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Sample Business ContractsHome: Sample Business Contracts:
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11 WEST 42 LIMITED PARTNERSHIP,
Landlord
And
MARTHA STEWART LIVING OMNIMEDIA, LLC,
Tenant
--------------------------
AMENDED AND RESTATED LEASE
------------------------
Premises: A Portion of the Eighth and Twenty-Fourth
Floors of 11 West 42nd Street
New York, New York
Dated: March 31st, 1998
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TABLE OF CONTENTS
Article 1 Basic Lease Provisions........................................... 1
Article 2 Premises, Term, Rent............................................ 5
Article 3 Use And Occupancy................................................ 6
Article 4 Condition of the Premises....................................... 7
Article 5 Alterations..................................................... 8
Article 6 Floor Load...................................................... 11
Article 7 Repairs.......................................................... 11
Article 8 Increases In Taxes And Operating Expenses....................... 13
Article 9 Requirements of Law............................................. 18
Article 10 Subordination................................................... 20
Article 11 Services........................................................ 21
Article 12 Insurance, Property Loss Or Damage; Reimbursement................ 24
Article 13 Destruction - Fire Or Other Cause............................... 26
Article 14 Eminent Domain................................................. 28
Article 15 Assignment, Subletting, Mortgage, Etc........................... 29
Article 16 Electricity..................................................... 37
Article 17 Access To Premises.............................................. 38
Article 18 Default......................................................... 40
Article 19 Remedies And Damages............................................ 41
Article 20 Fees And Expenses............................................... 44
Article 21 No Representations By Landlord, Landlord's Approval............. 44
Article 22 End Of Term..................................................... 45
Article 23 Quiet Enjoyment................................................ 46
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Article 24 No Waiver; No Counterclaim...................................... 46
Article 25 Waiver Of Trial By Jury......................................... 47
Article 26 Inability To Perform............................................ 47
Article 27 Notices......................................................... 47
Article 28 Rules And Regulations........................................... 48
Article 29 Partnership Tenant.............................................. 48
Article 30 Vault Space.................................................... 50
Article 31 Broker.......................................................... 50
Article 32 Indemnity....................................................... 51
Article 33 Adjacent Excavation; Shoring................................... 52
Article 34 Miscellaneous................................................... 52
Article 35 Tax Status Of Beneficial Owners................................. 55
Article 36 Security Deposit................................................ 55
Article 37 Right Of First Offer............................................ 57
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EXHIBITS
A - Floor Plans
B - Definitions
C - Description of Landlord's Work
D - Heating, Ventilation and Air Conditioning
Specifications
E - Cleaning Specifications
F - Rules and Regulations
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AMENDED AND RESTATED LEASE
AMENDED AND RESTATED LEASE, made as of the 31st day of March, 1998
between 11 WEST 42 LIMITED PARTNERSHIP (the "Landlord"), a New York limited
partnership, having an office c/o Tishman Speyer Properties, L.P., 520 Madison
Avenue, New York, New York 10022, and MARTHA STEWART LIVING OMNIMEDIA, LLC, a
New York limited liability company (the "Tenant"), having an office at 11 West
42nd Street, New York, New York.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES A portion of the eighth (8th) floor of the Building (the
"8th Floor Premises"), a portion of the twenty-fourth
(24th) floor of the Building (the "24th Floor Premises")
and another portion of the twenty-fourth (24th) floor of
the Building (the "Storage Space"), as particularly shown
on Exhibits A-1 and A-2.
BUILDING The building, fixtures, equipment and other improvements
and appurtenances now located or hereafter erected,
located or placed upon the land known as 11 West 42nd
Street in the City of New York, County of New York and
State of New York.
REAL PROPERTY The Building, together with the plot of land upon which it
stands.
COMMENCEMENT DATE (a) As to the 8th Floor premises:
April 21, 1997.
(b) As to the 24th Floor Premises and the Storage Space:
2/1/99
The date Landlord delivers possession of the 24th Floor
Premises and the Storage Space to Tenant.
RENT COMMENCEMENT (a) As to the 8th Floor Premises:
DATE
January 1, 1998.
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(b) As to the 24th Floor Premises and the Storage Space:
182 days after the Commencement Date in respect of the
24th Floor Premises and the Storage Space.
EXPIRATION DATE April 30, 2010.
TERM The period commencing on the Commencement Date in respect
of the 8th Floor Premises and ending on the Expiration
Date.
PERMITTED USES (a) As to the 8th Floor Premises and the 24th Floor
Premises:
Executive and general offices for the transaction of
Tenant's business.
(b) The Storage Space:
Dead storage.
BASE TAX YEAR (a) As to the 8th Floor Premises:
The real estate tax fiscal year commencing on July 1, 1996
and ending on June 30, 1997.
(b) As to the 24th Floor Premises:
The real estate tax fiscal year commencing July 1, 1998
and ending on June 30, 1999.
BASE EXPENSE YEAR (a) As to the 8th Floor Premises:
Calendar year 1997.
(b) As to the 24th Floor Premises:
Calendar year 1998.
TENANT'S
PROPORTIONATE (a) As to the 8th Floor Space
SHARE
2.56 percent.
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(b) As to the 24th Floor Premises:
.911 percent in respect of Taxes
1.0018 percent in respect of Operating Expenses
AGREED AREA OF
BUILDING 840,049 rentable square feet.
AGREED AREA OF
PREMISES (a) As to the 8th Floor Premises:
21,500 rentable square feet.
(b) As to the 24th Floor Premises:
7,656 rentable square feet.
(c) As to the Storage Space:
760 rentable square feet.
FIXED RENT (a) As to the 8th Floor Premises:
(i) $473,000 per annum ($39,416.67 per month) for the
period commencing on the Rent Commencement Date and ending
on the day preceding the fifth anniversary of the Rent
Commencement Date, both dates inclusive; (ii) $516,000 per
annum ($43,000 per month) for the period commencing on the
fifth anniversary of the Rent Commencement Date and ending
on the day preceding the tenth anniversary of the Rent
Commencement Date, both dates inclusive; (iii) $559,000
per annum ($46,583.33 per month) for the period commencing
on the tenth anniversary of the Rent Commencement Date and
ending on the Expiration Date, both dates inclusive.
(b) As to the 24th Floor Premises:
(i) $290,928 per annum ($24,244 per month) for the period
commencing on the Rent Commencement Date and ending on the
day preceding the fifth anniversary of the Rent
Commencement Date, both dates inclusive; (ii) $321,552 per
annum ($26,796 per month) for the period commencing on the
fifth anniversary of the Rent Commencement Date and ending
on the day preceding
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the tenth anniversary of the Rent Commencement Date, both
dates inclusive; (iii) 352,176 per annum ($29,348 per
month) for the period commencing on the tenth anniversary
of the Rent Commencement Date and ending on the Expiration
Date, both dates inclusive.
(c) As to the Storage Space:
$11,400 per annum ($950 per month) for the period
commencing on the Commencement Date and ending on the
Expiration Date, both dates inclusive.
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant's Tax Payment,
Tenant's Operating Payment, late charges, overtime or
excess service charges and other costs related to Tenant's
failure to perform any of its obligations under this
Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) four percent per annum above the then
current Base Rate charged by Citibank, N.A. or its
successor, or (ii) the maximum rate permitted by
applicable law.
SECURITY DEPOSIT (i) $473,000 for the period commencing on the Commencement
Date and ending on the day preceding the fifth anniversary
of the Commencement Date; (ii) $402,050 for the period
commencing on the sixth anniversary of the Commencement
Date and ending on the day preceding the eighth
anniversary of the Commencement Date; (iii) $331,100 for
the period commencing on the eighth anniversary of the
Commencement Date and ending on the day preceding the
ninth anniversary of the Commencement Date; (iv) $260,150
for the period commencing on the ninth anniversary of the
Commencement Date and ending on the day preceding the
tenth anniversary of the Commencement Date; and (v)
$189,200 for the period commencing on the tenth
anniversary of the Commencement Date and thereafter.
BROKER Cushman & Wakefield, Inc.
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LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by Landlord
and their successors and assigns.
LANDLORD'S $15,312.
CONTRIBUTION:
ALL CAPITALIZED TERMS USED IN THE LEASE TEXT WITHOUT DEFINITION ARE DEFINED IN
EXHIBIT B.
ARTICLE 2
PREMISES, TERM, RENT
SECTION 2.1 LEASE OF PREMISES. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities.
SECTION 2.2 PAYMENT OF RENT. Tenant shall pay to Landlord, without
notice or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank approved by Landlord, (i)
Fixed Rent in equal monthly installments, in advance, on the first (1st) day of
each calendar month during the Term, commencing on the applicable Rent
Commencement Date, and (ii) Additional Rent, at the times and in the manner set
forth in this Lease.
SECTION 2.3 CREDIT. Notwithstanding anything to the contrary contained
in Section 2.2, in lieu of Landlord painting a portion of the 8th Floor
Premises, Tenant shall be entitled to a credit against the Fixed Rent payable
thereunder in respect of the 8th Floor Premises, provided that no Event of
Default has occurred hereunder, of Twenty-Nine Thousand Three Hundred and
Sixty-Two and 50/100 Dollars ($29,362.50) to be applied against the first
monthly installment of Rent accruing hereunder in respect of the 8th Floor
Premises commencing on the Rent Commencement Date in respect thereof.
SECTION 2.4 FIRST MONTH'S RENT. If a Rent Commencement Date in respect
of a portion of the Premises shall occur on a date other than the first day of
any calendar month, Tenant shall pay to Landlord, on such Rent Commencement
Date, a sum equal to the Fixed Rent applicable to such portion of the Premises
for such month multiplied by a fraction, the numerator of which shall be the
number of calendar days in the period from such Rent Commencement Date to the
last day of the month in which such Rent Commencement Date shall occur, both
dates inclusive, and the denominator of which shall be the number of calendar
days in such month.
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SECTION 2.5 INTEREST. If Tenant shall fail to pay any installment or
other payment of Rent when due, interest shall accrue on such installment or
payment as a late charge, from the date such installment or payment became due,
at a rate equal to the Interest Rate.
SECTION 2.6 PRIOR LEASE. This Lease amends, restates and replaces in
its entirety the Lease made as of February 6, 1997, and any amendments or
modifications thereof, and any consents or approvals made by Landlord with
respect thereto (the "Prior Lease"), between Landlord and Tenant from and after
the date of execution and delivery of this Lease, whereupon, after such date,
all of the rights and obligations of Landlord and Tenant with respect to the 8th
Floor Premises, the 24th Floor Premises and the Storage Space shall be governed
and controlled by the provisions of this Lease, except that nothing herein
contained shall be deemed to constitute a release or discharge of Tenant with
respect to any obligation or liability accrued or incurred under the Prior
Lease, and outstanding and unsatisfied on the date of execution and delivery of
this Lease.
ARTICLE 3
USE AND OCCUPANCY
SECTION 3.1 (a) PERMITTED USES. Tenant (together with its wholly owned
subsidiaries and affiliates provided such use is incidental to Tenant's
business) shall use and occupy the Premises for the Permitted Uses and for no
other purpose. Tenant shall not use or occupy or permit the use or occupancy of
any part of the Premises in a manner constituting a Prohibited Use. If Tenant
utilizes the Premises for a purpose which constitutes a Prohibited Use or
violates any Requirement, or which causes the Building to be in violation of any
Requirement, then Tenant shall promptly discontinue such use upon notice of such
violation. Tenant's failure to promptly (and, in all events, within 10 days)
discontinue such use shall be a material default hereunder and Landlord shall
have the right, without Tenant having any further period in which to cure, (i)
to terminate this Lease immediately, and (ii) to exercise any and all rights and
remedies available to Landlord at law or in equity.
(B) LICENSES AND PERMITS. Tenant, at its expense, shall
procure and at all times maintain and comply with the terms and conditions of
all licenses and permits required for the lawful conduct of the Permitted Uses
in the Premises. Landlord represents that the Certificate of Occupancy issued
for the Building permits the use of the Premises (other than the Storage Space)
as offices.
SECTION 3.2 DELIVERY OF PREMISES. Tenant currently occupies the 8th
Floor Premises on the date hereof. Landlord shall not be liable for failure to
give possession of the remainder of the Premises on the Commencement Date
applicable thereto and such failure shall not impair the validity of this Lease
or extend the Term. The provisions of this Article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law or any successor law or ordinance.
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ARTICLE 4
CONDITION OF THE PREMISES
SECTION 4.1 CONDITION. Tenant currently occupies the 8th Floor Premises
on the date hereof. Tenant has inspected the Premises and agrees (i) to accept
possession of each portion of the Premises in the condition existing on the
Commencement Date in respect thereof "as is", (ii) that neither Landlord nor
Landlord's agents have made any representations or warranties with respect to
the Premises or the Building except as expressly set forth herein, and (iii)
except as expressly set forth in Section 5.9 in respect of Landlord's Work,
Landlord has no obligation to perform any work, supply any materials, incur any
expense or make any alterations or improvements to the Premises to prepare the
Premises for Tenant's occupancy. Any work to be performed in connection with
Tenant's initial occupancy shall be referred to hereinafter as the "Initial
Installations". Tenant's occupancy of any part of the Premises shall be
conclusive evidence, as against Tenant, that Tenant accepts possession of such
part of the Premises in its then current condition and at the time such
possession was taken, the Premises and the Building are in a good and
satisfactory condition as required by this Lease.
SECTION 4.2 LANDLORD'S CONTRIBUTION. (a) Landlord agrees to pay to
Tenant an amount not to exceed Landlord's Contribution toward the cost of the
Initial Installations in respect of the 24th Floor Premises, provided that as of
the date on which Landlord is required to make payment thereof pursuant to
Section 4.2(b): (i) this Lease is in full force and effect, and (ii) no Event of
Default then exists. Tenant shall pay all costs of the Initial Installations in
excess of Landlord's Contribution. Landlord's Contribution shall be payable
solely on account of labor directly related to such Initial Installations and
materials delivered to the 24th Floor Premises in connection with such Initial
Installations, except that Tenant may apply up to 5% of Landlord's Contribution
to pay "soft costs", architectural, consulting, engineering and legal fees, and
furniture and equipment (exclusive of computer equipment) acquired for use in
the 24th Floor Premises, incurred in connection with such Initial Installations.
Tenant shall not be entitled to receive any portion of Landlord's Contribution
not actually expended by Tenant in the performance of such Initial Installations
in accordance with this Section 4.2, nor shall Tenant have any right to apply
any unexpended portion of Landlord's Contribution as a credit against Rent or
any other obligation of Tenant hereunder. Upon the completion of such Initial
Installations and satisfaction of the conditions set forth in Section 4.2, or
upon the occurrence of the date which is twelve months after the Commencement
Date in respect of the 24th Floor Premises, whichever first occurs, any amount
of Landlord's Contribution which has not been previously disbursed shall be
retained by Landlord.
(b) Landlord shall pay Landlord's Contribution in respect of
the 24th Floor Premises to Tenant following commencement of Tenant's business
operations at the 24th Floor Premises and the final completion of the Initial
Installation in respect of the 24th Floor Premises, within 30 days after
submission by Tenant to Landlord of a written requisition therefor, signed by
the chief financial officer of tenant and accompanied by (i) copies of paid
invoices covering all of such Initial Installations, (ii) a written
certification from Tenant's architect stating that (A) such Initial
Installations described on such invoices have been
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completed in accordance with the plans and specifications approved by Landlord,
(B) such work has been paid in full by Tenant and (C) all contractors,
subcontractors and material suppliers have delivered to Tenant waivers of lien
with respect to such work (copies of which shall be included with such
architect's certification), (iii) proof of the satisfactory completion of all
required inspections and the issuance of any required approvals and sign-offs by
Governmental Authorities with respect thereto, (iv) final "as built" plans and
specifications for such Initial Installations as required pursuant to Section
5.1(c) and (v) such other documents and information as Landlord may reasonably
request, including in connection with title drawdowns and endorsements. The
right to receive Landlord's Contribution is for the exclusive benefit of Tenant,
and in no event shall such right be assigned to or be enforceable by or for the
benefit of any third party, including any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or any other Person.
ARTICLE 5
ALTERATIONS
SECTION 5.1 TENANT'S ALTERATIONS. (a) Tenant shall not make any
alterations, additions or other physical changes in or about the Premises
(collectively, "Alterations") (other than decorative Alterations such as
painting, wall coverings and floor coverings) without Landlord's prior written
consent, which may be withheld in Landlord's sole discretion. Landlord shall not
unreasonably withhold its consent to Alterations so long as the Alterations (i)
are non-structural and do not affect the Building Systems, (ii) are performed
only by contractors or mechanics approved by Landlord to perform such
Alterations, (iii) affect only the Premises, (iv) do not affect the certificate
of occupancy issued for the Building or the Premises, and (v) do not adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant of the Building.
(b) Prior to making any Alterations, Tenant, at its expense,
shall (i) submit to Landlord for its written approval, detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) of each proposed Alteration, and with respect to any Alteration
affecting any Building System, Tenant shall submit proof that the Alteration has
been designed by, or reviewed and approved by, Landlord's engineer for the
relevant Building System, (ii) obtain all permits, approvals and certificates
required by any Governmental Authorities, (iii) furnish to Landlord duplicate
original policies or certificates of worker's compensation (covering all persons
to be employed by Tenant, and Tenant's contractors and subcontractors in
connection with such Alteration) and comprehensive public liability (including
property damage coverage) insurance and Builder's Risk coverage (issued on a
completed value basis) all in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably require, naming Landlord,
Landlord's managing agent, and their respective employees and agents, any Lessor
and any Mortgagee as additional insureds and (iv) furnish to Landlord such other
evidence of Tenant's ability to complete and to fully pay for such Alterations
as is reasonably satisfactory to Landlord. Upon Tenant's request, Landlord shall
reasonably cooperate with Tenant in obtaining any permits, approvals or
certificates required to
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be obtained by Tenant in connection with any permitted Alteration (if the
provisions of the applicable Requirement require that Landlord join in such
application), provided Landlord shall incur no cost, expense or liability in
connection therewith.
(c) Upon completion of any Alterations, Tenant, at its
expense, shall promptly obtain certificates of final approval of such
Alterations required by any Governmental Authority and shall furnish Landlord
with copies thereof, together with "as built" plans and specifications for such
Alterations.
SECTION 5.2 MANNER AND QUALITY OF ALTERATIONS. All Alterations shall be
performed (i) in a good and workmanlike manner and free from defects, (ii) in
accordance with the plans and specifications, and by contractors approved by
Landlord, (iii) under the supervision of a licensed architect reasonably
satisfactory to Landlord, and (iv) in compliance with all Requirements, the
terms of this Lease, all procedures and regulations then prescribed by Landlord
for coordinating all work performed in the Building and the Rules and
Regulations. All materials and equipment to be used in the Premises shall be
first quality at least equal to the standards for the Building then established
by Landlord, and no such materials or equipment (other than Tenant's Property)
shall be subject to any lien or other encumbrance.
SECTION 5.3 TENANT'S PROPERTY. Tenant's Property shall be and remain
the property of Tenant and Tenant may, at any time on or before the Expiration
Date, remove the same. On or prior to the Expiration Date, Tenant shall, unless
otherwise directed by Landlord, at Tenant's expense, remove any Specialty
Alterations. Tenant shall repair and restore, in a good and workmanlike manner,
any damage to the Premises or the Building caused by Tenant's removal of any
Specialty Alterations and/or Tenant's Property, and upon default thereof, Tenant
shall reimburse Landlord, on demand, for Landlord's cost of repairing such
damage. Any Specialty Alterations or Tenant's Property not so removed shall be
deemed abandoned and Landlord may remove and dispose of same, and repair any
damage caused thereby, at Tenant's cost and without accountability to Tenant.
This Section 5.3 shall survive the expiration or earlier termination of this
Lease. Notwithstanding the foregoing, Tenant shall not be required to remove any
Alterations (other than Specialty Alterations) approved by Landlord unless
Landlord conditions its approval on the removal of same.
SECTION 5.4 MECHANIC'S LIENS. Tenant, at its expense, shall discharge
any lien or charge filed against the Premises or the Real Property for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant, within 10 days after Tenant's receipt of notice thereof by payment,
filing the bond required by law or otherwise in accordance with law.
SECTION 5.5 LABOR RELATIONS. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict with other
contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others, or the use and
enjoyment of other Building tenants or occupants. In the event of such
interference or conflict,
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upon Landlord's request, Tenant shall cause all contractors, mechanics or
laborers causing such interference or conflict to leave the Building
immediately.
SECTION 5.6 TENANT'S COSTS. Tenant shall pay promptly to Landlord, upon
demand, all costs actually incurred by Landlord in connection with Tenant's
Alterations (including the Initial Installations), such as costs incurred in
connection with (i) Landlord's review of the Alterations (including review of
requests therefor) and (ii) the provision of Building trade personnel required
by trade union policy or otherwise, to operate elevators or other equipment,
during the performance of any Alterations.
SECTION 5.7 TENANT'S EQUIPMENT. Tenant shall not move any heavy
machinery, heavy equipment, freight, bulky matter or fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent and
payment to Landlord of any costs incurred by Landlord in connection therewith.
If such Equipment requires special handling, Tenant agrees (i) to employ only
persons holding a Master Rigger's License to perform such work, (ii) all work
performed in connection therewith shall comply with all applicable Requirements
and (iii) such work shall be done only during hours designated by Landlord.
Tenant shall indemnify and hold Landlord harmless from and against all damages
sustained by persons or property and all monies paid out by Landlord in
settlement of any claims or judgments (including all expenses and attorneys'
fees incurred in connection therewith) and all costs incurred in repairing any
damage to the Building or appurtenances. The agreements set forth in this
Section 5.7 shall survive the expiration or earlier termination of this Lease.
SECTION 5.8 LEGAL COMPLIANCE. The approval of plans or specifications
or consent by Landlord to the making of any Alterations does not constitute
Landlord's agreement or representation that such plans and specifications or any
Alterations comply with any Requirements and/or with the certificate of
occupancy issued for the Building. Landlord shall have no liability to Tenant or
any other party in connection with Landlord's approval of any plans and
specifications or consent to the making of any Alterations.
SECTION 5.9 LANDLORD'S WORK. (a) Landlord shall perform the work
described in Exhibit C hereto in respect of the 8th Floor Premises
(collectively, "Landlord's Work").
(b) Tenant agrees to provide Landlord and its agents,
contractors, subcontractors and employees access to the Premises at all times to
perform Landlord's Work and Tenant and Landlord agree to cooperate and cause
their agents, contractors and subcontractors to cooperate so as to minimize to
the extent practicable any interference with the performance of Landlord's Work
and Tenant's Alterations.
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ARTICLE 6
FLOOR LOAD
SECTION 6.1 FLOOR LOAD. Tenant shall not place a load upon any floor of
the Premises that exceeds 50 pounds per square foot "live load". Landlord
reserves the right to reasonably prescribe the weight and position of all
Equipment which Tenant wishes to place within the Premises.
ARTICLE 7
REPAIRS
SECTION 7.1 LANDLORD'S REPAIR AND MAINTENANCE. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (i) the Building Systems up to
the point of connection to the Premises, and (ii) the public portions of the
Building, both exterior and interior, in conformance with standards applicable
to first-class renovated office buildings of comparable age and quality in the
vicinity of the Building.
SECTION 7.2 TENANT'S REPAIR AND MAINTENANCE. Tenant shall promptly, at
its expense and in compliance with Article 5 of this Lease, (i) make all
nonstructural repairs to the Premises and the fixtures, equipment and
appurtenances therein as and when needed to preserve the Premises in good
working order and condition, except for reasonable wear and tear and damage for
which Tenant is not responsible, and (ii) replace scratched or damaged doors,
signs and glass (other than exterior windows) in and about the Premises. Without
limiting the foregoing, all damage to the Premises or to any other part of the
Building, or to any fixtures, equipment, sprinkler system and/or appurtenances
thereof, whether requiring structural or nonstructural repairs, caused by or
resulting from any act, omission, neglect or improper conduct of, or Alterations
made by, or the moving of Tenant's fixtures, furniture or equipment into or out
of the Premises by Tenant, Tenant's agents, employees, invitees or licensees,
and all damage to any portion of the Building's Systems existing in the
Premises, shall be repaired at Tenant's expense. Such repairs shall be made by
(a) Tenant, if the required repairs are nonstructural in nature and do not
affect any Building System and/or if any damaged portion of the sprinkler system
is contained within the Premises, or (b) Landlord, if the required repairs are
structural in nature, involve exterior window glass or affect any Building
System or any portion of the sprinkler system not contained within the Premises.
All Tenant repairs shall be of a quality at least equal to the original work or
construction but utilizing new construction materials and shall be made in
accordance with this Lease. Tenant shall give Landlord prompt notice of any
defective condition of which Tenant is aware in any Building System located in,
servicing or passing through the Premises. If Tenant fails after 10 days' notice
(or such shorter period as may be required in an emergency) to proceed with due
diligence to make any repairs required to be made by Tenant, Landlord may make
such repairs and all expenses incurred by Landlord on account thereof, plus
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interest thereon at the Interest Rate, shall be paid by Tenant within 10 days
after Landlord delivers to Tenant an invoice therefor.
SECTION 7.3 VERMIN. Tenant shall, at its expense, cause the Premises to
be exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
SECTION 7.4 INTERRUPTIONS DUE TO REPAIRS. Landlord reserves the right
to make all changes, alterations, additions, improvements, repairs or
replacements to the Building, including the Building Systems which provide
services to Tenant, as Landlord deems necessary or desirable, provided that in
no event shall the level of any building service decrease in any material
respect from the level required of Landlord in this Lease as a result thereof
(other than temporary changes in the level of such services during the
performance of any such work by Landlord). Landlord shall use reasonable efforts
to minimize interference with Tenant's use and occupancy of the Premises in the
making of any repairs, alterations, additions or improvements, provided that
Landlord shall have no obligation to employ contractors or labor at "overtime"
or other premium pay rates or to incur any other "overtime" costs or additional
expenses whatsoever. There shall be no allowance to Tenant for a diminution of
rental value, no constructive eviction of Tenant and no liability on the part of
Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises, or in or to fixtures, appurtenances or equipment therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
SECTION 8.1 DEFINITIONS. For the purposes of this Article 8, the
following terms shall have the meanings set forth below:
(a) "TAXES" shall mean (i) all real estate taxes, assessments,
sewer and water rents, rates and charges and other governmental levies,
impositions or charges, whether general, special, ordinary, extraordinary,
foreseen or unforeseen, which may be assessed, levied or imposed upon all or any
part of the Real Property, and (ii) all expenses (including reasonable
attorneys' fees and disbursements and experts' and other witnesses' fees)
incurred in contesting any of the foregoing or the Assessed Valuation of all or
any part of the Real Property. Taxes shall not include (x) interest or penalties
incurred by Landlord as a result of Landlord's late payment of Taxes, except for
interest payable in connection with the installment payment of assessments
pursuant to the next sentence or (y) franchise or net income taxes imposed upon
Landlord. If Landlord elects to pay any assessment in annual installments, then
for the purposes of this Article 8, (i) such assessment shall be deemed to have
been so divided and to be payable in the maximum number of installments
permitted by law, and (ii) there shall be deemed included in Taxes for each
Comparison Year the installments of such assessment becoming
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payable during such Comparison Year, together with interest payable during such
Comparison Year on such installments and on all installments thereafter becoming
due as provided by law, all as if such assessment had been so divided. If at any
time the methods of taxation prevailing on the date hereof shall be altered so
that in lieu of or as an addition to the whole or any part of Taxes, there shall
be assessed, levied or imposed (1) a tax, assessment, levy, imposition or charge
based on the income or rents received from the Real Property whether or not
wholly or partially as a capital levy or otherwise, (2) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed upon Landlord, (3) a license fee measured
by the rents, or (4) any other tax, assessment, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or license fees or the part thereof so measured or
based shall be deemed to be Taxes, provided that any tax, assessment, levy,
imposition or charge imposed on income from the Real Property shall be
calculated as if the Real Property were the only asset of Landlord.
(b) "ASSESSED VALUATION" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the City Charter
and of the Administrative Code of the City of New York for the purpose of
imposition of Taxes.
(c) "TAX YEAR" shall mean the twelve month period from July 1
through June 30 (or such other period as hereinafter may be duly adopted by the
City of New York as its fiscal year for real estate lax purposes).
(d) "BASE TAXES" shall mean an amount equal to the Taxes
payable on account of the Base Tax Year in respect of (x) the 8th Floor
Premises, (y) the 24th Floor Premises, and (z) the Storage Space, as the case
may be.
(e) "TENANT'S PROJECTED SHARE OF TAXES" shall mean Tenant's
Tax Payment, if any, for the prior Comparison Year, plus an amount equal to
Landlord's estimate of the amount of increase in Tenant's Tax Payment projected
for the current Comparison Year, divided by 12 and payable monthly as Additional
Rent.
(f) "COMPARISON YEAR" shall mean (a) with respect to Taxes,
any Tax Year commencing subsequent to the first day of a Base Tax Year, and (b)
with respect to Operating Expenses, any calendar year commencing subsequent to
the first day of a Base Expense Year.
(g) "OPERATING EXPENSES" shall mean the aggregate of all costs
and expenses (and taxes, if any, thereon) paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the ownership, operation, repair and maintenance of the Building and the
Real Property, such as: (i) insurance premiums, (ii) the cost of electricity,
gas, oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and (iv) any capital improvement as described in
items (1) or (2) below which shall be installed by Landlord in the Building.
Such improvements shall be amortized on a straight-line basis over such period
as Landlord shall reasonably determine (with interest accruing on the
unamortized portion thereof at the Base Rate in effect at the time such
improvements are substantially completed per annum), and the amount included in
Operating Expenses in any Comparison Year
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(until such improvement has been fully amortized) shall be equal to the annual
amortized amount. A capital improvement shall be included in Operating Expenses
only if it either (1) results in a reduction in Operating Expenses (as for
example, a labor-saving improvement), provided, the amount included in Operating
Expenses in any Comparison Year shall not exceed an amount equal to the savings
resulting from the installation and operation of such improvement, and/or (2) is
made during any Comparison Year in compliance with Requirements. Operating
Expenses shall not include any Excluded Expenses. If during all or part of any
Base Expense Year or any Comparison Year, Landlord shall not furnish any
particular item(s) of work or service (which would otherwise constitute an
Operating Expense) to any leasable portions of the Building for any reason,
then, for purposes of computing Operating Expenses for any Base Expense Year or
any Comparison Year, as the case may be, the amount included in Operating
Expenses for such period shall be increased by an amount equal to the costs and
expenses that would have been reasonably incurred by Landlord during such period
if Landlord had furnished such item(s) of work or service to such portion of the
Building. in determining the amount of Operating Expenses for any Base Expense
Year or any Comparison Year, if less than 95 percent of the Building rentable
area shall have been occupied by tenant(s) at any time during any such Base
Expense Year or Comparison Year, Operating Expenses shall be determined for such
Base Expense Year or Comparison Year to be an amount equal to the like expenses
which would normally be expected to be incurred had such occupancy been 95
percent throughout such Base Expense Year or Comparison Year.
(h) "BASE OPERATING EXPENSES" shall mean the Operating
Expenses for the Base Expense Year in respect of (x) the 8th Floor Premises and
(y) the 24th Floor Premises, as the case may be.
(i) "STATEMENT" shall mean a statement containing a comparison
of (1) the Taxes payable for the Base Tax Year for each portion of the Premises
and the Taxes payable for any Comparison Year, or (2) the Base Operating
Expenses for each portion of the Premises and the Operating Expenses payable for
any Comparison Year.
SECTION 8.2 (a) TENANT'S TAX PAYMENT. If the Taxes payable for any
Comparison Year exceed the Base Taxes applicable to any portion of the Premises,
Tenant shall pay to Landlord Tenant's Proportionate Share in respect of such
portion of the Premises of such excess ("Tenant's Tax Payment"). On or about the
start of each Comparison Year, Landlord shall furnish to Tenant a Statement of
the Taxes. Tenant shall pay Tenant's Tax Payment to Landlord, in monthly
installments, on the first day of each month during each Comparison Year, an
amount equal to one twelfth of Tenant's Tax Payment due for each Comparison
Year. If there is any increase or decrease in Taxes payable for any Comparison
Year, whether levied during or after such Comparison Year, Landlord may furnish
a revised Statement for such Comparison Year, Tenant's Tax Payment for such
Comparison Year shall be adjusted and, within 15 business days after Tenant's
receipt of such revised Statement (a) with respect to any increase in Taxes
payable for such Comparison Year, Tenant shall pay such increase in Tenant's Tax
Payment to Landlord, or (b) with respect to any decrease in Taxes payable for
such Comparison Year, Landlord shall credit such decrease in Tenant's Tax
Payment against the next installment of Rent payable by Tenant. If, during the
Term, Landlord elects to collect Tenant's Tax Payments, in full or in
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installments on any date or dates other than as presently required, then
following Landlord's notice to Tenant, Tenant's Tax Payments shall be
correspondingly revised.
(b) If the applicable real estate tax fiscal year is changed,
Taxes for such fiscal year shall be apportioned on the basis of the number of
days in such fiscal year included in the particular Comparison Year for the
purpose of making the computations under this Section.
(c) Only Landlord shall be eligible to institute proceedings
to reduce the Assessed Valuation of the Real Property and the filings of any
such proceeding by Tenant without Landlord's prior written consent shall
constitute an Event of Default. If the Taxes payable for a Base Tax Year are
reduced, the applicable Base Taxes shall be correspondingly revised, the
Additional Rent previously paid or payable on account of Tenant's Tax Payment
hereunder for all Comparison Years shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord within 15 business days after being
billed therefor, any deficiency between the amount of such Additional Rent
previously computed and paid by Tenant to Landlord, and the amount due as a
result of such recomputations. If the Taxes payable for a Base Tax Year are
increased then Landlord shall either pay to Tenant, or at Landlord's election,
credit against subsequent payments of Rent due, the amount by which such
Additional Rent previously paid on account of Tenant's Tax Payment exceeds the
amount actually due as a result of such recomputations. If Landlord receives a
refund of Taxes for any Comparison Year, Landlord shall, at its election, either
pay to Tenant, or credit against subsequent payments of Rent due hereunder, an
amount equal to Tenant's Proportionate Share of the refund, net of any expenses
incurred by Landlord in achieving such refund, which amount shall not exceed
Tenant's Tax Payment paid for such Comparison Year. Landlord shall not be
obligated to file any application or institute any proceeding seeking a
reduction in Taxes or the Assessed Valuation.
(d) Tenant shall be obligated to make Tenant's Tax Payment
regardless of whether Tenant may be exempt from the payment of any taxes by
reason of Tenant's diplomatic or other tax exempt status.
(e) If the Expiration Date shall occur on a date other than
June 30, any Additional Rent payable by Tenant to Landlord under this Section
8.2 for the Comparison Year in which such Expiration Date occurs shall be
apportioned on the basis of the number of days in the period from June 30 to the
Expiration Date shall bear to the total number of days in such Comparison Year.
In the event of the expiration or earlier termination of this Lease, any
Additional Rent under this Section 8.2 shall be paid or adjusted within 30 days
after submission of the Statement. In no event shall Fixed Rent ever be reduced
by operation of this Section 8.2 and the rights and obligations of Landlord and
Tenant under the provisions of this Section 8.2 with respect to any Additional
Rent shall survive the expiration or earlier termination of this Lease.
(f) Tenant shall be responsible for any applicable occupancy
or rent tax now in effect or hereafter enacted and, if payable by Landlord,
Tenant shall promptly pay such amounts to Landlord, upon Landlord's demand, as
Additional Rent.
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SECTION 8.3 TENANT'S OPERATING PAYMENT. (a) If the Operating Expenses
payable for any Comparison Year exceed the Base Operating Expenses applicable to
any portion of the Premises, Tenant shall pay to Landlord Tenant's Proportionate
Share in respect of such portion of the Premises of such excess ("Tenant's
Operating Payment"). For each Comparison Year, Landlord shall furnish to Tenant
a written statement setting forth Landlord's good faith reasonable estimate of
Tenant's Operating Payment for such Comparison Year, based upon such year's
budget. Tenant shall pay to Landlord on the first day of each month during such
Comparison Year an amount equal to one-twelfth of Landlord's estimate of
Tenant's Operating Payment for such Comparison Year. If, however, Landlord shall
furnish any such estimate for a Comparison Year subsequent to the commencement
thereof, then (a) until the first day of the month following the month in which
such estimate is furnished to Tenant, Tenant shall pay to Landlord on the first
day of each month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section 8.3 during the last month of the preceding
Comparison Year, (b) promptly after such estimate is furnished to Tenant or
together therewith, Landlord shall give notice to Tenant stating whether the
installments of Tenant's Operating Payment previously made for such Comparison
Year were greater or less than the installments of Tenant's Operating Payment to
be made for such Comparison Year in accordance with such estimate, and (i) if
there shall be a deficiency, Tenant shall pay the amount thereof within 15
business days after demand therefor, or (ii) if there shall have been an
overpayment, Landlord shall credit the amount thereof against subsequent
payments of Rent due hereunder, and (c) 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 Comparison Year, Tenant
shall pay to Landlord an amount equal to one-twelfth of Tenant's Operating
Payment shown on such estimate.
(b) On or before May 1st of each Comparison Year, Landlord
shall furnish to Tenant a Statement for the immediately preceding Comparison
Year. Each such Statement shall be accompanied by a computation of Operating
Expenses for the Building prepared by Landlord's managing agent. If the
Statement shall show that the sums paid by Tenant under Section 8.3(a) exceeded
the actual amount of Tenant's Operating Payment for such Comparison Year,
Landlord shall credit the amount of such excess against subsequent payments of
Rent due hereunder. If the Statement for such Comparison Year shall show that
the sums so paid by Tenant were less than Tenant's Operating Payment for such
Comparison Year, Tenant shall pay the amount of such deficiency within 15
business days after Tenant's receipt of the Statement.
(c) If the Expiration Date shall occur on a date other than
December 31, any Additional Rent under this Section 8.3 for the Comparison Year
in which such Expiration Date shall occur shall be apportioned on the basis of
the number of days in the period from January 1 to the Expiration Date. Upon the
expiration or earlier termination of this Lease, any Additional Rent under this
Article 8 shall be paid or adjusted within 30 days after submission of the
Statement. In no event shall Fixed Rent ever be reduced by operation of this
Section 8.3 and the rights and obligations of Landlord and Tenant under the
provisions of this Section 8.3 with respect to any Additional Rent shall survive
the expiration or earlier termination of this Lease.
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SECTION 8.4 FORMULA. The computations of Additional Rent under this
Article 8 are intended to constitute a formula for an agreed rental adjustment
and may or may not constitute an actual reimbursement to Landlord for Taxes,
costs and expenses paid by Landlord with respect to the Building.
SECTION 8.5 NON-WAIVER; DISPUTES. (a) Landlord's failure to render any
Statement on a timely basis with respect to any Comparison Year shall not
prejudice Landlord's right to thereafter render a Statement with respect to such
Comparison Year or any subsequent Comparison Year, nor shall the rendering of a
Statement prejudice Landlord's right to thereafter render a corrected Statement
for that Comparison Year.
(b) Each Statement sent to Tenant shall be conclusively
binding upon Tenant unless Tenant shall (i) within 30 days after such Statement
is sent, pay to Landlord the amount set forth in such Statement, without
prejudice to Tenant's right to dispute such Statement, and (ii) within 90 days
after such Statement is sent, send a written notice to Landlord objecting to
such Statement and specifying the reasons that such Statement is claimed to be
incorrect. If the parties are unable to resolve any dispute as to the
correctness of such Statement within 30 days following such notice of objection,
either party may refer the issues raised to an independent firm of certified
public accountants selected by Landlord and reasonably acceptable to Tenant, and
the decision of such accountants shall be conclusively binding upon Landlord and
Tenant. In connection therewith, Tenant and such accountants shall execute and
deliver to Landlord a confidentiality agreement, in form and substance
reasonably satisfactory to Landlord, whereby such parties agree not to disclose
to any third party any of the information obtained in connection with such
review. The fees and expenses relating to such procedure shall be borne by the
unsuccessful party (and if both parties are partially unsuccessful, the
accountants shall apportion the fees and expenses between the parties based on
the degree of success of each party).
ARTICLE 9
REQUIREMENTS OF LAW
SECTION 9.1 (a) TENANT'S COMPLIANCE. Tenant, at its expense and in
accordance with Article 5 of this Lease, shall comply (or cause to be complied
with) all Requirements applicable to the Premises, regardless of whether imposed
by their terms upon Landlord or Tenant. Tenant shall make all repairs and
alterations, whether structural or nonstructural, ordinary or extraordinary,
arising as a result of (i) the specific manner and nature of use or occupancy by
Tenant, or (ii) Alterations made by Tenant in the Premises. If Tenant obtains
knowledge of any failure to comply with any Requirements applicable to the
Premises, Tenant shall give Landlord prompt written notice thereof.
(b) HAZARDOUS MATERIALS. Tenant shall be responsible, at its
expense, for all matters directly or indirectly based on, or arising or
resulting from the actual or alleged presence of Hazardous Materials on the
Premises or in the Building which is caused or permitted by Tenant. Tenant shall
provide to Landlord copies of all communications received by Tenant with
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respect to any Requirements relating to Hazardous Materials, and/or any claims
made in connection therewith. Landlord or its agents may perform environmental
inspections of the Premises at any time.
(c) LANDLORD'S COMPLIANCE. Landlord shall comply with (or
cause to be complied with) all Requirements applicable to the Building which are
not the obligation of Tenant, to the extent that non-compliance would materially
impair Tenant's use and occupancy of the Premises and Tenant's ability to
conduct its business in the Premises for office use; and the Cost thereof shall
be included in Operating Expenses pursuant to Section 8.1(g) of this Lease.
(d) LANDLORD'S INSURANCE. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with Landlord's
insurance policies, (ii) violate applicable rules, regulations and guidelines of
the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Building, or (iii) cause an increase in the rate of
fire insurance then on the Building over that in similar type buildings. If the
fire insurance rates increase as a result of Tenant's failure to comply with the
provisions of this Article, Tenant shall promptly cure such failure and shall
reimburse Landlord, as Additional Rent, for the increased fire insurance
premiums paid by Landlord because of such failure by Tenant. In any action or
proceeding which Landlord and Tenant are parties, a schedule or "make up" of
rates for the Building or the Premises issued by the appropriate Fire Insurance
Rating Organization, or other body fixing such fire insurance rates, shall be
conclusive evidence of the fire insurance rates then applicable to the Building.
SECTION 9.2 FIRE ALARM SYSTEM; SPRINKLERS. Tenant shall install a
fire-alarm and life-safety system in the Premises in accordance with this Lease,
the Rules and Regulations and all Requirements, if and to the extent such system
has not been installed in any portion of the Premises prior to the Commencement
Date in respect thereof. If the Fire Insurance Rating Organization or any
Governmental Authority or any of Landlord's insurers requires or recommends any
modifications and/or Alterations be made or any additional equipment be supplied
in connection with the sprinkler system or fire alarm and life-safety system
serving the Building or the Premises by reason of Tenant's business, or the
location of the partitions, trade fixtures, or other contents of the Premises,
Landlord (to the extent outside of the Premises) or Tenant (to the extent within
the Premises) shall make such modifications and/or Alterations, and supply such
additional equipment, in either case at Tenant's expense.
SECTION 9.3 LIMITATIONS ON RENT. If at any time during the Term by
reason of any Requirement, the Rent is not fully collectible, Tenant shall take
such other steps (without additional expense to Tenant) as Landlord may request,
and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally
permissible (but not in excess of the Rent reserved under this Lease). Upon the
termination of such restriction during the Term, Tenant shall pay to Landlord,
in addition to the Rent for the period following such termination of the
restriction, if legally permissible, the portion of Rent which would have been
paid pursuant to this Lease but for such legal restriction less the Rent paid by
Tenant to Landlord while such restriction was in effect, together with interest
thereon at the Base Rate.
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ARTICLE 10
SUBORDINATION
SECTION 10.1 SUBORDINATION AND ATTORNMENT. (a) This Lease is subject
and subordinate to all Mortgages and Superior Leases, and, at the request of any
Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or Lessor, its
successors in interest or any purchaser in a foreclosure sale.
(b) If a Lessor or Mortgagee or any other person or entity
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 the party succeeding to Landlord's rights and upon such successor
landlord's written agreement to accept Tenant's attornment and to recognize
Tenant's interest under this Lease, Tenant shall be deemed to have attorned to
and recognized such successor landlord as the Landlord under this Lease. The
provisions of this Article are self-operative requiring no further instruments
to give effect thereto; provided, however, that Tenant shall promptly execute
and deliver any instrument that such successor landlord may reasonably request
(i) evidencing such attornment, (ii) setting forth the terms and conditions of
Tenant's tenancy, and (iii) containing such other terms and conditions as may be
required by such Mortgagee or Lessor, provided such terms and conditions do not
materially increase Tenant's obligations or materially and adversely affect the
rights of Tenant under this Lease. Upon such attornment this Lease shall
continue in full force and effect as a direct lease between such successor
landlord and Tenant upon all of the terms, conditions and covenants set forth in
this Lease except that such successor landlord shall not:
(i) be liable for any act or omission of Landlord
(except to the extent such act or omission continues beyond the date when such
successor landlord succeeds to Landlord's interest and Tenant gives notice of
such act or omission);
(ii) be subject to any defense, counterclaim, set-off
or offsets which Tenant may have against Landlord;
(iii) be bound by any prepayment of more than one
month's Rent to any prior landlord;
(iv) be bound by any obligation to make any payment
to Tenant which was required to be made prior to the time such successor
landlord succeeded to Landlord's interest;
(v) be bound by any obligation to perform any work or
to make improvements to the Premises except for (x) repairs and maintenance
pursuant to the provisions of this Lease, and (y) repairs to the Premises as a
result of damage by fire or other casualty or a partial condemnation pursuant to
the provisions of this Lease, but only to the extent that such repairs can
reasonably be made from the net proceeds of any insurance or awards,
respectively, actually made available to such successor landlord; or
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(vi) be bound by any modification, amendment or
renewal of this Lease made without successor landlord's consent.
SECTION 10.2 MORTGAGE AND/OR SUPERIOR LEASE DEFAULTS. Tenant shall not
cause a default under any Superior Lease or Mortgage, or omit to do anything
that Tenant is obligated to do under the terms of this Lease so as to cause
Landlord to be in default thereunder. Any Mortgagee may elect that this Lease
shall have priority over the Mortgage that it holds and, upon notification to
Tenant by such Mortgagee, this Lease shall be deemed to have priority over such
Mortgage, regardless of the date of this Lease. In connection with the financing
of the Real Property, the Building or the interest of the lessee under any
Superior Lease, Tenant shall consent to any reasonable modifications of this
Lease requested by any lending institution provided such modifications do not
materially increase the obligations, or materially and adversely affect the
rights, of Tenant under this Lease.
SECTION 10.3 TENANT'S TERMINATION RIGHT. As long as any Superior Lease
or Mortgage shall exist, Tenant shall not seek to terminate this Lease by reason
of any act or omission of Landlord (i) until Tenant shall have given written
notice of such act or omission to all Lessors and/or Mortgagees, and (ii) until
a reasonable period of time shall have elapsed following the giving of notice of
such default and the expiration of any applicable notice or grace periods,
during which period such Lessors and/or Mortgagees shall have the right, but not
the obligation, to remedy such act or omission and thereafter diligently proceed
to so remedy such act or obligation. If any Lessor or Mortgagee elects to remedy
such act or omission of Landlord, Tenant shall not seek to terminate this Lease
so long as such Lessor or Mortgagee is proceeding with reasonable diligence to
effect such remedy.
SECTION 10.4 PROVISIONS. The provisions of this Article shall (i) inure
to the benefit of Landlord, any future owner of the Building or the Real
Property, Lessor or Mortgagee and any sublessor thereof and (ii) apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any such Superior Lease or Mortgage.
SECTION 10.5 NON-DISTURBANCE AGREEMENTS. Landlord hereby agrees to use
reasonable efforts to obtain for Tenant a subordination, non-disturbance and
attornment agreement (a "SNDA") from all existing Mortgagees and Lessors, in the
standard form customarily employed by such Mortgagee and/or Lessor in respect of
the 24th Floor Premises. Landlord represents that, as of the date hereof, there
are no existing Superior Leases and the only existing Mortgagee is Citicorp Real
Estate, Inc.
ARTICLE 11
SERVICES
SECTION 11.1 ELEVATORS. Landlord, at its expense, shall provide
passenger elevator service to the Premises at all times, and at least one
freight elevator serving the Premises available upon Tenant's prior request, on
a non-exclusive "first come, first served" basis with
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other Building tenants, on all Business Days from 8:00 a.m. to 11:45 a.m. and
from 1:00 p.m. to 4:45 p.m.
SECTION 11.2 HEATING, VENTILATION AND AIR CONDITIONING. (a) Landlord
shall furnish to the Premises heating, ventilation and air-conditioning ("HVAC")
for the comfortable occupancy of the Premises, in accordance with the standards
set forth in Exhibit D on all Business Days from 8:00 a.m. to 6:00 p.m.
Landlord, at its expense, shall repair and maintain the HVAC System in good
working order, provided repairs required as a result of the negligence or
willful misconduct of Tenant, its agents or employees, shall be performed at
Tenant's expense. Landlord shall have free access to all air-cooling, fan,
ventilating and machine rooms and electrical closets and all other mechanical
installations of Landlord (collectively, "Electrical Installations"), and Tenant
shall not construct partitions or other obstructions which may interfere with
Landlord's access thereto or the moving of Landlord's equipment to and from the
Electrical Installations. Neither Tenant, nor its agents, employees or
contractors shall at any time enter the Electrical Installations or tamper with,
adjust, or otherwise affect such Electrical Installations.
(b) Landlord shall not be responsible if the normal operation
of the Building system providing HVAC to the Premises (the "HVAC System") shall
fail to provide cooled or heated air, as the case may be, at reasonable
temperatures, pressures, degrees of humidity, volumes or velocities to any parts
of the Premises (i) by reason of any machinery or equipment installed by or on
behalf of Tenant or any person claiming through or under Tenant, which shall
have an electrical load in excess of the average electrical load and human
occupancy factors for the HVAC System as designed, as the case may be, or (ii)
because of any rearrangement of partitioning or other Alterations (including the
Initial Installations) made or performed by or on behalf of Tenant or any person
claiming through or under Tenant. Tenant shall cause to be kept closed all of
the operable windows in the Premises and shall lower the blinds when necessary
because of the sun's position whenever the HVAC System is in operation or when
and as reasonably required by any Requirement or any applicable Governmental
Authority. Tenant at all times shall cooperate fully with Landlord and shall
abide by the rules and regulations which Landlord may reasonably prescribe for
the proper functioning and protection of the HVAC System.
SECTION 11.3 OVERTIME FREIGHT ELEVATORS AND HVAC. The Rent does not
reflect or include any charge to Tenant for the furnishing of any elevator
service (other than the one passenger elevator to be available at all times) or
HVAC to the Premises during any periods other than for the hours and days set
forth in Section 11.2 hereof ("Overtime Periods"). Landlord shall not be
required to furnish any such services during Overtime Periods unless Landlord
has received notice from Tenant requesting such services prior to 2:00 p.m. on
the day upon which such services are requested, or by 2:00 p.m. on the last
preceding Business Day, if such Overtime Periods are to occur on a day other
than a Business Day, but Landlord shall use reasonable efforts (without
obligation to incur any additional cost) to arrange such service on such shorter
notice as Tenant shall provide. If Landlord furnishes freight elevator service
to the Premises during Overtime Periods, Tenant shall pay to Landlord Landlord's
then established rates for such service in the Building. If Landlord shall
furnish HVAC to the Premises during Overtime
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Periods, Tenant shall pay to Landlord Landlord's then established rates for such
service in the Building.
SECTION 11.4 CLEANING. Landlord shall cause the Premises (excluding any
portions thereof used for the storage, preparation, service or consumption of
food or beverages) to be cleaned, substantially in accordance with the standards
set forth in Exhibit E. Any areas of the Premises requiring additional cleaning
such as areas used for preparation or consumption of food, shall be done, at
Tenant's expense, by Landlord's contractor whose rates shall be competitive with
rates of other such contractors in the vicinity of the Building. Landlord and
its cleaning contractor and their respective employees shall have access to the
Premises at all times except between 8:00 A.M. and 5:30 P.M. on Business Days.
SECTION 11.5 WATER. Landlord, at Landlord's expense, shall provide to
the Premises hot and cold water for drinking, cleaning and lavatory purposes. If
Tenant requires or uses water for any additional purposes, Landlord may install
a water meter. Tenant shall pay for the cost of such installation, maintenance,
repairs and replacements thereto, and for water consumed as shown on the meter.
Tenant shall also pay a reasonable charge for any required pumping or heating
thereof, and any sewer rent, tax and/or charge now or hereafter assessed or
imposed upon the Premises or the Real Property pursuant to any Requirement.
SECTION 11.6 SERVICE INTERRUPTIONS. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are desirable or necessary to be made, until such
Unavoidable Delay, accident or emergency shall cease or such repairs,
alterations or improvements are completed. Landlord shall not be liable for any
such interruption, curtailment or failure to supply services provided Landlord
shall use reasonable efforts to restore such service, remedy such situation and
minimize any interference with Tenant's business. The exercise of any such right
or the occurrence of any such failure by Landlord shall not constitute an actual
or constructive eviction, in whole or in part, entitle Tenant to any
compensation, abatement or diminution of Rent, relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience to Tenant, or interruption of Tenant's
business, or otherwise.
SECTION 11.7 REFUSE AND RUBBISH REMOVAL. Landlord shall provide refuse
and rubbish removal services at the Premises for ordinary office refuse and
rubbish pursuant to regulations reasonably established by Landlord. Tenant shall
pay to Landlord, within 10 business days of receipt of an invoice therefor, the
cost of such removal to the extent that the same exceeds the refuse and rubbish
customarily generated by executive and general office tenants. In addition, if
Tenant shall dispose of its refuse and rubbish in the public areas of the
Building, Tenant shall be liable for the cost of such removal. Tenant shall
cause its employees, agents, contractors and business visitors to observe such
additional rules and regulations regarding rubbish removal and/or recycling as
Landlord may, from time to time, reasonably impose.
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ARTICLE 12
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
SECTION 12.1 TENANT'S INSURANCE. (a) Tenant, at its expense, shall
obtain and keep in full force and effect during the Term:
(i) a policy of commercial general liability
insurance on an occurrence basis against claims for personal injury, death
and/or property damage occurring in or about the Premises or the Building, under
which Tenant is named as the insured and Landlord, Landlord's managing agent and
any Lessors and any Mortgagees whose names shall have been furnished to Tenant
are named as additional insureds, which insurance shall provide primary coverage
without contribution from any other insurance carried by or for the benefit of
Landlord, Landlord's managing agent or any Lessors or Mortgagees named as
additional insureds, and Tenant agrees to obtain blanket broad-form contractual
liability coverage to insure its indemnity obligations set forth in Article 35
hereof. The minimum limits of liability shall be a combined single limit with
respect to each occurrence in an amount of not less than $5,000,000 per
location, provided, however, that Landlord shall retain the right to require
Tenant to increase such coverage to that amount of insurance which in Landlord's
reasonable judgment is then being customarily required by landlords for similar
office space in first-class renovated buildings in the City of New York. The
deductible or self insured retention for such policy shall in no event exceed
$10,000 at any time. If the aggregate limit applying to the Premises is reduced
by the payment of a claim or establishment of a reserve, Tenant shall
immediately arrange to have the aggregate limit restored by endorsement to the
existing policy or the purchase of an additional insurance policy unless, in
Landlord's reasonable judgment, Tenant maintains sufficient excess liability
insurance to satisfy the liability requirements of this Lease without the
reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and
such other risks and hazards as are insurable under then available standard
forms of "all risk" insurance policies with extended coverage, insuring Tenant's
Property, and all Specialty Alterations for the full insurable value thereof or
replacement cost value thereof, having a deductible amount, if any, as
reasonably determined by Landlord;
(iii) during the performance of any Alteration, until
completion thereof, Builder's risk insurance on an "all risk" basis and on a
completed value form including a Permission to Complete and Occupy endorsement,
for full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors), any Mortgagee and any Lessor
in all work incorporated in the Building and all materials and equipment in or
about the Premises;
(iv) workers' Compensation Insurance, as required by
law;
(v) disability Benefits Policy Insurance;
(vi) business Interruption Insurance; and
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(vii) such other insurance in such amounts as
Landlord, any Mortgagee and/or any Lessor may reasonably require from time to
time.
(b) All insurance required to be carried by Tenant pursuant to
the terms of this Lease (i) shall contain a provision that (x) no act or
omission of Tenant shall affect or limit the obligation of the insurance company
to pay the amount of any loss sustained, (y) the policy shall be noncancellable
and/or no material change in coverage shall be made thereto unless Landlord,
Lessors and Mortgagees shall have received 30 days' prior written notice of the
same, and (z) Tenant shall be solely responsible for the payment of all premiums
under such policies and Landlord, Lessors and Mortgagees shall have no
obligation for the payment thereof, and (ii) shall be effected under valid and
enforceable policies issued by reputable and independent insurers permitted to
do business in the state in which the Building is located, and rated in Best's
Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a "Best's Rating" of "A" and a
"Financial Size Category" of at least "VIII" or, if such ratings are not then in
effect, the equivalent thereof.
(c) On or prior to the date hereof, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried by each party pursuant to this Article 12.
Evidence of each renewal or replacement of a policy shall be delivered by Tenant
to Landlord at least 5 days prior to the expiration of such policy. In lieu of
the policy of insurance required to be delivered to Landlord pursuant to this
Article (the "Policy"), Tenant may deliver to Landlord a certification from
Tenant's insurance company (in the form currently designated "Acord 27" or the
equivalent rather than on the form currently designated "Acord 25-S" or the
equivalent) which shall be binding on Tenant's insurance company, and which
shall expressly provide that such certification (i) conveys to Landlord and any
other named insured and/or additional insureds thereunder (the "Insured
Parties") all the rights and privileges afforded under the Policy, (ii) contains
an unconditional obligation of the insurance company to give all Insured Parties
advance notice of termination of the Policy, and (iii) contains an unconditional
obligation of the insurance company to advise all Insured Parties at least 30
days in advance of any change to the Policy that would affect the interest of
any of the Insured Parties.
SECTION 12.2 WAIVER OF SUBROGATION. Landlord and Tenant shall each
procure an appropriate clause or endorsement in any fire or extended coverage
insurance covering the Premises, the Building and personal property, fixtures
and equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery and agree not to make
any claim against or seek to recover from, the other for any loss or damage to
its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance. If either party shall be
unable to obtain the inclusion of such clause even with the payment of an
additional premium, then such party shall attempt to name the other party as a
loss payee under the policy. If the payment of an additional premium is required
for either (i) the inclusion of, or consent to, a waiver of subrogation, or (ii)
for naming any party a loss payee, each party shall advise the other, in
writing, of the amount of any such additional premiums and the other party may
pay such additional premium. If such other party shall not elect to pay such
additional premium or if it shall not be possible to have the other party
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named as a loss payee, even with the payment of an additional premium, then the
first party shall not be required to obtain such waiver of subrogation or
consent to waiver provision and such party shall so notify the first party and
the first party's agreement to name the other party as an additional insured
shall be satisfied. Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for, (i) damage to any Specialty Alterations,
(ii) Tenant's Property, and (iii) any loss suffered by Tenant due to
interruption of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
SECTION 13.1 RESTORATION. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage, but Landlord shall have no
obligation to repair or restore (i) Tenant's Property or (ii) any Specialty
Alterations. Until such time as the restoration of the Premises is substantially
completed, Rent shall be reduced in the proportion by which the area of the part
of the Premises which is neither usable (or accessible) nor used by Tenant bears
to the total area of the Premises.
SECTION 13.2 LANDLORD'S TERMINATION RIGHT. Notwithstanding anything to
the contrary contained in Section 13.1, if the Premises are totally damaged or
are rendered wholly untenantable, or if the Building shall be so damaged that,
in Landlord's opinion, substantial alteration, demolition, or reconstruction of
the Building shall be required (whether or not the Premises shall have been
damaged or rendered untenantable), then in either of such events, Landlord may,
not later than 60 days following the date of the damage, give Tenant a written
notice terminating this Lease. If this Lease is so terminated, (i) the Term
shall expire upon the 10th day after such notice is given, (ii) Tenant shall
vacate the Premises and surrender the same to Landlord, (iii) Tenant's liability
for Rent shall cease as of the date of the damage, and (iv) any prepaid Rent for
any period after the date of the damage shall be refunded by Landlord to Tenant.
SECTION 13.3 TENANT'S TERMINATION RIGHT. If the Premises are totally
damaged and are rendered wholly untenantable thereby, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice ("Restoration Notice") to Tenant of the date by which
such contractor or architect estimates the restoration of the Premises shall be
substantially completed. If the Restoration Notice estimates that the
restoration shall not be substantially completed on or before a date
("Landlord's Restoration Date") which shall be 18 months following the date of
such damage, then Tenant shall have the right to terminate this Lease by giving
written notice ("Termination Notice") to Landlord not later than 10 days
following Tenant's receipt of the Restoration Notice. If Tenant delivers to
Landlord a Termination Notice, this Lease shall be deemed to have terminated as
of the date of the giving of the Termination Notice as if such date were the
Expiration Date, and Rent shall be apportioned and shall be paid or refunded, as
the
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case may be, up to and including the date of such damage. If Tenant shall not
have given the Termination Notice pursuant to this Section l3.3, and Landlord
shall fail to substantially complete the restoration of the Premises on or
before Landlord's Restoration Date, subject to Unavoidable Delays (which may not
exceed an additional three months in the aggregate), then Tenant shall have the
right to terminate this Lease by delivery to Landlord of a Termination Notice
not later than 10 days following such date.
SECTION 13.4 FINAL 18 MONTHS. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 18 months of the Term, either
Landlord or Tenant may terminate this Lease by notice to the other party within
30 days after the occurrence of such damage and this Lease shall expire on the
30th day after the date of such notice. For purposes of this Section 13.4, the
Premises shall be deemed wholly untenantable if due to such damage, Tenant shall
be precluded from using more than 50 percent of the Premises for the conduct of
its business and Tenant's inability to so use the Premises is reasonably
expected to continue until at least the earlier of the (i) Expiration Date and
(ii) the 90th day after the date when such damage occurs.
SECTION 13.5 WAIVER OF REAL PROPERTY LAW SECTION 227. This Article 13
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, which provides for such contingency
in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.
SECTION 13.6 LANDLORD'S LIABILITY. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
its agents shall be liable for any damage to property of Tenant or of others
entrusted to employees of the Building, or for the loss of or damage to any
property of Tenant by theft or otherwise. None of Landlord, its agents, any
Mortgagee or Lessor shall be liable for any injury or damage to persons or
property or interruption of Tenant's business resulting from fire or other
casualty, any damage caused by other tenants or persons in the Building or by
construction of any private, public or quasi-public work, or any latent defect
in the Premises or in the Building (except that Landlord shall be required to
repair the same to the extent provided in Article 5). No penalty shall accrue
for delays which may arise by reason of adjustment of fire insurance on the part
of Landlord or Tenant, or for delay on account of "labor troubles" or any other
cause beyond Landlord's control arising from any repair or restoration of any
portion of the Premises or of the Building provided that Landlord shall perform
any such repair or restoration expeditiously and in a manner as to minimize
unreasonable interference with Tenant's business. None of the foregoing shall
affect any right of Landlord to the indemnity from Tenant to which Landlord may
be entitled under Article 32 in order to recoup for payments made to compensate
for losses of third parties.
SECTION 13.7 WINDOWS. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant
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shall not be entitled to any compensation or abatement of any Rent, nor shall
the same release Tenant from its obligations hereunder or constitute an actual
or constructive eviction.
ARTICLE 14
EMINENT DOMAIN
SECTION 14.1 (a) TOTAL TAKING. If all or substantially all of the Real
Property, the Building or the Premises shall be acquired or condemned for any
public or quasi-public purpose, this Lease shall terminate and the Term shall
end as of the date of the vesting of title, with the same effect as if such date
were the Expiration Date, and Rent shall be prorated and adjusted as of such
date.
(b) PARTIAL TAKING. If only a part of the Real Property, the
Building or the Premises shall be acquired or condemned then, except as
hereinafter provided in this Article, this Lease and the Term shall continue in
full force and effect, provided that from and after the date of the vesting of
title, the Rent and Tenant's Proportionate Share shall be modified to reflect
the reduction of the Premises and/or the Building as a result of such
acquisition or condemnation.
(c) LANDLORD'S TERMINATION RIGHT. Whether or not the Premises
are affected, Landlord may give to Tenant a notice of termination of this Lease
within 60 days following the date upon which Landlord receives notice that (i)
all or a portion of the Real Property or the Building (provided that Landlord
elects to terminate leases (including this Lease) affecting at least 25% of the
rentable area of the Building) or (ii) all or a portion of the Premises has been
acquired or condemned.
(d) TENANT'S TERMINATION RIGHT. If the part of the Real
Property so acquired or condemned contains more than 15 percent of the total
area of the Premises immediately prior to such acquisition or condemnation, or
if, by reason of such acquisition or condemnation, Tenant no longer has
reasonable means of access to the Premises, Tenant may terminate this Lease by
notice to Landlord given within 30 days following the date upon which Tenant
received notice of such acquisition or condemnation. If Tenant so notifies
Landlord, this Lease shall terminate and the Term shall end and expire upon date
set forth in the notice, which date shall not be more than 30 days following the
giving of such notice. If a part of the Premises shall be so acquired or
condemned and this Lease and the Term shall not be terminated in accordance with
this Section 14.1, Landlord, at Landlord's expense, shall restore that part of
the Premises not so acquired or condemned to a self-contained rental unit
substantially equivalent (with respect to character, quality, appearance and
services) to that which existed immediately prior to such acquisition or
condemnation, excluding Tenant's Property and/or Specialty Alterations.
(e) APPORTIONMENT OF RENT. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Rent shall be apportioned as of,
and shall be paid or refunded up to and including, the date of such termination.
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SECTION 14.2 AWARDS. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
SECTION 14.3 TEMPORARY TAKING. If the whole or any part of the Premises
is acquired or condemned temporarily during the Term for any public or
quasi-public use or purpose, Tenant shall give prompt notice to Landlord and the
Term shall not be reduced or affected in any way and Tenant shall continue to
pay all Rent payable by Tenant without reduction or abatement, and Tenant shall
be entitled to receive any award or payment for such use, which shall be
received, held and applied by Tenant as a trust fund for payment of the Rent
falling due.
ARTICLE 15
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
SECTION 15.1 (a) NO ASSIGNMENT OR SUBLETTING. Except as expressly set
forth herein, Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, shall not assign,
mortgage, pledge, encumber, or otherwise transfer this Lease, whether by
operation of law or otherwise, and shall not sublet (or underlet), or permit, or
suffer the Premises or any part thereof to be used or occupied by others
(whether for desk space, mailing privileges or otherwise), without Landlord's
prior written consent in each instance. Any assignment, sublease, mortgage,
pledge, encumbrance or transfer in contravention of the provisions of this
Article 15 shall be void.
(b) COLLECTION OF RENT. If, without Landlord's consent, this
Lease is assigned, or any part of the Premises is sublet or occupied by anybody
other than Tenant or this Lease or the Premises or Tenant's Property is
encumbered (by operation of law or otherwise), Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to the Rent herein reserved. No assignment, subletting,
occupancy or collection shall be deemed a waiver of the provisions of this
Article 15, the acceptance of the assignee, subtenant or occupant as tenant, or
the release of Tenant from the performance of Tenant's covenants hereunder.
Tenant shall remain fully liable for the obligations under this Lease.
(c) FURTHER ASSIGNMENT/SUBLETTING. Landlord's consent to any
assignment or subletting shall not relieve Tenant from obtaining Landlord's
express written consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
any portion of its sublet space, or otherwise suffer or permit any
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portion of the sublet space to be used or occupied by others, without Landlord's
prior written consent in each instance.
SECTION 15.2 TENANT'S NOTICE. If Tenant desires to assign this Lease or
sublet all or any portion of the Premises, Tenant shall give notice thereof to
Landlord, which shall be accompanied by (a) with respect to an assignment of
this Lease, the date Tenant desires the assignment to be effective, and (b) with
respect to a sublet of all or a part of the Premises, (i) the material business
terms on which Tenant would sublet such premises, and (ii) a description of the
portion of the Premises to be sublet. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) shall be granted
the right, at Landlord's option, (1) to terminate this Lease with respect to
such space as Tenant proposes to sublease (the "Partial Space"), upon the terms
and conditions hereinafter set forth, or (2) if the proposed transaction is an
assignment of this Lease or a subletting of 50% or more of the rentable square
footage of the Premises, to terminate this Lease with respect to the entire
Premises. Such option may be exercised by notice from Landlord to Tenant within
45 days after Landlord's receipt of Tenant's notice.
SECTION 15.3 LANDLORD'S TERMINATION. If Landlord exercises its option
to terminate all or a portion of this Lease pursuant to Section 15.2, (i) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence,
(ii) Tenant's Rent shall be apportioned, paid or refunded as of such date, (iii)
Tenant, upon Landlord's request, shall enter into an amendment of this Lease
ratifying and confirming such total or partial termination, and setting forth
any appropriate modifications to the terms and provisions hereof, and (iv)
Landlord shall be free to lease the Premises (or any part thereof) to Tenant's
prospective assignee or subtenant.
SECTION 15.4 (a) LANDLORD'S LEASEBACK. If Landlord receives a notice
from Tenant as described in Section 15.2, Landlord or its designee may, at its
option, in lieu of exercising the options described in 15.2, sublease from
Tenant the space described in Tenant's notice (or, if the space described in
Tenant's notice constitutes 50 percent or more of the rentable square footage
contained in the Premises, Landlord may sublease from Tenant the entire
Premises) (such space being hereafter referred to as the "Leaseback Space"). If
Landlord exercises its option to sublet the Leaseback Space, such sublease to
Landlord or its designee (as subtenant) shall be at a rental rate equal to the
product of the lesser of (A) the rent per rentable square foot (including Fixed
Rent and Additional Rent) then payable pursuant to this Lease, and (B) the rent
per rentable square foot set forth in the proposed sublease, multiplied by the
rentable square foot area of the Leaseback Space; shall be for the same term as
that of the proposed subletting; and shall:
(i) be expressly subject to all of the covenants,
terms and conditions of this Lease except such as are irrelevant or
inapplicable, and except as expressly set forth in this Article 15 to
the contrary;
(ii) be upon the same terms and conditions as those
contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as expressly set forth in this Article 15 to
the contrary;
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(iii) give the subtenant the unqualified and
unrestricted right, without Tenant's consent, to assign such sublease
or any interest therein and/or to sublet all or any portion of the
space covered by such sublease and to make alterations and improvements
in the space covered by such sublease, and if the proposed sublease
will result in all or substantially all of the Premises being sublet,
grant Landlord or its designee the option to extend the term of such
sublease for the balance of the Term of this Lease less one day;
(iv) provide that any assignee or further subtenant
of Landlord or its designee, may, at Landlord's option, be permitted to
make alterations and decorations in such space and that any or all of
such alterations, decorations and installations may be removed by such
assignee or subtenant, at its option, prior to or upon the expiration
or other termination of such sublease, provided that such assignee or
subtenant shall, at its expense, repair any damage caused by such
removal; and
(v) provide that (A) the parties to such sublease
expressly negate any intention that the sublease estate be merged with
any other estate held by either of such parties, (B) any assignment or
sublease by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in its sole discretion, shall deem
appropriate, (C) Tenant shall, at its sole cost and expense, at all
times provide and permit reasonably appropriate means of ingress to and
egress from such space so sublet by Tenant to Landlord or its designee,
(D) Landlord may, at Tenant's expense, make such alterations as may be
required or deemed necessary by Landlord to physically separate the
Leaseback Space from the balance of the Premises and to comply with any
Requirements or insurance requirements relating to such separation, and
(E) that at the expiration of the term of such sublease. Tenant will
accept the Leaseback Space in its then existing condition, subject to
the obligations of the subtenant to make such repairs as may be
necessary to preserve such premises in good order and condition.
(b) OBLIGATIONS RE: LEASEBACK SPACE. If Landlord exercises its
option to sublet the Leaseback Space:
(i) Landlord shall indemnify, defend and hold
harmless Tenant from all obligations under this Lease as to the
Leaseback Space during the period it is so sublet to Landlord, except
as to any obligation arising out of or resulting from the negligence or
willful misconduct of Tenant, or any of its agents, contractors or
employees;
(ii) Performance by Landlord, or its designee, under
a sublease of the Leaseback Space shall be deemed performance by Tenant
of any similar obligation under this Lease and Tenant shall not be
liable for any default under this Lease or deemed to be in default
hereunder if such default is occasioned by or arises from any act or
omission of the subtenant pursuant to such sublease; or
(iii) Tenant shall have no obligation, at the
expiration or earlier termination of the Term, to remove any
alteration, installation or improvement made in the Leaseback Space by
Landlord (or Landlord's designee); and
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(iv) Any consent required of Tenant, as Landlord
under the sublease, shall be deemed granted if consent with respect
thereto is granted by Landlord under this Lease, and any failure of
Landlord (or its designee) to comply with the provisions of the
sublease other than with respect to the payment of Rent shall not
constitute a default thereunder or hereunder if Landlord shall have
consented to such non-compliance.
SECTION 15.5 CONSENT BY LANDLORD. If Landlord does not exercise any of
Landlord's options provided under Section 15.2, and provided that no Event of
Default then exists, Landlord's consent to the proposed assignment or sublease
shall not be unreasonably withheld or delayed. Such consent shall be granted or
declined, as the case may be, within 30 days after Landlord's receipt of (a) a
true and complete statement reasonably detailing the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (b) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial statements, and (c)
any other information Landlord may reasonably request, provided that:
(i) in Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in a business or activity, and the
Premises will be used in a manner, which (a) is in keeping with the
then standards of the Building, (b) limits the use of the Premises to
general and executive offices, and (c) does not violate any
restrictions set forth in this Lease, and/or any negative covenant as
to use of the Premises required by any other lease in the Building of
which Tenant has been advised;
(ii) the proposed assignee or subtenant is a
reputable person or entity of good character with sufficient financial
means to perform all of its obligations under the Lease or sublease, as
the case may be, and Landlord has been furnished with reasonable proof
thereof;
(iii) if Landlord has, or reasonably expects to have
within six months thereafter, comparable space available in the
Building, neither the proposed assignee or subtenant nor any person
which, directly or indirectly, controls, is controlled by, or is under
common control with, the proposed assignee or subtenant is then an
occupant of the Building;
(iv) the proposed assignee or subtenant is not a
person or entity (or affiliate of a person or entity) with whom
Landlord or Landlord's agent is then or has been within the prior six
months negotiating in connection with the rental of space in the
Building;
(v) the form of the proposed sublease or instrument
of assignment shall be reasonably satisfactory to Landlord and shall
comply with the provisions of this Article 15;
(vi) there shall be not more than two subtenants of
the Premises;
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(vii) The amount of the aggregate rent to be paid by
the proposed subtenant is not less than the then current market rent
per rentable square foot for the Premises determined as though the
Premises were vacant (taking into account that the proposed transaction
is a sublease, the length of the proposed term of sublease, any rent
concessions granted to sublessee, and the cost of any alterations being
performed for the sublessee), and the rental and other terms and
conditions of the sublease are the same as those contained in the
proposed sublease furnished to Landlord pursuant to Section 15.2;
(viii) Tenant shall, upon demand, reimburse Landlord
for all expenses incurred by Landlord in connection with such
assignment or sublease, including any investigations as to the
acceptability of the proposed assignee or subtenant, reviewing any
plans and specifications for Alterations proposed to be made in
connection therewith, and all legal costs reasonably incurred in
connection with the granting of any requested consent;
(ix) Tenant shall not (A) publicize the availability
of the Premises without Landlord's prior approval, or (B) list the
Premises to be sublet or assigned with a broker, agent or otherwise at
a rental rate less than the fixed rent and additional rent at which
Landlord is then offering to lease other space in the Building; and
(x) the proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity,
regardless of whether the proposed assignee or subtenant agrees to
waive such diplomatic or sovereign immunity, and shall be subject to
the service of process in, and the jurisdiction of the courts of, the
City and State of New York.
SECTION 15.6 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD. Each
sublease pursuant to this Article 15 shall be subject to all of the covenants,
terms and conditions of this Lease. Notwithstanding any such sublease to any
subtenant and/or acceptance of Rent by Landlord from any subtenant, Tenant shall
remain fully liable for the payment of all Rent due and to become due hereunder
and for the performance of all the covenants, terms and conditions contained in
this Lease on Tenant's part to be observed and performed; and all acts and
omissions of any licensee or subtenant or anyone claiming under or through any
subtenant which shall violate any obligations of this Lease shall be deemed to
be a violation by Tenant. Tenant shall indemnify, defend, protect and hold
harmless Landlord from and against any and all losses, liabilities, damages and
expenses (including reasonable attorneys' fees and disbursements) 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 irrespective
of whether Landlord shall give or decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under
this Article 15.
SECTION 15.7 TENANT'S FAILURE TO COMPLETE. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 90 days after the giving of such
consent, then Tenant shall again comply with all
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of the provisions and conditions of Section 15.2 and 15.4 hereof before
assigning this Lease or subletting all or part of the Premises.
SECTION 15.8 SUBLEASE RESTRICTIONS. With respect to each and every
sublease and/or assignment authorized by Landlord under the provisions of this
Lease, it is further agreed that:
(i) the form of the proposed assignment or sublease
shall be reasonably satisfactory to Landlord and shall comply with the
provisions of this Article;
(ii) no sublease shall be delivered, and no subtenant
shall take possession of any part of the Premises, until an executed
counterpart of such sublease has been delivered to Landlord and
approved in writing by landlord (or deemed approved pursuant to Section
15.5 hereof);
(iii) no sublease shall be delivered, and no
subtenant shall take possession of any part of the Premises, until an
executed counterpart of such sublease has been delivered to Landlord
and approved in writing by Landlord (or deemed approved pursuant to
Section 15.5 hereof);
(iv) if an Event of Default shall occur at any time
prior to the effective date of such assignment or subletting, then
Landlord's consent thereto, if previously granted, shall be immediately
deemed revoked without further notice to Tenant, and if such assignment
or subletting would have been permitted without Landlord's consent
pursuant to Section 15.10, such permission shall be void and without
force and effect, and in either case, any such assignment or subletting
shall constitute a further Event of Default hereunder; and
(v) each sublease shall be subject and subordinate to
this Lease and to the matters to which this Lease is or shall be
subordinate, it being the intention of Landlord and Tenant that Tenant
shall assume and be liable to Landlord for any and all acts and
omissions of all subtenants and anyone claiming under or through any
subtenants which, if performed or omitted by Tenant, would be a default
under this Lease; and Tenant and each subtenant shall be deemed to have
agreed that upon the occurrence and during the continuation of an Event
of Default hereunder, Tenant has hereby assigned to Landlord, and
Landlord may, at its option, accept such assignment of, all right,
title in interest of Tenant as sublandlord under such sublease,
together with all modifications, extensions and renewal thereof then in
effect 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 (A) liable for any previous act or
omission of Tenant under such sublease, (B) subject to any
counterclaim, offset or defense not expressly provided in such
sublease, which theretofore accrued to such subtenant against Tenant,
(C) bound by any previous modification of such sublease or by any
prepayment of more than one month's Rent, (D) bound to return such
subtenant's security deposit, if any, except to the extent such deposit
shall come into Landlord's actual possession and such subtenant shall
be entitled to such return under the terms of such sublease, or (E)
obligated to make any payment to or on behalf of such subtenant or to
perform any work
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in the subleased space or the Building or in any way to prepare the
sublease space for occupancy beyond Landlord's obligations under this
Lease. The provisions of this Article 15 shall be self-operative and no
further instrument shall be required to give effect to this provision.
The subtenant shall execute and deliver to Landlord any instruments
Landlord may reasonably request to evidence and confirm such
subordination and attornment.
SECTION 15.9 PROFITS. If Tenant shall enter into any assignment or
sublease permitted and/or consented to by Landlord, Tenant shall, within 60 days
of Landlord's consent to such assignment or sublease, deliver to Landlord a
complete list of Tenant's reasonable third-party brokerage fees, legal fees and
architectural fees paid or to be paid in connection with such transaction,
together with a list of all of Tenant's Property to be transferred to such
assignee or sublessee. Tenant shall deliver to Landlord evidence of the payment
of such fees promptly after the same are paid. In consideration of such
assignment or subletting Tenant shall pay to Landlord:
(a) In the case of an assignment, on the effective
date of the assignment, an amount equal to 50 percent of all sums and other
considerations paid to Tenant by the assignee for or by reason of such
assignment (including sums paid for Tenant's Property, less, in the case of a
sale thereof, the then fair market value thereof, as reasonably determined by
Landlord) after first deducting Tenant's reasonable third-party brokerage fees,
legal fees and architectural fees in connection with such transaction; or
(b) in the case of a sublease, 50 percent of any
consideration payable under the sublease to Tenant by the subtenant which
exceeds on a per square foot basis the Fixed Rent and Additional Rent accruing
during the term of the sublease in respect of the subleased space (together with
any sums paid for the sale or rental of Tenant's property, less, in the case of
the sale thereof, the then fair market value thereof, as reasonably determined
by Landlord) after first deducting Tenant's reasonable third-party brokerage
fees, legal fees and architectural fees in connection with such transaction. The
sums payable under this clause shall be paid by Tenant to Landlord as and when
paid by the subtenant to Tenant.
SECTION 15.10 (a) TRANSFERS. If Tenant is a corporation, the transfer
(by one or more transfers) of a majority of the stock of Tenant shall be deemed
a voluntary assignment of this Lease; provided, however, the provisions of this
Article 15 shall not apply to the transfer of shares of stock of Tenant if and
so long as Tenant is publicly traded on a nationally recognized stock exchange.
For purposes of this Section 15.10 the term "transfers" shall be deemed to
include the issuance of new stock which results in a majority of the stock of
Tenant being held by a person or entity which does not hold a majority of the
stock of Tenant on the date hereof. If Tenant is a limited liability company,
trust, or any other legal entity, the transfer (by one or more transfers) of a
majority of the beneficial ownership interests in such entity, however
characterized, shall be deemed a voluntary assignment of this Lease. The
provisions of Section 15.1 shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which substantially
all of Tenant's assets are transferred so long as (i) such transfer was made for
a legitimate independent business purpose and not for the principal
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purpose of transferring this Lease, (ii) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least
equal to the greater of (1) the net worth of Tenant immediately prior to such
merger, consolidation or transfer, and (2) the net worth of the original Tenant
on the date of this Lease, and (iii) proof satisfactory to Landlord of such net
worth is delivered to Landlord at least 10 days prior to the effective date of
any such transaction. Tenant may also, upon prior notice to but without the
consent of Landlord, permit any corporation or other business entity which
controls, is controlled by, or is under common control with the original Tenant
(a "Related Corporation") to sublet all or part of the Premises for any
Permitted Use. Such sublease shall not be deemed to vest in any such Related
Corporation any right or interest in this Lease or the Premises nor shall it
relieve, release, impair or discharge any of Tenant's obligations hereunder. For
the purposes hereof, "control" shall be deemed to mean ownership of not less
than 50 percent of all of the voting stock of such corporation or not less than
50 percent of all of the legal and equitable interest in any other business
entity if Tenant is not a corporation. Notwithstanding the foregoing, Tenant
shall have no right to make an assignment of this Lease or sublease all or any
portion of the Premises without Landlord's consent pursuant to this Section
15.10 if Tenant is not the initial Tenant herein named or a person or entity who
acquired Tenant's interest in this Lease in a transaction approved by Landlord.
(b) MISCELLANEOUS. The limitations set forth in this
Section 15.9 shall apply to subtenant(s), assignee(s) and guarantors of this
Lease, if any, and any transfer by any such entity in violation of this Section
15.9 shall be a transfer in violation of Section 15.1.
(c) MODIFICATIONS, ETC. Any modification, amendment
or extension of a sublease and/or any other agreement by which a landlord of a
building other than the Building agrees to assume the obligations of Tenant
under this Lease shall be deemed a sublease for the purposes of Section 15.1
hereof.
SECTION 15.11 ASSUMPTION OF OBLIGATIONS. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee (i) assumes Tenant's
obligations under this Lease and (ii) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers.
SECTION 15.12 TENANT'S LIABILITY. The joint and several liability of
Tenant and any successors-in-interest of Tenant and the due performance of
Tenant's obligations under this Lease shall not be discharged, released or
impaired by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any
grantee or assignee of Landlord, to enforce any of the terms and provisions of
this Lease.
SECTION 15.13 LISTINGS. The listing of any name other than that of
Tenant, on the doors of the Premises, the Building directory, or otherwise,
shall not vest any right or interest in this Lease or in the Premises, nor shall
it be deemed to constitute Landlord's consent to any
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assignment or transfer of this Lease or to any sublease of Premises or to the
use or occupancy thereof by others. Any such listing shall constitute a
privilege revocable in Landlord's discretion by notice to Tenant.
SECTION 15.14 LEASE DISAFFIRMANCE OR REJECTION. If at any time after an
assignment by Tenant named herein, this Lease is disaffirmed or rejected in any
proceeding of the types described in Section 18.1(vii) hereof or any similar
proceeding, or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or r |
