) days after Tenant's receipt of an invoice therefor at the rate
charged to all of the tenants of the Building. Landlord shall provide Tenant one
weekend of elevator service for Tenant's initial move-in at no cost to Tenant.
Use of the freight elevators may be reserved by Tenant only upon twenty-four
(24) hours Notice to Landlord (Landlord shall not unreasonably withhold its
approval to Tenant reserving an elevator on less than twenty-four hours Notice,
provided an operator is available and the elevator has not been reserved by any
other party eligible to reserve such elevator). Use of the freight elevators may
not be reserved more than fourteen (14) days in advance of its intended use,
unless otherwise consented to by Landlord. Landlord reserves the right to
reasonably restrict and regulate the types and amounts of equipment and
installations which may be transported to and from the Premises by means of the
freight elevators to the extent any such equipment or installation exceeds the
load requirements of the freight elevators as established by Landlord. Any such
equipment or installations which exceeds the manufacturer's specifications for
such freight elevators shall not be transported by means of the freight
elevators but shall be delivered to and removed from the Premises by Tenant at
Tenant's expense by a material hoist or hoists maintained by Tenant in
accordance with all Legal Requirements and Insurance Requirements.
7.5 Upon the delivery of the applicable portion of the
Premises to Tenant it shall be presumed that all applicable Landlord's Work
(except the payment of the Tenant Improvement Allowance) has been satisfactorily
performed in accordance with the requirements of Sections 7.1 and 7.2, except
with respect to latent defects or to the extent that specific deficiencies in
such work are listed on a punch list ("TENANT'S PUNCH LIST ITEMS") which shall
be prepared by Tenant and furnished to Landlord within thirty (30) days after
the applicable Beneficial Occupancy Date. Tenant waives any claims as to any
deficiencies in the completion of Landlord's Work not specified in Tenant's
Punch List Items, except for latent defects. As quickly as reasonably possible,
after its receipt of
32
Tenant's Punch List Items, Landlord shall substantially complete all such items
listed thereon.
7.6 (a) Tenant shall qualify for the Tenant Improvement
Allowance for the Premises on the Beneficial Occupancy Date. The Tenant
Improvement Allowance shall be distributed as follows: (i) twenty-five percent
(25%) of the total allowance applicable to the Premises on the thirty-first
(31st) day following the Beneficial Occupancy Date; (ii) twenty-five percent
(25%) of the total allowance applicable to the Premises on the sixty-first
(61st) day following the Beneficial Occupancy Date; (iii) twenty-five percent
(25%) of the total allowance applicable to the Premises on the ninety-first
(91st) day following the Beneficial Occupancy Date; (iv) fifteen percent (15%)
of the total allowance applicable to the Premises on the one hundred
twenty-first (121st) day following the Beneficial Occupancy Date and (v) ten
percent (10%) of the total allowance applicable to the Premises within thirty
(30) days after the satisfaction of the requirements set forth in Section
7.6(b). At the time Tenant makes any payments to any contractors performing
Tenant's Work, Tenant shall obtain from such contractors and any subcontractors
of such contractors, mechanic's lien waivers and/or releases of lien
satisfactory to Landlord and shall submit same to Landlord within thirty (30)
days of receipt.
(b) Upon final completion of the Tenant's Work
with respect to the Premises and Tenant's occupancy of the Premises for the
Permitted Use, Landlord shall not advance the final portion of the Tenant
Improvement Allowance applicable to the Premises (i.e. the 10% set forth in
clause (v) of Section 7.6(a)) until Tenant submits a final application for
payment ("APPLICATION FOR PAYMENT"), in the form attached hereto as EXHIBIT G
along with (1) final releases of lien or final waiver of liens, (2) delivery of
building department filing documents, permits and approvals and other evidence
reasonably satisfactory to Landlord that the work is in compliance with all
laws, orders and regulations of all Federal, State, municipal and local
governments, departments, commissions and boards and the orders, rules and
regulations of the National Board of Fire Underwriters, and (3) the completion
of an inspection by Landlord confirming that the work set forth in Tenant's
Plans has been completed in accordance with Tenant's Plans and strictly
accordance with the provisions of this Lease. In the event of any dispute
between a contractor and Tenant that does not allow Tenant to deliver to
Landlord final lien releases or waivers of lien (or such other documentation
required by Landlord for such final payment) and the amount in dispute is less
than $50,000, Landlord will advance to Tenant the remaining portion of the
Tenant Improvement Allowance. Notwithstanding the foregoing, at the option of
Tenant, Landlord shall, in lieu of advancing to Tenant any remaining portion of
the Tenant Improvement Allowance, credit this unadvanced portion of the Tenant
Improvement Allowance to the next payments of Base Rent or Additional Rent due
under this Lease. Tenant may request, and Landlord agrees to make, advances of
the Tenant Improvement Allowance directly to contractors upon receipt of
specific directions from Tenant.
7.7 Any dispute arising out of or in connection with
this Article shall be determined by arbitration in accordance with the
provisions of Article 34.
8. LANDLORD'S OBLIGATIONS - UTILITIES AND SERVICES.
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8.1 Landlord shall furnish the following services
commencing on the Term Commencement Date while Tenant is occupying the Premises:
(a) Cleaning services for the Premises
(including bathrooms), including the exterior and interior of the windows
thereof (subject to Tenant maintaining unrestricted access to such windows), but
excusing any portions of the Premises used for the storage, preparation, service
or consumption of food or beverages (other than pantries normally found in
office uses), substantially in accordance with the cleaning specifications
annexed hereto as EXHIBIT H;
(b) Sewer service and an adequate quantity of
hot and cold water for cleaning and drinking purposes supplied to the lavatories
and pantries on the floors on which the Premises are located;
(c) Maintenance service to the Building and
the Land, so that the same shall be kept in good order and repair and shall be
kept reasonably free from debris, snow and ice;
(d) Passenger elevator service to the Premises
during Business Hours consistent with the first class standards of the Building
(Landlord has advised Tenant that Landlord is remodeling the elevators and at
various times more than one elevator may be out of service to complete such
remodeling and same shall not constitute a breach of this Lease), provided
during non-Business Hours, at least one (1) elevator shall serve the Premises
and Landlord shall provide at least one (1) passenger elevator which shall
connect all of the floors of the Premises;
(e) Freight elevator service in common with
other tenants of the Building during Business Hours and available upon request
during non-Business Hours in accordance with the provisions of Sections 8.5 and
7.4(b);
(f) With regard to the portions of the
Premises located above floor 28, through the Building heating, air conditioning
and ventilation system, for distribution through Tenant's duct work system,
heated, conditioned and outside air, at such temperatures and pressures and in
such volumes and velocities as are set forth in EXHIBIT I annexed hereto
(collectively, "HVAC") during Business Hours. Tenant acknowledges that
Landlord's sole obligation hereunder shall be to bring air to the air
distribution source(s) for the portions of the Premises located above floor 28.
On the portion of the Premises located below floor 28, Landlord shall supply
condenser water ("CONDENSER WATER") for use in the HVAC equipment installed on
such floor. Landlord shall supply to a single point at the perimeter of the
Premises located above floor 28 (with Tenant responsible
34
for all distribution and piping within such portion of the Premises) Condenser
Water with an aggregate demand limited to 70 tons, 24 hours a day, 7 days a
week. Tenant shall pay Landlord for the Condenser Water, as Additional Rent, an
amount equal to the then Building standard rate charged to other tenants in the
Building for condenser water supplied by landlord. As of the date hereof,
Landlord charges $500.00 per ton of Condenser Water consumed by Tenant in such
portion of the Premises. Landlord shall furnish a xxxx, at Landlord's option,
monthly or once a year to Tenant for such Condenser Water, and Tenant shall pay
such xxxx within thirty (30) days after demand therefor. Tenant shall be
responsible for the distribution of such air throughout the Premises by means of
the duct work system installed by Tenant as part of Tenant's Work. Landlord and
Tenant further agree to operate the HVAC equipment in accordance with its design
criteria unless a recognized energy conservation law, program, guideline,
regulation or recommendation promulgated by any Governmental Authority shall
provide for any reduction in operations below such design criteria in which case
such HVAC equipment shall be operated so as to provide reduced service in
accordance with such law, program, guideline, regulation or recommendation.
Landlord represents that, to its knowledge, the Building currently is in
compliance with applicable Legal Requirements relating to air quality and
Landlord shall be responsible during the Term for the compliance by the Building
with applicable Legal Requirements relating to air quality. Notwithstanding the
foregoing, however, Landlord shall not be responsible for compliance with Legal
Requirements relating to air quality to the extent such compliance requires
modifications to any Alterations installed by Tenant (including, without
limitation, any installations, air conditioning systems or duct work installed
by Tenant as part of Tenant's Work), nor shall Landlord be responsible therefor
to the extent that Tenant's use, manner of use of the Premises or the actions or
inactions of Tenant or its agents, representatives or contractors causes the
Premises or the Building not be in compliance with applicable Legal Requirements
relating to air quality;
(g) Lighting and electricity to the Common
Areas; and
(h) A security program with respect to ingress
to and egress from the Building. Notwithstanding anything to the contrary
herein, during the period of construction of Landlord's Work and Tenant's Work
and until Tenant occupies the Premises for the conduct of Tenant's business,
Landlord shall only be required to provide minimal security in order to protect
the Premises from damage and vandalism. Landlord shall have no obligation to
provide additional security to protect Tenant's property and installations and
Tenant shall procure from Landlord, and Landlord shall supply to Tenant, any
additional security Tenant deems necessary or appropriate at Tenant's sole cost
and expense. Tenant agrees to pay Landlord, as Additional Rent, for such
security within thirty (30) days after Tenant's receipt of an invoice therefore.
8.2 In addition to the services to be furnished or
caused to be furnished by Landlord in accordance with Section 8.1, Landlord, at
Tenant's expense, shall furnish or cause to be furnished the following
additional services while Tenant is occupying the Premises:
(a) Cleaning services for the kitchen (other
than pantries normally found in office uses), cafeteria and other areas not
customarily found in office uses located in the Premises therein in accordance
with the cleaning specifications annexed hereto as EXHIBIT H;
(b) Removal of trash and other debris from
kitchen (other than pantries normally found in office uses), cafeteria and other
areas not customarily found in office uses of the Premises at the end of
Business Hours;
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(c) Refrigerated storage of such kitchen and
cafeteria trash and debris. Tenant covenants all kitchen or cafeteria trash and
debris collected during Business Hours shall be stored by Tenant within the
Premises in refrigerated storage areas;
(d) Extermination service administered to any
kitchen, cafeteria or special food preparation areas on a regular basis, as
reasonably determined by Landlord, for rodent and pest control or, in the event
of infestation caused by or resulting from such areas, as the same may be
required, as reasonably determined by Landlord, to eliminate such infestation;
(e) Relamping of lighting fixtures within the
Premises and replacement of bulbs and ballasts; and
(f) Installation and/or replacement of locks
within the Premises and the supplying of keys therefor.
Landlord shall provide Tenant with the appropriate contracts or
other documentation evidencing the cost to Landlord of providing the services
described in sub-paragraphs (a), (b), (d) and (e) above. Tenant shall be billed
for the services described in subparagraph (c) based upon a cubic foot cost to
be reasonably determined by Landlord. Tenant shall be billed for the services
described in sub-paragraphs (a), (b), and (c) above based on invoices delivered
by Landlord to Tenant on not less than a monthly basis and Tenant shall pay, as
Additional Rent, the amount stated in such invoices within thirty (30) days
after its receipt thereof. All services supplied by Landlord shall be reasonably
and competitively priced, which prices shall be competitive with the cost of
similar services supplied to tenants in similar buildings in the general
vicinity of the Building. Notwithstanding anything to the contrary herein,
Landlord shall have no obligation to provide the services described in
sub-paragraphs (d), (e) and (f) above unless Landlord receives a request, either
written or oral, for such service or services from Tenant; provided, however, in
the event the Premises contain any kitchen, cafeteria or special food
preparation areas, Landlord may require Tenant to retain Landlord to provide the
services contained in sub-paragraph (d) above. In the event Landlord receives
such request, either written or oral, from Tenant and provides such service or
services, Tenant shall pay, as Additional Rent, for Landlord's furnishing of
such service or services within thirty (30) days after its receipt of an invoice
therefor.
8.3 Business Hours shall be from 8 a.m. to 6 p.m.
Monday through Friday, in all cases, excluding Holidays. "HOLIDAYS" shall mean
those days designated from time to time as holidays by the union holiday
schedule covering the majority of employees at the Building, those days
designated from time to time as holidays pursuant to the laws of the State of
New York. Except as otherwise expressly provided herein, Landlord shall have no
obligation to provide any services on Sundays.
8.4 Landlord shall provide Tenant and its contractors
and employees access to the Premises, and the services referred to in Section
8.1(b), Section 8.1(d), Section 8.1(f), Section 8.1(g) and Section 8.1(h), 24
hours a day, 365 (or 366) days a year.
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8.5 If Tenant shall desire HVAC or freight elevator
service at any time other than during Business Hours, such service or services
shall be supplied to Tenant only at the request of Tenant, which request shall
be made, with respect to HVAC, not later than 2:00 p.m. on the business day for
which such service is requested or if such service is requested for Saturday,
Sunday or a Holiday, by not later than 2:00 p.m. on the preceding business day,
and with respect to freight elevator service, not later than 6:00 P.M. on the
business day preceding such required extra usage (or before 12:00 P.M. on Friday
for weekend overtime service), and Tenant shall pay to Landlord, as Additional
Rent, the charges set forth below for the furnishing of such service or services
within thirty (30) days after receipt of an invoice therefor. If Tenant gives
such Notice after 2:00 P.M., Landlord shall endeavor (at no additional cost to
Landlord) to provide such non-Business Hours services to Tenant. As of the date
of this Lease, the hourly charge for freight elevator service during
non-Business Hours is $52.50. Non-Business Hours air-conditioning for floors
above 28 shall be billed to Tenant on a per zone basis at $100 per hour. The
cost for supplying heat to a floor during non-Business Hours shall be $50 per
hour. Each of the foregoing charges shall on the first day of the fourth year
following the initial three (3) year period, and the first day of every fourth
year thereafter through the Term of this Lease, be adjusted by Landlord by the
percentage increase in the Index between the month in which the Term
Commencement Date occurs and the calendar month immediately preceding the
commencement of each such fourth year. If any of the other tenants of the
Building shall request and receive non-Business Hours heating, air conditioning
and ventilation service, pursuant to Landlord's obligation to provide the same
to them, at the same time and utilizing the same system as Tenant, only that
equitably prorated portion of the charge made by Landlord for such service shall
be allocated to Tenant.
8.6 (a) Electric current will be supplied to the
Premises by Landlord so long as legally permissible in the Building to service
the Premises for the uses herein permitted and Tenant covenants and agrees to
purchase the same from Landlord and to pay for the same as Additional Rent.
Tenant's electrical demand and consumption in the Premises shall be determined
by a meter(s) or submeter(s) installed for the purpose of measuring the same and
shall measure the electric current supplied to the Premises only. There shall be
at least one (1) meter per floor for Tenant's use, which meter shall be
installed by Landlord at Landlord's sole cost and expense. If Tenant requires
additional meters, Tenant shall install same at its cost. The charge to Tenant
for such supply of electric current to the Premises shall be the sum of: (i) the
amount obtained by applying to Tenant's measured electrical consumption an
amount equal to the total of Landlord's actual electric cost for each kilowatt
hour usage for the Building for the period in question divided by the total
number of kilowatt hours of electricity consumed in the Building for such
period, (ii) the amount obtained by applying to Tenant's measured electrical
demand the actual public utility rate schedule then applicable to Landlord for
the purchase of electricity for the Building, (iii) any surcharges or charges
incurred or taxes payable by Landlord in connection with such electricity
consumption or increase or decrease thereof by reason of fuel adjustment or any
substitutions for the public utility electric rates then applicable to Landlord
or additions thereto and (iv) a service charge equal to five percent (5%) of the
amounts set forth in clauses (i), (ii) and (iii) of this Section 8.6(a). All
such additional meters or submeters or other related equipment shall be
installed by Landlord at Tenant's sole cost and expense, and Tenant shall pay
such costs and expenses as Additional Rent within thirty (30) days after receipt
of an invoice therefor. Bills shall be rendered monthly,
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commencing with the first full month following the Term Commencement Date, the
amounts computed from such meter readings shall be Additional Rent and shall be
due and payable, without set-off or deduction, thirty (30) days after the
rendition of such bills. If any tax is imposed upon Landlord's receipts for the
sale or resale of electrical energy to Tenant, the pro rata share allocable to
the electrical energy service received by Tenant shall be passed on to Tenant to
the extent permitted by law. In the event any portion of the Premises cannot be
metered, Tenant's consumption of electricity shall be determined based upon an
electrical survey as more particularly described in Section 8.6(b).
(b) Only if required by any Legal Requirement
and it is not possible to supply electricity by metering as set forth in Section
8.6(a), electricity may be provided to Tenant on a so-called "rent inclusion"
basis. In such event, Tenant agrees that Section 8.6(a) shall no longer be
applicable, and the Base Rent shall be increased to compensate Landlord for
supplying Tenant with electric current as an additional service as provided in
this Section 8.6(b). In the event that Landlord shall provide electricity on a
rent inclusion basis, Tenant agrees that the Base Rent shall be increased to
compensate Landlord for supplying Tenant with electric current in the Premises
as an additional service based upon the submetered charges for Tenant's usage
for the immediately preceding twelve (12) month period (or if less than twelve
(12) months of the Term shall have elapsed as of the Rent Inclusion Date (as
defined below), such shorter period extrapolated to an annual amount) commencing
on the date on which Landlord is no longer permitted to supply electricity to
the Premises on a submetered basis (such date being herein referred to as the
"RENT INCLUSION DATE") and continuing until such time as such sum may be
increased as hereinafter provided. Landlord will furnish electricity to Tenant
through presently installed electrical facilities for Tenant's use of such
lighting, electrical appliances, air conditioning systems and equipment as
presently exist or as Tenant may be permitted to install in the Premises (Tenant
shall be permitted without Landlord's prior approval or consent to install
equipment ordinarily and customarily found in an office setting), subject to
Landlord's consent which will not be unreasonably withheld or delayed, except as
expressly otherwise provided in this Article. Tenant agrees that an electrical
engineer or utility consultant, selected by Landlord, may, from time to time
during the Term (but not more often than annually unless Tenant adds equipment
significantly beyond the immediately prior load requirements or Tenant changes
the use of the applicable portion of the Premises), make a survey of the
electric lighting and power load by metering or otherwise to determine Tenant's
average monthly electrical energy consumption in the Premises ("TENANT'S
ELECTRIC CONSUMPTION") based upon (i) the connected load rating of each item
consuming electric energy, (ii) Tenant's usage which shall be determined by
multiplying the connected load rating of each item by the hours of usage as
determined by the consultant, and (iii) the actual Electric Rates charged to
Landlord by Consolidated Edison Company of New York, Inc. or any successor
thereto applicable to Landlord, inclusive of all surcharges or taxes thereon
including any sales tax as a result of the resale of such energy to Tenant. The
findings of such engineers or consultant as to the proper Base Rent adjustment
based on Tenant's Electric Consumption shall be conclusive and binding upon the
parties and shall be retroactively applied to the period after the date of the
survey and any adjustment in Base Rent shall be included in the Base Rent
payable monthly on the first day of each and every month in advance for each
month from the Rent Inclusion Date (except that if the amount of such fixed rent
increase shall not have been determined on the Rent Inclusion Date, then, upon
such subsequent determination, Tenant shall pay for the period from the Rent
38
Inclusion Date to the date of such determination, the uncollected amount of such
increase in Base Rent).
(c) If the Electric Rates on which the initial
determination of said consultant shall be increased or decreased, then the sum
included in Base Rent by reason of this Section shall be increased or decreased
by the same percentage as such change in the Electric Rates, retroactive to the
date of such increase or decrease in such Electric Rates, and the amount payable
from the effective date of such increase to the last day of the month in which
Tenant shall be billed therefor shall be paid within thirty (30) days after
Landlord furnishes Tenant with a statement thereof.
(d) The term "ELECTRIC RATES" shall be deemed
to mean the rates at which Landlord purchases electrical energy from the public
utility supplying electrical service to the Building, including any surcharges
or charges incurred or taxes payable by Landlord in connection therewith or in
connection with the furnishing of electrical energy by Landlord on a
rent-inclusion basis or increase or decrease thereof by reason of fuel
adjustment or any substitutions for such Electric Rates or otherwise.
(e) In the event Tenant shall dispute any
findings under this Section of the engineer or consultant designated by
Landlord, Tenant may, within ninety (90) days after receiving Notice of such
findings, designate by Notice to Landlord an independent engineer or utility
consultant to make, at Tenant's sole cost and expense, another determination of
the increased average monthly electrical consumption or the value to Tenant of
the potential additional energy to be made available to Tenant, as the case may
be. If the electrical engineer or utility consultant selected by Tenant shall
determine that such increased consumption or value, as the case may be, of such
electrical energy is less than as determined by Landlord's engineer or
consultant and the two engineers or consultants are unable to adjust such
difference within twenty (20) days after the determination made by Tenant's
engineer or consultant is delivered to Landlord, the dispute shall be determined
by arbitration in accordance with the provisions of Article 34 of this Lease.
Pending a final determination pursuant to such arbitration however, Tenant shall
pay to Landlord for such electrical energy based on the determination of
Landlord's engineer or consultants; and if it is determined that Tenant has
overpaid, Landlord shall reimburse Tenant for any overpayment at the conclusion
of such arbitration. If Tenant shall not dispute the findings as provided in
this Section, the determination by Landlord's engineer or consultants shall be
deemed final and conclusive.
(f) In the event that electricity is included
on a rent inclusion basis pursuant to Section 8.6(b) and Landlord elects to
purchase capital equipment or make other capital expenditures to reduce
Landlord's cost of electricity, Landlord shall receive the full benefit of such
capital expenditure, and Tenant shall continue to pay Base Rent for electricity,
and such Base Rent shall be calculated as hereinabove described, without regard
to the fact that Landlord has reduced its cost of electricity by virtue of such
capital expenditure, unless such capital expenditure is included in Operating
Expenses and Tenant pays Landlord for Tenant's Proportionate Share of such
capital expenditure pursuant to Section 5.3 hereof, in which event the Base Rent
allocable to the furnishing of electricity by Landlord on a rent inclusion basis
shall be equitably decreased to reflect such reduced cost of electricity to
Landlord.
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(g) Tenant's use of electrical energy in the
Premises shall never exceed that portion of the capacity allocable to Tenant of
(i) the existing feeders to the Building or the electricity available to Tenant
through then existing risers or wiring installations to the Premises or (ii) any
of the electrical conductors, machinery and equipment in or otherwise serving
the Premises (in any event, giving due consideration to the needs of existing
and potential tenants using the same risers, wiring installations or other
equipment, as well as to Landlord's electrical needs in connection with the
operating of the Building and the provision of emergency services). Landlord
represents that such facilities shall be capable of providing up to six (6)
xxxxx per usable square foot (connected load) of electricity to the Premises and
shall be available at the electrical closet on the applicable floor. No
additional riser or risers or other equipment to supply Tenant's electrical
requirements shall be installed without Landlord's prior approval, which may be
withheld in Landlord's sole and absolute discretion. Only conduit complying with
Legal Requirements will be allowed. In order to insure that the electrical
capacity of the Building facilities is not exceeded and to avert possible
adverse effect upon the Building's electrical system, Tenant shall not, without
the prior consent of Landlord, make or perform or permit any alteration to
wiring installations or other electrical facilities in or serving the Premises.
Any additional risers, feeders, or other equipment proper or necessary to supply
Tenant's electrical requirements, upon written request of Tenant, will be
installed by Landlord at the sole cost and expense of Tenant if, in Landlord's
reasonable judgment, such increase in capacity will not interfere with
Landlord's present or anticipated future electrical needs with respect to the
Building and/or existing or future tenants of the Building or cause permanent
damage or injury to the Building or entail excessive or unreasonable alterations
or interfere with or disturb other tenants. Landlord, its agents and engineers
and consultants may survey the electrical fixtures, appliances and equipment in
the Premises and Tenant's use of electrical energy therein from time to time to
determine whether Tenant is complying with its obligations under this Section.
If Tenant is in substantial compliance with its obligations under this Lease,
the cost of such survey shall be borne by Landlord. If Tenant is not in
substantial compliance with its obligations, the cost of such surveys shall be
made at the sole cost and expense of Tenant. Each increase in the Base Rent
under this Section shall be effective on the date such additional electrical
energy is made available to Tenant.
(h) Landlord reserves the right to terminate
the furnishing of electrical energy to Tenant at any time upon ninety (90) days'
prior Notice to Tenant unless such Notice is not possible under the
circumstances, in which event Landlord will give Tenant such reasonable notice
as is possible and only if Landlord also shall terminate or have terminated the
furnishing of electrical energy to at least seventy-five (75%) percent of the
office tenants of the Building and if such termination required by any Legal
Requirement. If Landlord shall so discontinue the furnishing of electrical
energy, (i) Tenant shall arrange to obtain electrical energy directly from the
public utility company furnishing electrical energy to the Building, (ii)
Landlord shall permit the existing feeders, risers, wiring and other electrical
facilities servicing the Premises to be used by Tenant for such purpose to the
extent that they are available, suitable and legally permissible, (iii) from and
after the effective date of such discontinuance, Landlord shall not be obligated
to furnish electrical energy to Tenant and, if electricity is then being
provided on a rent-inclusion basis, the Base Rent payable under this Lease shall
be reduced to the amount which would have been then payable as Base Rent, as of
such date but for the adjustments for electrical energy
40
under Section 8.6(b) above, (iv) this Lease shall otherwise remain in full force
and effect and such discontinuance shall be without liability of Landlord to
Tenant, and (v) if Landlord shall discontinue the furnishing of electrical
energy as hereinabove provided Landlord shall, at Landlord's expense, install at
locations in the Building selected by Landlord and maintain any and all
necessary electrical meter equipment, panel boards, feeders, risers, wiring and
other conductors and equipment which may be required to obtain electrical energy
directly from the public utility supplying the same.
(i) Except as set forth in Section 18.2,
Landlord shall incur no liability whatsoever and it shall not constitute a
termination of this Lease or an eviction (constructive or otherwise) hereunder
should electricity or any other utility become unavailable from the public
utility company furnishing electrical energy to the Building, or any public
authority or any other person, firm or corporation, including Landlord,
supplying such utility or due to Force Majeure.
8.7 Landlord shall cause the Building to be managed as
a Class A office building, consistent with the standards of other Class A office
buildings similar in size and quality in New York, New York.
8.8 Landlord agrees that any service which Landlord
performs under this Lease and which Tenant is obligated to reimburse Landlord
therefor shall be charged on a reasonable and competitive basis and shall not
exceed the amount charged in similar Class A Buildings for similar services.
9. USE.
9.1 The Premises shall be used solely for the Permitted
Use set forth in the Fundamental Lease Provisions and for no other purposes.
Tenant shall not offer, sell or market any real estate services or real estate
related services to other tenants in the Building other than to Related
Corporations, which services are in competition with services offered by
Landlord to tenants in the Building and Tenant shall not offer telecommunication
services utilizing the Building, Building Equipment or any conduits, or shafts,
whether located within the Premises or outside the Premises, to other tenants in
the Building.
9.2 Tenant shall not use, occupy, suffer or permit the
Premises, the Building or any part of either to be used in any manner, or suffer
or permit anything to be brought into or kept therein, which would (a) make
unobtainable at standard rates from any reputable insurance company authorized
to do business in the State of New York, any fire insurance with extended
coverage or liability, elevator, boiler, umbrella or other insurance, (b) cause,
or be likely to cause, injury or damage to the Building or to any equipment
contained therein or on the Premises, (c) constitute a public or private
nuisance, (d) violate any certificate of occupancy for the Building, provided,
however, that Landlord shall not modify or alter such certificate to conflict
with Tenant's Permitted Use, (e) emit objectionable noise, fumes, vibrations,
heat, chilled air, vapors or odors into or from the Building, except through
exhausts vented to the outside of the Building at locations approved by
Landlord, or the equipment contained therein, (f) impair or interfere with any
of the Building services, including the furnishing of electrical energy, or the
proper and economical cleaning, heating, ventilating, air conditioning or other
services of the Building,
41
the equipment contained therein or the Premises or (g) violate any Legal
Requirement or Insurance Requirement. The restrictions imposed by this Section,
and the application thereof, shall not be limited or modified by the terms of
any other provision of this Lease.
9.3 Tenant or Tenant's assignees, subtenants,
employees, agents, contractors, invitees or licensees shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or
injure them or use or allow the Premises to be used for any purpose which is
unlawful, nor shall Tenant cause, maintain or permit any nuisance in, on or
about the Premises.
9.4 Landlord represents and warrants that the
certificate of occupancy for the Building, a true and correct copy of which is
attached hereto as EXHIBIT J, permits the Permitted Use.
9.5 Tenant has requested the right to install a kitchen
with the Premises at a location to be determined. Landlord shall not
unreasonably withhold or delay its consent to an installation of a kitchen
subject to such reasonable restrictions as Landlord may impose, including, but
not limited to, Tenant, at its sole cost and expense, obtaining all permits and
approvals, determination of adequate exhaust through an acceptable route through
the Building, determination of adequate utilities and Tenant shall be
responsible for any unusual or significant increase in the use of utilities and
compliance with all other provisions of this Lease. If Tenant does install a
kitchen, Tenant shall retain Landlord to provide the services listed in Section
8.2(a), (b), (c) and (d).
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10. COMPLIANCE WITH LAWS.
10.1 (a) Tenant, at its sole cost and expense, shall
comply with all requirements of Governmental Authorities ("LEGAL REQUIREMENTS")
and all requirements of insurance companies providing coverage for the Building
and/or the Premises or recommendations of the National Board of Fire
Underwriters ("INSURANCE REQUIREMENTS") and give Landlord prompt notice of any
lack of compliance, except that Tenant shall have no obligation to pay the costs
of any structural alteration of the Premises or the Building required solely by
reason of a Permitted Use unless and to the extent said alteration (i) is
necessitated by a condition which has been otherwise created by, or at the
instance of, Tenant, any subtenants or any other occupant of the Premises,
including, but not limited to, the installation of Tenant's Work, (ii) is
attributable to the use, other than a Permitted Use, to which Tenant, any
subtenants or any other occupant of the Premises puts the Premises or any part
thereof, or Tenant's, any subtenant's or any other occupant's of the Premises
manner of use of the Premises, (iii) is required by reason of a breach of
Tenant's obligations hereunder, (iv) is occasioned, in whole or in part, by any
act, omission or negligence of Tenant or any person claiming by, through or
under Tenant, or any of their assignees, subtenants, employees, agents,
contractors, invitees or licensees, or (v) with respect to the Premises only, is
necessitated by reason of the failure of Tenant or the Tenant's Plans to comply
with any Legal Requirement, including, without limitation, the Americans with
Disabilities Act of 1990. Any such structural alteration of the Premises or the
Building required as a result of clause (i), (ii), (iii), (iv) or (v) of the
immediately preceding sentence shall be performed by Landlord, at Tenant's
expense, and Tenant shall pay for the same, as Additional Rent, within thirty
(30) days of its receipt of an invoice therefor. Tenant shall pay all costs,
expenses, fines, penalties and damages which may be imposed upon Landlord and/or
any mortgagee of the Land and/or the Building by reason of or arising out of
Tenant's failure fully and promptly to comply with the provisions of this
Section.
(b) Landlord, at its sole cost and expense, shall
comply with all Legal Requirements and all Insurance Requirements except to the
extent Tenant is obligated to comply with same pursuant to Section 10.1(a), and
Landlord shall give Tenant prompt Notice of any lack of compliance by Tenant.
Landlord shall have no obligation to comply with Legal Requirements or Insurance
Requirements regarding Tenant's Work. This Section shall not in any manner
relieve Tenant from its obligations to comply with Legal Requirements or
Insurance Requirement as set forth in Section 10.1(a) or prevent Landlord from
seeking reimbursement for such compliance to the extent Tenant is obligated to
pay same.
10.2 Tenant, at its sole cost and expense, after Notice
to Landlord, by appropriate proceedings prosecuted diligently and in good faith,
may contest the validity or applicability of any Legal Requirement or Insurance
Requirement, provided that: (a) Landlord shall not be subject to civil fines,
quasi-criminal violations, criminal penalty or prosecution for a crime, nor
shall the Building or the Land, or any part thereof, be subject to being
condemned or vacated, by reason of non-compliance or otherwise by reason of such
contest; (b) such non-compliance or contest shall not constitute or result in
any violation of the terms of any mortgage encumbering the Land and/or the
Building, or if any such mortgage shall condition such non-compliance or contest
upon the taking of action or furnishing of security by Landlord or affirmative
title insurance coverage preserving the
43
priority of such mortgage notwithstanding the determination of such
non-compliance or contest, such action shall be taken and such security or such
affirmative title insurance coverage shall be furnished at the expense of
Tenant; (c) such non-compliance or contest shall not result in the termination,
suspension, cancellation, lapse or waiver of any insurance policies or coverages
maintained by Landlord or required to be maintained by Tenant under this Lease;
(d) such non-compliance or contest shall not result in the termination,
suspension, cancellation, lapse or waiver of any certificate of occupancy for
the Building or any portion thereof; and (e) Tenant shall keep Landlord
regularly advised in writing as to the status of such proceedings and shall
provide Landlord with copies of all submissions and documents delivered or
received by Tenant in connection therewith.
10.3 Any improvements or Alterations made or work
performed by or on behalf of Tenant or any person claiming through or under
Tenant pursuant to this Article shall be made in conformity with and subject to
the provisions of this Lease, including, without limitation, Article 12.
11. REPAIRS.
11.1 Tenant, at its sole cost and expense, shall take
good care of, and make all interior non-structural repairs to, the Premises, all
repairs to Tenant's equipment, and all repairs to the HVAC system(s) installed
by Tenant. Tenant shall make and be responsible for (or, at Landlord's election,
Landlord shall make at Tenant's expense) all repairs, inside the Premises,
ordinary or extraordinary, as and when needed to preserve the Premises in
working order and condition and to keep the Premises in compliance with all
Legal Requirements and Insurance Requirements and to prevent any disruption of,
or adverse effect on, the Building, the Building systems, the quiet enjoyment of
other tenants or to prevent any damage to the personal property of other
tenants, except that Tenant shall not be responsible for the costs of any
structural repairs or repairs to Building systems unless the need therefor
arises out of (i) the performance of or existence of improvements made by
Tenant, any subtenants or any other occupant of the Premises or their
contractors, (ii) the installation, use or operation of equipment therein by
Tenant, any subtenant or any other occupant of the Premises, (iii) the moving of
any such equipment in or out of the Building or the Premises, (iv) the acts,
omissions, negligence or misuse of or by Tenant, any subtenants or any of its or
their employees, agents, contractors, occupants, licensees or invitees or their
use or occupancy of the Premises (except fire or other casualty caused by
Tenant's negligence, if the fire or other casualty insurance policies insuring
Landlord are not invalidated and the rights of Landlord are not adversely
affected by this provision), or (v) Legal Requirements or Insurance Requirements
to the extent set forth in Section 10.1(a) or as otherwise provided in Section
11.1. Any such structural alteration of the Premises required as a result of
clause (i), (ii), (iii), (iv) or (v) of the immediately preceding sentence shall
be performed by Landlord, at Tenant's expense, and Tenant shall pay for the
same, as Additional Rent, within thirty (30) days after its receipt of an
invoice therefor. Tenant, at its sole cost and expense, shall promptly replace
or repair scratched, damaged or broken doors and glass which are visible from
outside the Premises, which damage and repair is caused solely by any act,
omission, negligence or misuse by Tenant or any of its subtenants, or any of its
or their agents, employees, contractors, occupants, licensees or invitees and
Tenant shall be responsible for all repairs of damaged wall and floor coverings,
which are visible from outside the Premises (including, without limitation,
where Tenant shall lease an entire
44
floor, the walls, elevator doors and floor coverings in the elevator lobby and
the walls, wall coverings, title and fixtures in the lavatories) where such
damage is caused solely by any act, omission, negligence or misuse or by Tenant
or any of its subtenants, or any of its or their agents, employees, contractors,
occupants, licensees or invitees. If any damage is caused by parties other than
Tenant or any of its subtenants, or any of its or their agents, employees,
contractors, occupants, licensees or invitees, Landlord, at its sole cost and
expense, shall be responsible for repairing same. Any broken window glass caused
solely by any act, omission, negligence or misuse or by Tenant or any of its
subtenants, or any of its or their agents, employees, contractors, occupants,
licensees or invitees shall be repaired by Landlord at Tenant's expense, and
Tenant shall pay for the same, as Additional Rent, within thirty (30) days after
its receipt of an invoice therefor. Tenant, promptly and at its sole cost and
expense, shall make all non-structural repairs in or to the Premises for which
it is responsible. In the event Tenant fails to promptly make any repair or
alteration required by Tenant to be performed under this Section 11.1, Landlord,
at Tenant's sole cost and expense, shall have the right to make such repairs or
alterations and Tenant shall pay for such repairs or alterations, as Additional
Rent, within thirty (30) days after its receipt of an invoice therefor. All
repairs made by or on behalf of Tenant shall be made in conformity with the
provisions of Article 12, including the use of Approved Contractors, and shall
be at least equal to the standards found in Class A office buildings similar in
size and quality to the Building in New York, New York.
11.2 (a) Landlord shall make all necessary repairs to
the roof and all structural repairs to the Building. Any such structural or roof
repairs occasioned by the acts, omissions, negligence or misuse of or by Tenant
or any of its subtenants or any of its or their employees, agents, contractors,
occupants, licensees or invitees or their use or occupancy of the Premises shall
be made by Landlord at Tenant's expense. Landlord's repair obligations under
this Section 11.2(a) shall exclude, however, (i) repairs (A) of Tenant's
personal property or improvements made by or at the request of Tenant
(including, without limitation, any Alterations), (B) not occasioned by
Landlord's or Landlord's agents', employees' and on-site contractors' wrongful
acts or negligence or (C) caused by Tenant or any of its subtenants or any of
its or their employees, agents, contractors, occupants, licensees or invitees,
and (ii) repairs which Tenant is obligated to make pursuant to Section 11.1 and
the other provisions of this Lease. Landlord shall perform all maintenance of,
and promptly after the receipt of a Notice from Tenant of the necessity of
repair, make all necessary repairs to, the air distribution source(s) for the
Premises and any security and life safety systems or devices which may be
installed in the Premises by Landlord. Any repairs to the air distribution
source(s) for the Premises and any security and life safety systems or devices
occasioned by the acts or omissions or negligence of Tenant or any of its
subtenants, or, its or their employees, agents, contractors, licensees or
invitees, shall be performed by Landlord at Tenant's expense and Tenant shall
pay for the same, as Additional Rent, within thirty (30) days after its receipt
of an invoice therefor. Except for the foregoing repair obligation, Landlord
shall have no liability for the failure of any such Building system, provided,
however, Landlord shall during the term of this Lease maintain a Class E
life-safety system (or its equivalent) ("CLASS E LIFE SAFETY SYSTEM") in the
Building. Tenant shall be permitted to connect into such Class E Life-Safety
System. The cost of all repairs and maintenance by Landlord hereunder shall be
included in Operating Expenses except to the extent Landlord is reimbursed for
such cost by Tenant or as may be specifically excluded by Article 5 hereof.
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(b) Tenant, at its sole expense, shall operate
or cause to be operated in a first-class manner any air conditioning system and
any life safety or security system within the Premises to prevent any adverse
effect on any Building system(s). Any maintenance or repair of such air
conditioning system and any life safety or security system shall be performed by
Landlord upon Tenant's request and at Tenant's expense and Tenant shall pay for
such maintenance and repair, as Additional Rent, within thirty (30) days after
Tenant's receipt of an invoice therefor. Landlord reserves the right (i) to make
emergency repairs to any such Tenant's system without Notice, at Tenant's
expense, and (ii) to require changes to be made by Tenant to any such Tenant's
system if the operation thereof adversely affects, in Landlord's reasonable
opinion, the Building's systems. Tenant shall have no access to Building systems
unless Landlord shall consent thereto.
(c) Except as may be specifically set forth in
this Lease, no liability of Landlord to Tenant shall accrue under this Section
unless and until Tenant has given Notice to Landlord of the necessity of any
specific repair for which Landlord has agreed to be responsible under this
Lease, and a sufficient time has elapsed in which to make such repair with same
not being performed. In no event shall any failure by Landlord to make any such
repairs give to Tenant any right to make such repairs or withhold payment of
Base Rent or Additional Rent or to offset any costs incurred by Tenant against
any payment of Base Rent or Additional Rent.
12. ALTERATIONS BY TENANT.
12.1 Tenant shall not make or perform or permit the
making or performance of any alterations, additions, installations or
improvements to or removals from (collectively, "ALTERATIONS") the Premises
without Landlord's prior written consent, except that Tenant may, without
Landlord's prior consent, make or perform or permit the making or performance of
any non-structural Alteration that has a cost less than $100,000 a per
occurrence basis, which amount shall be adjusted each Lease Year by the
percentage increase in the Index between the month in which the Term
Commencement Date occurs and the calendar month immediately preceding the first
month of the applicable Lease Year. Landlord agrees not to unreasonably withhold
its consent to non-structural Alterations provided the same, in Landlord's
reasonable opinion, do not adversely affect Building systems (including, without
limitation, utility, life safety, electrical, plumbing and sewage lines and HVAC
systems) and will not result in any increase in Operating Expenses beyond a de
minimis degree (unless Tenant agrees in writing to pay for any such increase).
Tenant shall furnish Landlord with plans and specifications for any
non-structural Alterations prior to Tenant's commencement of the construction or
installation of the same. Any Structural Alterations requested by Tenant and
approved by Landlord shall be performed by Landlord, at Tenant's expense,
provided the same does not adversely affect beyond a de minimis degree Building
systems (including, without limitation, utility, life safety, electrical,
plumbing and sewage lines and HVAC systems) and will not result in any increase
in Operating Expenses (unless Tenant agrees in writing to pay for any such
increase). Tenant shall request in writing Landlord's written consent not less
than thirty (30) days prior to the proposed commencement of the construction of
such Structural Alterations, which written request shall be accompanied by plans
and specifications (prepared by a licensed structural engineer reasonably
acceptable to Landlord) for such Structural Alterations, which plans
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and specifications shall be subject to the approval of Landlord, which approval
shall not be unreasonably withheld or delayed. Landlord's granting of consent to
Structural Alterations may be conditioned on a requirement that Tenant (x)
deposit with Landlord, prior to Landlord's commencement of installation of any
such Structural Alterations, an amount not in excess of ten percent (10%) of the
cost of such installation, as determined by Landlord, and (y) on or prior to the
Expiration Date or earlier termination of this Lease, arrange with Landlord for
the removal, at Tenant's expense, of all vertical penetrations throughout the
Premises in excess of three (3) penetrations and the restoration of such
penetrations to their condition prior to the construction of such penetrations.
Tenant shall pay, as Additional Rent, the reasonable out-of-pocket costs for the
installation of such Structural Alteration, together with costs incurred by
Landlord in its review of the plans and specifications therefor, within thirty
(30) days after its receipt of an invoice therefor.
12.2 In the event that in connection with any
Alteration (whether structural or non-structural), installation of any wires,
conduits, pipes or mechanical equipment outside the Premises is required, Tenant
shall request Landlord's consent therefor not less than twenty (20) days prior
to the commencement of the construction of such Alterations, which consent shall
be accompanied by plans and specifications to be reviewed and approved by
Landlord showing the location of such wires, conduits, pipes or mechanical
equipment. Landlord's granting of consent to the installation of any such wires,
conduits, pipes or mechanical equipment may be conditioned on a requirement that
Tenant deposit with Landlord, prior to Landlord's commencement of such
installation, the cost, or a portion thereof, of such installation as determined
by Landlord. Without limiting the reasons for the granting or withholding of
consent by Landlord, Landlord may withhold such consent if in Landlord's
opinion, reasonably exercised, such installation will adversely affect Building
systems or will cause or create a hazardous condition or interfere with or
disturb other tenants following the completion of the Alteration. The
installation of such wires, conduits, pipes or mechanical equipment shall be
performed (a) by Landlord at Tenant's expense, and Tenant shall pay for the
same, as Additional Rent, along with costs incurred by Landlord in its review of
the plans and specifications therefor, within thirty (30) days after its receipt
of an invoice therefor; (b) in a manner consistent with the terms of this Lease
or those of another tenant's lease, to the extent such installation is outside
of the Premises and requires entry into another tenant's premises; (c) during
non-Business Hours and weekends, to the extent possible; (d) upon five (5) days
Notice to Landlord prior to such installation; (e) by Approved Contractors. Any
damage arising from such installation shall be repaired by Landlord at Tenant's
sole cost and expense.
12.3 All non-structural Alterations performed by or on
behalf of Tenant pursuant to Section 12.1 shall be done in a good and
workmanlike manner by the Approved Contractors and in accordance with all Legal
Requirements and Insurance Requirements. The Approved Contractors are hereby
deemed approved by Landlord for the performance of non-structural Alterations,
provided, however, that in the event Landlord determines that the employment of
any Approved Contractor, during the course of its prosecution of a
non-structural Alteration or any other work for or on behalf of Tenant
(including, without limitation, Tenant's Work), interferes with construction
performed by, or causes any conflict or labor dispute with, any other
contractor, subcontractor or other party engaged in the construction,
maintenance or operation of the Building, Tenant shall select another Approved
Contractor and shall cause the Approved Contractor being replaced to
47
promptly remove its equipment and personnel from the Building. Landlord hereby
expressly reserves the right to require the deletion of contractors and
subcontractors from the list of Approved Contractors for cause or if such
contractors or subcontractors are or become known to be a probable cause of a
labor dispute relating to the Building or the Premises or in the event any such
Approved Contractor changes its nature or method of operation to an extent which
is reasonably deemed by Landlord to be inconsistent with the then standards of
the Building. Subject to the two immediately preceding sentences, Tenant may add
contractors and subcontractors to the list of Approved Contractors with
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Tenant shall, at Tenant's expense, before making any
Alterations, obtain all permits, approvals and certificates required by any
Governmental Authority and (upon completion thereof) certificates of occupancy
and any other certificates of final approval thereof and shall promptly deliver
copies of such permits, approvals and certificates to Landlord. In addition,
Tenant or Tenant's contractors or sub-contractors shall provide Landlord, prior
to the commencement of any Alterations, with certificates evidencing appropriate
builder's risk, liability and worker's compensation insurance coverage during
the prosecution of any such Alterations in amounts set forth in the Building
Guidelines regarding Tenant's Work reasonably deemed appropriate by Landlord.
Landlord shall, upon Tenant's request and at Tenant's expense, furnish or
execute promptly any documents, information, consents or other materials which
are necessary or desirable in connection with Tenant's efforts to obtain any
license or permit for the making of any Alterations.
12.4 Any and all Alterations made by or on behalf of
Tenant in, to or upon the Premises as well as any fixtures installed on the
Premises by Tenant, shall, upon such installation, become the property of
Landlord and shall remain upon and be surrendered with the Premises except with
respect to vertical penetrations in excess of three (3) as set forth in Section
12.1. Nothing in this Section 12.4 shall be construed to give Landlord title to
or to prevent Tenant's removal of trade fixtures or moveable office furniture or
equipment, but upon removal of any of the same from the Premises, Tenant shall
immediately and at its expense repair any damage to the Building or the Premises
caused by such removal, except structural damage, which shall be repaired by
Landlord at Landlord's expense. All Alterations permitted or required to be
removed by Tenant remaining in the Premises after the end of the Term shall be
deemed abandoned and may, at the election of Landlord, either be retained as
Landlord's property or removed from the Premises by Landlord. If the Alterations
remaining after the end of the Term of the Lease are Alterations that Tenant was
required to remove, Landlord may remove such Alterations at Tenant's sole cost
and expense, which expense shall be fair and reasonable.
12.5 Tenant, at its expense and with reasonable
diligence and dispatch, shall procure the cancellation or discharge of all
notices of violation or lien arising from or in connection with any Alterations,
or any other work, labor, services or materials done for or supplied to Tenant,
or any person claiming by, through or under Tenant, which shall not be the
result of any act, omission or negligence of Landlord or its agents, servants,
employees or contractors. Tenant shall promptly provide Landlord with copies of
cancellation, discharge, release or satisfaction of any such notices of
violations or liens. Tenant shall have no authority to create any liens for
labor or materials on or against the Land, the Building or the Premises. Tenant
may contest the validity of any lien filed against Landlord, the Land, the
Building or the Premises for any work, labor, services or materials
48
claimed to have been performed for or furnished to Tenant or any person or
entity holding the Premises or any portion thereof by, through or under Tenant,
provided Tenant, prior to instituting such contest, (x) causes any such lien to
be discharged, bonded or removed by deposit or otherwise within thirty (30) days
after Tenant receives Notice from Landlord of the filing of the same, (y)
delivers to Landlord a copy of the bond or other evidence of the discharge or
removal and (z) if required by Landlord, delivers to Landlord an endorsement to
the title insurance coverage under the title insurance policies insuring
Landlord and its mortgagee evidencing the discharge, removal or bonding of such
lien, together with evidence of payment by Tenant for such coverage.
12.6 The performance of any Alterations, whether
structural or non-structural, by or on behalf of Tenant shall be subject to the
provisions of Section 18.3.
12.7 Tenant's obligations under this Article shall
survive the expiration or earlier
termination of this Lease.
13. INSPECTIONS.
13.1 Landlord may enter the Premises from time to time
upon twenty four (24) hours verbal notice to Tenant to inspect the Premises to
insure compliance with the provisions of this Lease. Landlord shall exercise its
rights under this Section in a reasonable manner as to not unreasonably
interfere with Tenant's occupancy of the Premises. In the event Landlord
reasonably determines that Tenant is not in compliance with any provision of
this Lease, Landlord shall give Tenant Notice of such noncompliance and Tenant
shall, at Tenant's sole cost and expense, promptly comply with the provisions of
this Lease. In the event Tenant fails to promptly comply with such Notice,
Landlord, at Tenant's sole cost and expense, shall have right, but not the
obligation, to take such steps as reasonably necessary to cause the Premises to
comply with this Lease and Tenant shall pay the costs of compliance, as
Additional Rent, within thirty (30) days after its receipt of a invoice
therefor.
13.2 In no event shall the failure of Landlord to take
steps to cause compliance give way to
any liability on the part of Landlord. Tenant shall be solely responsible for
any liability arising by reason of Tenant's failure to comply with the
provisions of this Lease.
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14. SIGNS.
14.1 Tenant (including Related Corporations), at
Tenant's sole cost and expense, shall have the right to install or erect such
interior signs as Tenant deems necessary or appropriate in or on the Premises
provided that the same are in keeping with first-class office signage and that
in locations where Tenant does not occupy a full floor within the Premises, such
signage shall comply with the provisions of EXHIBIT K annexed hereto. Tenant
(including Related Corporations) and any subtenants or assignees of Tenant shall
also have the right to install in the public corridor of the floors on which the
Premises are located, signs ("TENANT'S CORRIDOR SIGNS") bearing Tenant's name
and/or logo. The location, specifications and design of Tenant's Corridor Signs
in locations where Tenant does not occupy a full floor within the Premises shall
be subject to the prior written approval of Landlord, which approval shall not
be unreasonably withheld or delayed, and which shall be compatible with any
other tenant signs in the public corridor of the floors on which the Premises
are located.
14.2 Any signs installed or erected by or for Tenant
shall remain Tenant's property, shall be maintained by Tenant at Tenant's
expense and shall be removed by Tenant at the expiration or earlier termination
of this Lease, and Tenant shall repair any damage caused by such removal. Tenant
shall procure and pay for all governmental permits required for the installation
of any sign in or on the Premises and provide Landlord with copies of all such
permits promptly upon Tenant's receipt of the same.
14.3 Tenant's installation, maintenance and removal of
Tenant's Corridor Signs shall be subject to the provisions of Section 18.3.
14.4 Tenant has requested that Tenant be permitted to
place one (1) sign identifying Tenant and one (1) flag on the exterior of the
Building if Tenant leases for its exclusive use the Beaver Street entrance
pursuant to Section 38.2(e). Tenant shall be permitted to erect such sign and
flag provided Tenant obtains any approvals or permits required by any
Governmental Authority including the New York Landmarks Commission,
50
such sign and flag are keeping with the first-class nature of the building and
are of a size and a location reasonably acceptable to Landlord. This right shall
be personal to Tenant or a Related Corporation occupying substantially all of
the Premises and may not be exercised by any assignee or subtenant.
15. BUILDING DIRECTORY.
15.1 Landlord shall install and maintain a directory
board selected by Landlord in the ground floor lobby of the Building containing
the names of tenants. Landlord, at Landlord's option, may elect to install a
computerized directory in lieu of a directory board. In the event a computerized
directory is installed, Tenant shall have the right, at no cost to Tenant, to
use the number of spaces or slots necessary for Tenant to inscribe the names of
Tenant and the names of Tenant's officers and/or employees located in the
Building. In the event a directory board is installed, Tenant shall have the
right to use the number of spaces or slots equal to the product of (x) Tenant's
Proportionate Share at any given time, multiplied by (y) the total number of
spaces or slots on said directory board. In the spaces or slots so allocated on
the directory board to Tenant, Tenant may inscribe Tenant's name and the names
of Tenant's and/or officers located in the Building provided that such listings
do not exceed the number of spaces or slots allocated to Tenant pursuant to the
immediately preceding sentence.
16. INSURANCE; WAIVER OF SUBROGATION.
16.1 Landlord shall keep the Building (excluding any
Tenant's Work or Tenant owned or installed property) and Landlord's property
therein insured for the replacement value (without deducting depreciation)
thereof (exclusive of the costs of foundations, excavations and footings)
against loss or damage by perils customarily included under standard "all-risk"
(including boiler and machinery) policies and shall maintain liability insurance
in amounts consistent with those of similar Class A Buildings.
16.2 Tenant shall maintain, and shall cause any of its
subtenants to maintain, for the benefit of, and name as an additional insured,
Landlord, any mortgagee of Landlord, the Building management entity, and Tenant,
as their interests may appear, (a) commercial general liability insurance,
including contractual liability insurance or self-insurance covering Tenant's
indemnity obligations hereunder, against claims for bodily injury or death,
personal injury and property damage, occurring upon, in or about the Premises;
with limits of liability with respect to bodily injury or death, personal
injury, and property damage of $1,000,000 per occurrence and a $2,000,000
general aggregate; (b) business automobile coverage with limits of liability of
$1,000,000 combined single limit per accident for bodily injury and property
damage; (c) umbrella liability of not less than $5,000,000 per occurrence and
general aggregate; (d) insurance against loss or damage by such risks as are
insurable under an "all risk" insurance policy, to Tenant's Work, any
Alterations installed by Tenant, Tenant's Furnishings and Tenant's other
personal property, for the full replacement cost thereof; (e) during such time
as Tenant shall be constructing any Alterations, builder's risk insurance,
completed value form, covering all physical loss and other costs and expenses
(including, without limitation, architectural and engineering costs, general
contractor overhead, project management expenses and legal fees) incurred in
connection therewith, in an amount reasonably satisfactory to Landlord. If the
aforesaid
51
commercial general liability and/or umbrella policy is written for multiple
locations, the policy must have an amendment that will ensure that the aggregate
limit of insurance will apply separately to each location. Certificates of
insurance, showing that such insurance is in force and will not be cancelled
without thirty (30) days' prior written notice to Landlord shall be furnished to
Landlord prior to Tenant's entering the Premises for the purpose of installing
Tenant Work or Tenant's Furnishings. Thereafter, certificates showing renewal
of, or substitution for, policies which expire shall be furnished not less than
thirty (30) days prior to the expiration of each policy. Tenant's coverage may
be effected by blanket policies covering the Premises and other properties of
Tenant, or by self-insurance provided the requirements of Section 16.8 are
satisfied.
16.3 All insurance required to be maintained by Tenant
hereunder shall be written in form and substance satisfactory to Landlord by an
insurance company with an A.M. Best's rating of at least A licensed to do
business in the State of New York, which shall be reasonably satisfactory to
Landlord. Upon failure of Tenant to procure, maintain and pay all premiums
therefor, Landlord may, at its option, do so, and Tenant agrees to pay the cost
thereof to Landlord, as Additional Rent, within thirty (30) days after Tenant's
receipt of an invoice therefor.
16.4 Landlord and Tenant each waive all rights of
recovery against the other and against the officers, employees, agents, and
representatives of the other, on account of loss by or damage to the waiving
party or its property or the property of others under its control, to the extent
that such loss or damage is insured be obtainable without additional charge, the
insured party shall so notify the other party promptly and, if the other party
shall pay the insurer's additional charge therefor, such waiver or agreement
shall included in the policy against under any policy which either may have in
force at the time of loss or damage against under any policy which either may
have in force at the time of loss or damage.
16.5 Except to the extent expressly provided in Section
16.5, nothing contained in this Lease shall relieve Tenant of any liability to
Landlord or to its insurance carriers or any other party which Tenant may have
under law or pursuant to the provisions of this Lease, by reason of any damage
to the Premises or the Building by fire or other casualty.
17. TENANT'S EQUIPMENT.
17.1 Tenant shall not install any equipment of any kind
or nature whatsoever in the Premises which will or may necessitate any changes,
replacements or additions to, or in the electrical capacity or existing capacity
of, the water system, heating system, plumbing system, air conditioning system,
life safety system or any other system of the Premises and/or the Building
without first obtaining the prior written consent of Landlord, which consent may
be subject to, among other things Tenant's compliance with the provisions of
Section 8.6 and Articles 11 and 12 of this Lease. If Tenant installs business
machines and/or mechanical equipment which cause unreasonable levels of noise or
vibration in the Building or which are, in Landlord's reasonable judgment,
exceed the floor loads set forth in EXHIBIT L, then Tenant, at Tenant's expense,
shall promptly install and maintain noise or vibration eliminators or other
devices sufficient to eliminate such noise
52
and vibration. Landlord reserves the right to inspect the Premises to insure
compliance with this Section.
17.2 Landlord shall have the right to approve the
weight and position of safes and other heavy equipment or fixtures, which shall,
if reasonably considered necessary by the Landlord, stand on weight distribution
platforms or like devices approved in advance by Landlord. Landlord's approval
under the preceding sentence shall not be unreasonably withheld or delayed
provided any such safes and other heavy equipment or fixtures will not exceed
the maximum floor load of the floor in question which is set forth in EXHIBIT L
after such weight distribution platform or like device is installed. Any and all
non-structural damage or injury to the Premises caused by moving the property of
Tenant into or out of the Premises, or due to the same being on the Premises,
shall be repaired by, and at the sole cost of, Tenant. All structural damage or
injury to the Premises caused by moving such property into or out of the
Premises, or due to the same being on the Premises, shall be repaired by
Landlord, at Tenant's expense, and Tenant shall pay for the same, as Additional
Rent, within thirty (30) days after its receipt of an invoice therefor.
17.3 No furniture, equipment or other bulky matter of
any description will be received into the Premises or carried in the passenger
elevators except as approved by Landlord, and all such furniture, equipment, and
other bulky matter shall be delivered only by way of the freight elevators.
Except as set forth in Section 7.4(b), in the event Tenant requests overtime
service in accordance with the provisions of this Lease, such overtime service
shall be at Tenant's sole cost and expense in accordance with the provisions of
this Lease. All movement of furniture, equipment and other materials outside the
Premises shall be at Tenant's expense and under the supervision of Landlord who
shall, however, not be responsible for any damage to or charges for moving the
same. Tenant shall pay for Landlord's supervision, as Additional Rent, within
thirty (30) days after its receipt of an invoice therefor. The charges for such
supervision shall be applied uniformly to all tenants of the Building. Tenant
shall promptly remove from the sidewalks adjacent to the Building any of the
Tenant's furniture, equipment or other material there delivered or deposited.
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18. NON-LIABILITY AND INDEMNIFICATION.
18.1 Neither Landlord nor Landlord's agents, employees,
officers, directors, shareholders, members, partners, partners of such partners
or principals (disclosed or undisclosed) nor its mortgagees shall be liable to
Tenant for, and Tenant shall save and hold Landlord and its agents, employees,
contractors, officers, directors, shareholders, members, partners, partners of
such partners and principals (disclosed or undisclosed) and their mortgagees
harmless from and shall defend and indemnify such parties against, any loss,
liability, claim, damage, expense (including reasonable attorneys' fees and
disbursements), penalty or fine incurred in connection with or arising from the
Premises or by reason of Tenant's or any other occupant's use of the Premises
including, without limitation, any injury to Tenant, Tenant's agents, employees,
contractors, invitees or licensees or any other occupant of the Premises, or to
any other person or for any damage to, or loss (by theft or otherwise) of any of
Tenant's property or of the property of any other person, irrespective of the
cause of such injury, damage or loss unless due to the intentional acts or
negligence of Landlord or Landlord's agents, its employees, contractors,
invitees or licensees.
18.2 Neither any (a) performance by Landlord, Tenant or
others of any repairs or improvements in or to the Land, Building or Premises,
(b) failure of Landlord or others to make any such repairs or improvements, (c)
damage to the Building equipment, Premises or Tenant's personal property, (d)
injury to any persons, caused by other tenants or persons in the Building, or by
operations in the construction of any private, public or quasi-public work, or
by any other cause, (e) latent defect in the Building, Building equipment or
Premises, (f) temporary covering or bricking up of any windows of the Premises
for any reason whatsoever including, without limitation, Landlord's own acts,
any Legal Requirement or any Insurance Requirement, nor (g) inconvenience or
annoyance to Tenant or injury to or interruption of Tenant's business by reason
of any of the events or occurrences referred to in the foregoing subdivisions
(a) through (f) shall impose any liability on Landlord to Tenant, any occupant
or any third party claiming by, through or under Tenant. Landlord, in making any
repairs, alterations or improvements hereunder, shall prosecute the same
utilizing such reasonable methods in order to minimize any disruption to
Tenant's use of the Premises or the conduct of its business therein. Without
limiting the foregoing, to the extent that any disruption of Building service is
caused by parties other than Tenant or Tenant's agents, employees, contractors,
invitees or licensees, and such disruption results in the cessation of any or
all services to the Premises or a portion thereof, and Tenant is unable to
conduct its business within the Premises or the portion thereof so affected for
three (3) consecutive business days or more, Tenant shall be entitled to an
abatement of Base Rent and Additional Rent for the portion of the Premises so
affected commencing on the fourth (4th) business day following such cessation of
services and continuing until such services are restored. In no event, however,
shall Landlord be liable for injury or damage to Tenant or its property unless
such injury or damage is caused by the intentional acts or negligence of
Landlord or Landlord's agents, its employees, contractors, invitees or
licensees. No representation is made that the communications or security
systems, devices or procedures of the Building will be effective to prevent
injury to Tenant or any other person or damage to, or loss (by theft or
otherwise) of any of Tenant's personal property or the property of any other
person and in no event shall Landlord be
54
liable to Tenant for any failure of Tenant's computer, telecommunications or
data base systems. Landlord reserves the right to discontinue or modify such
communications or security systems or procedures without liability so long as
Landlord shall continue to maintain communications or security systems
comparable to those of Class A office buildings in The City of New York.
18.3 Tenant hereby indemnifies Landlord and its agents,
employees, contractors, officers, directors, shareholders, members, partners,
partners of such partners, and principals (disclosed or undisclosed) and their
respective mortgagees, successors and assigns against liability or expense
(including reasonable attorneys' fees and disbursements) in connection with or
arising from (i) (a) any default by Tenant in the performance of any provisions
of this Lease, and/or (b) the use or occupancy or manner of use or occupancy of
the Premises by Tenant or any person claiming by, through or under Tenant,
and/or (c) claims for death, personal injury or property damage arising out of
the acts, omissions or negligence of Tenant, or the contractors, agents,
employees, invitees or licensees of Tenant in connection with the performance of
any Alterations or any other work, labor, services or materials done for or
supplied to Tenant, including, without limitation, the installation, maintenance
(or failure to maintain) or removal of Tenant's Corridor Signs, and/or (d) any
acts, omissions or negligence of Tenant or any such person, or the contractors,
agents, employees, invitees or licensees of Tenant or any such person, in or
about the Premises or the Building either prior to, during or after the
expiration of the Term, provided, however, that such indemnity applies only to
the extent that any of the foregoing are not covered by Tenant's insurance and
did not result subject to the provisions of Section 18.5, from Landlord's, or
any of Landlord's agents, employees' or contractors' negligence, willful
misconduct or intentional acts, and (ii) claims arising from any notices of
violation or mechanic's liens arising from or in connection with the performance
of any Alterations or any other work, labor, services or materials done for or
supplied to Tenant, including, without limitation, the installation, maintenance
(or failure to maintain) or removal of Tenant's Corridor Signs. If any action,
suit or proceeding arising from any of the foregoing is brought against
Landlord, Tenant will resist and defend such action, suit or proceeding or cause
the same to be resisted and defended by counsel designated by Tenant (which
counsel shall be reasonably satisfactory to Landlord), unless, due to a conflict
of interest or Landlord's negligence or wrongful acts, Landlord requires such
action, suit or proceeding to be resisted and defended by counsel of its own
selection and is represented by such counsel reasonably satisfactory to Landlord
(in which case Tenant shall be liable for the payment of Landlord's attorney's
fees), provided that prior to the occurrence and continuance of an Event of
Default, Landlord shall not settle or release any claim without the written
consent of Tenant, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, if Tenant has a duty to defend Landlord in any
action, suit or proceeding described in the immediately proceeding sentence, and
Tenant's insurer assumes Tenant's duty to defend Landlord, the counsel that the
insurer shall designate shall be deemed to be acceptable to Lender, provided
such counsel regularly represents insurance companies in similar types of
actions, suits or proceedings. If and to the extent that the foregoing
provisions of this Section 18.3 may be unenforceable for any reason, Tenant
hereby agrees to make the maximum contribution to payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
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18.4 Tenant shall pay to Landlord, as Additional Rent,
within thirty (30) days after written demand therefor, sums equal to all losses
and other liabilities referred to in Section 18.3. The obligations of Tenant
under this Article 18 shall survive the expiration or earlier termination of
this Lease.
18.5 Notwithstanding anything contained in this Lease
to the contrary, when the claim is caused by the joint negligence or willful
misconduct of (a) Tenant and Landlord, (b) Tenant and a third party unrelated to
Tenant, except Tenant's agents, employees, or invitees or (c) Landlord and a
third party unrelated to Landlord, except Landlord's agents or employees, as the
case may be, Tenant's or Landlord's duty, as the case may be, to defend,
indemnify and hold the other party harmless shall be in proportion to Tenant's
or Landlord's, as the case may be, allocable shares of the joint negligence or
willful misconduct.
19. ASSIGNMENT AND SUBLETTING.
19.1 Neither this Lease nor any part hereof, nor the
interest of Tenant thereunder, shall, by operation of law or otherwise, be
assigned, mortgaged, pledged, encumbered, sublet or otherwise transferred by
Tenant, Tenant's legal representatives or successors in interest, and neither
the Premises nor any part thereof shall be encumbered in any manner by reason of
any act or omission on the part of Tenant, or anyone claiming under or through
Tenant (all of which are collectively referred to herein as an "ASSIGNMENT"), or
shall be sublet or be used, occupied, or utilized for desk space (except
independent contractors retained by Tenant on a short term basis in furtherance
of Tenant's normal business) or for mailing privileges by anyone other than
Tenant (all of which are collectively referred to herein as a "SUBLEASE"),
without the prior written consent of Landlord in each instance, which consent
shall not be unreasonably withheld or delayed, except as expressly otherwise
provided in this Article. Except for a sale or other transfer of stock to a
Related Corporation or the sale of stock of Tenant or a Related Corporation
whose stock is listed and traded on a nationally recognized stock exchange, a
transfer of twenty-five percent (25%) or more in interest of Tenant (whether a
partnership interest or membership in a limited liability company) or a transfer
of twenty-five percent (25%) or more in interest in the controlling general
partner, any partner or member holding a majority interest in Tenant or majority
stockholder of Tenant (whether such transfers are through a single transaction
or a series of transactions and whether stock, partnership interest, or
otherwise) by any party(s) in interest shall be deemed an Assignment of this
Lease.
19.2 If this Lease be assigned, whether or not in
violation of the terms of this Lease, Landlord may collect rent from the
assignee. If the Premises or any part thereof be sublet or be used 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 default, if any, collect rent from the subtenant or occupant. In either
event, Landlord may apply the net amount collected to the rent herein reserved,
but no Assignment, Sublease, occupancy, or collection or application of rent
shall be deemed a waiver of any of the provisions of Section 19.1, or the
acceptance of the assignee, subtenant, or occupant as a tenant, or be deemed to
relieve, impair, release, or discharge Tenant of its obligations fully to
perform the terms of this Lease on Tenant's part to be performed. The consent by
Landlord to an Assignment, Sublease, transfer or encumbering pursuant to any
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provision of this Lease shall not in any way be deemed consent to, or be deemed
to relieve Tenant from obtaining Landlord's written consent to, any other or
further Assignment, Sublease, transfer or encumbering. References in this Lease
to use or occupancy by anyone other than Tenant shall include, without
limitation, subtenants, licensees and others claiming under Tenant or under any
subtenant, immediately or remotely. The listing of any name other than that of
Tenant, or a Related Corporation, on any door of the Premises or on any
directory or in any elevator in the Building, or otherwise, shall not operate to
vest in the person so named any right or interest in this Lease or the Premises,
or be deemed to constitute, or serve as a substitute for, any consent of
Landlord required under this Article, and it is understood that any such listing
shall constitute a privilege extended by Landlord, revocable at Landlord's will
by Notice to Tenant. Tenant agrees to pay, as Additional Rent, within thirty
(30) days after Tenant's receipt of an invoice therefor, Landlord's reasonable
attorneys' fees and disbursements incurred by Landlord in connection with any
proposed Assignment or Sublease, including the costs of making investigations as
to the acceptability of a proposed subtenant or assignee.
19.3 Tenant may sublet all or part of the Premises to,
or permit all or part of the Premises to be used or occupied by, a Related
Corporation for any of the Permitted Uses without any requirement of obtaining
Landlord's consent, but only for such period as such Related Corporation
occupies the portion of the Premises sublet for any of the Permitted Uses and
such Related Corporation continues to qualify as a Related Corporation, as the
case may be, under the terms of this Lease, subject, however, to compliance with
Tenant's obligations under this Lease. At such time as a Related Corporation
does not meet the foregoing requirement, such Related Corporation and Tenant
must comply with the provisions of Sections 19.1 and 19.2. Prior to the date
that a Related Corporation occupies any portion of the Premises, whether
pursuant to a sublease or not, Tenant shall deliver a Notice to Landlord setting
forth the name of the Related Corporation occupying such space and a description
of the space so occupied and a contact party at the Related Corporation.
19.4 (a) Tenant may sublet the Premises, or portions
thereof, subject to Landlord's consent, which consent shall not be unreasonably
withheld or delayed, and subject to the following conditions:
(i) The nature of the proposed
subtenant's business and its reputations is in keeping with the character of the
Building as a Class A office building and its tenancies and such proposed
subtenant shall not be a governmental agency or charitable organization or a
corporation or other organization whose operations are or would be subject to
any environmental restrictions;
(ii) The purposes for which the
proposed subtenant intends to use the applicable portion of the Premises are
uses expressly permitted by this Lease;
(iii) Any such subletting will result
in there being no more than four (4) subtenants on a floor excluding Related
Corporations;
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(iv) The proposed sublease shall
prohibit any assignment or further subletting, except in compliance with this
Sections 19.3 and 19.4;
(v) No Event of Default shall have
occurred and be continuing hereunder;
(vi) During the first three (3) Lease
Years following the Base Rent Commencement Date, the proposed subtenant (unless
such subtenant during such three year period was a Related Corporation) shall
not then be a tenant in the Building unless such proposed subtenant occupies
contiguous space to the space being sublet or has not, within one hundred eighty
(180) days preceding the date Landlord's consent was sought for subleasing to
such tenant, submitted to Landlord, or to which Landlord has submitted, a bona
fide written proposal for the rental of comparable space in the Building
(meaning space equivalent in size, location and length of term to the proposed
sublease);
(vii) No subletting shall be for a
term ending later than one (1) day prior to the expiration of the Term;
(viii) Each sublease shall provide
that it is subject and subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate;
(ix) Each sublease shall provide
that, if by reason of a default on the part of Tenant under this Lease, this
Lease or the leasehold estate created hereunder is terminated, then such
subtenant shall, at the option of Landlord, which shall be exercised in the sole
and absolute discretion of the Landlord, attorn to Landlord on the terms and
conditions set forth in the sublease, and will recognize Landlord as such
subtenant's Landlord under such sublease, provided that Landlord accepts such
attornment, having no obligation to do so;
(x) Tenant shall not have the right
to publicly advertise the rental rate of space for subletting to anyone other
than brokers; and
(xi) Tenant shall give Landlord a
Notice containing: (a) the material terms of the proposed sublease, (b)
information relevant to subparagraphs (i) and (ii) above, (c) a certification
that the remaining requirements of this Section 19.4(a) have been met, and (d) a
copy of the term sheet and if same has been prepared, a copy of the proposed
sublease.
(b) Landlord shall, within, twenty (20) days
after receiving the information under Section 19.4(a), give Notice to Tenant to
permit or deny the proposed sublease. If Landlord does not give Notice within
the aforesaid twenty (20) day period, then Tenant may sublease part or all of
the Premises upon the terms Tenant gave in the information under Section
19.4(a)(xi). No sublease of this Lease by Tenant shall be valid unless, within
five (5) days after execution thereof, Tenant shall deliver to Landlord an
executed copy of such sublease in form and substance reasonably satisfactory to
Landlord, duly executed by Tenant and by the sublessee.
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(c) In the event Tenant sublets all or any
part of the Premises to anyone (other than a Related Corporation) for rents
which for any period shall exceed the Base Rent, Tenant's Tax Payment and
Tenant's Operating Payments payable for the subleased space under this Lease for
the same period, Tenant shall pay Landlord, as Additional Rent, fifty percent
(50%) of any Net Profits that Tenant actually receives from such subletting. The
term "NET PROFITS" shall mean (x) the excess of such rents under any sublease
for the Premises over the Base Rent, Tenant's Tax Payment and Tenant's Operating
Payment, payable for the subleased space under this Lease, less (i) brokerage
commissions actually paid by Tenant in connection incurred by Tenant in
connection with such subletting, (ii) reasonable attorneys' fees actually
incurred by Tenant in connection with such subletting, (iii) reasonable
advertising fees actually incurred by Tenant in connection with such subletting,
(iv) the cost of any reasonable alterations and reasonable rent concession
period for the benefit of such subtenant, (v) any actual vacancy period
commencing on the date that Tenant, a Related Corporation vacates such vacant
space, provided, however, such vacancy period shall not extend beyond six (6)
months and (vi) all other reasonable out-of-pocket expenses paid by Tenant
directly in connection with such subletting. Landlord's portion of Net Profits
shall be paid to Landlord by Tenant after Tenant has been paid the costs set
forth in this Section 19.4(c) within thirty (30)days after Tenant receives same.
If in connection with any such subletting Tenant is to receive an amount from
the subtenant for the sale of Tenant's Work or any Alterations, Tenant shall pay
Landlord, as Additional Rent, within thirty (30) days of Tenant's receipt of
same, fifty percent (50%) of such amount, after deduction of any net unamortized
or undepreciated cost of such Tenant's Work or Alterations. Notwithstanding
anything contained to the contrary in this Section 19.4, if Tenant subleases any
option space leased by Tenant pursuant to Article 38 within twelve (12) months
of the Beneficial Occupancy Date for such space, Landlord shall be entitled to
one hundred percent (100%) of the Net Profits from such sublease and Tenant
shall not be entitled to any portion of such Net Profits.
19.5 (a) Notwithstanding anything contained in the
Article, in the event that at any time during the Term Tenant desires to assign
its entire interest in this Lease, Tenant:
(i) shall submit to Landlord a Notice
setting forth the name and address of the proposed assignee and a detailed
description of such person's business, character and financial references
(including its most recent balance sheet and income statements certified by its
chief financial officer or a certified public accountant), and any other
information reasonably requested by Landlord, which information shall be kept
confidential by Landlord unless the disclosure thereof is required by Legal
Requirements, or judicial order, provided however, Landlord may disclose such
information to any direct (or indirect) partner, member or shareholder of
Landlord and to any party who has provided or is providing financing to
Landlord; and
(ii) shall submit to Landlord (a) the
material terms of the proposed assignment, (c) an agreement by Tenant to
indemnify Landlord against liability resulting from any claims that in
connection with the proposed assignment may be made against Landlord by any
brokers or other persons claiming a commission or similar compensation and (c) a
copy of the term sheet for such assignment and if same has been prepared, a copy
of the proposed assignment.
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(b) Tenant may at any time during the Term
assign this Lease, subject to Landlord's consent, which consent shall not be
unreasonably withheld or delayed, provided, however, Landlord's consent shall
not be required if Tenant's assignment is to a Related Corporation and provided
further that under no circumstances shall any such assignment relieve Tenant
from the performance of any of the obligations of Tenant under this Lease and
subject to the following conditions:
(i) The nature of the proposed
assignee's business and its reputation is in keeping with the character of the
Building as a Class A office building and its tenancies and such assignee shall
not be a governmental agency, charitable organization or a corporation or other
organization whose operations are or would be subject to environmental
restrictions;
(ii) The purposes for which the
proposed assignee intends to use the Premises are uses expressly permitted by
this Lease;
(iii) No Event of Default shall have
occurred and be continuing hereunder; and
(iv) No assignment of this Lease by
Tenant shall be valid unless, within five (5) days after the execution thereof,
Tenant shall deliver to Landlord an executed copy of such assignment in form and
substance reasonably satisfactory, duly executed by Tenant and by the assignee.
(c) Landlord shall, within twenty (20) days
after receiving all of the information under Section 19.5(a) and Section
19.5(b)(i) and (ii) which information must be full and complete, give Notice to
Tenant to permit or deny the proposed assignment. If Landlord denies consent, it
must explain the reasons for the denial. If Landlord does not give Notice within
the aforesaid twenty (20) day period, then Tenant may assign the entire Premises
upon the terms Tenant gave in the information under Sections 19.5(a)(i) and (ii)
and Sections 19.5(b)(i) and (ii).
(d) In the event that Tenant fails to execute
and deliver any assignment within ninety (90) days after Tenant shall have
delivered the Notice described in Section 19.5(a), then Tenant shall again
comply with all the provisions and conditions of this Section 19.5 before
assigning this Lease.
(e) No assignment of part of this Lease (other
than to a successor or Related Corporation) shall be permitted. No assignment of
this Lease by Tenant shall be valid unless, within thirty (30) days after
execution thereof, Tenant shall deliver to Landlord a duplicate original
instrument of assignment and assumption in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant and by the assignee, in which
such assignee shall assume performance of all of the provisions of this Lease
and evidence reasonably satisfactory to Landlord that the provisions of this
Section 19.5(a) have been satisfied. No assignment of this Lease shall serve to
relieve Tenant of its obligations hereunder, including, without limitation, the
obligations to pay Base Rent and Additional Rent.
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(f) Notwithstanding anything to the contrary
contained herein, if Tenant shall actually receive any consideration from its
assignee (other than a successor or Related Corporation) in connection with the
assignment of this Lease, Tenant shall pay over to Landlord fifty percent (50%)
of the consideration actually received within ten (10) days after such
consideration is received by Tenant (including, without limitation, sums paid
for sale of Tenant's Work or any Alterations) reduced by (i) the net unamortized
or undepreciated cost of Tenant's Work in excess of the Tenant Improvement
Allowance or Alterations, determined on the basis of an amortization or
depreciation period for the then remaining Term; (ii) reasonable brokerage
commissions actually paid by Tenant in connection with such assignment, (iii)
reasonable attorney's fee actually incurred by Tenant in connection with such
assignment, (iv) reasonable advertising fees, (v) the cost of reasonable
alterations and reasonable rent concession period for the benefit of such
assignee, (vi) any actual vacancy period commencing on the date that Tenant or a
Related Corporation vacates such space, provided, however, such vacancy period
shall not extend beyond six (6) months and (vii) all other reasonable
out-of-pocket expenses paid by Tenant directly in connection with such
assignment. Notwithstanding anything contained to the contrary in this Section
19.5, if Tenant assigns any portion of the option space leased by Tenant
pursuant to Article 38 within twelve (12) months of the Beneficial Occupancy
Date of such space, Landlord shall be entitled to one hundred percent (100%) of
the consideration received from such assignment and Tenant shall not be entitled
to any portion of such consideration.
20. SUBORDINATION AND ATTORNMENT.
20.1 This Lease and all rights of Tenant hereunder are
subject and subordinate in all respects to (a) all present and future ground
leases, operating leases, superior leases, overriding leases and underlying
leases and grants of term of the Land and the Building or any portion thereof
(collectively, including the applicable items set forth in subdivision (d) of
this Section 20.1, the "SUPERIOR LEASE") whether or not the Superior Lease shall
also cover other lands or buildings, (b) all mortgages and building loan
agreements, including leasehold mortgages and spreader and consolidation
agreements, which may now or hereafter affect the Land or the Building
(collectively, including the applicable items set forth in subdivisions (c) and
(d) of this Section 20.1, the "SUPERIOR MORTGAGE"), whether or not the Superior
Mortgage shall also cover other lands or buildings or leases, (c) each advance
made or to be made under the Superior Mortgage, and (d) all renewals,
modifications, replacements, substitutions and extensions of the Superior Lease
and the Superior Mortgage. The provisions of this Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver,
at its own cost and expense, any instrument, in recordable form, that Landlord,
the landlord under any Superior Lease (the "SUPERIOR LANDLORD") or the holder of
any Superior Mortgage (the "SUPERIOR MORTGAGEE") may reasonably request to
evidence such subordination. If Tenant fails to execute, acknowledge and deliver
any such instrument of subordination within thirty (30) days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute, acknowledge and
deliver any such instruments for and on behalf of Tenant. Tenant agrees to
subordinate this Lease to all future Superior Mortgages and all renewals,
modifications, replacements, substitutions of
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such Superior Mortgage, provided such Superior Mortgagee delivers to the Tenant
a subordination, non-disturbance and attornment agreement substantially in the
form attached hereto as EXHIBIT M. Any Superior Mortgagee may elect that this
Lease shall have priority over such Superior Mortgage and, upon notification
thereof by such Superior Mortgagee to Tenant, this Lease shall be deemed to have
priority over such Superior Mortgage, whether this Lease is dated prior to or
subsequent to the date of such Superior Mortgage. If, in connection with the
obtaining, continuing or renewing of financing for which the Building or the
Land represents collateral, in whole or in part, any bank, insurance company,
pension fund or other lending institution shall request reasonable modifications
of this Lease as a condition of its granting such financing, Tenant will not
unreasonably withhold its consent thereto, provided that such modifications do
not increase the Base Rent or Additional Rent payable by Tenant hereunder or
increases the obligations of Tenant hereunder or materially affects beyond a de
minimis degree Tenant's rights hereunder.
20.2 For purposes of this Section 20.2, the term
"SUCCESSOR LANDLORD" shall mean and include (i) any person, including but not
limited to any Superior Landlord or Superior Mortgagee, who, prior to the
termination of this Lease, acquires or succeeds to the interest of Landlord
under this Lease through summary proceedings, foreclosure action, assignment,
deed in lieu of foreclosure or otherwise, and (ii) the successors and assigns of
any person referred to in clause (i) of this sentence. Upon any Successor
Landlord's so acquiring, or so succeeding to, the interest of Landlord under
this Lease, Tenant shall, at the election and upon the request of the Successor
Landlord, and without further instruments of attornment, fully attorn to and
recognize such Successor Landlord as Tenant's landlord under this Lease upon the
then executory terms of this Lease. No Successor Landlord shall be bound by any
prepayment of rent or additional rent for more than one month in advance or any
amendment or modification of this Lease made without the consent of such
Successor Landlord, which consent shall not be unreasonably withheld or delayed.
Tenant waives the provisions of any statute or rule of law now or hereafter in
effect which may give or purport to give Tenant any right of election to
terminate this Lease or to surrender possession of the Premises in the event any
Superior Lease is terminated. The foregoing provisions of this Section shall
inure to the benefit of any such Successor Landlord, shall be self-operative,
and no further instrument shall be required to give effect to said provisions.
Upon demand of any such Successor Landlord, Tenant agrees to execute instruments
to evidence and confirm the foregoing provisions of this Section reasonably
satisfactory to any such Successor Landlord. Tenant hereby irrevocably
constitutes and appoints Landlord attorney-in-fact for Tenant to execute any
such instrument for and on behalf of Tenant, such appointment being coupled with
an interest. Nothing contained in this Section shall be construed to impair any
right otherwise exercisable by any such owner, holder or lessee.
20.3 Simultaneously with the mutual execution and
delivery of this Lease by Landlord to Tenant, Landlord agrees to deliver to
Tenant a subordination, non-disturbance and attornment agreement in the form
attached hereto as EXHIBIT M.
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21. ACCESS; CHANGE IN FACILITIES.
21.1 All parts (except non-glass surfaces facing the
interior of the Premises) of all walls, windows and doors bounding the Premises,
all balconies, stairs, landings and roofs adjacent to the Premises, all space in
or adjacent to the Premises presently being used as of the date of this Lease
for columns, shafts, stacks, stairways, risers, elevator shafts and machinery,
conduits, air conditioning rooms, telephone rooms, fan rooms, heating,
ventilating, air conditioning, plumbing, electrical and other mechanical
facilities, service closets and other Building equipment, and the use thereof,
as well as access thereto through the Premises for the purposes of operation,
decoration, cleaning, maintenance, safety, security, alteration and repair, are
hereby exclusively reserved to Landlord, except to the extent otherwise
specifically provided in this Lease. Landlord reserves the right, at any time,
without incurring any liability to Tenant therefor, to make such changes in or
to the Building and the Building equipment, as well as in the entrances, doors,
lobbies, interior and exterior plaza areas, corridors, elevators (provided,
however, Landlord shall during Business Hours and subject to maintenance and
repairs, maintain two (2) passenger elevators to service the base floors of the
Premises and two (2) passenger elevators to service the tower floors of the
Premises provided at least one of such elevators shall interconnect all of the
Premises), Building stairs, landings, toilets and other public parts of the
Building, as it may deem necessary or desirable, provided any such change (a)
does not unreasonably deprive Tenant of access to the Premises, (b) does not
materially and adversely interfere with the use of the Premises or the services
furnished to the Premises for an unreasonable length of time or (c) does not
materially reduce the size, or materially and dramatically change the size or
nature, of the lobby of the Building. Notwithstanding the foregoing Tenant shall
have the right, at its discretion, to laminate over any elevator banks within
the Premises which are not servicing the applicable floor in the Premises,
provided, (i) such lamination is permitted by, and Tenant complies with, all
Legal Requirements and Insurance Requirements, (ii) Tenant obtains all necessary
permits required to construct and maintain such lamination and (iii) at the end
of the Term and prior to Tenant vacating the floor on which such lamination
exists, Tenant removes such lamination and restores, at Tenant's sole cost and
expense, the area to the condition existing prior to such lamination. If
Landlord shall make material changes to the lobby, Landlord will advise Tenant
of the changes and seek Tenant's advice and input.
21.2 Landlord may install, use, control and maintain
pipes, fans, ducts, wires and conduits within or through the Premises, or
through the walls, columns and ceilings therein, provided that the installation
work and resulting construction will not unreasonably interfere with Tenant's
use and occupancy of the Premises nor diminish, beyond a de minimis degree, the
rentable square footage or wall area and all such pipes, fans, ducts, wires and
conduits are concealed. Tenant hereby grants Landlord access through the
Premises in connection with Landlord's installation, use, control and
maintenance of such pipes, fans, ducts, wires and conduits. Where access doors
are required by Landlord in or adjacent to the Premises for mechanical trades,
Landlord shall furnish them and have all keys to such access doors. Tenant shall
cooperate with Landlord in the location of Landlord's access doors for such
facilities.
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21.3 Landlord shall have the right to take all
reasonable measures as Landlord may deem advisable for the security of the
Building and its occupants, including, without limitation, the search of all
persons entering or leaving the Building, the evacuation of the Building for
cause, suspected cause or for drill purposes.
21.4 Landlord and Landlord's agents shall have the
right to enter the Premises at all reasonable times, upon reasonable prior
notice, whether or not during Business Hours, for any of the purposes specified
in this Article and (a) to examine the Premises or for the purpose of performing
any obligation of Landlord or exercising any right reserved to Landlord in this
Lease (or to the Superior Landlord in any Superior Lease); (b) to exhibit the
Premises to prospective mortgagees or purchasers of the Building; (c) to exhibit
the Premises to prospective tenants, but only within the last twenty-four (24)
months of the initial Term or the last twelve (12) months of the renewal Term;
(d) to make or cause to be made such repairs or improvements, or to perform such
maintenance, including the maintenance of Building equipment, as Landlord may
deem necessary or desirable or required by any Governmental Authority, Legal
Requirement or Insurance Requirement; and (e) to take into and temporarily
store, during the course of such repairs, improvements or maintenance, upon the
Premises all materials that may be required in connection therewith. If Tenant,
its agents or employees, after reasonable prior notice has been afforded Tenant,
shall not be present or shall not permit an entry into the Premises at any time
when such entry shall be permissible, Landlord may use a master key or forcibly
enter the Premises without any liability therefor.
21.5 The exercise of any rights retained by Landlord
pursuant to this Article 21 shall be without liability to Tenant or any person
claiming through Tenant for damage or injury to property, person or business and
without effecting an eviction, constructive or actual, or disturbance of
Tenant's use of possession or giving rise to any claim for set off or abatement
of Base Rent or Additional Rent.
22. RULES AND REGULATIONS.
22.1 Tenant and Tenant's agents, employees, licensees
and invitees will fully and promptly comply with all requirements of the rules
and regulations of the Building and related facilities which are attached hereto
as EXHIBIT M. Landlord shall at all times have the right to change such rules
and regulations and/or Building services or to promulgate other reasonable rules
and regulations and/or Building services in such manner as may be deemed
reasonably advisable for safety, care, or cleanliness of the Building and
related facilities or premises, and for preservation of good order therein, all
of which rules and regulations and/or Building services, changes and amendments
will be forwarded to Tenant in writing and shall be carried out and observed by
Tenant. Tenant shall further be responsible for the compliance with such rules
and regulations and/or Building services by the employees, servants, agents,
visitors, licensees and invitees of Tenant. In the event of any conflict between
the provisions of this Lease and the provisions of the rules and regulations,
then the provisions of this Lease shall control. Landlord shall enforce such
rules and regulations in a nondiscriminatory manner throughout the Building.
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23. DAMAGE OR DESTRUCTION.
23.1 If the Premises or any part thereof shall be
damaged or rendered untenantable by fire or other casualty and if Tenant gives
prompt Notice thereof to Landlord and this Lease is not terminated pursuant to
any provision of this Article, Landlord, at Landlord's expense, shall perform
Landlord's Restoration Work, subject to Legal Requirements then in effect, and
Tenant, at Tenant's expense, shall perform Tenant's Restoration Work, with
reasonable dispatch and continuity. The Base Rent and Additional Rent shall be
equitably abated to the extent that the Premises shall have been rendered
untenantable, such abatement shall commence on the date of such damage, provided
Tenant has given prompt Notice of such damage to Landlord, and shall continue
until 20 days following the date the Premises shall no longer be untenantable
or, in the event of Tenant Delay or any delay in Tenant's performance of
Tenant's Restoration Work, until the date the Premises would have been
tenantable but for such Tenant Delay or other delay in Tenant's performance of
Tenant's Restoration Work; provided, however, should Tenant occupy a portion of
the Premises for the conduct of its business during the period the repair work
is taking place and prior to the date the Premises are no longer untenantable,
the Base Rent and Additional Rent allocable to such occupied portion, based upon
the proportion which the occupied portion of the Premises bears to the total
area of the Premises, shall be payable by Tenant from the date of such
occupancy.
23.2 "LANDLORD'S RESTORATION WORK" shall include all of
the work necessary to repair, restore, replace and rebuild Landlord's Work to
substantially the same condition as that in which it was immediately prior to
the occurrence of the fire or other casualty; provided, however, that Landlord's
Restoration Work shall not include the repair, restoration, replacement or the
rebuilding of (i) Tenant's Work or Tenant's Furnishings, (ii) any Alteration
made or installed by or on behalf of Tenant pursuant to Article 12 hereof or
(iii) any part of the furniture, business equipment or other personal property
which may have been placed by Tenant within the Premises.
23.3 "TENANT'S RESTORATION WORK" shall include all of
the work (other than Landlord's Work) necessary to repair, restore, replace and
rebuild the Premises (including Tenant's Work) to substantially the same
condition as that in which it was in immediately prior to the occurrence of the
fire or other casualty.
23.4 If the Premises shall be totally damaged or
rendered wholly untenantable by fire or other casualty, Landlord has not
terminated this Lease pursuant to Section 23.5 and Landlord has not
substantially completed Landlord's Restoration Work within twelve (12) months
(subject to (i) Tenant Delay or (ii) delays in Tenant's performance of Tenant's
Restoration Work which result in delays in the performance of Landlord's
Restoration Work or (iii) Force Majeure) from the date Landlord receives (i)
final adjustment of all insurance claims relating to the casualty, (ii) all
permits and approvals necessary to perform Landlord's Restoration Work, and all
such permits and approvals are final and non-appealable (or the time for appeal
has expired), and (iii) written confirmation from the Superior Mortgagee that
the Superior Mortgagee has agreed to advance insurance proceeds to Landlord for
the performance of Landlord's Restoration Work, Tenant may serve Notice on
Landlord of its intention to terminate this Lease, and if within forty-five (45)
days after Landlord's receipt of such Notice, subject to (i) Tenant
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Delay or (ii) delays in Tenant's performance of Tenant's Restoration Work which
result in delays in the performance of Landlord's Work or (iii) Force Majeure,
Landlord shall not have completed Landlord's Restoration Work, this Lease shall
terminate on the expiration of such forty-five (45) day period as if such
termination date were the Expiration Date, without prejudice to Landlord's and
Tenant's rights under this Lease in effect prior to such termination. Upon
Landlord's completion of Landlord's Restoration Work, Tenant shall have no
further right to terminate this Lease pursuant to this Section 23.4.
23.5 If the Premises shall be totally damaged or
rendered wholly untenantable by fire or other casualty or if the Building shall
be so damaged by fire or other casualty that alteration or reconstruction of
more than thirty percent (30%) of the rentable area of the Building, in
Landlord's architect's reasonable opinion, shall be required (whether or not the
Premises shall have been so damaged), then (a) Landlord, at its option, may
terminate this Lease, by giving Tenant thirty (30) days' Notice of such
termination, within ninety (90) days after the date of such fire or other
casualty or (b) and such damage occurs in the final three (3) years of the Term,
including any renewal Term, Tenant, at its option, may terminate this Lease, by
giving Landlord thirty (30) days' Notice of such termination, within ninety (90)
days after the date of such fire or other casualty. In the event that such
Notice of termination shall be given, this Lease shall terminate as of the date
provided in such notice of termination with the same effect as if that date were
the Expiration Date, without prejudice to Landlord's and Tenant's rights under
this Lease in effect prior to such termination.
23.6 Landlord shall not be liable for any inconvenience
to Tenant or injury to the business of Tenant resulting in any way from any such
damage by fire or other casualty, or the repair thereof. Landlord will not carry
insurance of any kind on Tenant's Work, any Alterations or any personal property
of Tenant, and Landlord shall not be obligated to repair any damage thereto, or
replace the same, or bear any of the risk of loss with respect thereto.
23.7 The provisions of this Article shall be considered
an express agreement governing any case of damage to or destruction of the
Building or the Premises or any part of either by fire or other casualty, and
Tenant hereby waives the provisions of Section 227 of the Real Property Law and
agrees that the provisions of this Article shall govern and control in lieu
thereof.
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24. EMINENT DOMAIN.
24.1 In the event that all of the Land, the Building or
the Premises shall be acquired or condemned by eminent domain, this Lease shall
terminate as of the date of the vesting of title in the condemning authority as
if said date were the Expiration Date. If only a part of the Premises shall be
so acquired or condemned then, except as otherwise provided in this Article,
this Lease shall continue in full force and effect, but from and after the date
of the vesting of title, the Base Rent shall be reduced by an amount equal to
the product obtained by multiplying (i) the Base Rent in effect immediately
prior to such condemnation by (ii) a fraction, the numerator of which is the
number of rentable square feet of the Premises taken and the denominator of
which is the number of rentable square feet of the Premises immediately prior to
the condemnation. Tenant's Proportionate Share shall also be reduced to equal a
fraction, the numerator of which is the number of rentable square feet of the
Premises after the taking and the denominator of which is the number of rentable
square feet of the Building after the taking. The aforesaid calculations shall
be reasonably determined by Landlord, whose calculations shall be conclusive
absent manifest error.
24.2 If more than twenty-five percent (25%) of the Land
or the Building shall be so acquired or condemned so that continued operation of
the remaining portion of the Building shall be impracticable or uneconomical as
determined by Landlord, then (i) whether or not the Premises shall be affected,
Landlord may, within ninety (90) days following the date of vesting of title,
give Tenant thirty (30) days' Notice of termination of this Lease or (ii) if
more than twenty-five percent (25%) of the total area of the then Premises is
acquired or condemned, and the taking of such portion of the Premises renders
the balance of the Premises impracticable or uneconomical as determined by
Tenant for the Permitted Use, Tenant may, within ninety (90) days following the
date upon which Tenant shall have received Notice of vesting of title, give to
Landlord thirty (30) days' Notice of termination of this Lease. In the event any
such thirty (30) day Notice of termination is given by Landlord or Tenant, this
Lease shall terminate upon the expiration of said thirty (30) days with the same
effect as if that date were the Expiration Date, without prejudice to Landlord's
or Tenant's rights under this Lease in effect prior to such termination, and
Rent shall be apportioned as of such date or sooner termination.
24.3 In the event of any such acquisition or
condemnation of all or any part of the Land or the Building, Landlord shall
receive the entire award for any such acquisition or condemnation. Tenant shall
have no claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term and agrees not to join in any claim made by
Landlord and to execute all further documents that may be required in order to
facilitate the collection of the award by Landlord. Tenant hereby appoints
Landlord as attorney-in-fact for Tenant, which appointment, being coupled with
an interest, is irrevocable, to sign such further documentation on behalf of
Tenant. Tenant shall, however, retain the right to make a separate claim for (i)
the value of any personal property taken or Tenant's Work so taken, and (ii) its
moving expenses, provided same does not diminish or delay the award otherwise
obtainable by Landlord.
24.4 Upon Landlord's receipt of the condemnation award
referred to in Section 24.3, and provided that this Lease has not been
terminated pursuant to the provisions of Section 24.1 or Section 24.2, Landlord
shall promptly perform Landlord's
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Restoration Work to the extent such condemnation award is sufficient for such
purpose, the Superior Mortgagee has agreed in writing to advance the
condemnation award to Landlord for the performance of Landlord's Restoration
Work and provided Landlord receives all permits and approvals necessary to
perform Landlord's Restoration Work and all such permits and approvals are final
and nonappealable (or the time for appeal has expired). Tenant shall perform
Tenant's Restoration Work whether or not Tenant's award is sufficient for such
purpose.
24.5 If the temporary use or occupancy of all or part
of the Premises shall be condemned or taken, this Lease shall remain unaffected
by such condemnation or taking and Tenant shall continue to be responsible for
all of its obligations hereunder (except to the extent prevented from so doing
by reason of such condemnation or taking) and it shall continue to pay the Base
Rent and Additional Rent as provided hereunder. Tenant shall have the right to
claim, prove and receive so much of any award for such condemnation or taking
for temporary use or occupancy as represents compensation for the use and
occupancy of the Premises and, if so awarded, for the loss of value or utility
of Tenant's personal property, Tenant's Work and any Alterations and Tenant's
moving expenses, up to and including the Expiration Date or the date of
termination of the condemnation or taking for temporary use or occupancy,
whichever is earlier, and Landlord shall be entitled to claim, prove and receive
the balance of any such award. Notwithstanding the foregoing, however, the
rights and interests of Landlord and Tenant to any award received or receivable
with respect to a condemnation or taking for temporary use or occupancy shall be
in all other respects governed by the applicable provisions of the Superior
Lease and/or the Superior Mortgage.
24.6 If the grade of any street upon which the Land is
situated or abuts shall be changed, this Lease shall nevertheless continue in
full force and effect, and Landlord shall be entitled to collect and keep the
entire award that may be made. Tenant hereby assigns to Landlord all of its
right in and to every such award or any part thereof.
24.7 The terms "condemnation" and "acquisition" as used
herein shall include any agreement in lieu of or in anticipation of the exercise
of the power of eminent domain between Landlord and any Governmental Authority
authorized to exercise the power of eminent domain.
25. CONDITIONS OF LIMITATION.
25.1 This Lease and the Term and estate hereby granted
are subject to the limitations that:
(a) if Tenant shall file a voluntary petition
in bankruptcy or insolvency, or commence an action under the Bankruptcy Code, or
shall be adjudicated a debtor, or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the Bankruptcy Code or any
other present or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law (foreign or domestic),
or shall make an assignment for the benefit of creditors or shall seek or
consent or acquiesce in
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the appointment of any trustee, receiver or liquidator of Tenant or of all or
any part of Tenant's property; or
(b) if, within ninety (90) days after the
commencement of any proceeding and/or action against Tenant, whether by the
filing of a petition or otherwise, seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
Bankruptcy Code or any other present or future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law
(foreign or domestic), such proceeding shall not have been dismissed, or if,
within ninety (90) days after the appointment of any trustee, custodian,
receiver or liquidator of Tenant or of all or any part of Tenant's property,
without the consent or acquiescence of Tenant, such appointment shall not have
been vacated or otherwise discharged, or if any execution or attachment shall be
issued against Tenant or any of Tenant's property pursuant to which the Premises
shall be taken or occupied or attempted to be taken or occupied; or
(c) if Tenant shall default in the payment
when due of any Base Rent or Additional Rent and such default continues for a
period of five (5) days after the date such payment was due; or
(d) if Tenant shall default in the performance
of any term of this Lease on Tenant's part to be performed (other than the
payment of Base Rent and Additional Rent) and Tenant shall fail to remedy such
default within thirty (30) days after Notice of such default, or if such default
is of such a nature that it cannot be completely remedied within said period of
thirty (30) days if Tenant shall not (x) promptly upon the giving by Landlord of
such Notice, advise Landlord of Tenant's intention to institute all steps
necessary to remedy such situation, (y) promptly institute and thereafter
diligently prosecute to completion all steps necessary to remedy the same, and
(z) complete such remedy within a reasonable time after the date of the giving
of said Notice by Landlord and in any event prior to such time as would either
(i) subject Landlord, Landlord's agents, any Superior Landlord or Superior
Mortgagee to criminal prosecution or civil liability, including, without
limitation, the imposition or threatened imposition of an order to vacate or
revocation or suspension of the certificate of occupancy for the Building or the
Premises, or (ii) cause a default under any Superior Lease or any Superior
Mortgage; or
(e) if Tenant shall default in the making of
any payment under the Existing Lease as set forth in Section 2.4 above after any
notice and grace period set forth in such Lease;
then in any of said events an event of default ("EVENT OF DEFAULT") shall be
deemed to exist.
26. REMEDIES.
If an Event of Default shall exist, the following
provisions shall apply and Landlord shall have the rights and remedies set forth
therein which rights and remedies may be exercised upon or at any time following
the occurrence of an Event of Default:
26.1 (a) By Notice to Tenant, Landlord shall have the
right to accelerate all Base Rent and any other sums due hereunder and otherwise
payable in
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installments over the remainder of the Term, and, at Landlord's option, any
other Additional Rent to the extent that such Additional Rent can be determined
and calculated to a fixed sum; and the amount of accelerated rent, without
further Notice or demand for payment, shall be due and payable by Tenant within
five (5) days after Landlord has so notified Tenant. Additional Rent which has
not been included, in whole or in part, in accelerated rent, shall be due and
payable by Tenant during the remainder of the Term, in the amounts and at the
times otherwise provided for in this Lease.
(b) Notwithstanding the foregoing or the
application of any rule of law based on election of remedies or otherwise, if
Tenant fails to pay the accelerated rent in full when due, Landlord thereafter
shall have the right by Notice to Tenant, (i) to terminate Tenant's further
right to possession of the Premises, or (ii) to terminate this Lease under
Section 26.2 below, and to recover by an action at law all Base Rent and
Additional Rent; and if Tenant shall have paid part but not all of the
accelerated rent, the portion thereof attributable to the period equivalent to
the part of the Term remaining after Landlord's termination of possession or
termination of this Lease shall be applied by Landlord against Tenant's
obligations owing to Landlord as determined by the applicable provisions of
Sections 26.3 and 26.4 below.
26.2 (a) By Notice to Tenant, Landlord shall have the
right to terminate the Lease as of a date specified in the Notice of termination
and in such case, Tenant's rights, including any based on any option to renew,
and to the possession and use of the Premises shall end absolutely as of the
termination date; and this Lease shall also terminate in all respects except for
the provisions hereof regarding Landlord's damages and Tenant's liabilities
arising prior to, out of and following the Event of Default and the ensuing
termination, including the payment of Base Rent and Additional Rent.
(b) Following such termination (as well as
upon any other termination of this Lease by expiration of the Term or otherwise)
Landlord immediately shall have the right to recover possession of the Premises;
and to that end, Landlord may enter the Premises and take possession, with the
giving of Notice to Tenant and no further Notice to quit or any other further
Notice shall be necessary, with or without legal process or proceedings, and in
so doing Landlord may remove Tenant's property (including any Alterations to the
Premises made by Tenant), as well as the property of others as may be in the
Premises, and make disposition thereof in such a manner as Landlord may deem to
be commercially reasonable and necessary under the circumstances.
26.3 (a) Unless and until Landlord shall have
terminated this Lease under Section 26.2 above, Tenant shall remain fully liable
and responsible to perform all of the covenants and to observe all the
conditions of this Lease throughout the remainder of the Term; and, in addition,
Tenant shall pay to Landlord, upon demand and as Additional Rent, the total sum
of all costs, losses and expenses, including reasonable counsel fees, as
Landlord incurs, directly or indirectly, because of any Event of Default having
occurred. The termination of this Lease shall not relieve Tenant of its
obligations to pay any Base Rent or Additional Rent which may be due, included
any accelerated Base Rent or Additional Rent.
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(b) If Landlord either terminates Tenant's
right to possession without terminating this Lease or terminates this Lease and
Tenant's leasehold estate as above provided, Landlord shall have the
unrestricted right to relet the Premises or any part(s) thereof to such
tenant(s) on such terms and for such period(s) as Landlord may deem appropriate.
The failure of Landlord to relet the Premises or any part(s) thereof shall not
release or affect Tenant's liability for damages hereunder. Landlord shall in no
event be liable in any way whatsoever for failure to relet the Premises, or in
the event the Premises are relet, for failure to collect the rent thereof under
such reletting, and in no event shall Tenant be entitled to receive the excess,
if any, of the net rents collected by Landlord over the sums payable by Tenant
hereunder.
26.4 (a) The damages which Landlord shall be entitled
to recover from Tenant shall be the sum of:
(1) all Base Rent and Additional Rent
accrued and unpaid as of the termination date; and
(2) (i) all costs and expenses
incurred by Landlord in recovering possession of the Premises, including counsel
fees and the cost of removal and storage of Tenant's property, improvements and
Alterations therefrom, (ii) the costs and expenses of restoring the Premises to
the condition in which the same were to have been surrendered by Tenant as of
the expiration of the Term, and (iii) the costs of reletting (exclusive of those
covered by the foregoing (ii)) including brokerage fees and counsel fees; and
(3) all Base Rent and Additional Rent
(to the extent that the amount(s) of Additional Rent has been then determined)
otherwise payable by Tenant over the remainder of the Term,
LESS (deducting from the total determined under
sub-paragraphs (1)(2) and (3)) all rent and all other additional rent to the
extent determinable as aforesaid (to the extent that like charges would have
been payable by Tenant) which Landlord receives from other tenant(s) by reason
of the reletting of the Premises or any part thereof during or attributable to
any period falling within the otherwise remainder of the Term.
(b) The damage sums payable by Tenant under
the preceding provisions of this Section 26.4 shall be payable on demand from
time to time as the amounts are determined.
26.5 Landlord shall have all rights and remedies now or
hereafter existing at law with respect to the enforcement of Tenant's
obligations hereunder and the recovery of the Premises. No right or remedy
herein conferred upon or reserved to Landlord or Tenant shall be exclusive of
any other right or remedy, but shall be cumulative and in addition to all other
rights and remedies given hereunder or now or hereafter existing at law.
Landlord and Tenant shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease, or to a decree compelling performance of
any covenant, agreement, condition or provision of this Lease.
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26.6 Nothing herein contained shall limit or prejudice
the right of Landlord to exercise any or all rights and remedies available to
Landlord by reason of default or to prove for and obtain in proceedings under
any bankruptcy or insolvency laws, an amount equal to the maximum allowed by any
law in effect at the time when, and governing the proceedings in which, the
damages are to be proved, whether or not the amount be greater, equal to or less
than the amount of the loss or damage referred to above.
26.7 No delay or forbearance by Landlord in exercising
any right or remedy hereunder, or Landlord's undertaking or performing any act
or matter which is not expressly required to be undertaken by Landlord shall be
construed, respectively, to be a waiver of Landlord's rights or to represent any
agreement by Landlord to undertake or perform such act or matter thereafter.
Waiver by Landlord of any breach by Tenant of any covenant or condition herein
contained (which waiver shall be effective only if so expressed in writing by
Landlord) or failure by the Landlord to exercise any right or remedy in respect
of any such breach shall not constitute a waiver or relinquishment for the
future of Landlord's right to have any such covenant or condition duly performed
or observed by Tenant, or of Landlord's rights arising because of any subsequent
breach of any such covenant or condition nor bar any right or remedy of Landlord
in respect of such breach or any subsequent breach. Landlord's receipt and
acceptance of any payment from Tenant which is tendered not in conformity with
the provisions of this Lease or following an Event of Default (regardless of any
endorsement or notation on any check or any statement in any letter accompanying
any payment) shall not operate as an accord and satisfaction or a waiver of the
right of Landlord to recover any payments then owing by Tenant which are not
paid in full, or act as a bar to the termination of the Lease and the recovery
of the Premises because of Tenant's previous default.
27. SURRENDER OF PREMISES.
27.1 No act or thing done by Landlord or its agents
during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept a surrender of the Premises shall be valid unless the
same be made in writing and signed by Landlord.
27.2 On the Expiration Date or upon the sooner
termination of this Lease or upon any re-entry by Landlord upon the Premises,
Tenant shall, at its sole cost and expense, quit, surrender, vacate and deliver
the Premises to Landlord "broom clean" and in working order, condition and
repair except for ordinary wear, tear and damage by fire or other insured
casualty, together with all improvements which have been made upon the Premises
(except as otherwise provided for in this Lease and subject to the provisions of
Articles 11 and 12). Tenant shall remove from the Premises and the Building all
of Tenant's personal property and personal effects of all persons claiming
through or under Tenant, and shall promptly pay Landlord the cost to repair all
damage to the Premises and the Building occasioned by such removal within thirty
(30) days of the Expiration Date, unless Landlord intends to demolish the
Premises to allow the next tenant to construct its tenant improvements and the
damage caused by Tenant will be eliminated or repaired as a result of such new
construction.
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27.3 If the Expiration Date or the date of sooner
termination of this Lease shall fall on a day which is not a business day, then
Tenant's obligations under Section 27.2 shall be performed on or prior to the
immediately preceding business day.
27.4 Any Alterations or any personal property of Tenant
which shall remain in the Premises after the termination of this Lease shall be
deemed to have been abandoned and either may be retained by Landlord as its
property or may be disposed of, at Tenant's expense, in such manner as Landlord
may determine.
27.5 If the Premises are not surrendered upon the
termination of this Lease, with respect to only such portion not surrendered,
Tenant hereby indemnifies Landlord and holds it harmless against any loss, cost,
expense and/or liability (including attorney's fees), excluding consequential
damages, resulting from or incurred by Landlord in connection with any delay by
Tenant in so surrendering the Premises.
27.6 In the event Tenant remains in possession of the
Premises after the termination of this Lease without the consent of Landlord,
Tenant, at the option of Landlord and without waiving the liability of Tenant,
shall be deemed to be occupying the Premises as a tenant from month-to-month, at
a monthly rental equal to the Base Rent and Additional Rent payable during the
last month of the Term for the first thirty (30) days of such holdover and 1.5
times the Base Rent and Additional Rent payable thereafter, subject to all of
the other terms of this Lease, insofar as the same are applicable to a
month-to-month tenancy.
27.7 Tenant's obligations under this Article shall
survive the expiration or earlier termination of this Lease.
28. BROKERAGE.
28.1 Each party warrants that it has had no dealings
with any broker or agent in connection with the negotiation or execution of this
Lease except for Xxxxxxx & Xxxxxxxxx Inc. (on behalf of Landlord) and WF Realty
LLC (on behalf of Tenant). Landlord shall be responsible for paying any
commissions to said brokers pursuant to a separate agreement(s) with them. Each
party agrees to indemnify the other against all costs, expenses, attorney's fees
or other liability for commissions or other compensation or charges claimed by
any other broker or agent claiming the same by, through or under said party.
Landlord shall have no liability for any brokerage commission arising from a
sublease or assignment by Tenant. The provisions of this Article shall survive
the expiration or sooner termination of this Lease.
29. TENANT ESTOPPEL CERTIFICATES.
29.1 Tenant agrees to execute and return within ten
(10) business days after request by Landlord or the holder of any Superior
Mortgage, a certificate prepared by Landlord and signed by Tenant (i)
substantially in the form annexed hereto as EXHIBIT N, which certificate may
also set forth such further information with respect to the Lease or the
Premises as Landlord or any Superior Mortgagee may reasonably request. Any such
certificate delivered by Tenant pursuant hereto shall be binding upon Tenant and
may be
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relied upon by Landlord, any Superior Mortgagee or prospective mortgagee, or any
prospective purchaser of the Land and/or the Building or any part thereof or any
interest therein. Tenant shall, as soon as possible but in any event within ten
(10) business days following receipt of said proposed certificate from Landlord,
return a fully executed, dated and notarized copy of said certificate to
Landlord. In the event Tenant shall fail to return a fully executed copy of such
certificate (or a fully executed copy of a modified certificate acceptable to
Landlord) to Landlord within the foregoing ten (10) business day period, then an
Event of Default shall exist under this Lease.
30. LANDLORD ESTOPPEL CERTIFICATES.
30.1 Landlord agrees to furnish within ten (10)
business days after request by Tenant a certificate signed by Landlord stating
the date to which Base Rent and Additional Rent has been paid by Tenant and
confirming the absence or existence of defaults hereunder of which Landlord has
knowledge.
31. NOTICES.
31.1 Each provision of this Lease, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
(a) All Base Rent, Additional Rent and other
payments required to be made by Tenant to Landlord hereunder shall be payable to
Landlord at the address set forth in the Fundamental Lease Provisions or at such
other address as Landlord may specify from time to time by written notice
delivered in accordance herewith.
(b) All notices, requests, demands or other
communications (each, a "NOTICE") with respect to this Lease, whether or not
herein expressly provided for, shall be in writing and shall be given by a
receipted hand delivery or by United States certified or registered mail,
postage prepaid, return receipt requested, or by receipted express mail or
receipted overnight courier, or by telecopier (with a requirement of electronic
confirmation of receipt if a Notice is sent by telecopier) to the parties
(including the parties entitled to receive a copy of such Notice as set forth in
the Fundamental Lease Provisions) at their respective addresses or telecopy
numbers as set forth in the Fundamental Lease Provisions. Any such addresses for
the giving of Notice may be changed by either party by giving Notice thereof to
the other. Notices shall be deemed given when so mailed, except for any Notice
of default, which shall be deemed given when received and except for Notices
sent by telecopier, which shall be deemed given when sent.
32. PERSONAL MATTERS.
32.1 The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Building, including any rental income, insurance
proceeds, condemnation awards or sales
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or refinancing proceeds then being held by Landlord and not previously
distributed to its members and any future rental income, insurance proceeds,
condemnation awards or sales or refinancing proceeds to the extent levied upon
by Tenant and in no event shall Tenant make any claim against the members,
shareholders, officers, directors, individuals, partners or joint venturers of
Landlord, or any partners of such partners or joint venturers, for any
deficiency nor shall any such members, shareholders, officers, directors,
individuals, partners or joint venturers, or any partners of such partners or
joint venturers, have or be subject to any personal liability and the assets of
such parties shall not be subject to levy, attachment or other enforcement of a
remedy sought by Tenant or anyone claiming by, through or under Tenant for any
breach or claim hereunder. This clause shall not be deemed to limit or deny any
remedies which Tenant may have in the event of default by Landlord hereunder
which do not involve the personal liability of Landlord.
33. ENVIRONMENTAL MATTERS.
33.1 Tenant shall not engage in operations at the
Premises which involve the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of Hazardous Materials. Tenant further
covenants that it will not cause or permit to exist, as a result of an
intentional or unintentional action or omission on Tenant's part, the releasing,
spilling, leaking, pumping, pouring, emitting, emptying or dumping from, on or
about the Premises of any Hazardous Materials.
33.2 (a) Tenant, its agents, employees, on-site
contractors, and invitees, shall be in compliance with all applicable state,
federal, and local environmental and safety laws and regulations, shall obtain
and maintain all permits, licenses, and authorizations required for Tenant's
business, equipment, and operations on and in connection with the Premises,
shall comply with all terms and conditions of such permits, licenses, and
authorizations, and shall comply with all applicable laws, statutes, rules,
regulations, requirements, orders, and directives of Governmental Authorities
including, without limitation, the Resource Conservation and Recovery Act (42
U.S.C., Section 6901 et seq.); the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C., Section 9601 et seq.); the New York
Environmental Conservation Law; all applicable fire and municipal building
codes, and any amendments thereto and any applicable guidelines or regulations
promulgated thereunder (collectively, the "APPLICABLE LAWS").
(b) Tenant shall certify to Landlord, on
request, that (i) Tenant, its agents, employees, on-site contractors, and
invitees, are in compliance with the requirements of all Applicable Laws, (ii)
no disposal of Hazardous Materials has occurred on, in, under or about the
Premises for which Tenant is responsible, and (iii) no release of Hazardous
Materials has occurred on, in, under or about the Premises for which Tenant is
responsible.
(c) Tenant shall indemnify, defend, and hold
Landlord harmless from and against any and all claims, judgments, damages,
penalties, fines, liabilities, losses, and costs and expenses (including
attorney's fees and court costs) which arise at any time during or after the
Term as a result of or in connection with (i) Tenant's breach of any prohibition
or requirements set forth in this Section, and (ii) any Hazardous Materials
present or occurring in the Premises as a result of Tenant's, its agents',
employees', on-site contractors', or invitees' activities or omissions on or in
connection with
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the Premises. This obligation by Tenant to indemnify, defend, and hold harmless
Landlord includes, without limitation, costs incurred in connection with any
investigation of site conditions, preparation of any remedial or cleanup plan,
or any cleanup, remedial, removal, or restoration work required by Landlord or
any Governmental Authority because of any Hazardous Materials occurring or
present in, on, under, or about the Premises, diminution in value of the
Premises, damages for the loss or amenity of the Premises, and sums paid in
settlement of claims, penalties, attorneys' fees, court costs, consultant and
laboratory fees, and expert's fees as a result of Tenant's, its agents',
employees', on-site contractors, or invitees' activities or omissions on or in
connection with the Premises. Without limiting the foregoing, if any Hazardous
Materials attributable to Tenant, its agents', employees', on-site contractors'
or invitees' activities of any of them, are found on, under or about the
Premises, Tenant shall promptly take all actions, at its sole expense, necessary
to return the Premises to the condition existing prior to the introduction of
Hazardous Materials to the Premises in accordance with Applicable Laws; provided
(i) that, except in emergency situations (in which case Notice shall be given to
Landlord as soon as practicable), Landlord's approval of such actions shall
first be obtained, which approval shall not be unreasonably withheld or delayed,
and (ii) if it is impossible to return the Premises to such condition, as
determined by Landlord in its reasonable judgment, then Tenant may substitute an
alternative action which will achieve and maintain the safe condition of the
Premises, if such alternative is acceptable to Landlord in its sole reasonable
discretion.
33.3 In the event of Tenant's failure to comply in full
with this Article 33, Landlord may, at Landlord's option, perform any and all of
Tenant's obligations as aforesaid and all costs and expenses incurred by
Landlord in the exercise of this right shall be deemed to be Additional Rent
payable on demand and with interest until payment at the rate provided in
Section 6.1.
33.4 (a) Landlord shall not engage in operations at the
Premises which involve the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of Hazardous Materials. Landlord
further covenants that it will not cause or permit to exist, as a result of an
intentional or unintentional action or omission on Landlord's part, the
releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping
from, on or about the Premises of any Hazardous Materials.
(b) Landlord shall indemnify, defend, and hold
Tenant harmless from and against any and all claims, judgments, damages,
penalties, fines, liabilities, losses, and costs and expenses (including
attorney's fees and court costs) which arise at any time during or after the
Term as a result of or in connection with (i) Landlord's breach of any
prohibition or requirements set forth in this Section, and (ii) any Hazardous
Materials present or occurring in the Premises as a result of Landlord's, its
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agents', employees' or on-site contractors' activities or omissions on or in
connection with the Premises. This obligation by Landlord to indemnify, defend,
and hold harmless Tenant includes, without limitation, costs incurred in
connection with any investigation of site conditions, preparation of any
remedial or cleanup plan, or any cleanup, remedial, removal, or restoration work
required by any Governmental Authority because of any Hazardous Materials
occurring or present in, on, under, or about the Premises, damages for the loss
or amenity of the Premises, and sums paid in settlement of claims, penalties,
attorneys' fees, court costs, consultant and laboratory fees, and expert's fees
as a result of Landlord's, its agents', employees' or on-site contractors'
activities or omissions on or in connection with the Premises. Without limiting
the foregoing, if any Hazardous Materials attributable to Landlord, its agents',
employees' or on-site contractors' activities of any of them, are found on,
under or about the Premises, Landlord shall promptly take all actions, at its
sole expense, necessary to return the Premises to the condition existing prior
to the introduction of Hazardous Materials to the Premises in accordance with
Applicable Laws; provided (i) that, except in emergency situations (in which
case Notice shall be given to Tenant as soon as practicable), Tenant's approval
of such actions shall first be obtained, which approval shall not be
unreasonably withheld or delayed, and (ii) if it is impossible to return the
Premises to such condition, as determined by Tenant in its reasonable judgment,
then Landlord may substitute an alternative action which will achieve and
maintain the safe condition of the Premises, if such alternative is acceptable
to Tenant in its reasonable discretion.
33.5 Landlord, its agents, employees, and on-site
contractors shall be in compliance with all Applicable Laws, shall obtain and
maintain all permits, licenses, and authorizations required for Landlord's
business, equipment, and operations on and in connection with the Premises,
shall comply with all terms and conditions of such permits, licenses, and
authorizations, and shall comply with all Applicable Laws.
33.6 As used herein, the term "HAZARDOUS MATERIALS"
means any hazardous, toxic, flammable, or explosive substance, material, or
waste which is or becomes regulated by any Governmental Authority. The term
Hazardous Materials includes, without limitation, any material or substance
which is (i) petroleum, (ii) asbestos, (iii) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C., Section 1317), (iv) defined as "hazardous waste" pursuant to Section
1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C., Section
6901 et seq., (v) defined as a "hazardous substance" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C., Section 9601 et seq., (vi) defined as a "hazardous substance" or
"hazardous waste" under the New York Environmental Conservation Law, or (vii)
defined as a "hazardous" or "toxic" substance in any law similar to or in any
amendment of any of the foregoing laws. Hazardous Materials shall not include
any materials stored on or used at the Premises in quantities which do not
violate Applicable Law and which materials are used in the ordinary conduct of
Landlord's or Tenant's, as the case may be, business at the Premises.
33.7 This Article 33 shall survive the expiration or
sooner termination of this Lease.
34. ARBITRATION.
34.1 Any controversy or claim between Tenant and
Landlord arising out of or relating to this Lease and specifically made subject
to this Article 34 shall be determined by arbitration in New York, New York in
accordance with the Commercial Arbitration Rules then pertaining of the AAA,
subject, however, to the following provisions:
(a) The AAA shall provide the parties with an
identical list of names of persons selected from its panel of arbitrators having
not less than ten (10) years
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experience in the area of the dispute from which a single neutral arbitrator
mutually acceptable to the parties will be appointed within ten (10) days of
receipt of such list;
(b) If the AAA shall be unable to appoint an
arbitrator mutually acceptable to the parties, or if the parties can not agree
upon an acceptable arbitrators within the ten (10) days of the receipt of a list
of the arbitrators, it shall appoint a single neutral arbitrator having not less
than ten (10) years experience in the area of the dispute;
(c) The hearings shall occur on consecutive
weekdays and shall commence not later than thirty (30) days after the
appointment of the arbitrator, unless the parties shall agree otherwise in
writing;
(d) All fees and expenses of the arbitrator
and the AAA shall be borne equally by Landlord and Tenant; and
(e) Within thirty (30) days after the close of
hearings, the arbitrator shall render a written decision on each issue
presented, setting forth specifically the reasons therefor.
35. SECURITY AREA.
35.1 Notwithstanding anything to the contrary contained
in this Lease, in the event that at any time during the Term Tenant shall give a
Notice to Landlord designating an area of the Premises which is used by Tenant
for the storage of money, securities or valuable or confidential documents as
the "SECURITY AREA", then from and after the date designated in such Notice,
which shall be not less than five (5) days after the date of Landlord's receipt
of Tenant's Notice, except in the event of an emergency Landlord and its agents
shall not exercise any right to enter the Security Area, unless Landlord is
accompanied by an employee of Tenant, provided that Tenant shall make an
employee available to accompany Landlord or its agents during such entry at any
time during Business Hours. The location, installation and maintenance of the
Security Are by Tenant shall comply with all requirements of Article 12,
Insurance Requirements and Legal Requirements.
36. NO RECORDING.
36.1 Neither party shall have the right to record this
Lease and same shall not be recorded. Any recording or attempted recording of
this Lease by Tenant shall constitute an Event of Default; provided, however,
either party may request that a memorandum of lease in the form attached hereto
as EXHIBIT O be recorded.
37. MISCELLANEOUS.
37.1 Neither Landlord nor Landlord's agents or brokers
have made any representations or promises with respect to the Premises or the
Building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
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37.2 The submission of this Lease to Tenant shall not
be construed as an offer, nor shall Tenant have any rights with respect thereto
unless and until Landlord and Tenant shall execute a copy of this Lease and
Landlord delivers a fully executed copy to Tenant and Landlord delivers to
Tenant evidence of the written approval of the Landlord's mortgagee to this
Lease (which evidence shall be in the form of a subordination, nondisturbance
and attornment in the form attached as EXHIBIT B executed by Credit Swiss First
Boston Mortgage Capital Corporation).
37.3 Any approval by Landlord or Landlord's architects
and/or engineers of any of Tenant's drawings, plans and specifications which are
prepared in connection with Tenant's Work, any Alterations or construction of
other improvements in the Premises shall not in any way be construed or operate
to bind Landlord or to constitute a representation or warranty of Landlord as to
the adequacy or sufficiency of such drawings, plans and specifications, or the
improvements to which they relate, for any use, purpose, or condition, but such
approval shall merely be the consent of Landlord as may be required hereunder in
connection with Tenant's Work, any Alterations or the construction of other
improvements in the Premises in accordance with such drawings, plans and
specifications.
37.4 If Tenant signs as a corporation, each of the
persons executing this Lease on behalf of Tenant does hereby covenant and
warrant that Tenant is a duly authorized and existing corporation, qualified to
do business in New York, that the corporation has full right and authority to
enter into this Lease, and that each of the persons signing on behalf of the
corporation were authorized to do so.
37.5 The liability of Tenant to Landlord for any
default by Tenant under this Lease shall be limited to the assets of Tenant and
in no event shall Landlord make any claim against the members, shareholders,
officers or directors of Tenant for any deficiency, nor shall any such members,
shareholders, officers or directors of Tenant be subject to any personal
liability or the assets of such parties be subject to levy, attachment or other
enforcement of a remedy sought by Landlord or anyone claiming by, through or
under Landlord for any such a claim hereunder. This clause shall not be deemed
to limit or deny any remedies which Landlord may have in the event of default by
Tenant hereunder which do not involve the personal liability of Tenant.
37.6 Although this Lease was drawn by Landlord, both
Landlord and Tenant have had significant comment with respect to the terms and
provisions contained therein. Accordingly, this Lease shall not be construed
either for or against Landlord or Tenant, but shall be construed simply
according to its fair meaning.
37.7 Whenever a period of time is herein prescribed for
action to be taken by a party, such party shall not be liable or responsible
for, and there shall be excluded from the computation for any such period of
time, any delays caused by or attributable to acts of God, unusual weather
conditions, strikes, lockouts, labor disputes, inability to obtain an adequate
supply of materials, fuel, water, electricity, or other supplies, casualty,
governmental action, accidents, breakage, repairs or any other causes of any
kind whatsoever which are beyond the reasonable control of such party
(collectively, "FORCE MAJEURE").
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37.8 If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws effective during
the Term, then and in that event, the remainder of this Lease shall not be
affected thereby. In lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there shall be added as a part of this Lease
a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and legal, valid and
enforceable.
37.9 This Lease may not be altered, changed or amended,
except by instrument in writing signed by both parties hereto. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver be
in writing signed by Landlord and addressed to Tenant, nor shall any custom or
practice which may evolve between the parties in the administration of the terms
hereof be construed to waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof.
37.10 Provided Tenant has performed all of the terms
and conditions of this Lease, including the payment of Base Rent and Additional
Rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without hindrance from Landlord or anyone
claiming through Landlord, subject to the terms and conditions of this Lease.
37.11 Words of any gender used in this Lease shall be
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
37.12 The captions contained in this Lease are for the
convenience of reference only, and in no way limit or enlarge the terms and
conditions of this Lease.
37.13 Nothing contained in this Lease shall be deemed
or construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between the parties hereto other
than that of Landlord and Tenant.
37.14 The term "LANDLORD" as used in this Lease shall
mean only the owner, or the mortgagee in possession, for the time being, of the
Building, or the owner of a lease of the Building, so that in the event Landlord
shall sell or convey the Building to any party, and such party shall have
assumed in writing the obligations of Landlord arising from and after the date
of such sale, all liabilities and obligations on the part of the Landlord under
this Lease accruing thereafter shall terminate, and thereupon all such
liabilities and obligations shall be binding on the new landlord, and it shall
be so deemed and construed without further agreement between Landlord and its
successors in interest.
37.15 The provisions of this Lease shall be binding
upon, and shall inure to the benefit of, the parties hereto with respect to the
matters set forth herein and to the extent permitted under this Lease to each of
their respective representatives, successors and assigns.
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37.16 This Lease, together with the Exhibits attached
hereto, contains and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise, between the
parties not contained in this Lease, and the Exhibits annexed hereto, shall be
of any force or effect.
37.17 This Lease and the rights and obligations of both
parties hereto hereunder shall be governed by the laws of the State of New York.
37.18 If the Base Rent or any Additional Rent shall be
or become uncollectible by virtue of any law, governmental order or regulation,
or direction of any public officer or body, Tenant shall enter into such
agreement or agreements and take such other action (without additional expense
to Tenant) as Landlord may request, and as may be legally permissible, to permit
Landlord to collect the maximum Base Rent and Additional Rent which may, from
time to time during the continuance of such legal rent restriction be legally
permissible, but not in excess of the amounts of Base Rent and Additional Rent
payable under this Lease. Upon the termination of such legal rent restriction,
(A) the Base Rent and Additional Rent, after such termination, shall become
payable under this Lease in the amount of the Base Rent and Additional Rent set
forth in this Lease for the period following such termination, and (B) Tenant
shall pay to Landlord, if legally permissible, an amount equal to (i) the Base
Rent and Additional Rent which would have been paid pursuant to this Lease, but
for such rent restriction, less (ii) the Base Rent and Additional Rent paid by
Tenant to Landlord during the period that such rent restriction was in effect.
37.19 To the extent either Landlord's or Tenant's
approval or consent is required under the terms of this Lease, such consent,
unless otherwise specifically set forth in this Lease, shall not be unreasonably
withheld or delayed by the party whose consent is requested.
37.20 In any instance in this Lease where amounts,
Tenant's Proportionate Share, rentable or usable square footage, dates, or any
other such information or data changes are required, Landlord shall prepare, and
Tenant and Landlord shall mutually execute, an agreement confirming such
information or data, and amend the Memorandum of Lease and Subordination,
Non-Disturbance and Attornment Agreement accordingly.
38. EXPANSION OPTION.
38.1 Tenant shall have the right to expand the Premises
in accordance with the terms of this Article. Unless waived by Landlord, it
shall be a condition precedent to the exercise of each option set forth below
that no Event of Default exists on the date Notice of the exercise of the
expansion option is given by Tenant and on the effective date on which the
applicable space is added to the Premises. Except as set forth in this Article,
all of the space leased by Tenant under this Article shall be part of the
Premises and subject to all of the other provisions of this Lease. All options
granted under this Section 38.1 are personal to Tenant and the applicable
Related Corporation and may not be exercised by any assignee or subtenant.
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38.2 Tenant shall have the following additional
expansion options, any one or more of which
may be exercised by Tenant:
(a) The entire twelfth (12th) floor of the
Building composed of 23,940 rentable square feet marked on the drawing attached
hereto as EXHIBIT P. Tenant must give Notice of the Exercise of its option with
respect to this space by no later than October 30, 2000 or the option shall
expire.
(b) The entire sixteenth (16th) floor of the
Building composed of 22,700 rentable square feet marked on the drawing attached
hereto as EXHIBIT Q. Tenant must give Notice of the exercise of its option with
respect to this space by no later than October 30, 2000 or the option shall
expire.
(c) The entire fifty-first (51st) floor of the
Building composed of 5,500 rentable square feet marked on the drawing attached
hereto as EXHIBIT R. Tenant must give Notice of the exercise of its option with
respect to this space by no later than September 30, 1999 or the option shall
expire. A portion of this space is under a lease expiring November 30, 1999.
Tenant recognizes that the current tenant may holdover after the expiring of its
stated term. Any holdover by a tenant shall not negate Tenant's option with
respect to such space. Landlord shall use its best efforts to dispossess the
holdover tenant, including the enforcement of any holdover terms and
commencement and prosecution of a dispossess action and the effective date of
the leasing of the space to Tenant shall be upon Landlord's Substantial
Completion of Landlord's Work.
(d) The entire fifty-second (52nd) floor of
the Building composed of 5,500 rentable square feet marked on the drawing
attached hereto as EXHIBIT S. Tenant must give Notice of the exercise of its
option with respect to this space by no later than July 1, 2006 or the option
shall expire. In the event Tenant does not timely exercise the option set forth
in Section 38.2(c), the option set forth in this Section 38.2(d) shall be void
and of no further force and effect.
(e) A portion of the lobby of the Building
approximately as marked on the drawing attached hereto as EXHIBIT T. The exact
usable square footage shall be agreed upon by Landlord and Tenant at the time
Tenant exercise this option. Tenant must give Notice of the exercise of its
option with respect to this space by no later than September 30, 1999 or the
option shall expire. In regard to this space, Landlord shall create a separate
entrance to the Premises and it shall be for the exclusive use of Tenant. Tenant
shall be permitted to place on the Building a sign setting forth Tenant's name
at said entrance and a flag at said entrance, provided said sign and flag meets
the requirement set forth in Article 14, and Landlord shall not unreasonably
withhold its consent to renaming the applicable entrance. Nothing in this
Section shall preclude Tenant's use of the entrance on 00 Xxxxxxxx Xxxxx as an
entrance to Tenant's space or an address for the Building. In the event Tenant
exercises this option, Landlord shall provide at least one (1) security guard in
this area on a 24 hour, 7 day a week basis who shall provide security at a level
consistent with security provided to the remainder of the Building. If Tenant
desires a higher level of security or more than one (1) security guard in the
lobby, Landlord shall provide same. Any additional costs in excess of one
security guard required under this Section shall be paid by Tenant, as
Additional Rent, within twenty (20) days of presentation of an invoice for same.
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To the extent the lobby area, entrance (including the doors contained therein),
elevators and other areas or equipment associated therewith are used exclusively
by Tenant or are dedicated for Tenant's exclusive use, Tenant shall be
responsible for all costs associated with such areas or equipment (to the extent
such costs would otherwise be included in Operating Expenses or paid directly by
Tenant). Tenant shall pay such costs as Additional Rent within twenty (20) days
of receipt of an invoice therefor. In the event Tenant exercises the option set
forth herein, Landlord, at its cost, shall promptly after Tenant exercises tHIS
option bring the Beaver Street entrance and lobby up to the finish and standards
of the 20 Exchange lobby (subject to any approvals required by the New York City
Landmarks Commission and Landlord shall not be required to provide ADA access
from Beaver Street). At the request of Tenant, Landlord shall use commercially
reasonable efforts to pursue the change of the Beaver Street to another name
reasonably acceptable to Landlord and Tenant.
38.3 Time is of the essence with respect to each of
Tenant's Notice deadlines set forth in Section 38.2.
38.4 In the event that Tenant properly exercises an
expansion option as set forth in Section 38.2, the applicable area will be
leased to Tenant effective as of the day that Landlord Substantially Completes
Landlord's Work within the applicable area other than with respect to the option
set forth in Section 38.1(d). In such space, Landlord shall deliver such space
fully demolished. Upon delivery of such space to Tenant, Tenant's Proportionate
Share shall be adjusted accordingly. The Base Rent Commencement Date for any
expansion space shall be the three hundred sixty-sixth (366th) day after the
Beneficial Occupancy Date. The Base Rent for any expansion space shall be the
then effective Base Rent and shall be adjusted as set forth in the Fundamental
Lease Provisions.
38.5 (a) Landlord shall complete Landlord's Work within
the expansion space.
(b) Landlord shall reimburse Tenant up to a
maximum of Forty Two and 50/100 Dollars ($42.50) per rentable square foot in the
application expansion area (the "EXPANSION SPACE TENANT IMPROVEMENT ALLOWANCE")
to be applied to the same costs and in the same manner as the Tenant Improvement
Allowance. Tenant shall comply with the provisions of Article 7 with respect to
all work to be completed within the applicable expansion area. The Expansion
Space Tenant Improvement shall be advanced to Tenant in accordance with the
provisions of Section 7.6.
38.6 Any failure by Tenant to exercise any option under
this Article 38 shall not adversely affect or diminish the rights of Tenant
under Article 43 of the Lease.
39. OPTION TO SURRENDER SPACE.
39.1 Tenant shall have the right, which right may be
exercised once at any time after the seventh (7th) anniversary of the Base Rent
Commencement Date, to reduce the space constituting the Premises by surrendering
one (1) full base floor of the Premises or up to two (2) tower floors, provided
the following conditions are complied with by Tenant:
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(a) at the time of the exercise of the option
provided in this Article, no Event of Default has occurred and is continuing;
(b) Tenant shall give Landlord Notice of the
exercise of this right at any time after a date which is seven (7) years after
the Base Rent Commencement Date, and the date for surrendering such space shall
be not earlier than twelve (12) months from the date that the aforesaid Notice
is delivered to Landlord;
(c) The space surrendered shall be (i) a full
floor, and (ii) located on the uppermost or lowest floors of any particular
block of contiguous space occupied by Tenant;
(d) Tenant shall pay to Landlord within twenty
(20) days after Landlord delivers to Tenant an invoice, a cancellation fee equal
to the unamortized or undepreciated costs associated with such space determined
on the basis of an amortization or depreciation period for the then remaining
Term, which cost shall include, but not be limited to, the following costs which
Landlord has incurred with respect to such space: free rent, the Tenant
Improvement Allowance, brokerage commissions (WF Realty LLC) and the cost of any
reasonable alterations required to separate the surrendered space from the
remaining portions of the Premises and to make the surrendered space tenantable
and rentable. If Tenant fails to timely pay such fee, the surrender right set
forth in this Section shall become null and void and Tenant shall have no
further right to surrender any space. After Tenant pays to Landlord such fee,
Landlord and Tenant shall execute and deliver to each other an agreement setting
forth (i) a description of the portion of the Premises so surrendered, (ii) the
effective date of such surrender, and (iii) the reduction in Base Rent and in
Tenant's Proportionate Share resulting from such surrender. The parties shall
also execute and deliver to each other and record an amendment to the Memorandum
of Lease setting forth a description of the portion of the Premises so
surrendered and the effective date of such surrender.
40. TERMINATION RIGHT OF TENANT.
40.1 Tenant has the option, which may be exercised by
Tenant in its sole and absolute discretion, to terminate this Lease in the event
the City of New York does not, within sixty (60) days of the date of this Lease,
grant to Tenant an economic incentive program acceptable to Tenant. Tenant shall
terminate this Lease by delivering a Notice to Landlord within five (5) days of
the end of such sixty (60) day period. Notwithstanding the foregoing, Landlord
shall commence performing Landlord's Work on the thirty-first (31st) day
following the date of this Lease, and Tenant shall reimburse Landlord for any
costs Landlord incurs regarding Landlord's Work commencing on the thirty first
(31st) day after the date of the Lease. Said costs shall be reimbursed to
Landlord within ten (10) days of the delivery of an invoice to Tenant.
41. THE LOWER MANHATTAN PLAN
41.1 For purposes of this Article 41, unless otherwise
defined in this Lease, all terms used herein shall have the meanings ascribed to
them in Title 4 of
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Article 4 of the New York Real Property Tax Law (the "LOWER MANHATTAN PLAN").
Landlord represents the Building qualifies for the benefits of the Lower
Manhattan Plan. Landlord makes no representations as to whether Tenant qualifies
for such benefits. It shall be Tenant's responsibility to determine whether it
qualifies for such benefits.
41.2 For purposes of the Lower Manhattan Plan, Tenant's
Percentage Share shall mean Tenant's Proportionate Share.
41.3 Provided Tenant is eligible for the real estate
tax abatement of the Lower Manhattan Plan (the "LMP ABATEMENT BENEFITS") with
respect to the Premises, Landlord agrees to comply with the provisions and
requirements of the Lower Manhattan Plan and the rules promulgated thereunder as
the same relate to the Premises and to Landlord (in connection with Tenant's
eligibility for the LMP Abatement Benefits); provided, however, that Tenant
shall promptly pay to Landlord, as Additional Rent hereunder, within twenty (20)
days after Tenant's receipt of an invoice therefor, the amount of any reasonable
out-of-pocket costs incurred by Landlord in connection with such compliance,
including, without limitation the amount of any administrative charges or fees
imposed by the New York City Department of Finance (the "DEPARTMENT") in
connection with such compliance.
41.4 Tenant shall indemnify and hold harmless Landlord
from and against any and all claims arising from or in connection with Tenant's
failure to comply with the provisions and requirements of the Lower Manhattan
Plan and the rules promulgated thereunder as the same relate to the Premises,
together with all costs, expenses and liabilities incurred in connection with
each such claim or action or proceeding brought thereon, including, without
limitation, all attorneys' fees and expenses.
41.5 In accordance with the Lower Manhattan Plan and
notwithstanding anything to the contrary contained in this Lease, Landlord
agrees to allow Tenant a credit against the Base Rent and Additional Rent
payable by Tenant hereunder in an amount that, in the aggregate, equals the full
amount of any abatement of Taxes granted for the Premises pursuant to the Lower
Manhattan Plan and actually received by Landlord (the "ACTUAL LMP Benefits").
Landlord shall, within thirty (30) days after its receipt of the Actual LMP
Benefits, credit the full amount thereof against the next installment(s) of Base
Rent and or Additional Rent becoming due hereunder.
41.6 In accordance with Section 499-c(5) of the Lower
Manhattan Plan, Landlord agrees and informs Tenant that:
(1) the rent, including amounts payable by Tenant for Taxes,
provided Tenant qualifies for the benefit of the Lower
Manhattan Plan will accurately reflect any abatement of Taxes
granted pursuant to Title 4 of Article 4 of the New York
Property Tax Law for the Premises.
(2) at least thirty five dollars ($35.00) per square foot must be
spent on improvements to the Premises.
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(3) all abatements granted with respect to the Premises pursuant
to Title 4 of Article 4 of the New York Real Property Law will
be revoked if, during the Benefit Period, real estate taxes or
water or sewer charges or other lienable charges are unpaid
for more than one year, unless such delinquent amounts are
paid as provided in subdivision four of section four hundred
ninety-nine-f of Title 4 of the New York Real Property Law. In
the event the aforesaid abatement is revoked because Landlord
failed to pay the aforesaid charges, Landlord shall indemnify
Tenant from any loss of benefits which Tenant incurs,
including any retroactive revocation of benefits.
41.7 Nothing contained herein shall be construed to
impose any obligation on Landlord to perform any improvements to the Premises
and/or the common areas to establish Tenant's eligibility for the LMP Abatement
Benefits.
41.8 (a) Landlord, upon not less than thirty (30)
business days advance written notice from Tenant, agrees to cooperate with
Tenant to execute, deliver and file, together with the Abatement Application,
the affidavit required by Section 499-C(7) of the Lower Manhattan Plan.
(b) Landlord, upon not less than thirty (30)
business days advance written notice from Tenant, agrees to cooperate with
Tenant to execute, deliver and file, within sixty (60) days after receipt of
such notice, an application (the "ABATEMENT APPLICATION") for a certificate of
abatement in accordance with Section 499-D of the Lower Manhattan Plan. Landlord
further agrees to provide all other information required by the Department
pursuant to Section 499-D of the Lower Manhattan Plan and to otherwise comply
with the provisions of said Section 499-D.
(c) For so long as Tenant continues to be
eligible for the LMP Abatement Benefits with respect to the Premises, Landlord,
upon not less than thirty (30) business days advance written notice from Tenant,
agrees to cooperate with Tenant to annually execute, deliver and file a
certificate of continuing eligibility in accordance with Section 499-F of the
Lower Manhattan Plan.
(d) Tenant shall promptly pay to Landlord, as
Additional Rent, within twenty (20) days after Tenant's receipt of an invoice
therefor, the amount of any reasonable out-of-pocket costs incurred by Landlord
in connection with the performance of Landlord's obligations pursuant to this
Section, including, without limitation, the amount of any administrative charges
or fees imposed by the Department in connection with such compliance.
41.9 Landlord agrees to provide Tenant with such
further cooperation ("FURTHER Cooperation") as may reasonably be requested by
Tenant to assist Tenant in obtaining any incentives, subsidies, refunds or
payments ("FURTHER BENEFITS") made available to Tenant by (i) any modification
to or amendment of the Lower Manhattan Plan, (ii) any program of the New York
City Industrial Development Agency
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or any other governmental agency or (iii) any public utility; provided, and on
condition that:
(a) such Further Cooperation shall be at no cost to Landlord;
and
(b) Tenant shall indemnify and hold harmless Landlord from and
against any and all claims arising from or in connection with such Further
Cooperation and the receipt by Tenant of such Further Benefits together with all
costs, expenses and liabilities incurred in connection with each such claim or
action or proceeding brought thereof, including, without limitation, all
attorneys' fees and expenses.
42. GUARANTEE; SECURITY DEPOSIT.
42.1 In order to induce Landlord to execute and deliver
this Lease, Tenant shall procure and deliver to Landlord a guarantee in the form
attached hereto as EXHIBIT U duly executed by Omnicom Group Inc.
42.2 The obligations under this Lease imposed upon
Tenant shall be the joint and several obligations of Tenant and Omnicom.
Landlord need not first proceed against Tenant before proceeding against such
guarantor nor shall any such guarantor be released from its guaranty for any
reason whatsoever, including, without limitation, in case of any amendments
hereto or waivers hereof. Any guarantee shall be a guarantee of payment and not
a guarantee of collection.
42.3 At any time during the Term and until the
conditions set forth in Section 23 of the Guaranty have been satisfied, Tenant
may substitute a letter of credit complying with the provisions of this Lease
for the guarantee required by this Section. In the event Tenant so substitutes
the letter of credit, the provisions of Section 42.4 shall be applicable.
42.4 The letter of credit and the issuer bank must be
in all respects acceptable to Landlord and the letter of credit must provide for
partial draws and that the same may be drawn upon by Landlord pursuant to the
provisions of this Section. In the event Tenant defaults in respect of any of
the terms, provisions and conditions of this Lease, including, but not limited
to, the payment of Base Rent or Additional Rent or if Tenant does not deliver to
Landlord a replacement letter of credit not later than thirty (30) days before
the expiration of the letter of credit, Landlord may apply or retain the whole
or any part of the security deposit so deposited to the extent required for the
payment of any Base Rent and Additional Rent or any other sum as to which Tenant
is in default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this Lease. If Landlord applies or retains any part of the
security deposit so deposited, Tenant, upon demand, shall deposit with Landlord
the amount so applied or retained so that Landlord shall have the full security
deposit on hand at all times during the Term. If Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the security shall be returned to Tenant after the Expiration Date
and after delivery of the entire possession of the Premises to Landlord. In the
event of a sale of the
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Building, Landlord shall have the right to transfer the security deposit to the
vendee or lessee and Landlord shall whereupon be released by Tenant from all
liability for the return of the security deposit; and Tenant agrees to look
solely to the new landlord for the return of the security deposit; and it is
agreed that the provisions hereof shall apply to every transfer or assignment
made of the security deposit to a new landlord. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the security
deposit and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
43. RIGHT OF FIRST REFUSAL.
43.1 (a) Provided no Event of Default shall have occurred and
be continuing and Tenant has not exercised its expansion options set forth in
Section 38.2(a) or (b), as the case may be, then Tenant shall have the right to
exercise the rights set forth in this Article 43.
43.2 (a) In the event floors twelve or sixteen or any
contiguous floors in the tower portion of the Premises (the "AVAILABLE SPACE")
become Available For Leasing, Tenant shall have the right ("RIGHT OF FIRST
OFFER") to have Landlord submit written Notice (the "LEASE NOTICE") to Tenant of
Landlord's desire to lease the Available Space, which Lease Notice shall be
deemed an offer to Tenant to lease the Available Space.
(b) The Lease Notice shall set forth, (i) the date on which
Landlord anticipates the Available Space being available for occupancy (the
"AVAILABLE SPACE SCHEDULED DATE") and (ii) such other matters as Landlord may
deem appropriate for such Lease , provided, however, all Available Space shall
have expiration dates co-terminus with the Lease, including the Expiration Date.
(c) Tenant shall have ten (10) days following Tenant's receipt
of the Lease Notice to deliver to Landlord written Notice (the "ELECTION TO
LEASE NOTICE") of Tenant's desire to lease from Landlord all of the Available
Space (Tenant shall not be permitted to rent a portion of the Available Space).
Time shall be of the essence with respect to said ten (10) day period and the
failure or refusal of Tenant for any reason whatsoever to deliver to Landlord
the Election to Lease Notice in the time and manner herein prescribed shall be
deemed an irrevocable waiver of Tenant's Right of First Offer, whereupon
Tenant's Right of First Offer shall lapse, and be of no further force or effect
as to such Available Space (or any portion thereof) for the remainder of the
Term of the Lease.
(d) If Tenant shall timely and in the manner herein prescribed
deliver its Election to Lease Notice to Landlord, then, on the date on which
Landlord delivers vacant possession of the Available Space to Tenant (the
"EFFECTIVE DATE"), such Available Space shall become, and be deemed to comprise,
part of the Premises as if originally included in the demise hereunder, upon the
terms, covenants and provisions set forth in this Lease, except that (i) the
Base Rent for the Available Space shall be the Fair Market Value of such space,
as determined in accordance with Section 2.4(d) (taking into account the work to
be performed by Landlord), multiplied by the rentable square feet of the
Available Space (as determined by Landlord in Landlord's reasonable discretion)
and such amount will be added to the Base Rent otherwise payable under the terms
of this
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Lease and (ii) Tenant's Proportionate Share shall be adjusted accordingly. The
Available Space shall be delivered fully demolished.
(e) The Available Space shall be deemed "AVAILABLE FOR
LEASING" if:
(i) the current lease for the Available Space has
expired (after any extension or renewal thereof) prior to the Expiration Date,
and
(ii) the Available Space (or any portion thereof) is
not subject to an expansion option, right of first refusal, right of first offer
or other right or obligation to lease such space granted by Landlord prior to
the date of this lease to any other tenant in the Building.
(f) If, for any reason, Landlord is unable to deliver
possession of the Available Space to Tenant on or prior to the Available Space
Scheduled Date, then this Lease and the obligations of Tenant hereunder,
including, without limitation, any obligation of Tenant hereunder to lease the
Available Space, shall not be impaired under such circumstances and Landlord
shall not be subject to any liability on account of such failure. Landlord shall
use its best efforts to disposses any holdover tenant, including the enforcement
of any holdover terms and commencement and prosecution of a dispossess action.
In the event Landlord does not deliver the Available Premises within six (6)
months of the Available Space Scheduled Date, regardless of fault, Tenant may
cancel the option set forth in this Section as to the undelivered Available
Space, and neither Landlord or Tenant shall have any liability to each other.
The rights of other tenants to the floors set forth in subparagraph (a) of this
Section are set forth on EXHIBIT V.
44. PARKING
44.1 Landlord shall provide Tenant with up to ten (10) parking
spaces during the Term of the Lease at a parking garage as close to the Building
as reasonably possible. Six (6) of such parking spaces shall be provided by
Landlord to Tenant at no cost to Tenant. Any additional parking spaces shall be
provided by Landlord to Tenant at a preferred rate (a rate which is less than
the rate charged by the parking garage to the public). Tenant shall pay for such
additional spaces as Additional Rent within twenty (20) days of receipt of an
invoice therefor.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease
as of the day and year first above written.
LANDLORD:
20 PLACE ASSOCIATES LLC, a New York
limited liability company
By: 20 X LLC,
Managing Member
By: Next Generation 20 X LLC,
Managing Member
By: /s/ Xxxxxx Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx,
Managing Member
TENANT:
XXXXXX.XXX, LTD., a New York
corporation
By: /s/ Xxxxxxx Xxxxx
---------------------------
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EXHIBIT A-1
Location Map of Thirteenth Floor Premises
91
EXHIBIT A-2
Location Map of Fourteenth Premises
92
EXHIBIT A-3
Location Map of Fifteenth Floor Premises
93
EXHIBIT A-4
Location Map of Fiftieth Floor Premises
94
EXHIBIT A-5
Location Map of Below Grade Premises
95
EXHIBIT A-6
Location Map of Roof Premises
To Be Agreed Upon
96
EXHIBIT B
Subordination, Nondisturbance and Attornment Agreement
97
EXHIBIT C
Legal Description of the Land
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, County of New York, City and State of New York, bounded
and described as follows:
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EXHIBIT D
Operating Expenses
EXPENSES
Payroll
Cleaning
Utilities
Electrical
HVAC
Elevator
Security
General Building Repairs
Trash Removal
Fire Safety Equipment & Maintenance
Management Fee
Administrative Expenses
Insurance
TOTAL OPERATING EXPENSES
Electric Income
Tenant Services Income
NET OPERATING EXPENSES
99
EXHIBIT E
Landlord's Work
100
EXHIBIT F
Confirmation of Beneficial Occupancy Date Agreement
AGREEMENT made this _______ day of ____________, 199_ between 20 PLACE
ASSOCIATES LLC, a New York limited liability company, having an office c/o The
Witkoff Group LLC, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord")
and XXXXXX.XXX, LTD., a New York corporation, having an office at 00 Xxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx ("TENANT").
W I T N E S S E T H:
1. Landlord and Tenant have heretofore entered into a Lease dated as of
_________________, 199_ (hereinafter referred to as the "LEASE") for the leasing
by Landlord to Tenant certain premises, all as in the Lease more particularly
described (collectively, the "PREMISES"), in the building known as 00 Xxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx.
2. Pursuant to Section 7.3(a) of the Lease, Landlord and Tenant agree
that the Beneficial Occupancy Date for the ______ floor portion of the Premises
was _____________________, 199_.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Confirmation of Beneficial Occupancy Date Agreement as of the day and year first
above written.
Landlord:
20 PLACE ASSOCIATES LLC
By:________________________
Its:_______________________
Tenant:
XXXXXX.XXX, LTD.
By:_________________________
Its:________________________
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EXHIBIT G
Form of Application for Payment
To be mutually agreed upon by Landlord and Tenant.
102
EXHIBIT H
Cleaning Specifications for the Premises
103
EXHIBIT I
HVAC Specifications
The heating, air conditioning an ventilation systems of the
Building are designed to meet the following criteria:
Summer
Indoor
Outdoor
Winter
Indoor
Outdoor
Design Population
Interior Zones
Perimeter Zones
HVAC Allowance
Lights (Watt/Sq. Ft.)
Equipment
Total
Average Interior Air Circulation
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EXHIBIT J
Certificate of Occupancy
105
EXHIBIT K
Sign Criteria
1/4" thick Clear Plexi, sized to fit the frames. Two (2) Color Silk
Screen Copy using a custom proprietary typestyle for the suite numbers
and a standard serif typestyle for the copy.
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EXHIBIT L
Floor Loads
FLOOR LIVE LOAD LBS. PER SQUARE FOOT
----- ------------------------------
12 120
13 120
14 120
15 120
16 120
50 60
51 60
52 60
The foregoing loads are based upon the loads set forth in the
certificate of occupancy for the Building dated January 7, 1998.
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EXHIBIT M
Rules and Regulations
1. The sidewalks, driveways, entrances, passages, courts,
lobbies, esplanade areas, atrium, plazas, elevators, escalators, stairways,
vestibules, corridors, halls and other public portions of the Building ("Public
Areas") shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the Premises, and no tenant
shall permit any of its employees, agents, licensees or invitees to congregate
or loiter in any of the Public Areas. No tenant shall invite to, or permit to
visit, its premises persons in such numbers or under such conditions as may
interfere with the use and enjoyment by others of the Public Areas. Fire exists
and stairways are for emergency use only, and they shall not be used for any
other purposes by any tenant, or the employees, agents, licensees or invitees of
any tenant. Landlord reserves the right to control and operate, and to restrict
and regulate the use of, the Public Areas and the public facilities, as well as
facilities furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally, including the right to
allocate certain elevators for delivery service, and the right to designate
which Building entrances shall be used by persons making deliveries in the
Building. No doormat of any kind whatsoever shall be placed or left in any
public hall or outside any entry door of the Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises, without the consent of Landlord. Such curtains, blinds, shades or
screens must be of a quality, type, design and color, and attached in the
manner, approved by Landlord. In order that the Building can and will maintain a
uniform appearance to those persons outside of the Building, each tenant
occupying the perimeter areas of the Building shall (a) use only building
standard lighting in areas where lighting is visible from the outside of the
Building and (b) use only building standard blinds in window areas which are
visible from the outside of the Building.
3. No sign, insignia, advertisement, lettering, notice or other
object shall be exhibited, inscribed, painted or affixed by any tenant on any
part of the outside or inside of the Premises or the Building or on corridor
walls without the prior consent of Landlord. Signs on each entrance door of the
Premises shall conform to building standard signs, samples of which are on
display in Landlord's rental office. Such signs shall, at the expense of Tenant,
be inscribed, painted or affixed by signmakers approved by Landlord. In the
event of the violation of the foregoing by any tenant, Landlord may remove the
same without any liability, and may charge the expense incurred in such removal
to the tenant or tenants violating this rule. Interior signs, elevator cab
designations, if any, and lettering on doors and, subject to Article 14 of the
Lease to which these Rules and Regulations are attached (the "Lease"), the
Building directory shall, if and when approved by Landlord, be inscribed,
painted or affixed for each tenant by Landlord, at the expense of such tenant,
and shall be of a size, color and style acceptable to Landlord. Only Tenant
named in the Lease shall be entitled to appear on
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the directory tablet. Additional names may be added in Landlord's sole
discretion under such terms and conditions as the Landlord may approve.
4. Neither the sashes, sash doors, skylights or windows that
reflect or admit light and air into the halls, passageways or other public
places in the Building nor the heating, ventilating and air conditioning vents
and doors shall be covered or obstructed by any tenant, nor shall any bottles,
parcels or other articles be placed on the window xxxxx or on the peripheral
heating enclosures. Tenant shall have no right to remove or change shades,
blinds or other window coverings within the Premises without Landlord's consent.
Tenant acknowledges that although the windows are not hermetically sealed Tenant
is not permitted to open such windows.
5. No showcases or other articles shall be put by Tenant in
front of or affixed to any part of the exterior of the Building, nor placed in
the Public Areas.
6. No acids, vapors or other harmful materials shall be
discharged, or permitted to be discharged, into the waster lines, vents or flues
of the Building. The water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other foreign substances
shall be thrown or deposited therein. Nothing shall be swept or thrown into the
Public Areas or other areas of the Building, or into or upon any heating or
ventilating vents or registers or plumbing apparatus in the Building, or upon
adjoining buildings or land or the street. The cost of repairing any damage
resulting from any misuse of such fixtures, vents, registers and apparatus and
the cost of repairing any damage to the Building, or to any facilities of the
Building, or to any adjoining building or property, caused by any tenant, or the
employees, agents, licensees or invitees of such tenant, shall be paid by such
tenant. Any cuspidors or similar containers or receptacles shall be emptied,
cared for and cleaned by and at the expense of such tenant.
7. Except as otherwise permitted in Articles 7, 11 and 12 of the
Lease; Tenant shall not xxxx, paint, drill into, or in any way deface, any part
of the Premises of the Building; no boring, cutting or stringing of wires shall
be permitted, except with the prior written consent of, and as directed by,
Landlord; no telephone, telegraph or other wires or instruments shall be
introduced into the Building by any tenant except in a manner approved by
Landlord; Tenant shall not lay linoleum, or other similar floor covering, so
that the same shall come in direct contact with the floor of its premises, and,
if linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
8. No bicycles, vehicles, animals (except seeing eye dogs), fish
or birds of any kind shall be brought into, or kept in or about, the Premises.
9. No noise, including, but not limited to music, the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building, shall be made or
permitted by any tenant. Nothing
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shall be done or permitted by any tenant which would impair or interfere with
the use or enjoyment by any other tenant of any other space in the Building.
10. Nothing shall be done or permitted in the Premises, and
nothing shall be brought into, or kept in or about the Premises, which would
impair or interfere with any of the Building Equipment or the services of the
Building or the proper and economic heating, ventilating, air conditioning,
cleaning or other services of the Building or the Premises, nor shall there be
installed by any tenant any ventilating, air conditioning, electric or other
equipment of any kind which, in the judgment of Landlord, might cause any such
impairment or interference. No tenant, nor the employees, agents, licensees or
invitees of any tenant, shall at any time bring or keep upon its premises any
inflammable, combustible or explosive fluid, chemical or substance.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any tenant, nor shall any changes be made in
locks or the mechanism thereof. Duplicate keys for the Premises and toilet rooms
shall be procured only from Landlord, and Landlord may make a reasonable charge
therefor based upon Landlord's actual cost. Each tenant shall, upon the
expiration or sooner termination of the Lease of which these Rules and
Regulations are a part, turn over to Landlord all keys to stores, offices and
toilet rooms, either furnished to, or otherwise procured by, such tenant, and in
the event of the loss of any keys furnished by Landlord, such tenant shall pay
to Landlord the cost of replacement locks. Notwithstanding the foregoing, Tenant
may, wit Landlord's prior consent, install a security system in the Premises
which uses master codes or cards instead of keys provided that Tenant shall
provide Landlord with the master code or card for such system.
12. All removals, or the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or matter of any
description shall take place only during such hours and in such elevators as
Landlord may from time to time reasonably determine, which may involve overtime
work for Landlord's employees. Tenant shall reimburse Landlord for extra costs
reasonably incurred by Landlord including but not limited to the cost of such
overtime work. Landlord reserves the right to inspect all objects and matter to
be brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part. Landlord may require any person leaving
the Building with any package or other object or matter to submit a pass,
listing such package or object or matter, from the tenant from whose premises
the package or object or matter is being removed, but the establishment or
enforcement of such requirement shall not impose any responsibility on Landlord
for the protection of any tenant against the removal of property from the
premises of such tenant. Landlord shall in no way be liable to any tenant for
damages or loss arising from the admission, exclusion or rejection of any person
to or from the Premises or the Building under the provisions of Rule 12 or of
Rule 15 hereof.
13. No tenant shall use or occupy, or permit any portion of its
premises to be used or occupied, as an office for a public stenographer or
public typist, or for the possession, storage, manufacture or sale of narcotics
or dope or as a xxxxxx, beauty or manicure shop, telephone or telegraph agency,
telephone or secretarial service,
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messenger service, travel or tourist agency, retail, wholesale or discount shop
for sale of merchandise, retail service shop, labor union, classroom, company
engaged in the business of renting office or desk space, or for a public finance
(personal loan) business, or as a hiring employment agency, or as a stock
brokerage board room. No tenant shall engage or pay any employee in its
premises, except those actually working for such tenant on its premises, nor
advertise for laborers giving an address at the Building. No tenant shall use
its premises or any part thereof, or permit the Premises or any part thereof to
be used, as a restaurant, shop, booth or other stand, or for the conduct of any
business or occupation which predominantly involves direct patronage of the
general public, or for manufacturing, or for the sale at retail or auction of
merchandise, goods or property of any kind.
14. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in the judgment of Landlord, tends to
impair the appearance or reputation of the Building or the desirability of the
Building as a building for offices, and upon written notice from Landlord, such
tenant shall refrain from and discontinue such advertising or identifying sign.
15. Landlord reserves the right to exclude from the Building all
employees of any tenant who does not present a pas to the Building signed by
such tenant. Landlord or its agent will furnish passes to persons for whom any
tenant requests same in writing. Landlord reserves the right to require all
other persons entering the Building to sign a register, to be announced to the
tenant such person is visiting, and to be accepted as a visitor by such tenant
or to be otherwise properly identified (and, if not so accepted or identified,
reserves the right to exclude such persons from the Building) and to require
persons leaving the Building to sign a register or to surrender a pass given to
such person by the tenant visited. Each tenant shall be responsible for all
persons for whom it requests any such pass or any person whom such tenant so
accepts, and such tenant shall be liable to Landlord for all acts or omissions
of such persons. Any person whose presence in the Building at any time shall, in
the judgment of Landlord, be prejudicial to the safety, character, security,
reputation or interests of the Building or the tenants of the Building may be
denied access to the Building or may be ejected from the building. In the event
of invasion, riot, public excitement or other commotion, Landlord may prevent
all access to the Building during the continuance of the same by closing the
doors or otherwise, for the safety of tenants and the protection of property in
the Building.
16. Unless Landlord shall otherwise request, each tenant, before
closing and leaving its premises at any time, shall see that all lights are
turned out. All entrance doors in the Premises shall be kept locked by each
tenant when its premises are not in use. Entrance doors shall not be left open
at any time.
17. Each tenant shall, at the expense of such tenant, provide
light, power and water for the employees of Landlord, and the agents,
contractors and employees of Landlord, while doing janitor service or other
cleaning in the premises demised to such tenant and while making repairs or
alterations in its premises.
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18. The premises shall not be used for lodging or sleeping or
for any immoral or illegal purpose.
19. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
20. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
21. The employees, agents, licensees and invitees of any tenant
shall not loiter around the Public Areas or the front, roof or any part of the
Building used in common by other occupants of the Building.
22. There shall not be used in any space, or in the Public
Areas, either by any tenant or by others, in the moving or delivery or receipt
of safes, freight, furniture, packages, boxes, crates, paper, office material or
any other matter or thing, any hand trucks except those equipped with rubber
tires, side guards and such other safeguards as Landlord shall require. No hand
trucks shall be used in passenger elevators.
23. No tenant shall cause or permit any odors of cooking or
other processes, or any unusual or objectionable odors, to emanate from its
premises which would annoy other tenants or create a public or private nuisance.
No cooking shall be done in the Premises except as is expressly permitted in the
Lease of which these Rules and Regulations are a part, except that Tenant shall
be permitted to use microwave ovens in any breakroom or lunch room located in
the Premises.
24. All paneling, doors, trim or other wood products not
considered furniture shall be of fire-retardant materials. Before installation
of any such materials, certification of the materials' fire-retardant
characteristics shall be submitted to and approved by Landlord, and installed in
a manner approved by Landlord.
25. Landlord reserves the right to rescind, alter, waive or add,
as to one or more or all tenants, any rule or regulation at any time prescribed
for all tenants of the Building generally when, in the reasonable judgment of
Landlord, Landlord deems it necessary or desirable for the reputation, safety,
character, security, care, appearance or interests of the Building, or the
preservation of good order therein, or the operation or maintenance of the
Building, or the equipment thereof, or the comfort of tenants or others in the
Building. No rescission, alteration, waiver or addition of any rule or
regulation in respect of one tenant shall operate as a rescission, alteration or
waiver in respect of any other tenant.
26. In the event of any conflict or inconsistency between the
provisions of this Exhibit M and the Lease, the provisions of the Lease shall
prevail.
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EXHIBIT N
Form of Tenant Estoppel Certificate
TENANT ESTOPPEL CERTIFICATE AND AGREEMENT
(PREMISES: 00 XXXXXXXX XXXXX, XXX XXXX CITY)
THIS IS TO CERTIFY THAT:
1. The undersigned is the Lessee (the "Tenant") under that certain lease
(the "Lease") dated as specified in 6(a) below, by and between 20 Place
Associates LLC, as Lessor (the "Landlord"), and the undersigned or the
person specified in 6(b) below, as Lessee, covering those certain
premises commonly known and designated as the floors or portions thereof
specified in 6(c) below (the "Premises"), at 00 Xxxxxxxx Xxxxx, in the
Borough of Manhattan, City, County and State of New York.
2. The Lease (i) constitutes the entire agreement between the undersigned
and the Landlord with respect to the Premises, (ii) has not been
modified, changed, altered, or amended in any respect (except as
indicated in 6(h) below), and (iii) is the only Lease between the
undersigned and the Landlord affecting the Premises.
3. The undersigned has accepted and now occupies the entire premises
covered by the Lease, and all improvements required by the terms of the
Lease to be made by the Landlord have been completed to the satisfaction
of the undersigned.
4. (i) No party to the Lease is in default, (ii) the Lease is in full force
and effect, (iii) full rental is accruing thereunder and (iv) as of the
date hereof the undersigned has no charge, lien or claim of offset (and
no claim for any credit or deduction) under the Lease or otherwise,
against rents or other charges due or to become due thereunder or on
account of any prepayment of rent more than 30 days in advance of its
due date.
5. Since the date of the Lease, there has been no material adverse change
in the financial condition of the undersigned, and there are no actions,
whether voluntary or otherwise, pending against the undersigned under
the bankruptcy, reorganization, arrangement, moratorium, or similar laws
of the United States, any state thereof, or any other jurisdiction.
6. (a) The date of the Lease is _____________.
(b) The original Lessee of the Lease, if different from the
undersigned, was ___________.
(c) The premises covered by the Lease are Suite _____, _______
floor.
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(d) The term of the Lease began (or is scheduled to begin) on
____________, and the expiration date is _____________.
(e) The fixed rent and additional rent for the Premises has been
paid to and including ___________.
(f) The monthly fixed rent currently being paid pursuant to the
Lease is $________ which includes $_________ for electricity and
$_________ for the Additional Rent Escalation. Tenant has paid
_____ for the Real Estate Tax Escalation for the period
___________ through ___________.
(g) The Landlord is holding a security deposit for the Tenant in the
amount of ________.
(h) The following are exceptions to the statements in 2(ii):
7. There are no tenant allowances, tenant improvement contributions,
settlement amounts, rebates or other obligations owing from Landlord to
Tenant except: ____
8. A true and correct copy of the Lease and all amendments thereto is
attached to this letter.
9. This estoppel certificate may be relied upon by 20 Place Associates LLC
and ______________________________________.
Dated: ______________
By: _________________
Title: ______________
Signed On: __________
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EXHIBIT O
Memorandum of Lease
THIS MEMORANDUM OF LEASE (hereinafter referred to as the
"Memorandum of Lease") is made and entered into as of the ____ day of _______,
19__ by and between 20 PLACE ASSOCIATES LLC, a New York limited liability
company, with an office c/o The Witkoff Group LLC, with an office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Landlord"),
and XXXXXX.XXX, LTD., a New York corporation, with an office at
___________________, New York, New York _____ (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
For and in consideration of the sum of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and the further consideration of the covenants and
undertakings hereinafter set forth, as well as each and every covenant,
agreement and undertaking set forth in that certain Lease between Landlord and
Tenant dated as of the date hereof (hereinafter referred to as the "Lease"), an
executed copy whereof is in the possession of each party hereto and all of which
terms and conditions are by reference made a part hereof as fully and completely
as if herein specifically set out in full, Landlord and Tenant do hereby
covenant and agree as follows:
1. LEASED PREMISES. Subject in all respects to the terms,
provisions and conditions of the Lease, by virtue of the Lease, Landlord has
leased to Tenant a leasehold estate and Tenant has leased from Landlord on the
date of execution of the Lease: (i) the thirteenth (13th), fourteenth (14th),
fifteenth (15th) and fiftieth (50th) floors and a portion of the below grade
space, in accordance with the terms of the Lease
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(collectively, "the Premises"), in that certain building (the "Building")
located at 00 Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx more particularly described on
SCHEDULE A annexed hereto (the "Land").
2. TERM. Subject in all respects to the terms, provisions and
conditions of the Lease, the original term of the Lease shall commence on
_____________, 19__ (the "Term Commencement Date") and, unless sooner terminated
pursuant to law or pursuant to any of the terms of the Lease, shall end on
_______________, 20__ (the "Expiration Date"). In addition, subject to the
terms, provisions and conditions of the Lease, Tenant shall have the option to
extend the term of the Lease beyond the Expiration Date for up to one (1) period
of five (5) years.
3. EXPANSION AND REDUCTION OF PREMISES. Subject in all respects
to the terms, provisions, conditions and expansion options set forth in the
Lease, Tenant may elect to expand the Premises to include the floors in the
Building set forth below:
(a) The twelfth (12th) floor compromised of __________
rentable square feet.
(b) The sixteenth (16th) floor comprised of ______ rentable
square feet.
(c) The fifty-first (51st) floor comprised of ______ rentable
square feet.
(d) The fifty-second (52nd) floor comprised of ______ rentable
square feet.
(e) A portion of the below grade space comprised of 5,000
rentable square feet.
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4. USE. Subject in all respects to the terms, provisions and conditions
of the Lease, Tenant shall use the Premises for general and administrative
office use, which may include a cafeteria, telecommunication facilities, data
services, conference center mail or other commonly used facilities of Tenant for
use for Tenant's employees and such ancillary uses which are consistent with the
Class A nature of the Building.
5. CONFLICTING PROVISIONS. In the event that any conflict exists between
the terms and provisions of this Memorandum of Lease and the terms and
provisions of the Lease, the terms and provisions of the Lease shall be deemed
controlling in all respects.
6. EFFECT OF MEMORANDUM OF LEASE. Landlord and Tenant have executed,
delivered and shall record this Memorandum of Lease for the purpose of giving
notice to third persons of the existence and effect of the Lease without
recording the entire Lease itself. It is acknowledged that the complete,
detailed terms, covenants and conditions of the Lease appear in the Lease
itself, copies of which are in the possession of the parties hereto. Nothing
contained herein is intended to or does change, modify or affect any of the
terms or provisions of the Lease or the rights, duties, obligations, conditions
and agreements created thereby, all of which remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Memorandum of Lease as of the day and year first above written.
LANDLORD:
TENANT:
MEMORANDUM OF LEASE
by and between
20 PLACE ASSOCIATES LLC
AND
XXXXXX.XXX
Record and Return to:
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_______________________________
_______________________________
_______________________________
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EXHIBIT P
Location Map of Twelfth Floor Option Space
120
EXHIBIT Q
Location Map of Sixteenth Floor Option Space
121
EXHIBIT R
Location Map of Fifty-First Floor Option Space
122
EXHIBIT S
Location Map of Fifty-Second Floor Option Space
123
EXHIBIT T
Location Map of Lobby Option Space
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GUARANTY OF LEASE
THIS GUARANTY OF LEASE (the "Guaranty") made this ___ day of _______,
1999, by OMNICOM GROUP INC. ("Guarantor"), a New York corporation with an office
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to and for the benefit of 20
PLACE ASSOCIATES, LLC ("Landlord"), a New York limited liability company.
W I T N E S S E T H:
WHEREAS, by lease dated of even date herewith (the "Lease") between
Landlord, as landlord, and Xxxxxx.Xxx, Ltd. ("Tenant"), as tenant, Landlord
leases to Tenant, and Tenant leases from Landlord, the Premises under and as
defined in the Lease;
WHEREAS, Guarantor will benefit from Tenant's entering into the Lease;
WHEREAS, Guarantor is executing and delivering this Guaranty as a
material inducement to Landlord entering into the Lease; and
WHEREAS, Landlord is unwilling to enter into the Lease unless Guarantor
executes and delivers this Guaranty to Landlord,
NOW, THEREFORE, in consideration of the execution and delivery of the
Lease by Landlord and in order to induce Landlord to accept the Lease and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Guarantor, for itself, its successors and assigns, hereby
agrees with Landlord for the benefit of Landlord, its successors and assigns, as
follows:
1. DEFINITIONS. Terms not otherwise defined herein shall have the
meaning described to them in the Lease.
2. GUARANTY. Guarantor hereby guarantees to Landlord, within five (5)
days of receipt of written notice from Landlord to Guarantor, the full and
prompt payment, when due, of the Base Rent and Additional Rent and all other
sums and charges, however characterized, payable by Tenant under the Lease, and
further hereby guarantees the full and timely performance and observance of all
covenants,
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terms, conditions and agreements therein provided to be performed and observed
by Tenant subject to and in accordance with the provisions of the Lease, and
Guarantor hereby covenants and agrees to and with Landlord that if Tenant, its
successor or assigns should default at any time in the payment of rent or any
other sum or default at any time in the payment of rent or any other sum or
charge payable under the Lease, or if Tenant, its successors or assigns should
default in the performance and observance of any of the covenants, terms,
conditions or agreements contained in the Lease, Guarantor will, upon expiration
of any grace period provided Tenant under the Lease, forthwith upon demand
therefor pay such rent and other sums and charges, and any arrears thereof, to
Landlord, subject to any defense or right of set-off or counterclaim permitted
pursuant to the provisions of the Lease that Tenant may assert, and will
forthwith faithfully perform and fulfill all such terms, covenants, conditions
and agreements on demand, and will pay to Landlord all damages, costs and
expenses that may result from any default by Tenant, its successors or assigns,
under the Lease, including without limitation, all costs or expenses, including
reasonable attorneys' fees and disbursements, incurred by Landlord or caused by
any such default and/or in any way relating to the enforcement or protection of
the rights of Landlord under this Guaranty or under the Lease, successive
recoveries may be had under this Guaranty. (All of the obligations guaranteed or
undertaken by Guarantor in this Section are hereinafter referred to as the
"Obligations").
3. ABSOLUTE GUARANTY. Subject to the terms of the Lease and any
defenses, counterclaims or offsets which Tenant may have against Landlord which
are permitted pursuant to the terms of this Lease, this Guaranty is an
irrevocable, absolute and unconditional guaranty of payment and of performance.
It shall be enforceable against Guarantor without the necessity of any suit or
proceeding on Landlord's part of any kind or nature whatsoever against Tenant,
its successors or assigns, and without the necessity of nonpayment,
nonperformance or non-observance or any notice of acceptance of this Guaranty
and without need for demand for payment under this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives.
4. NO DISCHARGE. This Guaranty shall be a continuing guaranty and
Guarantor expressly agrees that the liability of Guarantor hereunder shall in no
way be terminated, affected, modified, released, impaired or diminished by
reason of:
(a) any assignment or subletting of the Premises or any part
thereof in accordance with the terms of the Lease;
(b) the amendment, modification or supplement of, or change
in, any of the terms, covenants, conditions or provisions of the Lease or this
Guaranty;
(c) any extension of time that may be granted by Landlord to
Tenant, Guarantor or their respective successors or assigns for (i) the payment
of any sum owing or payable under, or arising out of or on account of the Lease
or this Guaranty, or (ii) the performance of any obligation under the Lease or
this Guaranty;
(d) a changed or different use of the Premises, (provided that
no such change may be made unless consented to by Landlord pursuant to the
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applicable provisions of the Lease), or by reason of any dealings or
transactions or matters occurring between Landlord and Tenant, and their
respective successors or assigns, whether or not notice thereof is given to
Guarantor;
(e) any enforcement, assertion or exercise or any failure,
omission or delay on the part of the Landlord to enforce, assert or exercise
against Tenant, its successors or assigns, any right, power or remedy conferred
on or available to Landlord in or by the Lease or this Guaranty or allowed at
law or in equity, or any action on the part of Landlord granting indulgence or
extension in any form whatsoever;
(f) the waiver by Landlord of the performance or observance by
Tenant or Guarantor of any of the agreements, covenants, terms or conditions
contained in the Lease or this Guaranty;
(g) the doing or the omission of any of the acts referred to
in the Lease or this Guaranty (including, without limitation, the giving of any
consent) provided such act or omission does not constitute a default by Landlord
under the Lease and same does not continue beyond any grace period set forth in
the Lease for such default;
(h) (i) the voluntary or involuntary liquidation, dissolution,
sale of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, Tenant or any of its
assets (collectively "BANKRUPTCY PROCEEDINGS"); (ii) the release or discharge of
Tenant in any Bankruptcy Proceedings; (iii) the impairment, limitation or
modification of the liability of Tenant, or the estate of Tenant in bankruptcy,
or of any remedy for the enforcement of Tenant's liability under the Lease,
resulting from any Bankruptcy Proceedings, by operation of any current or future
law or court decision with respect to bankruptcy or creditor's rights; or (iv)
the rejection of disaffirmance of the Lease in any Bankruptcy Proceedings;
(i) the release of Tenant or Guarantor from the performance or
observance of any of the agreements, covenants, terms or conditions contained in
the Lease or this Guaranty by operation of law;
(j) the surrender by the holder thereof of any security for
the performance or observance of any of the agreements, covenants, terms or
conditions contained in the Lease;
(k) the inability or failure of Landlord to enforce any
provision of the Lease, or any remedies contained in the Lease, for any reason;
or
(l) the disposition by Guarantor of part or all of the
outstanding stock of Tenant.
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5. ASSIGNMENT AND SUBLETTING. Landlord's consent to any assignment or
subletting of all or any portion of the Premises by any party by Tenant or
Tenant's successors or assigns made either with or without notice to Guarantor,
shall in no manner whatsoever release Guarantor from any liability hereunder.
6. BANKRUPTCY. In the event of the rejection or disaffirmance of the
Lease by Tenant or Tenant's trustee in bankruptcy pursuant to the bankruptcy
laws or any other law affecting creditors' rights or in any Bankruptcy
Proceedings, Guarantor will, and does hereby (without the necessity of any
further agreement or act), assume all obligations and liabilities of Tenant
under the Lease, to the same extent as if (a) it were originally named Tenant
under the Lease, and (b) there had been no such rejection or disaffirmance; and
Guarantor will confirm such assumption in writing, at the request of Landlord,
upon or after such rejection or disaffirmance; and Guarantor shall upon such
assumption (to the extent permitted by law) have all of the obligations and
liabilities of Tenant under the Lease.
7. RIGHT OF SEPARATE ACTIONS. Landlord may bring and prosecute a
separate action against Guarantor to enforce its liabilities hereunder, whether
or not any action is brought against Tenant or any other person and whether or
not Tenant or any other person is joined in any such action or actions. Nothing
shall prohibit Landlord from exercising its rights against Guarantor, Tenant,
any security for the Obligations, and any other person simultaneously, jointly
and/or severally. Guarantor shall be bound by each and every ruling, order and
judgment obtained by Landlord against Tenant in respect of the Obligations,
whether or not Guarantor is a party to the action or proceeding in which such
ruling, order to judgment is issued or rendered.
8. WAIVER OF RIGHTS OF SUBROGATION. Guarantor hereby irrevocably waives
any rights to be subrogated to the rights of Landlord with respect to the
Obligations until such time as the Obligations are satisfied. Guarantor hereby
agrees that it will not institute or take any action seeking reimbursement
against Tenant until such time as Landlord shall have received payment in full
in cash in satisfaction of all of the Obligations. No failure on the part of
Landlord to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by Landlord of any right, remedy or power hereunder preclude any other
or future exercise of any other right, remedy or power.
9. WAIVER OF NOTICE, CONSENT, ETC. (a) This Guaranty shall be construed
as a continuing, absolute and unconditional guarantee of payment and
performance.
(b) Guarantor hereby waives notice of acceptance of this
Guaranty by Landlord and of presentment, demand, protest, notice of protest and
of dishonor and all other notices relative to this Guaranty of every kind and
description now or hereafter provided by any agreement between Tenant and
Landlord or any statute or rule of law.
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(c) Guarantor waives any and all notice of the creation or
accrual of any of the Obligations or of the reliance by Landlord upon this
Guaranty. Said Obligations, and each of them, shall conclusively be deemed to
have been created, contracted, or incurred in reliance upon this Guaranty and
all dealings between Tenant and Landlord shall likewise be conclusively presumed
to have been made or consummated in reliance upon this Guaranty.
(d) Guarantor hereby agrees that any term, covenant, and
provision contained in the Lease may be altered, modified, waived, released or
cancelled by Landlord, all without any further consent of Guarantor, and
Guarantor agrees that this Guaranty and its liability hereunder shall be in no
way affected, diminished or released by any such alteration, modification,
release, waiver or cancellation.
10. WAIVER OF ELECTION OF REMEDIES. Guarantor waives any right to
require or compel Landlord to (a) proceed against Tenant or any other guarantor;
(b) proceed against or exhaust any security for the Obligations; or (c) pursue
any other remedy in Landlord's power whatsoever; and the failure of Landlord to
do any of the foregoing shall not exonerate, release or discharge Guarantor from
its absolute, unconditional and independent liabilities to Landlord hereunder.
Guarantor hereby waives any and all legal requirements that Landlord shall or
may institute, any action or proceedings at law or in equity against Tenant, or
anyone else, in respect of the Lease or resort to or seek to realize upon the
security held by Landlord, as a condition precedent to bringing an action
against Guarantor upon this Guaranty.
11. CONTINUING GUARANTY. Until all Obligations are satisfied, Guarantor
shall not be released by any act or thing which might, but for this provisions,
be deemed a legal or equitable discharge of a surety, or by reason of any
waiver, extension, modification, forbearance or delay or other act or omission
of Landlord or its failure to proceed promptly or otherwise, or by reason of any
action taken or omitted or circumstance which may or might vary the risk or
affect the rights or remedies of Guarantor or by reason of any further dealings
between Tenant and Landlord, whether relating to the Lease or not, and Guarantor
hereby expressly waives and surrenders any defenses to its liability hereunder
based upon any of the foregoing acts, omissions, things or agreements or waivers
of Landlord; it being the purpose and intent of the parties hereto that the
obligations of Guarantor hereunder are absolute and unconditional under any and
all circumstances.
12. REMEDIES CUMULATIVE. Guarantor hereby waives notice of acceptance
of this Guaranty, notice of any obligations or liabilities contracted or
incurred by Tenant, and extensions of time granted to Tenant under the Lease.
13. JOINDER OF ACTIONS. All of Landlord's rights and remedies under the
Lease and this Guaranty are intended to be distinct, separate and cumulative,
and no such right and remedy therein or herein mentioned, whether exercised by
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Landlord or not, is intended to be an exclusion of or a waiver of any of the
others. The obligation of Guarantor hereunder shall not be released by
Landlord's receipt, application or release of any security given for the
performance and observance or covenants and conditions required to be performed
or observed by Tenant under the Lease, nor shall Guarantor be released by the
maintenance of or execution upon any lien which Landlord may have or assert
against Tenant and/or Tenant's assets.
14. NOTICES. All notices, demands, instructions and other
communications required or permitted to be given to or made upon either party
hereto or any other person shall be in writing and shall be either personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested or by prepaid courier, and shall be deemed to be given for
purpose of this Guaranty in regard to registered or certified mail, three (3)
days after mailing, and in regard to personal delivery or prepaid courier, on
the day that such writing is delivered. Unless otherwise specified by notice in
accordance with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the following persons at their respective addresses indicated below:
IF TO GUARANTOR:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telephone: 000-000-0000
Telecopy: 000-000-0000
WITH A COURTESY COPY TO:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairperson, Real Estate Department
Telephone: 000-000-0000
Telecopy: 000-000-0000
IF TO LANDLORD:
20 Place Associates LLC
c/o The Witkoff Group LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xx. Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
WITH A COURTESY COPY TO:
The Witkoff Group LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx., Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
or at such other address as any of the parties may from time to time designate
by written notice given as herein required. Rejection or refusal to accept or
inability to deliver because of changed addresses or because no notice of
changed address was given shall be deemed a receipt of such notice.
15. ENTIRE AGREEMENT. This Guaranty represents the entire agreement
between Guarantor and Landlord with respect to the matters referred to herein
and therein and no waiver or modification hereof or thereof shall be effective
unless in writing and signed by Landlord and Guarantor.
16. GOVERNING LAW. THIS GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED, ENFORCED, AND INTERPRETED ACCORDING TO THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE IN AND PERFORMED IN
THE STATE OF NEW YORK.
17. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
Guarantor and upon its successors and assigns and shall inure to the benefit of
Landlord and its endorsees, successors and assigns.
18. CONSTRUCTION. Each and every provision of this guaranty has been
mutually negotiated, prepared and drafted; each party has been represented by
counsel; and in connection with the construction of any provision hereby or
deletions herefrom, no consideration shall be given to the issue of which party
actually prepared, drafted, requested or negotiated any provision or deletion.
19. REPRESENTATIONS OF GUARANTOR. Guarantor hereby represents, warrants
and covenants as follows:
(a) This Guaranty has been duly executed and delivered and
constitute the valid and binding obligation of Guarantor and is enforceable
against Guarantor in accordance with its terms subject, as to enforcement only,
to bankruptcy, insolvency, moratorium and other similar laws at the time in
effect
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affecting the enforceability of the rights of creditors generally and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(b) Guarantor is not insolvent (as such term is defined in
Section 101(29) of the Bankruptcy Code of 1978, as amended) and will not be
rendered insolvent (as such term is defined in Section 101(29) of the Bankruptcy
Code of 1978, as amended) by execution of this Guaranty or by the consummation
of the transaction contemplated thereby.
(c) The consummation of the transactions contemplated hereby
and the performance by Guarantor of its Obligations under this Guaranty will not
result in any breach of, give rise to a lien under, or constitute a default
under, any mortgage, deed of trust, lease, bank loan or credit agreement,
partnership agreement, corporate charter, by-laws or other agreement or
instrument to which Guarantor is a party or by which it may be bound or
affected.
(d) Guarantor is deriving or expects to derive a financial or
other advantage from each any every Obligation.
20. TIME OF THE ESSENCE. Time shall be of the essence with regard to
the performance by Guarantor of its Obligations under this Guaranty.
21. SEVERABILITY OF PROVISIONS. Any provision of this Guaranty which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without affecting the validity or
unenforceability of such provision.
22. MAXIMUM LIABILITY. Notwithstanding any other provision of this
Guarantee, the maximum liability of Guarantor under this Guarantee, whether for
any claim or in the aggregate for all claims, shall not exceed $4,000,000.
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23. TERMINATION OF GUARANTY. This Guaranty shall terminate upon the
earlier to occur of (i) Guarantor making payment to Landlord of the maximum
liability of Guarantor under this Guaranty as set forth in Section 22 of this
Guaranty or (ii) for each of eight (8) consecutive quarters, the net income of
Xxxxxx.Xxx, Ltd. in each quarter shall be greater than Six Hundred Twenty Five
Thousand Dollars ($625,000) and on an annualized historical basis, the net
income in any four consecutive quarters shall be greater than Four Million
Dollars ($4,000,000) and the net worth of Xxxxxx.Xxx, Ltd. in each of such
quarters shall be greater than Fifty Million Dollars ($50,000,000). The net
income and net worth shall be determined in accordance with generally accepted
accounting principles, consistently applied and shall be certified to Landlord
in each quarter during the term of this Guaranty by the Chief Financial Officer
of Tenant.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty the day
first above written.
OMNICOM GROUP INC.
By:________________________
000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK)
On the ____ day of _________, 1999, before me, the subscriber,
personally appeared _________________, the _______________ of OMNICOM GROUP
INC., a New York corporation, the corporation which executed the foregoing
instrument; who indicated that the execution of the instrument by OMNICOM GROUP
INC. was duly authorized by the board of directors of said corporation and that
said President had authority to sign the instrument; _____________, to me known
to be the person described in and who executed the foregoing instrument,
acknowledged that he executed the same as his free act and deed.
------------------------------
Notary Public
134
LEASE
20 PLACE ASSOCIATES LLC,
a New York
limited liability company (LANDLORD)
and
XXXXXX.XXX, LTD.
a New York corporation (TENANT)
00 XXXXXXXX XXXXX
XXX XXXX, XXX XXXX
135
TABLE OF CONTENTS
ARTICLE PAGE
1. DEFINITIONS AND BASIC PROVISIONS..........................................................................6
2. LANDLORD'S AUTHORITY; PREMISES; TERM; RENEWAL............................................................14
3. RENTABLE AREA............................................................................................17
4. BASE RENT................................................................................................17
5. ADDITIONAL RENT -ESCALATIONS.............................................................................17
6. LATE CHARGE..............................................................................................29
7. LANDLORD'S WORK..........................................................................................29
8. LANDLORD'S OBLIGATIONS -UTILITIES AND SERVICES...........................................................35
9. USE......................................................................................................43
10. COMPLIANCE WITH LAWS.....................................................................................44
11. REPAIRS..................................................................................................45
12. ALTERATIONS BY TENANT....................................................................................46
13. INSPECTIONS..............................................................................................50
14. SIGNS....................................................................................................51
15. BUILDING DIRECTORY.......................................................................................52
16. INSURANCE; WAIVER OF SUBROGATION.........................................................................52
17. TENANT'S EQUIPMENT.......................................................................................53
18. NON-LIABILITY AND INDEMNIFICATION........................................................................55
19. ASSIGNMENT AND SUBLETTING................................................................................57
20. SUBORDINATION AND ATTORNMENT.............................................................................62
21. ACCESS; CHANGE IN FACILITIES.............................................................................64
22. RULES AND REGULATIONS....................................................................................66
136
23. DAMAGE OR DESTRUCTION....................................................................................66
24. EMINENT DOMAIN...........................................................................................68
25. CONDITIONS OF LIMITATION.................................................................................70
26. REMEDIES.................................................................................................71
27. SURRENDER OF PREMISES....................................................................................74
28. BROKERAGE................................................................................................75
29. TENANT ESTOPPEL CERTIFICATES.............................................................................75
30. LANDLORD ESTOPPEL CERTIFICATES...........................................................................75
31. NOTICES..................................................................................................75
32. PERSONAL MATTERS.........................................................................................76
33. ENVIRONMENTAL MATTERS....................................................................................76
34. ARBITRATION..............................................................................................79
35. SECURITY AREA............................................................................................80
36. NO RECORDING.............................................................................................80
37. MISCELLANEOUS............................................................................................80
38. EXPANSION OPTION.........................................................................................83
39. OPTION TO SURRENDER SPACE................................................................................85
40. TERMINATION RIGHT OF TENANT..............................................................................86
41. THE LOWER MANHATTAN PLAN.................................................................................86
42. GUARANTEE................................................................................................89
43. RIGHT OF FIRST REFUSAL...................................................................................90
44. PARKING..................................................................................................91
137
EXHIBITS
Exhibit A-1 Location Map of Thirteenth Floor Premises
Exhibit A-2 Location Map of Fourteenth Floor Premises
Exhibit A-3 Location Map of Fifteenth Floor Premises
Exhibit A-4 Location Map of Fifty Fourth Floor Premises
Exhibit A-5 Location Map of Below Grade Premises
Exhibit A-6 Location Map of Roof Premises
Exhibit B Form of Subordination, Nondisturbance and Attornment Agreement
Exhibit C Legal Description of the Land
Exhibit D Operating Expenses
Exhibit E Landlord's Work
Exhibit F Confirmation of Beneficial Occupancy Date Agreement
Exhibit G Form of Application for Payment
Exhibit H Cleaning Specifications for the Premises
Exhibit I HVAC Specifications
Exhibit J Certificate of Occupancy
Exhibit K Sign Criteria
Exhibit L Floor Loads
Exhibit M Rules and Regulations
Exhibit N Form of Tenant Estoppel Certificate
Exhibit O Memorandum of Lease
Exhibit P Location Map of Twelfth Floor Option Space
Exhibit Q Location Map of Sixteenth Floor Option Space
Exhibit R Location Map of Fifty-First Floor Option Space
Exhibit S Location Map of Fifty-Second Floor Option Space
Exhibit T Location Map of Lobby Space
Exhibit U Form of Guarantee of Lease
Exhibit V Rights of Other Tenants
