LEASE
between
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
"Landlord"
and
THE GOLDMAN SACHS GROUP, L.P.
"Tenant"
April 5, 1994
<PAGE> 2
Lease
TABLE OF CONTENTS
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ARTICLE 1 Premises, Term and Fixed Rent ..................................................................1
ARTICLE 2 Use of Premises ................................................................................3
ARTICLE 3 Escalations ....................................................................................6
ARTICLE 4 Delivery of Premises; Landlord's Work .........................................................31
ARTICLE 5 Subordination, Non-Disturbance and
Attornment ..................................................................................33
ARTICLE 6 Quiet Enjoyment ...............................................................................37
ARTICLE 7 Assignment, Subletting and Mortgaging .........................................................37
ARTICLE 8 Compliance with Laws ..........................................................................61
ARTICLE 9 Insurance .....................................................................................66
ARTICLE 10 Rules and Regulations..........................................................................69
ARTICLE 11 Alterations....................................................................................70
ARTICLE 12 Tenant's Improvements and Tenant's Property....................................................78
ARTICLE 13 Repairs and Maintenance........................................................................80
ARTICLE 14 Electric Energy................................................................................83
ARTICLE 15 Landlord's Services............................................................................92
ARTICLE 16 Access and Name of Building...................................................................103
ARTICLE 17 Partnership Tenant............................................................................114
ARTICLE 18 Indemnification and Non-Liability.............................................................115
ARTICLE 19 Damage or Destruction.........................................................................117
ARTICLE 20 Eminent Domain................................................................................122
ARTICLE 21 Surrender.....................................................................................124
ARTICLE 22 Conditions of Limitation......................................................................124
ARTICLE 23 Reentry by Landlord...........................................................................127
ARTICLE 24 Damages.......................................................................................128
ARTICLE 25 Affirmative Waivers...........................................................................130
ARTICLE 26 No Waivers....................................................................................131
ARTICLE 27 Curing Tenant's Defaults......................................................................131
ARTICLE 28 Broker........................................................................................132
ARTICLE 29 Notices.......................................................................................132
ARTICLE 30 Estoppel Certificates.........................................................................133
ARTICLE 31 Definitions...................................................................................133
ARTICLE 32 No Representations by Landlord................................................................138
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ARTICLE 33 Untenantability...............................................................................138
ARTICLE 34 Holdover......................................................................................138
ARTICLE 35 Miscellaneous Provisions and Definitions......................................................139
ARTICLE 36 Parking.......................................................................................145
ARTICLE 37 Tenant's Termination Right....................................................................147
ARTICLE 38 Renewal Terms.................................................................................154
ARTICLE 39 Definition of Landlord; Condominium
Provisions.........................................................................162
ARTICLE 40 Arbitration...................................................................................164
ARTICLE 41 Structural Work and Exterior Improvements.....................................................165
ARTICLE 42 47th Floor Space..............................................................................185
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SCHEDULES AND EXHIBITS
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Schedule A Fixed Rent
Exhibit A Land
Exhibit B List of Units of Condominium
Exhibit C-1 Floor Plan of 41st Floor
Exhibit C-2 Floor Plan of 42nd Floor
Exhibit C-3 Floor Plan of 43rd Floor
Exhibit C-4 Floor Plan of 44th Floor
Exhibit C-5 Floor Plan of 45th Floor
Exhibit C-6 Floor Plan of 46th Floor
Exhibit C-7 Floor Plan of 48th Floor
Exhibit C-8 Floor Plan of 49th Floor
Exhibit C-9 Floor Plan of 50th Floor
Exhibit D Rentable Area of Building and Each Floor
Exhibit E Landlord's Work
Exhibit F-1 Form of Non-Disturbance Agreement for
Underlying Leases
Exhibit F-2 Form of Non-Disturbance Agreement for
Mortgages
Exhibit G Form of Assumption Agreement
Exhibit H Rules and Regulations
Exhibit I List of Contractors Approved for Initial
Alterations
Exhibit J Alteration Rules and Regulations
Exhibit K HVAC Specifications
Exhibit L Cleaning Specifications
Exhibit M-1 PSI Dedicated Lobby
Exhibit M-2 Bank X Elevator Lobby and Bank X Concourse
Elevator
Exhibit M-3 Location of Lobby Partitions, Security Desk
and Podium
Exhibit N Building's Certificate of Occupancy
Exhibit O-1 Form of Landlord's Consent to Assignments
Exhibit O-2 Form of Landlord's Consent to Subleases
Exhibit P Permitted Location of Unisex Lavatories (Each
Floor)
Exhibit Q Acknowledged ACM Areas
Exhibit R Switchgear Room (Containing Designated 20th
Floor Electrical Panels)
Exhibit S Primary Landlord Conduit Areas
Exhibit T-1 Stairwell B Enclosure Location
Exhibit T-2 Stairwell E Enclosure Location
Exhibit T-3 Designated Fire Stairwells
Exhibit U Map of Possible Area of Qualified Relocation
Premises
Exhibit V-1 Specifications for Chilled Water Meter
Exhibit V-2 Specifications for Steam Meter
Exhibit W Lease Amendments and Modifications; Re: GSAM
Exhibit X-1 Tenant's Penthouse Roof Area
Exhibit X-2 Building Penthouse
Exhibit X-3 Ancillary Telecommunications Roof Area
Exhibit X-4 Tenant's Fuel Tank Area
Exhibit X-5 Tenant's 20th Floor Electrical Power Areas
Exhibit X-6 Structural Work Preliminary Plans
Exhibit X-7 Penthouse Work Preliminary Plans
Exhibit X-8 Noise and Vibration Specification
Exhibit X-9 Description of Tenant's UPS Units
Exhibit X-10 Fire Tower
Exhibit X-11 Designated Hot Decks
Exhibit X-12 Building's Freight Elevator Lobby
Exhibit X-13 Specifications for 50th Floor Pipe Relocation
Work
Exhibit Y Floor Plan of 47th Floor (47th Floor Space)
Exhibit Z Disabled Person Access Procedures
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<PAGE> 5
LEASE, dated April 5, 1994, between THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), incorporated under the laws of the United States of
America, having an office at 4 Chase MetroTech Center, 17th Floor, Brooklyn, New
York 11245, Attention: Vice President (herein called "LANDLORD") and THE GOLDMAN
SACHS GROUP, L.P., a Delaware limited partnership, having its principal business
address at 85 Broad Street, New York, New York 10004, Attention: General
Services Department (herein called "TENANT").
W I T N E S S E T H:
ARTICLE 1
Premises, Term and Fixed Rent
1.01. Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, upon and subject to the terms, covenants, provisions and
conditions of this lease, the premises described in Section 1.03, which premises
are located in the building known as One New York Plaza in the City, County and
State of New York (herein called the "BUILDING"), which Building is located on
the land described in Exhibit A attached hereto and made a part hereof (herein
called the "LAND").
1.02. As of March 4, 1993, Landlord, as the then sole fee
simple owner of the Building and the Land, submitted the Building and the Land
to condominium ownership in accordance with the Condominium Act (as defined in
Article 31 hereof) by recording the Condominium Declaration (as defined in
Article 31 hereof), and thereby created the condominium known as The One New
York Plaza Condominium (the "CONDOMINIUM"), which Condominium consists of the
units described on Exhibit B annexed hereto and made a part hereof (each, a
"UNIT", and collectively, the "UNITS"), and which Condominium is governed by the
Common Owner and/or the Board, as such terms are defined in and as more
particularly set forth in the Condominium Declaration; such Board and Common
Owner being herein referred to collectively as the "CONDOMINIUM BOARD").
1.03. The premises leased to Tenant hereunder (herein called
the "PREMISES") consist of those portions of the forty-first (41st),
forty-second (42nd), forty-third (43rd), forty-fourth (44th), forty-fifth
(45th), forty-sixth (46th), forty-eighth (48th), forty-ninth (49th) and
fiftieth (50th) floors of the Building that are shown hatched on the floor plans
attached hereto as Exhibit C-1 through Exhibit C-9, respectively.
1.04. The term of this lease (a) shall commence on the date
hereof (the "COMMENCEMENT DATE"), and (b) shall end at 11:59 p.m. on last day of
the month in which occurs the tenth (10th) anniversary of the day preceding the
Fixed Rent Commencement Date (as hereinafter defined) (such day being herein
called the "INITIAL EXPIRATION DATE", and such day, as the same may be extended
pursuant to Article 38 hereof, being herein called the "EXPIRATION DATE"), or on
such earlier date upon which the term of this lease shall expire or be canceled
or terminated pursuant to any of the conditions or covenants of this lease or
pursuant to law. As used in this lease, the term "THEN CURRENT EXPIRATION DATE"
shall mean, as of any date, the last day of the last Renewal Term the Renewal
Option with respect to which has, as of such date, been finally exercised or if,
as of such date, no Renewal Option has been finally exercised, the Initial
Expiration Date. As used above, the phrase "finally exercised" shall mean, with
respect to any Renewal Option, that the same has been duly exercised by Tenant,
that any right of Landlord to render such exercise void, and any right of Tenant
to rescind such exercise, shall have lapsed or been waived in writing.
<PAGE> 6
1.05. The rents shall be and consist of (1) fixed rent (herein
called "FIXED RENT"), which shall be payable for the Premises at the per annum
rates therefor set forth on Schedule A annexed hereto, and which, subject to the
provisions of Section 1.06 below, shall be payable commencing on the
Commencement Date and thereafter in equal monthly installments in advance on the
first day of each and every calendar month during the term of this lease, and
(2) additional rent (herein called "ADDITIONAL CHARGES") consisting of Tax
Payments (as hereinafter defined), Operating Payments (as hereinafter defined)
and all other sums of money as shall become due from and payable by Tenant to
Landlord hereunder; all to be paid in lawful money of the United States to
Landlord at its office, or such other place, or to Landlord's agent and at such
other place, as Landlord shall designate by written notice to Tenant.
1.06. The "FIXED RENT COMMENCEMENT DATE" shall be September
21, 1994. Notwithstanding anything to the contrary contained in Section 1.05
above, (i) there shall be a complete abatement of the Fixed Rent set forth on
Schedule A attached hereto for the period commencing on the Commencement Date
and ending on the day preceding the Fixed Rent Commencement Date, both days
inclusive, and (ii) such Fixed Rent for the month in which the Fixed Rent
Commencement Date occurs shall be a prorated amount, determined on a per diem
basis, and shall be payable on the Fixed Rent Commencement Date. Furthermore,
there shall be an additional abatement of the Fixed Rent payable with respect to
the Premises located on the forty-third (43rd) floor of the Building only
(determined on a pro-rata rentable square foot basis between the Premises
located on such forty-third (43rd) floor of the Building and the entirety of the
Initially Demised Premises (as defined in Article 31 hereof) based solely upon
the Fixed Rent as set forth on Schedule A attached hereto, i.e., without regard
to any increase in such Fixed Rent pursuant to the provisions of Article 42
hereof and the operation of Section 1.11 hereof)) for the period commencing on
the Fixed Rent Commencement Date and ending on the day preceding the first (1st)
anniversary of the Fixed Rent Commencement Date, both days inclusive.
1.07. Tenant covenants and agrees to pay Fixed Rent and
Additional Charges as follows: Tenant shall pay Fixed Rent and Recurring
Additional Charges (as hereinafter defined) without notice or demand therefor.
Tenant shall pay all other Additional Charges at such time or times as may be
provided for herein, or, if no due date is specified, within thirty (30) days of
notice or demand therefor. Tenant shall pay Fixed Rent and all Additional
Charges without any abatement, deduction or setoff for any reason whatsoever,
except as may be expressly provided in this lease. Unless otherwise instructed
by Landlord, Fixed Rent and Recurring Additional Charges shall be paid by wire
transfer of immediately available federal funds to Landlord or its designee, to
such account(s) as may be designated in written directions delivered by Landlord
to Tenant from time to time, and in the absence of any such instructions, in the
same manner as hereinafter provided for other Additional Charges. All other
Additional Charges shall be paid by good and sufficient check (subject to
collection) drawn on a bank which is a member of the Federal Reserve system or a
successor thereto. As used herein, the term "RECURRING ADDITIONAL CHARGES" shall
mean (i) those Additional Charges payable periodically by Tenant in accordance
with the provisions of Section 3.02(b) hereof, (ii) those Additional Charges
payable monthly by Tenant in accordance with the provisions of Section 3.03(b)
hereof, and (iii) those Additional Charges payable monthly by Tenant in
accordance with the provisions of Section 41.07 hereof.
1.08. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct Fixed Rent or Additional Charges
shall be deemed to be other than a payment on
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account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this lease or at law
provided.
1.09. If any of the Fixed Rent or Additional Charges payable
under the terms and provisions of this lease shall be or become uncollectible,
reduced or required to be refunded because of any legal rent restrictions
enacted by a governmental authority, Tenant (without any additional expense to
Tenant, other than expense which is de minimis or which Landlord has agreed to
pay) shall enter into such agreement(s) and take such other steps as Landlord
may request and as may be legally permissible to permit Landlord to collect the
maximum rents which from time to time during the continuance of such legal rent
restriction may be legally permissible (but not in excess of the amounts nor
earlier than the due dates reserved therefor under this lease). Upon the
termination of such legal rent restriction, (a) the Fixed Rent and/or Additional
Charges shall become and thereafter be payable in accordance with the amounts
reserved herein for the periods following such termination, and (b) Tenant shall
pay to Landlord within thirty (30) days after being billed, to the maximum
extent legally permissible, an amount equal to (i) the Fixed Rent and/or
Additional Charges which would have been paid pursuant to this lease but for
such legal rent restriction less (ii) the rents paid by Tenant during the period
such legal rent restriction was in effect. The rights and obligations set forth
in this Section 1.09 shall survive the expiration or termination of this lease
for a period of three (3) years following such expiration or termination.
1.10. Additional Charges shall be deemed to be rent and
Tenant's failure to pay Additional Charges shall be considered a failure to pay
rent hereunder and Landlord shall be entitled to all rights and remedies
provided herein or by law in connection therewith.
1.11. For all purposes of this lease, the Fixed Rent payable
with respect to any particular portion of the Premises shall, absent any express
provisions to the contrary (such as the last sentence of Section 1.06 hereof),
be determined on a pro-rata rentable square foot basis between such portion of
the Premises and the entirety of the Premises.
ARTICLE 2
Use of Premises
2.01. Tenant shall have the right to use and occupy the
Premises only as follows: (i) primarily, for general and executive office use,
and, to the extent incidental to such general and executive office use, for
computer and data processing, photocopying, kitchenette (including microwave and
dishwasher), pantry and vending machine areas (the uses described in this clause
(i) being herein called the "PRIMARY USE"); and (ii) secondarily, for (x)
printing, (y) cooking, cafeteria and dining facilities (whether food and
beverages be provided with or without charge), and health and exercise
facilities (whether the same be available with or without charge), all for use
solely by Tenant's employees and business invitees, and (z) other uses
incidental to the Primary Use which are consistent with a first-class office
building (the uses described in this clause (ii) being herein called the
"SECONDARY USES").
2.02. (a) Landlord, throughout the term of this lease, shall
maintain in effect a Certificate of Occupancy for the Building (either temporary
or permanent) which, subject to the completion by Tenant of its Initial
Alterations (as such term
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<PAGE> 8
is defined in Article 11 hereof) in accordance with this lease, will (I) permit
the use of the Premises by Tenant for the Primary Use at occupancy levels, for
each portion thereof, which are not less than the occupancy levels therefor set
forth in the existing Certificate of Occupancy for the Building, a copy of which
is attached hereto as Exhibit N (herein called the "EXISTING CERTIFICATE OF
OCCUPANCY"), and (II) permit the floors of the Premises to be loaded with a load
at least equal to the permitted floor load set forth on the Existing Certificate
of Occupancy; provided, however that Landlord shall have no liability for a
breach of the foregoing if such breach results from any act or omission of
Tenant or any Tenant Party (as hereinafter defined), which act or omission
violates any provision of this lease.
(b) If any governmental license or permit (other
than a Certificate of Occupancy for the Building permitting the Premises to be
used for the Primary Use at the occupancy levels and with the floor loads
referred to in Section 2.02(a) above) shall be required for the proper and
lawful conduct of business in the Premises or any part thereof and if the
failure to have such license or permit would affect the Real Property, Landlord
or any occupant of the Building, then Tenant, at its expense, shall duly procure
and thereafter maintain such license or permit and, upon request, deliver a copy
thereof to Landlord. Additionally, if Tenant shall desire to use the Premises,
or any portion thereof, for a use other than the Primary Use at the occupancy
levels and with the floor loads referred to in Section 2.02(a) above, and such
use shall require a modification or amendment of the then existing Certificate
of Occupancy for the Building, then, prior to so using the Premises or such
portion thereof, Tenant, at its expense, shall procure any such required
modification or amendment. The foregoing provisions are not intended to be
deemed Landlord's consent to any Alterations or to a use of the Premises not
otherwise permitted hereunder. Landlord shall execute (and provide any readily
accessible information known by Landlord for) any applications and similar
documents reasonably required in connection with obtaining any licenses or
permits or any amendments or modifications of any Certificate of Occupancy for
the Building required by the foregoing provisions of this Section 2.02(b),
provided that such documents are in proper form. Tenant hereby agrees that it
shall (i) reimburse Landlord all Landlord's out-of-pocket expenses incurred in
connection with Tenant's obtaining of any such license, permit, amendment or
modification (including without limitation those incurred in connection with
Landlord's execution of any applications or similar documents, or its provision
of information, as provided in the preceding sentence), and (ii) indemnify and
hold harmless Landlord against any and all liabilities which Landlord may incur
by reason of its execution of any applications or similar documents, or its
provision of information, as provided in the preceding sentence; provided,
however, that neither such reimbursement nor such indemnity shall include any
such expenses or liabilities to the extent that (A) Landlord is responsible
therefor under any other provision of this lease, (B) the same would be, or
would have been, discharged, satisfied or avoided by Landlord's performance of
its obligations under this lease, or (C) the same arise out of any inaccuracy in
any information provided by Landlord.
(c) In connection with the Initial
Alterations, Landlord has heretofore delivered to Tenant a Form ACP-5 executed
by Landlord's hygienist with respect to the portion of the Premises located on
each Premises Floor (as hereinafter defined). In connection with any Alterations
made subsequent to the Initial Alterations, Landlord, reasonably promptly after
a request therefor, shall deliver to Tenant, with respect to each portion of the
Premises in respect of which such Alterations shall be performed, a Form ACP-5
executed by Landlord's hygienist and/or any other form or documentation which
evidences or confirms the absence of asbestos from such
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<PAGE> 9
portion(s) of the Premises, provided that (i) such other form or documentation
is then required by any governmental agency as a condition to the performance of
such Alterations, and (ii) the matters evidenced or confirmed by such other form
or documentation are not greater in scope then the matters evidenced or
confirmed by the initial Form ACP-5 delivered by Landlord with respect to such
portion(s) of the Premises. In no event shall the provisions of this Section
2.02(c) require Landlord to perform any work in the Premises or otherwise.
2.03. Tenant shall not use or occupy the Premises or the
Building, or suffer or permit anyone to use or occupy the Premises, in any
manner which would violate the Certificate of Occupancy for the Building (except
to the extent that such violation is attributable to Landlord's failure to
comply with its obligations under Section 2.02(a) above). Tenant shall not at
any time use or occupy the Premises or the Building, or suffer or permit anyone
to use or occupy the Premises, in any manner, or do anything in the Premises or
the Building, or suffer or permit anything to be done in, brought into or kept
on the Premises, which (a) impairs the proper and economic maintenance,
operation and repair of the Building and/or its equipment, facilities or systems
(except to the extent that such impairment arises out of the use of the Premises
for the Primary Use in accordance with the provisions of this lease), (b)
constitutes a nuisance, public or private, (c) makes unobtainable from reputable
insurance companies authorized to do business in New York State all risk
property insurance, or liability, elevator, boiler or other insurance at
standard rates, or (d) discharges objectionable fumes, vapors or odors into the
Building's flues or vents or otherwise, except to the extent such fumes, vapors
or odors are discharged into flues or vents designed for such purposes and which
Tenant, pursuant to the terms of this lease, is permitted to use.
2.04. Tenant shall not use, or suffer or permit anyone to use,
the Premises or any part thereof, by or for (i) an agency, department or bureau
of the United States Government, (ii) any state or municipality within the
United States or any foreign government, or any political subdivision of any of
them, (iii) an employment or travel agency (other than an executive search firm
and other than an employment or travel agency primarily serving Tenant's
employees), (iv) any charitable or religious organization or union (except that,
so long as Original Tenant is in occupancy of more than one-half (1/2) of the
rentable area of the Premises, Original Tenant may sublease portions of the
Premises to one or more Qualified Charities (as hereinafter defined), provided,
that each such sublease shall be permitted under Article 7, no such sublease
shall provide for any sublease rent or other consideration to be paid to Tenant,
and that all such subleases, in the aggregate, do not demise an area greater
than 21,500 rentable square feet), (v) a school or classroom (it being agreed
that this clause shall not prohibit Tenant from using discrete portions of the
Premises for training, lectures or other classroom purposes for Tenant's
employees and/or customers in connection with Tenant's business, it being
understood that all such uses shall be considered Secondary Uses), (vi) medical
or psychiatric offices (it being agreed that this clause shall not prohibit
Tenant from employing doctors and/or nurses at the Premises for Tenant's
employees), (vii) conduct of an auction (other than in the ordinary course of
Tenant's business), (viii) gambling activities, (ix) the conduct of obscene,
pornographic or similarly disreputable activities, (x) an automated teller
machine or similar facility (except that Tenant, during any period that there is
no Qualified ATM (as hereinafter defined) located on the Real Property, shall
have the right to allow an automated teller machine or similar facility to be
located in the Premises for use solely by Tenant's employees, provided that the
same is removed promptly after the end of any such period), (xi) a restaurant
and/or bar and/or the sale of
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confectionery and/or soda and/or beverages and/or sandwiches and/or ice cream
and/or baked goods (the foregoing shall not prohibit the use of portions of the
Premises as kitchenette, pantry or vending machine areas pursuant to Section
2.01(i) or for the Secondary Uses described in Section 2.01(ii)(y) hereof),
(xii) the business of photographic reproductions and/or offset printing (except
that Tenant may use portions of the Premises for photographic reproductions
and/or offset printing in connection with, either directly or indirectly, its
own business and/or activities), (xiii) the retail offices or the retail
activities of a bank, trust company, safe deposit business, savings and loan
association, or loan company, (xiv) the retail sale of traveler's checks or
foreign exchange, or (xv) a retail stock brokerage office or for retail stock
brokerage purposes (except that Original Tenant and its Affiliates may use
portions of the Premises as a retail stock brokerage office or for retail stock
brokerage purposes, provided, that at no time shall the portions of the Premises
so used exceed, in the aggregate, 43,000 rentable square feet). For purposes of
this Section 2.04, (I) the term "QUALIFIED CHARITY" shall mean any charitable
organization (x) which has no political, religious or union affiliation (or
which has a religious affiliation, but no religious purpose), and (y) with which
either Original Tenant or one or more of the partners or principals of Original
Tenant are actively involved, (II) the term "QUALIFIED ATM" shall mean any
automated teller machine or similar facility operated and maintained on the Real
Property by Landlord or by any person authorized by Landlord, and which is
available for use by Tenant's employees, and (III) the term "RETAIL" shall refer
to a business whose primary patronage are customers visiting its offices in
person.
ARTICLE 3
Escalations
3.01. The terms defined below shall for the purposes of this
lease have the meanings herein specified:
(a) "OPERATING STATEMENT" shall mean, with
respect to any Operating Year, a document containing (i) a reasonably itemized
statement of Operating Expenses for such Operating Year prepared by an
independent certified public accountant, and (ii) with respect to any Operating
Year after the Base Operating Year, a statement, in reasonable detail, of the
Operating Payment payable by Tenant for such Operating Year.
(b) "TAX STATEMENT" shall mean a document
setting forth, in reasonable detail, the Tax Payment payable by Tenant for a
specified Tax Year pursuant to this Article 3.
(c) "OPERATING EXPENSES" shall mean, without
duplication, all expenses paid or incurred by, or on behalf of, Landlord or any
other Condominium Party (whether directly or indirectly by way of reimbursement
through common charges or otherwise) in respect of the repair, replacement,
maintenance, operation and/or security of the Real Property (as hereinafter
defined), determined on an accrual basis and otherwise in accordance with
generally accepted accounting principles (except to the extent that any of the
following provisions of this Section 3.01(c) are inconsistent with generally
accepted accounting principles), including, without limitation, the following:
(A) salaries, wages, medical, surgical, insurance
(including, without limitation, group life and disability insurance), union and
general welfare benefits, pension payments, severance payments, sick day
payments and other fringe benefits of, and payroll taxes, worker's compensation,
uniforms and similar related expenses (whether direct or
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indirect) for, employees engaged in such repair, replacement, maintenance,
operation and/or security (all of the foregoing being herein called "LABOR
COSTS"); provided, however, that if any such employees are not engaged
exclusively in such repair, replacement, maintenance, operation and/or security,
then the Labor Costs of or for such employees shall be included in Operating
Expenses on a pro-rated basis, based upon the proportion of such employees'
total work time that is spent engaged in such repair, replacement, maintenance,
operation and/or security;
(B) the cost of fuel, gas, steam,
electricity, heat, ventilation, air-conditioning and chilled or condenser water,
water, sewer and other utilities, together with any taxes and surcharges on, and
fees paid to third parties in connection with the calculation and billing of,
such utilities;
(C) the cost of painting and/or decorating
all areas of the Real Property, excluding, however, any leasable areas of the
Building (the phrase "LEASABLE AREAS" of the Building shall, at any time, mean
all areas of the Building that are then leased or available for lease to
tenants, whether or not the same are then being marketed, and shall include any
space occupied or held for occupancy by Landlord or any Affiliate of Landlord,
other than as Building Offices (as hereinafter defined));
(D) the cost of casualty, liability,
fidelity, rent and all other insurance regarding the Real Property and the
repair, replacement, maintenance, operation and/or security thereof, to the
extent the such types of insurance are customarily carried in respect of Similar
Buildings (as defined in Article 31 hereof);
(E) the cost of all supplies, tools,
materials and equipment, whether by purchase or rental, used in the repair,
replacement, maintenance, operation and/or security of the Real Property, and
any sales and other taxes thereon;
(F) all office expenses, such as telephone,
utility, stationery and similar expenses incurred in connection with any
Building office or other premises in the Real Property utilized by employees
and/or contractors engaged in the repair, replacement, maintenance, operation
and/or security of the Real Property (collectively, "BUILDING OFFICES") (it
being agreed that Operating Expenses shall not include the rental value of any
Building Offices);
(G) the cost of cleaning, janitorial and
security services, including, without limitation, glass cleaning, snow and ice
removal and garbage and waste collection and/or disposal;
(H) the cost of maintaining all existing
interior and exterior landscaping, but excluding the initial cost of any
additional landscaping;
(I) the cost of alterations, additions,
improvements, replacements and repairs made with respect to the Real Property
and of tools and equipment acquired for use in the operation, maintenance or
repair of the Real Property; provided, however, that (i) no Capital Costs (as
hereinafter defined) incurred in or prior to the Base Operating Year shall be
included in Operating Expenses for the year of incurrence or any subsequent
year, and (ii) Capital Costs incurred subsequent to the Base Operating Year
shall be included in Operating Expenses only:
(1) if, and to the extent that, the
alteration, addition, improvement, replacement, repair,
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equipment or tool in question (a) is required to be made by a
Subsequent Legal Requirement (as hereinafter defined) (it being agreed
that an alteration, addition, improvement, replacement, repair,
equipment or tool shall not be deemed required to be made by a
Subsequent Legal Requirement to the extent that such alteration,
addition, improvement, replacement, repair, equipment or tool is also
required to be made by an Existing Legal Requirement (as hereinafter
defined)), and (b) if made to any leasable area of the Building (or to
the passenger elevator lobby or any common corridors on any
multi-tenant floor of the Building), would not, if such leasable area
(or such lobby or corridors on a multi-tenant floor, as the case may
be), were demised by this lease, be the responsibility of Tenant under
Article 8 hereof; and, in such event, for each month during the useful
life of the alteration, addition, improvement, replacement, repair,
equipment or tool in question there shall be included in Operating
Expenses an amount equal to the combined constant monthly principal and
interest payment which would be payable on a loan (i) having an
original principal amount equal to the Capital Costs of such
alteration, addition, improvement, replacement, repair, equipment or
tool, (ii) bearing interest at the Capital Cost Rate (as hereinafter
defined) applicable to such Capital Costs, and (iii) providing for a
combined constant monthly payment of principal and interest sufficient
to fully-liquidate such loan over a period of time equal in length to
the length of such useful life (except, that (x) if such useful life
shall not commence on the first day of a month, then the amount so
included in the month in which such useful life shall commence shall be
computed on a prorata basis, and (y) if such useful life shall not end
on the last day of a month, then the amount so included in the month in
which such useful life shall end shall be computed on a prorata basis);
or
(2) if the alteration, addition,
improvement, replacement, repair, equipment or tool in question is such
that, at the time made, Landlord reasonably estimates that the same
will result in an avoidance of or a savings in Operating Expenses over
the useful life of such alteration, addition, improvement, replacement,
repair, equipment or tool, then (a) Landlord shall prepare a written
schedule setting forth Landlord's reasonable estimate of the Operating
Expenses avoided or saved for each Operating Year during the Cost
Savings Period for such alteration, addition, improvement, replacement,
repair, equipment or tool as a result of the same, and shall make the
same a part of the Operating Expense Records (or otherwise made
available to Tenant) on or prior to the date that Landlord delivers the
first Operating Statement reflecting Operating Expenses pursuant to
this Section 3.01(c)(I)(2) resulting from such alteration, addition,
improvement, replacement, repair, equipment or tool (which written
schedule, in respect of any alteration, addition, improvement,
replacement, repair, equipment or tool, is herein called the "ESTIMATED
COST SAVINGS SCHEDULE" and Landlord's estimate of the Operating
Expenses so avoided or saved for each Operating Year as set forth on
any such schedule is herein called an "ESTIMATED ANNUAL SAVINGS
AMOUNT"), and (b) there shall be included in Operating Expenses for
each month during the useful life of such alteration, addition,
improvement, replacement, repair, equipment or tool an amount equal to
the combined constant monthly principal and interest payment which
would be payable on a loan (i) having an original principal amount
equal to the Capital Costs of such alteration, addition, improvement,
replacement, repair, equipment or tool, (ii) bearing interest at the
Capital Cost Rate (as hereinafter defined) applicable to such Capital
Costs, and (iii) providing for a combined constant monthly
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payment of principal and interest sufficient to fully-liquidate such
loan over a period of time equal in length to the length of such useful
life (except, that (x) if such useful life shall not commence on the
first day of a month, then the amount so included in the month in which
such useful life shall commence shall be computed on a prorata basis,
and (y) if such useful life shall not end on the last day of a month,
then the amount so included in the month in which such useful life
shall end shall be computed on a prorata basis); provided, however,
that if, with respect to any alteration, addition, improvement,
replacement, repair, equipment or tool, (X) the present value of all
the monthly amounts which, absent this proviso, would be included in
Operating Expenses during the Cost Savings Period for such alteration,
addition, improvement, replacement, repair, equipment or tool pursuant
to the foregoing provisions of this Section 3.01(c)(I)(2) (which
present value shall be determined as of the first day of the such Cost
Savings Period, using a discount rate of 10%), exceeds (Y) the present
value of all the Estimated Annual Savings Amounts on the Estimated Cost
Savings Schedule in respect of such alteration, addition, improvement,
replacement, repair, equipment or tool (which present value shall be
determined as of the first day of such Cost Savings Period, using a
discount rate of 10%, and assuming that the Estimated Annual Savings
Amount for any Operating Year shall be payable in equal monthly
installments during such Operating Year, or during the portion thereof
within the Cost Savings Period) (such excess, in respect of any
alteration, addition, improvement, replacement, repair, equipment or
tool, being herein called the "SECTION 3.01(c)(I)(2) EXCESS"), then (i)
such monthly amounts referred to in subclause (X) above shall not be
included in Operating Expenses as hereinabove provided pursuant to this
Section 3.01(c)(I)(2), and (ii) in lieu thereof, the following
provisions shall apply:
(A) for each Operating Year
during the Cost Savings Period for the alteration, addition,
improvement, replacement, repair, equipment or tool in
question, there shall be included in Operating Expenses an
amount equal to the Estimated Annual Savings Amount for such
Operating Year as set forth on the Estimated Cost Savings
Schedule in respect of such alteration, addition, improvement,
replacement, repair, equipment or tool; and
(B) if the Cost Savings
Period shall end prior to the Expiration Date, then, for each
Operating Year after the Cost Savings Period for the
alteration, addition, improvement, replacement, repair,
equipment or tool in question, there shall be included in
Operating Expenses an amount, if any, equal to the lesser of
(i) the excess, if any, of (x) the Section 3.01(c)(I)(2)
Excess in respect of such alteration, addition, improvement,
replacement, repair, equipment or tool, over (y) all amounts
included in Operating Expenses for prior Operating Years
pursuant to this subclause (B) in respect of such alteration,
addition, improvement, replacement, repair, equipment or tool,
and (ii) Landlord's reasonable estimate of the Operating
Expenses avoided or saved for such Operating Year as a result
of such alteration, addition, improvement, replacement,
repair, equipment or tool;
it being agreed that, as used herein, (A) the term "CAPITAL COSTS" shall mean
the costs of any alteration, addition, improvement, replacement, repair,
equipment or tool the costs of which, under generally accepted accounting
principles consistently applied, are required to be capitalized (it being
understood that if, under generally accepted accounting
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principles, the issue of whether, or the extent to which, any such costs are
required to be capitalized shall depend upon whether such costs are deemed
"material", then the issue of whether such costs are deemed "material" shall be
determined assuming the Real Property were the sole asset of Landlord), (B) the
term "SUBSEQUENT LEGAL REQUIREMENT" shall mean (i) any statute or governmental
rule or regulation in implementation thereof which is adopted after the date
hereof or (ii) any amendment to or modification of a statute or governmental
rule or regulation in implementation thereof, which amendment or modification is
adopted after the date hereof (and, without limiting the generality of the
foregoing, such term shall exclude any Existing Legal Requirement taking effect
after the date hereof), (C) the term "EXISTING LEGAL REQUIREMENT" shall mean any
statute or governmental rule or regulation in implementation thereof which is
adopted on or prior to the date hereof or (ii) any amendment to or modification
of a statute or governmental rule or regulation in implementation thereof, which
amendment or modification is adopted prior to the date hereof, (D) the term
"USEFUL LIFE", of any alteration, addition, improvement, replacement, repair,
equipment or tool, shall mean the useful life thereof determined in accordance
with generally accepted accounting principles, and (E) the term "COST SAVINGS
PERIOD", for any alteration, addition, improvement, replacement, repair,
equipment or tool, shall mean the period of the useful life thereof, provided,
however, that such period, in all events, shall end on the Then Current
Expiration Date (as of the date that Landlord shall have made the Estimated Cost
Savings Schedule, in respect of such alteration, addition, improvement,
replacement, repair, equipment or tool, a part of the Operating Expense
Records);
(J) management fees; it being agreed that
(i) for the Base Operating Year, the amount included in Operating Expenses
pursuant to this Section 3.01(c)(J) shall be conclusively deemed to be $480,000
(and there shall not be included in Operating Expenses for the Base Operating
Year any actual management fees or any cost in respect of services customarily
provided by a managing agent as part of its standard and customary management
fee, i.e., without separate or additional charge, such as, by way of example,
bookkeeping), and (ii) for any subsequent Operating Year, or portion thereof,
during which no managing agent is employed in respect of the Real Property, the
amount included in Operating Expenses pursuant to this Section 3.01(c)(J) shall
be an amount equal to the then standard and customary management fee for a
Similar Building (and there shall not be included in Operating Expenses for such
Operating Year, or, as the case may be, the applicable portion thereof, any cost
in respect of services customarily provided by a managing agent as part of its
standard and customary management fee, i.e., without separate or additional
charge, such as, by way of example, bookkeeping);
(K) all reasonable costs and expenses of
legal, accounting and other professional services incurred with respect to the
repair, replacement, maintenance, operation and/or security of the Real
Property;
(L) vault taxes, sewer rents, water frontage
charges; and
(M) assessments, common charges or the like
imposed by the Condominium Board to the extent that the same are imposed to pay
for (or as reimbursement for) costs which constitute Operating Expenses.
Notwithstanding anything to the contrary
contained in the foregoing provisions of this subsection (c), the term
"OPERATING EXPENSES", as used and defined under this subsection (c), shall not
include the following items:
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<PAGE> 15
(1) depreciation and amortization (except as provided above in
this subsection (c));
(2) interest on and amortization of debts (except as provided
above in this subsection (c));
(3) the cost of tenant improvements, installations and
decorations made in connection with preparing space for tenant(s) or renovating
space for an existing tenant, including any permit, license and inspection fees
and any contribution by Landlord to the cost of tenant improvements,
installations and decorations;
(4) leasing and brokerage commissions and similar fees;
(5) financing or refinancing costs;
(6) the cost of any work or service (or level or amount
thereof) provided to any tenant(s) of the Building (including Tenant) which is
in excess of the work or service (or level or amount thereof) which Landlord is
required by this lease to furnish to Tenant without separate or additional
charge (including without limitation the costs of all overtime HVAC,
supplemental HVAC, supplemental chilled water, supplemental condenser water,
special or supplemental cleaning, and overtime freight elevator service); it
being agreed, however, that, without limitation, none of the following costs
shall be excluded from Operating Expenses by reason of this clause (6): (i) the
costs of operating, maintaining, repairing and replacing any freight elevator
dedicated to one or more other tenants of the Building (other than the costs of
operating such freight elevator during overtime hours); and (ii) the costs of
operating, maintaining, repairing and replacing any passenger elevators in the
Building (except to the extent such costs are attributable to providing one or
more other tenants of the Building with a greater level of passenger elevator
service (as to number of elevators, determined on a proportional rentable square
foot basis, or hours of operation) than that provided to Tenant under this lease
without a separate or additional charge);
(7) the cost of any electricity consumed in the Premises or
any other leasable areas of the Building (together with any taxes and surcharges
on, and fees paid to third parties in connection with the calculation and
billing of such electricity);
(8) Taxes, as well as franchise, gains, transfer, inheritance,
estate and income taxes, excess profit taxes and capital stock taxes;
(9) interest, fines or penalties resulting from the violation
by Landlord or any tenant of the Building of any laws or requirements of public
authorities;
(10) costs and expenses incurred in connection with procuring
tenants, including lease concessions, landlord contributions and allowances,
lease takeover or rental assumption obligations;
(11) costs resulting from any judgment, settlement or
arbitration award against Landlord and attorneys' fees and disbursements and
other costs incurred in connection with the defense of any claim or action
against Landlord; provided, however, that any portion of such costs, fees and
disbursements (other than any thereof which were awarded as compensation for
bodily or personal injury) which would otherwise be included in and not excluded
from Operating Expenses pursuant to this Section 3.01(c), irrespective of such
liability, shall, notwithstanding the foregoing, constitute an Operating
Expense;
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<PAGE> 16
(12) Labor Costs for personnel above the grade of building
manager;
(13) rent and all other amounts payable under any ground,
overriding or underlying lease of all or any portion of the Real Property;
provided, however, that any sums paid under any such lease in respect of
expenses which would otherwise be included in and not excluded from Operating
Expenses pursuant to this Section 3.01(c) shall not be excluded from Operating
Expenses even though denominated as "rent" under any such lease;
(14) costs incurred for the repair and restoration of the
Building the need for which results from a casualty; provided, however, that
Operating Expenses shall include such costs to the extent of any commercially
reasonable deductible under the applicable insurance policy(ies), it being
agreed that (i) the costs so included in Operating Expenses shall be attributed
to the item(s) of the Landlord Restoration Work (as hereinafter defined) which
have the longest useful life(s) (such useful life(s) being determined in
accordance with generally accepted accounting principles), and (ii) in respect
of each such item, for each month of the useful life of such item (as so
determined) there shall be included in Operating Expenses an amount equal to the
combined constant monthly principal and interest payment which would be payable
on a loan (i) having an original principal amount equal to the cost of such
item, (ii) bearing interest at the Capital Cost Rate (as hereinafter defined)
applicable to such cost, and (iii) providing for a combined constant monthly
payment of principal and interest sufficient to fully-liquidate such loan over a
period of time equal in length to the length of such useful life (except, that
(x) if such useful life shall not commence on the first day of a month, the
amount so included in the month in which such useful life shall commence shall
be computed on a prorata basis, and (y) if such useful life shall not end on the
last day of a month, the amount so included in the month in which such useful
life shall end shall be computed on a prorata basis);
(15) the excess, if any, of (i) any sums paid or incurred
between affiliated parties for goods, services or other items the costs of which
are includable in Operating Expenses over (ii) the sums which would have been
paid or incurred therefor if the same had been furnished by unaffiliated third
parties on a competitive basis;
(16) any compensation paid to clerks, attendants or other
persons in commercial concessions;
(17) advertising and promotional expenditures;
(18) all costs which under generally accepted accounting
principles consistently applied are required to be capitalized (it being
understood that if, under generally accepted accounting principles, the issue of
whether, or the extent to which, any such costs are required to be capitalized
shall depend upon whether such costs are deemed "material", then the issue of
whether such costs are deemed "material" shall be determined assuming the Real
Property were the sole asset of Landlord), except for (i) Capital Costs
includable in Operating Expenses pursuant to Section 3.01(c)(I) above, (ii)
costs includable in Operating Expenses pursuant to Section 3.01(c)(14) above,
and (iii) costs which under generally accepted accounting principles
consistently applied would qualify as deferred expenses (e.g., prepaid charges)
(which deferred expenses shall be includable as and when chargeable in
accordance with generally accepted accounting principles consistently applied);
except, in any case pursuant to this clause (18), if and to the extent
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<PAGE> 17
otherwise excluded from Operating Expenses by any other provision of this
Section 3.01(c);
(19) any charges or penalties resulting from a late payment of
any item of Operating Expenses;
(20) costs incurred in the removal, encapsulation, handling or
other treatment of asbestos;
(21) the costs of purchasing sculptures, paintings and other
works of fine art located within or outside the Building;
(22) any costs related to the Retail Part (as hereinafter
defined) of the Building (provided, however, that Operating Expenses shall
include costs incurred in connection with the portions of the Real Property
(other than leasable areas of the Building) that serve both the Retail Part and
other parts of the Building to the extent the same are otherwise includable in
Operating Expenses);
(23) costs incurred for the repair and restoration of the
Building the need for which results from a condemnation;
(24) costs incurred with respect to a sale of all or any
portion of the Real Property;
(25) legal fees, expenses and disbursements relating (A) to
the enforcement of leases, recovery of possession, collection of rent, (B) to
disputes with tenants or prospective tenants of the Building or real estate
brokers, or (C) to disputes with purchasers or mortgagees or underlying lessors
of the Real Property, (C) to negotiations of leases, contracts of sale or
mortgages or sale or finance documents, or (D) to the defense of any claims for
bodily or personal injury or for any other damages the payment of which would
not constitute Operating Expenses;
(26) costs incurred in the operation and maintenance of the
Building's Parking Garage (as hereinafter defined);
(27) costs relating to withdrawal liability or unfunded
pension liability under the Multi-Employer Pension Plan Act or similar law;
(28) the cost of installing, operating and maintaining any
specialty facility, such as an observatory, broadcasting facilities, luncheon
club, athletic or recreational club, cafeteria or dining facility; provided,
however, that Operating Expenses shall include costs incurred in connection with
the portions of the Real Property (other than the leasable areas of the
Building) that serve both any such specialty facility and other parts of the
Building to the extent the same are otherwise includable in Operating Expenses;
(29) Landlord's general overhead not related to the Building;
and
(30) assessments, common charges or the like imposed by the
Condominium Board to the extent that the same are imposed to pay for (or as
reimbursement for) costs which do not constitute Operating Expenses (it being
agreed that any such assessments, common charges or the like which are paid to
the Condominium Board or otherwise to establish "reserves" for future
expenditures shall not be included in Operating Expenses at the time so paid,
but cost paid from any such reserves shall be Operating Expenses, when incurred,
to the extent such costs constitute Operating Expenses).
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<PAGE> 18
As used in this Section 3.01(c) the term
"tenant" shall include Landlord, and any Affiliate of Landlord, as occupant of
any leasable space in the Building.
If during any relevant period (i) any leasable
area of the Building shall be vacant or unoccupied, and/or (ii) the tenant or
occupant of any space in the Building shall undertake to perform work or
services therein, the cost of which, if the same had been performed by or on
behalf of Landlord, would have been included in Operating Expenses, then, in any
such event(s), the Operating Expenses for such period shall be adjusted to
reflect the Operating Expenses that would have been paid or incurred if
one-hundred (100%) percent of the leasable areas of the Building had been
occupied or if the costs of all such work or services were paid or incurred as
Operating Expenses, as the case may be.
(d) "OPERATING YEAR" shall mean each calendar
year in which occurs any part of the term of this lease.
(e) "BASE OPERATING YEAR" shall mean the
calendar year commencing on January 1, 1994.
(f) "BASE OPERATING AMOUNT" shall mean the
Operating Expenses for the Base Operating Year.
(g) "CAPITAL COST RATE", in respect of any
costs, shall mean a per annum rate equal to the Base Rate (as defined in Article
31 hereof) in effect as of December 31st of the Operating Year in which such
costs are incurred.
(h) "REAL PROPERTY" shall mean, collectively,
the Building and all fixtures, machinery and equipment installed therein or used
in the operation thereof (including, without limitation, the entire Base
Building (as hereinafter defined) and all improvements and betterments of the
Building's tenants (whether or not owned by Landlord)), including, but not
limited to, all cables, fans, pumps, boilers, generators, heating and cooling
equipment, wiring and electrical fixtures and metering, control and distribution
equipment, component parts of the HVAC, electrical, plumbing, elevator and any
life or property protection systems (including, without limitation, sprinkler
systems), window washing equipment and snow removal equipment, the Land, the
curbs, sidewalks and plazas on the Land, and all easements and other
appurtenances to the Building and/or the Land. For any Tax Year that the Real
Property shall include more than a single tax lot, the "Real Property", for
purposes of this Article 3, shall be deemed to include, and be comprised of, all
of such tax lots, and, without limiting the generality thereof, for so long as
the Condominium shall be in effect, the "Real Property", for purposes of this
Article 3, shall be deemed to include, and be comprised of, all of the Units and
the common interests appurtenant thereto (including without limitation the IDA
Units) and all common interests appurtenant thereto.
(i) "IDA UNITS" shall mean, at any time, the
Units in which title is then held by the IDA; the term "IDA" shall mean the New
York City Industrial Development Agency, its successors and assigns.
(j) "TAXES", with respect to the Real Property
(or any Unit(s) or other tax lot(s) comprising the same), shall mean all (A) the
real estate taxes and assessments (special or otherwise), rates, charges and any
other levies, impositions or charges of a similar or dissimilar nature, whether
general, special, ordinary or extraordinary, foreseen or unforeseen, which may
be levied, assessed or imposed upon or with respect to the Real Property (or any
Unit(s) or other tax lot(s) comprising the same) at any time by any federal,
state, municipal or other governments or governmental bodies or authorities, and
(B)
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<PAGE> 19
expenses incurred in contesting taxes or assessments and/or the assessed value
of the Real Property (or any Unit(s) or other tax lot(s) comprising the same)
which expenses shall be allocated to the Tax Year to which such expenses relate.
If at any time during the term of this lease the methods of taxation prevailing
on the date hereof shall be altered so that in lieu of, or as an addition to or
as a substitute for, the whole or any part of such real estate taxes or
assessments (special or otherwise) now imposed on real estate, there shall be
levied, assessed or imposed (x) a tax, assessment, levy, imposition, license fee
or charge wholly or partially as a capital levy or otherwise on the rents
received therefrom, or (y) a tax, charge or assessment, special or otherwise,
intended to serve as a real estate tax or to fulfill substantially the same
function as existing real estate taxes, then the same shall be deemed to be
included within the term "Taxes" for the purposes hereof; provided, however,
that, for purposes of such inclusion, the amounts described in clause (x) above
shall be computed as if Landlord owned the entire Real Property (or the
applicable Unit(s) or other tax lot(s)) and the same was the only real estate
owned by Landlord. For the purposes hereof, assessments included within Taxes
shall, regardless of how actually paid, be deemed to be paid in the maximum
number of installments permitted by the taxing authority imposing any such
assessment, together with interest calculated at a rate equal to the rate then
being charged by the taxing authority imposing such assessment. If Landlord
shall receive any refund of Taxes, then Taxes shall be computed net of (i.e. by
deducting) such refund; for purposes of this lease, a "refund" of Taxes shall
include the interest, if any, which is paid by the taxing authority to Landlord
in respect of such refund.
(k) "REAL PROPERTY TAXES", for any Tax Year,
shall mean the sum of (A) all Taxes payable with respect to the Real Property
for such Tax Year, plus (B) all Taxes that would have been payable with respect
to the IDA Units for such Tax Year, but for any exemption then in effect
therefor (but which, in fact, are not payable as a result of such exemption).
(l) (1) "PSI'S GENERATOR TAXES" shall mean
either (i) for any Tax Year that PSI's Generator constitutes a separate tax lot
for purposes of Taxes, Taxes payable with respect to such separate tax lot for
such Tax Year, and (ii) for any Tax Year that PSI's Generator does not
constitute a separate tax lot for purposes of Taxes, the portion of Taxes
payable with respect to the Real Property which is attributable to PSI's
Generator; the term "PSI'S GENERATOR" shall mean those certain generators
heretofore installed and currently maintained in the Building by Prudential
Securities Incorporated (herein, together with its successors and assigns,
called "PSI"), inclusive of all fuel tanks, fuel pumps, fuel pipes and
electrical conduits ancillary thereto, and together with (x) any successor
generator(s) and/or ancillary equipment thereto, and (y) any of PSI's
supplements or additions to such generator and/or such ancillary equipment (by
way of additional generator units and/or ancillary equipment or otherwise).
(2) "TENANT'S GENERATOR TAXES" shall
mean either (i) for any Tax Year that Tenant's Generator constitutes a separate
tax lot for purposes of Taxes, Taxes payable with respect to such separate tax
lot for such Tax Year, and (ii) for any Tax Year that Tenant's Generator does
not constitute a separate tax lot for purposes of Taxes, the portion of Taxes
payable with respect to the Real Property which is attributable to Tenant's
Generator; the term "Tenant's Generator" being defined in Article 41 hereof.
(3) "GENERATOR TAXES" shall mean
Tenant's Generator Taxes and/or PSI's Generator Taxes; the term "GENERATOR"
shall mean Tenant's Generator and/or PSI's Generator.
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<PAGE> 20
(m) "ADJUSTED REAL PROPERTY TAXES", for any Tax
Year, shall mean the excess of (i) Real Property Taxes for such Tax Year
(inclusive of PSI's Generator Taxes and Tenant's Generator Taxes for such Tax
Year), over (ii) the sum of (x) PSI's Generator Taxes for such Tax Year, plus
(y) Tenant's Generator Taxes for such Tax Year.
(n) "TAX YEAR" shall mean each period of twelve
(12) months, commencing on the first day of July of each such period, in which
occurs any part of the term of this lease (or the Applicable Period (as
hereinafter defined)), or such other period of twelve (12) months occurring
during the term of this lease (or the Applicable Period) as hereafter may be
duly adopted as the fiscal year for real estate tax purposes of the City of New
York.
(o) "BASE TAX AMOUNT" shall mean the sum of (i)
one-half (1/2) of Adjusted Real Property Taxes for the Tax Year commencing on
July 1, 1994 and ending on June 30, 1995, plus (ii) one-half (1/2) of Adjusted
Real Property Taxes for the Tax Year commencing on July 1, 1995 and ending on
June 30, 1996.
(p) "TENANT'S OPERATING SHARE", during any
period, shall mean a fraction (expressed as a percentage rounded to four decimal
places), (i) the numerator of which is the then aggregate rentable area of the
Premises, and (ii) the denominator of which is equal to Tenant's Operating Share
Denominator (as defined in Section 3.06 below). As of the date hereof, Tenant's
Operating Share is 16.3523%. If, for any Operating Year, Tenant's Operating
Share shall not remain a constant percentage throughout the entirety of such
Operating Year, then Tenant's Operating Share for such Operating Year shall be
that percentage which represents the weighted average (computed on a per diem
basis) of all the percentages constituting Tenant's Operating Share during such
Operating Year.
(q) "TENANT'S TAX SHARE", during any period,
shall mean a fraction (expressed as a percentage rounded to four decimal
places), (i) the numerator of which is the then aggregate rentable area of the
Premises, and (ii) the denominator of which is equal to Tenant's Tax Share
Denominator (as defined in Section 3.06 below). As of the date hereof, Tenant's
Tax Share is 15.9961%. If, for any Tax Year, Tenant's Tax Share shall not remain
a constant percentage throughout the entirety of such Tax Year, then Tenant's
Tax Share for such Tax Year shall be that percentage which represents the
weighted average (computed on a per diem basis) of all the percentages
constituting Tenant's Tax Share during such Tax Year.
(r) "TAX CLOSURE DATE", for any Tax Year, shall
mean the date upon which all tax reduction proceedings in respect of Taxes for
such Tax Year (exclusive of any such proceedings regarding Taxes with respect to
a Generator which, for such Tax Year, constitutes a separate tax lot) shall have
been finally resolved (or, if no such proceedings shall have been timely
instituted for such Tax Year, then the date upon which the right to bring such
proceedings shall have lapsed).
3.02. (a) Tenant, for each Tax Year (subject to the provisions
of Section 3.02(h) below), shall pay to Landlord as Additional Charges an amount
(herein called the "TAX PAYMENT") equal to the sum of (i) Tenant's Tax Share of
the excess of (x) the Adjusted Real Property Taxes for such Tax Year, over (y)
the Base Tax Amount (the portion of any Tax Payment described in this clause (i)
being herein called the "BASE COMPONENT" of such Tax Payment), plus (ii)
Tenant's Generator Taxes for such Tax Year (the portion of any Tax Payment
described in this clause (ii) being herein called the "GENERATOR COMPONENT" of
such Tax Payment).
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(b) Landlord, at anytime prior to, during, or
after the end of, any Tax Year, may deliver to Tenant a Tax Statement(s) for
such Tax Year. Tenant, for each Tax Year, shall pay to Landlord the Tax Payment
set forth on the Tax Statement(s) for such Tax Year in the same number of
installments as Taxes are required to be paid to the City of New York for such
Tax Year, with each such installment being due on the later to occur of (x) the
date that is thirty (30) days prior to the due date of the corresponding
installment of Taxes and (y) the date that is ten (10) Business Days after the
date that Tenant receives the initial Tax Statement for such Tax Year.
(c) If, at any time after the delivery of the
initial Tax Statement for any Tax Year, it is determined that, the Tax Payment
for such Tax Year is greater or less than the amount set forth on the then most
recent Tax Statement(s) (for any reason including without limitation (i) any
increase in Taxes for such Tax Year, whether before, during or after such Tax
Year, (ii) any decrease in the Taxes for any Tax Year, whether or before, during
or after such Tax Year, including without limitation any such decrease resulting
from any refund of Taxes for such Tax Year, or (iii) any decrease in Taxes
comprising the whole or any part of the Base Tax Amount, including without
limitation any such decrease resulting from any refund of Taxes for either or
both of the 1994/95 Tax Year or the 1995/96 Tax Year), then, in any case that
the Tax Payment is greater, Landlord may, or, in any case that the Tax Payment
is less, Landlord shall, furnish to Tenant a revised Tax Statement(s) for such
Tax Year. If any revised Tax Statement shall set forth a Tax Payment that is
greater than that set forth on the previous Tax Statement, then Tenant shall pay
to Landlord such additional amount within thirty (30) days after Tenant's
receipt of such revised Tax Statement. If any revised Tax Statement shall set
forth a Tax Payment that is less than that set forth on the previous Tax
Statement, then Landlord, within thirty (30) days after Tenant's receipt of such
revised Tax Statement, shall pay to Tenant the difference between the Tax
Payment, as set forth on the revised Tax Statement, and the Tax Payment set
forth on the previous Tax Statement.
(d) (1) Nothing contained in this lease shall
require the filing of any application, or the institution of any proceeding,
seeking a reduction in Taxes or assessed valuation. Tenant, for itself and its
immediate and remote subtenants and successors in interest hereunder, hereby
waives, to the extent permitted by law, any right Tenant may now or in the
future have to protest or contest any Taxes. As used herein, the phrase "PROTEST
OR CONTEST" of Taxes shall include the filing of any application, and the
institution, prosecution and/or settlement of any proceeding, seeking a
reduction in Taxes or the assessed valuation of the Real Property or any part
thereof, and any other challenge of the determination of Taxes or such assessed
valuation.
(2) Notwithstanding the provisions of
Section 3.02(d)(1) above, Landlord, upon Tenant's request received between
January 2 and February 10 of each calendar year during the term of this lease,
shall, on or before February 24 of such calendar year, advise Tenant whether or
not Landlord intends to file a Protest with respect to the next succeeding Tax
Year. A "PROTEST" shall mean such necessary administrative action(s) under
applicable law as shall be necessary to protest the tentative assessed valuation
of the Real Property. If Landlord advises Tenant that Landlord does not intend
to file a Protest with respect to such Tax Year, Tenant shall have the right,
upon notice given to Landlord on or before February 25 of such calendar year
(or, if February 25 is not a Business Day, then the next succeeding Business
Day), to require Landlord, at Tenant's expense, to file a Protest in accordance
with this Section 3.02(d)(2). If Tenant shall give such notice to Landlord,
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Landlord, at Tenant's expense, shall commence a Protest. Failure of Tenant to so
notify Landlord as aforesaid shall be deemed a waiver of Tenant's right to cause
Landlord to commence a Protest. Tenant, within thirty (30) days after demand by
Landlord, shall reimburse Landlord as Additional Charges for any costs and
expenses incurred by Landlord in connection with any Protest filed by reason of
Tenant's direction. If such Protest shall result in a refund of the Taxes paid
for such Tax Year, then, provided Tenant shall have paid all costs and expenses
required to be paid by Tenant in accordance with the preceding sentence and
Tenant shall not otherwise be in monetary default under this lease beyond the
expiration of any applicable notice and/or cure period, the amount of such
refund shall be paid to Tenant up to the amount of costs and expenses paid by
Tenant in connection with the prosecution of such Protest before application
thereof toward a refund of the tax payments for such Tax Year to tenants in the
Building (including without limitation Tenant) as may be required pursuant to
their respective leases.
(e) For any Tax Year, Taxes "payable" with
respect to the Real Property (or any Unit(s) or other tax lot(s) comprising the
same) shall be computed by and after giving effect to (i) any deferral or
abatement of Taxes in effect for such Tax Year, and (ii) any repayment, with
interest if applicable, during such Tax Year of any Taxes deferred or abated in
any prior year. Without limiting the generality of the foregoing, it is
understood and agreed:
(1) that Landlord has obtained, or intends to obtain,
benefits under Title 11, Chapter 2, Part 4 of the Administrative Code
of the City of New York (the "ICIP");
(2) that Tenant shall report to Landlord upon request the
number of workers permanently engaged in employment in the Premises,
the nature of each worker's employment and the New York City residency
of each worker;
(3) that Tenant shall provide access to the Premises by
employees and agents of the Department (as such term is defined in the
ICIP Rules and Regulations) at all reasonable times at the request of
Landlord (which request may be verbal); and
(4) that Tenant shall not be required to pay taxes or
charges which become due because of the willful neglect or fraud by
Landlord in connection with ICIP, or otherwise relieve or indemnify
Landlord from any personal liability arising under the Administrative
Code of the City of New York, Section 11-265, except where imposition
of such taxes, charges or liability is occasioned by actions of Tenant
in violation of this lease.
Landlord represents that, other than (x) the ICIP tax deferral and abatement
program(s), and (y) tax deferral and abatement programs applicable to the IDA
Units resulting from, or incident to, the IDA's ownership thereof or other
benefit programs of the IDA, (I) the Real Property is not currently subject to
tax deferral or abatement program, and (II) no tax deferral or abatement program
to which the Real Property is currently subject or was previously subject (prior
to the date hereof) will hereafter require any repayment of any Taxes deferred
or abated in any prior year.
(f) If Tenant installs Tenant's Generator, then
the following provisions shall apply:
(1) Tenant, at Tenant's expense, shall cooperate with
Landlord in connection with Landlord's efforts to
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cause Tenant's Generator to be assigned a separate tax lot for purposes of
Taxes.
(2) For each Tax Year that Tenant's Generator does not
constitute a separate tax lot, the following provisions shall apply:
(A) Landlord, promptly after the occurrence of the Tax
Closure Date with respect to such Tax Year, shall furnish to Tenant a notice
that the same has occurred, it being understood and agreed that (i) such notice
may be given as part of a Tax Statement furnished after the Tax Closure Date,
and (ii) in any case where the initial Tax Statement for such Tax Year has not
theretofore been furnished, such notice shall be accompanied by such initial Tax
Statement (the date upon which such notice is furnished by Landlord being herein
called the "TAX CLOSURE NOTICE DATE"). The term "GENERATOR TAX DISPUTE PERIOD",
for any Tax Year, shall mean the period commencing on the Tax Closure Date for
such Tax Year and ending on the date one hundred twenty (120) days after the Tax
Closure Notice Date for such Tax Year; provided, however, that if, after the Tax
Closure Date for such Tax Year but prior to the expiration of such 120-day
period, Landlord shall issue a Tax Statement for such Tax Year, then the
Generator Tax Dispute Period shall be the period commencing on the Tax Closure
Date for such Tax Year and ending on the date one hundred twenty (120) days
after the later of (i) the Tax Closure Notice Date or (ii) the date on which
such Tax Statement is issued.
(B) (i) Tenant, unless and until there shall be a final
determination of Tenant's Generator Taxes for such Tax Year pursuant to the
provisions of this Section 3.02(f)(2) (by agreement, arbitration or otherwise),
shall make payments of the Tax Payment for such Tax Year based upon Landlord's
estimate of Tenant's Generator Taxes for such Tax Year, if any, as set forth
from time to time on the then most recent Tax Statement for such Tax Year.
Landlord's estimate of Tenant's Generator Taxes for any Tax Year, as set forth
on any Tax Statement, shall not be greater than Landlord's then good-faith
opinion of Tenant's Generator Taxes for such Tax Year.
(ii) If, at anytime during the Generator Tax Dispute
Period for such Tax Year, Tenant reasonably believes that the amount set forth
as Tenant's Generator Taxes on the then most recent Tax Statement for such Tax
Year is incorrect, then Tenant, by notice to Landlord given not later than end
of the Generator Tax Dispute Period for such Tax Year, shall so notify Landlord
of Tenant's belief, which notice shall refer to the Tax Year with respect to
which such notice is being served, and set forth Tenant's good-faith opinion of
the amount of Tenant's Generator Taxes for such Tax Year (each such notice being
herein called a "GENERATOR DISPUTE NOTICE"). If Tenant shall fail to serve a
Generator Dispute Notice prior to the end of the Generator Tax Dispute Period,
then, subject to the provisions of subsection (iii) below, the amount set forth
as Tenant's Generator Taxes on the most recent Tax Statement as of the end of
such period shall be binding and conclusive on Landlord and Tenant.
(iii) For purposes of this lease, Tenant's Generator
Taxes shall be deemed to have been finally determined for any Tax Year upon (x)
the expiration of the Generator Tax Dispute Period with respect to such Tax Year
(in the event that Tenant does not give a Generator Dispute Notice prior to the
end of such Generator Tax Dispute Period as provided in Section
3.02(f)(2)(B)(ii) above), (y) a determination in arbitration as to Tenant's
Generator Taxes (following Tenant's giving of a Generator Dispute Notice)
pursuant to Section 3.02(f)(2)(C) below, or (z) an agreement of Landlord and
Tenant as to Tenant's Generator Taxes (following Tenant's giving of a
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Generator Dispute Notice as contemplated by Section 3.02(f)(2)(C) below);
provided, however, that if Landlord, in accordance with the provisions of this
lease, shall issue a Tax Statement for such Tax Year after the lapse of the
Generator Tax Dispute Period, then, and in each such case, Tenant's Generator
Taxes for such Tax Year shall not be finally determined as aforesaid, but rather
the provisions of Sections 3.02(f)(2)(B)(ii) and 3.02(f)(2)(C), as well as this
Section 3.02(f)(2)(B)(iii), shall again apply, mutatis mutandis, except that the
Generator Tax Dispute Period shall be the period commencing on the date on which
Landlord issued such Tax Statement and ending on the date that is one hundred
twenty (120) days thereafter. Accordingly, pursuant to the operation of the
proviso to the preceding sentence there may be more than one final determination
of the Tenant's Generator Taxes.
(C) If Tenant shall timely serve a Generator Dispute Notice
for any Tax Year, then (I) Landlord and Tenant shall proceed in good-faith to
agree upon the amount of the Tenant's Generator Taxes for the Tax Year in
question, and (II) if Landlord and Tenant are unable to so agree on or prior to
the date that is sixty (60) days after the date that Landlord receives the
Generator Dispute Notice, then, at anytime thereafter, either of Landlord or
Tenant, by written notice to the other party (herein called a "GENERATOR
ARBITRATION NOTICE"), may submit the determination of Tenant's Generator Taxes
for such Tax Year to arbitration in accordance with the following provisions:
(w) Within thirty (30) days after either party's receipt
of a Generator Arbitration Notice, each of Landlord and Tenant, by
notice to the other party, shall appoint an arbitrator (the two
arbitrators so appointed being herein collectively called the "INITIAL
GENERATOR ARBITRATORS"). If either Landlord or Tenant shall fail to
timely appoint an Initial Generator Arbitrator within such 30-day
period, then the party which appointed an Initial Generator Arbitrator
may notify the other party of such failure (which notice shall refer
specifically to this Section 3.02(f)(2)(C)(w)), and if, in such event,
the other party does not, within a period of ten (10) days after its
receipt of such notice, appoint the second Initial Generator
Arbitrator, then the appointed Initial Generator Arbitrator shall
independently select and appoint the second Initial Generator
Arbitrator, within fifteen (15) days after the expiration of such
10-day period. Within twenty (20) days after the appointment of both
Initial Generator Arbitrators, the Initial Generator Arbitrators shall
jointly appoint a mutually agreeable third arbitrator who shall be
impartial (herein called the "THIRD GENERATOR ARBITRATOR"). If the
Initial Generator Arbitrators fail to agree upon and appoint the Third
Generator Arbitrator within such 10-day period, then either Landlord or
Tenant may request that the American Arbitration Association ("AAA")
appoint the Third Generator Arbitrator within twenty (20) days after
such request, and both parties shall be bound by any appointment so
made within such 20-day period. If the Third Generator Arbitrator shall
not have been appointed within such 20-day period, then either Landlord
or Tenant may apply to any court having jurisdiction to make such
appointment. The Third Generator Arbitrator shall subscribe and swear
to an oath to fairly and impartially perform the duties required of the
Third Generator Arbitrator pursuant to this Section 3.02(f)(2)(C).
(x) Within thirty (30) days after the appointment of the
Third Generator Arbitrator, Landlord and Tenant shall each submit to
the Third Arbitrator, in a sealed envelope, a written statement setting
forth such party's then good-faith determination of
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Tenant's Generator Taxes for such Tax Year (Landlord's determination is
herein called "LANDLORD'S GENERATOR DETERMINATION" and Tenant's
determination is herein called "TENANT'S GENERATOR DETERMINATION" and
Landlord's Generator Determination and Tenant's Generator Determination
are herein collectively called the "GENERATOR DETERMINATIONS"). Neither
of the Generator Determinations shall be opened except as and when
hereinafter expressly provided. If either Landlord or Tenant shall fail
to submit its Generator Determination in accordance with the provisions
of this Section 3.02(f)(2)(C)(x), then the party which made a Generator
Determination shall notify the other party of such failure (which
notice shall refer specifically to this Section 3.02(f)(2)(C)(x)), and
if, in such event, the other party does not, within a period of ten
(10) days after its receipt of such notice, submit its Generator
Determination, then the only Generator Determination which was made in
accordance with this Section 3.02(f)(2)(C)(x) shall promptly thereafter
be opened by the Third Generator Arbitrator, and Tenant's Generator
Taxes for such Tax Year shall be such Generator Determination, which
Generator Determination shall be conclusive and binding upon both
Landlord and Tenant.
(y) If both Landlord and Tenant submit their
respective Generator Determinations in accordance with the provisions
of Section 3.02(f)(2)(C)(x) above, then the Third Generator Arbitrator
shall arrange a meeting (herein called the "GENERATOR ARBITRATION
MEETING") to be held at the Building office (or at such other place as
is mutually agreeable to the Third Arbitrator and Landlord and Tenant
and located in the Borough of Manhattan), and which shall occur during
Business Hours on a day not later than twenty (20) days after the Third
Generator Arbitrator's receipt of both Generator Determinations.
Landlord and Tenant shall have not less than ten (10) days notice of
the date, time and location of the Generator Arbitration Meeting and
shall have the right to have its representatives present thereat. At
the Generator Arbitration Meeting, (i) the Generator Determinations
shall be opened by the Third Arbitrator and copies thereof shall be
distributed to Landlord and Tenant, and (ii) thereafter, each of
Landlord and Tenant may submit to the Third Generator Arbitrator such
written evidence in support of its Generator Determination as it deems
appropriate.
(z) Within twenty (20) days after the
Generator Arbitration Meeting, the Third Arbitrator shall independently
select the Generator Determination (as between Landlord's Generator
Determination and Tenant's Generator Determination) which, in his
opinion, more accurately reflects Tenant's Generator Taxes, and shall
notify Landlord and Tenant of such selection in writing.
(D) With respect to any arbitration
conducted pursuant to the provisions of Section 3.02(f)(2)(C) above, the
following provisions shall apply: (i) the fees and expenses of any such
arbitration shall be borne by the parties equally, but each party shall bear the
expense of the Initial Generator Arbitrator appointed by it and its attorneys
and experts as well as any expenses of presenting its own proof; (ii) Landlord
and Tenant shall each have the right to submit such data and memoranda to the
Third Arbitrator in support of their respective positions as they may deem
necessary or appropriate; (iii) each arbitrator shall be an attorney licensed to
practice law in the State of New York, who shall not be a sole practitioner, and
who shall have at least ten (10) years' experience in tax certiorari and real
estate tax litigation with respect to properties which are similar in character
to the Building; and (iv) no arbitrator shall have any power to add to, modify
or change any such definitions or any other provisions of
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this lease, and the jurisdiction of the arbitrators is accordingly limited.
(E) Within thirty (30) days after the final determination
of Tenant's Generator Taxes for any Tax Year as between Landlord and Tenant, the
Tax Payment for such Tax Year shall be re-computed and reconciled with payments
theretofore made on account of such Tax Payment, and (i) if the payments
theretofore made by Tenant on account of such Tax Payment were less than the Tax
Payment as re-computed, then Tenant shall pay to Landlord the amount of such
deficiency within twenty (20) days after demand therefor, or (ii) if the
payments theretofore made by Tenant on account of such Tax Payment were greater
than the Tax Payment as re-computed, then Landlord shall pay to Tenant the
amount of such overpayment within twenty (20) days after demand therefor.
(3) If, for any Tax Year that Tenant's Generator
constitutes a separate tax lot, Tenant shall have the obligation to pay to
Landlord, as the Generator Component of the Tax Payment, an amount equal to the
entire amount of Tenant's Generator Taxes, then, for each such Tax Year and
notwithstanding the provisions of Section 3.02(d) to the contrary, the following
provisions shall apply:
(A) Except as provided below, (i) Landlord shall not have
any right to protest or contest Tenant's Generator Taxes for such Tax Year or
any obligation to do so, and (ii) Tenant shall have the right to protest or
contest Tenant's Generator Taxes for such Tax Year.
(B) Landlord, in connection with any such protest or
contest of Tenant's Generator Taxes made or instituted by Tenant pursuant to
Section 3.02(f)(3)(A) above, shall, within fifteen (15) Business Days after
written request therefor, execute (and provide any readily accessible
information known by Landlord for) any documents reasonably required in
connection therewith, provided that such documents are in proper form. Tenant
hereby agrees that it shall (x) reimburse Landlord all Landlord's out-of-pocket
expenses incurred in connection with any protest or contest of Tenant's
Generator Taxes made or instituted by Tenant (including without limitation those
incurred in connection with Landlord's execution of any documents, or its
provision of information, as provided in the preceding sentence), and (y)
indemnify and hold harmless Landlord against any and all liabilities which
Landlord may incur by reason of its execution of any documents, or its provision
of information, as provided in the preceding sentence; provided, however, that
neither such reimbursement nor such indemnity shall include any such expenses or
liabilities to the extent that (i) Landlord is responsible therefor under any
other provision of this lease, (ii) the same would be, or would have been,
discharged, satisfied or avoided by Landlord's performance of its obligations
under this lease, or (iii) the same arise out of any inaccuracy in any
information provided by Landlord.
(C) Notwithstanding the foregoing provisions of this
Section 3.02(f)(3), Tenant's right to protest or contest Tenant's Generator
Taxes as set forth in Section 3.02(f)(3)(A) above for any Tax Year (as well as
Landlord's obligation to execute documents and provide information in connection
therewith as set forth in Section 3.02(f)(3)(B) above), shall be subject to such
protest or contest by Tenant not having, in Landlord's reasonable judgement, a
negative impact upon Landlord in any pending or prospective protest or contest
of any other Taxes for such Tax Year or any other Tax Year.
(g) In respect of PSI's Generator, the
following provisions shall apply:
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(1) Landlord shall make application to the applicable
taxing authority to have PSI's Generator assigned a separate tax lot for
purposes of Taxes.
(2) For each Tax Year that PSI's Generator does not
constitute a separate tax lot, the following provisions shall apply:
(A) Tenant, unless and until there shall be a final
determination of PSI's Generator Taxes as between Landlord and PSI (by agreement
or arbitration), shall make payments of the Tax Payment for such Tax Year based
upon Landlord's estimate of PSI's Generator Taxes for such Tax Year, if any, as
set forth from time to time on the then most recent Tax Statement for such Tax
Year. Landlord's estimate of PSI's Generator Taxes for any Tax Year, as set
forth on any Tax Statement, shall not be greater than Landlord's then good-faith
opinion of PSI's Generator Taxes for such Tax Year.
(B) Upon a final determination of PSI's Generator Taxes as
between Landlord and PSI for any Tax Year, PSI's Generator Taxes for purposes of
this lease for such Tax Year shall be deemed to be one of the following amounts
(which amount, in either case, shall be conclusive and binding upon Landlord and
Tenant): (i) if the final determination of PSI's Generator Taxes as between
Landlord and PSI for such Tax Year was the result of a binding arbitration
proceeding between Landlord and PSI, then PSI's Generator Taxes under this lease
for such Tax Year shall be deemed to be the amount of such final determination;
and (ii) in any other case, PSI's Generator Taxes under this lease for such Tax
Year shall be deemed to be an amount equal to (x) the Generator Differential
Factor (as hereinafter defined) for such Tax Year, multiplied by (y) Tenant's
Generator Taxes for such Tax Year (as finally determined under this lease). As
used herein, the "GENERATOR DIFFERENTIAL FACTOR", for any Tax Year, shall mean
the quotient obtained by dividing (I) the capacity of PSI's Generator (measured
in KVAs) for such Tax Year, by (II) the capacity of Tenant's Generator (measured
in KVAs) for such Tax Year (which quotient, if not a whole number, shall be
rounded to four decimal places).
(C) Within thirty (30) days after the final determination
of PSI's Generator Taxes under this lease for any Tax Year (it being understood
that if Section 3.02(g)(2)(B)(ii) is applicable, then such final determination
cannot be made until Tenant's Generator Taxes for such Tax Year have been
finally determined), the Tax Payment for such Tax Year shall be re-computed and
reconciled with payments theretofore made on account of such Tax Payment, and
(i) if the payments theretofore made by Tenant on account of such Tax Payment
were less than the Tax Payment as re-computed, then Tenant shall pay to Landlord
the amount of such deficiency within twenty (20) days after demand therefor, or
(ii) if the payments theretofore made by Tenant on account of such Tax Payment
were greater than the Tax Payment as re-computed, then Landlord shall pay to
Tenant the amount of such overpayment within twenty (20) days after demand
therefor.
(h) (1) Notwithstanding anything to the contrary
set forth above in this Section 3.02, there shall be an abatement of the Base
Component of the Tax Payment(s) which are payable in respect of all periods
prior to the Tax Payment Commencement Date (as hereinafter defined); there shall
be no such abatement of the Generator Component of such Tax Payment(s). The "TAX
PAYMENT COMMENCEMENT DATE" shall be July 1, 1995. If the Tax Payment
Commencement Date shall be a day other than the first day of a Tax Year, then
the Base Component of the Tax Payment for the Tax Year in which the Tax Payment
Commencement Date occurs shall be prorated (on a per diem basis) to correspond
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to that portion of the Tax Year occurring on or after the Tax Payment
Commencement Date.
(2) Notwithstanding anything to the contrary set forth
above in this Section 3.02, in respect of the Tax Year in which the Expiration
Date occurs, (i) the Base Component of the Tax Payment shall be prorated (on a
per diem basis) to correspond to that portion of such Tax Year occurring on or
prior to the Expiration Date, and (ii) except as provided in Section 3.02(h)(3)
below, the Generator Component of the Tax Payment shall also be prorated (on a
per diem basis) to correspond to that portion of such Tax Year occurring on or
prior to the Expiration Date.
(3) Unless (i) Landlord, pursuant to Section 12.02(c)
hereof, shall designate Tenant's Generator Unit as among Designated Exterior
Improvements (as hereinafter defined), or (ii) in any case that this lease shall
terminate pursuant to a Non-Scheduled Early Termination (as hereinafter
defined), the Section 12.02(c) Work shall include the removal of Tenant's
Generator Unit and Landlord shall not perform the same in accordance with the
provisions of Section 12.02(c), the following provisions shall apply
(notwithstanding the foregoing provisions of this Section 3.02): (A) in respect
of the Tax Year in which the Expiration Date occurs, the Generator Component of
the Tax Payment shall not be prorated (but rather Tenant shall pay, as the
Generator Component of the Tax Payment for such Tax Year, an amount equal to the
entirety of Tenant's Generator Taxes for such Tax Year, notwithstanding the fact
that this lease shall not be in effect for the entirety of such Tax Year), and
(B) in respect of each fiscal tax year or other period occurring after the Tax
Year in which the Expiration Date occurs, Tenant, notwithstanding that this
lease will not be in effect for any part of such fiscal tax year or other
period, shall continue to pay to Landlord an amount equal to either (i) for any
such fiscal tax year or other period for which a separate tax lot exists for
Tenant's Generator (whether or not Tenant's Generator is in existence during
such fiscal tax year or other period), Taxes payable with respect to such
separate tax lot, and (ii) for any other such fiscal tax year or other period,
the portion of Taxes payable with respect to the Real Property which is
attributable to the then current or past existence of Tenant's Generator. The
provisions of Sections 3.02(b), 3.02(c) and 3.02(f) above, as applicable to the
Generator Component of the Tax Payment for Tax Years, shall apply, mutatis
mutandis, to Tenant's payment obligations pursuant to clause (B) above for the
fiscal tax years and other periods described therein.
3.03. (a) Tenant, for each Operating Year occurring after the
Base Operating Year, shall pay to Landlord, as Additional Charges for such
Operating Year, an amount (herein called the "OPERATING PAYMENT") equal to
Tenant's Operating Share of the excess of (i) Operating Expenses for such
Operating Year, over (ii) the Base Operating Amount.
(b) Landlord may furnish to Tenant, prior to the
commencement of each Operating Year subsequent to the Base Operating Year, a
written statement setting forth Landlord's reasonable estimate of the Operating
Payment for such Operating Year (such estimate, as the same may be revised as
hereinafter provided, the "LANDLORD'S ESTIMATED OPERATING PAYMENT"). Tenant
shall pay to Landlord on the first day of each month during the Operating Year
for which the Operating Payment will be due, an amount equal to one-twelfth
(1/12th) of the Landlord's Estimated Operating Payment for such Operating Year.
If, however, Landlord shall not furnish any such estimate for an Operating Year
or if Landlord shall furnish any such estimate for an Operating Year subsequent
to the commencement thereof, then (i) 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
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day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 3.03 for the last month of the preceding Operating
Year, (ii) after such estimate is furnished to Tenant, Landlord shall give
notice to Tenant stating whether the installments of the Operating Payment
previously made for such Operating Year were greater or less than the
installments of the Operating Payment which should have been previously made for
such Operating Year in accordance with such estimate, and (A) if there shall be
a deficiency, Tenant shall pay the amount thereof within thirty (30) days after
Tenant's receipt of such notice, or (B) if there shall have been an overpayment,
Landlord shall, within thirty (30) days from the giving of such notice, refund
to Tenant the amount thereof, together with interest on the amount thereof at
the Base Rate for the period from the date(s) of such overpayment to the date
such payment is made, and (iii) on the first day of the month following the
month in which such estimate is furnished to Tenant, and on the first day of
each month thereafter throughout the remainder of such Operating Year, Tenant
shall pay to Landlord an amount equal to one-twelfth (1/12th) of the Landlord's
Estimated Operating Payment set forth on such estimate. Landlord may, during
each Operating Year (but not more than twice during any Operating Year), furnish
to Tenant a revised statement of Landlord's Estimated Operating Payment for such
Operating Year, and in such case, the Landlord's Estimated Operating Payment for
such Operating Year shall be adjusted and paid or refunded or credited as the
case may be, substantially in the same manner as provided in the preceding
sentence.
(c) Landlord, after the end of each Operating Year
subsequent to the Base Operating Year, shall furnish to Tenant an Operating
Statement for such Operating Year. Landlord, prior to or together with the
delivery of the initial Operating Statement for the first Operating Year after
the Base Operating Year, shall furnish to Tenant an Operating Statement for the
Base Operating Year (the "BASE YEAR OPERATING STATEMENT"). If, for any Operating
Year after the Base Operating Year, the Operating Statement shall show that the
sums paid by Tenant, if any, under Section 3.03(b) exceeded the Operating
Payment to be paid by Tenant for such Operating Year (such excess for any
Operating Year being herein called the "OPERATING OVERPAYMENT"), then Landlord,
within thirty (30) days after delivery of such Operating Statement, shall refund
to Tenant the amount of such Operating Overpayment, together with interest on
the amount thereof at the Base Rate for the period commencing on the last day of
the Operating Year in question and ending on the date the appropriate refund is
made. If the Operating Statement for such Operating Year shall show that the
sums so paid by Tenant were less than the Operating Payment to be paid by Tenant
for such Operating Year (such deficiency for any Operating Year being herein
called the "OPERATING DEFICIENCY"), Tenant shall pay the amount of such
Operating Deficiency within thirty (30) days after Tenant's receipt of the
Operating Statement.
(d) (1) Tenant, upon notice given no later than the
applicable Audit Notice Deadline Date (as hereinafter defined) with respect to
any Operating Statement, may elect to have Tenant's employees, accountants or
other agents examine, at reasonable times and at such location(s) in the City of
New York as Landlord may reasonably designate, the Operating Expense Records (as
hereinafter defined) with respect to such Operating Statement; if Tenant shall
not timely give such notice, then the Operating Statement in question shall be
conclusive and binding upon Tenant (it being agreed that the foregoing shall not
be construed to prejudice Tenant's rights with respect to items constituting
revisions or corrections to such Operating Statement which are set forth in a
subsequently delivered revised or corrected Operating Statement for the same
Operating Year). As used herein, the "AUDIT NOTICE DEADLINE DATE", with respect
to any Operating Statement, shall refer to the date one hundred
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eighty (180) days after the date of Tenant's receipt thereof; provided, however,
that with respect to the initial Base Year Operating Statement, the initial
Operating Statement for the first Operating Year after the Base Operating Year
and the initial Operating Statement for the second Operating Year after the Base
Operating Year (such three Operating Statements being herein collectively called
the "THRESHOLD OPERATING STATEMENTS"), the term "Audit Notice Deadline Date"
shall refer to the date (herein called the "INITIAL AUDIT NOTICE DEADLINE DATE")
that is one hundred eighty (180) days after the first date after all of the
Threshold Operating Statements shall have been furnished to Tenant. As used
herein, "OPERATING EXPENSE RECORDS", with respect to any Operating Statement,
shall mean such books and records as are relevant to the Operating Expenses
incurred in the Operating Year for which such Operating Statement is furnished.
In connection with any examination by Tenant of the Operating Expense Records,
Tenant agrees to treat, and to instruct its employees, accountants, attorneys
and agents to treat, all information as confidential and not disclose it to any
other person except Tenant's accountants, employees, attorneys and agents,
except as may be required by law or may be necessary or appropriate in
connection with the prosecution of any claim by Tenant hereunder.
(2) If Tenant shall, in good-faith, dispute any Operating
Statement, then Tenant, no later than the Audit Notice Deadline Date with
respect to such Operating Statement, may send a written notice (each, a
"TENANT'S STATEMENT") to Landlord, setting forth such dispute(s) and specifying
in reasonable detail the basis therefor and Tenant's determination of the
Operating Expenses for such Operating Year. If Tenant shall not timely give such
Tenant's Statement, then the Operating Statement in question shall be conclusive
and binding upon Tenant. If Tenant shall timely give such Tenant's Statement,
then Landlord and Tenant shall attempt to resolve and adjust such dispute(s). If
they are unable to do so, Landlord and Tenant shall designate a certified public
accountant (the "ARBITER") whose determination made in accordance with this
Section 3.03(d)(2) shall be binding upon the parties. The Arbiter shall be a
member of an independent certified public accounting firm having at least twenty
(20) accounting professionals and shall have practiced as a certified public
accountant for at least ten (10) years. In the event that Landlord and Tenant
shall be unable to agree upon the designation of the Arbiter within thirty (30)
days after receipt of notice from the other party requesting agreement as to the
designation of the Arbiter, which notice shall contain the names and addresses
of two or more certified public accountants who are acceptable to the party
sending such notice (any one of whom, if acceptable to the party receiving such
notice as shall be evidenced by notice given by the receiving party to the other
party within such thirty (30) day period, shall be the agreed upon Arbiter),
then either party shall have the right to request the American Arbitration
Association (the "AAA") (or any organization which is the successor thereto) to
designate as the Arbiter a certified public accountant whose determination made
in accordance with this Section 3.03(d)(2) shall be conclusive and binding upon
the parties. Landlord and Tenant hereby agree that (A) except with respect to
the Base Operating Year, any determination of Operating Expenses made by an
Arbiter designated pursuant to this Section 3.03(d)(2) shall neither exceed the
determination of Landlord set forth in the Operating Statement nor be less the
determination of Tenant set forth in Tenant's Statement, (B) with respect to the
Base Operating Year, any determination of Operating Expenses made by an Arbiter
designated pursuant to this Section 3.03(d)(2) shall neither exceed the
determination of Tenant set forth in Tenant's Statement, nor be less than the
determination of Landlord set forth in the Operating Statement, and (C) that any
determination which does not comply with the foregoing shall be deemed increased
or
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decreased, as the case may be, to cure such noncompliance. In rendering such
determination the Arbiter shall not add to, subtract from or otherwise modify
the provisions of this lease, including the immediately preceding sentence.
Notwithstanding the foregoing provisions of this Section 3.03(d), Tenant,
pending the resolution of any contest pursuant to the terms hereof shall
continue to pay in the manner provided for in this Section 3.03 all sums as
determined to be due based upon the Operating Statement. If, and to the extent
that Tenant shall prevail, then within thirty (30) days after the resolution of
such contest (i.e., the Arbiter's determination), Landlord shall make an
appropriate refund to Tenant, together with interest on the amount thereof at
the Interest Rate (as defined in Article 31 hereof) for the period commencing on
the last day of the Operating Year to which such refund relates and ending on
the date such appropriate refund is made; if such determination shall relate to
the Base Operating Year, any applicable refund shall be made with respect to all
subsequent Operating Years with respect to which an initial Operating Statement
shall have been furnished to Tenant. With respect to any Operating Year other
than the Base Operating Year, (i) if the Operating Expenses set forth in the
Operating Statement shall, in the aggregate, exceed 105% of the Arbiter's
determination thereof, the costs of the Arbiter shall be borne by Landlord, (ii)
if the Operating Expenses set forth in Tenant's Statement shall, in the
aggregate, be less than 95% of the Arbiter's determination thereof, the costs of
the Arbiter shall be borne by Tenant, and (iii) otherwise, the costs of the
Arbiter shall be shared equally. With respect to the Base Operating Year, (x) if
the Operating Expenses set forth in Tenant's Statement shall, in the aggregate,
exceed 105% of the Arbiter's determination thereof, the costs of the Arbiter
shall be borne by Tenant, (y) if the Operating Expenses set forth in the
Operating Statement shall, in the aggregate be less than 95% of the Arbiter's
determination thereof, the costs of the Arbiter shall be borne by Landlord, and
(z) otherwise, the costs of the Arbiter shall be shared equally.
(3) Notwithstanding anything to the contrary contained in
Section 3.03(d)(2) above, the following provisions shall apply with respect to
Tenant's rights thereunder to dispute any amount included within Operating
Expenses on any Operating Statement pursuant to Section 3.01(c)(I)(2) hereof as
a result of any alteration, addition, improvement, replacement, repair,
equipment or tool (each such amount being herein called a "SECTION 3.01(C)(I)(2)
AMOUNT"):
(A) If Tenant shall not timely
give a Tenant's Statement with respect to any Operating Statement reflecting a
Section 3.01(c)(I)(2) Amount, or if Tenant's Statement with respect to such an
Operating Statement shall not set forth a dispute of any Section 3.01(c)(I)(2)
Amount reflected therein, then (i) any such Section 3.01(c)(I)(2) Amount, as
reflected in such Operating Statement, shall be conclusive and binding upon
Tenant, and (ii) in addition, the facts, figures and schedules used by Landlord
in determining such conclusive and binding Section 3.01(c)(I)(2) Amount (i.e.,
Landlord's determination of each of the useful life, the Cost Savings Period,
the Capital Costs and the Capital Cost Rate with respect to such alteration,
addition, improvement, replacement, repair, equipment or tool in question, as
well as the Estimated Cost Savings Schedule as prepared by Landlord with respect
thereto) shall all be conclusive and binding upon Tenant for purposes of all
Section 3.01(c)(I)(2) Amounts theretofore or thereafter based thereon (including
without limitation any such Section 3.01(c)(I)(2) Amounts may appear on any
subsequent Operating Statements), it being agreed that all further disputes by
Tenant of such facts, figures and schedules shall be foreclosed.
(B) If Tenant shall timely
give a Tenant's Statement with respect to any Operating Statement
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reflecting a Section 3.01(c)(I)(2) Amount and such Tenant's Statement shall set
forth a dispute of any such Section 3.01(c)(I)(2) Amount reflected therein
(other than a dispute which is foreclosed pursuant to Section 3.03(d)(3)(A)
above), then, to the extent any disputes as to such amounts shall be arbitrated
as provided in Section 3.03(d)(2) above, the following provisions shall apply
and bind the Arbiter:
(x) If any Estimated
Cost Savings Schedule shall be disputed, as to one or more Estimated Annual
Savings Amounts, then the issue which the Arbiter shall determine shall be
whether each such disputed Estimated Annual Savings Amount was or was not a
reasonable estimate, at the time that the Estimated Cost Savings Schedule was
made a part of the Operating Expense Records, of the Operating Expenses which
would be avoided or saved for the applicable Operating Year as a result of the
alteration, addition, improvement, replacement, repair, equipment or tool in
question; in rendering his determination as to each such disputed Estimated
Annual Savings Amount, the Arbiter shall be bound by the following: (I) if any
Estimated Annual Savings Amount is equal to or less than 115% of the Arbiter's
opinion of what was the best estimate, at the time that the Estimated Cost
Savings Schedule was made a part of the Operating Expense Records, of the
Operating Expenses which would be avoided or saved for the applicable Operating
Year as a result of the alteration, addition, improvement, replacement, repair,
equipment or tool in question, then such Estimated Annual Savings Amount shall
conclusively be deemed to have been reasonable at such time; and (II) if any
Estimated Annual Savings Amount is greater than 115% of the Arbiter's opinion of
what was the best estimate, at the time that the Estimated Cost Savings Schedule
was made a part of the Operating Expense Records, of the Operating Expenses
which would be avoided or saved for the applicable Operating Year as a result of
the alteration, addition, improvement, replacement, repair, equipment or tool in
question, then such Estimated Annual Savings Amount shall conclusively be deemed
to have been unreasonable at such time. Each disputed Estimated Annual Savings
Amount which the Arbiter determines to be an unreasonable in accordance with the
foregoing, shall be changed to the Arbiter's opinion of what was the best
estimate, at the time that the Estimated Cost Savings Schedule was made a part
of the Operating Expense Records, of the Operating Expenses which would be
avoided or saved for the applicable Operating Year as a result of the
alteration, addition, improvement, replacement, repair, equipment or tool in
question. The determination of the Arbiter, as to any disputed Estimated Annual
Savings Amount, shall, if made in accordance with this Section 3.03(d)(3)(x), be
conclusive and binding upon Landlord and Tenant as to all Section 3.01(c)(I)(2)
Amounts theretofore or thereafter based thereon.
(y) If Landlord's
determination of the useful life, Cost Savings Period, Capital Costs or Capital
Cost Rate with respect to any alteration, addition, improvement, replacement,
repair, equipment or tool shall be disputed, then any determination of the
Arbiter with respect thereto shall be conclusive and binding upon Landlord and
Tenant as to all Section 3.01(c)(I)(2) Amounts theretofore or thereafter based
thereon.
(e) (1) Notwithstanding anything to the contrary set
forth above in this Section 3.03, there shall be an abatement of the Operating
Payment(s), if any, which are payable in respect of all periods prior to the
Operating Payment Commencement Date (as hereinafter defined). The "OPERATING
PAYMENT COMMENCEMENT DATE" shall be January 1, 1995. If the Operating Payment
Commencement Date shall be a day other than the first day of a Operating Year,
then the Operating Payment for the Operating Year in which the Operating Payment
Commencement Date occurs shall be prorated (on a per diem basis) to correspond
to
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that portion of the Operating Year occurring on or after the Operating Payment
Commencement Date.
(2) Notwithstanding anything to the contrary set forth
above in this Section 3.03, the Operating Payment for any Operating Year which
ends after the Expiration Date, shall be prorated (on a per diem basis) to
correspond to that portion of such Operating Year occurring on or prior to the
Expiration Date.
3.04. (a) In any case provided in this Article 3 in which
Tenant is entitled to a payment from Landlord pursuant to the terms of this
Article 3, Landlord, in lieu of making such payment, may credit the amount
thereof against the immediately following future installments of Fixed Rent and
Additional Charges; provided, however, that if such a credit would exceed
Tenant's next installment of Fixed Rent and Recurring Additional Charges, then
the uncredited portion of such excess shall bear interest at the Base Rate from
the date due until the date credited. Nothing in this Article 3 shall be
construed so as to result in a decrease in the Fixed Rent hereunder. If this
lease shall expire before any such credit shall have been fully applied, then
Landlord, within thirty (30) days after the expiration hereof, shall refund to
Tenant the unapplied balance of such credit, but if Tenant is in monetary
default hereunder Landlord may, in lieu thereof, credit the same against the
amount of such default or withhold the same until such default is cured.
(b) The expiration or termination of this lease
during any Tax Year or Operating Year (for any part or all of which there is a
Tax Payment or Operating Payment under this Article) shall not affect the rights
or obligations of the parties hereto respecting such payment and any Operating
Statement or Tax Statement, as the case may be, relating to such payment may be
sent to Tenant subsequent to, and all such rights and obligations of Landlord
and Tenant with respect thereto shall survive, any such expiration or
termination. Any payments due under such Operating Statement and Tax Statement,
as the case may be, shall be payable within thirty (30) days after such
statement or bill is sent to Tenant.
3.05. (a) (1) Landlord's failure to render, or delay in
rendering, a Tax Statement, or a revised or corrected Tax Statement, for any Tax
Year shall not prejudice Landlord's right to thereafter render a Tax Statement,
or a revised or corrected Tax Statement, for such Tax Year or any other Tax
Year, nor shall the rendering of a revised or corrected Tax Statement for any
Tax Year prejudice Landlord's right to thereafter render a further revised or
corrected Tax Statement for such Tax Year.
(2) Notwithstanding the provisions of Section 3.05(a)(1)
above or anything hereinabove contained to the contrary, if Landlord shall not
have rendered an initial Tax Statement for any Tax Year on or prior to the date
that is two (2) years after the end of such Tax Year, then Tenant may deliver to
Landlord a notice setting forth such failure, which notice shall expressly refer
to this Section 3.05(a)(2), and, in such event, if Landlord's failure to deliver
an initial Tax Statement for such Tax Year shall continue for a further period
of three (3) months after Landlord's receipt of such notice, then Landlord shall
no longer have the right to deliver a Tax Statement for such Tax Year and Tenant
shall not be obligated to make any Tax Payment for such Tax Year (it being
understood that the provisions of this Section 3.05(a)(2) however, shall not
affect, in any way, Landlord's right to deliver a Tax Statement for any other
Tax Year or to collect from Tenant any Tax Payment for such other Tax Year).
(3) Notwithstanding the provisions of Section 3.05(a)(1)
above or anything hereinabove contained to the
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contrary, Landlord shall not have the right to render a revised or corrected Tax
Statement for any Tax Year later than the later to occur of (i) the date two (2)
years after rendering of the initial Tax Statement for such Tax Year, and (ii)
the date one (1) year after Tax Closure Date for such Tax Year; provided,
however, that Landlord shall always be (a) entitled and required to render a
revised Tax Statement based upon a decrease in Taxes or increase in the Base Tax
Amount pursuant to any tax reduction proceeding or other tax litigation, and (b)
entitled to render a revised Tax Statement based upon an increase in Taxes or
decrease in the Base Tax Amount pursuant to any tax reduction proceeding or
other tax litigation.
(b) (1) Landlord's failure to render, or delay in rendering, an
Operating Statement with respect to any Operating Year shall not prejudice
Landlord's right to thereafter render an Operating Statement for such Operating
Year or any other Operating Year, nor shall the rendering of an Operating
Statement (or a revised or corrected Operating Statement) for any Operating Year
prejudice Landlord's right to thereafter render one or more revised or corrected
Operating Statements for such Operating Year.
(2) Notwithstanding the provisions of Section 3.05(b)(1)
above or anything hereinabove contained to the contrary, if Landlord shall not
have rendered an initial Operating Statement for any Operating Year prior to the
date that is two (2) years after the end of such Operating Year, then Tenant may
deliver to Landlord a notice setting forth such failure, which notice shall
expressly refer to this Section 3.05(b)(2), and, in such event, if Landlord's
failure to deliver an initial Operating Statement for such Operating Year shall
continue for a further period of three (3) months after Landlord's receipt of
such notice, then (i) Landlord shall still be obligated to deliver an Operating
Statement for such Operating Year and Tenant may suspend payment of any sums
which would otherwise come due under Section 3.03(b) until such Operating
Statement is furnished, (ii) Tenant shall not be obligated to pay any Operating
Deficiency for such Operating Year, and (iii) Landlord, within thirty (30) days
from delivery of such an Operating Statement for such Operating Year, shall
refund to Tenant the amount of such Operating Overpayment, together with
interest on the amount thereof at the Interest Rate (rather than at the Base
Rate as provided in Section 3.03(c) above) for the period commencing on the last
day of the Operating Year in question and ending on the date the appropriate
refund is made (it being understood that the provisions of this Section
3.05(b)(2), however, shall not affect, in any way, Landlord's right to deliver
an Operating Statement for any other Operating Year or to collect from Tenant
any Operating Deficiency for such other Operating Year). The provisions of this
Section 3.05(b)(2) shall not apply to the Base Year Operating Statement;
provided, however, that Landlord shall not be deemed to have delivered an
Operating Statement for any Operating Year subsequent to the Base Operating Year
unless and until it shall have furnished the Base Year Operating Statement.
(3) Notwithstanding the provisions of Section 3.05(b)(1)
above or anything hereinabove contained to the contrary, (I) with respect to any
Operating Year in respect of which one of the Threshold Operating Statements was
rendered, Landlord shall not have the right later than one (1) year after the
Initial Audit Notice Deadline Date to render a revised or corrected Operating
Statement with respect to such Operating Year, and (II) with respect to each
Operating Year occurring after the Operating Years in respect of which any of
the Threshold Operating Statements were rendered, Landlord shall not have the
right later than one (1) year after rendering the initial Operating Statement
with respect to such Operating Year
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to render a revised or corrected Operating Statement with respect to such
Operating Year.
3.06. The parties hereto agree that for purposes of this
lease: (i) the rentable area of each floor of the Building shall be deemed to be
the rentable square footages as set forth on Exhibit D attached hereto and made
a part hereof (and, accordingly, all references in this lease to the rentable
area of any portion of the Building, including without limitation the Premises
or any portion thereof, shall be deemed to mean the rentable area thereof
computed with reference to the applicable rentable square footages set forth on
Exhibit D attached hereto), (ii) the term "TENANT'S OPERATING SHARE DENOMINATOR"
shall be deemed to mean 2,333,731 and (iii) the term "TENANT'S TAX SHARE
DENOMINATOR" shall be deemed to mean 2,385,689; provided, however, in no event
shall such deemed rentable square footages and/or numbers constitute or imply
any representation or warranty by Landlord whatsoever, as to the actual size of
any floor, any other portion of the Building or the Building or portions
thereof.
ARTICLE 4
Delivery of Premises; Landlord's Work
4.01. Tenant acknowledges that it has inspected the Premises
and is fully familiar with the condition of the Premises. Tenant hereby accepts
the Premises "as is" on the date hereof. Except for Landlord's Work (as
hereinafter defined), Landlord shall have no obligation to perform any work in
readying the Premises for Tenant's occupancy. No provision of this Article 4
shall release Landlord from the performance of any of its obligations under any
other Article of this lease.
4.02. For purposes of this lease, the following terms shall
have the following meanings:
"LANDLORD'S WORK" shall mean, collectively, the following work:
(i) the work described in "PART I" of Exhibit E attached hereto (herein called
the "STAIRWAY WORK"); (ii) the work described in "PART II" of Exhibit E attached
hereto (herein called the "SECONDARY WORK"); (iii) the work described in "PART
III" of Exhibit E attached hereto (herein called "LANDLORD'S 50TH FLOOR WORK");
and (iv) the work described in "PART IV" of Exhibit E attached hereto (herein
called the "ELEVATOR WORK").
"STAIRWAY WORK TARGET DATE" shall be May 15 1994; provided,
however, that the Stairway Work Target Date shall be postponed one day for each
day that Landlord is delayed in causing the substantial completion of the
Stairway Work by reason of either (i) one or more acts or omissions of Tenant or
any Tenant Party (as such term is defined in Article 31 hereof), which acts or
omissions constitute a violation of this lease (including without limitation a
violation of Section 4.04 hereof), or (ii) any stoppage or interruption in the
prosecution of Stairway Work undertaken pursuant to a request by Tenant or any
Tenant Party, whether incident to the coordination of work pursuant to Section
4.04 or otherwise.
"SECONDARY WORK TARGET DATE" shall be June 30, 1994; provided,
however, that the Secondary Work Target Date shall be postponed one day for each
day that Landlord is delayed in causing the substantial completion of the
Secondary Work by reason of either (i) one or more acts or omissions of Tenant
or any Tenant Party (as such term is defined in Article 31 hereof), which acts
or omissions constitute a violation of this lease (including without limitation
a violation of Section 4.04 hereof), or (ii) any stoppage or interruption in the
prosecution of Secondary Work undertaken pursuant to a request by Tenant or
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any Tenant Party, whether incident to the coordination of work pursuant to
Section 4.04 or otherwise.
"LANDLORD'S 50TH FLOOR WORK TARGET DATE" shall be May 15, 1994;
provided, however, that Landlord's 50th Floor Work Target Date shall be
postponed one day for each day that Landlord is delayed in causing the
substantial completion of the Landlord's 50th Floor Work by reason of either (i)
one or more acts or omissions of Tenant or any Tenant Party (as such term is
defined in Article 31 hereof), which acts or omissions constitute a violation of
this lease (including without limitation a violation of Section 4.04 hereof), or
(ii) any stoppage or interruption in the prosecution of Landlord's 50th Floor
Work undertaken pursuant to a request by Tenant or any Tenant Party, whether
incident to the coordination of work pursuant to Section 4.04 or otherwise.
"ELEVATOR WORK TARGET DATE" shall be September 1, 1994;
provided, however, that the Elevator Work Target Date shall be postponed one day
for each day that Landlord is delayed in causing the substantial completion of
the Elevator Work by reason of either (i) one or more acts or omissions of
Tenant or any Tenant Party (as such term is defined in Article 31 hereof), which
acts or omissions constitute a violation of this lease (including without
limitation a violation of Section 4.04 hereof), or (ii) any stoppage or
interruption in the prosecution of the Elevator Work undertaken pursuant to a
request by Tenant or any Tenant Party, whether incident to the coordination of
work pursuant to Section 4.04 or otherwise.
4.03. (a) Landlord, at its sole cost and expense, shall
perform the Stairway Work and the Secondary Work, and may perform Landlord's
50th Floor Work. All Landlord's Work shall performed in a good and workmanlike
manner in accordance with all applicable laws and requirements of public
authorities having jurisdiction thereover, and sound construction practice.
(b) (1) Landlord, subject to one or more Events of Force
Majeure, shall substantially complete the Stairway Work on or prior to the
Stairway Work Target Date.
(2) If, for any reason (including one or more Events
of Force Majeure), Landlord fails to substantially complete the Stairway Work on
or prior to the Stairway Work Target Date, then Tenant, as its sole and
exclusive remedy therefor, shall have the right, but not the obligation, to
perform the Stairway Work (or, as the case may be, the then incomplete portions
thereof), which right may be exercised only by written notice thereof to
Landlord given within the period commencing on the day immediately following the
Stairway Work Target Date and ending on the date that is fifteen (15) days
thereafter, both days inclusive. If Tenant exercises such right, then (i)
Landlord shall no longer have any obligation to perform the Stairway Work (or,
as the case may be, the then incomplete portions thereof), (ii) Tenant, in
compliance with the provisions of Article 11 hereof, shall perform the same, and
(iii) Landlord shall reimburse Tenant an amount equal to the reasonable
out-of-pocket costs incurred by Tenant in performing the Stairway Work (or, as
the case may be, the incomplete portions thereof), including engineering,
permitting and construction costs, which reimbursement shall be made by Landlord
within thirty (30) days after its receipt of a statement from Tenant setting
forth all such reimbursable costs and accompanied by paid invoices therefor.
(c) Landlord, subject to one or more Events of Force
Majeure, shall substantially complete the Secondary Work on or prior to the
Secondary Work Target Date.
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(d) If Landlord elects to perform Landlord's 50th Floor
Work, then Landlord, subject to one or more Events of Force Majeure, shall
substantially complete the same on or prior to the Landlord's 50th Floor Work
Target Date.
(e) Landlord, subject to one or more Events of Force
Majeure, shall substantially complete the Elevator Work on or prior to the
Elevator Work Target Date.
4.04. During Landlord's prosecution of Landlord's Work, Tenant
shall have the right to perform, or cause its contractors to perform, the
Initial Alterations, provided Tenant shall have complied with the provisions of
Article 11 hereof, including the requirement that the labor union affiliation of
all such contractors shall be compatible with the labor employed by or on behalf
of Landlord. Landlord and Tenant shall cooperate with each other to facilitate
the simultaneous prosecution of Landlord's Work and the Initial Alterations and
shall each perform, or cause to be performed, their respective work in
accordance with good construction practices.
ARTICLE 5
Subordination, Non-Disturbance and Attornment
5.01. For purposes of this lease, the following terms shall
have the following meanings:
(a) "UNDERLYING LEASE" shall mean any ground lease,
overriding lease or underlying lease of the Land and/or any portion of the
Building of which the Premises are a part (but excluding any such lease which
(x) demises only leasable areas of the Building outside of the Premises, or (y)
demises only one or more Units, no part of which is within the Premises), now or
hereafter existing, and all renewals, modifications, replacements and extensions
of any such lease; and the lessor of an Underlying Lease or its successor in
interest, at the time referred in question, is herein called an "UNDERLYING
LESSOR". The term "Underlying Lease" shall include without limitation the Master
Ground Lease and the Common Elements Net Lease.
(b) "MASTER GROUND LEASE" shall mean that certain Ground
Lease, dated December 31, 1966, between Landlord (as successor-in-interest to
Sol G. Atlas and John P. McGrath), as lessor, and Landlord (as
successor-in-interest to New York Plaza Building Company), as lessee, a
memorandum of which was recorded April 18, 1967 in the Register's Office in Rec.
Liber 172 Page 10, as modified by (1) a certain Agreement dated June 14, 1968, a
memorandum of which was recorded July 2, 1968 in the Register's Office in Rec.
Liber 323 Page 162, (2) a certain Assignment and Assumption of Ground Lease,
dated October 19, 1989, which was recorded October 24, 1989 in the Register's
Office in Reel 1631 Page 1561, and (3) a certain Amendment to Ground Lease dated
April 30, 1993, a memorandum of which Agreement shall has heretofore been
recorded in the Register's Office.
(c) "COMMON ELEMENTS NET LEASE" shall mean that certain
Agreement of Lease, dated as of March 29, 1993, between the One New York Plaza
Condominium, as landlord, and Landlord, as tenant.
(d) "MORTGAGE" shall mean any mortgage which may now or
hereafter affect the Land and/or any portion of the Building of which the
Premises are a part and/or any Underlying Lease, whether or not any such
mortgage shall also cover other lands and/or buildings and/or leases, including
each and every advance made or hereafter to be made under any such mortgage, and
to all modifications, replacements and extensions, spreaders and
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consolidations of any such mortgage; and the holder of a Mortgage is herein
called a "MORTGAGEE".
(e) "NON-DISTURBANCE AGREEMENT" shall mean (1) in the
case of an Underlying Lease, an agreement between the Underlying Lessor under
such Underlying Lease and Tenant, either in the form annexed hereto as Exhibit
F-1 or in such other form as shall be proposed by such Underlying Lessor so long
as such other form, as compared to the form annexed as Exhibit F-1, does not, in
any material respect, increase the obligations or liabilities of Tenant or
decrease the rights or remedies of Tenant, and, in all cases, in recordable
form, providing in substance that (A) such Underlying Lessor will not name or
join Tenant as a party defendant or otherwise in any suit, action or proceeding
to enforce any rights granted to such Underlying Lessor under its Underlying
Lease (unless required by law), and (B) that if such Underlying Lease shall
terminate or be terminated, the Underlying Lessor will recognize Tenant as the
direct tenant of such Underlying Lessor on the same terms and conditions as are
contained in this Lease, and (2) in the case of a Mortgage, an agreement between
the Mortgagee under such Mortgage and Tenant, either in the form annexed hereto
as Exhibit F-2 or in such other form as shall be proposed by such Mortgagee so
long as such other form, as compared to the form annexed as Exhibit F-2, does
not, in any material respect, increase the obligations or liabilities of Tenant
or decrease the rights or remedies of Tenant, and, in all cases, in recordable
form, providing in substance that (A) Tenant shall not be named or joined as a
party defendant or otherwise in any suit, action or proceeding to enforce any
rights granted to such Mortgagee under its Mortgage (unless required by law),
and (B) the possession of Tenant shall not be disturbed or evicted and this
lease, Tenant's leasehold estate and Tenant's rights hereunder shall not be
terminated or otherwise adversely affected as a result of any foreclosure of any
such Mortgage, and any sale pursuant to any such foreclosure or the delivery of
a deed in lieu of foreclosure, or other acquisition of Landlord's interest in
the Land and/or Building pursuant to the enforcement of the Mortgagee's
remedies; provided, however, that (i) any such provisions of any Non-Disturbance
Agreement may be conditioned upon this lease being in full force and effect and
no Event of Default having occurred and being continuing, and may be further
conditioned upon and made subject to Tenant's compliance with the provisions of
Section 5.04 hereof (pursuant to the same or separate agreement), and (ii) any
Non-Disturbance Agreement may contain the substance of Section 5.03 hereof and
subclauses (a) through (f) of Section 5.04 hereof.
5.02. Subject to Section 5.05 hereof, this lease, and all
rights of Tenant hereunder, are and shall be subject and subordinate to each and
every Underlying Lease and to each and every Mortgage. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, any Underlying Lessor or any Mortgagee, or any of
their respective successors in interest, may reasonably request to evidence such
subordination. Without limiting the generality of the foregoing, this lease is
and shall be subject and subordinate in all respects to the Master Ground Lease
and the Common Elements Net Lease. Landlord represents that, as of the date
hereof, (i) there are no Mortgages, and (ii) there are no Underlying Leases,
other than the Master Ground Lease and the Common Elements Net Lease.
5.03. If any act or omission of Landlord would give Tenant the
right, immediately or after lapse of a period of time, to cancel or terminate
this lease, or to abate or offset against the payment of rent or to claim a
partial or total eviction, Tenant shall not exercise such right (a) until it has
given written notice of such act or omission to each Mortgagee and each
Underlying Lessor whose name and address shall previously have
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been furnished to Tenant (in each case with a copy to Landlord), and (b) until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice which shall include a reasonable period of
time for such Mortgagee or Underlying Lessor to have become entitled under such
Mortgage or Underlying Lease, as the case may be, to remedy the same and shall
in no event be less than the period to which Landlord would be entitled under
this lease or otherwise, after similar notice, to effect such remedy plus thirty
(30) days, provided that such Mortgagee or Underlying Lessor shall, within
thirty (30) days after its receipt of Tenant's notice given in accordance
herewith, give Tenant notice of its intention to diligently (i) take such
actions as shall be required in order to entitle it to remedy such act or
omission and (ii) having become so entitled, remedy such act or omission;
provided, however, that such reasonable period, if not theretofore expired,
shall be deemed to expire upon a failure by such Mortgagee or Underlying Lessor
to act in reasonable conformity with such notice of intention. The notice and
cure rights of Mortgagees and Underlying Lessors set forth in this Section 5.03
are not intended to apply to Tenant's rights to terminate this lease as
expressly set forth Sections 19.03, 20.02 and 37.01 hereof, or to Tenant's
rights to an abatement of rent expressly as set forth in Sections 1.06,
3.02(h)(1), 3.03(e)(1), 19.02 and 33.01 hereof.
5.04. If any Underlying Lessor or Mortgagee, any designee of
any Underlying Lessor or Mortgagee, or any other person shall succeed to the
rights of Landlord under this lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called "SUCCESSOR LANDLORD"), Tenant
shall attorn to and recognize such Successor Landlord as Tenant's landlord under
this lease and shall promptly execute and deliver any instrument that such
Successor Landlord may reasonably request to evidence such attornment. Upon such
attornment this lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this lease, except that a Successor Landlord shall
not be:
(a) liable for any previous act or omission of Landlord (or its
predecessors in interest); it being understood that the foregoing is not
intended to relieve Successor Landlord of any liability arising by reason of its
acts or omissions from and after the date of such attornment, including a
continuation of the failure of the prior Landlord to perform its obligations
under this lease, in which case Successor Landlord upon receipt of notice of
such continuation from Tenant shall have a reasonable period of time to remedy
same (which period shall not exceed the time period granted Landlord for such
remedy pursuant to the terms of this Lease);
(b) responsible for any monies owing by Landlord to the credit
of Tenant;
(c) subject to any offsets, claims, counterclaims, demands or
defenses which Tenant may have against Landlord (or its predecessors in
interest);
(d) bound by any payments of rent which Tenant might have made
for more than one (1) month in advance to Landlord (or its predecessors in
interest);
(e) required to account for any security deposit other than any
security deposit actually delivered to the Successor Landlord; and
(f) bound by any modification of this lease, which is made
after the date Tenant has actual notice of the existence of such Successor
Landlord's Mortgage or Underlying
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Lease, and which is made without the written consent of the Mortgagee or
Underlying Lessor.
5.05. (a) Landlord, with respect to any Mortgage or Underlying
Lease executed after the date hereof, shall deliver to Tenant a Non-Disturbance
Agreement from the Mortgagee or Underlying Lessor thereunder; provided, however,
that if an Event of Default has occurred and is continuing, then Landlord shall
have no obligation to deliver a Non-Disturbance Agreement to Tenant with respect
to any such future Mortgage or future Underlying Lease until such time as such
Event of Default shall have ceased to continue, and, during the continuance of
such Event of Default, this lease shall be subject and subordinate to such
Underlying Lease or Mortgage notwithstanding that a Non-Disturbance Agreement
has not been delivered to Tenant.
(b) If, in any instance, (i) Landlord shall have
delivered to Tenant a form of Non-Disturbance Agreement for execution by Tenant
(whether or not such form of Non-Disturbance Agreement shall have theretofore
been executed by the applicable Underlying Lessor or Mortgagee) together with a
request, referring to this clause (i) of this Section 5.05(b) and conforming to
the last sentence of this Section 5.05(b), that Tenant execute the same, (ii)
Tenant shall fail or refuse to execute and deliver same within fifteen (15)
Business Days after such delivery (or, in any case that the form of
Non-Disturbance Agreement is either (x) a form proposed by the applicable
Underlying Lessor which differs from the form annexed hereto as Exhibit F-1, or
(y) a form proposed by the applicable Mortgagee which differs from the form
annexed hereto as Exhibit F-2, within twenty (20) Business Days after such
delivery), (iii) following the expiration of such fifteen (15) Business Day
period (or, as the case may be, twenty (20) Business Day period), Landlord
delivers to Tenant a notice setting forth such failure or refusal and referring
to this clause (iii) of this Section 5.05(b) and conforming to the last sentence
of this Section 5.05(b), and (iv) Tenant's failure or refusal shall continue for
a period of five (5) Business Days after Tenant's receipt of the notice
described in clause (iii) above (the last day of such five (5) Business Day
period being herein called, with respect to such Underlying Lease or Mortgage,
the "NDA EXECUTION DEADLINE DATE"), then Landlord shall have no further
obligation pursuant to this Section 5.05 with respect to such Underlying Lease
or Mortgage, all of Landlord's obligations being deemed satisfied, and this
lease and all rights of Tenant hereunder shall remain subject and subordinate to
such Underlying Lease or Mortgage without any need to deliver to Tenant a
Non-Disturbance Agreement, and no further instrument of subordination shall be
required. Any notice from Landlord under this Section 5.05(b) shall include, on
the first page thereof, in capital letters the following legend: AS MORE FULLY
SET FORTH IN SECTION 5.05(b) OF THE LEASE, YOUR FAILURE TIMELY TO RESPOND TO
THIS NOTICE MAY RESULT IN THE LEASE BEING SUBJECT AND SUBORDINATE TO AN
UNDERLYING LEASE OR MORTGAGE WITHOUT NON-DISTURBANCE PROTECTION.
(c) If, in any instance, (i) Landlord shall deliver to
Tenant a form of Non-Disturbance Agreement for execution by Tenant which has not
theretofore been executed by the applicable Underlying Lessor or Mortgagee, as
the case may be, and (ii) Tenant executes such form of Non-Disturbance Agreement
and delivers the same to Landlord on or prior to the applicable NDA Execution
Deadline Date, then Landlord shall, within fifteen (15) Business Days after
Tenant's execution thereof, cause the same to be executed by such Underlying
Lessor or Mortgagee, as the case may be, and delivered to Tenant and, until such
time as the Non-Disturbance Agreement is so delivered to Tenant, this lease
shall be superior to such Underlying Lease or Mortgage, as the case may be.
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(d) If, with respect to any Mortgage or Underlying
Lease executed after the date hereof, Landlord shall not deliver to Tenant a
Non-Disturbance Agreement from the Mortgagee or Underlying Lessor thereunder as
required by the foregoing provisions of this Section 5.05, then, unless and
until the same is delivered, this lease shall be superior to such Underlying
Lease or Mortgage (and Landlord shall have no liability by reason of such not
having delivered the Non-Disturbance Agreement with respect to such Underlying
Lease or Mortgage).
(e) Tenant shall have the right to record any
Non-Disturbance Agreement, provided that Tenant shall pay for all costs, taxes
and/or expenses necessary for the recordation of such Non-Disturbance Agreement.
Upon the expiration or earlier termination of this lease (or the expiration or
termination of the applicable Mortgage or Underlying Lease, as the case may be),
Tenant agrees to promptly execute, acknowledge and deliver to Landlord all
necessary instrument(s) prepared by Landlord in recordable form and otherwise in
form reasonably satisfactory to Tenant, evidencing such expiration or
termination of this lease and sufficient to discharge of record any
Non-Disturbance Agreements (or, in the case of the expiration or termination of
the applicable Mortgage or Underlying Lease, to promptly execute, acknowledge
and deliver to Landlord all necessary instrument(s) prepared by Landlord (or by
the applicable Underlying Lessor or Mortgagee) in recordable form and otherwise
in form reasonably satisfactory to Tenant, sufficient to discharge of record any
Non-Disturbance Agreements delivered to Tenant by the holder of any such expired
or terminated Mortgage or Underlying Lease, as the case may be), and, in all
cases, Tenant shall pay for all costs, taxes and/or expenses necessary to effect
the recordation of such instrument(s). In the event that Tenant shall fail to
comply with the foregoing sentence, Tenant shall be liable for all Landlord's
damages, costs and other liability occasioned by such failure.
ARTICLE 6
Quiet Enjoyment
6.01. So long as no Event of Default has occurred and is
continuing, Tenant shall peaceably and quietly have, hold and enjoy the Premises
without hindrance, ejection or molestation by Landlord or any person lawfully
claiming through or under Landlord, subject, nevertheless, to the provisions of
this lease. This covenant shall be construed as a covenant running with the
Land, and is not, nor shall it be construed as, a personal covenant of Landlord,
except to the extent of Landlord's interest in the Real Property and only so
long as such interest shall continue, and thereafter, with respect to the period
commencing on the date Landlord has no interest in the Real Property and ending
on the date Landlord reacquires an interest therein, Landlord shall be relieved
of all liability hereunder and this covenant shall be binding only upon
subsequent successors in interest of Landlord's interest in this lease, to the
extent of their respective interests, as and when they shall acquire the same,
and so long as they shall retain such interest.
ARTICLE 7
Assignment, Subletting and Mortgaging
7.01. Except as may be expressly permitted herein, Tenant
shall not, whether voluntarily, involuntarily, or by operation of law or
otherwise, without in each instance obtaining the prior written consent of
Landlord: (a) assign in whole or in part or otherwise transfer in whole or in
part this lease or the
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term and estate hereby granted, (b) sublet the Premises or any part thereof, or
allow the same to be used, occupied or utilized by anyone other than Tenant, (c)
mortgage, pledge, encumber or otherwise hypothecate this lease or the Premises
or any part thereof or any Tenant's Improvements in any manner whatsoever, other
than as specifically set forth in Section 11.10, or (d) permit the Premises or
any part thereof to be occupied or used for desk space or mailing privileges by
any person other than Tenant.
7.02. (a) If Tenant is a corporation, then a transfer of stock
(by a single transfer or by multiple transfers effected pursuant to a common
plan) or any other transaction (such as, by way of example, the issuance of
additional stock, the redemption of stock, a stock voting agreement, a change in
classes of stock or a merger or consolidation involving Tenant) which transfer
or other transaction results in a change of control of Tenant (or, in the event
of a merger or consolidation involving Tenant, a change of control of the
resulting corporation), shall be deemed, for all purposes of this Article 7, an
assignment of this lease, and if Tenant is a partnership, joint venture or other
non-corporate entity, then a transfer of an interest in the distributions of
profits and losses of such partnership, joint venture or other non-corporate
entity (by a single transfer or by multiple transfers effected pursuant to a
common plan) or any other transaction (such as, by way of example, the creation
of partnership interests) which transfer or other transaction results in a
change of control of such partnership, joint venture or other non-corporate
entity, shall be deemed, for all purposes of this Article 7, an assignment of
this lease. As used above in this Section 7.02(a), the term "TRANSFER" shall not
includes sales effected through the "over-the-counter market" or through any
recognized stock exchange, unless such sales are effected by persons deemed
"insiders" within the meaning of the Securities Exchange Act of 1934, as
amended. As used herein, the term "CONTROL" shall have the meaning ascribed
thereto in Article 31 hereof.
(b) (1) Notwithstanding the provisions of Section
7.02(a) above, the transfers and other transactions which, pursuant to the
aforesaid provisions, constitute deemed assignments of this lease, shall
nevertheless be permitted hereunder (without the consent of Landlord) if (i)
immediately after such deemed assignment, Tenant (which, in the event of a
merger or consolidation involving Tenant, is the resulting corporation) has a
net worth computed in accordance with generally accepted accounting principles
consistently applied which is not less than the Minimum Net Worth (as
hereinafter defined), and (ii) such transfer or other transaction is effected
for legitimate business purposes, and not primarily for the purpose of
transferring this lease.
(2) Tenant shall have the right, without the consent
of Landlord, to assign its interest in this lease to any person acquiring, by
purchase or other transfer, all or substantially all of Tenant's assets provided
that (i) such purchase or other transfer is effected for legitimate business
purposes, and not primarily for the purpose of transferring this lease and (ii)
immediately after such assignment, the purchaser or other transferee, as the
case may be, has a net worth computed in accordance with generally accepted
accounting principles consistently applied which is not less than the Minimum
Net Worth.
(3) Within ten (10) after any deemed assignment or
assignment permitted by this Section 7.02(b) without Landlord's consent, Tenant
(which, in the event of a merger or consolidation involving Tenant, is the
resulting corporation, and, in the event of an assignment pursuant to Section
7.02, is the purchaser or other transferee) shall furnish Landlord with (i)
proof reasonably satisfactory to Landlord that
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its net worth exceeds the Minimum Net Worth, and (ii) a written description of
the transaction and a duplicate original instrument of the assignment, or
equivalent instrument, effecting the assignment, or deemed assignment, of this
lease, as the case may be.
(4) The term "MINIMUM NET WORTH" shall mean (i) with
respect to any deemed assignment or assignment made during the initial term of
this lease, a net worth, computed in accordance with generally accepted
accounting principles, equal to eighteen (18) times the sum of the aggregate of
the Fixed Rent due and payable over the last twelve (12) months of the initial
term of this lease (computed without regard to any abatements, credits or
offsets applicable thereto and without regard to any expansion rights
unexercised as of the date of such assignment or deemed assignment), or (ii)
with respect to any deemed assignment or assignment made during any Renewal Term
(as hereinafter defined), a net worth, computed in accordance with generally
accepted accounting principles, equal to eighteen (18) times the sum of the
aggregate of the Fixed Rent due and payable over the last twelve (12) months of
such Renewal Term (computed without regard to any abatements, credits or offsets
applicable thereto and without regard to any expansion rights unexercised as of
the date of such assignment or deemed assignment).
(c) (1) Notwithstanding anything to the contrary contained
herein, Tenant, without any need to obtain Landlord's consent, may sublet the
whole or any portion of the Premises to any person that, at the time of the
making of such sublease, is an Affiliate of Tenant, provided, that, at the time
such sublease is made, Tenant has no intention of effecting or permitting a
transfer of control of such Affiliate of Tenant. Within ten (10) days of the
commencement date of any such sublease, Tenant shall furnish Landlord with a
duplicate original instrument thereof duly executed by Tenant and the subtenant.
(2) Notwithstanding anything to the contrary contained
herein, if any person purchases or otherwise acquires a GS Business Unit (as
hereinafter defined), then Original Tenant, without any need to obtain
Landlord's consent, may sublet to such person all or any portion of the Premises
which, prior to such purchase or acquisition, was occupied, exclusively or
primarily, by such GS Business Unit, provided, that (i) such GS Business Unit
shall have been occupying space in the Premises for a period of at least one (1)
year prior to such purchase or other acquisition, (ii) such sublease shall be
made together with such purchase or other acquisition, and (iii) immediately
after such purchase or other acquisition, Original Tenant shall have a net worth
computed in accordance with generally accepted accounting principles
consistently applied which is not less the Minimum Net Worth. The term "GS
BUSINESS UNIT" shall mean any discernable and on-going part of the business
which Original Tenant and/or Affiliates of Original Tenant conducts at the
Premises (whether or not organized as a separate legal entity). A person shall
be deemed to have purchased or otherwise acquired a GS Business Unit only if
such person shall purchase or otherwise acquire all or substantially all of the
Tenant's Property used by such GS Business Unit immediately prior to such
purchase or other acquisition and, immediately after such purchase or other
acquisition, shall employ, or seek to employ, all or substantially all of the
employees of such GS Business Unit immediately prior to such purchase or other
acquisition. For purposes of this Section 7.02(c)(2), a person which "purchases
or otherwise acquires a GS Business Unit" shall include, without limitation, an
Affiliate of Original Tenant (whether pre-existing or newly formed) which
acquires a GS Business Unit, even in a case where Original Tenant has an
intention of effecting or permitting a transfer of control of such Affiliate
immediately after such acquisition. Within ten (10) days of the commencement
date of any such sublease, Original
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Tenant shall furnish Landlord with a duplicate original instrument thereof duly
executed by Original Tenant and the subtenant.
(d) (1) The terms and provisions of Section 7.02(a)
shall be deemed to apply, mutatis mutandis, to any permitted subtenant of Tenant
with respect to the assignment or deemed assignment of such subtenant's
sublease.
(2) The terms and provisions of Section 7.02(b)
hereof shall be deemed to apply, mutatis mutandis, to any permitted subtenant of
Tenant with respect to the assignment or deemed assignment of such subtenant's
sublease, except that the subtenant's assignee or deemed assignee need not
comply with the provisions thereof relating to net worth; provided, however,
that such terms and provisions shall not apply to permit any such assignment or
deemed assignment, if, immediately prior to such assignment or deemed
assignment, the subtenant is an Affiliate of Tenant, unless, immediately after
such assignment or deemed assignment, Tenant has a net worth computed in
accordance with generally accepted accounting principles consistently applied
which is not less the Minimum Net Worth.
(3) The terms and provisions of Section 7.02(c)(1)
hereof shall apply, mutatis mutandis, to any permitted subtenant of Tenant with
respect to the undersubletting of all or any part of the sublease premises to
Affiliates of such subtenant; provided, however, that such terms and provisions
shall not apply to any undersubletting by a subtenant that, at the time of the
making of such undersubletting, is an Affiliate of Tenant.
7.03. If this lease shall be assigned, whether or not in
violation of the provisions of this lease, Landlord may collect rent from the
assignee. If the Premises or any part thereof are sublet or used or occupied by
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, collect rent from the subtenant or occupant. In either event, Landlord
shall apply the net amount collected to the Fixed Rent and Additional Charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of any of the provisions of Section 7.01, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the performance by Tenant of Tenant's obligations under this lease.
The consent by Landlord to a particular assignment, mortgaging, subletting or
use or occupancy by others shall not in any way be considered a consent by
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article. References in this
lease to use or occupancy by others (that is, anyone other than Tenant) shall
not be construed as limited to subtenants and those claiming under or through
subtenants but shall also include licensees and others claiming under or through
Tenant, immediately or remotely.
7.04. Any assignment or deemed assignment, whether made with
Landlord's consent pursuant to the provisions of this Article 7, or without the
need of Landlord's consent pursuant to this Section 7.02 hereof, shall be made
only if, and shall not be effective until, the entity owning the Tenant's
interest in this lease following such assignment or deemed assignment shall
execute, acknowledge and deliver to Landlord an agreement in the form of Exhibit
G hereto whereby such entity shall:
(a) assume the obligations of this lease on the
part of Tenant to be performed or observed as of the effective
date of the assignment or deemed assignment (except, that, in
the case of any assignment or deemed assignment effected
pursuant to Section 7.02
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hereof without the need of Landlord's consent, such assumption
shall be effective as of the Commencement Date); and
(b) agree that the provisions in Article 7
shall, notwithstanding such assignment or transfer, continue
to be binding upon it in respect of all future assignments and
deemed assignments;
provided, however, that, in the case of any deemed assignment, no such
instrument shall be required if the entity owning the Tenant's interest in this
lease following such deemed assignment shall be the same as the entity owning
the Tenant's interest in this lease prior to such deemed assignment. Tenant
covenants that, notwithstanding any assignment or deemed assignment, whether or
not in violation of the provisions of this lease, and notwithstanding the
acceptance of Fixed Rent and/or Additional Charges by Landlord from any
assignee, or any other party, Tenant shall remain fully liable for the payment
of the Fixed Rent and Additional Charges and for the performance and observance
of other obligations of this lease on the part of Tenant to be performed or
observed.
7.05. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease. Notwithstanding the foregoing, if this
lease shall be assigned, the assignor Tenant shall not thereafter be liable with
respect to any obligations of Tenant to the extent that the same arise out of
any modification of this lease effected after the effective date of such
assignment.
7.06. The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this lease or in the
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or deemed assignment of this lease or to any sublease of the Premises or to the
use or occupancy thereof by others.
7.07. (a) Notwithstanding anything to the contrary contained
in this Article, if Tenant shall at any time or times during the term of this
lease desire to assign this lease or sublet all or part of the Premises (other
than (i) an assignment, or deemed assignment, pursuant to Section 7.02(b) for
which Landlord's consent is not required, (ii) a sublease pursuant to Section
7.02(c) for which Landlord's consent is not required, or (iii) a Short-Term
Sublease (as hereinafter defined)), Tenant shall give notice thereof to
Landlord, which notice ("TENANT'S INITIAL NOTICE") shall contain all of the
following terms and conditions:
(1) in the case of a desired assignment, (i) the desired
effective date thereof (which desired effective date shall not be not
more than eighteen (18) months after the date Landlord receives
Tenant's Initial Notice (or, if the Premises, as of the date of such
Tenant's Initial Notice, consist of less than 100,000 rentable square
feet, not more than twelve (12) months after the date Landlord receives
Tenant's Initial Notice)), (ii) the total amount of all sums and other
consideration, if any, that Tenant in good faith, contemplates
receiving from a prospective third party assignee in consideration of
such assignment (assuming there will be no Excess Tenant Property
Payments (as hereinafter defined) in connection with such assignment),
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(iii) the nature and amount of all tenant inducements (such as, by way
of example only, direct payments, work allowances and workletters), if
any, that Tenant, in good faith, contemplates being required to grant a
prospective third party assignee, and (iv) Tenant's reasonably detailed
computation of the Net Effective Assignment Price (as hereinafter
defined) or the Net Effective Assignment Payment (as hereinafter
defined), as the case may be, for the desired assignment set forth in
such Tenant's Initial Notice; and
(2) in the case of a desired sublease, (i) the desired
commencement date of such desired sublease (it being agreed that such
desired commencement date (x) in the case of a desired sublease of an
area consisting of less than 100,000 rentable square feet, shall not be
more than twelve (12) months after the date Landlord receives Tenant's
Initial Notice, and (y) in the case of a desired sublease of an area
consisting of 100,000 rentable square feet or more, shall be not more
than eighteen (18) months after the date Landlord receives Tenant's
Initial Notice), and the desired expiration date of such desired
sublease (it being agreed that no Tenant's Initial Notice shall set
forth or contemplate any renewal, extension, termination or other
options whereby the term of the desired sublease could be shortened or
lengthened), (ii) a description of the portion of the Premises that
Tenant desires to sublease, including a floor plan delineating the same
(it being agreed that no Tenant's Initial Notice shall set forth or
contemplate any expansion, contraction or other option or provision
whereby the space to be demised under the desired sublease will or
could be enlarged or reduced at anytime during the term of the desired
sublease), (iii) all rent, additional rent and other consideration
(including without limitation all rent and additional rent payable with
respect to taxes, operating expenses and other "pass-through" expenses,
including, if applicable, information as to base years or amounts, and
rent concessions) which Tenant, in good faith, contemplates receiving
from a prospective third party subtenant in respect of the desired
sublease (assuming there will be no Excess Tenant Property Payments in
connection with such desired sublease) (it being agreed that each
Tenant's Initial Notice shall set forth a fixed rent which is payable
in equal monthly amounts throughout the term of the desired sublease,
except that, at Tenant's option, a Tenant's Initial Notice may set
forth a period, prior to the first such monthly payment, during which
such fixed rent would abate), (iv) the nature and amount of all tenant
inducements (such as, by way of example only, direct payments, work
allowances and workletters), if any, that Tenant, in good faith,
contemplates being required to offer a prospective third party
subtenant in respect of the desired sublease, and (v) Tenant's
reasonably detailed computation of the Net Effective Sublease Rental
(as hereinafter defined) for the desired sublease set forth in such
Tenant's Initial Notice (together, if applicable, with a statement
setting forth any assumptions made by Tenant in computing such Net
Effective Sublease Rental, including without limitation any assumptions
made with respect to future taxes, operating expenses and other
"pass-through" expenses, all of which assumptions shall be reasonable).
As used herein, the following terms shall have the following meanings:
(A) The term "NET EFFECTIVE ASSIGNMENT PRICE" shall mean,
with respect to any desired assignment set forth in a Tenant's Initial Notice or
any proposed assignment set forth in a Tenant's Proposal Notice (as hereinafter
defined), the excess, if any, of (I) the net present value, determined as of
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the effective date of the desired or proposed assignment using a discount rate
of 10% per annum, of all sums and other consideration to be paid by the assignee
in respect of the desired or proposed assignment (as well as, in the case of any
proposed assignment, any Excess Tenant Property Payments in connection
therewith), discounted from the date that any such payment(s) are to be made
under the desired or proposed assignment to the effective date of such desired
or proposed assignment, over (II) the net present value, determined as of the
effective date of the desired or proposed assignment using a discount rate of
10% per annum, of all tenant inducements (such as, by way of example only,
direct payments, work allowances and workletters) to be paid or incurred by
assignor to assignee in respect of such desired or proposed assignment,
discounted from the date that such tenant inducements are to be paid or incurred
under the desired or proposed assignment to the effective date of such desired
or proposed assignment.
(B) The term "NET EFFECTIVE ASSIGNMENT PAYMENT" shall mean,
with respect to any desired assignment set forth in a Tenant's Initial Notice or
any proposed assignment set forth in a Tenant's Proposal Notice, the excess, if
any, of (I) the net present value, determined as of the effective date of the
desired or proposed assignment using a discount rate of 10% per annum, of all
tenant inducements (such as, by way of example only, direct payments, work
allowances and workletters) to be paid or incurred by assignor to assignee in
respect of such desired or proposed assignment, discounted from the date that
such tenant inducements are to be paid or incurred under the desired or proposed
assignment to the effective date of such desired or proposed assignment, over
(II) the net present value, determined as of the effective date of the desired
or proposed assignment using a discount rate of 10% per annum, of the aggregate
of all sums and other consideration to be paid by the assignee in respect of the
desired or proposed assignment (as well as, in the case of any proposed
assignment, any Excess Tenant Property Payments in connection therewith),
discounted from the date that any such payment(s) are to be made under the
desired or proposed assignment to the effective date of such desired or proposed
assignment.
(C) The term "NET EFFECTIVE SUBLEASE RENTAL" shall mean,
with respect to any desired sublease set forth in a Tenant's Initial Notice or
proposed sublease set forth in a Tenant's Proposal Notice, the monthly amount
per rentable square foot, equal to the quotient obtained by dividing (I) the
quotient obtained by dividing (i) the excess of (x) the net present value,
determined as of the commencement date of the desired or proposed sublease using
a discount rate of 10% per annum, of the aggregate of all rent, additional rent
and other consideration payable under the desired or proposed sublease (as well
as, in the case of a proposed sublease, any Excess Tenant Property Payments in
connection therewith), discounted from the dates that such payments are to be
made under the desired or proposed sublease to the commencement date of such
desired or proposed sublease, over (y) the net present value of all tenant
inducements (such as, by way of example only, direct payments, work allowances
and workletters) to be paid or incurred to the subtenant under the desired or
proposed sublease, discounted, using a discount rate of 10% per annum, from the
date that such tenant inducements are to be paid or incurred under the desired
or proposed sublease to the commencement date of such desired or proposed
sublease, by (ii) the number of calendar months (rounded to the nearest one-half
month) within the term of such desired or proposed sublease, by (II) the number
of rentable square feet in the area to be demised by such desired or proposed
sublease. With respect to the application of the foregoing, it is agreed that
the Net Effective Sublease Rental of a proposed sublease set forth in a Tenant's
Proposal Notice shall be determined solely with reference to the initial term of
such proposed sublease,
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i.e., without regard to any renewal term pertinent to any Qualified Sublease
Renewal Provision (as hereinafter defined) set forth in such Tenant's Proposal
Notice.
(b) Each Tenant's Initial Notice shall be deemed an
offer from Tenant to Landlord, whereby Landlord may, at its option, (i)
terminate this lease, in the case of (x) a desired assignment or (y) a desired
sublease of an area comprising 90% or more of the rentable area of the Premises,
or (ii) terminate this lease with respect to the desired sublease area, in the
case of a desired sublease. Said option(s) ("LANDLORD'S RECAPTURE OPTIONS") may
be exercised by Landlord by giving notice to Tenant at any time within the
period (the "OPTION PERIOD") of thirty (30) days after Landlord's receipt of
Tenant's Initial Notice.
(c) No Tenant's Initial Notice (or series of Tenant's
Initial Notices) shall contemplate a sublease (or series of subleases) which is
(or are) intentionally structured in a manner which is designed to frustrate
Landlord's rights hereunder with respect to its Recapture Options. Without
limiting the generality of the foregoing, if any Tenant's Initial Notice shall
set forth a desired sublease of less than all of the Premises located on any
Premises Floor, then each of the desired sublease premises and the remaining
balance of such Premises Floor shall consist solely of one or more Rentable
Blocks. The term "RENTABLE BLOCK" shall mean any contiguous block of not less
than 10,000 rentable square feet which, taking into account its size, location
and configuration, can be leased as office space to willing office tenants in
accordance with applicable laws and requirements of public authorities.
(d) If, at the time it delivers Tenant's Initial Notice,
Tenant is then negotiating with any specific potential assignees or subtenants,
then Tenant shall set forth in Tenant's Initial Notice (A) the name and address
of each such potential assignee or subtenant, and (B) a reasonably detailed
description of the nature and character of the business of each such potential
assignee or subtenant. In addition, if a sublease, letter of intent or similar
writing has theretofore been executed (all of which writings must be conditioned
upon both Landlord not exercising any of its applicable Recapture Options and
Landlord granting its consent hereunder), then Tenant shall deliver a copy of
the same to Landlord with the Tenant's Initial Notice; and, if such a sublease,
letter or similar writing is thereafter executed prior to the end of the Option
Period, then Tenant shall deliver a copy of the same to Landlord promptly after
the same is executed.
7.08. (a) If Landlord exercises Landlord's Recapture Option
set forth in Section 7.07(b)(i) to terminate this lease, then, this lease shall
end and expire on (i) in the case of desired assignment, the later to occur of
(x) the date which is twelve (12) months after the date that Landlord received
the Tenant's Initial Notice setting forth such desired assignment (or, if the
Premises, as of the date of such Tenant's Initial Notice, consisted of (I) less
than 100,000 rentable square feet but more than space located solely on a single
Premises Floor, then the date six (6) months after the date Landlord received
such Tenant's Initial Notice, or (II) space located solely on a single Premises
Floor, then the date four (4) months after the date Landlord received such
Tenant's Initial Notice), and (y) the effective date of the desired assignment
set forth in such Tenant's Initial Notice, or (ii) in the case of a desired
sublease, the later to occur of (A) the date which is twelve (12) months after
the date that Landlord received the Tenant's Initial Notice setting forth such
desired sublease (or, if the Premises, as of the date of such Tenant's Initial
Notice, consisted of (X) less than 100,000 rentable square feet but more than
space located solely on a single Premises Floor, the date six (6)
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months after the date Landlord received such Tenant's Initial Notice, or (Y)
space located solely on a single Premises Floor, the date four (4) months after
the date Landlord received such Tenant's Initial Notice), and (B) the
commencement date of the desired sublease set forth in such Tenant's Initial
Notice; and, in each such case, the Fixed Rent and Additional Charges shall be
paid and apportioned to the date of such termination.
(b) If Landlord exercises Landlord's Recapture Option
set forth in Section 7.07(b)(ii) to terminate this lease with respect to the
desired sublease area set forth in a Tenant's Initial Notice, then (i) this
lease shall end and expire with respect to such desired sublease area on the
later to occur of (A) either (x) in the event that such desired sublease area
consists solely of space which is located on a single Premises Floor, the date
which is four (4) months after the date that Landlord received such Tenant's
Initial Notice, (y) in the event that such desired sublease area consists of
more than solely space which is located on a single Premises Floor, but consists
of less than 100,000 rentable square feet in the aggregate, the date which is
six (6) months after the date that Landlord received such Tenant's Initial
Notice, or (z) in the event that such desired sublease area consists of more
than 100,000 rentable square feet in the aggregate, the date which is twelve
(12) months after the date that Landlord received such Tenant's Initial Notice,
and (B) the commencement date of the desired sublease as set forth in such
Tenant's Initial Notice (any such area being hereinafter referred to as
"RECAPTURED SPACE"), (ii) from and after such date the Fixed Rent and Additional
Charges shall be adjusted, based upon the proportion that the rentable area of
the Premises remaining after the deletion of the Recaptured Space bears to the
total rentable area of the Premises prior to the deletion of the Recaptured
Space, and (iii) Landlord shall physically separate the Recaptured Space from
the balance of the Premises and in comply with any laws and requirements of any
public authorities relating to such separation, and Tenant, thereafter upon
demand, shall pay to Landlord, as Additional Charges hereunder, an amount equal
to one-half (1/2) the actual out-of-pocket costs incurred by Landlord in
physically separating such Recaptured Space from the balance of the Premises,
and in complying with any laws and requirements of any public authorities
relating to such separation.
(c) If (i) any Recaptured Space constitutes less than
the entire rentable area on any Premises Floor, and portions of the Premises
remain on such Premises Floor, and (ii) Landlord thereafter leases such
Recaptured Space to one or more tenants, then Tenant, as applicable, shall (x)
in any case where the Recaptured Space is not appurtenant to the Building's
passenger elevator lobby located on such Premises Floor or the Building's
freight elevator lobby located on such Premises Floor, provide such tenants of
Landlord with ingress and egress to and from such passenger and freight elevator
lobbies, and (y) in all cases, provide such tenants with ingress and egress to
and from, and with the use of, the Core Lavatories located on such Premises
Floor.
7.09. (a) If, in any case that Landlord has received a
Tenant's Initial Notice and Landlord has not exercised any of its Recapture
Options within the Option Period, Tenant, thereafter, continues to desire to
assign this lease or to sublease all or a portion of the Premises as set forth
in such Tenant's Initial Notice, then Tenant, no later than the Post-Option
Submission Deadline Date (as hereinafter defined) with respect to such Tenant's
Initial Notice, may submit to Landlord one or more Tenant's Proposal Notices (as
hereinafter defined), each describing either a proposed assignment (in any case
that the Tenant's Initial Notice set forth a desired assignment) or a proposed
sublease (in any case that the Tenant's Initial Notice set forth a desired
sublease). As used herein, the term "POST-
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OPTION SUBMISSION DEADLINE DATE", with respect to any Tenant's Initial Notice,
shall be the date that is one hundred twenty (120) days after the effective date
of the desired assignment set forth in such Tenant's Initial Notice or the
commencement date of the desired sublease set forth in such Tenant's Initial
Notice, as the case may be.
(b) In any case that Tenant desires to enter
into a Short-Term Sublease (and, accordingly, Tenant is not obligated under
Section 7.07 hereof to submit a Tenant's Initial Notice), Tenant (without first
submitting a Tenant's Initial Notice) may submit to Landlord a Tenant's Proposal
Notice describing a proposed Short-Term Sublease. The term "SHORT-TERM SUBLEASE"
shall mean a sublease which will expire prior to the date that is eighteen (18)
months prior to the Then Current Expiration Date (as of the execution of such
sublease); it being understood that a Short-Term Sublease may include one or
more renewal or extension options, provided, that, in the event that all such
renewal and extension options are exercised, such sublease will still expire
prior to the date that is eighteen (18) months prior to the Then Current
Expiration Date (as of the execution of such sublease).
(c) A "TENANT'S PROPOSAL NOTICE" shall be a
notice from Tenant to Landlord setting forth a proposed assignment or sublease
and requesting Landlord's consent thereto, which notice shall have been rendered
pursuant to either Section 7.09(a) or Section 7.09(b) above, and shall comply
with all the provisions of this Section 7.09. Each Tenant's Proposal Notice
shall set forth (i) the name and address of the proposed assignee or subtenant,
(ii) the effective date of the proposed assignment or the commencement date and
expiration date of the proposed sublease (it being agreed that no proposed
sublease, other than a proposed Short-Term Sublease, described in a Tenant's
Proposal Notice shall include or contemplate any renewal, extension, termination
or other option whereby the term of the proposed sublease will or could be
shortened or lengthened, except for one or more Qualified Sublease Renewal
Provisions (as hereinafter defined) with respect to such proposed sublease),
(iii) in the case of a proposed sublease, a description of the portion of the
Premises to be sublet (including a floor plan) and its proposed use (it being
agreed that no proposed sublease, other than a proposed Short-Term Sublease,
described in a Tenant's Proposal Notice shall include or contemplate any
expansion, contraction or other option or provision whereby the space to be
demised under the proposed sublease will or could be enlarged or reduced at
anytime during the term of the proposed sublease), (iv) the economic terms of
the proposed assignment or sublease, which shall include (x) in the case of a
proposed assignment, the sums and other consideration, if any, payable to Tenant
in respect of the assignment, and the nature and amount of all tenant
inducements to be paid or incurred to the proposed assignee (and, if applicable,
any Excess Tenant Property Payments payable in connection with such proposed
assignment), and (y) in the case of a proposed sublease, all rent, additional
rent and other consideration (including without limitation all rent and
additional rent with respect to taxes, operating expenses and other
"pass-through" expenses, including, if applicable, information as to base years
or amounts and rent concessions) payable to Tenant under the proposed sublease,
and the nature and amount of all tenant inducements to be paid or incurred to
the proposed subtenant (and, if applicable, any Excess Tenant Property Payments
payable in connection with such proposed sublease). The term "QUALIFIED SUBLEASE
RENEWAL PROVISION", with respect to any proposed sublease, shall mean (I) any
option provision contained in the original form of such proposed sublease
(exercisable by the subtenant under the proposed sublease or Tenant, as
sublandlord, under the proposed sublease) to extend the term of such proposed
sublease, or (II) any provision contained in the original form of such proposed
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sublease which provides that the term thereof shall be automatically deemed
extended upon a renewal of this lease; provided, however, that no such option or
provision in any proposed sublease shall be deemed a "Qualified Sublease Renewal
Provision" unless (X) the first renewal term pertinent to any such option or
provision contained in such proposed sublease shall commence on, or on the first
day after, the Then Current Expiration Date (as of the execution of the proposed
sublease), (Y) during the renewal term pertinent to all such options or
provisions contained in such proposed sublease, the sublease rent shall be equal
to the per annum per rentable square foot rate of Fixed Rent, Tax Payments and
Operating Expenses payable under this lease during such renewal term, and (Z)
each such option or provision shall be expressly conditioned upon the renewal of
this lease for the full duration the renewal term pertinent thereto. Each
Tenant's Proposal Notice shall be accompanied by (A) a conformed or photostatic
executed copy of the proposed assignment agreement or sublease (it being
understood that the effectiveness of the proposed assignment contemplated by the
assignment agreement or the commencement of the proposed sublease, as the case
may be, shall be expressly conditioned, in such assignment agreement or proposed
sublease, upon Landlord granting its consent to the proposed assignment or
proposed sublease in accordance with this Article 7 (which express condition of
Landlord's consent, with respect to any proposed assignment or sublease, is
herein called the "CONSENT CONDITION")), (B) a reasonably detailed description
of the nature and character of the business of the proposed subtenant or
assignee, and reasonably detailed character references for such proposed
assignee or subtenant, and (C) with respect to any assignment, reasonably
detailed financial references with respect to the proposed assignee and current
financial information with respect to the proposed assignee, including, without
limitation, its most recent balance sheet and income statements certified by its
chief financial officer, or, if available, a certified public accountant, to the
extent available to Tenant. Each Tenant's Proposal Notice shall expressly
request Landlord's consent to the proposed assignment or sublease set forth
therein and shall include, on the first page thereof, in capital letters the
following legend: AS MORE FULLY SET FORTH IN SECTION 7.10 OF THE LEASE,
LANDLORD'S FAILURE TO RESPOND TO THIS NOTICE WITHIN FIFTEEN (15) BUSINESS DAYS
OF ITS SUBMISSION TO LANDLORD MAY RESULT IN LANDLORD BEING DEEMED TO HAVE
CONSENTED TO THE PROPOSED ASSIGNMENT OR SUBLEASE DESCRIBED HEREIN.
(d) Each Tenant's Proposal Notice that is
submitted pursuant to Section 7.09(a) prior to the Post-Option Submission
Deadline Date, shall also include Tenant's reasonably detailed computation of
the Net Effective Assignment Price or Net Effective Assignment Payment, as
applicable, with respect to the proposed assignment set forth in such Tenant's
Proposal Notice, or the Net Effective Sublease Rental with respect to the
proposed sublease set forth in such Tenant's Proposal Notice (which Net
Effective Sublease Rental shall be computed using the same assumptions as were
reasonably set forth in the applicable Tenant's Initial Notice with respect to
the desired sublease set forth therein). It shall be condition precedent to
Tenant's right to proceed with the proposed assignment or proposed sublease set
forth in any such Tenant's Proposal Notice that such proposed assignment or
sublease satisfy the following conditions:
(i) (x) the effective date of any such proposed
assignment (it being agreed that, for purposes of determining such
effective date, the Consent Condition with respect to such assignment
shall be deemed satisfied on the date Landlord receives Tenant's
Proposal Notice) shall be no more than one hundred twenty (120) days
before or after the effective date of the desired assignment set forth
in the applicable Tenant's Initial Notice, and (y) the commencement
date of any proposed sublease (it being agreed that, for
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purposes of determining such commencement date, the Consent Condition
with respect to such sublease shall be deemed satisfied on the date
Landlord receives Tenant's Proposal Notice) shall be no more than one
hundred twenty (120) days before or after the commencement date of the
desired sublease set forth in the applicable Tenant's Initial Notice;
(ii) in the case of a proposed sublease, the
space proposed to be sublet shall not be materially different in size
(i.e., larger or smaller by more than 5%), and, except for the
foregoing size differential, shall not be in a different location, than
the desired sublease area set forth in the applicable Tenant's Initial
Notice;
(iii) in the case of a proposed sublease, the
expiration date of the sublease term (determined without regard to any
renewal terms pertinent to any Qualified Sublease Renewal Provisions)
shall not be materially earlier or later (i.e., earlier or later by
more than (x) three (3) months, if the sublease term of such proposed
sublease is five (5) years or less, or (y) six (6) months, if the
sublease term of such proposed sublease is longer than five (5) years)
than the desired expiration date set forth in the applicable Tenant's
Initial Notice; and
(iv) (x) in the case of a proposed sublease, the
Net Effective Sublease Rental of the proposed sublease shall be equal
to or greater than 92-1/2% of the Net Effective Sublease Rental of the
desired sublease set forth in the Tenant's Initial Notice, or (y) in
the case of a proposed assignment, either (1) both such proposed
assignment and the desired assignment set forth in the applicable
Tenant's Initial Notice shall reflect a Net Effective Assignment Price
and the Net Effective Assignment Price of such proposed assignment
shall be equal to or greater than 92-1/2% of the Net Effective
Assignment Price of such desired assignment, or (2) both such proposed
assignment and the desired assignment set forth in the applicable
Tenant's Initial Notice shall reflect a Net Effective Assignment
Payment and the Net Effective Assignment Payment of such proposed
assignment shall be equal to or less than 107-1/2% of the Net Effective
Assignment Payment of such desired assignment, or (3) neither such
proposed assignment nor the desired assignment set forth in the
applicable Tenant's Initial Notice shall reflect a Net Effective
Assignment Price or a Net Effective Assignment Payment.
In any case that a proposed assignment or sublease does not meet the foregoing
conditions, Tenant shall not have the right to render a Tenant's Proposal Notice
with respect thereto, and any purported Tenant's Proposal Notice rendered
pursuant thereto shall be null and void and Landlord need not consider the same.
(e) If, in any case where a Tenant's Initial
Notice is required under Section 7.07 and delivered in accordance therewith, (i)
Landlord fails to exercise any of its Recapture Options under Section 7.07, and
(ii) Tenant fails to submit a complying Tenant's Proposal Notice on or before
the Post-Option Submission Deadline Date, then Tenant shall again comply with
all of the provisions and conditions of Section 7.07, if applicable, before
assigning this lease or subletting all or part of the Premises.
7.10. If Tenant shall have complied with the provisions of
Sections 7.07, if applicable, and Tenant shall have submitted a Tenant's
Proposal Notice in accordance, and shall have otherwise complied, with Section
7.09, then Landlord's consent to the proposed assignment or sublease set forth
in a
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Tenant's Proposal Notice shall not be unreasonably withheld, provided and upon
condition that:
(a) the proposed assignee or subtenant is
engaged in a business which is in keeping with the then standards of
the Building;
(b) the proposed assignee or subtenant is a
reputable person or entity in keeping with the then standards of the
Building;
(c) the proposed assignee or subtenant (or any
person or entity which, directly or indirectly, controls, is controlled
by, or is under common control with, the proposed assignee or
subtenant) shall not then be an occupant of any part of the Building;
provided, however, that this clause (c) shall not apply to a proposed
subtenant that, at the time Landlord receives the Tenant's Proposal
Notice, is an existing subtenant of Tenant unless immediately prior to
becoming an existing subtenant of Tenant such proposed subtenant was an
existing direct tenant of Landlord;
(d) the proposed assignee or subtenant (or any
person or entity which, directly or indirectly, controls, is controlled
by, or is under common control with, the proposed assignee or
subtenant) shall not be a person or entity with whom Landlord has,
within the six (6) month period prior to Landlord's receipt of Tenant's
Proposal Notice, been actively negotiating to lease space in the
Building (as used herein the term "ACTIVELY NEGOTIATING" shall mean
Landlord has either (I) subsequent to a general or specific request,
expression of interest or discussions or negotiations, sent to a
specific prospective subtenant (or its designated agent), or (II)
received from a specific subtenant (or its designated agent), a written
proposal to lease space in the Building (or subsequent modification
thereof or supplement thereto), which proposal (or which proposal as
modified or supplemented) shall contain the financial terms of the
proposed lease and indicate the approximate square footage of the space
to be demised by such proposed lease);
(e) in the case of a proposed assignment, the
proposed assignee shall have a net worth computed in accordance with
generally accepted accounting principles equal to or greater than the
Minimum Net Worth;
(f) there shall not be more than four (4)
Premises Occupants (as hereinafter defined) on any Premises Floor
(which number "four (4)" shall be pro-rated on a rentable square foot
basis, and rounded to the nearest whole number, for Partial Premises
Floors (as defined in Article 31 hereof)) (as used herein, the term
"PREMISES OCCUPANT" shall mean any occupant of the Premises, including
Tenant, any subtenant and any undersubtenant (but excluding an
Affiliate of Tenant which only occupies space in the Premises which is
not separated by demising walls from the balance of the Premises));
(g) in the case of a proposed sublease, if the
area to be demised thereby consists of less than the entire rentable
area of a Premises Floor, then each of such area and the remaining
balance of such Premises Floor shall consist of one or more Rentable
Blocks;
(h) Tenant shall reimburse Landlord, within ten
(10) days after demand, for any out-of-pocket costs incurred by
Landlord in connection with said assignment or sublease, including,
without limitation, the costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and reasonable
legal costs incurred
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in connection with the granting of any requested consent; and
(i) Tenant shall have complied with all the
provisions of this Article 7 (including without limitation Article
7.11), and no Event of Default shall then exist hereunder.
Provided Tenant shall have complied with the provisions of Sections 7.07, if
applicable, and shall have submitted a Tenant's Proposal Notice in accordance
with, and shall have otherwise complied with, Section 7.09, Landlord shall give
(or withhold) its consent to a proposed assignment or sublease within fifteen
(15) Business Days after the submission to Landlord of the Tenant's Proposal
Notice setting forth the same (if such consent is not given or withheld within
such fifteen (15) Business Day period, the same shall be deemed given).
Landlord's consent to a proposed assignment shall be in the form of Exhibit O-1;
which consent shall be conditioned upon Tenant, within ten (10) Business Days
after its receipt of such instrument, (i) executing, and causing the proposed
assignee to execute, the same, and (ii) delivering the same, as fully executed,
to Landlord. Landlord's consent to a proposed sublease shall be in the form of
Exhibit O-2; which consent shall be conditioned upon Tenant, within ten (10)
Business Days after its receipt of such instrument, (x) executing, and causing
the proposed subtenant to execute, the same, and (y) delivering the same, as
fully executed, to Landlord.
7.11. (a) For purposes of this Section 7.11 and Section 7.12,
the following definitions shall apply:
(1) "ASSIGNMENT CONSIDERATION", with respect to any
assignment, shall mean the sum of (i) any and all sums and other consideration
actually paid to Assignor (whether before, upon or after the assignment) by the
assignee for or by reason of such assignment (including without limitation any
amounts paid in respect of the sale or transfer of any Tenant's Improvements),
and (ii) any Excess Tenant Property Payments in connection with such assignment.
"ASSIGNOR" shall mean the Tenant prior to the assignment.
(2) "SUBLEASE CONSIDERATION", with respect to any sublease
for any calendar year, shall mean the sum of (i) any and all rents, additional
charges or other consideration actually paid to Tenant by the subtenant pursuant
to such sublease or in respect thereof (including without limitation any amounts
paid for the sale or other transfer of any Tenant's Improvements) during such
calendar year, and (ii) any Excess Tenant Property Payments in connection with
such sublease for such calendar year.
(3) "SUBLEASE PROFIT", with respect to any sublease for
any calendar year, shall mean the positive excess, if any, of (i) the Sublease
Consideration with respect to such sublease for such calendar year, over (ii)
the Fixed Rent and Additional Charges accruing hereunder during such calendar
year (or, if applicable, the portion of such calendar year which is within the
term of such sublease) in respect of the sublease premises (determined on a
pro-rated rentable square foot basis) pursuant to the terms hereof.
(4) "SUBLEASE LOSS", with respect to any sublease for any
calendar year, shall mean the positive excess, if any, of (i) the Fixed Rent and
Additional Charges accruing hereunder during such calendar year (or, if
applicable, the portion of such calendar year which is within the term of such
sublease) in respect of the sublease premises (determined on a pro-rated
rentable square foot basis) pursuant to the terms
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hereof, over (ii) the Sublease Consideration with respect to such sublease for
such calendar year.
(5) "TRANSACTION EXPENSES", with respect to any assignment
or sublease, shall mean the sum of the customary brokerage commissions actually
paid or incurred by Assignor or Tenant in connection therewith, as well as any
amount paid to Landlord pursuant to Section 7.10(h) hereof.
(6) "TENANT INDUCEMENTS", with respect to any assignment
or sublease, shall mean the sum of all tenant inducements (by way of example
only, direct payments, work allowances and workletters) paid or incurred to the
assignee or the subtenant in connection therewith (and, in the case of any such
tenant inducement not paid in cash, shall refer to the dollar value thereof).
(7) "EXCESS TENANT PROPERTY PAYMENTS", shall mean (i) in
connection with any assignment (or, if applicable, any desired or proposed
assignment), the positive excess, if any, of (A) the aggregate of all sums paid
for the sale or rental of Tenant's Property by the assignee under such
assignment (or, if applicable, such desired or proposed assignment), over (B)
the then (as of the date of the assignment) net unamortized or undepreciated
cost thereof (as set forth on Tenant's federal income tax return for the year of
the assignment), or (ii) in connection with any sublease (or, if applicable, any
desired or proposed sublease) for any calendar year, shall mean the positive
excess, if any, of (A) the aggregate of all sums paid for the sale or rental of
Tenant's Property during such calendar year by the subtenant under such sublease
(or, if applicable, such desired or proposed sublease), over (B) the portion of
the cost thereof amortized or depreciated during such calendar year (as set
forth on Tenant's federal income tax return for such calendar year), or, for any
calendar year that is partly within and partly without the term of the sublease,
a pro-rated portion thereof.
(8) "SHOWING AND SEPARATION EXPENSES", (i) with respect to
any assignment, shall mean the costs of any Alterations made by Assignor during
the period after Assignor shall have vacated the Premises and prior to Assignor
having executed any instrument effecting the assignment, which Alterations are
made to prepare the Premises for marketing or to enhance the marketability
thereof, or (ii) with respect to any sublease, shall mean (x) the costs of any
Alterations made by Tenant in or to the sublease premises during the period
after Tenant shall have vacated the sublease premises and prior to Tenant having
executed the sublease, which Alterations are made to prepare the Premises for
marketing or to enhance the marketability thereof, and (y) in any case where the
sublease premises (or any portion thereof) consist of less than all of the
leasable area on a given Premises Floor, the costs of any Alterations made by
Tenant to physically separate the sublease premises (or the applicable portion
thereof) from the balance of the Premises located on such Premises Floor and to
comply with any laws and requirements of any public authorities relating to such
separation; provided, however, that in no event shall Showing and Separation
Expenses ever include any costs which are included in Tenant's Inducements.
(9) "COLLECTION EXPENSES", with respect to any assignment
or sublease, shall mean the costs paid or incurred by Tenant or Assignor with
respect to such assignment or sublease, as the case may be, pursuant to the
provisions of Section 7.11(d)(1) hereof.
(b) If Landlord shall consent to any assignment
of this lease, then, in consideration therefor, Assignor, within ten (10) days
after Assignor's receipt of any
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Assignment Consideration, shall (i) deliver to Landlord a written statement,
certified by an officer of Assignor, setting forth, in reasonable detail, the
Assignment Consideration theretofore received and the Tenant Inducements,
Transaction Expenses, Showing and Separation Expenses and Collection Expenses
theretofore paid or incurred by Assignor with respect to such assignment, and
(ii) retain such Assignment Consideration or pay the same to Landlord in
accordance with the following:
first, such Assignment Consideration shall be
retained by Assignor to the extent of the sum of (w) all
Tenant Inducements theretofore paid or incurred by Assignor
with respect to such assignment, plus (x) all Transaction
Expenses theretofore paid or incurred by Assignor with respect
to such assignment, plus (y) all Showing and Separation
Expenses theretofore paid or incurred by Assignor with respect
to such assignment, plus (z) all Collection Expenses
theretofore paid or incurred by Assignor with respect to such
assignment (except to the extent that amounts were previously
retained by Assignor pursuant to this clause first with
respect to such assignment); and
second, with respect to the balance of such
Assignment Consideration, (x) fifty percent (50%) shall be
retained by Assignor, and (y) fifty percent (50%) shall be
paid to Landlord.
Tenant and Assignor shall be and remain jointly and severally liable for all
amounts due under this Section 7.11(b), and, in the case of Tenant, the all such
amounts due shall be due as Additional Charges hereunder.
(c) If Landlord shall consent to any sublease of
all or any portion of the Premises, then, in consideration therefor, Tenant,
within thirty (30) days after the close of each calendar year during the term of
this lease in which such sublease is in effect, shall (i) deliver to Landlord a
written statement, certified by an officer of Tenant, setting forth, in
reasonable detail, the Sublease Consideration and the Sublease Profit, if any,
with respect to such sublease for such calendar year, and the Tenant
Inducements, Transaction Expenses, Showing and Separation Expenses and
Collection Expenses theretofore paid or incurred with respect to such sublease,
and (ii) retain such Sublease Profit or pay the same to Landlord in accordance
with the following:
first, such Sublease Profit shall be retained by
Tenant to the extent of the sum of (v) all Tenant Inducements
theretofore paid or incurred by Tenant with respect to such
sublease, plus (w) all Transaction Expenses theretofore paid
or incurred by Tenant with respect to such sublease, plus (x)
all Showing and Separation Expenses theretofore paid or
incurred by Tenant with respect to such sublease, plus (y) all
Collection Expenses theretofore paid or incurred by Tenant
with respect to such sublease, plus (z) any Sublease Losses
for prior calendar years with respect to such sublease (except
to the extent that amounts were retained by Tenant for
previous calendar years pursuant to this clause first with
respect to such sublease); and
second, with respect to the balance of such
Sublease Profit, (x) fifty percent (50%) shall be retained by
Tenant, and (y) fifty percent (50%) shall be paid to Landlord.
(d) (1) Tenant covenants to make all
commercially reasonable efforts to collect from its assignee or
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subtenants, as the case may be, any amounts which would comprise Assignment
Consideration or Sublease Consideration, respectively; provided, however, that
(i) Tenant may compromise or settle any claim in good faith, (ii) Tenant shall
not be required to commence or continue such efforts if Tenant reasonably
believes that the amount and likelihood of recovery does not justify the costs
and risks of commencing or continuing such efforts, and (iii) this Section
7.11(d)(1) shall not be deemed to restrict Tenant's rights to terminate a
sublease, in whole or in part, as set forth in Section 7.14 hereof.
(2) Tenant, from time to time within
forty-five (45) days of a request therefor by Landlord, shall (i) provide
Landlord with an accounting of all such sums paid or payable to it as either
Assignment Consideration or Sublease Consideration (which accounting shall set
forth any past-due amounts), as well as any amounts paid or payable by it as
Tenant Inducements or Transaction Expenses, and (ii) permit Landlord, at
reasonable times during Business Hours, to inspect Tenant's books and records in
respect of Assignment Consideration, Sublease Consideration, Tenant Inducements,
Transaction Expenses, Showing and Separation Expenses and Collection Expenses.
7.12. (a) For purposes of this Section 7.12, the following
definitions shall apply:
(1) "CONTEMPLATED ASSIGNMENT" shall
mean any desired assignment set forth in a Tenant's Initial Notice, if, with
respect to such desired assignment and Tenant's Initial Notice, Landlord
exercises its Recapture Option set forth in Section 7.07(b)(i).
(2) "CONTEMPLATED ASSIGNMENT
CONSIDERATION", with respect to any Contemplated Assignment, shall mean the
Assignment Consideration that would have been paid pursuant to such Contemplated
Assignment (assuming the Contemplated Assignment had been consummated as
contemplated in the applicable Tenant's Initial Notice and that all such
Assignment Consideration that would have been payable thereunder had been paid
as and when due); it being further agreed that, for purposes of this Section
7.12, such Contemplated Assignment Consideration shall be deemed payable as and
when the aforesaid Assignment Consideration would have been paid pursuant to
such Contemplated Assignment had the same been consummated as contemplated in
the applicable Tenant's Initial Notice and had all such Assignment Consideration
that would have been payable thereunder been paid as and when contemplated.
(3) "CONTEMPLATED SUBLEASE" shall mean
any desired sublease set forth in a Tenant's Initial Notice (but only as to the
initial term thereof), if, with respect to such desired sublease and Tenant's
Initial Notice, Landlord exercises any of its Recapture Options set forth in
Section 7.07(b).
(4) "CONTEMPLATED SUBLEASE
CONSIDERATION", with respect to any Contemplated Sublease for the any calendar
year, shall mean the Sublease Consideration that would have been paid pursuant
to such Contemplated Sublease for such calendar year (assuming that such
Contemplated Sublease had been consummated as contemplated in the applicable
Tenant's Initial Notice and that all such Sublease Consideration that would have
been payable thereunder had been paid as and when contemplated).
(5) "CONTEMPLATED LEASE RENT", with
respect to any Contemplated Sublease for any calendar year, shall mean the Fixed
Rent and Additional Charges which, but for the termination of this lease in
respect of the premises contemplated to be demised by such Contemplated
Sublease, would have accrued hereunder during such calendar year (or, if
applicable, the
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portion of such calendar year which would have been within the term of the
Contemplated Sublease) in respect of the premises contemplated to be demised by
the Contemplated Sublease (determined on a pro-rated rentable square foot basis)
pursuant to the terms hereof.
(6) "CONTEMPLATED TENANT INDUCEMENTS",
with respect to any Contemplated Assignment or Contemplated Sublease, shall mean
the sum of all Tenant Inducements which would have been paid or incurred to the
assignee or the subtenant in connection therewith (assuming the Contemplated
Assignment or Contemplated Sublease had been consummated as contemplated in the
applicable Tenant's Initial Notice and that all such Tenant Inducements that
would have been payable or incurrable thereunder had been paid or incurred as
and when due); it being further agreed that, for purposes of this Section 7.12,
such Contemplated Tenant Inducements shall be deemed payable or incurrable as
and when the aforesaid Tenant Inducements would have been paid or incurred
pursuant to such Contemplated Assignment or the Contemplated Sublease, as the
case may be, had such Contemplated Assignment or Contemplated Sublease, as the
case may be, been consummated as contemplated in the applicable Tenant's Initial
Notice and had all such Tenant Inducements that would have been payable or
incurrable thereunder been paid or incurred as and when contemplated.
(7) "CONTEMPLATED BROKERAGE EXPENSES",
with respect to any Contemplated Assignment or Contemplated Sublease, shall mean
the customary brokerage commissions which would have been payable by Tenant in
connection therewith (assuming that the Contemplated Assignment or Contemplated
Sublease was consummated as provided in the applicable Tenant's Initial Notice);
it being further agreed that, for purposes of this Section 7.12, the
Contemplated Brokerage Expenses for any Contemplated Assignment or Contemplated
Sublease, as the case may be, shall be deemed incurred on the date that is
thirty (30) days after the contemplated effective date of the Contemplated
Assignment or the contemplated commencement date of the Contemplated Sublease,
as the case may be.
(8) "CONTEMPLATED ASSIGNMENT PROFIT
PAYMENT", with respect to any Contemplated Assignment Consideration which would
have been received by Assignor pursuant to any Contemplated Assignment, shall
mean the portion thereof, if any, which would have been payable to Landlord
pursuant to Section 7.11(b) hereof in respect of such Contemplated Assignment,
(a) assuming that (i) such Contemplated Assignment had been consummated as
contemplated in the applicable Tenant's Initial Notice, (ii) the applicable
Contemplated Assignment Consideration shall have been paid as and when
contemplated, (iii) the applicable Contemplated Tenant Inducements shall have
been paid or incurred as and when contemplated, and (iv) the Contemplated
Brokerage Expenses have been incurred as hereinabove provided, and (b)
reflecting Showing and Separation Expenses and Collection Expenses of zero.
(9) "CONTEMPLATED SUBLEASE PROFIT
PAYMENT", with respect to any Contemplated Sublease for any calendar year, shall
mean the amount of Sublease Profit, if any, which would have been payable to
Landlord pursuant to Section 7.11(c) hereof for such Contemplated Sublease for
such calendar year, (a) assuming that (i) such Contemplated Sublease had been
consummated as contemplated in the applicable Tenant's Initial Notice, (ii) the
applicable Contemplated Sublease Consideration shall have been paid as and when
contemplated, (iii) the applicable Contemplated Tenant Inducements shall have
been paid or incurred as and when contemplated, and (iv) the Contemplated
Brokerage Expenses have been incurred as hereinabove provided, and (b)
reflecting Showing and Separation Expenses and Collection Expenses of zero.
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(b) If Landlord shall exercise its Recapture Option set forth
in Section 7.07(b)(i) hereof in respect of a desired assignment set forth in any
Tenant's Initial Notice, and, as a result thereof, this lease shall be
terminated as provided in Section 7.08(a) hereof, then, with respect to the
Contemplated Assignment resulting from such exercise, Landlord or Tenant, as
applicable, shall make the following payments:
(1) Landlord, as and when any Contemplated Assignment
Consideration with respect to any Contemplated Assignment is deemed
payable pursuant to the provisions of this Section 7.12, shall pay to
Tenant the excess of (i) such Contemplated Assignment Consideration,
over (ii) the Contemplated Assignment Profit Payment, if any, with
respect to such Contemplated Assignment Consideration.
(2) Tenant shall pay to Landlord an amount equal to
the Contemplated Brokerage Expenses with respect to such Contemplated
Assignment, as and when the same are deemed to be payable pursuant to
the provisions of this Section 7.12.
(3) Tenant shall pay to Landlord an amount equal to
the Contemplated Tenant Inducements with respect to such Contemplated
Assignment, as and when the same are deemed to be payable pursuant to
the provisions of this Section 7.12.
(c) If either (i) Landlord shall exercise its Recapture Option
set forth in Section 7.07(b)(i) hereof in respect of a desired sublease set
forth in any Tenant's Notice, and, as a result thereof, this lease shall be
terminated pursuant to Section 7.08(a) hereof, or (ii) Landlord shall exercise
its Recapture Option set forth in Section 7.07(b)(ii) hereof in respect of a
desired sublease set forth in any Tenant's Notice, and, as a result thereof,
this lease shall be terminated with respect to Recaptured Space pursuant to the
provisions of Section 7.08(b) hereof, then, with respect to the Contemplated
Sublease resulting from each such termination, the following provisions shall
apply:
(1) Tenant shall make the following payments to
Landlord:
(A) Tenant shall pay to Landlord an amount equal to the
Contemplated Brokerage Expenses with respect to such Contemplated
Sublease, as and when the same are deemed to be incurred pursuant to
the provisions of this Section 7.12.
(B) Tenant shall pay to Landlord an amount equal to the
Contemplated Tenant Inducements with respect to such Contemplated
Sublease, as and when the same are deemed to be payable pursuant to
the provisions of this Section 7.12.
(2) Landlord, promptly after the close of each
calendar year the whole or any part of which is within the term of such
Contemplated Sublease, shall deliver to Tenant a written statement (each, an
"ANNUAL CONTEMPLATED SUBLEASE STATEMENT") setting forth the Contemplated
Sublease Consideration and the Contemplated Lease Rent for such Contemplated
Sublease for such calendar year. Within thirty (30) days after Tenant's receipt
of the Annual Contemplated Sublease Statement for any calendar year, Landlord or
Tenant, as applicable, shall make the following payments:
(A) Landlord shall pay to Tenant the excess, if any, of (i)
the Contemplated Sublease
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Consideration with respect to such Contemplated Sublease for such
calendar year, over (ii) the sum of (A) the Contemplated Lease Rent
with respect to such Contemplated Sublease for such calendar year, and
(B) the Contemplated Sublease Profit Payment with respect to such
Contemplated Sublease for such calendar year.
(B) Tenant shall pay to
Landlord the excess, if any, of (i) the Contemplated Lease Rent for
such Contemplated Sublease for such calendar year, over (ii) the
Contemplated Sublease Consideration for such Contemplated Sublease for
such calendar year.
(d) If Landlord shall exercise any Recapture
Option, then Landlord shall reimburse Tenant for one-half (1/2) of any Transfer
Taxes (as hereinafter defined) which Tenant incurs on account of (I) the
termination of this lease, in whole or in part, arising out of such exercise, or
(II) any amount paid or payable to Tenant pursuant to the provisions of this
Section 7.12 (including any amounts payable under this Section 7.12(d)), but
only to the extent that such Transfer Taxes exceed the Transfer Taxes which
Tenant would have incurred if Landlord had not exercised such Recapture Option
and the transaction described in the Tenant's Initial Notice giving rise to such
Recapture Option had been consummated in accordance with the terms of such
Tenant's Initial Notice. The term "TRANSFER TAXES" shall mean, collectively, (i)
the New York State Real Property Transfer Gains Tax payable under Article 31-B
of the New York State Tax Law, (ii) the New York State Real Estate Transfer Tax,
and (iii) the New York City Real Property Transfer Tax, and (iv) any other gains
or transfer taxes adopted after the date hereof.
(e) The payment of obligations of Landlord and
Tenant under this Section 7.12 shall survive the termination of this lease (in
whole or in part). In any such case, either Landlord or Tenant, upon the request
of the other party, shall provide such other party with reasonably satisfactory
documentation acknowledging and evidencing its payment obligations under this
Section 7.12.
7.13. With respect to each and every sublease or subletting
under this lease (including any sublease to which Landlord has consented and any
sublease entered into pursuant to Section 7.02(c) hereof), it is further agreed
as follows:
(a) No subletting shall be for a sublease term
ending later than one day prior to the Expiration Date.
(b) No sublease shall be valid, and no sub-
tenant shall take possession of the Premises or any part thereof, until an
executed counterpart of such sublease has been delivered to Landlord.
(c) Each sublease shall provide that it is
subject and subordinate to this lease and to any matters to which this lease is
or shall be subordinate, and that in the event of termination, reentry or
dispossess by Landlord under this lease Landlord may, at its option, take over
all of the right, title and interest of Tenant, as sublessor, under such
sublease, and such subtenant shall, at Landlord's option, attorn to Landlord
pursuant to the then executory provisions of such sublease, except that Landlord
shall not be (1) liable for any previous act or omission of Tenant under such
sublease, (2) subject to any credit, offset, claim, counterclaim, demand or
defense which such subtenant may have against Tenant, (3) bound by any previous
prepayment of more than one (1) month's rent, (4) required to account for any
security deposit of the subtenant other than any security deposit actually
delivered to Landlord by Tenant, or (5) required to remove any person occupying
the Premises or any part thereof.
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(d) (1) Each sublease shall provide that, except
as may be contemplated in subsections (2) and (3) of this Section 7.13(d), the
subtenant may not assign its rights thereunder or undersublet the space demised
under the sublease, in whole or in part, without Landlord's consent, and shall
set forth the terms and provisions of Section 7.02(a) hereof, mutatis mutandis,
with respect to the assignment or deemed assignment of such sublease.
(2) Each sublease may set forth the terms
and provisions of Section 7.02(b) hereof, mutatis mutandis, with respect to the
assignment or deemed assignment of such sublease, except that the subtenant's
assignee or deemed assignee need not comply with the provisions thereof relating
to net worth; provided, however, that each such sublease shall expressly provide
that such terms and provisions shall not apply to permit any such assignment or
deemed assignment, if, immediately prior to such assignment or deemed
assignment, the subtenant is an Affiliate of Tenant, unless, immediately after
such assignment or deemed assignment, Tenant has a net worth computed in
accordance with generally accepted accounting principles consistently applied
which is not less the Minimum Net Worth.
(3) Each sublease may set forth the terms
and provisions of Section 7.02(c)(1) hereof, mutatis mutandis, with respect to
the undersubletting by the subtenant of all or any part of the sublease premises
to Affiliates of such subtenant; provided, however, that each such sublease
shall expressly provide that such terms and provisions shall not apply to any
undersubletting by a subtenant that, at the time of the making of such
undersubletting, is an Affiliate of Tenant.
7.14. Tenant, without Landlord's consent (and without
submitting any Tenant's Initial Notice or Tenant's Proposal Notice), may modify,
amend or terminate, in whole or in part, any sublease; provided, however, that
(a) no such modification or amendment of any
sublease (other than a sublease which, at the time of such modification
or amendment, is to an Affiliate of Tenant), shall either
(1) extend the term of the sublease (other than (x) an
extension of the term of a sublease pursuant to a Qualified
Sublease Renewal Provision, it being understood that such
provision need not be implemented precisely in accordance with
its terms, so long as the commencement and expiration of the
pertinent renewal term and the rent payable during such
renewal term are the same as each would have been had such
Qualified Sublease Renewal Provision been implemented
precisely in accordance with its terms, or (y) an extension of
the term of a Short-Term Sublease pursuant to any option or
other provision set forth in the original form of such
sublease, it being understood that such provision need not be
implemented precisely in accordance with its terms, so long as
the commencement and expiration of the pertinent renewal term
and the rent payable during such renewal term are the same as
each would have been had such provision been implemented
precisely in accordance with its terms), or
(2) expand the premises demised by the sublease (other
than an expansion of the premises demised by a Short-Term
Sublease pursuant to any option or other provision set forth
in the original form of such sublease, it being understood
that such provision need not be implemented precisely in
accordance with its terms, so long as the space added to the
premises
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demised by such sublease is the same and the per annum rent
payable therefor are the same as each would have been had such
provision been implemented precisely in accordance with its
terms), and
(b) no such modification, amendment or
termination of any sublease (other than a sublease which, at the time
of such modification, amendment or termination, is to an Affiliate of
Tenant) shall decrease the rent payable under the sublease (other than
(i) a proportional decrease in rent resulting from a partial
termination of the sublease, or (ii) a complete elimination of rent
resulting from a termination of the sublease in whole), and
(c) no such modification or amendment of any
sublease shall cause the sublease not to comply with any of the
provisions of Sections 7.13, 7.15 and 7.16 hereof, and
(d) no such modification, amendment or
termination shall be valid until an executed counterpart thereof has
been delivered to Landlord, together with, in the case of a
termination, a certificate, signed by a partner of Tenant (or, if
Tenant is not then a partnership, an officer of Tenant at or above the
level of Vice President), indicating that the termination was not
contemplated at the time the sublease was executed.
7.15. Each subletting shall be subject to all of the
covenants, agreements, terms, provisions and conditions contained in this lease.
Notwithstanding any subletting to any subtenant and/or acceptance of rent or
additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Fixed Rent and Additional Charges due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this lease on the part of Tenant
to be performed and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be in violation of
any of the obligations of this lease, and any such violation shall be deemed to
be a violation by Tenant.
7.16. (a) Tenant agrees that, notwithstanding any subletting
by Tenant pursuant to this Article 7, (i) no other subletting of the Premises
(or any portion thereof) shall be made by Tenant, except in accordance with this
Article 7, and (ii) except as contemplated by subsections (2) and (3) of Section
7.13(d), no undersubletting of any part of the Premises shall be made by any
subtenant, and no subtenant shall assign its sublease, without Landlord's
consent.
(b) (1) If Tenant, on behalf of any subtenant under a
Qualified Sublease (as hereinafter defined), other than a subtenant that, at the
time of the request pursuant to this Section 7.16(b), is an Affiliate of Tenant,
shall request Landlord's consent to any proposed assignment of such sublease or
to a proposed undersubletting of all or a portion of the sublease premises
demised thereby, then, provided that Tenant and such subtenant shall have
previously complied with the provisions of such sublease described in Section
7.16(b)(3)(C) below and provided that such request is made pursuant to a notice
substantially in the form of a Tenant's Proposal Notice as described in Section
7.09, Landlord's consent, subject to the conditions set forth in Section 7.10,
applied mutatis mutandis, shall not be unreasonably withheld. The provisions of
Sections 7.07, 7.08, 7.09 (other than subsection (c) thereof), 7.11 (except as
provided below) and 7.12 shall not apply to any such assignment of a sublease or
to any such undersubletting.
(2) With respect to (i) any sublease other than a
Qualified Sublease, and (ii) any Qualified Sublease
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during any period that the subtenant thereunder is an Affiliate of Tenant,
Landlord, notwithstanding anything herein to the contrary, shall have no
obligation to consent to any assignment of any such sublease or to any
undersubletting of the sublease premises demised thereby, or to be reasonable in
any such regard.
(3) As used herein, the term "QUALIFIED
SUBLEASE" shall mean any sublease which (A) demises all of the leasable area on
a Premises Floor (it being understood that such sublease may demise other space
in addition thereto), (B) has an initial term of five (5) years or more (it
being agreed that, for purposes of this clause (B) only, the "initial term" of a
sublease shall be the initial term thereof, excluding any period within such
initial term during which the subtenant under such sublease is an Affiliate of
Tenant), (C) provides that if the subtenant under such sublease shall desire to
assign its sublease or undersublease the whole or any portion of its sublease
premises (other than as contemplated in subsections (2) and (3) of Section
7.13(d)), then Tenant and the subtenant shall jointly notify Landlord of the
subtenant's desire, which notification shall be given prior to the subtenant
either marketing its sublease for assignment or its sublease premises or any
part thereof for undersubletting, or otherwise considering offers therefor, (D)
sets forth the provisions of Section 7.11 hereof, mutatis mutandis, with respect
to the assignment of the sublease (other than an assignment or deemed assignment
contemplated by the provisions described in Section 7.13(d)(2) hereof) and the
undersubletting of all or a part of the sublease premises (other than an
undersubletting contemplated by the provisions described Section 7.13(d)(3)
hereof), such that Tenant shall be entitled to receive from the subtenant (I)
the same portion of the consideration paid to the subtenant on account of an
assignment of the sublease that Landlord is entitled to receive under Section
7.11(b) hereof from Tenant on account of an assignment of this lease, and (II)
the same portion of the rent and other consideration paid to the subtenant on
account of an undersubletting that Landlord is entitled to receive under Section
7.11(c) hereof from Tenant on account of a sublease of all or a part of the
Premises, and (E) provides that any and all of the rights of Tenant, as
sublandlord, under the provisions of the sublease described in clause (D) above
shall be assignable by Tenant to Landlord at any time and from time to time.
(c) (1) As used herein, the following terms
shall have the following meanings: (i) "SUBLEASE-LEVEL PROFIT PROVISIONS", of
any sublease, shall mean the provisions of such sublease described in Section
7.16(b)(3)(D) above; (ii) "ASSIGNMENT OF SUBLEASE PROFIT", with respect to the
assignment of any sublease, shall mean the amounts which Tenant is entitled to
receive pursuant to the Sublease-Level Profit Provisions of such sublease from
the subtenant thereunder on account of such assignment of such sublease; and
(iii) "UNDERSUBLETTING PROFIT", with respect to any undersubletting, shall mean
the amounts which Tenant is entitled to receive pursuant to the Sublease-Level
Profit Provisions of such sublease from the subtenant thereunder on account of
such undersubletting.
(2) Tenant, as and when it receives the
same pursuant to the Sublease-Level Profit Provisions of any sublease, shall pay
to Landlord, as Additional Charges hereunder, the entire amount of any
Assignment of Sublease Profit and Undersubletting Profit. Such amounts received
by Tenant and paid to Landlord shall not be considered "Assignment
Consideration" or "Sublease Consideration" for purposes of Section 7.11 hereof.
(3) Tenant, from time to time within
forty-five (45) days of a request therefor by Landlord, shall provide Landlord
with an accounting of all such sums paid or payable to Tenant as either
Assignment of Sublease Profit or
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Undersubletting Profit (which accounting shall set forth any past-due amounts).
(4) Tenant covenants to make all commercially reasonable
efforts to enforce the Sublease-Level Profit Provisions in each of its subleases
and collect from its subtenants (or former subtenants) any Assignment of
Sublease Profit or Undersubletting Profit due thereunder; provided, however,
that (i) Tenant may compromise or settle any claim in good faith (provided that
Tenant shall not compromise or settle any claim until after it shall have given
Landlord thirty (30) days written notice of its intention to do so, it being
understood that Landlord may exercise its rights set forth in the last sentence
of this Section 7.16(c)(4) with respect to any such claim during such 30-day
period), (ii) Tenant shall not be required to commence or continue such efforts
if Tenant reasonably believes that the amount and likelihood of recovery does
not justify the costs and risks of commencing or continuing such efforts, and
(iii) this Section 7.16(c)(4) shall not be deemed to restrict Tenant's rights to
terminate a sublease, in whole or in part, as set forth in Section 7.14 hereof.
Tenant, upon demand, shall assign to Landlord any or all of its rights under the
Sublease-Level Profit Provisions of any sublease (including without limitation
the right thereunder to receive Assignment of Sublease Profit or Undersubletting
Profit and the rights thereunder to receive accountings and inspect books and
records).
7.17. If Landlord shall decline to give its consent to any
proposed assignment or sublease, or if Landlord shall exercise any of its
Recapture Options, Tenant shall indemnify, defend and hold harmless Landlord
against and from any and all loss, liability, damages, costs and expenses
(including reasonable counsel fees) resulting from any claims that may be made
against Landlord by the proposed assignee or subtenant, or by any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease.
7.18. Notwithstanding the foregoing provisions of this Article
7, for so long as Original Tenant is Tenant, Original Tenant may, from time to
time, sublease space in the Premises to any Affiliate of Original Tenant without
there being a written sublease, provided, that (i) such unwritten sublease shall
be deemed subject and subordinate to this lease and to any matters to which this
lease is or shall be subordinate, and, without limiting the generality thereof,
the provisions of Section 7.13 hereof (excluding, however, subsection (b)
thereof) and Sections 7.14, 7.15 and 7.16 hereof shall apply to such unwritten
sublease (as fully and completely as if the same were a written sublease
incorporating and/or being subject to the same as required hereby), (ii) prior
to such Affiliate of Original Tenant taking occupancy of the space sublet
pursuant to such unwritten sublease, Original Tenant shall deliver to Landlord a
written notice (executed by both Original Tenant and such Affiliate of Original
Tenant) indicating that such Affiliate of Original Tenant is about to take
occupancy of such sublet space as a subtenant of Original Tenant without a
written sublease, which notice shall be accompanied by a floor plan(s)
describing the space being so sublet and which notice shall be deemed an
acknowledgement of the provisions of clause (i) of this sentence, and (iii) such
unwritten sublease (and such Affiliate's occupancy of the space sublet
thereunder) shall be deemed to automatically terminate upon the expiration or
earlier termination of this lease, or, if earlier, upon either (x) Original
Tenant ceasing to be Tenant hereunder, or (y) such Affiliate of Original Tenant
ceasing to be an Affiliate of Original Tenant.
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ARTICLE 8
Compliance with Laws
8.01. (a) Tenant shall give prompt notice to Landlord of any
written notice of any violation of any law or requirement of any public
authority with respect to the Premises or the use or occupation thereof which
Tenant receives from any governmental authority.
(b) Tenant, at its expense, shall comply with all
present and future laws and requirements of any public authorities to the extent
that the same require compliance in, to or upon the Premises or the Base
Building Premises Components (including without limitation compliance requiring
the performance of alterations, additions, improvements, replacements or
repairs, whether the same are structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen); provided, however, that Tenant shall not
be required to make any alterations, additions, improvements, replacements or
repairs in, to or upon the Base Building Premises Components (other than as
provided in Section 8.03 hereof) in order to comply with any such law or
requirement of public authorities, except to the extent that the need for such
compliance arises by reason of (i) Tenant's use and occupancy of the Premises
for the Primary Use, but only if (x) the need for such compliance arises by
reason of Tenant's particular manner of use of the Premises for the Primary Use
(including, without limitation, the nature and layout of Tenant's Improvements
and Tenant's Property and the density of personnel), and (y) such particular
manner of use is untypical among tenants of Similar Buildings which use space
for the Primary Use or an equivalent use (it being agreed that Tenant's
particular manner of use shall not be deemed so untypical on the basis of the
number of persons occupying the Premises on any Premises Floor so long as such
number of persons does not exceed the occupancy levels for such Premises Floor
as set forth on the Existing Certificate of Occupancy), (ii) Tenant's use and
occupancy of the Premises for any Secondary Use, (iii) Tenant's performance of
any Section 8.01 Alterations (as hereinafter defined), (iv) the presence or
operation of any Tenant's Improvements resulting from any Section 8.01
Alterations, or (v) a violation by Tenant of the provisions of this lease. As
used herein, the term "SECTION 8.01 ALTERATIONS" shall mean any Alterations
which (w) are not limited to the Premises or which affect the exterior of the
Building (it being understood that Alterations within the Premises shall not be
deemed Section 8.01 Alterations solely by reason of being visible from outside
the Premises), (x) are structural or otherwise affect (other than to a de
minimis extent) the structural elements of the Building, (y) affect the
functioning or performance of the Building Systems (as hereinafter defined) in
areas of the Building outside of the Premises (other than to a de minimis
extent), or (z) are otherwise not commonly performed by or on behalf of tenants
in Similar Buildings.
(c) Tenant, in addition, shall be responsible for the
cost of compliance with all present and future laws and requirements of any
public authorities to the extent that the same require compliance in, to or upon
the Real Property outside the Premises and the Base Building Premises Components
(including without limitation compliance requiring the performance of
alterations, additions, improvements, replacements or repairs whether the same
are structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen), but only to the extent that the need for compliance therewith
arises by reason of (i) Tenant's use and occupancy of the Premises for any
Secondary Use, (ii) Tenant's performance of any Section 8.01 Alterations, (iii)
the presence or operation of any Tenant's Improvements resulting from any
Section 8.01 Alterations, or (iv) any violation by Tenant of the provisions of
this lease.
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(d) In addition to the foregoing, Tenant, within thirty
(30) days after its receipt of a demand therefor, shall pay all expenses, fines
and penalties which may be imposed upon Landlord or any Landlord Party (as
hereinafter defined) by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Article 8 after
Tenant has notice of the need for such compliance.
(e) Whenever, pursuant to the provisions of this Section
8.01, Tenant shall be required to comply, or to be responsible for the costs of
compliance with, any law or requirement of any public authority, Tenant may, in
lieu thereof, as the case may be, (i) cease or alter its use or occupancy giving
rise to such requirement of compliance, or (ii) cease or alter its performance
of Alterations giving rise to such requirement of compliance, or (iii) remove or
alter the Tenant's Improvements (or cease or alter the operation thereof) giving
rise to such requirement of compliance, (iv) cure the violation of this lease
giving rise to such requirement of compliance, or (v) take any other action (so
long as taking the same does not violate this lease), such that after such
cessation, alteration, removal, cure or other action, such compliance is no
longer required. Furthermore, notwithstanding the foregoing provisions of this
Section 8.01, Tenant need not comply with any law or requirement of any public
authority referred to in Section 8.01(b) above, and Tenant shall not be
responsible for the costs of compliance with any law or requirement of any
public authority referred to in Section 8.01(c) above, in either case, so long
as Tenant shall be contesting the validity thereof, or the applicability
thereof, in accordance with Section 8.02.
(f) The parties agree that nothing in this Section 8.01
is intended to, or shall be deemed to, impose any liability or obligation upon
Tenant with respect to any violations of law or requirements of public
authorities affecting the Premises on the date of this lease.
8.02. Tenant, at its expense, after notice to Landlord, may
contest, by appropriate proceedings prosecuted diligently and in good faith, the
validity or applicability of any law or requirement of any public authority,
provided that (a) Tenant shall be obligated to comply with the same pursuant to
Section 8.01(b) above or responsible for the cost of complying with the same
pursuant to Section 8.01(c) above, (b) no Event of Default shall have occurred
and be continuing, (c) neither Landlord nor any Landlord Party shall be subject
to criminal penalty or to prosecution for a crime, or any other fine or charge
(unless Tenant pays such other fine or charge), nor shall the Premises or any
part thereof or the Real Property or any part thereof, be subject to being
condemned or vacated, nor shall the Real Property or any part thereof, be
subjected to any lien or encumbrance, by reason of non-compliance or otherwise
by reason of such contest, unless such lien or encumbrance shall be bonded,
discharged or otherwise removed of record within thirty (30) days after the
creation of such lien or encumbrance, (d) if any Underlying Lease and/or any
Mortgage shall permit such non-compliance or contest on condition of the
furnishing of security by Landlord or any Landlord Party, such security shall be
furnished at the expense of Tenant, (e) such non-compliance or contest shall not
prevent Landlord or any other Condominium Party (as defined in Article 31
hereof) from (i) obtaining any and all permits and licenses in connection with
the operation of the Real Property or (ii) performing any alterations, additions
or improvements in or to the Real Property or obtaining any and all permits and
licenses in connection therewith, and (f) Tenant, upon request, shall keep
Landlord advised as to the status of such proceedings; in addition, Tenant shall
indemnify Landlord against any loss, cost, damage or expense (including
reasonably attorneys fees, but excluding consequential damages) incurred by
Landlord by reason of any such contest or any such deferral of
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compliance. Without limiting the application of the above, a party shall be
deemed subject to prosecution for a crime if such party, as an individual, is
charged with a crime of any kind or degree whatever, whether by service of a
summons or otherwise, unless such charge is withdrawn before such party is
required to plead or answer thereto.
8.03. Notwithstanding anything to the contrary contained
herein, as part of the Initial Alterations, Tenant shall perform all work and
make all installations necessary in order to fully sprinkler the Premises in
compliance with the provisions of Local Law 5 of the New York City
Administrative Code, as approved January 18, 1973, as amended and as may be
hereafter amended from time to time through the completion of the Initial
Alterations.
8.04. (a) Landlord, at its expense, shall comply with all
present and future laws and requirements of any public authorities to the extent
that the same require the performance of alterations, additions, improvements,
replacements or repairs (whether the same are structural or non-structural,
ordinary or extraordinary, foreseen or unforeseen) in, to or upon the Base
Building Premises Components, except to the extent that Tenant is obligated to
comply therewith pursuant to the provisions of Section 8.01(b) or Section 8.03
hereof.
(b) Landlord, at its expense (except as otherwise
provided below), shall comply with all present and future laws and requirements
of public authorities to the extent that the same require compliance in, to or
upon the Base Building other than the Base Building Premises Components
(including without limitation compliance requiring the performance of
alterations, additions, improvements, replacements and repairs whether the same
are structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen), but only to the extent that the failure to effect such compliance
would subject Tenant to liability or adversely affect, other than to a de
minimis extent, (i) Tenant's use or occupancy of the Premises, (ii) access to
the Premises, (iii) the provision of Building Services to the Premises, or (iv)
Tenant's right and ability to perform Alterations which would otherwise be
permitted hereunder; provided, however, that such compliance shall be at
Tenant's expense to the extent Tenant is responsible for the cost of such
compliance pursuant to Section 8.01(c) hereof; provided, further, however, that
(I) if Tenant is validly exercising its rights under Section 8.02 hereof to
contest the validity or applicability of the law or requirement of public
authority requiring such compliance, then, during the pendency of such contest,
(x) Landlord shall have no obligation under this Section 8.04 to effect such
compliance, and (y) in the event that Landlord elects to effect such compliance,
the same shall be at Landlord's expense (as opposed to Tenant's expense),
provided that, in such event, Tenant shall reimburse Landlord the cost of such
compliance to the extent that Landlord can demonstrate that such law or
requirement of public authority was valid and applicable, and (II) except in
cases of emergency (in which cases no such notice or opportunity need by
furnished or afforded), it shall be a condition precedent to Tenant's obligation
to pay the costs of such compliance that Landlord shall have (A) furnished
Tenant with reasonable prior notice of Landlord's intention to effect such
compliance at Tenant's expense and (B) afforded Tenant a reasonable opportunity
to exercise its rights under the first sentence of Section 8.01(e) hereof such
that, after the exercise thereof, such compliance is no longer required.
(c) Notwithstanding the foregoing provisions of this
Section 8.04, Landlord may defer compliance with any law or requirements of
public authorities with which it is obligated to comply hereunder, so long as
Landlord shall be contesting the validity or applicability thereof in good faith
by appropriate
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proceedings, provided that (i) Tenant shall not be subject to criminal penalty
or to prosecution for a crime, or any other fine or charge (unless Landlord pays
such other fine or charge), (ii) neither the Premises (or any part thereof) nor
any part of the Real Property which affects the Premises or Tenant's use and
occupancy thereof, shall be subject to being condemned or vacated, by reason of
non-compliance or otherwise by reason of such contest, (iii) such non-compliance
or contest shall not prevent Tenant from lawfully occupying the Premises, or
performing any Alterations (other than Section 8.01 Alterations) in the
Premises, or obtaining any and all permits and licenses required to be obtained
by it in connection therewith, and (iv) Landlord, after request, shall use
reasonable efforts to keep Tenant advised as to the status of such proceedings;
in addition, Landlord shall indemnify Tenant against any loss, cost, damage or
expense (including reasonably attorneys fees, but excluding consequential
damages) incurred by Tenant by reason of any such contest or any such deferral
of compliance.
8.05. (a) If, as of the date hereof, the Core Lavatories do
not comply with the Americans with Disabilities Act and the regulations
thereunder, as amended and in effect as of the date hereof (the "ADA"), then,
regardless of when such noncompliance shall become known, notwithstanding
anything to the contrary set forth in this lease, Landlord, at its sole cost and
expense, shall perform any and all additional or other work needed to cause such
Core Lavatories to comply with the ADA. Tenant hereby agrees that Tenant shall
not take any action or commence any proceeding to require Landlord to comply
with the ADA as it relates to the Core Lavatories, unless (i) either (x) a
governmental body or agency asserts or alleges, in substance, that any Core
Lavatory does not comply with the ADA, or (y) a customer or employee asserts or
alleges in writing, in substance, that any Core Lavatory does not so comply, and
(ii) on the basis of any such assertion or allegation described in clause (i)
above, Tenant reasonably believes that (A) such Core Lavatory does not so
comply, and (B) such non-compliance will give rise to liability on the part of
Tenant to a governmental entity or to Tenant's employees or other persons. The
preceding sentence shall not be deemed to limit Tenant's rights under Section
18.02 hereof.
(b) Tenant agrees that it shall reasonably cooperate, at
Landlord's expense, with Landlord in its efforts (i) to comply with the ADA as
it relates to the Core Lavatories, and (ii) to demonstrate to the applicable
governmental authorities that the Core Lavatories do in fact comply with the
ADA. Additionally, Tenant further agrees that if (x) the Core Lavatories on any
Premises Floor do not comply with the ADA, and (y) as a result thereof, Landlord
is required to take action in order to comply with the ADA on such Premises
Floor, then Landlord, at its sole cost and expense, shall have the right to
perform the work necessary to install within the Premises on each such Premises
Floor a unisex lavatory containing not more than 100 rentable square feet (each,
a "UNISEX LAVATORY"); provided, however, that any Unisex Lavatory installed on
any Premises Floor shall be installed within the area of the Premises on such
Premises Floor designated on Exhibit P attached hereto (such Exhibit P is a
floor plan which illustrates a typical floor plan for the Premises Floors). If
Landlord installs a Unisex Lavatory within the Premises on any Premises Floor,
then, from and after the date upon which Landlord commences the construction
work necessary for the installation of such Unisex Lavatory, the Fixed Rent,
Tenant's Operating Share and Tenant's Tax Share thereafter in effect from time
to time hereunder shall be proportionately reduced based upon the relationship
which (1) the number of rentable square feet contained within the Unisex
Lavatory plus the number of rentable square feet outside the Unisex Lavatory
which, by reason of the existence of the Unisex Lavatory, becomes
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unusable, if any, bears to (2) the number of rentable square feet contained
within the Premises.
8.06. (a) Landlord hereby represents that, to the best of its
knowledge, there are no asbestos-containing materials ("ACMS") located on any
Premises Floor or in any Designated Conduit Areas (as hereinafter defined),
other than in or about the Acknowledged ACM Areas (as hereinafter defined). As
used herein, (i) the term "DESIGNATED CONDUIT AREAS" shall mean the areas
through which Tenant has the right to run pipes and conduits pursuant to Section
14.02(b), Section 16.11, Section 16.14 and Article 41 hereof, and (ii) the term
"ACKNOWLEDGED ACM AREAS" shall mean (x) each of the Designated Hot Decks (as
defined in Section 41.09 hereof) and (y) the areas on any Premises Floor or in
any Designated Conduit Areas which are so delineated on one or more of the floor
plans attached hereto as Exhibit Q.
(b) If, at anytime during the term of this lease, any
ACMs (other than any ACMs installed by Tenant) are found to be located on any
Premises Floor outside of the Acknowledged ACM Areas or in any Designated
Conduit Areas outside of the Acknowledged ACM Areas and Tenant notifies
Landlord, in writing, of the existence of such ACMs (herein called the
"ADDITIONAL NOTICED ACMS"), then, whether or not Landlord had knowledge of the
same as of the date hereof, the following provisions shall apply:
(1) If any Additional Noticed ACMs are required to be
removed, encapsulated or otherwise treated by any law or requirement of public
authority, then, notwithstanding anything to the contrary contained in the
foregoing provisions of this Article 8, Landlord, at its expense, shall promptly
remove, encapsulate or otherwise treat such Additional Noticed ACMs in
accordance with all laws and requirements of public authorities. With respect to
any Additional Noticed ACMs which Landlord is not required to remove pursuant to
this Section 8.06(b)(1), Landlord, nevertheless (and irrespective of whether
Landlord is required to encapsulate or otherwise treat the same), may, at its
option, elect to remove the same at anytime, any such optional removal to done
in accordance with all laws and requirements of public authorities.
(2) If, at anytime during the term of this lease, (i)
Tenant shall inform Landlord, by written notice, that the existence of any
Additional Noticed ACMs (which Landlord is not then required to remove pursuant
to Section 8.06(b)(1) above and which Landlord has not otherwise theretofore
elected to remove) will result in Tenant incurring increased costs to perform
Alterations which Tenant intends to perform, and which Tenant hereunder has the
right to perform, which notice shall (x) describe, in reasonable detail, the
particular Alterations and Additional Noticed ACMs in question, and (y) set
forth Tenant's best estimate of the total costs to perform such Alterations and
of the incremental portion of such costs which will be directly attributable to
the existence of such Additional Noticed ACMs, and (ii) Landlord, within twenty
(20) Business Days after its receipt of such notice from Tenant, does not agree,
in writing, that Landlord will remove such Additional Noticed ACMs, then, and
only in such events, Landlord will reimburse Tenant all incremental
out-of-pocket costs incurred by Tenant in performing such Alterations which are
directly attributable to the existence of such Additional Noticed ACMs, which
reimbursement shall be made by Landlord within thirty (30) days after its
receipt of a statement from Tenant setting forth all such reimbursable costs and
accompanied by paid invoices therefor. If, pursuant to clause (ii) of this
Section 8.06(b)(2), Landlord agrees in writing that it will remove any
Additional Noticed ACMs, then Landlord, at its expense, shall promptly
thereafter remove such
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Additional Noticed ACMs in accordance with all laws and requirements of public
authorities.
ARTICLE 9
Insurance
9.01. Tenant shall not violate, or permit the violation of,
any condition imposed by any insurance policy then issued to Landlord, any
Condominium Party, any Mortgagee or any receiver in possession in respect of the
Real Property and shall not do, or permit anything to be done, or keep or permit
anything to be kept in the Premises which would (i) increase any insurance rate
in respect of the Real Property over the rate which would otherwise then be in
effect, (ii) result in insurance companies of good standing refusing to insure
the Real Property in amounts reasonably satisfactory to Landlord, or (iii)
result in the cancellation (in whole or in part) of, or give rise to any defense
by the insurer to claims under, any policy of insurance in respect of the Real
Property. Tenant's use of the Premises for the Primary Use in accordance with
the provisions of this lease shall not, in and of itself, violate the provisions
of this Section 9.01. Tenant shall not be deemed in violation of the provisions
of this Section 9.01 unless and until Tenant receives notice thereof from
Landlord.
9.02. If, by reason of any failure of Tenant to comply with
the provisions of this lease, the premiums on any insurance of Landlord or any
Condominium Party on the Real Property shall be higher than they otherwise would
be, then Tenant shall reimburse Landlord, on demand and as Additional Charges,
for that part of such premiums attributable to such failure on the part of
Tenant. A schedule or "make up" of rates for the Real Property or the Premises,
as the case may be, issued by the New York Fire Insurance Rating Organization or
other similar body making rates for insurance for the Real Property or the
Premises, as the case may be, shall be conclusive evidence of the facts therein
stated and of the several items and charges in the insurance rate then
applicable to the Real Property or the Premises, as the case may be.
9.03. Tenant, at its expense, shall maintain at all times
during the term of this lease (a) "all risk" property insurance covering
Tenant's Improvements and all Tenant's Property to a limit of not less than the
full replacement cost thereof with a deductible of not more than $10,000), (b)
commercial general liability insurance (including a contractual liability
endorsement and an endorsement specifying that such insurance is primary and
does not require contribution by any insurance policy maintained by Landlord or
any other person or entity), and personal injury liability coverage, in respect
of the Premises and the conduct or operation of business therein, with Landlord,
each Condominium Party, the Building's managing agent, if any, and each
Underlying Lessor and Mortgagee whose name and address shall previously have
been furnished to Tenant, as additional insureds, with limits for bodily injury
and death of not less than Five Million ($5,000,000) Dollars for any occurrence
involving one person, Ten Million ($10,000,000) Dollars for any occurrence
involving two or more persons and not less than Five Million ($5,000,000)
Dollars for property damage liability in any one occurrence, (c) steam boiler,
air conditioning or machinery insurance, if there is a boiler or pressure object
or similar equipment in the Premises and installed by Tenant, with Landlord,
each Condominium Party, the Building's managing agent, if any, and each
Underlying Lessor and Mortgagee whose name and address shall previously have
been furnished to Tenant, as additional insureds, with limits of not less than
Five Million ($5,000,000) Dollars, (d) Workers' Compensation Insurance with
coverage applicable in New York State
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with limits in accordance with the statutory requirements of New York State,
which insurance shall contain provisions waiving underwriters' rights of
subrogation against Landlord, (e) Coverage B - Employer's Liability Coverage,
including occupational disease with a limit of not less than $1,000,000 per
accident, which insurance shall contain provisions waiving underwriters' rights
of subrogation against Landlord, and (f) when Alterations are in progress, the
insurance specified in Section 11.06 hereof and/or in the Alterations Rules and
Regulations (as hereinafter defined). The limits of such insurance shall not
limit the liability of Tenant. Tenant shall deliver to Landlord, on or prior to
the Commencement Date, such fully paid-for policies or certificates of
insurance, in form reasonably satisfactory to Landlord, issued by the insurance
company or its authorized agent. Tenant shall procure and pay for renewals of
such insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any additional insureds such renewal policy or a
certificate thereof at least thirty (30) days before the expiration of any
existing policy. All such policies shall be issued by companies of recognized
responsibility and rated by Best's Insurance Reports or any successor
publication of comparable standing and carrying a rating of "B+" or better (or
the then equivalent of such rating) with a financial size category of VIII or
better (or the then equivalent of such financial size), and all such policies
shall contain a provision whereby the same cannot be canceled or modified unless
Landlord and any additional insureds are given at least thirty (30) days' prior
written notice of such cancellation or modification. Tenant shall have the right
to insure and maintain the insurance coverages set forth in this Section under
blanket insurance policies covering other premises occupied or owned by Tenant
and Affiliates of Tenant so long as such blanket policies comply as to terms and
amounts with the insurance provisions set forth in this lease without
co-insurance; provided that upon request, Tenant shall deliver to Landlord a
certificate of Tenant's insurer evidencing the portion of such blanket insurance
allocated to the Premises.
9.04. (a) During the term of this lease, Tenant shall include
in each of its insurance policies insuring Tenant's Improvements and Tenant's
Property and the use thereof against loss, damage or destruction by fire or
other casualty, a waiver of the insurer's right of subrogation against Landlord,
each Condominium Party and the Building's managing agent or, if such waiver
should be unobtainable or unenforceable, (i) an express agreement that such
policy shall not be invalidated if the insured party waives the right of
recovery against the person responsible for a casualty covered by the policy
before the casualty or (ii) any other form of permission for the release of
Landlord, each Condominium Party and the Building's managing agent. If such
waiver, agreement or permission shall not be, or shall cease to be, obtainable
from Tenant's then current insurance company, then Tenant shall so notify
Landlord promptly after learning thereof, and shall use its best efforts to
obtain the same from another insurance company described in Section 9.03 hereof.
Tenant hereby releases Landlord, each Condominium Party and the Building's
managing agent, with respect to any claim (including a claim for negligence)
which it might otherwise have against Landlord, a Condominium Party and/or the
Building's managing agent, for loss, damage or destruction of or to any Tenant's
Improvements and/or Tenant's Property, or the use thereof, to the extent to
which it is, or is required to be, insured under a policy or policies containing
a waiver of subrogation or permission to release liability, as provided in this
Section 9.04(a).
(b) Landlord shall include in each of its insurance
policies insuring the Building and all Landlord's property and interest therein
and the rents therefrom against loss, damage or destruction by fire or other
casualty, a waiver
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of the insurer's right of subrogation against Tenant and any subtenant of the
Premises during the term of this lease or, if such waiver should be unobtainable
or unenforceable, (i) an express agreement that such policy shall not be
invalidated if the insured party waives the right of recovery against the person
responsible for a casualty covered by the policy before the casualty or (ii) any
other form of permission for the release of Tenant and any subtenant of the
Premises. If such waiver, agreement or permission shall not be, or shall cease
to be, obtainable from the then current insurance company of Landlord, then
Landlord shall so notify Tenant promptly after learning thereof, and shall use
its best efforts, to obtain the same from another insurance company described in
Section 9.03 hereof. Landlord hereby releases Tenant and any subtenant of the
Premises, with respect to any claim (including a claim for negligence) which it
might otherwise have against Tenant or any subtenant of the Premises, for loss,
damage or destruction of or to the Building or the rents therefrom to the extent
to which it is, or is required to be, insured under a policy or policies
containing a waiver of subrogation or permission to release liability, as
provided in this Section 9.04(b).
(c) Nothing contained in this Section 9.04 shall be
deemed to relieve either Landlord or Tenant of any duty imposed elsewhere in
this lease to repair, restore or rebuild or to nullify any abatement of rents
provided for elsewhere in this lease.
9.05. Landlord may from time to time require that the amount
of the insurance to be maintained by Tenant under Section 9.03 hereof be
increased, so that the amount thereof is substantially equivalent to the amount
generally required of tenants by prudent landlords of Similar Buildings.
9.06. Landlord shall keep and maintain (a) "all risk" property
insurance covering the Building (not including Tenant's Improvements, Tenant's
Property, or any other tenant improvements and betterments or tenant property)
to a limit of not less than the full replacement cost thereof, and (b)
commercial general liability insurance (including a contractual liability
endorsement and an endorsement specifying that such insurance is primary and
does not require contribution by any insurance policy maintained by Tenant or
any other person or entity), and personal injury liability coverage, in respect
of the Real Property and the management, operation, repair and replacement
thereof, with Tenant, as additional insureds, with limits for bodily injury and
death of not less than Five Million ($5,000,000) Dollars for any occurrence
involving one person, Ten Million ($10,000,000) Dollars for any occurrence
involving two or more persons and not less than Five Million ($5,000,000)
Dollars for property damage liability in any one occurrence, (c) steam boiler,
air conditioning or machinery insurance, if there is a boiler or pressure object
or similar equipment in the Real Property (other than any installed by any
tenant), with Tenant, as additional insureds, with limits of not less than Five
Million ($5,000,000) Dollars, (d) Workers' Compensation Insurance with coverage
applicable in New York State with limits in accordance with the statutory
requirements of New York State, which insurance shall contain provisions waiving
underwriters' rights of subrogation against Tenant, (e) Coverage B - Employer's
Liability Coverage, including occupational disease with a limit of not less than
$1,000,000 per accident, which insurance shall contain provisions waiving
underwriters' rights of subrogation against Tenant, and (f) when Landlord is
performing alterations, additions or improvements in the Real Property,
appropriate Builder's risk insurance and commercial general liability insurance
with completed operations coverage. The limits of such insurance shall not limit
the liability of Landlord. Landlord shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Landlord shall
deliver to
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Tenant and any additional insureds such renewal policy or a certificate thereof
at least thirty (30) days before the expiration of any existing policy. All such
policies shall be issued by companies of recognized responsibility and rated by
Best's Insurance Reports or any successor publication of comparable standing and
carrying a rating of "B+" or better (or the then equivalent of such rating) with
a financial size category of VIII or better (or the then equivalent of such
financial size). Landlord shall have the right to insure and maintain the
insurance coverages set forth in this Section 9.06 under blanket insurance
policies covering other real property occupied or owned by Landlord and/or
Affiliates of Landlord so long as such blanket policies comply as to terms and
amounts with the insurance provisions set forth in this lease without
co-insurance.
ARTICLE 10
Rules and Regulations
10.01. Tenant and its employees and agents shall faithfully
observe and comply with the rules and regulations annexed hereto as Exhibit H,
and such reasonable changes therein, whether by addition, modification or
elimination, as Landlord at any time or times hereafter may make and communicate
in writing to Tenant, which, in the reasonable judgment of Landlord, shall be
necessary for the reputation, safety, care and appearance of the Real Property,
or the preservation of good order therein, or the operation or maintenance of
the Real Property, and which do not materially affect the conduct of Tenant's
business in the Premises or materially affect Tenant's rights or obligations
under this lease (such rules and regulations as changed from time to time being
herein called "RULES AND REGULATIONS"); provided, however, that in case of any
conflict or inconsistency between the provisions of this lease and any of the
Rules and Regulations, the provisions of this lease shall control.
10.02. Nothing in this lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and Regulations
against Tenant or any other tenant or any employees or agents of Tenant or any
other tenant, and Landlord shall not be liable to Tenant for violation of the
Rules and Regulations by another tenant or its employees, agents, invitees or
licensees. Landlord shall not enforce against Tenant, and Tenant shall have no
obligation to comply with, any Rule or Regulation except to the extent that the
same is applicable to, and enforced by Landlord against, all office tenants and
occupants of the Building other than any as to which or against which, on the
basis of reasonable concerns of Landlord relating to the operation and
maintenance of the Building, applied by Landlord in a non-discriminatory manner,
such Rule or Regulation is not applicable or not enforced.
10.03. If Tenant, in good faith, shall dispute whether any
change in the Rules and Regulations made and communicated by Landlord is
authorized by the provisions of Section 10.01, then Tenant, at its option, may
elect to submit such dispute to arbitration in accordance with the provisions of
Article 40 (in which arbitration the sole issue to be determined shall be
whether such change is authorized by the provisions of Section 10.01); in order
so to submit such dispute to arbitration, Tenant shall so notify Landlord within
sixty (60) days after Tenant's receipt of notice from Landlord of such change
(time being of the essence). Pending resolution of such dispute by arbitration,
Tenant shall comply with such change; provided, however, that if (i) Tenant, in
the aforesaid notice, shall notify Landlord that Tenant's compliance with such
change will immediately and materially affect the conduct of Tenant's business
in the Premises or immediately and materially affect Tenant's rights or
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obligations under this lease, and (ii) Tenant's non-compliance with such change
shall not adversely affect the health, safety or welfare of any other tenant or
occupant of the Building, then, and only then, Tenant shall not be required to
comply with such change during the pendency of the arbitration proceeding.
Tenant's failure to submit such dispute to arbitration shall not constitute a
waiver of Tenant's right to later contest such change, by means other than
arbitration, on the basis that the same was not authorized by the provisions of
Section 10.01.
ARTICLE 11
Alterations
11.01. For purposes of this Article 11, the following
terms shall have the following meanings:
(a) "ALTERATIONS" shall mean any alterations, additions,
improvements or changes (the term "changes" to include without limitation any
removals or demolition) of any nature which are performed, by or on behalf of
Tenant, in, to or about the Building, including without limitation the Premises
and the Building Systems. "Alterations" shall not include any alterations,
additions, improvements or changes which are performed by or on behalf of
Landlord.
(b) "INITIAL ALTERATIONS" shall mean any and all
Alterations performed by or on behalf of Tenant in order to prepare the
Initially Demised Premises and the 47th Floor Space (as hereinafter defined) for
Tenant's initial occupancy thereof (and, unless otherwise expressly provided to
the contrary, the term "Alterations" shall include Initial Alterations).
(c) "MATERIAL ALTERATIONS" shall mean any Alterations
which (i) are not limited to the Premises or which affect the exterior of the
Building (it being understood that Alterations within the Premises shall not be
deemed Material Alterations solely by reason of being visible from outside the
Premises), (ii) are structural or otherwise affect (other than to a de minimis
extent) the structural elements of the Building, (iii) affect the functioning or
performance of the Building Systems (as hereinafter defined) in areas of the
Building outside of the Premises (other than to a de minimis extent), or (iv)
require permission from or notice to any governmental authority.
(d) "EXTERIOR MATERIAL ALTERATIONS" shall mean any
Material Alterations described in clause (i) of Section 11.01(c) above;
excluding, however, any such Material Alterations which are performed within one
or more electrical closets located on any Premises Floor even though such
electrical closets are not part of the Premises.
(e) "MINOR ALTERATIONS" shall mean any Alterations which
are not Material Alterations.
(f) "PRE-AUTHORIZED ALTERATIONS" shall mean any
Alterations which, pursuant to the express provisions of any other Article of
this lease, Tenant has been granted the right to perform; it being understood
that if Tenant is granted to the right to perform any Alterations subject to any
specified conditions, then such Alterations shall be deemed "Pre-Authorized
Alterations" only to the extent all such conditions shall have been satisfied.
(g) "REQUIRED ALTERATIONS" shall mean any Alterations
which, pursuant to the express provisions of any other Article of this lease,
Tenant has the obligation to perform; it being understood that Alterations may
be both Required Alterations and Pre-Authorized Alterations.
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(h) "DISCRETIONARY ALTERATIONS" shall mean any
Exterior Material Alterations which are not Pre-Authorized Alterations and/or
Required Alterations.
(i) The term "PLANS AND SPECIFICATIONS" shall
(i) when used with respect to Material Alterations, mean a complete set of fully
detailed and coordinated working drawings setting forth such Material
Alterations, and (ii) when used with respect to Minor Alterations, mean a
complete set of architectural drawings and, if applicable, mechanical
specifications.
11.02. (a) Tenant, subject to its compliance with the
applicable provisions of this lease, including without limitation the provisions
of this Article 11, may perform Minor Alterations without the need to obtain
Landlord's approval. Tenant, not less than two (2) Business Days prior to
commencing any Minor Alterations for which Tenant has retained a contractor,
shall give Landlord notice thereof, which notice shall include a description of
the work to be performed, and, to the extent that plans and specifications
therefor have been prepared by Tenant, such notice shall be accompanied by such
plans and specifications.
(b) Tenant, subject to its compliance with the
applicable provisions of this lease, including without limitation the provisions
of this Article 11, may perform Material Alterations, provided that Tenant shall
have first obtained Landlord's prior written approval of such Material
Alterations as set forth on plans and specifications therefor, which approval,
other than with respect to Discretionary Alterations, shall not be unreasonably
withheld. Tenant, prior to commencing any Material Alterations, shall request
Landlord's approval thereof by written notice (each, a "MATERIAL ALTERATION
REQUEST NOTICE"), which notice shall (i) include a description of the work to be
performed, and (ii) set forth, on the first page thereof, in capital letters,
the following legend: AS MORE FULLY SET FORTH IN SECTION 11.02(b) OF THE LEASE,
LANDLORD'S FAILURE TO RESPOND TO THIS NOTICE WITHIN FIFTEEN (15) BUSINESS DAYS
OF ITS SUBMISSION TO LANDLORD MAY RESULT IN LANDLORD BEING DEEMED TO HAVE
APPROVED THE PROPOSED MATERIAL ALTERATIONS DESCRIBED IN THE PLANS AND
SPECIFICATIONS ACCOMPANYING THIS NOTICE. Each Material Alteration Request Notice
shall be accompanied by reasonably detailed plans and specifications setting
forth the Material Alterations described therein. If Tenant shall request
Landlord's approval of any Material Alterations pursuant to a complying Material
Alteration Request Notice and such notice shall be accompanied by reasonably
detailed plans and specifications setting forth such Material Alterations as
hereinabove required, then, except with respect to Discretionary Alterations,
Landlord shall either approve or disapprove such Material Alterations as set
forth on such plans and specifications on or prior to the Material Alteration
Plan Review Deadline Date (as hereinafter defined) with respect to such Material
Alterations. If Landlord shall not grant or deny approval by the Material
Alteration Plan Review Deadline Date for any Material Alterations, Landlord's
approval thereof shall be deemed to have been granted. As used herein the term
"MATERIAL ALTERATION PLAN REVIEW DEADLINE DATE", with respect to any Material
Alterations, shall mean the fifteenth (15th) Business Day after the submission
to Landlord of a complying Material Alteration Request Notice requesting
Landlord's approval of such Material Alterations which is accompanied by
reasonably detailed plans and specifications setting forth such Material
Alterations as hereinabove required; provided, however, that if prior to such
fifteenth (15th) Business Day, Landlord shall request from Tenant additional
information reasonably required by Landlord in order to make its decision, then
the Material Alteration Plan Review Deadline Date with respect to such Material
Alterations shall be the fifteenth (15th) Business Day after Landlord's receipt
of
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such additional information. Notwithstanding the foregoing, references in the
foregoing provisions of this Section 11.02(b) to "fifteen (15) Business Days" or
the "fifteenth (15th) Business Day" shall, as applied to any Material
Alterations which are Initial Alterations, be deemed to be "twenty (20) Business
Days" or the "twentieth (20th) Business Day".
(c) (1) Tenant's right to perform any Pre-
Authorized Alterations shall nevertheless be conditioned upon (i) in the case of
Minor Alterations, Tenant first complying with provisions of Section 11.02(a),
and (ii) in the case of Material Alterations, Tenant first complying with
provisions of Section 11.02(b) and, incident thereto, Tenant obtaining
Landlord's approval of such Material Alterations as set forth on plans and
specifications submitted by Tenant in accordance therewith; and
(2) Tenant's obligation to perform any Required
Alterations shall include an obligation of the part of Tenant to (i) in the case
of Minor Alterations, first comply with provisions of Section 11.02(a), and (ii)
in the case of Material Alterations, first comply with provisions of Section
11.02(b) and, incident thereto, obtain Landlord's approval of such Material
Alterations as set forth on plans and specifications submitted by Tenant in
accordance therewith.
(3) In addition, Tenant's right to perform any
Pre-Authorized Alterations or Required Alterations shall, as with all other
Alterations, be further subject to the other provisions of this Article 11
(Section 11.03 hereof through Section 11.12 hereof, inclusive).
(d) Except as expressly permitted by this Article
11, Tenant shall not perform any Alterations.
11.03. (a) (1) Tenant, in connection with any Material
Alterations, shall reimburse Landlord, as Additional Charges, for (i) all
reasonable out-of-pocket costs incurred by Landlord on an arms-length basis to
outside parties for reviewing plans and specifications submitted by Tenant (but
not any costs incurred by Landlord for or in connection with the review thereof
by employees of Landlord or any Affiliate of Landlord), (ii) all reasonable
out-of-pocket costs incurred by Landlord on an arms-length basis to outside
parties for on-site inspections (but not any costs incurred by Landlord for or
in connection with on site inspections by employees of Landlord or any Affiliate
of Landlord), and (iii) any supervision and coordination costs incurred pursuant
to Section 11.03(c) below, whether the same are incurred to outside parties or
to Landlord's employees.
(2) Tenant shall pay to Landlord, as Additional
Charges, Landlord's labor costs incurred in connection with the performance by
Tenant of any Alterations on an overtime basis (i.e., after Business Hours on
Business Days), including, without limitation, all labor costs for overtime
hoisting and stand-by overtime personnel (including without limitation operating
engineers and stand-by electricians) payable in respect of periods other than
Business Hours on Business Days; provided, however, if any such labor shall
simultaneously be used by Landlord in connection with any work by Landlord, or
by any other tenant or occupant of the Building in connection with any work by
such tenant or occupant, then such labor costs shall be equitably apportioned
among Tenant, Landlord and such other tenants or occupants, as applicable.
(3) Tenant, in connection with any Alterations,
shall pay for and obtain directly all labor and carting for the cleanup and
removal of debris.
(4) All sums payable by Tenant to Landlord
pursuant to this Section 11.03(a) shall be due thirty
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(30) days after demand therefor by Landlord, each of which demands shall set
forth with reasonable detail the manner in which the amount due thereunder was
calculated.
(b) Tenant agrees that any review or approval by
Landlord of any plans and/or specifications with respect to any Alterations is
solely for Landlord's benefit, and without any representation or warranty
whatsoever to Tenant with respect to the adequacy, correctness or efficiency
thereof or otherwise. No approval of plans or specifications by Landlord or
consent by Landlord allowing Tenant to make Alterations shall in any way be
deemed to be an agreement by Landlord that the contemplated Alterations comply
with any laws and requirements of any public authorities or requirements of
insurance bodies or the certificate of occupancy for the Building nor shall it
be deemed to be a waiver by Landlord of the compliance by Tenant with any of the
terms of this lease (it being the intent of the parties that this sentence shall
not be construed to mean that Landlord may take the position that Tenant failed
to obtain Landlord's approval of the plans and specifications for an Alteration
after Landlord has approved such plans and specifications). Notice is hereby
given that neither Landlord nor any Landlord Party shall be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for such labor or materials shall attach to or affect
any estate or interest of Landlord or any Landlord Party in and to the Premises,
the Building or the Real Property.
(c) To the extent that any Alterations permitted to be
made hereunder, or any portions thereof, require work to be performed outside of
the Premises, such work shall be performed only at such time or times as are
reasonably designated by Landlord, and, at Landlord's option, under the
supervision of Landlord or its designated representative. Landlord shall have
the right to coordinate such work with any of work then being undertaken by
Landlord or by any other tenants of the Building.
11.04. (a) Tenant shall perform Alterations using only
contractors that are first approved by Landlord with respect to such Alterations
in writing, which approval shall not be unreasonably withheld. Landlord's
approval of any trade contractor shall be solely with respect to the trade or
trades in which it is engaged and for which approval is requested. Landlord
shall not have the right to designate one or a limited number of general
contractors or, except as provided in Section 11.04(c), one or a limited number
of trade contractors for any trade; provided, however, that this sentence shall
not require Landlord to approve any general or trade contractor as to which
Landlord (acting in accordance with the first sentence of this Section 11.04(a)
and without regard to the number of general contractors or trade contractors for
any trade then approved) is permitted to withhold approval.
(b) Any contractor that Landlord hereafter approves in
writing in connection with any Alterations, shall be deemed approved for a
period of one (1) year from the date of Landlord's notice approving such
contractor, unless Landlord, upon notice to Tenant, thereafter elects to revoke
its approval of any such contractor, in which event, such contractor, upon the
giving of such notice to Tenant, shall no longer be deemed approved (except that
such contractor shall remain approved with respect to any contract that Tenant
shall have theretofore entered into with such contractor prior to the giving of
such notice).
(c) Notwithstanding anything to the contrary set forth
in subsections (a) or (b) above or elsewhere in this lease, Tenant shall only be
permitted to use Landlord's designated life safety system contractor to make
connections between the Building's life safety system and the sensors,
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strobes, speakers alarms and other terminal devices installed by
Tenant.
(d) Without limiting the generality of the foregoing,
Landlord hereby approves with respect to the Initial Alterations, the
contractors listed on Exhibit I annexed hereto; the contractors so listed shall
be deemed approved for the duration of the Initial Alterations.
(e) All contractors approved or designated by Landlord
pursuant to this Section 11.04 shall be subject to the provisions of Sections
11.05 and 11.07 hereof.
11.05. Tenant shall, and shall cause its contractors to,
faithfully observe and comply with the alteration rules and regulations annexed
hereto as Exhibit J, and such reasonable changes therein (whether by addition,
modification or elimination) as Landlord at any time or times hereafter may make
and communicate in writing to Tenant, which, in the reasonable judgment of
Landlord, shall be necessary for the reputation, safety, care and appearance of
the Real Property, or the preservation of good order therein, or the operation
or maintenance of the Real Property, and which do not materially affect the
performance of Alterations in the Premises or materially affect Tenant's rights
or obligations under this lease (such alteration rules and regulations as
changed from time to time being herein called "ALTERATION RULES AND
REGULATIONS"); provided, however, that in case of any conflict or inconsistency
between any of the provisions of this Article 11 and any of the provisions of
the Alteration Rules and Regulations, the provisions of this Article 11 shall
control. The provisions of Sections 10.02 and 10.03 shall apply, mutatis
mutandis, to the Alteration Rules and Regulations.
11.06. (a) Tenant, at its expense, shall obtain (and furnish
true and complete copies to Landlord of) all necessary governmental permits and
certificates for the commencement and prosecution of Alterations and for final
approval thereof upon completion, and shall cause Alterations to be performed in
compliance therewith, with all applicable laws and requirements of public
authorities, with all applicable requirements of insurance bodies and, if
applicable, with the plans and specifications approved by Landlord. Landlord,
within three (3) Business Days after its receipt of a written request from
Tenant therefor, shall execute (and provide any readily accessible information
known by Landlord for) any permit applications and similar documents reasonably
required in connection with obtaining such permits and certificates and any such
final approvals, provided that such applications and documents are in proper
form; provided, however, that neither Landlord's execution of such applications
and documents nor its provision of information shall constitute Landlord's
approval of any Alterations described in such applications or documents, and, if
Landlord, pursuant to Section 11.02 hereof, shall disapprove any Alterations
described in such applications or documents, then any such applications and
documents, as well as any permits, certificates and approvals obtained thereby,
shall be promptly withdrawn or canceled by Tenant. Tenant hereby agrees that it
shall (i) reimburse Landlord all Landlord's out-of-pocket expenses incurred in
connection with Tenant's obtaining of any such permits, certificates or
approvals (including without limitation those incurred in connection with
Landlord's execution of any permit applications and similar documents, or its
provision of information, as provided in the preceding sentence), and (ii) and
indemnify and hold harmless Landlord against any and all liabilities which
Landlord may incur by reason of its execution of any permit applications and
similar documents, or its provision of information, as provided in the preceding
sentence; provided, however, that neither such reimbursement nor such indemnity
shall include any such expenses or liabilities to
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the extent that (A) Landlord is responsible therefor under any other provision
of this lease, (B) the same would be, or would have been, discharged, satisfied
or avoided by Landlord's performance of its obligations under this lease, or (C)
the same arise out of any inaccuracy in any information provided by Landlord.
(b) Alterations shall be diligently performed in a good
and workmanlike manner, using materials at least equal in quality and class to
the then standards for the Building.
(c) Alterations (including the Initial Alterations)
shall be performed in such manner as not to unreasonably interfere with or delay
and as not to impose any additional expense (except to the extent Tenant
reimburses Landlord therefor) upon Landlord in the construction, maintenance,
repair or operation of the Real Property; if the performance of an Alteration
will impose any additional expense upon Landlord, then Landlord shall advise
Tenant of the amount of such additional expense promptly after Landlord becomes
aware of such amount.
(d) Throughout the performance of Alterations, Tenant,
at its expense, shall carry, or cause to be carried, (i) workers' compensation
insurance in statutory limits, (ii) general liability insurance, with completed
operation endorsement, for any occurrence in or about the Premises (or, if
applicable, any other area of the Real Property in which the Alterations in
question are being performed), under which Landlord and its managing agent, if
any, and any Underlying Lessor and Mortgagee whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, and (iii) "all risk" Builders
Risk coverage, all with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of Alterations and, on request, at
reasonable intervals thereafter during the continuance of Alterations.
(e) The provisions of Section 12.02 hereof shall not be
deemed to prohibit Tenant from removing during the term of this lease any or all
of Tenant's Improvements (or, after the 47th Floor Space (as hereinafter
defined) is leased hereunder, any or all of the PSI 47th Floor Improvements (as
hereinafter defined)); provided, however, that (i) any such removal shall be
deemed Alterations and, accordingly, Tenant's right to perform the same shall be
subject to the provisions of this Article 11, and (ii) no such removal shall be
effected within the last twelve (12) months of the term, unless the such removal
is effected for a legitimate business purpose and the same does not leave the
Premises or any other portion of the Building in an unsafe condition. The
removal of the PSI 47th Floor Improvements shall be deemed Pre-Authorized
Alterations. As used herein, the "PSI 47TH FLOOR IMPROVEMENTS" shall mean any of
the improvements, betterments, fixtures, equipment and appurtenances affixed to,
attached to, built into or otherwise installed in or on the 47th Floor Space by
PSI.
11.07. Tenant shall not exercise any of its rights pursuant to
the provisions of this Article 11 or Article 13 in a manner which would violate
Landlord's union contracts affecting the Real Property, or create any work
stoppage, picketing, labor disruption or dispute or any interference (other than
de minimis interference) with the operation of the Building by (or for)
Landlord. In addition, Tenant shall not enter into any service contract in
respect of Tenant's Improvements (as opposed to Tenant's Property) or any
cleaning contract, if any such contract or the performance of work thereunder
would violate Landlord's union contracts affecting the Real Property, or create
any work
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stoppage, picketing, labor disruption or dispute or any interference (other than
de minimis interference) with the operation of the Building by (or for)
Landlord. Tenant shall immediately stop any work or other activity under this
Article 11 or Article 13 or pursuant to one or more of the aforementioned
contracts if Landlord notifies Tenant that continuing such work or activity
would violate Landlord's union contracts affecting the Real Property, or create
any work stoppage, picketing, labor disruption or dispute or any interference
(other than de minimis interference) with the operation of the Building by (or
for) Landlord, provided such notice sets forth a reasonably detailed explanation
of the circumstances giving rise to the delivery of such notice.
11.08. Tenant, at its expense, and with diligence and
dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Alterations, or any other
work, labor, services or materials done for or supplied to Tenant, or any person
claiming through or under Tenant, which shall be issued by the Department of
Buildings of the City of New York or any other public authority having or
asserting jurisdiction; provided, however, that Tenant may defer procuring such
cancellation or discharge so long as Tenant is contesting such notice of
violation, or the validity or applicability thereof, in accordance with Section
8.02. Tenant shall defend, indemnify and save harmless Landlord from and against
any and all mechanic's and other liens and encumbrances filed in connection with
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant, including,
without limitation, security interests in any materials, fixtures or articles so
installed in and constituting part of the Premises and against all costs,
expenses and liabilities incurred in connection with any such lien or
encumbrance or any action or proceeding brought thereon. Tenant, at its expense,
shall procure the satisfaction or discharge of record by bonding, payment or
otherwise, of all such liens and encumbrances within thirty (30) days after
knowledge or notice thereof.
11.09. Tenant, promptly upon the completion of any
Alterations, other than Decorating, shall deliver to Landlord "as built"
drawings of such Alterations, or, in the event Tenant does not have "as built"
drawings prepared, a set of construction drawings marked to show any change(s)
made during construction.
11.10. All Tenant's Improvements shall be fully paid for by
Tenant in cash and shall not be subject to conditional bills of sale, chattel
mortgage or other title retention agreements. Tenant, however, may lease or
finance purchases of Tenant's Property, provided that, in conducting any entry
to and removal of fixtures or equipment from the Premises and/or the Building,
any lessor, vendor or lender shall, (a) prior to entry, provide Landlord upon
Landlord's request with evidence of appropriate liability insurance as
reasonably determined by Landlord, (b) use reasonable care, (c) repair all
damage caused by its activities in or about the Real Property, and (d) comply
with applicable law. In the event of a default by Tenant under this lease,
Landlord shall not be required to notify any such vendor, lessor or lender prior
to exercising Landlord's rights and remedies under this lease. Notice is hereby
given that neither Landlord nor any Landlord Party shall be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that no
mechanics' or other lien for such labor or materials shall attach to or affect
any estate or interest of Landlord or any Landlord Party in any part of the Real
Property.
11.11. Tenant, within forty-five (45) days after a request by
Landlord, shall furnish to Landlord copies of all records with respect to
Alterations and the cost thereof then in Tenant's possession, if the same shall
be required in connection
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with any proceeding to reduce the assessed valuation of the Real Property, or in
connection with any proceeding instituted pursuant to Article 8 hereof or for
any other valid business reason or purpose.
11.12. (a) Before proceeding with any Alteration (other than
the Initial Alterations) the cost of which, when aggregated with the cost of all
other Alterations which have not then been completed, will cost more than
one-twentieth (1/20) of the then net worth of Tenant computed in accordance with
generally accepted accounting principles consistently applied (exclusive of the
costs of Decorating and items constituting Tenant's Property), as such cost is
estimated by a reputable contractor designated by Landlord, Tenant shall furnish
to Landlord one of the following (as selected by Tenant): (i) a cash deposit,
(ii) an irrevocable, unconditional, negotiable letter of credit, issued by and
drawn on a bank or trust company which is a member of the New York Clearing
House Association naming Landlord as beneficiary and in a form reasonably
satisfactory to Landlord or (ii) a payment and performance bond issued by a
bonding company reasonably satisfactory to Landlord naming Landlord as
beneficiary, and in a form reasonably satisfactory to Landlord (it being agreed
that a bond which requires any payment as a condition to the bonding company
performing its obligations under the bond shall not be a form reasonably
satisfactory to Landlord); each to be in an amount equal to one hundred
twenty-five (125%) percent of the cost of the Alteration, estimated as set forth
above; provided, however, if the security provided by Tenant is a cash deposit
or letter of credit pursuant to subclauses (i) or (ii) above, the amount thereof
shall be the lesser of (x) 125% of the cost of the Alteration, estimated as set
forth above or (y) the amount by which (1) the sum of the cost of the Alteration
in question plus the cost of all other Alterations which have not then been
completed exceeds (2) the amount which is 1/20th of the then net worth of
Tenant. Any such letter of credit shall be for one year and shall be renewed by
Tenant each and every year until the Alteration in question is completed and
shall be delivered to Landlord not less than thirty (30) days prior to the
expiration of the then current letter of credit. Failure to deliver such new
letter of credit on or before said date shall give Landlord the right, inter
alia, to present the then current letter of credit for payment. Upon Landlord's
request made in connection with any Alteration proposed to be made by Tenant
which Landlord reasonably believes might cost in excess of 1/20th of the then
net worth of Tenant, but not, in any case, more often than once in any calendar
year, Tenant shall submit to Landlord a balance sheet of Tenant, prepared in
accordance with generally accepted accounting principles consistently applied,
as of the end of the most recent calendar year, together with a certification of
the Chief Financial Officer of Tenant certifying that such balance sheet is true
and correct and accurately reflects the net worth of Tenant as of its date.
(b) Upon (i) the completion of the Alteration in
accordance with the terms of this Article 11 and (ii) the submission to Landlord
of proof evidencing the payment in full for said Alteration, the security
deposited with Landlord (or the balance of the proceeds thereof, if Tenant has
furnished cash or a letter of credit and if Landlord has drawn on the same)
shall be returned promptly to Tenant.
(c) Upon the Tenant's failure to properly perform,
complete and fully pay for all sums due for the said Alteration, Landlord shall
be entitled to draw on the security deposited under this Article 11 to the
extent it deems necessary in connection with the said Alteration, the
restoration and/or protection of the Premises or the Real Property and the
payment or satisfaction of any costs, damages or expenses in connection
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with the foregoing and/or Tenant's obligations under this Article
11.
ARTICLE 12
Tenant's Improvements and Tenant's Property
12.01. For purposes of this lease, the following terms
shall have the following meanings:
(a) The term "TENANT'S IMPROVEMENTS" shall mean all
improvements, betterments, fixtures (other than trade fixtures), equipment and
appurtenances affixed to, attached to, built into, or otherwise installed in or
on, the Building by or on behalf of Tenant (whether or not at Tenant's expense)
during the term of this lease, inclusive of all such improvements, betterments,
fixtures, equipment and appurtenances installed as part of either the Initial
Alterations or subsequent Alterations (other than Tenant's Structural Work (as
hereinafter defined) and the Fire Tower Work (as hereinafter defined) or, as the
case may be, the Hot Deck Work (as hereinafter defined)), including without
limitation (i) all installations, systems and facilities installed in or about
the Building by or on behalf of Tenant (whether wholly within the Premises,
wholly without the Premises, or partly within and partly without the Premises),
(ii) Tenant's line, riser and other connections to any such installations,
systems and facilities, (iii) Tenant's lines and other connections to the
Building Systems, (iv) raised floors, and (v) all wiring and cabling installed
below such raised floors, above hung ceilings, or within any shaft, wall or
fixed partition; but excluding, in all cases, Tenant's Property.
(b) The term "TENANT'S PROPERTY" shall mean all
articles of movable personal property owned or leased by Tenant and located in
the Premises, including without limitation office furniture and furnishings,
trade fixtures, business equipment, office machinery, movable partitions,
communications equipment, and wiring and cabling not included in clause (v) of
Section 12.01(a).
12.02. (a) All Tenant's Improvements, as they exist upon the
expiration or earlier termination of the term of this lease, shall be and remain
a part of the Building and shall be deemed Landlord's property, and,
accordingly, Tenant's Improvements shall not be removed by Tenant upon the
expiration or earlier termination of this lease.
(b) Notwithstanding the foregoing or anything else to
the contrary that may be contained herein, if (I) after the expiration or
earlier termination of the term of this lease, Landlord, in its sole discretion,
effects a demolition of the entirety of the Premises located on any Premises
Floor, and (II) such demolition is effected prior to any part of the Premises
located on such Premises Floor being occupied by any new tenant or occupant for
the conduct of its business for a period exceeding twelve (12) full calendar
months, then, and in each such case, Tenant, within thirty (30) days after a
written demand therefor, shall reimburse Landlord one-half (1/2) of the
aggregate costs reasonably incurred by Landlord in effecting such demolition. As
used herein, the "DEMOLITION", of any portion of the Premises, shall mean the
removal of all or substantially all of the Tenant's Improvements located in such
portion of the Premises and, following such removal, the restoration of such
portion of the Premises to a condition substantially similar to that existing as
of the date hereof.
(c) (1) As used herein, the following terms shall have
the following meanings:
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(A) The term "SECTION 12.02(c) EXTERIOR
IMPROVEMENTS" shall mean, collectively, all the Tenant's Improvements located
outside the Premises (including without limitation any or all of the Tenant's
Improvements installed pursuant to the provisions of Article 41 hereof) and all
the Structural Work Improvements; excluding, however, (I) the Non-Removable
Exterior Improvements and (II) except in cases where this lease is terminated
pursuant to a Non-Scheduled Early Termination, the Designated Exterior
Improvements.
(B) The "SECTION 12.02(c) WORK" shall mean all
the work required to (i) remove from the Building all the Section 12.02(c)
Exterior Improvements, and (ii) restore the applicable areas of the Building to
their condition prior to the installation of such Section 12.02(c) Exterior
Improvements, ordinary wear and tear excepted.
(C) The term "NON-REMOVABLE EXTERIOR
IMPROVEMENTS" shall mean, collectively, (i) the portions of the Tenant's
Improvements located outside the Premises which consist of (w) electrical
conduits (as opposed to the wiring and cabling therein), as well as the
enclosures within which such conduits are located, (x) communications conduits
(as opposed to the wiring and cabling therein), as well as the enclosures within
which such conduits are located, (y) fuel pipes to Tenant's Fuel Tank and
connecting Tenant's Fuel Tank to Tenant's Generator, as well as the enclosures
within which such pipes are located, and (z) chilled water pipes (other than
tapered chilled water pipes), as well as the enclosures within which such pipes
are located, and (ii) the steel plating of perimeter columns done as part of
Tenant's Structural Work or the Penthouse Work (as hereinafter defined).
(D) The term "DESIGNATED EXTERIOR IMPROVEMENTS"
shall mean, collectively, those portions of the Tenant Improvements located
outside the Premises and/or the Structural Work Improvements which Landlord, by
one or more written notices to Tenant (collectively, the "SECTION 12.02(c)
DESIGNATION NOTICES"), designates as improvements which are to remain at the end
of the term of this lease. Any Section 12.02(c) Designation Notice which is
received by Tenant after the date that is one hundred and eighty (180) days
prior to Expiration Date (or, if applicable, the date of an earlier termination
hereof), shall be effective to designate only the portion of the improvements
mentioned therein that have not theretofore been removed.
(E) The term "NON-SCHEDULED EARLY TERMINATION"
shall mean any termination of this lease prior to the Expiration Date, other
than such an early termination pursuant to either of Articles 7 or 37 hereof.
(2) Except in cases where this lease is terminated
pursuant to a Non-Scheduled Early Termination, Tenant, subject to and in
accordance with the provisions of Article 11 hereof, shall, at its expense,
perform all the Section 12.02(c) Work and shall complete the same on or prior to
the Expiration Date (or, if this lease shall be terminated prior to the
Expiration Date other than pursuant to a Non-Scheduled Early Termination, or
prior to the date of such termination). If, and to the extent that, Tenant fails
to complete the Section 12.02(c) Work on or prior to the Expiration Date (or
such termination date), then Landlord, at anytime thereafter, may, at its
option, perform Tenant's Section 12.02(c) Work at Tenant's expense. If, and to
the extent that, Landlord performs any of the Section 12.02(c) Work at Tenant's
expense pursuant to the foregoing provisions of this Section 12.02(c)(2), then
Tenant, from time to time within thirty (30) days after any written demand
therefor, shall reimburse Landlord the costs theretofore incurred by Landlord in
the prosecution of such the Section 12.02(c) Work,
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together with interest thereon at the Interest Rate for the period from the date
such costs were paid by Landlord to the date of such reimbursement.
(3) In any case where this lease is terminated
pursuant to a Non-Scheduled Early Termination, Landlord, may elect, at its
option and at Tenant's expense, to perform the whole or any portion of the
Section 12.02(c) Work after the date of such termination. If, and to the extent
that, Landlord elects to perform the Section 12.02(c) Work, such work (i) shall
be commenced on or prior to the date that is eighteen (18) months after the date
of such termination of this lease, and (ii) subject to Force Majeure, shall be
completed not later than the date that is twenty-four (24) months after the date
of such termination. If, and to the extent that, Landlord performs the Section
12.02(c) Work pursuant to the foregoing provisions of this Section 12.02(c)(3),
then Tenant, from time to time within thirty (30) days after any written demand
therefor, shall reimburse Landlord the reasonable out-of-pocket costs
theretofore incurred by Landlord in the prosecution of such Section 12.02(c)
Work.
12.03. All Tenant's Property shall be and shall remain the
property of Tenant throughout the term of this lease and may be removed by
Tenant at any time during the term of this lease (or, if applicable, within the
15-day period referred to below). On or prior to the Expiration Date (or within
fifteen (15) days after any earlier termination of this lease), Tenant, at its
expense, shall remove all Tenant's Property from the Premises. Tenant shall
repair any damage to the Building (including without limitation the Premises)
caused by such removal. Any items of Tenant's Property which shall remain in the
Premises after the Expiration Date (or, as the case may be, within fifteen (15)
days following the earlier termination of this lease), may, at the option of
Landlord, be deemed to have been abandoned, and in such case such items may be
retained by Landlord as its property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine and at Tenant's
expense.
ARTICLE 13
Repairs and Maintenance
13.01. (a) Tenant, throughout the term of this lease, shall,
at its expense, take good care of and maintain in good order and condition, and
shall be responsible for all repairs and replacements (ordinary and
extraordinary, foreseen and unforeseen) to (i) the Premises (but not the Base
Building Premises Components, except as provided below), and (ii) all Tenant's
Improvements whether within or outside of the Premises. Without limiting the
generality of the foregoing, Tenant, at its expense, shall promptly replace all
damaged or broken doors (including, without limitation, entrance doors) and all
interior glass in and about the Premises. Notwithstanding the foregoing, Tenant
shall not be responsible for any repairs or replacements under this Section
13.01(a) to the extent that Landlord is responsible for the same under Section
13.02(b) hereof.
(b) Tenant, in addition, shall be responsible for all
repairs and replacements, interior and exterior, structural and non-structural,
ordinary and extraordinary, foreseen and unforeseen, in and to (x) the Real
Property outside of the Premises (exclusive of any Tenant Improvements outside
of the Premises) and (y) the Base Building Premises Components (whether within
or outside of the Premises), in each case, to the extent the need for which
arises out of (i) the performance of Alterations, or the installation, use,
operation or existence of any Tenant's Improvements or Tenant's Property
(provided, however, that Tenant shall not be responsible therefor under this
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clause (i) to the extent that the repair or replacement in question would not
have been needed but for (x) a violation by Landlord of its obligations under
this lease, or (y) a representation made by Landlord hereunder being untrue),
(ii) the moving by or on behalf of Tenant of any Tenant's Improvements or
Tenant's Property in or out of the Building or between different floors or parts
of the Building or the Premises, (iii) any violation by Tenant of the provisions
of this lease, or (iv) the negligence or intentional misconduct of Tenant, any
Tenant Party or any of their agents, contractors or invitees.
(c) The maintenance, repairs and replacements for which
Tenant is responsible pursuant to the provisions of this Section 13.01 (herein
called "TENANT REPAIRS") shall be performed in accordance with the following
provisions:
(1) Tenant shall perform all Tenant Repairs for which
Tenant is responsible pursuant to Section 13.01(a) above promptly, at its
expense, and in a manner which will not interfere (in other than a de minimis
manner) with the use of the Building by others. If, and to the extent that, such
Tenant Repairs are to Tenant's Improvements located outside the Premises or
otherwise require work to be performed outside of the Premises, then (i) such
work shall be performed only at such time or times as are reasonably designated
by Landlord, and, at Landlord's option, under the supervision of Landlord or its
designated representative, (ii) Landlord shall have the right to coordinate such
work with any work then being undertaken by Landlord or by any other tenants of
the Building, and (iii) Tenant, within thirty (30) days after a written demand
therefor, shall reimburse Landlord all supervision and coordination costs
incurred by Landlord pursuant to clauses (i) or (ii) above (whether incurred to
Landlord's employees or outside parties); provided, however, that, in cases of
emergency, Tenant, subject to the rights of other tenants, may perform such work
at any time or times (to the extent necessitated by such emergency), so long as
Tenant, immediately prior to commencing any such work, shall give Landlord
notice of the emergency and the work to be performed (which notice may be oral
and shall be given to the applicable Building Office or, if such Building Office
is closed, the Building's security desk).
(2) Landlord, at its option, may elect to perform
Tenant Repairs for which Tenant is responsible pursuant to Section 13.01(b)
above (each, a "TENANT BUILDING REPAIR") at Tenant's expense. If Tenant notifies
Landlord of the need for any Tenant Building Repair, then Landlord shall
promptly notify Tenant as to whether Landlord elects to perform such Tenant
Building Repair, at Tenant's expense, or to have Tenant perform such repair. In
all cases, except in cases of emergency (in which cases Landlord need not so
notify Tenant), Landlord, prior to commencing any Tenant Building Repair, shall
notify Tenant that Landlord has elected to perform the same at Tenant's expense.
(A) To the extent that Landlord elects to
perform any Tenant Building Repair at Tenant's expense, (i) Landlord shall
perform the same promptly, and the provisions of Section 35.15 shall apply in
respect thereof, and (ii) Tenant, within thirty (30) days after a written demand
therefor, shall reimburse Landlord all of Landlord's out-of-pocket costs
reasonably incurred in connection with such Tenant Building Repair. Tenant, at
its own expense, shall have the right to monitor the progress of Tenant Building
Repair undertaken by Landlord.
(B) To the extent that Landlord elects to have
Tenant perform any Tenant Building Repair, (i) Tenant shall perform the same
promptly, at its expense, and in a manner which will not interfere (in other
than a de minimis
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manner) with the use of the Building by others, (ii) such work shall be
performed only at such time or times as are reasonably designated by Landlord,
and, at Landlord's option, under the supervision of Landlord or its designated
representative, (iii) Landlord shall have the right to coordinate such work with
any work then being undertaken by Landlord or by any other tenants of the
Building, and (iv) Tenant, within thirty (30) days after a written demand
therefor, shall reimburse Landlord all supervision and coordination costs
incurred by Landlord pursuant to clauses (ii) and (iii) above (whether incurred
to Landlord's employees or outside parties).
13.02. (a) Except to the extent that Tenant shall be
responsible for the same pursuant to the provisions of Section 13.01(a) or (b)
above, Landlord, at its expense, shall make repairs and replacements to, and
otherwise keep and maintain (in a condition befitting a first-class downtown
Manhattan office building), the Base Building, other than those portions of the
Base Building which are not Base Building Premises Components and which do not
affect, or affect only to a de minimis extent, (i) Tenant's use and occupancy of
the Premises, (ii) access to the Premises, (iii) the provision of Building
Services to the Premises, and (iv) Tenant's right or ability to perform
Alterations which would otherwise be permitted hereunder.
(b) Landlord, in addition, shall be responsible for all
repairs and replacements, interior and exterior, structural and non-structural,
ordinary and extraordinary, foreseen and unforeseen, in and to the Premises,
Tenant's Improvements and Tenant's Property, in each case, to the extent, the
need for which arises out of (i) the performance of any work in the Premises by
Landlord, or person authorized by Landlord to enter the Premises, or any of
their respective employees, agents or contractors (provided, however, that
Landlord shall not be responsible therefor under this clause (i) to the extent
that the repair or replacement in question would not have been needed but for a
violation by Tenant of its obligations under this lease), (ii) the conduct of
alterations, additions, improvements or changes in the Building by Landlord or
any of its employees, agents or contractors, (iii) any violation by Landlord of
this lease, or (iv) the negligence or intentional misconduct of Landlord or any
of its employees, agents, contractors or invitees (any such repairs and
replacements being herein called "LANDLORD'S ADDITIONAL REPAIRS"). Tenant, at
its option, may elect to perform any of Landlord's Additional Repairs at
Landlord's expense. If Landlord notifies Tenant of the need for any Landlord's
Additional Repairs, then Tenant shall promptly notify Landlord as to whether
Tenant elects to perform such Landlord's Additional Repairs, at Landlord's
expense, or to have Landlord perform such repair. In all cases, except in cases
of emergency (in which cases Tenant need not so notify Tenant), Tenant, prior to
commencing any Landlord's Additional Repairs, shall notify Landlord that Tenant
has elected to perform the same at Landlord's expense. To the extent that Tenant
elects to perform any Tenant Building Repair at Landlord's expense, (x) Tenant
shall perform the same in accordance with the provisions of Section 13.01(c)(1),
applied mutatis mutandis (except that the same shall be performed at Landlord's
expense and the provisions of Section 13.01(c)(iii) shall not so apply), and (y)
Landlord, within thirty (30) days after a written demand therefor, shall
reimburse Tenant all of Tenant's out-of-pocket costs reasonably incurred in
connection with such Landlord's Additional Repair.
13.03. All maintenance, repairs and replacements performed by
Tenant in the Building (including without limitation Tenant Repairs performed by
Tenant and Landlord's Additional Repairs performed by Tenant, but specifically
excluding any maintenance, repairs and replacements performed by Tenant to
Tenant's Property (as opposed to Tenant's Improvements)) shall be performed
using only contractors which have been approved or
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designated by Landlord in accordance with the provisions of Sections 11.04
hereof, applied mutatis mutandis with respect to such maintenance, repairs and
replacements. The provisions of Sections 11.05 and 11.07 hereof, as well as any
other provisions of Article 11 relating to the standards and/or prosecution of
work in the Building, shall likewise apply, mutatis mutandis, to maintenance,
repairs and replacements performed by Tenant pursuant to this Article 13.
13.04. Tenant shall have the right, as well as the obligation,
to perform the maintenance, repairs and replacements for which it is responsible
under Section 13.01(a) above, subject, in all cases, to the other provisions of
this Article 13. In respect thereof, it is agreed that Tenant's right to repair
and replace any Tenant Improvements shall include only (i) the right to repair
such Tenant Improvements, as needed, without modification or change thereto, and
(ii) the right to replace such Tenant Improvements or any portion thereof, as
needed, without modification or change thereto; it being understood that any
modifications or changes to any Tenant Improvements shall be deemed Alterations
and may be performed only subject to and in accordance with Article 11 hereof.
In addition, the right of Tenant to replace, as opposed to repair, any Tenant
Improvements located outside the Premises shall, notwithstanding anything to the
contrary contained herein, be deemed to allow Tenant to replace such Tenant
Improvements or a portion thereof (as opposed to repairing the same) only to the
extent that (x) such Tenant Improvements are of such a nature that the same can
only be replaced and not repaired, or (y) the repair of the same is not feasible
in light of the damage or defect in question.
13.05. Except as expressly set forth in this lease, Landlord
shall have no liability to Tenant, nor, except as expressly set forth in Section
33.01, shall Tenant's covenants and obligations under this lease be reduced or
abated in any manner whatsoever, by reason of any inconvenience, annoyance,
interruption or injury arising from Landlord's making any repairs or changes
which Landlord is required or permitted by this lease, or required by law, to
make in or to the Building, including without limitation the Premises. The
provisions of this Section 13.05 shall not absolve Landlord of its obligations
to comply with the provisions of Section 35.15 hereof.
13.06. This Article 13 shall not be applicable, to any extent,
to any fire or other casualty referred to in Article 19, or to any repairs or
replacements of any damage or destruction resulting therefrom; the same shall be
governed by the other applicable provisions of this lease, including Articles 9
and 19.
ARTICLE 14
Electric Energy
14.01. (a) Landlord shall furnish electricity, for use by
Tenant in the Premises and in the operation of Tenant's Improvements, to the
Base Connection Points (as hereinafter defined) at an aggregate level (for all
the Base Connection Points combined) of not less than six and one-half (6.5)
watts demand load per usable square foot of the Premises. As used herein, (i)
the "BASE CONNECTION POINTS" shall mean the points of connection on the
Building's electric risers which are located in the Premises Floor Electrical
Closets (as hereinafter defined), each of which shall be selected by Tenant and
approved by Landlord, (ii) the "PREMISES FLOOR ELECTRICAL CLOSETS" shall mean
each of the four (4) electrical closets located on each Premises Floor (it being
understood that such closets are not included within the Premises), (iii) the
"COMMITTED BASE ELECTRICITY LEVEL" shall mean the minimum aggregate level at
which Landlord shall furnish electricity to the Base Connection Points (i.e.,
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six and one-half (6.5) watts demand load per usable square foot of the
Premises), and (iv) "TENANT'S BASE ELECTRICITY" shall mean the electricity drawn
by Tenant from the Base Connection Points. It being agreed that, for purposes of
this Section 14.01(a), the useable area of the Premises shall be conclusively
deemed to be 80% of the deemed rentable area of the Premises determined pursuant
to the provisions of Section 3.06 hereof and Exhibit D annexed hereto.
(b) Tenant, subject to and in accordance with the
applicable provisions of this lease (including without limitation Article 11
hereof), shall (i) make such connections at the Base Connection Points as will
allow Tenant to draw electricity therefrom, and (ii) distribute Tenant's Base
Electricity from the Base Connection Points (x) to the various points throughout
the Premises where Tenant's Base Electricity is consumed, and/or (y) to Tenant
Improvements located outside the Premises which consume electricity. Tenant
shall not draw electricity from the Building's electrical risers other than from
the Base Connection Points. Nothing in this Section 14.01(b) or in Section
14.02(b) hereof shall be deemed to permit Tenant to utilize any electrical
conduits outside of the Premises; it being understood that Tenant shall have the
right to utilize certain electrical conduits outside the Premises pursuant to
the provisions of Section 14.02(c) hereof or Article 41 hereof (and that
Landlord may hereafter grant Tenant other rights to utilize certain electrical
conduits outside the Premises).
(c) In connection with the distribution of electricity
from the Base Connection Points, or any conversion of voltage incident thereto,
Tenant shall have the right to utilize or dispose of any transformers or panels
located, as of the date hereof, in the Premises Floor Electrical Closets, but
Landlord makes no representation or warranty concerning the condition of such
transformers or panels or the adequacy thereof for Tenant's connection,
distribution or conversion needs. After the completion of the Secondary Work and
thereafter throughout the term of this lease, (i) Tenant shall have access to
the Premises Floor Electrical Closets, and (ii) the same shall not service any
other tenant of the Building; except, that Landlord and persons authorized by
Landlord may run electrical conduits and risers through such closets.
(d) Tenant covenants that, at no time during the term
of this lease, shall Tenant ever draw electricity from the Base Connection
Points at a level in excess of the Committed Base Electricity Level. Tenant
further covenants that its use of electricity shall never exceed the capacity of
the electrical risers, distribution conductors and other equipment installed by
Tenant to distribute Tenant's Base Electricity as hereinabove provided.
14.02. (a) Landlord shall furnish electricity, for use by
Tenant in the Premises and in the operation of Tenant's Improvements, to the
Designated 20th Floor Electrical Panels (as hereinafter defined) at an aggregate
level of not less than 2,500 KVA. As used herein, (i) the "DESIGNATED 20TH FLOOR
ELECTRICAL PANELS" shall mean those certain electrical panels heretofore
designated by Landlord and being contained in the switchgear room on the 20th
floor of the Building which is shown hatched on Exhibit R attached hereto, (ii)
the "COMMITTED SUPPLEMENTAL ELECTRICITY LEVEL" shall mean the minimum aggregate
level at which Landlord shall furnish electricity to the Designated 20th Floor
Electrical Panels (i.e., 2,500 KVA), and (iii) "TENANT'S SUPPLEMENTAL
ELECTRICITY" shall mean the electricity drawn by Tenant from the Designated 20th
Floor Electrical Panels. Tenant, subject to and in accordance with the
provisions of Articles 11 hereof and in connection with the Initial Alterations,
shall, at its expense, perform the work needed to (x) install a meter pan in
respect of the Designated 20th Floor Electrical Panels (herein
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called the "20TH FLOOR METER PAN"), and (y) run up to twenty (20) 4-inch
electrical conduits (I) from the Designated 20th Floor Electrical Panels to
Tenant's Electrical Distribution Room (as hereinafter defined), and (II) from
Tenant's Electrical Distribution Room to Tenant's UPS Room (as hereinafter
defined), all of which electrical conduits to be run in locations on the 20th
floor of the Building reasonably designated by Landlord (such work being herein
called the "20TH FLOOR ELECTRICAL WORK"). For purposes of applying Article 11
hereof to the 20th Floor Electrical Work, the same shall be deemed Exterior
Material Alterations and Pre-Authorized Alterations.
(b) Tenant, subject to and in accordance with the
applicable provisions of this lease (including without limitation Article 11
hereof), shall (i) make such connections at the Designated 20th Floor Electrical
Panels as will allow Tenant to draw electricity therefrom, and (ii) distribute
Tenant's Supplemental Electricity from the Designated 20th Floor Electrical
Panels (x) to any points within the Premises where Tenant's Supplemental
Electricity is consumed, and/or (y) to any Tenant's Improvements located outside
the Premises which consume electricity.
(c) In connection with the distribution of Tenant's
Supplemental Electricity from the Designated 20th Floor Electrical Panels as
aforesaid, Tenant, subject to and in accordance with the provisions of Article
11 hereof, shall have the right, from time to time, to install one or more
electrical conduits connecting Tenant's Electrical Distribution Room and
Tenant's UPS Room to the Premises Floors and the roof of the Building, which
electrical conduits shall run vertically through Tenant's Stairwell B Enclosure
(as hereinafter defined) and/or Tenant's Stairwell E Enclosure (as hereinafter
defined), and, to the extent any of such electrical conduits need to run
horizontally, the same shall be run in locations reasonably designated by
Landlord; provided, however, that Tenant's right to install any such electrical
conduit shall be conditioned upon (i) Tenant having theretofore installed, or
Tenant contemporaneously therewith installing, either or both of Tenant's
Stairwell B Enclosure and Tenant's Stairwell E Enclosure pursuant to Section
16.14 hereof, and (ii) there being sufficient space within Tenant's Stairwell B
Enclosure and/or Tenant's Stairwell E Enclosure to install such electrical
conduit. Such electrical conduits are herein collectively called the "TENANT'S
SUPPLEMENTAL ELECTRICITY CONDUITS", and the work required to install the same
being herein called the "TENANT'S SUPPLEMENTAL ELECTRICITY CONDUIT WORK". For
purposes of applying Article 11 hereof to Tenant's Supplemental Electricity
Work, the same shall be deemed Exterior Material Alterations and, subject to the
foregoing provisions of this Section 14.02(c), Pre-Authorized Alterations.
(d) Tenant covenants that, at no time during the term
of this lease, shall Tenant ever draw electricity from the Designated 20th Floor
Electrical Panels at a level in excess of the Committed Supplemental Electricity
Level. Tenant further covenants that its use of electricity shall never exceed
the capacity of the electrical risers, distribution conductors and other
equipment installed by Tenant to distribute Tenant's Supplemental Electricity as
hereinabove provided.
14.03. (a) Tenant shall pay Landlord, or a meter company
designated by Landlord, for Tenant's Base Electricity and Tenant's Supplemental
Electricity (collectively, "TENANT'S ELECTRICITY") on a submetered basis in
accordance with the following provisions of Section 14.03(b) (unless the
provisions of Section 14.04 through Section 14.07 hereof shall apply) and, in
all events, at the rates and charges set forth in this Section 14.03(c).
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(b) Tenant's Electricity shall be measured by one or
more submeters, measuring both demand and consumption, and one or more of such
submeters, or a separate meter or device, shall measure demand as to all such
submeters on a "co-incident" basis (such submeters, together with all related
equipment, are herein collectively called "TENANT'S SUBMETERS"). As used herein,
the term "demand" shall mean demand as defined by the public utility company
furnishing electricity to the Building from time to time (herein called the
"UTILITY COMPANY") and as measured over such time period or interval as the
Utility Company shall measure the same. Tenant's Submeter(s) initially measuring
Tenant's Base Electricity shall be installed by Landlord, at its expense, on or
prior to the date that is six (6) weeks after the date that Tenant shall have
installed its electrical panels in each of the Premises Floor Electrical
Closets. Tenant's Submeter(s) measuring Tenant's Supplemental Electricity shall
be installed by Landlord, and Landlord shall endeavor to install such Tenant's
Submeter(s) on or prior to the date (herein called the "SUPPLEMENTAL METER
OUTSIDE DATE") that is six (6) weeks after the date that Tenant shall have
installed the 20th Floor Meter Pan and shall have notified Landlord thereof.
(c) The amount to be charged to Tenant by Landlord, for
any billing period, for Tenant's Electricity (whether the demand and consumption
components thereof are measured by Tenant's Submeters or determined by survey as
herein elsewhere provided), shall be 102% of the amount indicated by applying
both the number of KWs of demand for such period (measured on a co-incident
demand basis) and the KWHRs of consumption for such period, to Landlord's Rate
Schedule for such period. Tenant shall also pay, and Landlord shall remit to the
appropriate governmental agency, all sales tax payable on the amounts set forth
in the preceding sentence. As used herein, "LANDLORD RATE SCHEDULE", for any
period, shall be rate schedule, for both KWs and KWHRs, at which Landlord
purchases electricity for the Building from the Utility Company during such
period, excluding, however, any sales tax which may be included in such
schedule. Bills for Tenant's Electricity, which Tenant hereby agrees to pay,
shall be rendered by Landlord, or the meter company, to Tenant at such time and
for such billing periods as Landlord may elect, and shall be payable as an
Additional Charge within thirty (30) days after the rendition of any such bill.
Each electric bill rendered by Landlord to Tenant for Tenant's Base Electricity
shall be accompanied by a copy of the electricity bill(s) for the Building
identifying Landlord's Rate Schedule for the applicable billing period.
(d) (1) Prior to the date that the Tenant's Submeter(s)
measuring Tenant's Base Electricity are installed on any Premises Floor, (I)
Tenant, during the period commencing on the date hereof and ending on the day
prior to the date that Tenant first occupies such Premises Floor for the
ordinary conduct of its business, shall pay to Landlord, in respect of Tenant's
Base Electricity for such Premises Floor, an amount equal to $1.00 per rentable
square foot per annum, and (II) Tenant, during the period, if any, commencing on
the date that Tenant first occupies such Premises Floor for the ordinary conduct
of its business and ending on the date that the Tenant's Submeters measuring
Tenant's Base Electricity are installed and made operational on such Premises
Floor, shall pay to Landlord, in respect of Tenant's Base Electricity for such
Premises Floor, an amount equal to $2.50 per rentable square foot per annum,
which amount shall be deemed a payment on account for such period and shall be
retroactively adjusted, after the installation of the Tenant's Submeter(s)
measuring Tenant's Base Electricity for such Premises Floor, based upon the
first 12-months of readings of such Tenant's Submeter(s) substantially in
accordance with the provisions of Section 14.05 hereof.
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(2) Tenant shall not draw any electricity from
the Designated 20th Floor Electrical Panels, prior to the first to occur of (i)
the date that the Tenant's Submeter(s) measuring Tenant's Supplemental
Electricity are installed, and (ii) the day after the Supplemental Meter Outside
Date. Consistent with the foregoing, if Tenant's Submeter(s) measuring Tenant's
Supplemental Electricity are not installed on or prior to the Supplemental Meter
Outside Date, then, for the period commencing on the day after the Supplemental
Meter Outside Date and ending with the installation of such Tenant Submeter(s),
Tenant shall not be charged for drawing Tenant's Supplemental Electricity from
the Designated 20th Floor Electrical Panels.
(e) Landlord's obligations under this Article 14 shall
not be affected, diminished or excused by reason of Landlord's use or employment
of a meter company. Any such meter company shall for purposes of this lease be
deemed Landlord's agent.
14.04. In the event that the "submetering" of electricity in
the Building is hereafter prohibited by any law hereafter enacted, or by any
order or ruling hereafter issued by the Public Service Commission of the State
of New York, or by any final judicial decision hereafter issued by any
appropriate court, then, at the request of Landlord, Tenant shall, unless Tenant
elects to require Landlord to provide Tenant's Electricity pursuant to Section
14.05 hereof, promptly apply to the appropriate Utility Company for direct
electric service and bear all costs and expenses necessary to comply with all
rules and regulations of the Utility Company pertinent thereto, and, upon the
commencement of such direct service, Landlord shall be relieved of any further
obligation to furnish Tenant's Electricity to Tenant pursuant to this Article
14, except that Landlord shall permit its wires, conduits and electrical
equipment, to the extent available and safely capable, to be used for such
purpose. If any additional feeder, riser or other equipment is necessary to
supply such direct service, Landlord shall, at the sole cost and expense of
Tenant, install the same at reasonably competitive rates, if in Landlord's
reasonable judgment the same are so necessary and will not cause damage or
injury to the Building or the Premises or cause or create a dangerous or
hazardous condition (other than one which is temporary) or unreasonably
interfere with or disturb other tenants or occupants (other than on a temporary
basis).
14.05. (a) If submetering of electricity is prohibited as
described in Section 14.04 above and Tenant does not elect to obtain direct
electric service from the Utility Company, then the demand (KW) and consumption
(KWHR) components of Tenant's Electricity shall be determined from time to time
by electric survey made from time to time in accordance with the provisions of
this Section 14.05, Section 14.06 and Section 14.07. Pending an initial survey
made by Landlord's utility consultant, effective as of the date (the "INITIAL
SURVEY EFFECTIVE DATE") when Landlord has commenced charging Tenant for Tenant's
Electricity pursuant to this Section 14.05 (with suitable proration for any
period of less than a full calendar month), the Fixed Rent specified in Section
1.04 shall be increased by an amount (the "INITIAL CHARGE") which shall be at
the rate of $2.50 per rentable square foot per annum, or if there has been
twelve (12) months' charges of submetered electric, an amount per month equal to
the average of the prior twelve (12) months' charges for submetered electric.
After completion of an electrical survey made by Landlord's utility consultant
of Tenant's demand (KW) and consumption (KWHR) of electricity, said consultant
shall apply the rates set forth in Section 14.03 hereof to arrive at an amount
(the "ACTUAL CHARGE"), and the Fixed Rent shall be appropriately adjusted
retroactively to the Initial Survey Effective Date to reflect any amount by
which the Actual Charge differs from the Initial Charge. If the Actual
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Charge is greater than the Initial Charge, Tenant shall pay resulting deficiency
within ten (10) days after being billed therefor. If the Actual Charge is less
than the Initial Charge, Landlord shall refund the resulting overpayment within
ten (10) days after the determination of the Actual Charge. Landlord shall cause
its utility consultant to complete the aforesaid survey and computation, and to
notify the parties thereof, no later than sixty (60) days after the Initial
Survey Effective Date. Thereafter and from time to time during the term of this
lease, Landlord may, and whenever Tenant shall so request, Landlord shall
promptly, cause additional surveys of Tenant's electric demand and consumption
to be made by Landlord's utility consultant. Whenever Tenant shall so request,
the fees of Landlord's utility consultant shall be paid by Tenant. In the event
any of the foregoing surveys shall determine that there has been an increase or
decrease in Tenant's demand or consumption, then effective retroactively to the
date of such increase or decrease (except as otherwise provided below) the then
current Actual Charge, as same may have been previously increased or decreased
pursuant to the terms hereof, shall be increased or decreased in accordance with
such survey determination. If the Actual Charge is thus increased, Tenant shall
pay resulting deficiency within ten (10) days after being billed therefor. If
the Actual Charge is thus decreased, Landlord shall refund the resulting
overpayment within ten (10) days after such determination. Notwithstanding the
foregoing provisions of this Section 14.06, (i) no increase resulting from any
survey made after the initial survey shall be retroactive to any date more than
30 days prior to the date of such survey, (ii) no decrease resulting from any
survey made after the initial survey at Tenant's request shall be retroactive to
any date more than 30 days prior to the date of Tenant's request, and (iii) no
decrease resulting from any survey made after the initial survey without
Tenant's request shall be retroactive to any date more than 30 days prior to the
date of such survey. Each survey after the initial survey shall include a
statement of the date, determined in accordance with this Section 14.05(a), to
which it is to be given retroactive effect.
(b) In the event from time to time after the initial
survey or a subsequent survey any additional electrically operated equipment is
installed in the Premises by Tenant or connected or any electrically operated
equipment is removed from the Premises or disconnected, or if Tenant shall
increase or decrease its hours of operation, or if the charges by the Utility
Company are increased or decreased, then and in any of such events the Actual
Charge shall be increased or decreased accordingly. The amount of such increase
or decrease in the Actual Charge shall be determined in the first instance by
Landlord's utility consultant. At any time after any such event shall occur,
Landlord may, and if Tenant shall so request, Landlord shall promptly, cause the
amount of such increase or decrease to be so determined. Whenever Tenant shall
so request, the fees of Landlord's utility consultant shall be paid by Tenant.
In addition, the Actual Charge will be increased or decreased quarterly in
accordance with calculations by Landlord's utility consultant to reflect changes
in the fuel adjustment component of the Utility Company's charge. Any increase
or decrease pursuant to this Section 14.05(b) in the amount charged Tenant for
electricity shall be retroactive to the date on which the fact or condition
giving rise thereto occurred; provided, however, that (i) no increase shall be
retroactive to any date more than 30 days prior to the date on which Tenant is
notified thereof, (ii) no decrease resulting from any determination made at
Tenant's request shall be retroactive to any date more than thirty (30) days
prior to the date of Tenant's request, and (iii) no decrease resulting from any
determination made without Tenant's request shall be retroactive to any date
prior to the date on which Tenant is notified thereof. Each determination shall
include a statement of the date, determined in accordance
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with this Section 14.05(b), to which it is to be given retroactive effect.
14.06. Surveys made of Tenant's electrical demand and
consumption shall be based upon the use of electricity between the hours of 8:00
a.m. to 6:00 p.m., Mondays through Fridays, and such other days and hours as
Tenant (together with all Tenant Parties) uses electricity for lighting and for
the conduct of its business in the Premises (if Tenant uses electricity during
certain hours in portions of the Premises but not all of the Premises, such fact
shall be taken into account); and if cleaning services are provided by Landlord,
such survey shall include (i) during Landlord's normal cleaning hours of five
(5) hours per day (which shall not be subject to reduction), lighting within the
Premises, and (ii) during such portion of such five (5) hours as such equipment
is ordinarily so used, the use of the electrical equipment normally used for
such cleaning. The electric demand and consumption of any light or device shall
not be deemed to be constant or continuous (unless so by its nature) and the
utility consultant shall reasonably estimate the actual demand and consumption
of each light or device, and, for purposes of determining Tenant's total demand,
the utility consultant shall also reasonably estimate the diversity factor to be
applied to the demand of each such light or device.
14.07. All survey determinations made in accordance with
Section 14.05(a) and all other determinations made in accordance with Section
14.05(b), in each case including the date, determined in accordance with Section
14.05, to which the same shall be given retroactive effect, shall be accompanied
by full documentation and shall be subject to contest by Tenant as provided in
this Section 14.07. In the event electricity shall be furnished to Tenant as
contemplated in Section 14.05 hereof, then Tenant, within sixty (60) days after
notification from Landlord of any determination of Landlord's utility consultant
in accordance with the provisions of Section 14.05(a) or (b), shall have the
right to contest, at Tenant's cost and expense, such determination, in each case
including the aforesaid date, by submitting to Landlord a like determination
prepared by a utility consultant of Tenant's selection which will highlight the
differences between Landlord's determination and Tenant's determination. If
Landlord's utility consultant and Tenant's utility consultant shall be unable to
reach agreement within thirty (30) days, then such two consultants shall
designate a third utility consultant to make the determination, and the
determination of such third consultant shall be binding and conclusive on both
Landlord and Tenant. If the determination of such third consultant shall
substantially confirm the finding of Landlord's utility consultant (i.e., within
ten percent (10%)), then Tenant shall pay the cost of such third consultant. If
such third consultant shall substantially confirm the determination of Tenant's
consultant (i.e., within ten percent (10%)), then Landlord shall pay the cost of
such third consultant. If such third consultant shall make a determination
substantially different from that of both Landlord's and Tenant's utility
consultants (or is within ten percent (10%) of both such determinations), then
the cost of such third consultant shall be borne equally by Landlord and Tenant.
In the event that Landlord's utility consultant and Tenant's utility consultant
shall be unable to agree upon the designation of a third utility consultant
within thirty (30) days after Tenant's utility consultant shall have made its
determination (different from that of Landlord's utility consultant) then either
party shall have the right to request the American Arbitration Association in
the City of New York to designate a third utility consultant whose decision
shall be conclusive and binding upon the parties, and the costs of such third
consultant shall be borne as hereinbefore provided in the case of a third
consultant designated by Landlord's and Tenant's utility consultants. Pending
the resolution of any contest pursuant to the terms hereof, Tenant
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shall pay the Actual Charge determined by Landlord's utility consultant, and
upon the resolution of such contest, appropriate adjustment in accordance with
such resolution of such Actual Charge shall be made retroactive to (i) the date
to which the contested determination was given retroactive effect or (ii) if
Tenant shall have contested such date, to the date determined in such contest.
14.08. (a) If Tenant requires additional electrical capacity,
above the Committed Base Electricity Level and the Committed Supplemental
Electricity Level, then Tenant may deliver to Landlord a notice which shall set
forth the level of additional electrical capacity required and shall request
that Landlord endeavor to obtain such additional electrical capacity from the
Utility Company (each such notice being herein called a "ADDITIONAL ELECTRICITY
NOTICE"). If, after Landlord receives an Additional Electricity Notice, Tenant
shall demonstrate its need for the additional electrical capacity requested in
such Additional Electricity Notice to Landlord's reasonable satisfaction, then
Landlord, at Tenant's expense and in coordination with Tenant, shall make
reasonable efforts to cause the Utility Company to deliver to the Building the
additional electrical capacity set forth in the Additional Electricity Notice;
provided, however, that Landlord's foregoing obligation to use reasonable
efforts shall not require Landlord to (i) initiate or otherwise participate in
any litigation or administrative proceeding, (ii) make any alterations,
additions or improvements to the Real Property (other than, if applicable, the
installation of the Additional Electrical Equipment (as hereinafter defined)
pursuant to the provisions of Section 14.08(b) hereof at Tenant's expense),
(iii) expend any money (unless Tenant pays such amounts to Landlord prior to the
date the same are due from Landlord), or (iv) take any action which would or
might adversely affect on (x) Landlord's ability to obtain electricity from the
Utility Company for the remainder of the Real Property or (y) Landlord's ability
to distribute electricity to any portion of the Real Property. Tenant shall
reimburse Landlord all Landlord's out-of-pocket expenses incurred in connection
with, and indemnify and hold harmless Landlord against any and all claims and
liabilities arising out of, Landlord's obtaining of, or Landlord's attempts to
obtain, the additional electrical capacity requested in the Additional
Electricity Notice (including without limitation those incurred in connection
with or arising out of Landlord's execution of any applications and similar
documents).
(b) If, in response to a request of Tenant or Landlord,
the Utility Company shall agree to furnish the additional electrical capacity
set forth in any Additional Electricity Notice, then Landlord, at Tenant's
expense, shall (i) permit the Utility Company to install in the Building's
electric vault the equipment and connections necessary to provide such
additional electrical capacity to the Building (such equipment and connections
being herein called the "ADDITIONAL BUILDING ELECTRICAL EQUIPMENT"), and (ii)
either install, or, at Landlord's option, permit Tenant to install, the risers,
switches, transformers, panels and related equipment necessary to make such
additional electrical capacity available to the Premises and the meters or
submeters needed to measure the electricity drawn therefrom (all such risers,
switches, transformers, panels and related equipment, together with such meters
or submeters, being herein called the "ADDITIONAL TENANT ELECTRICAL EQUIPMENT").
Tenant shall (x) pay, or reimburse Landlord, all charges of the Utility Company
with respect to its installation of the Additional Building Electrical Equipment
or otherwise charged in connection with the furnishing of additional electrical
capacity to the Building pursuant to the provisions of this Section 14.08(b),
and (y) reimburse Landlord all reasonable out-of-pocket cost incurred by
Landlord in connection with the installation of the Additional Tenant Electrical
Equipment. Upon
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such installation of the Additional Tenant Electrical Equipment, the same shall
constitute Tenant's Improvements.
(c) Notwithstanding anything to contrary contained in
the foregoing provisions of this Section 14.08 or in any other provision of this
lease, Tenant hereby agrees that (I) except for Tenant's rights to draw
electricity expressly set forth in Sections 14.01 and 14.02 hereof, Landlord
shall never have any obligation to furnish to Tenant and Tenant shall never have
any right or claim whatsoever to any electrical capacity currently existing in
the Building (regardless of whether any such capacity is now being used or is
ever used and regardless of whether any such capacity may hereafter become
available for use), and (II) except for any additional electrical capacity
furnished to the Building by the Utility Company pursuant to this Section 14.08
as hereinabove provided, Tenant shall have no rights or claims whatsoever to any
additional electrical capacity hereafter furnished to the Building by the
Utility Company. Without limiting the generality of the foregoing, it is
understood and agreed that if the Utility Company denies a request made by
Landlord or Tenant to furnish to the Building the additional electrical capacity
set forth in an Additional Electricity Notice and gives as its reason therefor
that there is unused or available electrical capacity in the Building, then,
notwithstanding that there is such unused or available capacity, Landlord shall
have no obligation to furnish any portion of such capacity to Tenant and Tenant
shall have no rights thereto.
14.09. Landlord shall not be liable in any event to Tenant for
any failure, interruption or defect in the supply or character of electric
energy furnished to the Premises by reason of any act or omission of the public
utility serving the Building with electricity or for any other reason not
attributable to Landlord's willful misconduct or negligence (but in no event
shall Landlord be responsible for any consequential damages).
14.10. If pursuant to any law, ruling, order or regulation,
the charges under which Tenant is purchasing electricity from Landlord pursuant
to this Article 14 shall be reduced below that which Landlord is otherwise
entitled hereunder, then, unless prohibited by laws and requirements of public
authorities, Tenant shall pay said deficiency to Landlord as an Additional
Charge within thirty (30) days after being billed therefor by Landlord, as
compensation for the use and maintenance of the Building's electric distribution
system.
14.11. Tenant, at its sole cost and expense, using its own
employees, or a vendor or contractor selected by Tenant, shall furnish and
install all replacement lighting, tubes, lamps, bulbs and ballasts required in
the Premises.
14.12. If any rebates shall be available from the Utility
Company, as part of any utility sponsored energy conservation rebate program, on
account of the energy efficient nature of Tenant's lighting fixtures and/or
equipment, then Landlord, at Tenant's sole expense, (i) shall, if Tenant shall
request, make and prosecute applications for any such rebates, and take other
reasonably requested actions in furtherance thereof, and (ii) shall, to the
extent any such rebates are actually received by Landlord, promptly remit the
same to Tenant.
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ARTICLE 15
Landlord's Services
15.01. For the purposes of this Article 15, the fol-
lowing terms shall have the following meanings:
(a) "BUSINESS OCCUPANCY DATE", with respect to any
Premises Floor, shall mean the date on which Tenant takes occupancy of the
portion of the Premises located on such Premises Floor for the conduct of its
usual business. Tenant shall give Landlord notice of the Business Occupancy Date
with respect to each Premises Floor at least five (5) Business Days prior to the
occurrence thereof.
(b) "BUSINESS HOURS" shall mean the hours between
8:00 a.m. and 6:00 p.m. on Business Days.
(c) "BUSINESS DAYS" shall mean all days, except
Saturdays, Sundays and Holidays. Notwithstanding the foregoing, for purposes of
Section 15.03 hereof and Section 15.05 hereof (but not for any other purposes
hereunder), the term "Business Days" shall include Partial Service Holidays.
(d) "HOLIDAYS" shall mean New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day
following Thanksgiving, Christmas and any other days which shall be either (i)
observed by the federal or the state governments as legal holidays, or (ii)
designated as a holiday by the applicable Building Service Union Employee
Service contract or by the applicable Operating Engineers contract. At anytime
after the beginning of a calendar year, Landlord, promptly after its receipt of
a written request therefor from Tenant, shall furnish Tenant with a notice
designating the Holidays for that calendar year.
(e) "PARTIAL SERVICE HOLIDAYS" shall mean any Holiday
which occurs on a weekday and on which the New York Stock Exchange is open for
trading.
15.02. (a) Landlord shall furnish cold water to the sprinklers
on each Premises Floor to the extent required for sprinkler purposes only.
Landlord's sprinkler system (up to and including the main sprinkler loop on each
Premises Floor) shall be hydraulically designed for office space with .015 gpm
per square foot to the 2,000 most remote square feet, a water reserve of 30
minutes and a maximum head coverage area of 196 square feet.
(b) Landlord shall furnish hot and cold water to the
Core Lavatories on each Premises Floor to the extent required for normal core
lavatory, drinking and cleaning purposes only. In addition, Landlord, without
charge to Tenant, shall furnish additional hot and/or cold water for use by
Tenant for the following purposes: (i) satellite lavatories (containing no more
than one sink and one toilet each), up to a maximum of two (2) per Premises
Floor, and (ii) pantries (containing no more than one dishwasher and one sink
each), up to a maximum of two (2) per Premises Floor. Such additional hot and/or
cold water shall be furnished through the Building's plumbing system to, and
shall be accessible by Tenant at, one or more of the valved outlets therefor
which currently exist in the core of the Building on each Premises Floor.
(c) If, consistent with Section 2.01 hereof, Tenant
shall require water for any purposes other than those set forth in Section
15.02(a) and (b) above (which other purposes shall include without limitation
(i) water for any additional pantries, or for any kitchenettes, kitchens or a
cafeteria or other dining facility, inclusive of any sinks, dishwashers,
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coffee machines, etc. therein, (ii) water for any additional satellite or
private lavatories installed by Tenant, (iii) water for any gymnasium or showers
installed by Tenant, and/or (iv) water for Tenant's Cooling Plant), then
Landlord need only furnish additional cold water for such other purposes, as so
required, which additional cold water shall be furnished through the Building's
plumbing system to, and shall be accessible by Tenant at, one or more of the
valved outlets therefor which currently exist in the core of the Building on
each Premises Floor and, after the completion of the Secondary Work, a single
valved outlet on the roof of the Building. Such furnished water shall have a
pressure at the outlet of not less than 13 psig and not more than 80 psig. If
Tenant uses water for any purposes other than as set forth in Section 15.02(a)
and (b) above, then Landlord may install and maintain, at Tenant's expense, one
or more meters to measure Tenant's consumption of such water for such other
purposes. Tenant shall reimburse Landlord for the quantities of water shown on
such meter or meters, periodically, within thirty (30) days after written demand
therefor, in accordance with the rates and charges of the utility company or
municipality supplying such water to the Building. Tenant, at its expense, shall
be solely responsible for distributing to and within the Premises, and, to the
extent Tenant requires hot water, heating any additional cold water furnished
pursuant to this Section 15.02(c). Landlord shall also make available to Tenant
at a plugged point of connection on each Premises Floor (i) a 4" waste line and
(ii) a 2" vent line.
15.03. (a) Landlord, during Business Hours, shall furnish, in
accordance with the specifications set forth on Exhibit K annexed hereto, (i)
heat and ventilation service at the perimeter of each Premises Floor through the
existing perimeter equipment (such heat and ventilation service being herein
called "BASE BUILDING HEAT SERVICE"), and (ii) air-conditioning and ventilation
service both (x) at the perimeter of each Premises Floor (through the existing
perimeter equipment), other than the 50th floor of the Building, and (y) at
delivery points (designated by Landlord) in the Building's core located on each
Premises Floor, other than the 50th floor of the Building (such air-conditioning
and ventilation service being herein called "BASE BUILDING AIR-CONDITIONING
SERVICE"). Tenant, at its expense, shall have right to measure the provision of
heat, air-conditioning and ventilation service to the Premises as aforesaid to
confirm that the same is in conformity with the specifications set forth on
Exhibit K, and to temporarily or permanently install equipment for that purpose,
provided, that no such equipment shall have any adverse affect on the operation,
performance or maintenance of the Building's HVAC system(s) or any related
equipment. Landlord shall provide either Base Building Heat Service or Base
Building Air-Conditioning Service according to outside conditions and not
according to the season or time of year.
(b) If Tenant shall request that Landlord furnish Base
Building Heat Service ("OVERTIME HEAT") or Base Building Air-Conditioning
Service ("OVERTIME AC") to any Premises Floor(s) at any time other than Business
Hours, then Landlord shall furnish such service at such times (x) upon no less
than five (5) hours' advance notice from Tenant for overtime service after six
(6) p.m. on Business Days, and (y) upon notice received before Noon on the
preceding Business Day for overtime service on non-Business Days. Each such
notice shall specify the Premises Floor or Floors to which service is to be
provided. Tenant, within thirty (30) days after its receipt of a demand
therefor, shall pay to Landlord (x) the Overtime AC Rate for any Overtime AC,
and (y) the Overtime Heat Rate for any Overtime Heat. As of the date hereof, the
"OVERTIME AC RATE" shall be $40 per hour, per floor, and the "OVERTIME HEAT
RATE" shall be $40 per hour, per floor. Each of the Overtime AC Rate and the
Overtime Heat Rate shall be Adjusted by CPI (as defined in Article 31 hereof).
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(c) Notwithstanding anything to the contrary contained
in the foregoing provisions of this Section 15.03, Landlord shall have no
obligation to furnish either Base Building Heat Service or Base Building
Air-Conditioning Service to the 50th floor of the Building or any part thereof.
Tenant, for so long as the Premises shall include any space on the 50th floor of
the Building, shall be solely responsible for furnishing heat and
air-conditioning to the leasable areas of the 50th floor of the Building
(including without limitation the Premises). For such purposes, Tenant shall be
entitled to utilize both (i) the existing separate heating system currently
located on the 50th floor of the Building, and (ii) the existing
air-conditioning unit currently located on the 50th floor of the Building, and,
subject to and in accordance with the provisions of Article 11 hereof, shall
have the right to modify and supplement such separate heating system and
air-conditioning unit (such separate heating system, as so modified and
supplemented, being herein called the "50TH FLOOR HEATING UNIT"; such
air-conditioning unit, as so modified and supplemented, being herein called the
"50TH FLOOR AC UNIT"; and such 50th Floor Heating Unit and such 50th Floor AC
Unit being herein collectively called the "50TH FLOOR HVAC UNITS"). Landlord,
without charge to Tenant, shall furnish the steam needed to operate the 50th
Floor Heating Unit; it being understood that Landlord shall have no other
obligation to furnish any service to the 50th Floor Heating Unit. Tenant,
subject to and in accordance with the applicable provisions of this lease,
shall, at Tenant's expense, furnish the electricity needed to operate the 50th
Floor AC Unit (from the electricity furnished by Landlord to Tenant pursuant to
Article 14 hereof) and the chilled water needed to operate the 50th Floor AC
Unit (from the chilled water furnished by Landlord to Tenant pursuant to Section
15.04 hereof or the chilled water generated by Tenant's Cooling Plant); it being
understood that Landlord shall have no separate obligation to furnish
electricity or chilled water or any other service to the 50th Floor AC Unit. The
50th Floor HVAC Units shall be deemed part of "Tenant's Improvements" for all
purposes of this lease; provided, however, that, in all events, each of the 50th
Floor HVAC Units shall be surrendered with the Premises upon the expiration or
earlier termination of this lease (or, as the case may be, the expiration or
earlier termination of this lease with respect to the entirety of the Premises
located on the 50th Floor of the Building) in the same or better condition, and
with equal or better capacity, than each such unit is in on the date hereof,
subject to ordinary wear and tear. Landlord makes no representation or warranty
whatsoever concerning the capacity or existing condition of either of the 50th
Floor HVAC Units. Notwithstanding the foregoing provisions of this Section
15.03(c), if, at anytime, the Premises shall include some, but less than all,
the leasable area on the 50th floor of the Building, then Tenant shall enter
into an agreement with Landlord (or, at Landlord's option, the tenant(s) or
other occupant(s) of such other leasable area), which agreement shall (I)
provide that Tenant, without charge to Landlord or the tenant(s) or other
occupant(s) of such leasable area, shall provide heat service and
air-conditioning service to such other leasable area substantially as it
provides heat service and air-conditioning service to the Premises (both during
and after Business Hours), (II) provide that Landlord (or, as the case may be,
the tenant(s) or other occupant(s) of such other leasable area), from time to
time, shall reimburse Tenant its (or their) proportionate share of the
reasonable costs incurred by Tenant in repairing and replacing the 50th Floor
HVAC Units (which proportionate share shall be computed on a pro-rata rentable
square basis), and (III) contain provisions substantially similar to Section
15.03(b) hereof and Section 15.10(a) and (b) hereof with respect to such heat
service and air-conditioning service.
15.04. (a) Landlord shall furnish chilled water to
the SCW Distribution Points, 24 hours a day, 7 days a week, at a
level which, subject to Tenant making proper connection thereto,
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will enable Tenant to draw at least 400 tons of chilled water, in the aggregate,
from such points at any time. Tenant shall have the right to draw from the SCW
Distribution Points, at any instance in time, up to, but not in excess of, 400
tons of chilled water, which chilled water shall be used in the operation of
Tenant's Supplemental AC Equipment (as hereinafter defined), the 50th Floor AC
Unit and/or Tenant's UPS System (as hereinafter defined). Tenant, at its
expense, shall be responsible for connecting to the SCW Distribution Points and
distributing any chilled water drawn from such SCW Distribution Points to
Tenant's Supplemental AC Equipment, the 50th Floor AC Unit and/or Tenant's UPS
System. Such chilled water shall be furnished at 48 degrees F., and shall be
returned at 58 degrees F.; the system differential pressure shall be 20 psig at
the highest floor. As used herein, the "SCW DISTRIBUTION POINTS" shall mean the
single point on each Premises Floor located in the Building's core, the single
point on the roof of the Building and the single point on the 20th floor of the
Building, which shall be designated by Landlord, and, at which Tenant, after the
completion of the Secondary Work, shall be able to draw chilled water.
Notwithstanding the foregoing, Landlord shall have no obligations under this
Section 15.04(a) until after the substantial completion of the Secondary Work.
The term "TENANT'S SUPPLEMENTAL AC EQUIPMENT" shall mean, collectively, all of
Tenant's water-cooled supplemental air-conditioning units.
(b) (1) For purposes of this Section 15.04, the
following terms shall have the following meanings:
"TON HOURS", for any period as measured by any
chilled water meter, shall mean a number of ton hours equal to the
quotient of (A) the product of (y) the number of BTUs of chilled water
consumed by Tenant during such period (as measured by such meter),
multiplied by (z) the "Meter Factor" (as such term is used in the
vernacular of the industry) applicable to the make and model number of
such meter, divided by (B) the BTUH Factor applicable to the make and
model number of such meter.
"ON-PEAK HOURS", for any period, shall mean
those hours which, during such period, are designated as on-peak hours
(or another designation similar thereto) on the electric rate schedule
at which Landlord purchases electricity for the Building from the
Utility Company. As of the date hereof, On-Peak Hours shall be the
hours from 8:00 a.m. to 10:00 p.m. Monday through Friday.
"OFF-PEAK HOURS", for any period, shall mean
those hours which are not On-Peak Hours during such period.
"ON-PEAK SUPPLEMENTAL CHILLED WATER RATE", as of
the date hereof, shall mean eighteen cents ($0.18) per Ton Hour, it
being agreed that such rate shall be Adjusted By CPI.
"OFF-PEAK SUPPLEMENTAL CHILLED WATER RATE", as
of the date hereof, shall mean thirteen cents ($0.13) per Ton Hour, it
being agreed that such rate shall be Adjusted By CPI.
"MINIMUM PER DIEM SCW CHARGE" shall mean an
amount equal to $137, which amount shall be Adjusted By CPI.
"50TH FLOOR PER DIEM CREDIT" shall mean (I)
during any period that the Premises include any space on the 50th floor
of the Building, an amount equal to $131, which amount shall be
Adjusted By CPI, and (II) during any other period, $0.
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(2) Tenant, prior to drawing any chilled water
from any SCW Distribution Points, shall, at its expense, install one or more
meters (each, a "CHILLED WATER METER") at one or more of such point(s) (or such
other location on the Building's chilled water loop approved by Landlord) which
will monitor Tenant's draw and consumption of chilled water from all the SCW
Distribution Points during each of On-Peak Hours and Off-Peak Hours, which
meter shall (i) separately register the number of Ton Hours consumption during
On-Peak Hours and consumption during Off-Peak Hours, (ii) otherwise provide
accurate time of day readings of Tenant's draw and consumption of chilled water
from the SCW Distribution Points, and (iii) otherwise be in conformity with the
meter specifications set forth on Exhibit V-1 attached hereto. In addition,
Tenant, together with the Chilled Water Meters, shall install such equipment as
will prevent Tenant from drawing, at any instant in time, chilled water from the
SCW Distribution Points in excess of 400 tons in the aggregate.
(3) Tenant, within thirty (30) days after its
receipt of a written demand therefor, shall pay to Landlord as Additional
Charges hereunder, for all chilled water it draws from the SCW Distribution
Points during any period, an amount equal to the positive excess, if any, of (I)
the greater of (x) an amount equal to Minimum Per Diem SCW Charge multiplied by
the number of days in such period, and (y) the Meter Charge for such period,
over (II) the 50th Floor Per Diem Credit multiplied by the number of days in
such period. As used herein, the "METER CHARGE", for any period, shall mean an
amount equal to the sum of (i) the product obtained by multiplying (1) the
aggregate of all Ton Hours consumed during On-Peak Hours during such period (as
measured by the Chilled Water Meters), by (2) the On-Peak Supplemental Chilled
Water Rate applicable during such period, plus (ii) the product obtained by
multiplying (A) the aggregate of all Ton Hours consumed during Off-Peak Hours
during such period (as measured by the Chilled Water Meters) by (B) the Off-
Peak Supplemental Chilled Water Rate applicable during such period.
15.05. (a) Landlord shall provide passenger elevator service
to the Premises Floors, which service shall be provided (i) during Business
Hours, through at least eight (8) hi-rise passenger elevators, and (ii) at all
other times, through at least the Evening Elevator Number (as hereinafter
defined) of hi-rise passenger elevators. Such passenger elevator service shall
continue, throughout the term of this lease, to be furnished by the passenger
elevators now serving the Premises Floors and, throughout the term of this
lease, no floor, other than the floors now regularly served by such passenger
elevators (i.e., only the 41st through 50th floors of the Building, the
Building's ground floor lobby and, as to the Bank X Concourse Elevator (as
hereinafter defined) only, the retail concourse level of the Building), shall be
served by such passenger elevators. Landlord's obligation to provide passenger
elevator pursuant to the provisions of this Section 15.05(a) shall not commence
with respect to any Premises Floor until the Business Occupancy Date with
respect to such Premises Floor. As used herein the term "EVENING ELEVATOR
NUMBER" shall mean (i) during the Bank X Control Period, seven (7), and (ii)
during any other period, two (2); provided, however, that, during any such other
period, Tenant, by notice to Landlord, may request that the Evening Elevator
Number be increased to a whole number which is not greater than seven (7) (the
excess of such requested whole number over two (2) being called the "REQUESTED
INCREMENTAL NUMBER"), and, in such event, (x) Landlord, promptly after its
receipt of such a notice, shall install the access and security controls in the
Requested Incremental Number of hi-rise passenger elevators as shall be
necessary for such passenger elevators to serve the Premises Floors at times
other than Business Hours consistent with Landlord's security requirements for
the Building, (y) after the installation of such controls, the Evening Elevator
Number
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shall be increased to be the sum of two (2) plus the Requested Incremental
Number, and (z) Tenant, within thirty (30) days after written demand, shall
reimburse Landlord all of the reasonable out-of-pocket expenses incurred by
Landlord in installing such controls.
(b) Prior to the Business Occupancy Date with respect
to each Premises Floor, Landlord, provided it shall have received forty-eight
(48) hours notice of Tenant's requirements, shall furnish Tenant, after Business
Hours on up to two (2) Business Days for each Premises Floor (but not exceeding
ten (10) Business Days in the aggregate for the move-in of the Premises), with
the exclusive use of up to two (2) high-rise passenger elevators for the purpose
of facilitating Tenant's move-in with respect to such Premises Floor. When
Tenant shall vacate any Premises Floor, Landlord, provided it shall have
received adequate notice of Tenant's requirements, shall furnish Tenant, after
Business Hours on up to two (2) Business Days for each Premises Floor (but not
exceeding ten (10) Business Days in the aggregate for the vacation of Premises
Floors during the term of this lease), with the exclusive use of up to two (2)
high-rise passenger elevators for the purpose of facilitating Tenant's move-out
of such Premises Floor. Tenant, within thirty (30) days after a written demand,
shall reimburse Landlord all out-of-pocket costs incurred by Landlord in
connection with or as a result of Tenant's use of any passenger elevators for
its move-in or move-out of any Premises Floor pursuant to the provisions of this
Section 15.05(b).
(c) Notwithstanding anything to the contrary that may
be contained herein, in no event shall Tenant ever use, or permit any Tenant
Party to use, any passenger elevator(s) to carry construction personnel or
materials. Tenant may, however, use the passenger elevators (i) for regular
deliveries of mail, food and similar items (but may not, except as provided
below, utilize hand trucks or similar devices to effect such deliveries), and
(ii) during the Bank X Control Period only, for the movement, from one Premises
Floor to another (but not between the Premises and the Building's lobby), of
packages and boxes by hand truck or similar device, provided, that (x) such
packages or boxes shall not be larger than the size of packages and boxes
normally handled by package delivery services such as Federal Express or UPS,
and (y) such packages and boxes shall not consist or contain heavy furniture or
equipment; it being agreed that Tenant shall be responsible for any repairs and
replacements to the passenger elevators the need for which arises from any uses
pursuant to this sentence. In addition, Tenant, during the prosecution of
Alterations, may allow its construction personnel to use the Building's fire
stairs to travel from one Premises Floor to another (but not between the
Premises and the Building's lobby); provided, however, that (A) Tenant shall
cause such fire stairs to be kept unobstructed and clean and free and debris at
all times, and shall cause all the doors on the Premises Floors which lead to
the fire stairs to be kept closed when not in actual use, and (B) Tenant shall
be responsible for any repairs and replacements to the fire stairs the need for
which arises from any use pursuant to this sentence.
15.06. (a) Landlord, during Business Hours, shall provide
Tenant with freight elevator service to each Premises Floor (and to other floors
of the Building in connection with Tenant's performance of any permitted
Alterations or permitted maintenance, repairs or replacements of Tenant's
Improvements on such other floors) on a non-exclusive, first-come first-served
basis (i.e., no advance scheduling). Tenant, however, shall not have the right
to use any of the Building's freight elevators during Business Hours for bulk
deliveries (i.e., deliveries requiring multiple trips) of construction
materials, furniture or equipment.
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(b) If Tenant shall require freight elevator service
other than during Business Hours ("OVERTIME FREIGHT ELEVATOR SERVICE"), then
Landlord shall provide the same on a first-reserved first-served basis, (i) upon
notice from Tenant that is received by Landlord no less than five (5) hours' in
advance, for evening overtime service after 6:00 p.m. on Business Days, (ii)
upon notice from Tenant that is received by Landlord before Noon on the
preceding Business Day, for overtime service on non-Business Days or (iii) upon
notice from Tenant that is received by Landlord before Noon on the preceding
Business Day, for morning overtime service before 8:00 a.m. on Business Days.
Tenant, within thirty (30) days after its receipt of a written demand therefor,
shall pay to Landlord the applicable Overtime Freight Rate (as hereinafter
defined) for any Overtime Freight Elevator Service. As of the date hereof, the
"OVERTIME FREIGHT RATE" is $55 per hour per freight elevator, with (x) a minimum
2-hour charge of $110 per freight elevator for any period of service commencing
at 6:00 p.m. on a Business Day, and (y) a minimum 4-hour charge of $220 per
freight elevator for any other period of service (it being agreed that the
minimum charge for any period of service may satisfied collectively by Tenant
and one or more other tenants or occupants of the Building). The Overtime
Freight Rate (as well as the minimum charges derived therefrom) shall be
Adjusted by CPI.
(c) Notwithstanding anything to the contrary contained
in the foregoing provisions of this Section 15.06, Tenant, during the Section
15.06(c) Period (as hereinafter defined) only, shall have the exclusive right,
both during and after Business Hours, to use the Designated Freight Elevator (as
hereinafter defined); provided, however, that (I) such exclusivity shall not
apply during any period during the Section 15.06(c) Period that any one of the
Building's three freight elevators is out of service, (II) Landlord, even at
times during the Section 15.06(c) Period when such exclusivity does apply, shall
have the right to use, or permit to be used, the Designated Freight Elevator for
emergency and/or critical deliveries (it being understood that any critical
delivery shall be limited to a single trip), and (III) Tenant shall still be
obligated to pay the Overtime Freight Rate for the use of the Designated Freight
Elevator after Business Hours during the Section 15.06(c) Period. As used
herein, the following terms shall have the following meanings: (A) the "SECTION
15.06(C) PERIOD" shall mean the period commencing on the date hereof and ending
on the first to occur of (i) December 31, 1994, and (ii) the date that the
Business Occupancy Date shall have occurred with respect to at least six (6)
Premises Floors; and (B) the "DESIGNATED FREIGHT ELEVATOR" shall mean the
freight elevator in the Building which shall be designated as such by Landlord
pursuant to this Section 15.06(c) (which freight elevator shall be designated
from the Building's two available freight elevators which generally provide
non-exclusive service (i.e., other than the freight elevator exclusively
dedicated to PSI pursuant to its lease)), it being agreed that Landlord may
change the Designated Freight Elevator from time to time during the Section
15.06(c) Period. The second sentence of Section 15.06(a) shall not be applicable
to the Designated Freight Elevator during any portion of the Section 15.06(c)
Period during which Tenant shall have the exclusive right to use the Designated
Freight Elevator pursuant to this Section 15.06(c).
(d) Freight elevator service shall include, whenever
Tenant shall so elect, use of a loading dock and there shall be no separate
charge therefor.
15.07. (a) Landlord shall cause the Premises and the
applicable portions of the Base Building (including the exterior
windows on each Premises Floor), to be cleaned in accordance with
the cleaning specifications set forth on Exhibit L annexed hereto
(herein called the "CLEANING SPECIFICATIONS"). Tenant shall pay
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to Landlord, within thirty (30) days after written demand, the additional costs
incurred by Landlord for (i) extra cleaning work in the Premises required
because of (x) carelessness, misuse or neglect on the part of Tenant or any
Tenant Party or its or their visitors, (y) interior glass partitions or unusual
quantity of interior glass surfaces, and (z) materials or finishes installed by
or on behalf of Tenant which are unusually difficult or time-consuming to clean,
and (ii) removal from the Premises and the Building of any refuse and rubbish of
Tenant in excess of that ordinarily accumulated in business office occupancy,
including, without limitation, kitchen refuse and rubbish, and (iii) removal
from the Premises and the Building of any refuse and rubbish of Tenant at times
other than Landlord's standard cleaning times.
(b) Notwithstanding the foregoing provisions of Section
15.07(a), Landlord shall not be required to clean any portions of the Premises
used for (A) kitchen, cafeteria or dining facilities, kitchenettes, pantries and
vending machine areas, (B) private lavatories or toilets installed by Tenant or
any Tenant Party, (C) any gymnasium or exercise facilities, (D) printing, or (E)
other special purposes requiring greater or more difficult cleaning work than
office areas (it being agreed that trading floor use is not such a special
purpose); and Tenant agrees, at Tenant's expense, to retain Landlord's cleaning
contractor (and no other cleaning contractor) to perform such cleaning;
provided, however, that if (i) Landlord's cleaning contractor proposes to charge
Tenant for such additional cleaning services at rates which, in the aggregate,
are materially in excess of the market rates for such additional cleaning
services (which "market rates" shall be determined with reference to the rates
charged for such services by cleaning contractors of Similar Buildings), and
(ii) Tenant, prior to retaining Landlord's cleaning contractor for such
additional cleaning services, notifies Landlord thereof in writing, then
Landlord shall reimburse Tenant the amount of such excess (unless Landlord, at
its option, shall, in lieu thereof, grant Tenant the right to employ its own
contractor to perform such additional cleaning services).
(c) Landlord, its cleaning contractor and their
respective employees shall have access to the Premises after 6:00 p.m. and
before 6:00 a.m. and shall have the right to use, without charge therefor, all
light, power and water in the Premises reasonably required to clean the Premises
as required under this Section 15.07.
(d) Tenant shall not clean, nor require, permit, suffer
or allow any windows in the Premises to be cleaned, from the outside in
violation of Section 202 of the Labor Law, or any other applicable law.
(e) Notwithstanding anything to the contrary contained
in the foregoing provisions of this Section 15.07, Landlord shall have no
obligation to provide any of the aforesaid cleaning services to any Premises
Floor (or the Premises thereon) prior to the Business Occupancy Date therefor.
15.08. Landlord shall provide life safety service through the
Building's Class E System to the DGPs serving the Premises. Landlord shall
provide Tenant with at least eight (8) points on each Premises Floor at which
Tenant may tie-in to the Building's Class E System.
15.09. Except as expressly provided in this Article
15, Landlord shall not be required to provide any services to the
Premises.
15.10. (a) Landlord, subject to Section 15.10(b), (c)
and (d) below, reserves the right, without liability to Tenant
and without it being deemed a constructive eviction, to stop or
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interrupt any heating, elevator, escalator, lighting, ventilating,
air-conditioning, steam, power, electricity, water, chilled water, cleaning or
other service and to stop or interrupt the use of any Building Systems or
Building facilities at such times as may be necessary and only for as long as
may reasonably be required by reason of accidents, strikes, or the making of
alterations, additions, improvements, replacements or repairs or the inability
to secure a proper supply of fuel, gas, steam, water, electricity, labor or
supplies, or by reason of any other similar or dissimilar cause beyond the
reasonable control of Landlord. No such stoppage or interruption shall (i)
result in any liability from Landlord to Tenant (except for any liability, other
than consequential damages, arising out of a violation of the provisions of
Section 15.10(b), (c) and (d) below) or (ii) entitle Tenant to any diminution or
abatement of rent (except as may be expressly provided for in Section 33.01
hereof) or other compensation nor shall this lease or any of the obligations of
Tenant be affected or reduced by reason of any such stoppage or interruption.
(b) Landlord shall not (i) voluntarily effect any
Service Shutdown of electricity without first providing Tenant with at least ten
(10) Business Days notice of the approximate time and duration of such Service
Shutdown, (ii) voluntarily effect any Service Shutdown of any other service
without first providing Tenant with at least five (5) Business Days notice of
the approximate time and duration of such Service Shutdown, (iii) voluntarily
effect or continue a Service Shutdown of electricity, chilled water or make-up
water (as defined below) other than during the hours from 8:00 a.m. Saturday to
8:00 p.m. Sunday, (iv) voluntarily effect or continue a Service Shutdown of
chilled water and make-up water simultaneously; provided, however, that Landlord
may voluntarily effect any Service Shutdown (including without limitation a
Service Shutdown of electricity, chilled water or make-up, or of chilled water
and make-up water simultaneously) at any time or times, and without any
requirement that it give Tenant notice thereof, if (A) the Service Shutdown is
effected by Landlord with a view toward averting or reducing danger to persons
or damage to property (including without limitation damage to any Building
Systems), (B) the Service Shutdown is effected by Landlord in response to any
actual or perceived emergency, (C) the Service Shutdown is effected by Landlord
in response to the directive of a governmental or quasi-governmental authority
or a public utility, or (D) the Service Shutdown is not a Service Shutdown to
electricity, chilled water or make-up water, and does not otherwise materially
affect the operation of Tenant's business in the Premises; provided, further,
however, that, in the cases described in clauses (A), (B) and (C) above,
Landlord shall, if practicable, give Tenant such prior notice of the Service
Shutdown to be effected as shall be reasonable under the circumstances (which
notice may be written or oral), except that Landlord shall never be required to
give notice in cases where it effects a Service Shutdown in response to an
actual or perceived emergency which could imminently result in danger to health
or safety of persons or in substantial damage to property. For purposes of this
Section 15.10(b), the term "SERVICE SHUTDOWN" shall mean (x) a shutdown of one
or more Building System(s) which provide one or more Building Services to
Tenant, or (y) any other act with respect to a Building System which results in
a diminution in the level of the Building Service provided thereby below the
levels required hereunder (other than a de minimis diminution which is not of
electricity); provided, however, that the term "Service Shutdown" shall not
include a shutdown of, or diminution in, either (I) passenger elevator service
(as set forth in Section 15.05 hereof) or (II) freight elevator service (as set
forth in Section 15.06 hereof) (it being agreed that the provisions of Section
15.10(d) below, and not the provisions of this Section 15.10(b), shall apply to
passenger elevator service and freight elevator service). As used herein,
Landlord shall be
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deemed to have "VOLUNTARILY EFFECTED" a Service Shutdown only if Landlord, by
its own direct, intentional and affirmative act, effects such a Service
Shutdown, and Landlord shall be deemed to have "VOLUNTARILY CONTINUED" a Service
Shutdown only if Landlord, by its own direct, intentional and affirmative act or
omission, continues a theretofore effected Service Shutdown. As used in this
Section 15.10(b), the term "MAKE-UP WATER" shall mean the domestic water, if
any, which is furnished to the valved outlet on the roof of the Building from
which Tenant intends to draw domestic water to be used by Tenant as "make-up
water" in connection with Tenant's Cooling Plant (as defined in Article 41
hereof).
(c) If (i) Landlord, pursuant to Section 15.10(b)
above, shall deliver to Tenant a notice indicating that a Proposed Optional
Electricity Service Shutdown (as hereinafter defined) shall occur and setting
forth the scheduled date and time therefor, and (ii) Tenant, on or prior to 5
p.m. of the Business Day immediately following the Business Day that Tenant
receives such notice (time being of the essence), shall deliver (by hand
delivery to the applicable Building Office) a notice (x) requesting that such
Proposed Optional Electricity Service Shutdown be rescheduled for a different
date other than the scheduled date therefor set forth in Landlord's notice, and
(y) setting forth one or more requested rescheduled dates, it being agreed that
no such requested rescheduled date shall be more than two (2) weeks after the
scheduled date set forth in Landlord's notice (which notice of Tenant is herein
called a "TENANT'S SECTION 15.10(C) REQUEST NOTICE"), then, and only in such
events, Landlord shall promptly reschedule the Proposed Optional Electricity
Service Shutdown to occur on one of the requested rescheduled dates set forth in
Tenant's Section 15.10(c) Request Notice (or on some later date which is
consistent with the foregoing provisions of this Section 15.10), unless
Landlord, in its reasonable judgement, determines that another tenant or
occupant of the Building will be inconvenienced (other than to a de minimis
extent) by such rescheduling (in which event Landlord need not reschedule the
Proposed Optional Electricity Service Shutdown and may voluntarily effect the
same on the original scheduled date without regard to Tenant's Section 15.10(c)
Request Notice). In any case where Landlord actually reschedules a Proposed
Optional Electricity Service Shutdown pursuant to the foregoing provisions of
this Section 15.10(c) or otherwise at Tenant's request, Tenant shall reimburse
Landlord all out-of-pocket costs incurred by Landlord in connection with such
rescheduling. As used herein, the term "PROPOSED OPTIONAL ELECTRICITY SERVICE
SHUTDOWN" shall mean any proposed Service Shutdown of electricity which is to be
voluntarily effected by Landlord other than (i) with a view toward averting or
reducing danger to persons or damage to property, (ii) in response to any actual
or perceived emergency, or (iii) in response to the directive of a governmental
or quasi-governmental authority or a public utility. Notwithstanding the
foregoing provisions of this Section 15.10(c), Tenant shall not have the right
to serve more than one Tenant's Section 15.10(c) Request Notice with respect to
any particular Proposed Optional Electricity Service Shutdown.
(d) Landlord shall not (i) during Rush Hours, shutdown
(i.e., take or keep out of service for repairs or any other purpose), any of the
passenger elevators which are required to serve the Premises pursuant to the
provisions of Section 15.05 hereof, (ii) during Mid-Day Hours, shutdown more
than two (2) of the passenger elevators which are required to serve the Premises
pursuant to the provisions of Section 15.05 hereof (except that Landlord may, in
addition, shutdown a third such passenger elevator if such shutdown is
reasonably needed to facilitate work to be performed on or with respect to
either of the first two such passenger elevators which were shutdown), (iii)
during Off Hours, shutdown the passenger elevators which are required to serve
the Premises pursuant to the provisions of Section 15.05
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hereof, such that less than two (2) of such passenger elevators shall then serve
the Premises (or, during any period when the Evening Elevator Number is less
than four (4), such that less than one (1) of such passenger elevator shall then
serve the Premises), or (iv) during any period, shutdown the Building's freight
elevators, such that there is no generally available freight elevator to provide
the service required under Section 15.06 hereof; provided, however, that
Landlord may shutdown any or all of the passenger elevators required to serve
the Premises pursuant Section 15.05 and/or any or all of the Building's freight
elevators, at any time or times, if (A) the shutdown is effected by Landlord
with a view toward averting or reducing danger to persons or damage to property
(including without limitation damage to any elevators), (B) the shutdown is
effected by Landlord in response to any actual or perceived emergency, or (C)
the shutdown is effected by Landlord in response to the directive of a
governmental or quasi-governmental authority or a public utility. As used
herein, (I) the term "RUSH HOURS" shall mean the hours from 7:00 a.m. to 9:00
a.m. and the hours from 4:00 p.m. to 6:00 p.m., Mondays through Fridays (other
than Holidays), (II) the term "MID-DAY HOURS" shall mean the hours from 9:00
a.m. to 4:00 p.m., Mondays through Fridays (other than Holidays), and (III) the
term "OFF HOURS" shall mean all hours on all days other than Rush Hours and
Mid-Day Hours.
15.11. Only Landlord or persons approved by Landlord (which
approval shall not unreasonably be withheld) shall be permitted to furnish or
sell laundry, linen, towels, drinking water, ice, food, beverages, bootblacking,
barbering and other similar supplies and services to tenants. Such persons
approved by Landlord may contract directly with Tenant. Landlord may fix the
reasonable circumstances under which such supplies and services are to be
furnished or sold. Landlord expressly reserves the right to exclude from the
Building any person not so approved by Landlord. However, Tenant, its regular
office employees or invitees may personally bring food or beverages into the
Building or order the same for delivery for consumption within the Premises
solely by Tenant, its regular office employees or invitees.
15.12. Landlord, after installing the Steam Outlets (as
hereinafter defined), shall furnish steam to the Steam Outlets, at a aggregate
level which, subject to Tenant making proper connection to such outlets, will
enable Tenant to draw at least 3000 pounds of steam per hour, in the aggregate,
from such outlets. Tenant shall have the right to draw steam from the Steam
Outlets up to, but not in excess of, 3000 pounds of steam per hour. Tenant,
prior to drawing any steam from the Steam Outlets, shall install a steam meter
conforming to the meter specifications set forth on Exhibit V-2 attached hereto
which shall measure the amount so drawn. Tenant, from time to time within thirty
(30) days after being billed therefor, shall pay Landlord for all steam drawn by
Tenant, as measured by such steam meter, in amounts determined by applying the
applicable utility rates (as set forth on applicable utility rate schedule),
excluding sales tax, to the steam so drawn. Tenant shall also pay, and Landlord
shall remit to the appropriate governmental agency, all sales tax payable on the
amounts set forth in the preceding sentence. Landlord, at its expense, shall
install the Steam Outlets on or prior to the date which is six (6) weeks after
the date that Tenant shall designate, by written notice to Landlord, the floor
on which it will initially locate its cafeteria, subject, however, to delays
occasioned by one or more Events of Force Majeure and/or one or more delays
occasioned by Tenant. As used herein, the "STEAM OUTLETS" shall mean (i) a 3
inch valved outlet, with a 1-1/2 inch medium pressure condensate return line,
which shall be located on the Premises Floor which Tenant designates as the
floor on which it will initially locate its cafeteria, and (ii) a 3 inch valved
outlet, with a 1-1/2 inch
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medium pressure condensate return line, which shall be located on the Premises
Floor which is immediately below such floor.
15.13. Landlord hereby grants Tenant the exclusive right to
use the gas riser now serving the 50th floor of the Building from the point at
which gas service to the 50th floor is now separately metered to the 50th floor
end thereof. Tenant shall make its own arrangements with the utility company for
the furnishing of gas to the Premises. Landlord makes no representation or
warranty whatsoever as to the condition of such gas riser.
15.14. Landlord shall not be liable in any event to Tenant for
any failure, interruption or defect in the supply or character of steam or gas
furnished to the Premises by reason of any act or omission of the public utility
serving the Building with steam or gas or for any other reason not attributable
to Landlord's willful misconduct or negligence (but in no event shall Landlord
be responsible for any consequential damages).
ARTICLE 16
Access and Name of Building
16.01. Except for the space within the inside surfaces of all
walls bounding the Premises, slab ceilings, floors, windows and doors bounding
the Premises (other than any such space used on the date hereof for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or
other Building facilities), all of the Building (including, without limitation,
exterior Building walls, core walls, doors and entrances (or, on any
multi-tenant floor, corridor walls, doors and entrances), any terraces or roofs
and any areas on any Premises Floor which are not included within the Premises
(and further including without limitation the aforementioned space used on the
date hereof for shafts, stacks, pipes, conduits, fan rooms, ducts, electrical or
other utilities, sinks or other Building facilities), and the use thereof, as
well as access thereto through the Premises for the purposes of operation,
maintenance, alteration, addition, improvement, replacement and repair) is
reserved to Landlord, one or more of the other Condominium Parties and/or
persons authorized by either Landlord or one or more of the other Condominium
Parties, and no space or property so reserved shall be deemed to be part of the
Premises.
16.02. (a) Landlord reserves the right, and Tenant shall
permit Landlord and persons authorized by Landlord to install, erect, use,
maintain, repair and replace pipes, ducts and conduits in and through the
Premises; provided, however, that Landlord, after the date hereof, may locate
any such pipe, duct or conduit within the Premises (as opposed to the areas
reserved to Landlord pursuant to Section 16.01 hereof) only if it is not
feasible for Landlord to locate such pipe, duct or conduit within areas reserved
to Landlord pursuant to Section 16.01 hereof; provided, further, however, that,
even in cases where, pursuant to the preceding proviso, Landlord may locate a
pipe, duct or conduit within the Premises, Landlord may only locate such pipe,
duct or conduit within one or more of the Primary Landlord Conduit Areas (as
hereinafter defined), unless it is also not feasible for Landlord to locate such
pipe, duct or conduit within Primary Landlord Conduit Areas, in which event
Landlord may locate such pipe, duct or conduit within one or more of the
Secondary Landlord Conduit Areas.
(b) Landlord, prior to locating any pipe, duct or
conduit within the Premises pursuant to the provisions of Section 16.02(a) above
(whether within any Primary Landlord Conduit Areas or Secondary Conduit Areas),
shall notify Tenant of Landlord's intention to do so, which notice shall contain
an
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adequate description of the location(s) within the Premises in which Landlord
proposes to locate such pipe, duct or conduit (such location(s) being herein
called "LANDLORD'S PROPOSED LOCATION(S)"), it being agreed that any such notice
shall be accompanied by, and include, a floor plan(s) delineating such
location(s) to the extent that such delineation is needed to comprise an
adequate description of such location(s). Tenant, within ten (10) Business Days
after its receipt of such notice, shall have the right, by notice to Landlord
(given within such 10 Business Day period), to designate a different location(s)
within the Premises, or within the areas reserved to Landlord pursuant to
Section 16.01 hereof, in which such pipe, duct or conduit (such different
location(s) are herein called "TENANT'S ALTERNATIVE LOCATION(S)"). So long as it
is physically feasible to locate the pipe, duct or conduit in question in
Tenant's Alternative Location(s), Landlord shall locate the same in Tenant's
Alternative Location(s) rather than Landlord's Proposed Location(s). In any such
case, however, Tenant, within thirty (30) days after any written demand, shall
pay to Landlord an amount equal to Landlord's reasonable estimate of the
incremental cost of locating such pipe, duct or conduit in Tenant's Alternative
Location(s), as opposed to locating the same in Landlord's Proposed Location.
(c) Any pipe, duct or conduit located within the
Premises shall be concealed behind then existing walls, ceilings or raised
floors of the Premises if feasible (and if not feasible, then the same shall be
completely furred at points immediately adjacent to partitioning, columns or
ceilings).
(d) As used in this Section 16.02, (I) the term
"FEASIBLE" shall mean both physically feasible and economically feasible, from
Landlord's perspective, and consistent with all laws and requirements of public
authorities, (II) the term "PRIMARY LANDLORD CONDUIT AREAS" shall mean any of
(x) the areas of the Premises located between the hung and structural ceiling of
the Premises on each Premises Floor, (y) the areas of the Premises located
underneath any raised flooring, and (z) the other areas of the Premises shown
hatched on Exhibit S attached hereto, and (III) the term "SECONDARY LANDLORD
CONDUIT AREAS" shall mean any area of the Premises which is adjacent to (A) any
walls, floors or ceilings bounding the Premises (including without limitation
core and exterior walls) or (B) any areas reserved to Landlord pursuant to
Section 16.01 hereof.
16.03. (a) Subject to the terms of Sections 16.03(b) and
35.15, Landlord and persons authorized by Landlord shall have the right, upon
reasonable prior notice (except that no notice shall be required in the case of
emergency), to enter and/or pass through the Premises at any reasonable times
(or at any time in the case of emergency) for any one or more of the following
purposes: (i) to examine the Premises and to show them to actual and prospective
Condominium Parties or Mortgagees, or prospective purchasers of the Building;
(ii) to make such alterations, additions, improvements, repairs or replacements
in or to the Real Property (excluding, however, the Premises and Tenant's
Improvements located outside the Premises) as Landlord or any other Condominium
Party is required to make or deems reasonably necessary to make, (iii) to make
(x) such alterations, additions or improvements in and to the Premises (and
Tenant's Improvements located outside the Premises) as Landlord is required or
authorized by this lease to make, or (y) such repairs or replacements in and to
the Premises (and Tenant's Improvements located outside the Premises) as
Landlord is required or permitted by this lease or by law to make; (iv) to
provide the services which Landlord is required to provide hereunder; and (v) to
read any utility meters located therein.
(b) Tenant, from time to time (but not more frequently
than twice in any calendar year), may, upon not less
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than thirty (30) days prior written notice to Landlord, designate one or more
discrete portions of the Premises as high security areas (herein called the
"SECURITY AREAS"), provided, that (1) Tenant's notice shall be accompanied by
floor plans of the applicable Premises Floor(s) designating the Security Areas,
and (2) any such designation shall be reasonable in light of Tenant's business
requirements. Landlord shall have no right to enter any Security Areas except
for any entry made (i) for the purpose of operating, maintaining, repairing and
replacing the Building and/or the Building Systems, and (ii) either (x) at times
reasonably designated by Tenant, or (y) at any time in case of emergency. Except
in the case of an emergency, Landlord shall notify Tenant prior to entering the
Security Areas and Tenant shall have the right to have its representative(s)
accompany Landlord's representative(s) during any such entry; provided, however,
that Tenant, at all times during Business Hours (and, upon 24 hours' notice from
Landlord, at any other time), shall make one or more such representatives
available to so accompany Landlord. Landlord shall have no obligation to provide
any services, or make any repairs, to the Security Areas, or to other portions
of the Premises, to the extent that access to the Security Areas is necessary to
provide such services or make such repairs, unless Tenant shall provide Landlord
with access to the Security Areas for purposes of providing such services or
making such repairs at those times that Landlord shall reasonably designate in
respect thereof.
16.04. (a) If at any time any windows of the Premises are
either temporarily darkened or obstructed by reason of any repairs,
improvements, maintenance and/or cleaning in or about the Building (or
permanently darkened or obstructed if required by law), or if any part of the
Building, other than the Premises or access thereto, is temporarily or
permanently closed or inoperable, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this lease. Nothing contained in this Section 16.04(a) shall be deemed to
abrogate any of Landlord's obligations to furnish Building Services, as such
obligations are herein expressly set forth. In addition, this Section 16.04
shall not limit or restrict any abatement or termination right granted Tenant
pursuant to the provisions of Article 19, 20 or 33.
(b) (1) Landlord, except as hereinafter provided in
this Section 16.02(b)(2), shall have the right to cover some or all of the
exterior windows serving the Premises with any Mylar (as hereinafter defined),
but only if (i) Landlord is required to do so by law or requirement of public
authority, or (ii) Landlord elects to do so in order to effect compliance with a
law or requirement of public authority, even though there may be alternative
means of effecting such compliance. The term "MYLAR" shall mean any mylar or any
other transparent window covering which may create a mirror-like effect. Any
Mylar installed by Landlord on the exterior windows serving the Premises shall
be of a grade which is consistent with the top grade of Mylar then customarily
being installed on windows in first-class office buildings located in the
downtown Manhattan business district.
(2) In any case described in Section 16.04(b)(1)(ii)
above, Landlord, not less than thirty (30) days prior to covering any exterior
windows serving the Premises with Mylar, shall give Tenant notice of its
intention to do so (any such notice being herein called a "LANDLORD'S MYLAR
NOTICE"), which notice shall (x) indicate the law or requirement of public
authority in response to which Landlord proposes to so cover such windows, and
(y) whether Landlord proposes to so cover all or less than all of the exterior
windows serving the Premises, and, if less than all, the approximate area(s) of
the windows that Landlord proposes to cover. Tenant, within thirty (30) days
after its receipt of a Landlord's Mylar Notice (time being of the
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essence), may give a written notice to Landlord objecting to Landlord's proposed
covering of exterior windows serving the Premises with Mylar (such notice being
herein called the "TENANT'S MYLAR NOTICE"), which notice shall set forth one or
more proposed alternative means by which Landlord may effect compliance with the
law or requirement of public authority in question (each such alternative means
being herein called a "TENANT MYLAR PROPOSAL"). If Tenant shall give Landlord a
Tenant's Mylar Notice, then, unless Landlord reasonably believes that none of
the Tenant Mylar Proposals set forth therein will effect compliance with the law
or requirement of public authority in question, the following provisions shall
apply: (i) Landlord shall not have the right to proceed with the proposed
covering of exterior windows serving the Premises with Mylar as set forth in
Landlord's Mylar Notice; (ii) Landlord shall have the right to proceed to effect
compliance with the law or requirement of public authority in question by means
of any of the Tenant Mylar Proposals set forth in Tenant's Mylar Notice; and
(iii) Tenant, within thirty (30) days after written demand, shall pay to
Landlord all the incremental costs (if any) incurred by Landlord in effecting
compliance with the law or requirement of public authority in question by means
of such Tenant Mylar Proposal (as opposed to effecting such compliance by means
of the proposed covering of exterior windows of the Premises with Mylar as set
forth in Landlord's Mylar Notice).
16.05. During any Option Period (and following the exercise by
Landlord of any of its Recapture Options) and during the period of two (2) years
prior to the Expiration Date of this lease, Landlord and persons authorized by
Landlord may exhibit the Premises (or the applicable portions thereof) during
Business Hours on Business Days to prospective tenants upon reasonable advance
notice.
16.06. Landlord reserves the right, at any time, without it
being deemed a constructive eviction and without incurring any liability to
Tenant therefor, or affecting or reducing any of Tenant's covenants and
obligations hereunder, to make or permit to be made such alterations, additions
and improvements in or to the Building and the fixtures and equipment thereof
(but not in or to the Premises, except as expressly authorized by any provision
of this lease), as well as in or to the street entrances, doors, halls,
passages, elevators, escalators and stairways thereof, and other public parts of
the Building, as Landlord shall deem necessary or desirable, provided, that no
such change, alteration, addition or improvement shall (a) materially adversely
affect (i) access to the Premises, (ii) the size, configuration or utility of
any of the Core Lavatories, or (iii) the provision of any of the Building
Services, or (b) otherwise affect any of the rights and obligations of Landlord
and Tenant that are expressly set forth in this lease.
16.07. Landlord reserves the right to name the Building and to
change the name or address of the Building at any time and from time to time.
Neither this lease nor any use by Tenant shall give Tenant any easement or other
right in or to the use of any door, passage, concourse or plaza connecting the
Building with any subway or any other building or to any public conveniences,
and the use of such doors, passages, concourses, plazas and conveniences may
upon reasonable prior notice to Tenant (except in the case of emergency), be
regulated, in accordance with the provisions of Article 10 hereof, or generally
discontinued at any time by Landlord.
16.08. If Tenant shall not be personally present to open and
permit an entry into the Premises at any time when for any reason an entry
therein shall be urgently necessary by reason of fire or other emergency,
Landlord or Landlord's agents may forcibly enter the same without rendering
Landlord or such agents
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liable therefor (so long as Landlord or Landlord's agents shall exercise
reasonable care in respect of Tenant's Property) and without in any manner
affecting the obligations and covenants of this lease.
16.09. (a) Tenant acknowledges that, as of the date hereof,
the portion of the Building's ground floor lobby shown hatched on Exhibit M-1
attached hereto and made a part hereof, has been dedicated to exclusively
serving the space demised to PSI pursuant to its lease in the Building (such
dedicated portion of the Building's ground floor lobby being herein called the
"PSI DEDICATED LOBBY"), and that, incident thereto, the PSI Dedicated Lobby may
hereafter be physically separated from the remainder of the Building's ground
floor lobby. Accordingly, neither Tenant nor any Tenant Party, nor any of guests
or invitees of Tenant or any Tenant Party, shall have any rights of ingress to
or egress from the Premises or the Building (or any part thereof) through the
PSI Dedicated Lobby (such ingress and egress to be provided through the other
portions of the Building's ground floor lobby), or any other rights with respect
to PSI Dedicated Lobby. Tenant further acknowledges that PSI has exclusive use
of one of the Building's freight elevators and two of the Building's loading
docks.
(b) (1) For purposes of this Section 16.09(b), the
following terms shall have the following meanings:
(A) "BANK X ELEVATOR LOBBY" shall mean the
portion of the Building's ground floor lobby shown hatched on Exhibit
M-2 attached hereto.
(B) "BANK X CONTROL PERIOD" shall mean the
period commencing on the 47th Floor Commencement Date and ending on the
first date that the Premises no longer include all the Initially
Demised Premises and the 47th Floor Space; provided, however, that if
the Premises no longer include all of such space solely by reason of
one or more terminations of this lease in part pursuant to Article 7
hereof, then the Bank X Control Period shall not end by reason of such
terminations unless and until the same, in the aggregate, result in
Recaptured Space on more than two (2) floors of the Building, which
prior to such termination, were Premises Floors.
(C) "NORTH PARTITION LOCATION" shall mean the
location within the Bank X Elevator Lobby delineated as such on Exhibit
M-3 attached hereto.
(D) "SOUTH PARTITION LOCATION" shall mean the
location within the Bank X Elevator Lobby delineated as such on Exhibit
M-3 attached hereto.
(E) "SECURITY DESK LOCATION" shall mean the
location within Building's ground floor lobby delineated as such on
Exhibit M-3 attached hereto.
(F) "PODIUM LOCATION" shall mean the location
within the Bank X Elevator Lobby delineated as such on Exhibit M-3
attached hereto.
(G) "BANK X CONCOURSE ELEVATOR" shall mean the
passenger elevator serving the Premises and accessible through the Bank
X Elevator Lobby which is delineated as such on Exhibit M-2 attached
hereto.
(2) Tenant, during the Bank X Control Period (as
hereinafter defined), shall, subject to the provisions of Section 16.09(b)(3)
and (4) below, have the right to control ingress and egress to and from the Bank
X Elevator Lobby, and,
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incident thereto, to (i) install a movable rope partition in the North Partition
Location, (ii) install a security desk in the Security Desk Location (such
security desk being herein called "TENANT'S SECURITY DESK"), and to employ and
station up to two (2) security guards at Tenant's Security Desk, (iii) install
one or more telephone and communications cables from Tenant's Security Desk to
the Premises (by way of a 1-1/2 inch conduit running from Tenant's Security Desk
to the nearest communications closet on the retail concourse level of the
Building which can serve the Premises, which 1-1/2 conduit shall be installed by
Landlord, at Tenant's expense, on or prior to the June 30, 1994, subject to
delays occassioned by one or more Events of Force Majeure and/or delays
occasioned by Tenant), and (iv) to install a podium (not to exceed 6 feet in
length) within the Bank X Elevator Lobby at the Podium Location and to employ
and station an additional security guard at such podium. Landlord, throughout
the Bank X Control Period, shall (i) maintain a partition in the South Partition
Location separating the Bank X Elevator Lobby from the PSI Dedicated Lobby, and
(ii) furnish electricity to Tenant's Security Desk at a level sufficient to
allow for the operation of up to two (2) personal computers to be located on
Tenant's Security Desk (which electricity shall be furnished through one or more
electrical conduits which shall be installed by Landlord, at Tenant's expense,
which installation shall be completed by Landlord on or prior to the June 30,
1994, subject to one or more Events of Force Majeure and/or delays occasioned by
Tenant). All installations made pursuant to this Section 16.09(b) shall be done
subject to and in accordance with the provisions of Article 11 hereof, and, for
purposes thereof, such installations shall be deemed Exterior Material
Alterations and Pre-Authorized Alterations.
(3) The rights granted to Tenant pursuant to the
foregoing provisions of this Section 16.09(b) during the Bank X Control Period
shall be subject to and upon the following provisions:
(A) Upon the expiration of the Bank X Control
Period, Tenant shall immediately remove Tenant's Security Desk and any podium,
rope partition or cable then maintained by Tenant (as well as cease any other
indicia of control over ingress and egress to and from the Bank X Elevator
Lobby), and restore the affected areas of the Bank X Elevator Lobby and the
Security Desk Location to their condition prior to such installation, ordinary
wear and tear excepted.
(B) Landlord and any Landlord Party shall have
the absolute right to enter and/or pass through the Bank X Elevator Lobby at any
time or times for any purpose whatsoever (including without limitation (i) to
enter the Premises pursuant to the terms of this lease or (ii) any of the
purposes set forth in Section 16.03 hereof, applied mutatis mutandis, to the
Bank X Elevator Lobby). In addition, persons authorized by Landlord shall have
the right to enter and/or pass through the Bank X Elevator Lobby (x) for the
purpose of entering the Premises pursuant to the terms of this lease, or (y)
otherwise for the purposes set forth in Section 16.03 hereof, applied mutatis
mutandis, to the Bank X Elevator Lobby.
(C) Tenant shall exercise the rights granted to
it under this Section 16.09(b) during the Bank X Control Period in a manner so
as to comply with all laws and requirements of public authorities relating
thereto, and, notwithstanding anything to the contrary contained in Article 8
hereof, shall comply with all laws or requirements of public authorities to the
extent that the need for compliance therewith arises out of Tenant's exercise of
any of its rights under this Section 16.09(b). In addition, Tenant shall
exercise the rights granted to it under this Section 16.09(b) in a manner which
will not violate Landlord's union contracts affecting the Real
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Property, or create any work stoppage, picketing, labor disruption or dispute or
any other interference (other than de minimis interference) with the operation
of the Building. The provisions of this Section 16.09(b)(3)(C) shall not be
deemed to limit Tenant's obligations under any other provision of this lease.
(D) At all times during the Bank X Control
Period, (i) Tenant's Security Desk shall be a desk of the same quality, type,
color and style as the security desk(s) then maintained by Landlord in the
Building's ground floor lobby, and (ii) any rope partition or podium shall be of
a quality, type, color and style which is consistent with the remainder of the
Building's ground floor lobby. Tenant, prior to installing Tenant's Security
Desk in the Security Desk Location or any rope partition, podium or cable in the
Bank X Elevator Lobby, shall obtain Landlord's written consent thereto (which
consent shall not be unreasonably withheld, provided, that the same are
consistent with the first sentence of this Section 16.09(b)(3)(D)). Tenant shall
perform any such installation consistent with the applicable provisions of
Article 11 hereof. Tenant, throughout any Bank X Control Period, shall maintain
Tenant's Security Desk and any rope partition, podium or cable in good order and
repair.
(E) The rights granted to Tenant under this
Section 16.09(b) shall in no event be construed to grant to, or create for,
Tenant any leasehold or any other similar interest in the Bank X Elevator Lobby
or the Security Desk Location during any period, it being understood that
Tenant's rights in respect of the Bank X Elevator Lobby and the Security Desk
Location shall be only as expressly provided herein. Without limiting the
generality of the foregoing, Tenant shall have no right to make any Alterations
(or otherwise place any property) in (i) the Security Desk Location other than
the installation of Tenant's Security Desk as expressly authorized above, or
(ii) the Bank X Elevator Lobby, other than the installation of rope partition
and podium as expressly authorized above. In no event shall anything contained
in this Section 16.09(b) ever be deemed to grant Tenant any rights, of any kind
or nature, outside of the Bank X Elevator Lobby and the Security Desk Location.
(4) If, at anytime during the Bank X Control Period,
any Landlord Occupant (as hereinafter defined) shall lease or otherwise occupy
any leasable area of the Building which is serviced by one or more passenger
elevators accessible only through the Bank X Elevator Lobby, then Tenant shall
allow each such Landlord Occupant, its subtenants and its or their employees,
contractors, visitors, guests, licensees and invitees access to and through the
Bank X Elevator Lobby (24 hours a day, 7 days a week), for ingress and egress,
on the same basis and subject only to the same security requirements as those
imposed by Tenant upon its employees, contractors, visitors, guests, licensees
and invitees, as the case may be; provided, further, that, in all events, any
security requirement imposed upon any Landlord Occupant, its subtenants or its
or their employees, contractors, visitors, guests, licensees or invitees shall
be reasonable and customary (and at no charge to any such persons). Landlord, at
its option, may elect to submit any dispute as whether any security requirement
imposed upon any Landlord Occupant, its subtenants or its or their employees,
contractors, visitors, guests, licensees or invitees is reasonable and customary
to arbitration in accordance with the provisions of Article 40 (in which
arbitration the sole issue to be determined shall be whether such security
requirement is reasonable and customary). As used herein, the term "LANDLORD
OCCUPANT" shall mean any of Landlord, any Condominium Party or any tenant or
subtenant of Landlord or any Condominium Party, or any other party claiming by
through or under Landlord or any Condominium
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Party; excluding, however, Tenant and Tenant's subtenants (other than any of
Tenant's subtenants which are also direct tenants or direct subtenants of
Landlord).
(5) (A) Tenant acknowledges that the Bank X Concourse
Elevator is an essential means of travel for disabled persons between the retail
concourse (i.e. the first level below the Building lobby level) and the Building
lobby. Accordingly, during the Bank X Control Period (both during and outside of
Business Hours), Tenant shall permit disabled persons (and persons assisting
disabled persons) desiring to travel between the Building lobby and the retail
concourse access through the Bank X Elevator Lobby to or from the Bank X
Concourse Elevator. During the Bank X Control Period, the Bank X Concourse
Elevator shall serve the retail concourse only to provide the access required
under this Section 16.09(b)(5) for disabled persons (and persons assisting
disabled persons).
(B) In order to allow Tenant to maintain
security for the Premises while permitting the access required under Section
16.09(b)(5)(A) above during Business Hours, Landlord and Tenant, during Business
Hours, shall follow the procedures set forth on Exhibit Z attached hereto or
such alternative procedures as shall be proposed by Landlord and approved by
Tenant; it being agreed that Tenant's approval of any such alternative
procedures shall not be unreasonably withheld unless the proposed alternative
procedures (x) afford Tenant less security than the procedures set forth on
Exhibit Z attached hereto, or (y) result in the Bank X Concourse Elevator being
unavailable for a greater duration of time during Business Hours than is the
case under the procedures set forth on Exhibit Z attached hereto.
Notwithstanding the foregoing provisions of this Section 16.09(b)(5), if, and to
the extent, that any laws or requirements of public authorities (I) shall, at
anytime, require changes to the then applicable procedures, then Landlord and
Tenant shall promptly implement such changes to the procedures so as to fully
comply with such law or requirement, even if the procedures as changed (x)
afford Tenant less security than the procedures set forth on Exhibit Z attached
hereto, or (y) result in the Bank X Concourse Elevator being unavailable for a
greater duration of time during Business Hours than is the case under the
procedures set forth on Exhibit Z attached hereto, or (II) shall, at anytime,
require that elevator access between the retail concourse and the Building lobby
be available without any procedures for disabled persons (i.e., available
without their being required to obtain the assistance of any Building
personnel), then, for the remainder of the Bank X Control Period, then Landlord
and Tenant shall have no further obligation to comply with any procedures (but
Landlord, at Tenant's request, shall cause the Bank X Concourse Elevator, during
the balance of the Bank X Control Period, to serve only the retail concourse and
the Building lobby during Business Hours); it being further agreed that in any
case that either the provisions of clause (I)(x) of this sentence or the
provisions of clause (II) of this sentence are applicable, Tenant, for the
balance of the Bank X Control Period, shall be entitled to employ an additional
security guard (i.e., a security guard in addition to those to which Tenant is
entitled to employ pursuant to Section 16.09(b)(2) hereof), which additional
security guard shall be stationed within the Bank X Elevator Lobby, the Bank X
Concourse Elevator or the Premises. So long as security guards are used under
the then existing aforementioned procedures, Landlord and Tenant shall each
employ a security guard at all times so that the same may be followed. Landlord,
at its expense, shall install and maintain any cameras, elevator controls and
other equipment required in connection with such procedures.
(C) No failure by Landlord to comply the
procedures referred to in Section 16.09(b)(5)(B), and no failure by Landlord to
perform any of its other obligations under
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Section 16.09(b)(5)(B), shall entitle Tenant to deprive disabled persons of
access through the Bank X Elevator Lobby to or from the Bank X Concourse
Elevator. Tenant sole remedies in the event of any failure by Landlord to so
comply or perform shall be (i) an action for damages against Landlord in the
amount of the incremental costs incurred by Tenant in maintaining, or
endeavoring to maintain, its security while permitting the access required under
Section 16.09(b)(5)(A) above, by reason of Landlord's failure to so comply or
perform, and/or (ii) an action for specific performance or injunction to compel
Landlord to so comply or perform.
(6) If, at anytime and from time to time during
the Bank X Control Period, Tenant, by written notice to Landlord, shall request
that the hi-rise passenger elevators which serve the Premises Floors pursuant to
Section 15.05 hereof be reprogrammed such that (i) one or more of such passenger
elevators stop first on the 50th floor of the Building, (ii) certain of such
passenger elevators will stop only on certain of the Premises Floors, or (iii)
any previously effected reprogramming pursuant to this sentence be reversed,
then Landlord, at Tenant's expense, shall re-program such passenger elevators,
so that the same shall serve the Premises Floors in accordance with Tenant's
request for the balance of the Bank X Control Period; provided, however, that
(A) the Bank X Concourse Elevator shall always serve the retail concourse level
of the Building for the benefit of disabled persons as provided in Section
16.09(b)(5) above, (B) no Premises Floor (or any other floor of the Building
between the 41st floor thereof and the 50th floor thereof) shall, by reason of
such re-programming, be served by less than four (4) such passenger elevators
during Business Hours and less than three (3) such passenger elevators outside
of Business Hours, (C) no floor of the Building between the 41st floor thereof
and the 50th floor thereof on which there is located any Landlord Occupant
shall, by reason of such re- programming, receive passenger elevator service at
a level below the average level of passenger elevator service provided to the
Premises Floors, and (D) upon the expiration of the Bank X Control Period,
Landlord, at Tenant's expense, may reverse any re-programming done pursuant to
this Section 16.09(b)(6).
16.10. Tenant, and its permitted subtenants, may have a number
of listings in any Building directory maintained by Landlord in the Building's
ground floor lobby (other than in the PSI Dedicated Lobby) equal to (x) Tenant's
Tax Share of the total number of listing spaces/slots on such directory if such
directory is manual (i.e., not computerized) or (y) two hundred (200) listing
space/slots on such directory if such directory is computerized. Landlord, from
time to time, shall make such changes in the listings as Tenant shall request.
16.11. (a) In order to facilitate Tenant obtaining telephone,
fiber optic and/or cable television service for the Premises, Tenant, subject to
and in accordance with the provisions of Article 11 hereof, shall have the
right, from time to time, to install telecommunications conduits from the street
to the Premises Floors, which telecommunications conduits shall run vertically
through Tenant's Stairwell B Enclosure and/or Tenant's Stairwell E Enclosure,
and, to the extent any of such conduits need to run horizontally, the same shall
be run in locations reasonably designated by Landlord; provided, however, that
Tenant's right to install any such telecommunications conduit shall be
conditioned upon (i) Tenant having theretofore installed, or Tenant
contemporaneously therewith installing, either or both of Tenant's Stairwell B
Enclosure and Tenant's Stairwell E Enclosure pursuant to Section 16.14 hereof,
and (ii) there being sufficient space within Tenant's Stairwell B Enclosure
and/or Tenant's Stairwell E Enclosure to install such telecommunications
conduit. Such conduits are herein called "TENANT'S INITIAL COMMUNICATIONS
CONDUITS".
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(b) If, at anytime during the term of this lease,
Tenant shall require or desire additional telecommunications conduits in
addition to Tenant's Initial Communications Conduits, then, so long as the
Premises shall then consist of at least four (4) Full Premises Floors, Tenant,
subject to and in accordance with the provisions of Article 11 hereof, shall
have the right, from time to time, to install additional telecommunication
conduits, which conduits shall run vertically through Tenant's Section 41.09
Enclosures (as hereinafter defined), and, to the extent any of such conduits
need to run horizontally, the same shall be run in locations reasonably
designated by Landlord; provided, however, that Tenant's right to install any
such telecommunications conduit shall be conditioned upon (i) Tenant having
theretofore installed, or Tenant contemporaneously therewith installing Tenant's
Section 41.09 Enclosures pursuant to Section 16.14 hereof, and (ii) there being
sufficient space within Tenant's Section 41.09 Enclosures to install such
telecommunications conduit. Such conduits are herein called "TENANT'S
SUPPLEMENTAL COMMUNICATIONS CONDUITS".
(c) The work required to install either Tenant's
Initial Communications Conduits or Tenant's Supplemental Communications Conduits
is herein called the "TENANT'S COMMUNICATIONS CONDUIT WORK". Tenant's
Communications Conduit Work shall be deemed Exterior Material Alterations and,
subject to the foregoing provisions of this Section 16.11, Pre-Authorized
Alterations under Article 11 hereof.
16.12. Tenant, throughout the term of this lease, shall have
the right to utilize the vents currently located in and serving the Premises for
the purposes for which the same are designed.
16.13. (a) Landlord, throughout the term of this lease, shall
not install, erect or maintain, or allow to be installed, erected or maintained,
either (i) any sign in the ground floor lobby of the Building which faces toward
the Building's north (i.e., Water Street) side entrance, or (ii) any sign on the
Building's north (i.e., Water Street) facade below the fifth (5th) floor of the
Building; unless, in either event, Landlord grants Tenant the right to install,
erect or maintain a sign of substantially the same size and character (to the
aforementioned sign) in a substantially equivalent location (to the location in
which the aforementioned sign is so installed, erected or maintained), which
sign installed, erected or maintained by Tenant would be installed, erected and
maintained pursuant to Article 11 and 13 hereof and, in all events, would bear
only Tenant's name and/or logo. The term "SIGN", as used in this Section
16.13(a), shall mean any sign bearing a company's name, initials or logo (even
if the Building be named for such company); but shall not include names or other
lettering on a Building directory.
(b) Notwithstanding the foregoing provisions of Section
16.13(a) above, if, at anytime during the term of this lease, either (i) Tenant
shall not be Original Tenant, (ii) the Premises shall no longer include at least
five (5) Full Premises Floors (as defined in Article 31 hereof), or (iii)
Original Tenant, together with Affiliates of Original Tenant, shall not be in
actual occupancy of at least 175,000 rentable square feet of space in the
Premises, then, in either such event, (x) the provisions of Section 16.13(a)
above shall no longer apply (and, accordingly, there shall longer be
restrictions on Landlord's right to install, erect or maintain any signs or to
allow the same to be installed, erected or maintained), and (y) if Tenant shall
have theretofore installed, erected and maintained a sign bearing its name
and/or logo pursuant to rights granted to Tenant pursuant to the provisions of
Section 16.13(a) above, then Tenant shall promptly remove such sign from the
Building and restore the
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applicable areas of the Building to their condition prior to the installation or
erection thereof.
16.14. (a) For purposes of this Section 16.14, the
following terms shall have the following meanings:
The "STAIRWELL B ENCLOSURE LOCATION" shall mean
the location on each floor of the Building (being near the Building's internal
stairwell known as "Stairwell B") which is shown hatched on Exhibit T-1 attached
hereto.
The "STAIRWELL E ENCLOSURE LOCATION" shall mean
the location on each floor of the Building (being near the Building's internal
stairwell known as "Stairwell E") which is shown hatched on Exhibit T-2 attached
hereto.
(b) Tenant shall, subject to and in accordance with the
provisions of Article 11 hereof, have the right, from time to time, to:
(1) install one or more enclosures within the
Stairwell B Enclosure Location to house all the conduits to be
installed in such enclosures pursuant to Section 14.02(c) hereof,
Section 16.11(a) hereof and Article 41 hereof, it being understood and
agreed that (i) no such enclosure, or any part thereof (including
without limitation any exterior casing thereof and doors thereto when
closed), shall extend outside of the Stairwell B Enclosure Location,
and (ii) each such enclosure (inclusive of the doors thereto) shall
comply with all laws and requirements of public authorities, and shall
not cause any surrounding area to not comply with all laws and
requirements of public authorities (the enclosure or enclosures
installed pursuant to this Section 16.14(b)(1) are herein collectively
called "TENANT'S STAIRWELL B ENCLOSURE"); and
(2) install one or more enclosures within the
Stairwell E Enclosure Location to house all the conduits to be
installed in such enclosures pursuant to Section 14.02(c) hereof,
Section 16.11(a) hereof and Article 41 hereof, it being understood and
agreed that (i) no such enclosure, or any part thereof (including
without limitation any exterior casing thereof and any doors thereto
when closed), shall extend outside of the Stairwell E Enclosure
Location, and (ii) each such enclosure (inclusive of the doors thereto)
shall comply with all laws and requirements of public authorities, and
shall not cause any surrounding area to not comply with all laws and
requirements of public authorities (the enclosure or enclosures
installed pursuant to this Section 16.14(b)(2) are herein collectively
called "TENANT'S STAIRWELL E ENCLOSURE").
The work required to install and supplement Tenant's Stairwell B Enclosure
and/or Tenant's Stairwell E Enclosure is herein called "TENANT'S ENCLOSURE
WORK". For purposes of applying Article 11 hereof to Tenant's Enclosure Work,
the same shall be deemed Exterior Material Alterations and Pre-Authorized
Alterations.
(c) If Tenant installs Tenant's Stairwell B Enclosure
and/or Tenant's Stairwell E Enclosure, then the following provisions shall
apply: (i) Landlord shall not grant any other tenant or occupant of the Building
entry into either Tenant's Stairwell B Enclosure or Tenant's Stairwell E
Enclosure (it being understood that only Landlord and Tenant shall have a key to
each door providing entry into Tenant's Stairwell B Enclosure and Tenant's
Stairwell E Enclosure); and (ii) except in emergencies, Landlord, prior to
entering either Tenant's Stairwell B Enclosure or Tenant's Stairwell E
Enclosure, shall give Tenant notice thereof (which notice, at Landlord's option,
may be oral notice to Tenant's operations desk (which shall be
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manned 24 hours a day) given immediately prior to such entry), and, in any such
case, Tenant, at Tenant's expense, shall have the right to have Tenant's
representative accompany Landlord throughout the period of Landlord's entry.
Tenant shall have access to each of Tenant's Stairwell B Enclosure and Tenant's
Stairwell E Enclosure solely for purposes of performing (A) Tenant's Enclosure
Work and subsequent permitted Alterations within either Tenant's Stairwell B
Enclosure or Tenant's Stairwell E Enclosure (which access shall be subject to
the provisions of Article 11 hereof, including without limitation the provisions
of Section 11.03(c) hereof), or (B) maintenance, repairs and replacements to
Tenant's Stairwell B Enclosure, Tenant's Stairwell E Enclosure or any Tenant
Improvements located within Tenant's Stairwell B Enclosure, Tenant's Stairwell E
Enclosure (which access shall be subject to the provisions of Article 13 hereof,
including without limitation the provisions of Section 13.01(c)(1) hereof).
16.15. Tenant, for so long as the Premises shall include at
least four (4) Full Premises Floors, shall have the right to utilize, for
routine access amongst the Premises Floors, either or both of the Designated
Fire Stairwells (as hereinafter defined) and, incident thereto, shall have the
right to install either or both a card-key access system and an alarm system
with respect to the doors providing access between the Premises and the
Designated Fire Stairwells; provided, however, that (i) Tenant's right to
utilize the Designated Fire Stairwells shall be non-exclusive, (ii) Tenant's
right to utilize the Designated Fire Stairwells, or to install any card-key
access system or alarm system, shall be subject to the same being in compliance
with all laws and requirements of public authorities (and, without limiting the
generality of the foregoing, Tenant (x) shall recognize and maintain the legally
required number of re-entry floors, and (y) shall not install any card-key
system or any access inhibiting alarm system on any doors between the Premises
and the Designated Fire Stairwells on any re-entry floors), (iii) Tenant's right
to utilize the Designated Fire Stairwells, or to install any card-key access
system or alarm system, shall be subject and subordinate to Landlord's right to
cause the balance of the Building to be in compliance with laws and requirements
of public authorities, and (iv) Tenant shall (x) pay to, or reimburse Landlord,
all incremental costs and expenses incurred by Landlord in connection with, or
arising out of, Tenant's use of the Designated Fire Stairwells, including
without limitation incremental cleaning and insurance costs, and (y) in
accordance with the provisions of Section 18.01 hereof (applied mutatis
mutandis), shall indemnify and hold harmless Landlord from and against any
claims to the extent the same arise out of Tenant's use of the Designated Fire
Stairwells. As used herein, the term "DESIGNATED FIRE STAIRWELLS" shall mean
either or both of the fire stairwells of the Building delineated as Stairwell C
and Stairwell D on Exhibit T-3 attached hereto.
16.16. Tenant, throughout the term of this lease, shall have
the non-exclusive right to utilize the telephone closets located on the Premises
Floors, for purposes of running communications conduits among Premises Floors.
ARTICLE 17
Partnership Tenant
17.01. If Tenant is a partnership (or is comprised of two (2)
or more persons, individually and/or as co-partners of a partnership) or if
Tenant's interest in this lease shall be assigned to a partnership (or to two
(2) or more persons, individually and/or as co-partners of a partnership)
pursuant to this article (any such partnership and such persons are referred to
in this Section 17.01 as "PARTNERSHIP TENANT"), the following
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provisions of this section shall apply to such Partnership Tenant: (a) the
liability of each of the parties comprising Partnership Tenant (other than
limited partners) shall be joint and several, (b) each of the parties comprising
Partnership Tenant hereby consents in advance to, and agrees to be bound by, any
written instrument which may hereafter be executed by Partnership Tenant
changing, modifying or discharging this lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord or renewing or
extending this lease and by any notices, demands, requests or other
communications which may hereafter be given by Partnership Tenant, (c) any
bills, statements, notices, demands, requests or other communications given or
rendered to Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, and (d) if Partnership Tenant shall admit new general
partners, all of such new general partners shall, by their admission to
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of this lease on Tenant's part to be observed and
performed.
17.02. (a) Notwithstanding anything to the contrary contained
in Section 17.01 above, except as provided in Section 17.02(b), no general or
limited partner of Original Tenant shall have any personal liability under this
lease and any judgment hereunder or related hereto taken or rendered against
Original Tenant shall be enforceable only against the property of Original
Tenant.
(b) Notwithstanding the provisions of Section 17.02(a)
above, (1) if at any time Original Tenant (x) shall dissolve (other than
pursuant to, or as a result of, insolvency proceedings) and (y) shall distribute
its assets without adequately providing for any and all of its obligations and
liabilities under this lease, then all persons who were general partners of
Original Tenant immediately prior to the dissolution shall be personally and
jointly and severally liable to Original Tenant, for the benefit of Landlord, to
the extent of any loss, cost, damage or injury which Landlord may suffer as a
result of the failure to make adequate provision for such obligations and
liabilities, and (2) the provisions of Section 17.02(a) shall not relieve any
general or limited partner of Original Tenant from any obligation to restore to
Original Tenant any distributions of cash, property or other assets by Original
Tenant made to such partner which (x) were made at any time when the distributor
was insolvent or (y) resulted in the distributor's becoming insolvent. For
purposes of this lease, Original Tenant shall be "insolvent" if (a) it is
generally unable to pay its debts and other liabilities as they become due or
(b) the sum of its debts is greater than all of its property at a fair valuation
(taking into account this lease and the liabilities of the tenant hereunder).
ARTICLE 18
Indemnification and Non-Liability
18.01. Tenant shall indemnify and hold harmless Landlord and
all Landlord Parties from and against any and all claims (to the extent in
excess of any sums reimbursed by insurance or, which would have been so
reimbursed if Landlord had maintained the insurance required to be maintained by
it hereunder) to the extent that the same arises from (a) the conduct or
management of the Premises or of any business therein, or any condition created
(other than by Landlord or any Landlord Party or any contractor of Landlord or
any Landlord Party) in, at or upon the Premises, (b) the negligence or willful
misconduct of Tenant or any Tenant Party, or of any contractor of Tenant or any
Tenant Party, (c) any accident, injury or damage whatever (except
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to the extent caused by any negligence or willful misconduct of Landlord or any
Landlord Party or any contractor of Landlord or any Landlord Party) occurring
in, at or upon the Premises, or (d) any breach or default by Tenant in the full
and prompt payment and performance of Tenant's obligations under this lease;
together, subject to the provisions of this Section 18.01, with all costs,
expenses and liabilities incurred in or in connection with each such claim or
any action or proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses. If any such claim is asserted against
Landlord and/or any Landlord Party, Landlord shall give Tenant prompt notice
thereof. If Tenant shall, in good faith, believe that such claim is or may not
be within the scope of the indemnity set forth in this Section then, pending
determination of that question, Tenant shall not be deemed to be in default
under this lease by reason of its failure or refusal to indemnify and hold
harmless Landlord or any Landlord Party therefrom or to pay such costs, expenses
and liabilities, but if it shall be finally determined by a court of competent
jurisdiction that such claim was within the scope of the indemnity set forth in
this Section then Tenant shall be liable for any judgement or reasonable
settlement or any reasonable legal fees incurred by the party entitled to
indemnity hereunder. If the issuer of any insurance policy maintained by Tenant
shall assume the defense of any claim then Landlord shall permit such insurance
carrier to defend the claim with its counsel and (x) neither Landlord nor any
Landlord Party shall settle such claim without the consent of the insurance
carrier (unless such settlement would relieve Landlord or such Landlord Party of
all liability for which Tenant or its insurance carrier may be liable
hereunder), (y) Landlord and all Landlord Parties shall reasonably cooperate, at
Tenant's expense, with the insurance carrier in its defense of any such claim,
and (z) Tenant shall not be liable for the costs of any separate counsel
employed by Landlord or any Landlord Party.
18.02. Landlord shall indemnify and hold harmless Tenant and
all Tenant Parties from and against any and all claims (to the extent in excess
of any sums reimbursed by insurance or, which would have been so reimbursed if
Tenant had maintained the insurance required to be maintained by it hereunder)
to the extent that the same arises from (a) the negligence or willful misconduct
of Landlord or any Landlord Party, or of any contractor of Landlord or any
Landlord Party, or (b) any breach or default by Landlord in the full and prompt
payment and performance of Landlord's obligations under this lease; together,
subject to the provisions of this Section 18.02, with all costs, expenses and
liabilities incurred in or in connection with each such claim or any action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses. If any such claim is asserted against Tenant and/or any Tenant
Party, Tenant shall give Landlord prompt notice thereof. If Landlord shall, in
good faith, believe that such claim is or may not be within the scope of the
indemnity set forth in this Section then, pending determination of that
question, Landlord shall not be deemed to be in default under this lease by
reason of its failure or refusal to indemnify and hold harmless Tenant or any
Tenant Party therefrom or to pay such costs, expenses and liabilities, but if it
shall be finally determined by a court of competent jurisdiction that such claim
was within the scope of the indemnity set forth in this Section then Landlord
shall be liable for any judgement or reasonable settlement or any reasonable
legal fees incurred by the party entitled to indemnity hereunder. If the issuer
of any insurance policy maintained by Landlord shall assume the defense of any
claim then Tenant shall permit such insurance carrier to defend the claim with
its counsel and (x) neither Tenant nor any Tenant Party shall settle such claim
without the consent of the insurance carrier (unless such settlement would
relieve Tenant or such Tenant Party of all liability for which Landlord or its
insurance carrier may be liable hereunder), (y) Tenant and all Tenant Parties
shall
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reasonably cooperate, at Landlord's expense, with the insurance carrier in its
defense of any such claim, and (z) Landlord shall not be liable for the costs of
any separate counsel employed by Tenant or any Tenant Party.
18.03. Notwithstanding any provisions of this lease to the
contrary, neither Landlord nor any Landlord Party shall be liable to Tenant, and
neither Tenant nor any Tenant Party shall be liable to Landlord, for
consequential damages of any kind or nature (including without limitation
consequential damages in respect of (i) any loss of use of the Premises or any
Tenant's Improvements or otherwise, or (ii) any loss of use of, or rents from,
the Building or any part thereof) in any event whatsoever, even if arising from
any act, omission or negligence of such party or from the breach by such party
of its obligations under this lease. Nothing in this Section 18.03 shall ever be
deemed to relieve Tenant of any obligation to pay Fixed Rent and Additional
Charges hereunder.
ARTICLE 19
Damage or Destruction
19.01. If the Building or the Premises shall be partially or
totally damaged or destroyed by fire or other casualty, then, unless this lease
is terminated as hereinafter provided in this Article 19, the following
provisions shall apply:
(a) Landlord shall repair the damage to and restore and
rebuild the Base Building (inclusive of the Base Building Premises Components)
to a condition which is substantially the same condition as (or to a better
condition than) the condition of the same immediately prior to the fire or other
casualty; excluding, however, (1) those portions of the Base Building which do
not affect, or affect only to a de minimis extent, (i) Tenant's use and
occupancy of the Premises, (ii) access to the Premises, (iii) the provision of
Building Services to the Premises, and (iv) Tenant's ability to perform
Alterations which would otherwise be permitted hereunder, and (2) in all events,
Tenant's Improvements and Tenant's Property; all such repair, restoration and
rebuilding work being herein called the "LANDLORD RESTORATION WORK". Landlord
shall commence the Landlord Restoration Work on or in respect of each Premises
Floor with due diligence after the Landlord Restoration Start Date (as
hereinafter defined) for such Premises Floor and, subject to Events of Force
Majeure, shall prosecute the same to completion with diligence and continuity.
(b) Tenant may, but shall not be required to, perform
the Tenant Restoration Work (as hereinafter defined); provided, however, that
Tenant shall be required to remove all debris, and to remove or clean or repair,
as it shall elect, any or all Tenant's Improvements, but shall not be required
to replace any Tenant's Improvements so removed. As used herein, the "TENANT
RESTORATION WORK" shall mean all the repairs, restoration and rebuilding
required to restore the Tenant's Improvements to their condition immediately
prior to the fire or other casualty. All Tenant Restoration Work shall be deemed
Alterations for the purpose of Article 11, and Tenant, to the extent it is
required or elects to perform the Tenant Restoration Work, shall do so in
accordance with the provisions thereof, provided, however, that Landlord's
approval of the plans and specifications therefor shall not be required to the
extent the Tenant Restoration Work consists of restoring the same Tenant's
Improvements which were damaged or destroyed (unless the same were made in
violation of this lease). Tenant shall commence so much of the Tenant
Restoration Work as it shall be required by the provisions of this Section
19.01(b) to perform on or in
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respect of each Premises Floor promptly after the Tenant Restoration Start Date
(as hereinafter defined) for such Premises Floor, and, subject to Events of
Force Majeure, shall prosecute the same to completion with diligence and
continuity. In addition and in all events, Tenant shall move or remove from the
Premises, as soon as it is feasible to do so, such salvageable Tenant's
Improvements and Tenant's Property as may be reasonably designated by Landlord
as necessary for Landlord to perform the Landlord Restoration Work.
(c) (1) The "LANDLORD RESTORATION START DATE", for any
Premises Floor, shall mean the date ten (10) days after the date that Landlord
shall first have knowledge of the damage or destruction giving rise to the need
for the Landlord Restoration Work on or in respect of such Premises Floor;
provided, however, that (I) in any case where Landlord is required to designate
an Expert (as hereinafter defined) pursuant to Section 19.03 hereof, the
"Landlord Restoration Start Date" for any Premises Floor shall not occur prior
to the date that Tenant receives a statement from the Expert setting forth the
Section 19.03 Estimated Period (as hereinafter defined) (or, if the Section
19.03 Estimated Period is longer than nine (9) months, then prior to the date
that is twenty (20) Business Days after Tenant's receipt of such statement), and
(II) in any case where Landlord designates an Expert pursuant to Section 19.04
hereof, the "Landlord Restoration Start Date" for any Premises Floor shall not
occur until the date that Tenant receives a statement from the Expert setting
forth the Section 19.04 Estimate (as hereinafter defined) (or, if, by reason of
the Section 19.04 Estimate, Landlord shall have a right to terminate this lease
pursuant to Section 19.04, the first date that Landlord no longer has such
termination right). Notwithstanding the foregoing, if, with respect to any fire
or other casualty, Tenant shall notify Landlord that Tenant is waiving any right
to terminate this lease that it might have or come to have under Section
19.03(a)(2), then, from and after the date of such notice, clause (I) of this
Section 19.01(c)(1) and clause (I) of Section 19.01(c)(2) shall each be
disregarded with respect to such fire or other casualty.
(2) The "TENANT RESTORATION START DATE", for any
Premises Floor, shall mean the Ten Day Date (as hereinafter defined) for such
Premises Floor; provided, however, that (I) in any case where Landlord is
required to designate an Expert pursuant to Section 19.03 hereof, the "Tenant
Restoration Start Date" for any Premises Floor shall not occur prior to the date
that Tenant receives a statement from the Expert setting forth the Section 19.03
Estimated Period (or, if the Section 19.03 Estimated Period is longer than nine
(9) months, then the date that is twenty (20) Business Days after Tenant's
receipt of such statement), and (II) in any case where Landlord designates an
Expert pursuant to Section 19.04 hereof, the "Tenant Restoration Start Date" for
any Premises Floor shall not occur until the date that Tenant receives a
statement from the Expert setting forth the Section 19.04 Estimate (or, if, by
reason of the Section 19.04 Estimate, Landlord shall have a right to terminate
this lease pursuant to Section 19.04, the first date that Landlord no longer has
such termination right). Notwithstanding the foregoing, if, with respect to any
fire or other casualty, Landlord shall notify Landlord that Landlord is waiving
any right to terminate this Lease that it might have or come to have under
Section 19.04, then, from and after the date of such notice, clause (II) of this
Section 19.01(c)(2) and clause (II) of Section 19.01(c)(1) shall be disregarded
with respect to such fire or other casualty.
(3) The "TEN DAY DATE", for any Premises Floor,
shall mean the date that is ten (10) Business Days after Landlord shall have
substantially completed enough of the Landlord Restoration Work (if any), that
Tenant shall be able, in
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accordance with good construction practices, to commence prosecution of the
Tenant Restoration Work it will be performing on or in respect of such Premises
Floor (including without limitation any Landlord Restoration Work that is needed
to provide Tenant with the access required to commence such Tenant's Restoration
Work) and shall have notified Tenant thereof in writing; or if, with respect to
any Premises Floor, no such Landlord Restoration Work is applicable, then the
"Ten Day Date" for such Premises Floor shall be the date ten (10) Business Days
after the date on which Tenant first learns of the damage or destruction giving
rise to the need for the Tenant Restoration Work to be performed on or in
respect of such Premises Floor.
19.02. If, on account of fire or other casualty, all or a part
of the Premises shall be rendered untenantable (whether as a result of damage or
destruction to the Premises or damage or destruction to parts of the Building
outside the Premises), then the Fixed Rent, the Base Component of Tax Payments
and the Operating Payments attributable to each portion of the Premises that is
so rendered untenantable shall abate for the period (if any) commencing on the
date that such portion of the Premises first becomes untenantable and ending on
the day preceding the later to occur of the following dates (as applicable):
(a) the earliest to occur of (i) the date that Tenant
shall have substantially completed so much of the Tenant Restoration
Work (if any) as is needed to render such portion of the Premises
tenantable, (ii) the date that Tenant would have substantially
completed so much of the Tenant Restoration Work (if any) as is needed
to render such portion of the Premises tenantable, had Tenant, from and
after the Tenant Restoration Start Date with respect to the Premises
Floor on which such portion of the Premises is located, prosecuted such
work to completion with diligence and continuity (subject to Events of
Force Majeure), and (iii) the date that is seven (7) months after the
Ten Day Date with respect to the Premises Floor on which such portion
of the Premises is located (provided that this subsection (a) shall
only be applicable if Tenant Restoration Work is needed to render such
portion of the Premises tenantable); and
(b) the date upon which Landlord shall have
substantially completed so much of the Landlord Restoration Work as is
needed to allow such portion of the Premises, subject to the completion
of the applicable Tenant Restoration Work, to be made tenantable
(provided that this subsection (b) shall only be applicable if Landlord
Restoration Work is needed to render such portion of the Premises
tenantable);
provided, however, that the aforesaid abatement period with respect to any
portion of the Premises shall not, in any event, extend beyond the day preceding
the date that such portion of the Premises becomes tenantable (e.g., if Tenant,
or any person claiming by, through or under Tenant, shall re-occupy such portion
of the Premises for the purposes demised hereunder, then the aforesaid abatement
with respect to such portion of the Premises shall thereupon automatically
cease).
19.03. (a) If, at anytime during the term of this lease, the
Building shall be damaged or destroyed by fire or other casualty, and, as a
result thereof, 40,000 rentable square feet or more of the Premises are rendered
untenantable (whether as a result of damage or destruction to the Premises or
damage or destruction to parts of the Building outside the Premises), then the
following provisions shall apply:
(1) Landlord, within twenty (20) Business Days
after Landlord has notice of such damage, shall designate an
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independent, reputable contractor, registered architect or licensed professional
engineer, having at least ten (10) years' experience in the applicable areas of
expertise (any such contractor, architect or engineer being herein called an
"EXPERT") to act in accordance with the provisions of this Section 19.03, which
Expert shall be subject to Tenant's approval, which approval shall not be
unreasonably withheld. In any case that Landlord requests Tenant's approval of
one or more designated Experts (together with a brief written description of
each such entity's qualifications), Tenant, within five (5) Business Days after
Tenant's receipt of such request, shall either grant or deny such approval with
respect to each such Expert (it being agreed that Tenant's failure to deny such
approval of any such Expert in a notice setting forth, in reasonable detail, its
reasons therefor, within such five (5) Business Day period shall be deemed an
approval of such Expert). Tenant further agrees that if, in connection with any
fire or other casualty, an Expert has been approved for substantially similar
purposes by a tenant of the Building (other than Tenant) that leases in excess
of 350,000 rentable square feet in the Building, then, with respect to such fire
or other casualty, Tenant's approval of such Expert shall be deemed given.
Within twenty (20) Business Days after an Expert has been approved (or deemed
approved) by Tenant, Landlord shall deliver to Tenant a statement prepared by
such Expert setting forth such Expert's estimate as to the time period (measured
from the date of the fire or other casualty) required for the substantial
completion of so much of the Landlord Restoration Work as is needed to allow the
Premises, subject to the completion of the applicable Tenant Restoration Work,
to be made tenantable (the time period so set forth in such estimate is referred
to as the "SECTION 19.03 ESTIMATED PERIOD").
(2) If the Section 19.03 Estimated Period
exceeds ten (10) months from the date of the fire or other casualty, then Tenant
may elect to terminate this lease by notice to Landlord given not later than
twenty (20) Business Days following receipt of such estimate, which notice shall
set forth the date upon which this lease shall terminate, which date shall in no
event be more than twelve (12) months following the date of Tenant's notice (and
in no event after the Expiration Date). If Tenant makes such election, then this
lease shall terminate upon the termination date set forth in Tenant's notice as
if such date was the Expiration Date.
(3) If (i) Tenant shall not have elected to
terminate this lease pursuant to Section 19.03(a)(2) above (or if Tenant shall
not have been entitled to terminate this lease pursuant to Section 19.03(a)(2)
above), and (ii) as of the Section 19.03 Outside Date (as defined below),
Landlord shall not have effected the substantial completion of so much of the
Landlord Restoration Work as is needed to allow the Premises, subject to the
completion of the applicable Tenant Restoration Work, to be made tenantable,
then Tenant, as its sole remedy on account thereof, may elect to terminate this
lease by notice to Landlord given not later than thirty (30) days following
Section 19.03 Outside Date, which notice shall set forth the date upon which
this lease shall terminate, which date shall in no event be more than twelve
(12) months after the date of Tenant's notice (and in no event after the
Expiration Date). The term "SECTION 19.03 OUTSIDE DATE", with respect to any
fire or other casualty, shall mean the later to occur of (I) the date that is
sixty (60) days after the last day of the Section 19.03 Estimated Period, and
(II) the date that is ten (10) months after the date of the fire or other
casualty; except that the Section 19.03 Outside Date shall be postponed, but not
by more than additional sixty (60) days, by Events of Force Majeure.
(b) Upon the termination of this lease under any of the
conditions provided above in this Section 19.03,
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Tenant's liability for Fixed Rent, the Base Component of Tax Payments and
Operating Payments shall, subject to the provisions of Section 19.02, be
prorated and adjusted as of the termination date.
19.04. (a) If, at anytime during the term of this lease, the
Building shall be materially damaged or destroyed by fire or other casualty
(whether or not any portion of the Premises is damaged, destroyed or rendered
untenantable), then Landlord, at anytime thereafter (but in no event more than
sixty (60) days after the date of the fire or other casualty), may designate an
Expert to act in accordance with the provisions of this Section 19.04, which
Expert shall be subject to Tenant's approval, which approval shall not be
unreasonably withheld. In any case that Landlord requests Tenant's approval of
one or more designated Experts (together with a brief written description of
each such entity's qualifications), Tenant, within five (5) Business Days after
Tenant's receipt of such request, shall either grant or deny such approval of
each such Expert (it being agreed that Tenant's failure to deny such approval of
any such Expert in a notice setting forth, in reasonable detail, its reasons
therefor, within such five (5) Business Day period shall be deemed an approval
of such Expert). Tenant further agrees that if an Expert has been approved, with
respect to any fire or other casualty, for substantially similar purposes by a
tenant of the Building (other than Tenant) that leases in excess of 350,000
rentable square feet in the Building, then, with respect to such fire or other
casualty, Tenant's approval of such Expert shall be deemed given. At anytime
after an Expert has been approved (or deemed approved) by Tenant (but in no
event more than thirty (30) days after such Expert was approved or deemed
approved), Landlord may deliver to Tenant a statement prepared by such Expert
setting forth such Expert's estimate of (i) the time required to fully repair
and restore the Base Building (measured from the date of the fire or other
casualty) and/or (ii) the cost of such repair and restoration (such estimate
being herein called the "SECTION 19.04 ESTIMATE").
(b) If the Section 19.04 Estimate shall indicate that
the full repair and restoration of the Base Building requires either (i) more
than twelve (12) months (measured from the date of the fire or other casualty)
or (ii) the expenditure of more than forty (40%) percent of the full insurable
value of the Base Building determined as of the date immediately prior to the
casualty (which term "FULL INSURABLE VALUE" shall refer to the replacement cost
of the Building, less the cost of footings, foundations and other structures
below the ground level of the Building), then, in either of such events,
Landlord may terminate this lease by giving Tenant notice to such effect within
twenty (20) Business Days after the date of the Section 19.04 Estimate (but not,
in any event, later than ninety (90) days after such fire or other casualty),
which notice shall set forth the date for the termination of this lease, which
date shall not be less than three (3) months nor more than twelve (12) months
from the date of such notice; provided, however, that Landlord shall not have
the right to terminate this lease pursuant to the foregoing provisions of this
Section 19.04(b) unless, on account of such fire or other casualty, Landlord has
theretofore terminated, or does simultaneously therewith terminate, one or more
Other Tower Part Leases (as hereinafter defined), which, in the aggregate,
demise (at the time of the fire or other casualty) an area equal to or greater
than 75% of the aggregate area demised by all Other Tower Part Leases. If
Landlord makes such election, then this lease shall terminate on the termination
date set forth in Landlord's notice as if the same was the Expiration Date, and
the Fixed Rent, Base Component of Tax Payments and Operating Payments shall,
subject to the provisions of Section 19.02, be prorated and adjusted as of such
termination date. The term "OTHER TOWER PART LEASES", with respect to any fire
or other casualty, shall mean all the leases
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(other than this lease) which, at the time of such fire or other casualty,
demise space in the Tower Part of the Building and do not demise space in the
Base Part of the Building.
19.05. Except as expressly provided in this Article 19,
neither Landlord nor Tenant shall be entitled to terminate this lease on account
of damage or destruction by fire or other casualty. Landlord shall have no
liability to Tenant for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Premises or of the Building
pursuant to this Article 19. Landlord shall prosecute the Landlord Restoration
Work with diligence and continuity (subject to Force Majeure) and consistent
with the provisions of Section 35.15(a) hereof, and, without limiting the
generality of the foregoing, shall use reasonable efforts to complete the
applicable portions of any Landlord Restoration Work prior to end of any Section
19.03 Estimated Period; provided, however, that, notwithstanding anything to the
contrary contained in Section 35.15, in no event shall Landlord ever be
obligated to perform any Landlord Restoration Work except during Business Hours
on Business Days (i.e., the provisions of Section 35.15(b) and (c) shall not
apply to Landlord's Restoration Work).
19.06. Landlord will not be required to carry insurance of any
kind on Tenant's Improvements or Tenant's Property and shall not be required to
repair any damage to or replace Tenant's Improvements or Tenant's Property.
19.07. The provisions of this Article 19 shall be deemed an
express agreement governing any case of damage or destruction of the Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
19.08. Tenant, to the extent it has actual knowledge thereof,
shall give prompt notice to Landlord of any fire or other casualty in or
affecting the Premises.
19.09. If Tenant, pursuant to the provisions of Section 19.02
hereof, shall be entitled to an abatement of any Fixed Rent for any part of the
Premises for any period prior to the Fixed Rent Commencement Date, then the
dollar amount of such abatement of Fixed Rent to which Tenant is so entitled
under Section 19.02 hereof shall be deemed a credit against the first
installments of Fixed Rent payable with respect to such portion of the Premises
after the Fixed Rent Commencement Date.
ARTICLE 20
Eminent Domain
20.01. If the whole of the Building or the Premises shall be
taken by condemnation or in any other manner for any public or quasi-public use
or purpose, this lease and the term and estate hereby granted shall terminate as
of the date of the vesting of title in connection with such taking (herein
called "DATE OF THE TAKING"), and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such date.
20.02. If any part of the Building or the Land shall be so
taken, this lease shall be unaffected by such taking, except that (a) if more
than twenty (20%) percent of the Building shall be so taken, then, in either
event, Landlord may, at its option, terminate this lease by giving Tenant notice
to that effect within ninety (90) days after the Date of the Taking, and (b) if
twenty (20%) percent or more of the rentable area of the Premises shall be so
taken and the remaining rentable area of the
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Premises shall not be reasonably sufficient, in Tenant's reasonable judgement,
for Tenant to efficiently operate its business, then Tenant may terminate this
lease by giving Landlord notice to that effect within ninety (90) days after the
Date of the Taking. This lease shall terminate on the date that such notice from
Landlord or Tenant to the other shall be given, and the Fixed Rent and
Additional Charges shall be prorated and adjusted as of such termination date.
Upon such partial taking and this lease continuing in force as to any part of
the Premises, the Fixed Rent, Tenant's Tax Share and Tenant's Operating Share
shall be reduced and the Base Tax Amount and Base Operating Amount shall be
adjusted, all in the proportion that the area of the Premises taken bears to the
total area of the Premises.
20.03. (a) Landlord shall be entitled to receive the entire
award or payment (herein called the "BUILDING AWARD") in connection with any
taking, without reduction therefrom for any estate vested in Tenant by this
lease or any value attributable to the unexpired portion of the term of this
lease and, except as hereinafter expressly provided in Section 20.03(b) below,
Tenant shall receive no part of such award or payment. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in and to any right to
the value of the unexpired portion of the term of this lease, and, except as
provided in Section 20.03(b) below, any such award or payment.
(b) If any portion of any Building Award is attributed
to any Tenant's Improvements (such portion of any Building Award being herein
called the "T.I. PORTION"), then Landlord, promptly after the final
determination of such Building Award (and the T.I. Portion thereof) and its
receipt of the same, shall pay to Tenant an amount equal to the T.I. Portion.
(c) Nothing contained in this Section 20.03 shall be
deemed to prevent Tenant from maintaining a separate action, or making a
separate claim in any condemnation proceedings, for Tenant's Improvements,
Tenant's Property and moving expenses; provided, however, any such award shall
not result in a reduction of any Building Award.
20.04. If the temporary use or occupancy of all or any part of
the Premises shall be taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the term of this lease (any such
taking being herein called a "TEMPORARY TAKING"), then (i) this lease shall be
and remain unaffected by such taking and Tenant shall continue to be responsible
for all of its obligations hereunder insofar as such obligations are not
affected by such taking and shall continue to pay in full the Fixed Rent and
Additional Charges when due, (ii) Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award for such temporary
taking which represents compensation for the use and occupancy of the Premises,
for the temporary taking of Tenant's Improvements, Tenant's Property and for
moving expenses, and (iii) Landlord shall be entitled to receive that portion of
the award, if any, for such temporary taking which represents reimbursement for
the cost of restoring the Premises. If the period of temporary use or occupancy
shall extend beyond the Expiration Date of this lease, that part of the award
which represents compensation for the use and occupancy of the Premises (or a
part thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much thereof as represents the
period after such Expiration Date.
20.05. In the event of a taking of less than the whole of the
Building and/or the Land which does not result in termination of this lease, or
in the event of a temporary taking of all or any part of the Premises which does
not result in a
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termination of this lease, (a) Landlord, at its expense, and whether or not any
award or awards shall be sufficient for the purpose (except as provided below),
shall proceed with reasonable diligence to perform the Landlord's Condemnation
Work (as defined below), and (b) Tenant, at its expense, and whether or not any
award or awards shall be sufficient for the purpose, shall have the right (but
shall not be obligated) to perform the Tenant's Condemnation Work (as defined
below). The "LANDLORD'S CONDEMNATION WORK" shall mean, the work necessary to
repair the remaining parts of the Building and the Premises (other than the
Tenant's Improvements and Tenant's Property) to substantially their former
condition to the extent that the same may be feasible (subject to reasonable
changes which Landlord shall deem desirable) and so as to constitute a complete
and rentable Building and Premises. The "TENANT'S CONDEMNATION WORK" shall mean
the work necessary to repair the Tenant's Improvements and Tenant's Property, to
substantially their former condition to the extent that the same may be
feasible, subject to reasonable changes; such work shall be deemed Alterations.
ARTICLE 21
Surrender
21.01. On the Expiration Date, or upon any earlier termination
of this lease, or upon any reentry by Landlord upon the Premises pursuant to
Article 23, Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and in good order, condition and repair, except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this lease or Tenant is not required under this lease to repair or
restore, and Tenant (i) shall remove those Tenant's Improvements which it is
required to remove pursuant to Article 12 hereof and (ii) shall remove all of
the Tenant's Property except as otherwise expressly provided in this lease.
21.02. No act or thing done by Landlord or its agents shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord and each
Underlying Lessor and Mortgagee (of which Tenant has knowledge) whose lease or
mortgage, as the case may be, provides that no such surrender may be accepted
without its consent.
ARTICLE 22
Conditions of Limitation
22.01. This lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make a general assignment
for the benefit of creditors, or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law (and such petition shall not be dismissed within 120 days after
its filing), or whenever a petition shall be filed by or against (and if
against, such petition shall not be dismissed within 120 days after its filing)
Tenant under the reorganization provisions of the United States Bankruptcy Code
or under the provisions of any law of like import, or whenever a petition shall
be filed by Tenant, under the arrangement provisions of the United States
Bankruptcy Code or under the provisions of any law of like import, or whenever a
permanent receiver of Tenant, or of or for the property of Tenant, shall be
appointed and not removed after a period of 120 days, then Landlord, at any time
after the occurrence of any such event, may give Tenant a notice of intention to
end the term of this lease at the expiration of five days from the date of
service of such
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notice of intention, and upon the expiration of said five-day period this lease
and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the expiration date of this lease, but Tenant shall remain liable for
damages as provided in Article 24.
22.02. This lease and the term and estate hereby
granted are subject to the further limitations that:
(a) if Tenant shall default in the payment of any (i)
Fixed Rent, and such default shall continue for ten (10) days after notice
thereof from Landlord or (ii) Additional Charges, and such default shall
continue for a period of fifteen (15) days after notice thereof from Landlord,
or
(b) if Tenant shall, whether by action or inaction, be
in default of any of its obligations under this lease (other than a default in
the payment of Fixed Rent or Additional Charges) and such default shall continue
and not be remedied as soon as reasonably practicable and in any event within
thirty (30) days after Landlord shall have given to Tenant a notice specifying
the same, or, in the case of a default which cannot with due diligence be cured
within a period of thirty (30) days, if Tenant shall not (x) within said thirty
(30) day period advise Landlord of Tenant's intention to take all steps
necessary to remedy such default, (y) duly commence within said 30-day period,
and thereafter diligently prosecute to completion all steps necessary to remedy
the default and (z) complete such remedy within a reasonable time after the date
of said notice of Landlord, or
(c) if any event shall occur or any contingency shall
arise whereby this lease or the estate hereby granted or the unexpired balance
of the term hereof would, by operation of law or otherwise, devolve upon or pass
to any person, firm or corporation other than Tenant, except as expressly
permitted by Article 7,
then in any of said cases Landlord may give to Tenant a notice of intention to
end the term of this lease at the expiration of ten (10) days from the date of
the service of such notice of intention, and upon the expiration of said ten
(10) days this lease and the term and estate hereby granted, whether or not the
term shall theretofore have commenced, shall terminate with the same effect as
if that day was the day herein definitely fixed for the end and expiration of
this lease, but Tenant shall remain liable for damages as provided in Article
24.
22.03. (a) If Tenant shall have assigned its interest in this
lease, and this lease shall thereafter be disaffirmed or rejected in any
proceeding under the United States Bankruptcy Code or under the provisions of
any Federal, state or foreign law of like import, or in the event of termination
of this lease by reason of any such proceeding, the assignor or any of its
predecessors in interest under this lease, upon request of Landlord given within
ninety (90) days after such disaffirmance or rejection shall (a) pay to Landlord
all Fixed Rent and Additional Charges then due and payable to Landlord under
this lease to and including the date of such disaffirmance or rejection and (b)
enter into a new lease as lessee with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance or rejection and ending
on the Expiration Date, unless sooner terminated as in such lease provided, at
the same Fixed Rent and Additional Charges and upon the then executory terms,
covenants and conditions as are contained in this lease, except that (i) the
rights of the lessee under the new lease, shall be subject to any possessory
rights of the assignee in question under this lease and any rights of persons
claiming through or under such assignee, (ii) such new lease
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shall require all defaults existing under this lease to be cured by the lessee
with reasonable diligence, and (iii) such new lease shall require the lessee to
pay all Additional Charges which, had this lease not been disaffirmed or
rejected, would have become due after the effective date of such disaffirmance
or rejection with respect to any prior period. If the lessee shall fail or
refuse to enter into the new lease within ten (10) days after Landlord's request
to do so, then in addition to all other rights and remedies by reason of such
default, under this lease, at law or in equity, Landlord shall have the same
rights and remedies against the lessee as if the lessee had entered into such
new lease and such new lease had thereafter been terminated at the beginning of
its term by reason of the default of the lessee thereunder.
(b) If pursuant to the Bankruptcy Code Tenant is
permitted to assign this lease in disregard of the restricti