New York-New York-399 Park Avenue Lease - BP 399 Park Avenue LLC and Citigroup Inc.
LEASE
between
BP 399 PARK AVENUE LLC,
Landlord
and
CITIGROUP INC.,
Tenant
PREMISES:
Entire Mezzanine, 2nd, 3rd, 4th, 7th, 10th, 12th and 14th Floors, a
Portion of the 13th Floor and Portions of the Lobby and the Basement
UNIT TWO
THE 399 PARK AVENUE CONDOMINIUM
399 Park Avenue
New York, New York 10022
Dated: as of September 25, 2002
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TABLE OF CONTENTS
Page
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Article 1 Term and Fixed Rent...................................................1
Article 2 Delivery and Use of Premises..........................................5
Article 3 Escalations..........................................................12
Article 4 Condominium..........................................................33
Article 5 Subordination, Notice to Superior Lessors and Mortgagees.............36
Article 6 Quiet Enjoyment......................................................38
Article 7 Assignment, Subletting and Mortgaging................................38
Article 8 Compliance with Laws.................................................58
Article 9 Insurance............................................................61
Article 10 Rules and Regulations................................................65
Article 11 Alterations..........................................................66
Article 12 Landlord's and Tenant's Property.....................................74
Article 13 Repairs and Maintenance..............................................76
Article 14 Electricity..........................................................79
Article 15 Landlord's Services..................................................85
Article 16 Access and Name of Building.........................................108
Article 17 Notice of Occurrences...............................................114
Article 18 Non-Liability and Indemnification...................................114
Article 19 Damage or Destruction...............................................117
Article 20 Eminent Domain......................................................122
Article 21 Surrender...........................................................124
Article 22 Conditions of Limitation............................................124
Article 23 Reentry by Landlord.................................................128
Article 24 Damages.............................................................129
Article 25 Affirmative Waivers.................................................131
Article 26 No Waivers..........................................................132
Article 27 Curing Tenant's Defaults............................................133
Article 28 Broker..............................................................134
Article 29 Notices.............................................................134
Article 30 Estoppel Certificates...............................................136
Article 31 Memorandum of Lease.................................................137
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TABLE OF CONTENTS
(continued)
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Article 32 No Representations by Landlord......................................137
Article 33 Tenant's Rights of Self-Help and Offset.............................137
Article 34 Holdover............................................................140
Article 35 Miscellaneous Provisions and Definitions............................141
Article 36 Extension Terms.....................................................152
Article 37 Intentionally Omitted...............................................158
Article 38 Intentionally Omitted...............................................158
Article 39 Arbitration.........................................................158
Article 40 Right of Offering...................................................160
Article 41 Unit One First Offer Right..........................................170
Article 42 Intentionally Omitted...............................................177
Article 43 Intentionally Omitted...............................................177
Article 44 Lehman Tenant's Existing Facilities.................................177
Article 45 Lobby Desks and Signage.............................................179
Article 46 Tenant's Antenna....................................................183
Article 47 Back-Up Power System................................................187
Article 48 Right Of First Offer To Purchase....................................191
Article 49 New York City Benefits..............................................197
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TABLE OF EXHIBITS
Exhibit A: Description of Land
Exhibit B: Floor Plans of Office Premises
Exhibit B-1: Floor Plan of Lobby Premises
Exhibit B-2: Floor Plan of Basement Premises
Exhibit C: Tenant Pre-Approved Alterations
Exhibit D: Building Rules and Regulations
Exhibit E: Building Standards for Alterations
Exhibit F: Cleaning Specifications
Exhibit G Calculation of Overtime HVAC Charge and Overtime HVAC Charge Adjustment
Exhibit H: Board SNDA Agreement
Exhibit H-1: Superior Mortgagee SNDA Agreement
Exhibit H-2: Superior Lessor SNDA Agreement
Exhibit I: Intentionally Omitted
Exhibit J: Landlord's Consent to Assignment and Assumption of Lease
Exhibit K: Consent to Sublease
Exhibit L: Qualified Space Non-Disturbance Agreement
Exhibit M: Board of Managers' Waiver
Exhibit N: Form of Landlord's Statement
Exhibit O: Approved Contractors
Exhibit P: Building Passenger Elevator Specifications
Exhibit Q: Tenant Private Elevator Locations and Tenant Lobby Podium Location
Exhibit R: Calculation of Supplemental Chilled Water Charge Adjustment
Exhibit S: Calculation of Supplemental Condenser Water Charge Adjustment
Exhibit T: Building-Wide Security Specifications
Exhibit U: Tenant Riser and Shaft Space Locations
Exhibit V: Tenant Mechanical Space Locations
Exhibit W: Intentionally Omitted
Exhibit X: Tenant Lobby Desk Locations
Exhibit Y: Tenant Existing Rooftop Antenna Locations
Exhibit Z: Tenant Existing Generator Area Locations
Exhibit AA: Tenant Building Lobby Paintings
Exhibit BB: Intentionally Omitted
Exhibit CC-1: Prohibited Penetration Area 1
Exhibit CC-2: Prohibited Penetration Area 2
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LEASE (this "LEASE"), dated as of September 25, 2002 between BP 399
PARK AVENUE LLC, a Delaware limited liability company having an office c/o
Boston Properties, Inc., 599 Lexington Avenue, New York, New York 10022
(herein called "LANDLORD") and CITIGROUP INC., a Delaware corporation having
an office at One Court Square, Long Island City, New York 11120 (herein
called "TENANT").
W I T N E S S E T H
WHEREAS, immediately prior to the date of this lease, a related entity
of Tenant owned fee title interest in and to that certain condominium unit known
as Unit Two (herein called the "UNIT") of the condominium known as The 399 Park
Avenue Condominium (herein called the "CONDOMINIUM") in the building (herein
called the "BUILDING") known as 399 Park Avenue in the City, County and State of
New York located on a portion of the land (herein called the "LAND") described
in EXHIBIT A annexed hereto;
WHEREAS, immediately prior to the execution and delivery of this
lease, a related entity of Tenant conveyed its ownership interest in and to the
Unit and that certain condominium unit known as Unit One (herein called "UNIT
ONE") of the Condominium to the Landlord named herein;
WHEREAS, Landlord currently owns fee title interest in and to the Unit
and Unit One;
WHEREAS, Tenant is and has been in occupancy of the entire Premises,
as such term is defined in Section 1.02 hereof; and
WHEREAS, Tenant desires to lease the Premises from Landlord for a term
commencing on the date of this lease,
NOW, THEREFORE, for the mutual covenants herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, the parties hereto, for themselves, their successors
and permitted assigns, hereby covenant as follows:
ARTICLE 1
TERM AND FIXED RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon and subject to the terms, covenants, provisions and conditions of
this lease, the premises described in Section 1.02 hereof in the Unit.
1.02. The premises (herein called the "PREMISES") leased to Tenant
shall consist of (a) the entire mezzanine (herein called the "MEZZANINE
PREMISES"), second
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(2nd), third (3rd), fourth (4th), seventh (7th), tenth (10th), twelfth (12th)
and fourteenth (14th) floors of the Building and a portion of the thirteenth
(13th) floor of the Building (herein collectively called the "OFFICE PREMISES"),
substantially as shown on the floor plans annexed hereto as EXHIBIT B, (b) a
portion of the lobby of the Building (herein called the "LOBBY PREMISES"),
substantially as shown on the floor plan annexed hereto as EXHIBIT B-1 and (c)
portions of the A, B and C basement levels of the Building, substantially as
shown on the floor plans annexed hereto as EXHIBIT B-2 (the A basement level
portion of the Premises is herein called the "BASEMENT LEVEL A PREMISES"); the B
basement level portion of the Premises is herein called the "BASEMENT LEVEL B
PREMISES"; the C basement level portion of the Premises is herein called the
"BASEMENT LEVEL C PREMISES"; the Basement Level A Premises, the Basement Level B
Premises and the Basement Level C Premises are herein collectively called the
"BASEMENT PREMISES"). Landlord and Tenant hereby covenant and agree that no
square footage number shall be ascribed to the Lobby Premises in connection with
the determination of the aggregate rentable square feet contained within the
Premises and the Premises shall be deemed to contain an aggregate of 657,832
rentable square feet, comprised as follows for each floor or portion of the
Premises:
Mezzanine 26,059
2nd floor 91,132
3rd floor 94,689
4th floor 94,697
7th floor 71,808
10th floor 59,618
12th floor 59,529
13th floor 14,692
14th floor 22,261
Basement Level A Premises 41,157
Basement Level B Premises 40,904
Basement Level C Premises 41,286
Landlord hereby grants to Tenant the non-exclusive right to use, in common with
others, the public and common areas of the Unit and the Common Elements (as such
term is defined in the Declaration) to the extent required for access to the
Premises or use of the Premises for general and executive offices and ancillary
and incidental uses as permitted under Section 2.02 hereof, including, without
limitation, common hallways on the floors on which the Premises are located,
stairways, restrooms on the floors on which the Premises are located (provided
however that restrooms located on full floors demised under this lease shall be
part of the Premises), and the Building lobby, subject to the terms, covenants,
provisions and conditions of this lease.
1.03. The term of this lease shall commence on the date of this lease
(herein called the "COMMENCEMENT DATE") and subject to the rights of Tenant to
elect to extend the term of this lease pursuant to the provisions of Article 36
hereof, the term of
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this lease shall end at 11:59 p.m. on September 30, 2017 (herein called the
"EXPIRATION DATE") or on such earlier date upon which the term of this lease
shall expire or be canceled or terminated pursuant to any of the conditions or
covenants of this lease or pursuant to law.
1.04. The rents shall be and consist of the following amounts with
respect to the Premises:
(a) fixed rent (herein called "FIXED RENT") for the Premises
at the following rates for the following periods:
(i) THIRTY-SEVEN MILLION EIGHT HUNDRED TWENTY-FIVE
THOUSAND TWO HUNDRED AND 00/100 DOLLARS ($37,825,200.00) per annum, in
equal monthly installments of $3,152,100.00 each, for the period (herein
called the "FIRST RENT PERIOD") commencing on the Commencement Date and
ending on September 30, 2007;
(ii) FORTY-ONE MILLION ONE HUNDRED FOURTEEN THOUSAND
THREE HUNDRED SIXTY AND 00/100 DOLLARS ($41,114,360.00) per annum, in equal
monthly installments of $3,426,196.67 each, for the period (herein called
the "SECOND RENT PERIOD") commencing on October 1, 2007 and ending on
September 30, 2012; and
(iii) FORTY-FOUR MILLION FOUR HUNDRED THREE THOUSAND
FIVE HUNDRED TWENTY AND 00/100 DOLLARS ($44,403,520.00) per annum, in equal
monthly installments of $3,700,293.33 each, for the period (herein called
the "THIRD RENT PERIOD") commencing on October 1, 2012 and ending on the
Expiration Date,
which Fixed Rent shall be payable commencing on the applicable date set forth
above, and thereafter in equal monthly installments in advance on the first day
of each and every calendar month during the term of this lease, and
(b) additional rent (herein called "ADDITIONAL CHARGES")
consisting of Tax Payments, Operating Payments, charges for electricity
furnished to Tenant and all other sums of money as shall become due from and
payable by Tenant to Landlord hereunder in accordance with the provisions of
this lease;
all to be paid in lawful money of the United States to Landlord at its office,
or such other place, or to Landlord's agent and at such other place, as Landlord
shall designate by notice to Tenant.
1.05. The components of Fixed Rent are as follows and shall be the
basis for computing Fixed Rent abatements or reductions in Fixed Rent pursuant
to any of the provisions of this lease:
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OFFICE PREMISES:
RENT PERIOD FIXED RENT PER RENTABLE SQUARE FOOT
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First Rent Period $ 65.00
Second Rent Period $ 70.00
Third Rent Period $ 75.00
BASEMENT PREMISES:
RENT PERIOD FIXED RENT PER RENTABLE SQUARE FOOT
----------- -----------------------------------
First Rent Period $ 25.00
Second Rent Period $ 30.00
Third Rent Period $ 35.00
Landlord and Tenant agree and acknowledge that the Fixed Rent payable
under this lease with respect to the Lobby Premises shall be $10.00 per annum.
1.06. Tenant covenants and agrees to pay Fixed Rent and Additional
Charges promptly when due without notice or demand therefor, except as such
notice or demand may be expressly provided for in this lease, and without any
abatement, deduction or setoff for any reason whatsoever, except as may be
expressly provided in this lease. Fixed Rent and Additional Charges shall be
paid by good and sufficient check (subject to collection) drawn on a New York
City bank which is a member of the New York Clearing House Association or a
successor thereto. Upon Tenant's notice to Landlord, Fixed Rent and Additional
Charges shall be paid by wire transfer of immediately available "Federal Reserve
Funds" to Landlord or its designee pursuant to the instructions delivered by
Landlord. As used herein, the term "FEDERAL RESERVE FUNDS" shall mean the
receipt by a bank or banks in the continental United States designated by
Landlord of U.S. dollars in form that does not require further clearance, and
may be applied at the direction of Landlord by such recipient bank or banks on
the day of receipt of advice that such funds have been wire transferred.
1.07. If the term of this lease with respect to any portion of the
Premises commences on a day other than the first day of a calendar month, or if
the Expiration Date occurs on a day other than the last day of a calendar month,
the Fixed Rent and Additional Charges for the applicable partial calendar month
shall be prorated in the manner provided in Section 1.09 hereof.
1.08. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Fixed Rent or Additional Charges shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and
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Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this lease or at law
provided.
1.09. Any apportionments or prorations of Fixed Rent or Additional
Charges to be made under this lease shall be computed on the basis of a 365-day
year (based on the actual number of days in the period in question).
1.10. If any of the Fixed Rent or Additional Charges payable under
the terms and provisions of this lease shall be or become uncollectible, reduced
or required to be refunded because of any act or law enacted by a governmental
authority, Tenant shall enter into such agreement(s) and take such other steps
(without additional expense to Tenant) as Landlord may reasonably request and as
may be legally permissible to permit Landlord to collect the maximum rents which
from time to time during the continuance of such legal rent restriction may be
legally permissible (but not in excess of the amounts reserved therefor under
this lease). Upon the termination of such legal rent restriction, (a) the Fixed
Rent and/or Additional Charges shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination, and (b) Tenant shall pay to Landlord promptly upon being billed, to
the maximum extent legally permissible, an amount equal to (i) the Fixed Rent
and/or Additional Charges which would have been paid pursuant to this lease but
for such legal rent restriction less (ii) the rents paid by Tenant during the
period such legal rent restriction was in effect.
1.11. Additional Charges shall be deemed to be rent and Tenant's
failure to pay Additional Charges shall be considered a failure to pay Fixed
Rent hereunder and Landlord shall be entitled to all rights and remedies
provided herein or by law for a default, after the expiration of any applicable
notice and cure period, in the payment of Additional Charges as for a default,
after the expiration of any applicable notice and cure period, in the payment of
Fixed Rent (notwithstanding the fact that Tenant may not then also be in default
in the payment of Fixed Rent).
ARTICLE 2
DELIVERY AND USE OF PREMISES
2.01. (a) Tenant acknowledges that Tenant has inspected the
Premises and is fully familiar with the condition thereof. Tenant has accepted
each floor of the Premises in their "as is" condition, and Landlord shall not be
required to perform any work, install any fixtures or equipment or render any
services to make the Unit, the Building or the Premises ready or suitable for
Tenant's occupancy for the performance of Alterations or for Tenant's occupancy
for the conduct of business (subject, however, to the provisions of Section
2.01(d) hereof and Landlord's obligations during the term of this lease and
pursuant to the provisions of this lease to make certain repairs and provide
certain services to the Premises and the portions of the Building serving the
Premises). The taking of possession of the Premises described in the immediately
preceding sentence shall be deemed to have constituted an acceptance of the
Premises (subject,
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however, to the provisions of Section 2.01(d) hereof and Landlord's obligations
during the term of this lease and pursuant to the provisions of this lease to
make certain repairs to the Premises).
(b) Tenant hereby waives any right to rescind this lease
under the provisions of Section 223(a) of the Real Property Law of the State of
New York, and agrees that the provisions of this Section 2.01(b) are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223(a).
(c) Intentionally Omitted.
(d) (i) Notwithstanding anything to the contrary
contained in this lease, in the event that any asbestos-containing floor tiles
or lead paint shall be discovered in or about the Premises which shall be
required to be removed or remediated as a consequence of the change or
modification of applicable Legal Requirements which are in effect as of the date
of this lease, unless the existence of such materials in or about the Premises
(I.E., the introduction of such materials into the Premises and the Unit) shall
result from any act or omission (where there is a duty to act) from and after
the date of this lease of Tenant or any of Tenant's subtenants or other
occupants of all or any portion of the Premises claiming by, through or under
Tenant, or any of Tenant's or their respective employees, agents or contractors,
Landlord shall (and Landlord's sole liability shall be to), at Landlord's sole
cost and expense, as promptly as reasonably practicable following notice from
Tenant, remove or remediate any such materials (such removal or remediation
being herein referred to as "LANDLORD'S HAZARDOUS MATERIALS WORK") in accordance
with all applicable Legal Requirements. Tenant shall promptly vacate any floor
or portion thereof (as reasonably determined by the parties) in which Landlord
shall be required to perform Landlord's Hazardous Materials Work in accordance
with this Section 2.01(d)(i) (any such floor or portion thereof being
hereinafter referred to as a "LANDLORD'S HAZARDOUS MATERIALS WORK AREA"). Tenant
hereby acknowledges that the performance of Landlord's Hazardous Materials Work
by Landlord may cause some inconvenience to Tenant and interference with the
conduct of Tenant's business in any portions of the Premises adjacent to any
Landlord's Hazardous Materials Work Area, whether located on the same floor as a
Landlord's Hazardous Materials Work Area or on a contiguous floor (any such
portions of the Premises being hereinafter referred to as an "ADJACENT AREA"),
including, without limitation, the sealing off of the Landlord's Hazardous
Materials Work Area from any Adjacent Area and the performance of such actions
and the imposition of such requirements as may be necessary to (A) comply with
applicable Legal Requirements or insurance requirements, and (B) provide for the
safety of Tenant's employees, contractors and invitees in any Adjacent Area
during the performance of Landlord's Hazardous Materials Work (including without
limitation, if necessary in the parties' reasonable judgment, a requirement that
Tenant vacate the entire floor or a portion of a floor on which Landlord is
required to perform any Landlord's Hazardous Materials Work). Tenant further
acknowledges and agrees that Landlord shall not be liable to Tenant, nor shall
Tenant be entitled to any diminution or abatement of
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rent (except as hereinafter set forth) or other compensation or allowance for
diminution of rental value, nor shall this lease or any of the obligations of
Tenant be affected or reduced, as a result of the performance by Landlord of any
Landlord's Hazardous Materials Work or as a result of the existence in the
Premises of any of the materials described in this Section 2.01(d)(i). Subject
to the foregoing, Landlord shall use commercially reasonable efforts to (1)
minimize the size of any area that is sealed off as a Landlord's Hazardous
Materials Work Area and (2) perform Landlord's Hazardous Materials Work
expeditiously and in a manner that will create the least practicable
inconvenience to Tenant and interference with the conduct of Tenant's business
in the Premises, provided that Landlord shall in no event be obligated to
perform same on an "overtime" basis.
(ii) Notwithstanding anything to the contrary
contained in this lease, except as provided in Section 2.01(d)(i) hereof,
in the event that any asbestos-containing materials or other Hazardous
Materials shall be discovered in or about the Premises during the term of
this lease, including with respect to a discovery and/or disturbance of
Hazardous Materials in connection with any Alterations performed by or on
behalf of Tenant, which shall be required to be removed or remediated as a
consequence of current or future Legal Requirements, Tenant shall, at its
sole cost and expense, as promptly as reasonably practicable, remove or
remediate the same in accordance with all applicable Legal Requirements,
and Tenant acknowledges and agrees that Landlord shall not be liable to
Tenant, nor shall Tenant be entitled to any diminution or abatement of rent
or other compensation or allowance for diminution of rental value, nor
shall this lease or any of the obligations of Tenant be affected or
reduced, as a result of the existence in the Premises of any such asbestos,
asbestos-containing materials or other Hazardous Materials.
(e) If any violation of a Legal Requirement which is noted
of record against the Premises or any other portion of the Unit or the Building
shall delay Tenant in obtaining any permits or signoffs from the New York City
Department of Buildings (or any other applicable agency) in connection with
Tenant's Work in any portion of the Premises so as to actually delay Tenant in
commencing (or re-commencing, in the case of any portion of the Premises which
Tenant shall have vacated after taking initial occupancy thereof for the conduct
of business) the conduct of business in such portion of the Premises then, in
such event, promptly after notice from Tenant of such violation together with
reasonable documentation of same, (i) Landlord shall cause such violation to be
cured or otherwise removed of record, except to the extent that Tenant may be
responsible for curing such violation pursuant to any provision of this lease,
and (ii) the Fixed Rent and Additional Charges with respect to such portion of
the Premises shall be abated for one day for each day that Tenant is actually
delayed in commencing (or re-commencing) the conduct of business in such portion
of the Premises as a result thereof, except to the extent that Tenant may be
responsible for curing such violation pursuant to any provision of this lease.
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2.02. (a) The Premises may be used for administrative, executive
and general offices, including, without limitation, use as trading floors, which
are consistent in nature and scope with the operation of Comparable Buildings
and for the other uses expressly set forth in this Section 2.02. Notwithstanding
anything to the contrary contained in Sections 2.04 and 2.05 hereof, and without
in any way limiting the uses permitted under this Section 2.02, the Premises may
be used for all lawful purposes reasonably ancillary and incidental to the
primary use of the Premises, which ancillary and incidental uses are permitted
by the Certificate of Occupancy for the Building (as the same may be amended in
accordance with the terms hereof) and are consistent in nature and scope with
the operations of Comparable Buildings. Such ancillary and incidental uses may
include, without limitation, and portions of the Premises in size in reasonable
proportion to the entire Premises may be used for a use that is ancillary and
incidental (as opposed to primary):
(i) the occupancy and use of portions of the
Premises by Service and Business Relationship Entities in accordance with
the provisions of Article 7 hereof;
(ii) kitchens, dining facilities, pantries and/or
vending machines for the sale of snack foods, non-alcoholic beverages, and
other convenience items (which may be supplied by any party selected by
Tenant) for Permitted Users upon the condition that (A) no food is prepared
or cooked therein (exclusive of microwave reheating), except with respect
to any kitchen or dining facility located in the Premises as of the date of
this lease and any kitchen or dining facility that may be installed in
accordance with the provisions of Section 15.09 hereof, (B) no food or
beverages kept therein or anything else done therein shall cause odors to
be emitted therefrom so as to be detectable outside of the Premises, (C)
the portions of the Premises so used shall, at the sole cost and expense of
Tenant, be at all times maintained in a clean and sanitary condition and
free of vermin and refuse and (D) Tenant shall contract directly for the
removal from the Building of wet rubbish with the carting company servicing
the Building subject to the applicable provisions of this lease;
(iii) board rooms, conference rooms, meeting rooms and
conference centers and facilities for use only by Permitted Users;
(iv) a data center for computer and other electric
data processing and business machine operations in connection with the
business operations of Permitted Users;
(v) training facilities and classrooms in connection
with the business operations of Permitted Users;
(vi) duplicating, photographic reproduction and/or
offset printing facilities in connection with the business operations of
Permitted Users;
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(vii) mailroom facilities in connection with the
business operations of Permitted Users;
(viii) storage of equipment, records, files and other
items in connection with the business operations of Permitted Users;
(ix) medical or health facilities exclusively serving
Permitted Users (subject to Tenant's obligation to procure all required
licenses and permits in connection therewith);
(x) travel services or agencies exclusively serving
Permitted Users;
(xi) day care facilities exclusively serving
Permitted Users (other than occupants not within the Premises and guests
and subject to Tenant's obligation to procure all required licenses and
permits in connection therewith and to locate same in a manner that
complies with applicable Legal Requirements);
(xii) an auditorium for use only by Permitted Users;
(xiii) an exercise facility for the use only by
Permitted Users; and
(xiv) a messenger center for use only by Permitted
Users.
Notwithstanding the foregoing, Landlord makes no warranty or representation as
to the suitability of all or any portion of the Premises for a place of public
assembly requiring a public assembly permit or a change in the Certificate of
Occupancy for the Building or as to whether there will be adequate means of
ingress and/or egress or adequate rest room facilities in the event that Tenant
requires such a public assembly permit or such a change, and Landlord shall have
no liability to Tenant in connection therewith (PROVIDED, HOWEVER, that Landlord
shall reasonably cooperate with Tenant's application for any such public
assembly permit or change in the Certificate of Occupancy, subject to Tenant's
obligation to reimburse Landlord for its out-of-pocket expenses, as more
particularly set forth below), nor shall Landlord have any obligation to perform
any alterations in or to the Building or the Premises or to grant its consent to
the performance of any proposed Alterations by Tenant in order to render any
floor suitable for the issuance of a public assembly permit or for a change in
the Certificate of Occupancy, except as set forth in Article 11 hereof. Tenant
agrees that Tenant shall not use all or any portion of the Premises as a Day
Trading Parlor. As used herein, the term "DAY TRADING PARLOR" shall mean an area
in which, for a daily fee, individual traders (not institutions, funds or
companies) are given desk space and the use of computer facilities for the
purpose of day trading for their own account and the term "PERMITTED USERS"
shall mean Tenant, Tenant's Affiliates, Tenant's Service and Business
Relationship Entities, the occupants of
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the Premises, the Lehman Tenant (with respect to clauses (ii), (iii) and (xii)
of this Section 2.02(a) only) and their respective officers, employees and
guests.
(b) Landlord agrees that throughout the term of this lease,
Landlord shall not change the Certificate of Occupancy for the Building or the
public assembly permit with respect to the auditorium located on the 14th floor
of the Building in a manner which shall affect Tenant's use of the Premises for
general, administrative and executive offices or any of the specific uses
expressly permitted pursuant to this Section 2.02, including, without
limitation, the ancillary and incidental uses described in Section 2.02(a)
hereof, or Tenant's ability to obtain a valid construction permit for any
Alterations in the Premises, unless required by Legal Requirements. At Tenant's
request, Landlord agrees to cooperate with Tenant, at Tenant's sole cost and
expense, in connection with any reasonable changes to the Certificate of
Occupancy for the Building required by Tenant for any reasonable use of the
Premises by Tenant, provided such use is permitted pursuant to the terms of this
lease.
2.03. If any governmental license or permit (other than a Certificate
of Occupancy for the entire Building) shall be required for the proper and
lawful conduct of Tenant's business in the Premises or any part thereof, Tenant,
at its expense, shall duly procure and thereafter maintain such license or
permit and submit the same to Landlord for inspection within thirty (30) days
after Landlord's request therefor. Tenant shall at all times comply in all
material respects with the terms and conditions of each such license or permit.
Additionally, should Alterations or Tenant's use of the Premises for other than
executive and general offices require any modification or amendment of any
Certificate of Occupancy for the Building, Tenant shall, at its expense, take
all commercially reasonable actions necessary to procure any such modification
or amendment and shall reimburse Landlord (as Additional Charges) for all
reasonable out-of-pocket costs and expenses Landlord incurs in effecting said
modifications or amendments within thirty (30) days after demand therefor
accompanied by reasonably satisfactory documentation of such costs and expenses.
Landlord shall cooperate with Tenant in connection with Tenant's obtaining of
any such governmental license or permit (including any permit required in
connection with Tenant's Alterations, including without limitation any
Alterations affecting any asbestos-containing materials that may be located in
the Premises) or any application by Tenant for any amendment or modification to
the Building's Certificate of Occupancy, and shall reasonably promptly execute
and deliver any applications, reports or related documents as may be requested
by Tenant in connection therewith, provided that Tenant shall reimburse Landlord
(as Additional Charges) for the reasonable out-of-pocket costs and expenses
incurred by Landlord in connection with such cooperation within thirty (30) days
after demand therefor, accompanied by reasonably satisfactory documentation of
such costs and expenses, and further provided that Tenant shall indemnify and
hold harmless Landlord from and against any claims arising in connection with
such cooperation, other than any such claims arising from any incorrect
information provided by Landlord in connection therewith or any conditions at or
in the Unit which are Landlord's responsibility
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hereunder. The foregoing provisions are not intended to be deemed Landlord's
consent to any Alterations or to a use of the Premises not otherwise permitted
hereunder nor to require Landlord to effect such modifications or amendments of
any Certificate of Occupancy.
2.04. Tenant shall not at any time use or occupy the Premises, the
Unit or the Building, or suffer or permit anyone to use or occupy the Premises,
or do anything in the Premises, the Unit or the Building, or suffer or permit
anything to be done in, brought into or kept on the Premises, which shall (a)
violate the Certificate of Occupancy for the Premises, the Unit or the Building;
(b) cause injury to the Premises, the Unit or the Building or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authorities; (d) adversely affect the reputation or
appearance of the Building as a first-class office building; (e) impair the
proper maintenance, operation and repair of the Unit or the Building and/or
their equipment, facilities or systems except to an immaterial extent (unless,
in the case of a use which merely increases the costs of such maintenance,
repair and operation on a temporary basis which will cease to exist upon the
cessation of such use, Tenant agrees to reimburse Landlord for such incremental
costs and provided Landlord substantiates such increase with reasonably
satisfactory evidence delivered to Tenant); (f) interfere with other tenants or
occupants of the Building in their use and enjoyment of their premises except to
an immaterial extent; (g) constitute a nuisance, public or private; (h) make
unobtainable from reputable insurance companies authorized to do business in New
York State all-risk property insurance, or liability, elevator, boiler or other
insurance at standard rates required to be furnished by Landlord under the terms
of any mortgages covering the Premises; or (i) discharge objectionable fumes,
vapors or odors into the Building's flues or vents or otherwise (provided that
Tenant shall not be deemed to have violated clause (h) of this Section 2.04 by
virtue of its mere use of the Premises for administrative, executive and general
office uses, as distinguished from its particular manner of use of the Premises
and provided that the uses being conducted in the Premises as of the date of
this lease shall not be deemed to violate the provisions of this Section 2.04).
2.05. Tenant shall not use, or suffer or permit anyone to use, the
Premises or any part thereof, for
(a) intentionally omitted,
(b) a restaurant and/or bar and/or the sale of confectionery
and/or soda and/or beverages and/or sandwiches and/or
ice cream and/or baked goods (except as permitted
pursuant to Section 2.02 hereof or other applicable
provisions of this lease),
(c) the business of photographic reproductions and/or offset
printing (except as permitted pursuant to Section 2.02
hereof or other applicable provisions of this lease),
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(d) an employment agency or, except as permitted pursuant to
Section 2.02 hereof or other applicable provisions of
this lease, a travel agency,
(e) a school or classroom (except as permitted pursuant to
Section 2.02 hereof or other applicable provisions of
this lease),
(f) medical or psychiatric offices (except as permitted
pursuant to Section 2.02 hereof or other applicable
provisions of this lease),
(g) conduct of any auction (except for electronic and
telephonic auctions of securities and commodities
provided that no such auctions are conducted on a
face-to-face basis at the Premises and that the
commodities being auctioned are not displayed, stored or
maintained in the Premises),
(h) intentionally omitted,
(i) a Day Trading Parlor,
(j) gambling activities, or
(k) the conduct of obscene, pornographic or similar
disreputable activities.
Further, the Premises may not be used by (i) an agency, department or bureau of
the United States Government, any state or municipality within the United States
or any foreign government, or any political subdivision of any of them, (ii) any
charitable, religious, union or other not-for-profit organization (except for
not-for-profit or charitable Tenant's Affiliates), or (iii) any tax exempt
entity within the meaning of Section 168(j)(4)(A) of the Internal Revenue Code
of 1986, as amended, or any successor or substitute statute, or rule or
regulation applicable thereto (as same may be amended); PROVIDED, HOWEVER, that
the provisions of clauses (ii) and (iii) of this sentence shall not apply with
respect to up to ten (10%) percent of the rentable area of the Premises, subject
to the provisions of Section 7.11 hereof.
ARTICLE 3
ESCALATIONS
3.01. The terms defined below shall for the purposes of this lease
have the meanings herein specified:
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(a) "BASE OPERATING AMOUNT" shall mean the Operating
Expenses for the Base Operating Year.
(b) "BASE OPERATING YEAR" shall mean the calendar year
commencing on January 1, 2003.
(c) "BASE TAX AMOUNT" shall mean the sum of seventy-five
percent (75%) of the Taxes for the Tax Year commencing on July 1, 2002 and
twenty-five percent (25%) of the Taxes for the Tax Year commencing on July 1,
2003.
(d) "LANDLORD'S STATEMENT" shall mean an instrument or
instruments setting forth the Operating Payment payable by Tenant for a
specified Operating Year pursuant to this Article 3, which Landlord's Statement
shall contain, subject to revision from time to time, the categories of expenses
indicated on the form of Landlord's Statement attached hereto as EXHIBIT N (and,
in the event, that any Landlord's Statement delivered to Tenant during the term
hereof shall contain any additional categories of expenses that are not included
on the form of Landlord's Statement attached hereto as EXHIBIT N, or delete
categories of expenses from such form of Landlord's Statement, such Landlord's
Statement shall be accompanied by a notice informing Tenant of such new
categories or deleted categories, in accordance with the provisions of this
lease, and providing an explanation of the reason for including or deleting
same).
(e) "OPERATING EXPENSES" shall mean (subject to the specific
exclusions from Operating Expenses hereinafter set forth) the aggregate of all
commercially reasonable expenses incurred by Landlord and Affiliates of Landlord
("LANDLORD'S AFFILIATES") and/or on their behalf in respect of the management,
repair, replacement, maintenance, operation and/or security of the Unit (or if
such costs are not separately calculated for the Unit itself, of the Building
but appropriately allocated to the Unit), and the Common Elements to the extent
such costs are appropriately allocable to Landlord and not otherwise excluded by
the provisions of this Section 3.01(e), including, without limitation, the
following items:
(i) salaries, wages, medical, surgical, insurance
(including, without limitation, group life and disability insurance) of
employees of Landlord or Landlord's Affiliates at the grade of building
manager and below who provide on-site services at the Building (I.E.,
excluding back-office or home-office employees or personnel), union and
general welfare benefits, pension benefits, severance and sick day
payments, and other fringe benefits of employees of Landlord and Landlord's
Affiliates and their respective contractors engaged in such management,
repair, replacement, maintenance, operation and/or security at the grade of
building manager and below who provide on-site services at the Building
(I.E., excluding back-office or home-office employees or personnel);
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(ii) payroll taxes, worker's compensation, uniforms
and related expenses (whether direct or indirect) for such employees,
subject to the proviso in clause (i) of this Section 3.01(e);
(iii) the cost of fuel, gas, steam, electricity,
water, sewer and other utilities and heat, ventilation and air-conditioning
(excluding any such utilities or heat, ventilation or air-conditioning
furnished to any leaseable space or to any improvements or equipment in the
Unit or the Building installed by or for any tenant or occupant in portions
of the Unit or the Building other than leaseable space, except to the
extent that the same are required by this lease to be furnished to Tenant
without separate additional charge [E.G., air conditioning during Regular
Building Service Hours, hot and cold water throughout the Building for
cleaning, drinking and sprinkler purposes, etc.]), together with any taxes
and surcharges on, and fees paid to third party persons or entities that
are not affiliated with Landlord (which shall be deemed to include the
managing agent(s) of the Unit and/or the Building) in connection with the
calculation and billing of such utilities, except to the extent otherwise
specifically chargeable to or reimbursable by tenants of the Unit or the
Building, including Tenant (which charge or reimbursement is not pursuant
to a provision in the nature of, or intended to serve the same purpose as,
this Article 3, including, without limitation, charges to tenants for
electric rent inclusion);
(iv) the cost of painting and/or other similar
non-capital cosmetic decorating of all areas of the Unit and the Common
Elements, excluding, however, any space contained therein which is demised
or to be demised to tenant(s), and the cost of holiday decorations and
temporary exhibitions for the lobby and other public portions of the Unit
and the Common Elements in a manner commensurate with other first-class
office buildings in Midtown Manhattan comparable to the Building (herein
called "COMPARABLE BUILDINGS");
(v) the cost of casualty, boiler, sprinkler, plate
glass, liability, fidelity, rent, terrorism (provided, however, that the
cost of terrorism insurance in the Base Operating Year shall not be
included in the Base Operating Amount) and all other insurance generally
carried by owners of Comparable Buildings regarding the Unit and the Common
Elements and/or any property on, below or above the Unit and the Common
Elements, and the repair, replacement, maintenance, operation and/or
security of the foregoing items set forth in this clause (v);
(vi) the cost of all supplies, tools, materials and
equipment, whether by purchase or rental, used in the repair, replacement,
maintenance, operation and/or security of the Unit and the Common Elements,
and any sales and other taxes thereon; PROVIDED, HOWEVER, that if and to
the extent
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that any of the foregoing are used at or with respect to more than one
property of Landlord, then the foregoing amounts shall only be included
Operating Expenses in the same proportion that such use at or with respect
to the Unit and the Common Elements bears to the aggregate use of the
foregoing at all properties;
(vii) the rental value of the Landlord's Building
office located in the Building and utilized by the personnel of either
Landlord or Landlord's Affiliates, in connection with the repair,
replacement, maintenance, operation and/or security thereof (to the extent
that such rental value shall be based on an office the size of which shall
not exceed the size of Building offices in Comparable Buildings comparable
in size to the Building and that such rental value shall have been included
in the Base Operating Amount), and all customary Building office expenses,
such as telephone, utility, stationery and similar expenses incurred in
connection therewith;
(viii) the cost of cleaning, janitorial and security
services, including, without limitation, glass cleaning, snow and ice
removal and garbage and waste collection and/or disposal;
(ix) the cost of (A) all interior and exterior
landscaping and (B) all temporary exhibitions located at or within the Unit
and the Common Elements in a manner and at a cost commensurate with other
Comparable Buildings;
(x) costs for alterations, improvements, repairs and
replacements made or installed after the expiration of the Base Operating
Year by reason of Legal Requirements enacted, adopted, promulgated, amended
or modified after the date of this lease, or any reinterpretation by a
court of law or governmental authority of any Legal Requirement issued
after the date of this lease; and to the extent such costs should be
capitalized in accordance with generally accepted accounting principles,
consistently applied ("GAAP"), such costs shall be amortized over a period
of time which shall be the shorter of: (A) the useful life of the item in
question, as reasonably determined by Landlord, or (B) fifteen (15) years,
with an interest factor equal to the Base Rate in effect as of December 31
of the year in which such cost is incurred;
(xi) the cost of improvements, alterations, repairs,
replacements, equipment or machinery made or installed after the expiration
of the Base Operating Year for the purpose of reducing energy consumption
or reducing other Operating Expenses, including, without limitation, the
cost of installing a film on the inside of the windows of the Building in
accordance with Section 16.01 hereof; PROVIDED, HOWEVER, that if and to the
extent such costs should be capitalized in accordance with GAAP, commencing
upon the completion of the item in question and continuing until such cost
(together with interest at the Base Rate in effect as of December 31 of the
year in which such
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cost is incurred) shall have been fully included, there shall be included
in Operating Expenses for any period only an amount equal to the actual
amount by which expenses which would otherwise have been included in
Operating Expenses are reduced for such period as the result of such
improvements, alterations, repairs, replacements, equipment or machinery;
(xii) intentionally omitted;
(xiii) intentionally omitted;
(xiv) management fees; PROVIDED, HOWEVER, that if
Landlord or a Landlord's Affiliate is the managing agent of the Unit or the
Building, then the annual management fee shall be equal to the
then-prevailing market rate for owner-managed Comparable Buildings;
(xv) all reasonable costs and expenses of legal,
bookkeeping, accounting and other professional services incurred in
connection with the operation, and management of the Unit and the Common
Elements (which services shall be reasonably apportioned based on the
relative usage thereof if such services relate to more than one property of
Landlord) except as hereinafter excluded; and
(xvi) fees, dues and other contributions paid by or on
behalf of Landlord or Landlord's Affiliates to civic or other real estate
organizations (not to exceed the current number of organizations) provided
same do not exceed the level customarily paid by owners of Comparable
Buildings and further provided that if and to the extent that any of such
fees, dues or contributions are properly allocable to more than one
property of Landlord, then the foregoing amounts shall only be included
Operating Expenses in the same proportion that their proper allocation to
the Unit and the Common Elements bears to all properties (including the
Unit and the Common Elements) based on the relative rentable areas of the
Unit and the rentable areas of all such properties.
The term "OPERATING EXPENSES", as used and defined under this Section
3.01(e), shall exclude and not include the following items:
(1) depreciation and amortization (except as provided above in this
subsection);
(2) interest on and amortization of debts (and costs and charges
incurred in connection with such financings);
(3) the cost of any alterations, additions, changes, replacements
and improvements that are made solely in order to prepare space
for occupancy by a new tenant (including Tenant) and any
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contribution or concession by Landlord to such tenant in
connection therewith;
(4) the costs of capital improvements, other than those which in
accordance with GAAP are deemed expenses or deferred expenses or
which are permitted to be included in Operating Expenses in
accordance with the provisions of Sections 3.01(e)(x) and
3.01(e)(xi) above;
(5) financing and refinancing costs (including, without limitation,
mortgage recording taxes), and payments of mortgage interest and
principal;
(6) the cost of heating, air-conditioning and ventilation during
overtime periods for any other tenants or occupants of the Unit
or the Building, as well as the cost of any work or services
performed for any tenant(s) or occupants of the Unit or the
Building (including Tenant), whether at the expense of Landlord
or Landlord's Affiliates or such tenant(s) or occupants, to the
extent that such work or services are in excess of the work or
services generally provided to tenants or occupants of the Unit
or the Building with no additional expense;
(7) the cost of electricity furnished to the Premises or any other
space in the Unit or the Building that is leased or leaseable to
tenants or occupants;
(8) Taxes;
(9) salaries, wages and fringe benefits for officers, employees and
executives of Landlord and any Landlord Affiliates above the
grade of building manager and fire safety manager;
(10) amounts received by Landlord or the Board of Managers through
the proceeds of insurance or condemnation or from a tenant or
occupant (other than pursuant to an escalation provision similar
to this Article 3) or otherwise to the extent such amounts are
compensation for sums previously included in Operating Expenses
for such Operating Year or any prior Operating Year;
(11) costs of repairs or replacements incurred by reason of fire or
other casualty or condemnation except that in connection
therewith any amount equal to the deductibles under Landlord's
(or the Board of Managers') insurance policies (which
deductibles shall be equal to the amount(s) of deductibles
customarily carried by landlords of
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Comparable Buildings) may be included within Operating Expenses;
(12) advertising and promotional expenditures;
(13) leasing or brokerage commissions, or fees, attorneys' fees,
appraisal fees or accountants' fees to the extent incurred by
Landlord or the Board of Managers with respect to the Unit or
the Condominium in connection with the negotiation and
preparation of new or renewal leases in the Unit or the Building
or in enforcing Landlord's rights under leases (except to the
extent that the enforcement of such rights benefits one or more
tenants or occupants of the Unit or the Building generally and
Landlord does not recover such fees from the offending tenant or
occupant), or legal or accounting fees in connection with tax
returns, tax reporting or accounting;
(14) any expenditure paid to any corporation or entity related to or
affiliated with Landlord or the principals of Landlord to the
extent such expenditure exceeds the amount which would
customarily be paid to a similar entity not affiliated with
Landlord for similar services;
(15) the cost of any service furnished to tenants of the Unit or the
Building (including Tenant) to the extent that such cost is
separately reimbursed to Landlord (other than through the
Operating Payments or comparable payments pursuant to
escalation-type provisions similar to the provisions of this
Article 3);
(16) costs of acquiring, leasing, insuring, restoring, removing or
replacing sculptures and paintings that are deemed to be "fine
art" (rather than decorative art work customarily found in
Comparable Buildings), except for the cost of routine
maintenance of all such objects in the public areas in the Unit
or the Building;
(17) ground rent or any other payments paid under ground leases or
Superior Leases (other than payments which, independent of the
ground lease or Superior Lease, would constitute an Operating
Expense hereunder);
(18) any costs incurred for the purpose of effecting a sale of the
Unit or the Building or the Land or any other real property
interest therein (including, without limitation, New York State
and New York City transfer taxes);
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(19) payments of any amounts to any person (including Tenant) seeking
recovery for negligence or other torts committed by Landlord or
the Board of Managers;
(20) costs relating to withdrawal liability or unfunded pension
liability under the Multi-Employer Pension Plan Act or similar
Legal Requirement;
(21) the cost of installing, operating and maintaining any specialty
facility, such as an observatory, lodging, broadcasting
facilities, luncheon club, athletic or recreational club, child
care facility, auditorium, cafeteria or dining facility,
conference center or similar facilities (but nothing contained
herein shall be deemed to limit Landlord's right to collect any
charges from Tenant in respect of the use of any such facility
or the operating and maintenance costs thereof in the event that
Tenant shall have the right to use any such facility pursuant to
a separate agreement between Landlord and Tenant);
(22) any interest, fine, penalty or other late charges payable by
Landlord, incurred as a result of late payments of any nature,
including interest owed or credited to Tenant after the
resolution of a dispute, except to the extent such interest,
fine, penalty or other late charge was incurred with respect to
a payment, part or all of which was the responsibility of Tenant
hereunder, and which Tenant did not make in a timely fashion or
at all;
(23) expenses incurred by Landlord or the Board of Managers, if and
to the extent such expenses are incurred for the benefit of any
retail tenants in the Building;
(24) any compensation paid to clerks, attendants or other persons in
commercial concessions or any parking facility located in the
Unit or the Building operated by Landlord or the Board of
Managers;
(25) costs incurred by Landlord or the Board of Managers which result
from Landlord's or any tenant's breach of a lease (including
this lease) or Landlord's or the Board of Managers' tortious or
negligent conduct;
(26) the cost of operating the entity that constitutes Landlord or
the Board of Managers (in contradistinction to the costs of
operating and maintaining the Unit and the Common Elements),
including accounting fees, legal fees and any costs incurred by
Landlord or the Board of Managers in disputes with (a) the
Building
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employees, or (b) third parties employed by Landlord or the
Board of Managers that are not engaged in Building operations,
or (c) any Superior Mortgagee (except to the extent that actions
of any tenant may be in issue);
(27) costs of Landlord's charitable and political contributions;
(28) costs to comply with any existing violation of Legal
Requirements or insurance requirements in effect on the date
hereof, or to correct any condition that would constitute a
Landlord misrepresentation under this lease;
(29) amounts received by Landlord under any warranties to the extent
such amounts are reimbursement for expenses which were
previously included in Operating Expenses hereunder;
(30) lease takeover costs incurred by Landlord in connection with
leases in the Unit or the Building;
(31) the cost of any expansions of the Unit or the Building and any
Operating Expenses attributable to any such expansion of the
Unit or the Building (provided that the parties agree that there
shall not be any adjustment of Tenant's Share to take into
account any such expansion);
(32) damages and attorneys' fees and disbursements and any other
costs in connection with any proceeding, judgment, settlement or
arbitration award resulting from any liability of Landlord and
fines or penalties [except for fines or penalties relating to
minor, common infractions (such as sidewalk violations) to the
extent that an appropriate amount was included in the Base
Operating Amount for fines or penalties relating to minor,
common infractions (such as sidewalk violations)] to the extent
any of the same are due to, or arise from, Landlord's or the
Board of Managers' gross negligence (but for purposes of fines
and penalties, negligence) or willful misconduct, including
deductibles under any insurance policies covering such
liabilities;
(33) insurance premiums, but only if and to the extent that Landlord
is specifically entitled to be reimbursed therefor by Tenant
pursuant to this lease (other than pursuant to this Article 3)
or by any other tenant or other occupant of the Unit or the
Building pursuant to its lease (other than pursuant to an
operating expenses escalation clause contained therein);
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(34) costs and expenses incurred by Landlord in connection with any
obligation of Landlord to indemnify any tenant or occupant of
the Unit or the Building (including Tenant) pursuant to its
lease or otherwise;
(35) costs incurred with respect to removal or encapsulation or other
treatment of Hazardous Materials (unless such Hazardous
Materials were introduced to the Building by Tenant or anyone
claiming by through or under Tenant), but excepting costs of
normal and customary testing and monitoring;
(36) any rent loss or reserves for bad debts or rent loss;
(37) the rental cost of items which (if purchased) would be
capitalized and excluded from Operating Expenses pursuant to the
terms of this lease;
(38) common expenses of the Condominium, if and to the extent that
such common expenses duplicate or are in excess of amounts
otherwise properly includable in Operating Expenses in
accordance with the terms and conditions of this lease (I.E.,
the determination of whether and to what extent an item of
expense is includable as an Operating Expense in accordance with
the terms and conditions of this lease shall be made without
regard to whether the amount of such item is payable by Landlord
as part of common charges or directly to a third party);
(39) costs expressly excluded from Operating Expenses by any other
provision of this lease;
(40) costs, if any, of providing services to The Citigroup Center
Condominium (which condominium is comprised of those buildings
and/or units known as Citigroup Center, located at 153 East 53rd
Street, New York, New York); and
(41) all costs in connection with that certain Grant of Easement by
and between the Board of Managers of the 399 Park Avenue
Condominium, as grantor, and BP/CGCenter I LLC and BP/CGCenter
II LLC, collectively, as grantee, dated as of April 25, 2001 and
recorded at Reel 3279, Page 1969, in the Office of the Register
of the City of New York, New York County.
No item of expense shall be counted more than once either as an inclusion in or
an exclusion from Operating Expenses (including without limitation by reason of
any potential duplication of functions, if any, performed both by employees of
Landlord and
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by employees of the Condominium), and any expense which should be allocated, in
accordance with GAAP between the Unit and the Common Elements, on the one hand,
and any other property owned by Landlord or a Landlord's Affiliate, on the other
hand, shall be properly allocated in accordance therewith.
(f) "OPERATING YEAR" shall mean each calendar year in which
occurs any part of the term of this lease following the end of the Base
Operating Year.
(g) "REAL PROPERTY" shall mean, collectively, the Building
(together with all personal property of Landlord, the Board of Managers or any
other owner of any condominium unit in the Building, located therein and used in
connection with the operation, repair and maintenance of the Real Property
(excluding fine art) and all fixtures, facilities, machinery and equipment used
in the operation thereof, including, but not limited to, all cables, fans,
pumps, boilers, heating and cooling equipment, wiring and electrical fixtures
and metering, control and distribution equipment, component parts of the HVAC,
electrical, plumbing, elevator and any life or property protection systems
(including, without limitation, sprinkler systems), window washing equipment and
snow removal equipment), the Land, any property beneath the Land, the curbs,
sidewalks and plazas on and/or immediately adjoining the Land, and all
easements, air rights, development rights and other appurtenances benefiting the
Building or the Land or both the Land and the Building, PROVIDED, HOWEVER, that
the foregoing shall not be construed to prevent Landlord from including in
Operating Expenses in accordance with the applicable provisions of this Article
3 any costs incurred by or on behalf of Landlord with respect to actions taken
or items installed, maintained, repaired or operated under the Land (such as
pipes and conduits) in connection with the operation, repair or maintenance of
the Real Property.
(h) "TAXES" shall mean (i) the real estate taxes, vault
taxes, assessments and special assessments, and business improvement district or
similar charges levied, assessed or imposed upon or with respect to the Unit, by
any federal, state, municipal or other governments or governmental bodies or
authorities, (ii) all taxes assessed or imposed with respect to the rentals
payable hereunder other than general income and gross receipts taxes and (iii)
Landlord's share of any items of the nature of those described in clauses (i)
and (ii) above which are imposed separately upon the Common Elements or the
Condominium. If at any time during the term of this lease the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of, or
as an addition to or as a substitute for, the whole or any part of such real
estate taxes, assessments and special assessments now imposed on real estate,
there shall be levied, assessed or imposed (A) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (B) any other such additional or
substitute tax, assessment, levy, imposition, fee or charge, then all such
taxes, assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Taxes" for the
purposes hereof; PROVIDED, HOWEVER, that any such taxes, assessments, levies,
fees, impositions, fees or
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charges which are "in addition to" (as opposed to "in lieu of" or "as a
substitute for") taxes otherwise includable in this definition of Taxes shall
only be deemed Taxes if such amounts, from and after the time of their
imposition, shall generally be treated as Taxes in other leases entered into by
Landlord and by landlords of Comparable Buildings with tenants leasing in excess
of 100,000 rentable square feet. Any dispute between Landlord and Tenant as to
whether any taxes, assessments, levies, fees, impositions or charges should be
included in Taxes as amounts which are includable on the basis that they are "in
addition to" Taxes in accordance with the proviso at the end of the immediately
preceding sentence shall be determined by expedited arbitration in accordance
with the provisions of Article 39 below. Notwithstanding anything to the
contrary contained herein, the term "Taxes" shall exclude any taxes imposed in
connection with a transfer of the Unit or any refinancing thereof, and shall
further exclude any net income, franchise or "value added" tax, inheritance tax
or estate tax imposed or constituting a lien upon Landlord or all or any part of
the Unit or the Land, except to the extent that any of the foregoing are
hereafter assessed against owners or lessors of real property in their capacity
as such (as opposed to any such taxes which are of general applicability) in
lieu of, or as an addition to (subject to the provisions of the second sentence
of this Section 3.01(h)) or as a substitute for, the whole or any part of such
real estate taxes, assessments and special assessments now imposed on real
estate. Notwithstanding anything to the contrary contained in this lease, if an
assessed valuation of the Unit shall include an assessed valuation amount
allocable to an addition of new space in the Unit (in which case, the parties
agree that there shall not be an adjustment of Tenant's Share to take into
account such additional area of the Unit), or to an addition of an amenity in
the Unit which is not available for the use or benefit of Tenant, in either case
made after the date of this lease, then the computation of Taxes shall not
include any amount which would otherwise constitute Taxes payable by reason of
the addition of such new space or amenity, as the case may be.
(i) "TAX YEAR" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this lease, or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(j) "TENANT'S SHARE" shall mean the fraction, expressed as a
percentage, the numerator of which shall be the number of rentable square feet
included within the Premises and the denominator of which shall be 1,147,606.
For so long as the Premises shall be deemed to contain 657,832 rentable square
feet, Tenant's Share shall mean 57.32%, comprised as follows:
2nd floor 7.94%
3rd floor 8.25%
4th floor 8.25%
7th floor 6.26%
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10th floor 5.19%
12th floor 5.19%
13th floor 1.28%
14th floor 1.94%
Mezzanine 2.27%
Basement Level A Premises 3.58%
Basement Level B Premises 3.56%
Basement Level C Premises 3.60%
3.02. (a) If Taxes payable for any Tax Year, any part of which
shall occur during the term of this lease, shall exceed the Base Tax Amount,
Tenant shall pay to Landlord as Additional Charges for such Tax Year an amount
(herein called the "TAX PAYMENT") equal to Tenant's Share of the amount by which
the Taxes for such Tax Year are greater than the Base Tax Amount; provided,
however, that Tenant shall not be obligated to make any Tax Payments for any
period prior to October 1, 2003. The Tax Payment for each Tax Year shall be due
and payable in installments in the same manner that Taxes for such Tax Year are
due and payable by Landlord to the City of New York. Tenant shall pay Tenant's
Share of each such installment within thirty (30) days after the rendering of a
statement therefor by Landlord to Tenant, which statement shall be rendered by
Landlord so as to require Tenant's Share of Taxes to be paid by Tenant ten (10)
days prior to the date such Taxes first become due to the taxing authority. The
statement to be rendered by Landlord shall set forth in reasonable detail the
computation of Tenant's Share of the particular installment(s) being billed and
shall include a copy of the tax bill from the taxing authorities relevant to the
computation of Tenant's Tax Payment. If there shall be any increase in the Taxes
for any Tax Year, whether during or after such Tax Year, or if there shall be
any decrease in the Taxes for any Tax Year, the Tax Payment for such Tax Year
shall be appropriately adjusted and paid or refunded, as the case may be, in
accordance herewith. If during the term of this lease, Taxes are required to be
paid to the appropriate taxing authorities in full or in monthly, quarterly, or
other installments, on any other date or dates than as presently required, then
at Landlord's option, Tenant's Tax Payments shall be correspondingly accelerated
or revised so that said Tenant's Tax Payments are due at least ten (10) days
prior to the date payments are due to the taxing authorities.
(b) If Landlord shall receive a refund of Taxes for any Tax
Year, Landlord shall, at Tenant's option, either pay to Tenant, or credit
against subsequent Fixed Rent and Additional Charges under this lease, Tenant's
Share of the net refund (after deducting from such total refund the reasonable
and out-of-pocket costs and expenses, including, but not limited to, appraisal,
accounting and legal fees of obtaining the same, or Landlord's share of such
reasonable and out-of-pocket costs and expenses incurred by the Board of
Managers, as the case may be, to the extent that such costs and expenses were
not theretofore collected from Tenant for such Tax Year) and Landlord shall
promptly notify Tenant of the amount of Tenant's Share of such net refund
inclusive of Tenant's Share of any interest thereon received by Landlord and
shall promptly credit
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or refund such amount within thirty (30) days to Tenant (as Tenant shall elect);
PROVIDED, HOWEVER, such payment or credit to Tenant shall in no event exceed
Tenant's Tax Payment plus any such interest allocable to such Tenant's Tax
Payment paid for such Tax Year to which such refund applies.
(c) Landlord shall, with respect to each Tax Year, initiate
and pursue in good faith an application and proceeding seeking a reduction in
Taxes or the assessed valuation of the Unit (a "CERTIORARI APPLICATION") to the
extent that doing so would be reasonable and customary for landlords of
Comparable Buildings for the Tax Year in question; PROVIDED, HOWEVER, that if
Landlord shall elect not to initiate and pursue a Certiorari Application for any
Tax Year, not later than thirty (30) days prior to the last day on which
Landlord would be entitled to initiate a Certiorari Application, Landlord shall
give notice of such election (a "CERTIORARI WAIVER NOTICE") to Tenant, which
notice shall contain a statement in bold type and capital letters stating "THIS
IS A CERTIORARI WAIVER NOTICE" as a condition to the effectiveness thereof.
Tenant shall have the right within fifteen (15) days (time being of the essence)
after the giving of such Certiorari Waiver Notice to give a notice to Landlord
directing Landlord to initiate and pursue a Certiorari Application (a
"CERTIORARI DIRECTION NOTICE"). In the event that Tenant shall give a Certiorari
Direction Notice to Landlord in accordance with the provisions of the preceding
sentence, Landlord shall initiate a Certiorari Application prior to the last day
on which it is entitled to initiate same and shall pursue same in good faith,
provided that if, as a direct result of such Certiorari Application, the
assessed valuation of the Unit for such Tax Year shall increase beyond the
assessed valuation initially set by the New York City Department of Finance,
Tenant will pay to Landlord, as Additional Charges hereunder, the incremental
additional Taxes resulting from such increase in the assessed valuation of the
Unit, together with the third-party out-of-pocket costs, if any, incurred by
Landlord in connection therewith, which obligation shall survive the expiration
of the term of the lease. Any dispute between the parties as to whether the
filing of the Certiorari Application caused any increase in the assessed
valuation of the Unit, or as to the amount of additional Taxes resulting
therefrom, or as to whether any increase in Taxes continues as a result of such
increase in the assessed valuation of the Unit, will be resolved by arbitration
in accordance with the provisions of Article 39 hereof. In connection with any
Certiorari Application relating to any Tax Year occurring during the term of
this lease, Tenant shall have the right to retain, at Tenant's sole cost and
expense, its own certiorari counsel (hereinafter called "TENANT'S CERTIORARI
COUNSEL"), who shall have the right to consult with the counsel retained by
Landlord in connection with such Certiorari Application ("LANDLORD'S CERTIORARI
COUNSEL") with respect to such Certiorari Application and any proceedings in
connection therewith, provided that Tenant's Certiorari Counsel shall have first
executed and delivered to Landlord a confidentiality agreement in form
reasonably acceptable to Landlord wherein Tenant's Certiorari Counsel shall
agree to maintain in strict confidence and not to reveal to any third parties,
including without limitation Tenant, any information obtained pursuant to this
Section 3.02(c) that may be designated by Landlord as proprietary except as may
be required by applicable Legal Requirements or by a court of competent
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jurisdiction or in connection with any action or proceeding before a court of
competent jurisdiction. Subject to the provisions of the preceding sentence,
Landlord shall cause Landlord's Certiorari Counsel to meet with Tenant's
Certiorari Counsel, to keep Tenant's Certiorari Counsel advised as to the status
of the Certiorari Application(s) in question and the strategies employed or to
be employed by Landlord and Landlord's Certiorari Counsel in connection
therewith, and Landlord and Landlord's Certiorari Counsel shall consider any
recommendations of Tenant's Certiorari Counsel with respect to such Certiorari
Application(s), but in no event shall Landlord or Landlord's Certiorari Counsel
be obligated to follow any such recommendations. Tenant's Certiorari Counsel
shall have the right to attend meetings, but shall not participate in meetings,
between Landlord and/or Landlord's Certiorari Counsel and the New York City
Department of Finance Assessor's Office with respect to any such Certiorari
Applications. Notwithstanding anything to the contrary set forth in this Section
3.02(c), Landlord shall have the right to settle any and all certiorari
proceedings with respect to the Unit, provided that Tenant shall not have
incurred any increased liability or costs occasioned by the giving of the
Certiorari Direction Notice, in which aforesaid event, Landlord shall only have
the right to settle with the consent of Tenant, which consent shall not be
unreasonably withheld, conditioned, or delayed, and Tenant, for itself and its
immediate and remote subtenants and successors in interest hereunder, hereby
waives, to the extent permitted by law, any right Tenant may now or in the
future have to protest or contest any Taxes or to bring any application or
proceeding seeking a reduction in Taxes or assessed valuation or otherwise
challenging the determination thereof; PROVIDED, HOWEVER, that in connection
with any Certiorari Application filed by Landlord as the result of the giving by
Tenant of a Certiorari Direction Notice with respect to which Tenant withholds
its consent to a settlement in accordance with the foregoing provisions of this
sentence, Tenant shall have the right, upon written notice given to Landlord not
less than thirty (30) days prior to the last date for filing same, to require
Landlord to file a judicial proceeding for judicial review of the applicable
Certiorari Application (herein called a "TENANT REQUIRED JUDICIAL PROCEEDING").
In the event that Tenant requires Landlord to file a Tenant Required Judicial
Proceeding: (i) such Tenant Required Judicial Proceeding shall be prosecuted by
Landlord's Certiorari Counsel and (ii) if, as a result of such Tenant Required
Judicial Proceeding, the assessed valuation of the Unit for such Tax Year shall
increase beyond the assessed valuation initially set by the New York City
Department of Finance, Tenant shall pay to Landlord, as Additional Charges
hereunder, the incremental additional Taxes resulting from such increase in the
assessed valuation of the Unit and (iii) Tenant shall pay to Landlord the
third-party out-of-pocket costs, if any, incurred by Landlord in connection with
such Tenant Required Judicial Proceeding, which obligations shall survive the
expiration of the term of the lease.
(d) The benefit of any discount for the early payment or
prepayment of Taxes shall accrue solely to the benefit of Landlord and such
discount shall not be subtracted from Taxes.
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(e) In respect of any Tax Year which begins prior to the
Commencement Date or terminates after the Expiration Date, the Tax Payment in
respect of such Tax Year or tax refund pursuant to Section 3.02(b) above
therefor shall be prorated to correspond to that portion of such Tax Year
occurring after the Commencement Date and prior to the Expiration Date.
(f) If the Taxes for the Tax Years commencing July 1, 2002
and/or July 1, 2003 are reduced as a result of an appropriate proceeding or
otherwise, the Base Tax Amount shall, nonetheless, not be reduced and shall be
and remain throughout the term of this lease the sum of seventy-five percent
(75%) of the Taxes initially determined by the taxing authority for the Tax Year
commencing on July 1, 2002 and twenty-five percent (25%) of the Taxes initially
determined by the taxing authority for the Tax Year commencing on July 1, 2003.
(g) Tenant shall pay to Landlord within thirty (30) days
after Landlord submits a bill therefor, together with reasonable documentation
thereof, Tenant's Share of any reasonable out-of-pocket expenses incurred by
Landlord in contesting any items comprising Taxes and/or the assessed value of
the Unit, except to the extent, if any, that such expenses shall have already
been deducted by Landlord from a tax refund pursuant to Section 3.02(b) above or
included in Operating Expenses pursuant to Section 3.01(e) hereof.
3.03. (a) For each Operating Year, subsequent to the Base
Operating Year, any part of which shall occur during the term of this lease,
Tenant shall pay an amount (herein called the "OPERATING PAYMENT") equal to the
sum of Tenant's Share of the amount by which the Operating Expenses for such
Operating Year exceed the Operating Expenses for the Base Operating Year;
PROVIDED, HOWEVER, that Tenant shall not be obligated to make any Operating
Payments for any period prior to January 1, 2004.
(b) If during the Base Operating Year or any Operating Year
(i) any rentable space in the Unit shall be vacant or unoccupied, and/or (ii)
the tenant or occupant of any space in the Unit or the Building (as applicable,
and consistently applied) undertook to perform work or services therein in lieu
of having Landlord (or Landlord's Affiliates) or the Board of Managers perform
the same and the cost thereof would have been included in Operating Expenses,
then, in any such event(s), the Operating Expenses for such period which would
vary with the percentages of occupancy of the Unit or the percentages of tenants
or occupants for which work or services are performed by Landlord (or Landlord's
Affiliates) or the Board of Managers shall be reasonably adjusted to reflect as
closely as possible the variable Operating Expenses that actually would have
been incurred if such space had been occupied or if Landlord (or Landlord's
Affiliates) or the Board of Managers had performed such work or services, as the
case may be. By way of example, if during an Operating Year fifty (50%) percent
of the rentable space in the Unit were vacant and as a result thereof Landlord's
actual cost of providing base building cleaning to rentable space in the Unit
were reduced by forty
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(40%) rather than fifty (50%) percent due to economies of scale or for any other
reason, then the line item for base building cleaning provided to rentable space
in the Unit for such Operating Year would be increased by the same forty (40%)
percent, rather than fifty (50%) percent, to reflect as closely as possible the
variable Operating Expenses that actually would have been incurred if such space
had been occupied.
(c) Landlord may furnish to Tenant, prior to the
commencement of each Operating Year a written statement setting forth in
reasonable line-item detail Landlord's reasonable estimate of the Operating
Payment for such Operating Year. In the event that such estimate of the
Operating Payment reflects an increase in total Operating Expenses for the Unit
and the Common Elements of more than three (3%) percent in excess of the total
Operating Expenses for the previous calendar year, such estimate shall be
accompanied by a reasonably detailed explanation of such increase. In the event
that Tenant disputes an estimate of the Operating Payment which reflects an
increase in total Operating Expenses for the Unit or the Common Elements of more
than three (3%) percent in excess of the total Operating Expenses for the
previous calendar year, Tenant shall have the right to challenge such estimate
substantially in the manner set forth in Section 3.03(e) below. Tenant shall pay
to Landlord on the first day of each month during the Operating Year in which
the Operating Payment will be due, an amount equal to one-twelfth (1/12th) of
such estimate of the Operating Payment for such Operating Year. If, however,
Landlord shall not furnish any such estimate for an Operating Year or if
Landlord shall furnish any such estimate for an Operating Year subsequent to the
commencement thereof, then (i) until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Article 3 in respect of the last month
of the preceding Operating Year; (ii) after such estimate is furnished to
Tenant, Landlord shall give notice to Tenant stating whether the installments of
the Operating Payment previously made for such Operating Year were greater or
less than the installments of the Operating Payment to be made for the Operating
Year in which the Operating Payment will be due in accordance with such
estimate, and (A) if there shall be a deficiency, Tenant shall pay the amount
thereof within thirty (30) days after demand therefor, or (B) if there shall
have been an overpayment, Landlord shall within thirty (30) days of such notice
refund to Tenant the amount thereof, failing which any unpaid amount shall bear
interest at the Interest Rate from the thirty-first (31st) day after such notice
until such amount is paid to Tenant; and (iii) on the first day of the month
following the month in which such estimate is furnished to Tenant and monthly
thereafter throughout the remainder of such Operating Year Tenant shall pay to
Landlord an amount equal to one-twelfth (1/12th) of the Operating Payment shown
on such estimate. Landlord may, during each Operating Year, furnish to Tenant a
revised statement of Landlord's reasonable estimate of the Operating Payment for
such Operating Year, and in such case, the Operating Payment for such Operating
Year shall be adjusted and paid or refunded or credited as the case may be,
substantially in the same manner as provided in the preceding sentence (with
Tenant
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having the right to dispute any increase of more than three (3%) percent as
provided above).
(d) Landlord shall furnish to Tenant a Landlord's Statement
for each Operating Year (and shall use reasonable efforts to do so within ninety
(90) days after the end of each Operating Year). Such statement shall be in the
form attached to this lease as EXHIBIT N and shall set forth in reasonable
line-item detail the Operating Expenses for such Operating Year. If the
Landlord's Statement shall show that the sums paid by Tenant, if any, under
Section 3.03(c) hereof exceeded the Operating Payment to be paid by Tenant for
the Operating Year for which such Landlord's Statement is furnished, Landlord
shall refund to Tenant the amount of such excess within thirty (30) days; and if
the Landlord's Statement for such Operating Year shall show that the sums so
paid by Tenant were less than the Operating Payment to be paid by Tenant for
such Operating Year, Tenant shall pay the amount of such deficiency within
thirty (30) days after demand therefor, failing which any unpaid amount shall
bear interest at the Interest Rate from the thirty-first (31st) day after such
demand until such amount is paid to Tenant.
(e) (i) Tenant, upon reasonable notice given within one
hundred fifty (150) days of the receipt of such Landlord's Statement, may elect
to have Tenant's designated (in such notice) Audit Representative examine such
of Landlord's books and records (collectively "RECORDS") as are directly
relevant to the Landlord's Statement in question, together with reasonable
supporting data therefor. Landlord hereby agrees to maintain and preserve
Landlord's Records with respect to each Operating Year for a period of at least
five (5) years following the delivery of the Landlord's Statement with respect
thereto. In making such examination, Tenant agrees, and shall cause its Audit
Representative to agree, to keep confidential (A) any and all information
contained in such Records and (B) the circumstances and details pertaining to
such examination and any dispute or settlement between Landlord and Tenant
arising out of such examination, except as may be required (1) by applicable
Legal Requirements or (2) by a court of competent jurisdiction or arbitrator or
in connection with any action or proceeding before a court of competent
jurisdiction or arbitrator, or (3) to Tenant's attorneys, accountants and other
professionals in connection with any dispute between Landlord and Tenant; and
Tenant will confirm and cause its Audit Representative to confirm such agreement
in a separate written agreement, if requested by Landlord. If Tenant shall not
give such notice within such one hundred fifty (150) day period, then the
Landlord's Statement as furnished by Landlord shall be conclusive and binding
upon Tenant. Tenant shall, at Tenant's expense, have the right to obtain copies
and/or make abstracts of the Records as it may request in connection with its
verification of any such Landlord's Statement, subject to the foregoing
confidentiality provisions. For purposes hereof, the term "AUDIT REPRESENTATIVE"
shall mean either (x) a firm of Certified Public Accountants licensed to do
business in the State of New York and having not less than ten (10) partners,
principals or members, (y) an employee of Tenant or (z) a locally-recognized
professional having not less than ten (10) years of expertise in reviewing
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and/or auditing operating expense statements of first-class office buildings in
midtown Manhattan. Notwithstanding anything to the contrary contained herein, if
and only if any examination pursuant to this Section 3.03(e) results in a
finding of a Significant Discrepancy with respect to any Particular Item of
Operating Expenses, Tenant, upon reasonable prior notice given within thirty
(30) days after such finding, may elect (or cause its representative) to examine
or re-examine such Records as are directly relevant to such Particular Item as
included in the Operating Statements for the prior five (5) years during the
term of this lease, as required pursuant to this Section 3.03(e). If Tenant
shall not give timely notice under this Section 3.03(e) with respect to any
finding of a Significant Discrepancy it shall be deemed to have waived its right
of examination under this Section 3.03(e) with respect thereto. For purposes
hereof:
(aa) A finding of a "SIGNIFICANT DISCREPANCY" shall be deemed
to have been made with respect to a Particular Item only if it is
determined pursuant to an arbitration conducted in accordance with the
provisions of Article 39 hereof, that the Particular Item in question was
fraudulently included by Landlord in Operating Expenses.
(bb) The term "PARTICULAR ITEM" shall mean a discrete item or
sub-item of an Operating Expense and shall be construed narrowly. Thus, for
example, if it is determined pursuant to an arbitration conducted in
accordance with the provisions of Article 39 hereof, that in computing the
amount of labor savings from the installation of an automatic elevator
Landlord has fraudulently included an excessive amount in respect of
vacation pay, the Particular Item for purposes hereof shall be deemed to be
the fraudulent inclusion of such excessive amount of vacation pay in the
computation of cost savings resulting from the installation of such
automatic elevator, and not any broader item, such as the entire
calculation of cost savings resulting from the installation of such
automatic elevator.
(ii) In the event that Tenant, after having
reasonable opportunity to examine the Records (but in no event more than
ninety (90) days from the date on which the Records are made available to
Tenant unless Tenant is delayed by Landlord in commencing or prosecuting
such examination, in which case such ninety (90) day period shall be
extended by one (1) day for each day of such delay caused by Landlord),
shall disagree with the Landlord's Statement, then Tenant may send a
written notice ("TENANT'S STATEMENT") to Landlord of such disagreement,
specifying the basis for Tenant's disagreement. Landlord and Tenant shall
attempt to adjust such disagreement. If they are unable to do so within
thirty (30) days, Landlord and Tenant shall designate a Certified Public
Accountant (the "ARBITER") whose determination made in accordance with this
Section 3.03(e)(ii) shall be binding upon the parties including, without
limitation, if the Arbiter determines that the Operating Payment should be
lower than the amount determined by Tenant or higher than the amount
determined by Landlord. If the Arbiter shall determine that the amount
charged by Landlord as the
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Operating Payment does not exceed the actual Operating Payment by more than
five (5%) percent, then Tenant shall pay the cost of the Arbiter;
otherwise, Landlord shall pay the cost of the Arbiter. If the Arbiter shall
determine that the amount charged by Landlord as the Operating Payment
exceeds the actual Operating Payment by more than five (5%) percent, then
Landlord shall pay the cost of Tenant's Audit Representative (unless
Tenant's Audit Representative is an employee of Tenant) in connection with
such examination of the Records and arbitration proceeding, not to exceed
an amount equal to twenty-five (25%) percent of any refund determined to be
due to Tenant by the Arbiter. The Arbiter shall be a member of an
independent certified public accounting firm having at least ten (10)
accounting professionals and having at least ten (10) years of experience
in commercial real estate accounting and, in particular, office building
operating expense statements. In the event that Landlord and Tenant shall
be unable to agree upon the designation of the Arbiter within thirty (30)
days after receipt of notice from the other party requesting agreement as
to the designation of the Arbiter, which notice shall contain the names and
addresses of two or more Certified Public Accountants meeting the same
qualifications set forth in the preceding sentence with respect to the
Arbiter who are acceptable to the party sending such notice (any one of
whom, if acceptable to the party receiving such notice as shall be
evidenced by notice given by the receiving party to the other party within
such thirty (30) day period, shall be the agreed upon Arbiter), then either
party shall have the right to request the American Arbitration Association
(herein called the "AAA") (or any organization which is the successor
thereto) to designate as the Arbiter a Certified Public Accountant meeting
such qualifications and whose determination made in accordance with this
Section 3.03(e)(ii) shall be conclusive and binding upon the parties, and
the cost charged by the AAA (or any organization which is the successor
thereto) for designating such Arbiter shall be borne by the party that is
responsible for the cost of the Arbiter in accordance with the preceding
provisions of this Section 3.03(e)(ii). In rendering such determination
such Arbiter shall not add to, subtract from or otherwise modify the
provisions of this lease. Notwithstanding the foregoing provisions of this
section, Tenant, pending the resolution of any contest pursuant to the
terms hereof, shall continue to pay all sums as determined to be due in the
first instance by such Landlord's Statement and upon the resolution of such
contest, suitable adjustment shall be made in accordance therewith with
appropriate payment to be made to Landlord by Tenant or refund to be made
by Landlord to Tenant (or credit allowed Tenant against Fixed Rent and
Additional Charges becoming due) if required thereby, including, in either
case, interest at an annual rate equal to the Interest Rate.
3.04. (a) In any case provided in this Article 3 in which Tenant
is entitled to a refund, Landlord may, in lieu of allowing such refund, credit
against the next due installments of Fixed Rent and Additional Charges any
amounts to which Tenant shall be entitled. Nothing in this Article 3 shall be
construed so as to result in a decrease
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in the Fixed Rent hereunder. If this lease shall expire before any such credit
shall have been fully applied, then (provided Tenant is not in default hereunder
beyond any applicable notice and grace periods) Landlord shall refund to Tenant
the unapplied balance of such credit within thirty (30) days of the expiration
or termination date.
(b) Subject to the last sentence of Section 3.05 hereof, the
expiration or termination of this lease during any Tax Year or Operating Year
(for any part or all of which there is a Tax Payment or Operating Payment under
this Article 3) shall not affect the rights or obligations of the parties hereto
respecting such payment and any Landlord's Statement or tax bill, as the case
may be, relating to such payment may be sent to Tenant subsequent to, and all
such rights and obligations shall survive, any such expiration or termination.
Any payments due under such Landlord's Statement or tax bill, as the case may
be, shall be payable within thirty (30) days after such statement or bill is
sent to Tenant.
3.05. Subject to the further provisions of this Section 3.05,
Landlord's failure to render or delay in rendering a Landlord's Statement with
respect to any Operating Year or any component of the Operating Payment shall
not prejudice Landlord's right to thereafter render a Landlord's Statement with
respect to any such Operating Year or any such component, nor shall the
rendering of a Landlord's Statement for any Operating Year prejudice Landlord's
right to thereafter render a corrected Landlord's Statement for such Operating
Year. Subject to the further provisions of this Section 3.05, Landlord's failure
to render or delay in rendering a bill with respect to any installment of Taxes
shall not prejudice Landlord's right to thereafter render such a bill for such
installment, nor shall the rendering of a bill for any installment prejudice
Landlord's right to thereafter render a corrected bill for such installment.
Notwithstanding anything to the contrary contained in this lease, in the event
Landlord fails to give a Landlord's Statement for Operating Expenses (or a
corrected Landlord's Statement) or a bill for Taxes (or a corrected bill) to
Tenant for any Tax Year or Operating Year, as the case may be, on or before the
date which is two (2) years after the last day of the Tax Year to which such
bill for Taxes applies or the Operating Year to which such Landlord's Statement
applies, as applicable, then Landlord shall be deemed to have waived the payment
of any then unpaid Additional Charges which would have been due pursuant to said
Landlord's Statement or bill for Taxes, as the case may be.
3.06. In respect of any Operating Year which begins prior to the
Commencement Date or terminates after the Expiration Date, the Operating Payment
in respect of such Operating Year shall be prorated accordingly.
ARTICLE 4
CONDOMINIUM
4.01. As used in this lease, the following terms shall have the
following meanings:
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(a) "CONDOMINIUM DOCUMENTS" shall mean the Declaration, the
By-Laws, the Building Rules and Regulations and the Building Standards, as each
of the same may be amended, restated, supplemented or otherwise modified from
time to time;
(b) "DECLARATION" shall mean that certain Second Amended and
Restated Declaration of Condominium dated as of January 1, 1995 and recorded in
the Office of the Register of The City of New York on October 2, 1997 in Reel
2502 at Page 0334, as the same may be further amended, restated, supplemented or
otherwise modified from time to time;
(c) "BY-LAWS" shall mean the By-Laws of the Condominium, as
the same may be amended, restated, supplemented or otherwise modified from time
to time; PROVIDED, HOWEVER, that Tenant shall not be subject, subordinate or
bound by any provision of the By-Laws in effect as of the date hereof, or any
provision of any future amendment, restatement, supplement or modification of or
to the By-Laws, in either case which would increase Tenant's obligations or
liabilities or decrease or otherwise adversely affect Tenant's rights under this
lease or under any amendment or modification of this lease entered into at a
time when Landlord owns all of the units of the Condominium;
(d) "BUILDING STANDARDS" shall mean the building standards
for the Building annexed hereto as EXHIBIT E, and as the same may be amended
from time to time as set forth in Section 11.04 hereof provided that no such
amendment shall impose additional obligations or liabilities upon Tenant or
decrease Tenant's rights under this lease unless landlords of Comparable
Buildings have adopted comparable procedures or standards or decrease the
obligations of Landlord under this lease; and
(e) "BOARD OF MANAGERS" shall have the meaning set forth in
the Condominium Documents.
4.02. Subject to the provisions of the Board SNDA Agreement (herein
called the "BOARD SNDA AGREEMENT") annexed hereto as EXHIBIT H, this lease, and
all rights of Tenant hereunder, are and shall be subject and subordinate to the
Condominium Documents and all amendments and modifications thereof, provided
that except as set forth in Article 10 ("RULES AND REGULATIONS") hereof, no such
amendment or modification shall decrease or otherwise affect Tenant's rights
under this lease (other than to a DE MINIMIS degree) or increase Tenant's
obligations or liabilities under this lease or under any amendment, modification
or renewal of this lease or decrease Landlord's obligations or liabilities under
this lease. As more particularly set forth in the Board SNDA Agreement, in the
event of any inconsistency between the provisions of (i) this lease or any
amendment, modification or renewal of this lease and (ii) the provisions of the
Condominium Documents in effect as of the date hereof, or any provision of any
future amendment, restatement, supplement or modification of the Condominium
Documents, the provisions of this lease or any such amendment, modification or
renewal
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of this lease shall govern. The provisions of this Section 4.02 shall be
conditioned upon the execution and delivery by and between Tenant and the Board
of Managers of the Board SNDA Agreement.
4.03. Subject to the foregoing provisions of Section 4.02 hereof,
Tenant acknowledges that wherever any provision of this lease grants certain
rights to Landlord, the Board of Managers may be entitled to certain
corresponding rights pursuant to the Condominium Documents, and that, although
the parties have endeavored to include all necessary references to the rights of
the Board of Managers throughout this lease, with respect to any provisions that
do not expressly reflect such rights, such rights shall be inferred as the
context requires, provided that the effect of such inference shall not be to
decrease or otherwise adversely affect Tenant's rights under this lease or
increase Tenant's obligations or liabilities under this lease, it being the
agreement of the parties that Tenant's rights and obligations under this lease
shall not be affected in any way by reason of the condominiumization of the
Building pursuant to the Condominium Documents. In the event that Tenant shall
dispute the existence of any rights on behalf of the Condominium pursuant to the
Condominium Documents, such dispute shall be resolved by expedited arbitration
pursuant to Article 39 hereof.
4.04. If, at any time during the term of this lease, the Building
shall no longer be owned in a condominium form of ownership, this lease shall
remain in full force and effect, Tenant shall continue to pay rents, Landlord
and Tenant shall perform their respective obligations hereunder, and for
purposes of calculating Tenant's Tax Payments and Operating Payments payable
hereunder, the following provisions shall apply, it being the intent and
agreement of the parties hereto that the cessation of the condominium form of
ownership shall not result in any increase in Tenant's Tax Payments or Operating
Payments:
(a) "TENANT'S SHARE," as set forth in Section 3.01(j)
hereof, shall NOT be revised (I.E., Tenant's Share shall continue to be computed
using as the denominator the number of rentable square feet contained in the
Unit as of the date of this lease);
(b) The "BASE OPERATING AMOUNT," as defined in Section
3.01(a) hereof, shall not be recalculated;
(c) The "BASE TAX AMOUNT," as defined in Section 3.01(c)
hereof, shall not be recalculated;
(d) The term "OPERATING EXPENSES" set forth in Section
3.01(e) hereof shall be deemed to refer only to the Operating Expenses incurred
by Landlord which are properly attributable to the portion of the Building which
constitutes the Unit as of the date of this lease, notwithstanding the fact that
Landlord will be incurring Operating Expenses with respect to the Building as a
whole, and any dispute between Landlord and Tenant in connection with such
proper attribution and the resulting
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amount of Tenant's Operating Payment to be paid by Tenant to Landlord shall be
resolved by arbitration in the manner set forth in Section 3.03(e)(ii) hereof;
and
(e) The definition of "TAXES" set forth in Section 3.01(h)
hereof shall be deemed to refer only to the portion of Taxes incurred by
Landlord with respect to the Real Property as a whole which are properly
attributable to the portion of the Building which constitutes the Unit as of the
date of this lease, notwithstanding the fact that Landlord will be incurring
Taxes with respect to the Real Property as a whole, and any dispute between
Landlord and Tenant in connection with such proper attribution and the resulting
amount of Tenant's Tax Payment to be paid by Tenant to Landlord shall be
resolved by arbitration substantially in the manner set forth in Section
3.03(e)(ii) hereof.
Tenant, pending the resolution of any contest pursuant to the terms of this
Article 4 regarding the appropriate amount of Tenant's Operating Payment or
Tenant's Tax Payment, shall pay to Landlord the sum of (i) Tenant's version of
the appropriate amount of Tenant's Operating Payment or Tenant's Tax Payment, as
the case may be, plus (ii) fifty (50%) percent of the difference between
Landlord's and Tenant's versions of the appropriate amount of Tenant's Operating
Payment or Tenant's Tax Payment, as the case may be, and upon the resolution of
such contest, suitable adjustment shall be made in accordance therewith with
appropriate payment to be made to Landlord by Tenant or refund to be made by
Landlord to Tenant (or credit allowed Tenant against Fixed Rent and Additional
Charges becoming due) if required thereby, including, in either case, interest
at an annual rate equal to the Interest Rate.
If either party reasonably believes that it is necessary to clarify the terms of
this lease as a result of such conversion in the form of ownership of the
Building, Landlord and Tenant shall promptly execute an agreement clarifying
their respective obligations under this lease; PROVIDED, HOWEVER, that neither
party shall be required to execute any such instrument which would diminish or
detract from the rights of such party or expand or enhance the obligations of
such party, in either case under this lease, including the first sentence of
this Section 4.04. Subject to the foregoing, such agreement shall reflect the
change in the form of ownership and amend the lease accordingly, redacting
terminology relating to condominium ownership.
4.05. Landlord covenants and agrees that Landlord and its successors
and assigns shall throughout the term of this lease duly perform and observe all
of the terms, provisions and conditions of the Condominium Agreement on its part
to observe and perform which affect this lease or any of Tenant's rights,
obligations and/or liabilities under this lease.
4.06. As a material inducement to Tenant to enter into this lease,
for so long as Tenant meets the Signage Occupancy Requirement Tenant shall have
the right to observe official meetings of the Board of Managers and Landlord
shall give Tenant reasonable prior notice of each such meeting.
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ARTICLE 5
SUBORDINATION, NOTICE TO SUPERIOR LESSORS AND MORTGAGEES
5.01. Subject to the provisions of any Conforming SNDA between Tenant
and any Superior Party, this lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate to all ground leases, overriding leases and
underlying leases of the Land and/or the Unit and/or the Building and/or that
portion of the Unit or the Building of which the Premises are a part, now or
hereafter existing and to all mortgages which may now or hereafter affect the
Land and/or the Unit and/or the Building and/or that portion of the Unit or the
Building of which the Premises are a part and/or any of such leases, whether or
not such mortgages shall also cover other lands and/or units and/or buildings
and/or leases, to each and every advance made or hereafter to be made under such
mortgages, and to all renewals, modifications, replacements and extensions of
such leases and such mortgages and spreaders and consolidations of such
mortgages. This Section 5.01 shall be self-operative and no further instrument
of subordination shall be required. In confirmation of such subordination,
Tenant shall promptly execute, acknowledge and deliver any instrument that
Landlord, the lessor under any such lease or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination; provided that in no event shall such instrument
decrease Tenant's rights under this lease or increase Tenant's obligations or
liabilities under this lease. Any lease to which this lease is, at the time
referred to, subject and subordinate is herein called "SUPERIOR LEASE" and the
lessor of a Superior Lease or its successor in interest, at the time referred
to, is herein called "Superior Lessor"; and any mortgage to which this lease is,
at the time referred to, subject and subordinate is herein called "SUPERIOR
MORTGAGE" and the holder of a Superior Mortgage is herein called "SUPERIOR
MORTGAGEE". Each Superior Mortgagee and Superior Lessor is hereinafter sometimes
called a "SUPERIOR PARTY".
5.02. Intentionally Omitted.
5.03. Intentionally Omitted.
5.04. Landlord hereby represents and warrants that there are no
existing Superior Mortgages or Superior Leases affecting the Unit or the
Building as of the date of this lease.
5.05. (a) With respect to any and all Superior Mortgages and
Superior Leases, the provisions of Section 5.01 hereof shall be conditioned upon
the execution and delivery by and between Tenant and any such Superior Mortgagee
or Superior Lessor of a subordination, non-disturbance and attornment agreement
substantially in the form of EXHIBIT H-1 annexed hereto with respect to a
Superior Mortgagee (herein called a "SUPERIOR MORTGAGEE SNDA AGREEMENT") or
EXHIBIT H-2 annexed hereto with respect to a Superior Lessor (herein called a
"SUPERIOR LESSOR SNDA AGREEMENT"), in each case with such DE MINIMIS
modifications as the holder of
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such Superior Mortgage or Superior Lease may require in accordance with Section
5.05(b) below.
(b) Landlord shall cause each Superior Party, as a condition
precedent to the subordination of this lease to the Superior Mortgage or
Superior Lease of the Superior Party in question, to execute, acknowledge and
deliver to Tenant a Superior Mortgagee SNDA Agreement or a Superior Lessor SNDA
Agreement, as applicable, substantially in the form of EXHIBIT H-1 annexed
hereto with respect to a Superior Mortgage or EXHIBIT H-2 annexed hereto with
respect to a Superior Lease, with such DE MINIMIS modifications as the holder of
such Superior Mortgage or Superior Lease shall require, provided that such
modifications do not increase Tenant's obligations or liabilities or decrease or
otherwise adversely affect Tenant's rights as set forth in EXHIBIT H-1 or
EXHIBIT H-2 (each being herein called a "CONFORMING SNDA", which Tenant shall
promptly execute and deliver to the Superior Party). Tenant agrees to execute
any such Conforming SNDA and return same to Landlord within ten (10) Business
Days after Landlord's written request therefor (herein called the "SNDA
REQUEST"), provided that such SNDA Request is given in the manner provided in
Section 5.05(c) below, accompanied by execution copies of such Conforming SNDA.
If Tenant shall fail to execute, acknowledge and return any such Conforming SNDA
within such ten (10) Business Day period, Landlord shall have the right to send
to Tenant a follow-up notice (herein called the "SNDA FOLLOW-UP") and, provided
that such SNDA Follow-up is given in the manner provided in Section 5.05(c)
below, if Tenant shall fail to execute, acknowledge and return any such
Conforming SNDA within two (2) Business Days after the giving of the SNDA
Follow-up, then this lease shall be subordinate to such future Superior
Mortgages or future Superior Leases, as the case may be, pursuant to the terms
and conditions of such Conforming SNDA, and Tenant shall be deemed to have
executed and delivered such Conforming SNDA to the Superior Lessor or Superior
Mortgagee requesting such execution, notwithstanding the fact that Tenant has
not, in fact, executed and delivered such Conforming SNDA, unless Tenant gives
notice to Landlord that the Superior Lessor SNDA Agreement or Superior Mortgagee
SNDA Agreement does not meet the requirements set forth in this Section 5.05(b)
at any time prior to the expiration of the two (2) Business Day period following
the giving of the SNDA Follow-up, time being of the essence with respect to the
giving of such notice. Any dispute by Tenant that the form of the Superior
Lessor SNDA Agreement or Superior Mortgagee SNDA Agreement utilized by the
Superior Lessor or the Superior Mortgagee does not meet the requirements set
forth in this Section 5.05(b) shall be resolved by arbitration pursuant to
Article 39 hereof.
(c) In order to be effective, the SNDA Request and the SNDA
Follow-up must: (i) specifically refer to the provisions of Section 5.05(b)
hereof with respect to the failure of Tenant to execute, acknowledge and return
any such SNDA Agreements within two (2) Business Days after the giving of the
SNDA Follow-up and (ii) be given in accordance with the provisions of Section
29.01 hereof.
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ARTICLE 6
QUIET ENJOYMENT
6.01. So long as Tenant is not in default hereunder beyond the
expiration of any applicable notice and cure periods, Tenant shall peaceably and
quietly have, hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through or under
Landlord, subject, nevertheless, to the provisions of this lease and to Superior
Leases and Superior Mortgages. This covenant shall be construed as a covenant
running with the Land, and is not, nor shall it be construed as, a personal
covenant of Landlord, except to the extent of Landlord's interest in the Real
Property and only so long as such interest shall continue, and thereafter
Landlord shall be relieved of all liability hereunder thereafter arising and
this covenant shall be binding only upon subsequent successors in interest of
Landlord's interest in this lease, to the extent of their respective interests,
as and when they shall acquire the same, and so long as they shall retain such
interest, but nothing contained herein shall be deemed to relieve Landlord of
any liability of Landlord which has accrued or arisen through the date on which
Landlord transfers its interest in the Unit to a third party.
ARTICLE 7
ASSIGNMENT, SUBLETTING AND MORTGAGING
7.01. Except as otherwise provided in this lease, Tenant shall not,
whether voluntarily, involuntarily, or by operation of law or otherwise (a)
assign or otherwise transfer this lease or the term and estate hereby granted,
(b) sublet the Premises or any part thereof, or (subject to the provisions of
Section 7.03 hereof by Affiliates and/or Service and Business Relationship
Entities) allow the same to be used, occupied or utilized by anyone other than
Tenant, or (c) mortgage, pledge, encumber or otherwise hypothecate this lease or
the Premises or any part thereof in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord (which consent Landlord
shall grant or withhold in accordance with the following provisions of this
Article 7). Notwithstanding the foregoing, if Tenant's outside accounting firm
or any governmental regulatory agencies shall require the use of temporary desk
space within the Premises to conduct audits or other regulatory or advisory
functions related to Tenant's business, the use of such portions of the Premises
by such firms or agencies shall not require the consent of Landlord.
Notwithstanding anything to the contrary contained herein, in no event shall a
partial assignment of this lease be permitted.
For purposes hereof, the following terms shall have the following
meanings:
"AFFILIATE" shall mean, with respect to any person or entity, any
other person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with, the person or entity in
question.
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"CITI TENANT" shall mean any tenant under this lease from time to time
that is either (i) the Named Tenant, (ii) an Affiliate of the Named Tenant,
(iii) a Corporate Successor of either the Named Tenant or an Affiliate of
the Named Tenant or (iv) an Affiliate of any such Corporate Successor.
"CONTROL" shall mean, in the case of a corporation, ownership or
voting control, directly or indirectly, of thirty (30%) percent or more of
all the voting stock, and in case of a joint venture, partnership or
limited liability company (herein called a "LLC"), or similar entity,
ownership, directly or indirectly, of thirty (30%) percent or more of all
the general or other partnership or membership (or similar) interests
therein; in either case together with the ability to exert control over the
policies and activities of such corporation or LLC. Notwithstanding the
foregoing, a person or entity shall be deemed to have "control" of a public
corporation if it is the largest shareholder of such corporation and owns
or has voting control over not less than twenty-five (25%) percent of all
of the then voting stock of such corporation.
"CORPORATE SUCCESSOR" shall mean either (i) any corporation which is a
successor to Tenant or Citibank, N.A. by merger, consolidation or
reorganization or (ii) a purchaser of all or substantially all of Tenant's
assets or the assets of Citibank, N.A.
"NAMED TENANT" shall mean Citigroup Inc.
"SERVICE AND BUSINESS RELATIONSHIP ENTITIES" shall mean (i) persons
engaged in providing services to Tenant or to any Affiliate of Tenant, (ii)
Tenant's (or any Affiliate's of Tenant) attorneys, consultants and other
persons with which Tenant (or any Affiliate of Tenant) has a business
relationship or (iii) persons which have a business function or purpose
which is related, complimentary and/or supplementary to the business of
Tenant or any Affiliate of Tenant, including, without limitation, any
"spin-off" of a business unit of Tenant or any Affiliate of Tenant or
persons with which Tenant or any Affiliate of Tenant performs
cross-marketing and any persons which are subject by legal requirement to
regulatory governance, supervision or administration by Tenant or any
Affiliate of Tenant, in each case provided that the purpose of classifying
such persons as Service and Business Relationship Entities is for a good
business purpose and not to circumvent the provisions of this Article 7.
7.02. (a) Notwithstanding anything to the contrary contained
herein:
(i) Except as provided in Section 7.02(b) hereof, if
Tenant is a corporation, the provisions of clause (a) of Section 7.01 shall
apply to a transfer (by one or more transfers) of a majority of the stock
of Tenant, or any other mechanism, such as the issuance of additional
stock, a stock voting agreement or change in class(es) of stock, which
results in a change of control of
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Tenant, as if such transfer of stock which results in a change of control
of Tenant or other mechanism which results in a change of control of Tenant
were an assignment of this lease; PROVIDED, HOWEVER, that the provisions of
Section 7.01 shall not apply to any such transfer resulting in a change of
control of Tenant or other mechanism resulting in a change of control of
Tenant if immediately thereafter, (A) Tenant or any guarantor of Tenant's
obligations under this lease (herein called the "TENANT GUARANTOR") has a
net worth computed in accordance with GAAP that is not less than thirty
(30) times the annual amount of Fixed Rent then payable by Tenant under
this lease (herein called the "MINIMUM NET WORTH") or (B) the sum of the
net worth of Tenant and the net worth of the Tenant Guarantor computed in
accordance with GAAP is not less than the Minimum Net Worth and evidence
reasonably satisfactory to Landlord of such Minimum Net Worth shall have
been delivered to Landlord within fifteen (15) Business Days after the
effective date of any such change of control.
(ii) Further, Tenant shall have the right, without
the consent of Landlord, to assign its interest in this lease to a
Corporate Successor, provided and upon condition that in either of such
events
(A) the principal purpose of the transaction
which includes such assignment shall not be the acquisition of Tenant's
interest in this lease,
(B) after giving effect to such transaction,
(1) any such assignee or the Tenant Guarantor of such assignee shall have a
net worth computed in accordance with GAAP not less than the Minimum Net
Worth or (2) the sum of the net worth of such assignee AND the net worth of
the Tenant Guarantor of such assignee computed in accordance with GAAP is
not less than the Minimum Net Worth, and
(C) proof reasonably satisfactory to Landlord
of such Minimum Net Worth shall have been delivered to Landlord within
fifteen (15) Business Days after the effective date of any such
transaction.
(iii) Tenant also shall have the right, upon prior
notice to Landlord but without Landlord's consent, to assign this lease to
any Affiliate of Tenant; provided that at the time of such assignment (A)
Tenant or such Affiliate or the Tenant Guarantor has a net worth computed
in accordance with GAAP not less than the Minimum Net Worth or (B) the sum
of the net worth of Tenant and the net worth of such Affiliate AND the net
worth of the Tenant Guarantor computed in accordance with GAAP is not less
than the Minimum Net Worth and proof reasonably satisfactory to Landlord of
such Minimum Net Worth shall have been delivered to Landlord within fifteen
(15) Business Days after the effective date of any such transaction.
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(iv) If Tenant is a partnership or joint venture or
LLC or other entity, the provisions of clause (a) of Section 7.01 shall
apply with respect to a transfer, by one or more transfers, of an interest
in the distributions of profits and losses of such partnership, joint
venture or LLC or other entity which results in a change of control of
Tenant or any other mechanism, such as the creation of additional general
partnership or limited partnership interests, which results in a change of
control of Tenant, as if such transfer of an interest in the distributions
of profits and losses which results in a change of control of Tenant or
other mechanism which results in a change of control of Tenant were an
assignment of this lease; PROVIDED, HOWEVER, that, in either case, the
provisions of clause (a) of Section 7.01 shall not apply to any such
transfer resulting in a change of control of Tenant or other mechanism
resulting in a change of control of Tenant if
(A) the acquisition of Tenant's interest in
this lease is not the principal purpose of any such actions, and
(B) after giving effect to such actions, (1)
Tenant or Tenant Guarantor has a net worth computed in accordance with GAAP
that is not less than the Minimum Net Worth or (2) the sum of the net worth
of Tenant AND the net worth of the Tenant Guarantor computed in accordance
with GAAP is not less than the Minimum Net Worth; and
(C) proof reasonably satisfactory to Landlord
of such Minimum Net Worth is delivered to Landlord within fifteen (15)
Business Days after the occurrence of any such actions.
(b) For purposes of this Article 7, the transfer of shares
of stock of Tenant shall not include (i) the sale of shares by persons which
sale is effected through the "over-the-counter market" or through any recognized
stock exchange, or (ii) the sale of shares in connection with a public offering
of shares of Tenant.
7.03. Nothing in this lease shall be deemed to prohibit, and each of
the following shall be permitted without the need to obtain Landlord's consent
and without Landlord's right of recapture pursuant to Section 7.07 hereof and
without Landlord's right to a share of profit pursuant to Section 7.14 hereof:
(a) the simultaneous occupancy of the Premises by means of
any occupancy arrangement selected by Tenant (which arrangement does not have to
be in writing), or a subletting pursuant to a sublease which conforms with the
requirements of Section 7.13 hereof, of all or a portion of the Premises to, one
or more Tenant's Affiliates; PROVIDED, HOWEVER, that Landlord shall be given
written notice thereof promptly after the effective date of any such sublease or
occupancy arrangement accompanied by reasonable evidence of such affiliate
relationship and a duplicate original of such sublease (if applicable). In the
event that a Tenant's Affiliate which is occupying all or any part of the
Premises pursuant to an assignment or a sublease no
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longer qualifies as a Tenant's Affiliate, then the continuation thereafter of
such occupancy shall not be subject to Landlord's consent, such assignee or
subtenant shall not be required to vacate the Premises, and Landlord shall not
be entitled to any Assignment Profit or Sublease Profit in connection therewith.
In the event that a Tenant's Affiliate is in occupancy of all or any part of the
Premises but such occupancy is not pursuant to an assignment or a sublease, the
continued occupancy by such entity after such entity no longer qualifies as a
Tenant's Affiliate shall be deemed a transaction to which all of the terms of
this Article 7 shall apply,
(b) an assignment of this lease arising out of the
reorganization of Tenant from one form of legal entity into another form of
legal entity with substantially the same beneficial ownership and net worth as
Tenant, or
(c) the simultaneous occupancy of the Premises by means of
any occupancy arrangement selected by Tenant (which arrangement does not have to
be in writing), or subletting pursuant to a sublease which conforms with the
requirements of Section 7.13 hereof, of a portion of the Premises to, one or
more Service and Business Relationship Entities; PROVIDED, HOWEVER, that
Landlord shall be given written notice thereof promptly after the effective date
of such sublease or occupancy arrangement accompanied by reasonable evidence of
the relationship with Tenant, and a duplicate original of such sublease (if
applicable) and that such Service and Business Relationship Entities shall not
occupy portions of the Premises consisting, in the aggregate, of more than ten
(10%) percent of the rentable area of the Premises). In the event that a Service
and Business Relationship Entity which is occupying a part of the Premises
pursuant to an assignment or a sublease no longer qualifies as a Service and
Business Relationship Entity, then the continuation thereafter of such occupancy
shall not be subject to Landlord's consent, such assignee or subtenant shall not
be required to vacate the Premises, and Landlord shall not be entitled to any
Assignment Profit or Sublease Profit in connection therewith. In the event that
a Service and Business Relationship Entity is in occupancy of all or any part of
the Premises but such occupancy is not pursuant to an assignment or a sublease,
the continued occupancy by such entity after such entity no longer qualifies as
a Service and Business Relationship Entity shall be deemed a transaction to
which all of the terms of this Article 7 shall apply.
Permission to Tenant's Service and Business Relationship Entities and Tenant's
Affiliates to use the Premises shall not create a tenancy or any other interest
in the Premises except a license revocable at will which shall cease and expire
in any event automatically without notice upon the expiration or termination of
this lease and all acts, omissions and operations of such Tenant's Service and
Business Relationship Entities and Tenant's Affiliates shall be deemed acts,
omissions and operations of Tenant.
7.04. If this lease be assigned, whether or not in violation of the
provisions of this lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or
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not in violation of this lease, Landlord may, after any Event of Default has
occurred, collect rent from the subtenant or occupant. In either event, Landlord
may apply the net amount collected to the Fixed Rent and Additional Charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of any of the provisions of Section 7.01 hereof or any
other provision of this lease, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance by Tenant of
Tenant's obligations under this lease. The consent by Landlord to any
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article.
References in this lease to use or occupancy by others (that is, anyone other
than Tenant) shall not be construed as limited to subtenants and those claiming
under or through subtenants but as including also licensees and others claiming
under or through Tenant, immediately or remotely.
7.05. Any assignment or transfer, whether made with Landlord's
consent pursuant to Section 7.01 hereof or without Landlord's consent pursuant
to Section 7.02 hereof, shall be made only if, and shall not be effective until,
the assignee (except in the case where Tenant and such assignee are the same
legal entity) shall execute, acknowledge and deliver to Landlord an agreement in
the form of EXHIBIT J annexed hereto whereby the assignee shall assume, from and
after the effective date of such assignment (or, in the case of an entity which
has purchased all or substantially all of Tenant's assets or which is a
successor to Tenant by merger, acquisition, consolidation or change of control,
from and after the Commencement Date) the obligations of this lease on the part
of Tenant to be performed or observed and whereby the assignee shall agree that
the provisions of this Article 7 shall, notwithstanding such assignment or
transfer, continue to be binding upon such assignee in respect of all future
assignments and transfers. Except in the event of a recapture by Landlord (or
its designee) as set forth in Section 7.07 hereof, the Named Tenant and any
subsequent assignor of this lease covenants that, notwithstanding any assignment
or transfer, whether or not in violation of the provisions of this lease, and
notwithstanding the acceptance of any of the Fixed Rent and/or Additional
Charges by Landlord from an assignee, transferee, or any other party, the Named
Tenant (and any subsequent assignor of this lease) shall remain fully liable for
the payment of the Fixed Rent and Additional Charges and for the other
obligations of this lease on the part of Tenant to be performed or observed.
7.06. (a) The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease; provided however, that in the case of any
modification of this lease after an assignment of this lease which increases the
obligations of or decreases the rights of Tenant, the Named Tenant and any
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subsequent assignor of this lease shall not be liable for any such increase or
decrease unless it has given its written consent thereto.
(b) The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this lease or in the
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this lease or to any sublease of the Premises or to the use or
occupancy thereof by others.
7.07. (a) (i) Except for any assignment which does not require
Landlord's consent pursuant to Section 7.02 hereof, if Tenant shall at any time
or times during the term of this lease desire to assign this lease, Tenant shall
give notice thereof (herein called an "ASSIGNMENT RECAPTURE OFFER NOTICE") to
Landlord, which notice shall set forth: (A) Tenant's intention to assign this
lease, (B) the proposed date upon which the Premises are intended to be vacated
by Tenant, and (C) Tenant's reasonably detailed computation of the full
consideration which Tenant would be willing to accept from or pay to a third
party (including, for purposes of Section 7.08 hereof, the timing of, and
conditions to, payments with respect thereto) in connection with an assignment
of this lease, including, without limitation, the work contribution, if any, the
sums which Tenant is willing to accept from an assignee for the sale or rental
of any of Tenant's leasehold improvements, furniture, fixtures, equipment or
other personal property, and all other material terms pursuant to which Tenant
would be willing to assign this lease to a third party. Such Assignment
Recapture Offer Notice shall be deemed an irrevocable offer from Tenant to
Landlord whereby Landlord may terminate this lease. Said irrevocable option may
be exercised by Landlord by notice (herein called "LANDLORD'S ASSIGNMENT
RECAPTURE NOTICE") given to Tenant at any time within thirty (30) days after
such Assignment Recapture Offer Notice has been given by Tenant to Landlord
(herein called the "ASSIGNMENT RECAPTURE PERIOD").
(ii) Either concurrently with the giving of an
Assignment Recapture Offer Notice (in which case the notices may be
combined in one notice), or at any time thereafter (but in no event later
than two hundred seventy (270) days after the expiration of the Assignment
Recapture Period), Tenant shall have the right to give Landlord a notice
(herein called the "ASSIGNMENT CONSENT REQUEST NOTICE") requesting
Landlord's consent to an assignment of this lease on the non-economic
material terms set forth in the Assignment Recapture Offer Notice (except
for deviations that do not result in a material benefit to the proposed
assignee) and on economic terms that are not "substantially different from"
(as hereinafter defined in Section 7.12(a) hereof)) the economic terms
described in the Assignment Recapture Offer Notice (herein called
"LANDLORD'S ASSIGNMENT CONSENT"), subject only to Landlord's receipt of:
(A) an assignment and assumption agreement in
form reasonably satisfactory to Landlord (sometimes herein called the
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"ASSIGNMENT DOCUMENT") containing the non-economic material terms set forth
in the Assignment Recapture Offer Notice (except for deviations that do not
result in a material benefit to the proposed assignee) and economic terms
which are not substantially different from the economic terms set forth in
the Assignment Recapture Offer Notice,
(B) the Consent Agreement in the form attached
hereto as EXHIBIT J, signed by both Tenant and the proposed assignee, and
(C) the amounts, if any, required to be paid
to Landlord pursuant to Section 7.11(b)(vii) hereof.
The Assignment Consent Request Notice shall set forth (1) the identity of the
proposed assignee, the nature of its business and its proposed use of the
Premises, all in reasonable detail, and (2) current financial information with
respect to the proposed assignee, including, without limitation, its most recent
financial report, to the extent available, which financial information Landlord
shall keep confidential and not disclose to third parties other than Landlord's
lenders, financial advisors and counsel, or in connection with any litigation or
arbitration in connection with the proposed assignment of this lease to the
proposed assignee, or if required by subpoena or other valid legal process. In
the event that Tenant fails to give a Assignment Consent Request Notice on or
before the date that is two hundred seventy (270) days after the expiration of
the Assignment Recapture Period, Tenant shall again comply with all of the
provisions of this Section 7.07 before assigning this lease.
(b) (i) Except for any sublease which does not require
Landlord's consent pursuant to Section 7.02 hereof and except for any sublease
not for all or substantially all of the balance of the term of this lease, if
Tenant shall at any time or times during the term of this lease desire to sublet
all or part of the Premises, Tenant shall give notice thereof (herein called the
"SUBLEASE RECAPTURE OFFER NOTICE") to Landlord, which notice shall set forth (A)
the area proposed to be sublet, (B) the term of the proposed subletting and the
date the area to be sublet is intended to be vacated by Tenant, (C) the proposed
subrental rate, work contributions, if any, periods of rent-free occupancy, if
any, and the sums which Tenant would be willing to accept from a subtenant for
the sale or rental of any of Tenant's leasehold improvements, furniture,
fixtures, equipment or other personal property, (D) the methods by which the
subtenant will be charged for electricity, and chilled and/or condenser water
that will be made available to the subtenant at the sublet premises (E.G., by
submeter, BTU meter or survey and the rates to be applied to the readings set
forth on or arrived at by such submeter, BTU meter or survey), (E) for purposes
of Section 7.09(c) hereof, the respective responsibilities of the parties with
respect to the costs of performing such alterations as may be required or
reasonably necessary to physically separate the subleased space from the balance
of the Premises and to comply with any laws and requirements of public
authorities relating to such separation and (F) all other material terms
pursuant to which
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Tenant would be willing to enter into a sublease with a third party. Such
Sublease Recapture Offer Notice shall be deemed an irrevocable offer from Tenant
to Landlord (herein called a "SUBLEASE RECAPTURE OFFER") whereby Landlord (or
Landlord's designee) may, at its option, either (1) terminate this lease with
respect to all, but not less than all, of such proposed sublet space if such
sublease is for less than substantially all of the Premises for a term for all
or substantially all of the balance of the term of this lease or (2) terminate
this lease in its entirety (if the proposed transaction is a sublease of all or
substantially all of the Premises for a term [including renewal or extension
options] for all or substantially all of the balance of the term of this lease).
As used in this Section 7.07(b), a term "FOR SUBSTANTIALLY ALL OF THE BALANCE OF
THE TERM OF THIS LEASE" shall mean a term ending during the last two (2) years
of the term of this lease (as the same may be extended). As used in this Article
7, the term "FOR SUBSTANTIALLY ALL OF THE PREMISES" shall mean ninety (90%)
percent or more of the Premises. Said irrevocable option may be exercised by
Landlord by notice (herein called "LANDLORD'S SUBLEASE RECAPTURE NOTICE") given
to Tenant at any time within thirty (30) days after such Sublease Recapture
Offer Notice has been given by Tenant to Landlord (herein called the "SUBLEASE
RECAPTURE PERIOD").
(ii) (A) With respect to each sublease that Tenant
is required to give to Landlord a Sublease Recapture Offer Notice, either
concurrently with the giving of a Sublease Recapture Offer Notice (in which
case the notices may be combined in one notice), or at any time thereafter
(but in no event later than the date that is two hundred seventy (270) days
after the expiration of the Sublease Recapture Period), Tenant shall have
the right to give Landlord a notice (herein called the "RECAPTURE SUBLEASE
CONSENT REQUEST NOTICE") requesting Landlord's consent to such sublease on
the non-economic material terms set forth in the Sublease Recapture Offer
Notice (except for deviations that do not result in a material benefit to
the proposed sublessee) and on economic terms which are not substantially
different from the economic terms described in the Sublease Recapture Offer
Notice (herein called "LANDLORD'S RECAPTURE SUBLEASE CONSENT"), subject
only to Landlord's receipt of:
1. a sublease (herein called the "RECAPTURE
SUBLEASE DOCUMENT") meeting all of the requirements set forth in Section
7.13 hereof and containing the non-economic material terms set forth in the
Sublease Recapture Offer Notice (except for deviations that do not result
in a material benefit to the proposed sublessee) and economic terms which
are not substantially different from the economic terms set forth in the
Sublease Recapture Offer Notice,
2. the Consent Agreement substantially in the
form annexed hereto as EXHIBIT K, signed by both Tenant and the proposed
subtenant, and
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3. the amounts, if any, required to be paid
to Landlord pursuant to Section 7.11(b)(vii) hereof.
(B) With respect to each sublease that
requires Landlord's consent subject to and in accordance with the
provisions of this Article 7 and that is not for all or substantially all
of the balance of the term of this lease, Tenant shall have the right to
give Landlord a notice (herein called the "NON-RECAPTURE SUBLEASE CONSENT
REQUEST NOTICE"; the Recapture Sublease Consent Request Notice and
Non-Recapture Sublease Consent Request Notice are herein collectively
called the "SUBLEASE CONSENT REQUEST NOTICE") requesting Landlord's consent
to such sublease (herein called "LANDLORD'S NON-RECAPTURE SUBLEASE
CONSENT"; the Landlord's Recapture Sublease Consent and Landlord's
Non-Recapture Sublease Consent are herein collectively called "LANDLORD'S
SUBLEASE CONSENT", subject only to Landlord's receipt of:
1. a sublease (herein called the
"NON-RECAPTURE SUBLEASE DOCUMENT"; the Recapture Sublease Document and
Non-Recapture Sublease Document are herein collectively called the
"SUBLEASE DOCUMENT") meeting all of the requirements set forth in Section
7.13 hereof,
2. the Consent Agreement substantially in the
form annexed hereto as EXHIBIT K, signed by both Tenant and the proposed
subtenant, and
3. the amounts, if any, required to be paid
to Landlord pursuant to Section 7.11(b)(vii) hereof.
Each Sublease Consent Request Notice shall set forth (1) the identity of the
proposed subtenant, the nature of its business and its proposed use of the
Premises, all in reasonable detail, (2) current financial information with
respect to the proposed subtenant, including, without limitation, its most
recent financial report to the extent available, which financial information
Landlord shall keep confidential and not disclose to third parties other than
Landlord's lenders, financial advisors and counsel, or in connection with any
litigation or arbitration in connection with the proposed sublease to the
proposed assignee, or if required by subpoena or other valid legal process, and
(3) the proposed subtenant's alteration and restoration obligations for purposes
of Section 7.09(c) hereof, to the extent the cost of same is to be paid for by
the proposed subtenant. Except for any sublease not for all or substantially all
of the balance of the term of this lease, in the event that Tenant fails to give
a Recapture Sublease Consent Request Notice on or before the date that is two
hundred seventy (270) days after the expiration of the Sublease Recapture
Period, Tenant shall again comply with all of the provisions of this Section
7.07 before entering into any sublease of all or any portion of the Premises.
7.08. Intentionally Omitted.
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7.09. (a) If Landlord exercises its option to terminate this lease
in the case where Tenant desires to assign this lease, then this lease shall end
and expire on the date the proposed assignment was to be effective (but in no
event shall such termination be effective sooner than sixty (60) days after the
date on which Landlord exercises its option to terminate this lease unless
Landlord waives this condition in its sole discretion), and the Fixed Rent and
Additional Charges shall be paid and apportioned to such date. If the Assignment
Recapture Offer Notice contemplated one or more payments by the proposed
assignee to Tenant in connection with the proposed assignment, Landlord shall
pay such amounts to Tenant as and when such amounts were to be due and payable
as set forth in the Assignment Recapture Offer Notice; PROVIDED, HOWEVER, that
the provisions of Section 7.14 hereof shall apply to any such payments with the
same force and effect as if such payments were being made to Tenant by an
assignee in connection with an assignment of this lease consented to by Landlord
and, to the extent, if any, that such payments constitute Assignment Profit,
Landlord shall deduct from such payments an amount equal to fifty (50%) percent
of such Assignment Profit (I.E., Tenant and Landlord shall share in the
Assignment Profit, if any, on a 50%/50% basis). If the Assignment Recapture
Offer Notice contemplated the receipt by the proposed assignee from Tenant of
any consideration or concessions in connection with the proposed assignment,
then Tenant shall pay such consideration (as Additional Charges hereunder)
and/or grant any such concessions to Landlord (or Landlord's designee) as and
when such amounts were to be due and payable (or concessions were to be granted)
as set forth in the Assignment Recapture Offer Notice.
(b) If Landlord exercises its option to terminate this lease
in the case where Tenant desires to sublease all or substantially all of the
Premises for all or substantially all of the remainder of the term of this
lease, then this lease shall end and expire on the date the proposed sublease
was to be effective (but in no event shall such termination be effective sooner
than sixty (60) days after the date on which Landlord exercises its option to
terminate this lease unless Landlord waives this condition in its sole
discretion), and the Fixed Rent and Additional Charges shall be paid and
apportioned to such date. If the Sublease Recapture Offer Notice contemplated a
Sublease Profit, Landlord shall pay to Tenant an amount equal to fifty (50%)
percent of such contemplated Sublease Profit, as and when same would have been
paid to Tenant by the prospective subtenant. If the Sublease Recapture Offer
Notice contemplated subrentals (taking into account subtenant concessions, such
as free rent or a work allowance or work letter) less than the Fixed Rent and
Additional Charges payable by Tenant hereunder (such shortfall of subrentals
being herein called the "SUBLEASE LOSSES"), Tenant shall pay to Landlord an
amount equal to one hundred (100%) percent of such Sublease Losses as and when
same would have been incurred by Tenant.
(c) If Landlord exercises its option to terminate this lease
with respect to the space covered by Tenant's proposed sublease in any case
where Tenant desires to sublet less than substantially all of the Premises for
all or substantially all of the balance of the term of this lease, then (i) this
lease shall end and expire with respect to
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such part of the Premises (hereinafter called the "RECAPTURED SUBLEASE SPACE")
on the date the proposed sublease was to be effective (but in no event shall
such termination be effective sooner than sixty (60) days after the date on
which Landlord exercises its option to terminate this lease with respect to the
Recaptured Sublease Space unless Landlord waives this condition in its sole
discretion); (ii) from and after such date, the Fixed Rent payable with respect
to the Recaptured Sublease Space as set forth in Section 1.04 hereof shall cease
to be payable by Tenant; (iii) Tenant's Share shall be proportionately reduced
and (iv) Tenant shall pay to Landlord, within thirty (30) days after written
demand, as Additional Charges hereunder, any costs incurred by Landlord in
physically separating the Recaptured Sublease Space from the balance of the
Premises and in complying with any laws and requirements of any public
authorities relating to such separation, except to the extent, if any, that the
Sublease Recapture Offer Notice specified that such costs would be the
responsibility of the proposed subtenant, in which event Landlord shall be
responsible for such costs.
7.10. Intentionally Omitted.
7.11. (a) Provided that Tenant is not in monetary default or
material non-monetary default of any of Tenant's obligations under this lease
after the giving of notice and the expiration of any applicable cure period:
(i) any Landlord's Assignment Consent shall be given
or withheld (and if withheld, Landlord's notice withholding such consent
shall set forth with specificity the reasons for such withholding) on or
before the date that is thirty (30) days after Landlord's receipt of the
Assignment Consent Request Notice together with all of the information
required by Section 7.07(a)(i) hereof; and
(ii) any Landlord's Sublease Consent shall be given
or withheld (and if withheld, Landlord's notice withholding such consent
shall set forth with specificity the reasons for such withholding) on or
before the date that is thirty (30) days after Landlord's receipt of the
Sublease Consent Request Notice together with all of the information
required by Section 7.07(b)(ii) hereof.
In the event that Landlord does not give or withhold any of the consents
referred to in the immediately preceding sentence within the time periods set
forth therein, Tenant shall have the right to give a written notice to Landlord
(herein called "TENANT'S DEEMED CONSENT NOTICE") to the effect that unless
Landlord gives Tenant a notice that it is giving or withholding such consent
within ten (10) days (or five (5) Business Days with respect to a proposed
sublease for less than 100,000 rentable square feet) after Landlord's receipt of
such Tenant's Deemed Consent Notice, such consent shall be deemed given by
Landlord.
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(b) Landlord's Assignment Consent or Landlord's Sublease
Consent, as the case may be, shall not be unreasonably withheld or conditioned,
provided and upon condition that:
(i) Tenant shall have complied with the provisions
of Section 7.07 hereof and Landlord shall not have exercised any of its
options under said Section 7.07 within the time permitted therefor, time
being of the essence in connection therewith;
(ii) in Landlord's reasonable judgment, the proposed
assignee or subtenant is engaged in a business and the Premises, or the
relevant part thereof, will be used in a manner which is in keeping with
the then standards of the Building which are consistent with Comparable
Buildings;
(iii) the proposed assignee or subtenant is not a
disreputable person and, in the case of a proposed assignment, has
sufficient financial worth considering the responsibility involved, and
Landlord has been furnished with reasonable proof thereof;
(iv) provided that Landlord shall have space
comparable in size then available, or to become available, for leasing in
the Building that Landlord has elected to lease to tenants (I.E., both the
Unit and any other unit of the Condominium owned by Landlord or any
Affiliate of Landlord), within six (6) months from the effective date of
the proposed assignment or subletting, as the case may be (herein called
"COMPARABLE SPACE"), neither (A) the proposed assignee or sublessee nor (B)
any person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee or any person
who controls the proposed assignee or sublessee, is then an occupant of any
part of the Building or a party with whom Landlord or Landlord's agent
(directly or through a broker) has been actively negotiating with respect
to space in the Building during the six (6) months immediately preceding
Landlord's receipt of a notice from Tenant to Landlord (herein called a
"TENANT NEGOTIATION NOTICE") to the effect that Tenant has entered into
negotiations with such party; PROVIDED, HOWEVER, that (1) if Landlord shall
have failed to identify such Comparable Space in writing within five (5)
Business Days of a written request by Tenant that Landlord identify such
Comparable Space, the foregoing condition shall not apply to the subletting
or assignment in question and (2) in the event that Landlord fails within
five (5) Business Days after its receipt of a Tenant Negotiation Notice to
identify the prospective assignee or subtenant described therein as a party
(or as a person which, directly or indirectly, controls, is controlled by,
or is under common control with a party) with which Landlord has been
actively negotiating with respect to space in the Building during the six
(6) months immediately preceding Landlord's receipt of such Tenant
Negotiation Notice, Landlord shall not thereafter have the right to
withhold its consent to an
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assignment or sublease to such party on the grounds that Landlord has
thereafter entered into active negotiations with such party (or a person
which, directly or indirectly, controls, is controlled by, or is under
common control with a party) unless Tenant fails to enter into an
assignment or sublease with such party within the 300-day period commencing
on the date of the Tenant Negotiation Notice;
(v) no floor of the Premises shall be subdivided
into more than four (4) separate units;
(vi) Tenant shall not have publicly advertised the
availability of the Premises without prior notice to and approval by
Landlord (which approval shall be with respect to the advertisement itself
as opposed to the right to advertise [I.E., an appropriate advertisement
for a first-class Park Avenue office building], and Landlord shall not
unreasonably withhold or condition and shall grant or withhold such
approval within five (5) Business Days), nor shall any public advertisement
state the proposed rental, but nothing contained in this Section
7.11(b)(vi) shall be deemed to prohibit Tenant, without Landlord's consent
or approval, from listing with brokers the availability of the Premises for
sublet or assignment at any rental rate, and broker's fliers or listings
and Tenant's marketing materials shall not be deemed to constitute public
advertisements;
(vii) Tenant shall reimburse Landlord within thirty
(30) days after demand (including reasonable supporting documentation) for
any reasonable costs that may be incurred by Landlord in connection with
said assignment or sublease, including, without limitation, the costs of
making investigations as to the acceptability of the proposed assignee or
subtenant, and reasonable legal costs incurred in connection with the
granting of any requested consent; and
(viii) the proposed assignee or subtenant is not (A) a
charitable, religious, union or other not-for-profit organization, or (B) a
tax exempt entity within the meaning of Section 168(j)(4)(A) of the
Internal Revenue Code of 1986, as amended, or any successor or substitute
statute, or rule or regulation applicable thereto (as same may be amended).
7.12. (a) Other than with respect to any sublease not for all or
substantially all of the balance of the term of this lease, the submission to
Landlord of a Sublease Document or Assignment Document which contains (i)
economic terms that are "substantially different from" (as hereinafter defined
in this Section 7.12(a)) the economic terms set forth in the notice delivered to
Landlord pursuant to Section 7.07 hereof [including, without limitation, in the
case of a sublease, with respect to the subrental rate (giving effect to the
financial value of any abatements, concessions, credits or improvements for the
benefit of the subtenant) or, in the case of an assignment, with respect to the
consideration and all other sums being paid in connection with such assignment],
or (ii) material non-economic terms that are different from the material
non-economic
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terms set forth in the notice delivered to Landlord pursuant to Section 7.07
hereof, except for deviations that do not result in a material benefit to the
proposed assignee or sublessee [including, without limitation, the length of the
sublease term, the size of the sublease space, the methods by which the
subtenant will be charged for electricity, and chilled and/or condenser water
that will be made available to the subtenant at the sublet premises (E.G., by
submeter, BTU meter or survey and the rates to be applied to the readings set
forth on or arrived at by such submeter, BTU meter or survey)], shall be deemed
to be an irrevocable offer from Tenant to Landlord as to which Landlord shall
have all of the options set forth in Section 7.07 hereof, and Tenant shall again
comply with all of the provisions and conditions of Section 7.07 hereof before
entering into such sublease or assignment; PROVIDED, HOWEVER, that the thirty
(30) day time period set forth therein for Landlord to exercise its right of
recapture shall be reduced to five (5) Business Days. The economic terms of a
Sublease Document or Assignment Document shall be deemed "SUBSTANTIALLY
DIFFERENT FROM" the economic terms set forth in the notice delivered to Landlord
pursuant to Section 7.07 hereof if the economic terms of such proposed sublease
or assignment on a net present value basis (using a discount rate of LIBOR plus
200 basis points) differ by more than ten (10%) percent from the terms set forth
in the notice delivered to Landlord pursuant to Section 7.07 hereof.
(b) In the event Tenant fails to submit an Assignment
Document and Consent Agreement in the forms required by Section 7.07(a)(ii)
hereof, or fails to submit a Sublease Document and Consent Agreement in the
forms required by Section 7.07(b)(ii) hereof, as the case may be, within three
hundred sixty-five (365) days from the date on which Landlord grants to Tenant a
Landlord's Assignment Consent or a Landlord's Sublease Consent, as the case may
be, time being of the essence, then Tenant shall again comply with all of the
provisions and conditions of Section 7.07 hereof before assigning this lease or
subletting all or part of the Premises (other than with respect to any sublease
not for all or substantially all of the balance of the term of this lease);
PROVIDED, HOWEVER, that if within the ten (10) Business Day period immediately
preceding the expiration of such three hundred sixty-five (365) day period
Tenant submits to Landlord a letter signed by an officer of the prospective
assignee or subtenant or, provided that the Tenant shall be the Named Tenant, by
an officer of Tenant, stating in substance that such prospective assignee or
subtenant of Tenant is then negotiating in good faith with Tenant for an
assignment of this lease or a sublease of all or a portion of the Premises, such
three hundred sixty-five (365) day period shall be increased to three hundred
ninety-five (395) days.
7.13. With respect to each and every sublease or subletting under
the provisions of this lease, it is further agreed that:
(a) No subletting shall be for a term (including any renewal
or extension options contained in the sublease) ending later than one (1) day
prior to the expiration date of this lease;
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(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
the Sublease Document (and all ancillary documents executed in connection with
such subtenant's occupancy of the Premises or with respect to or modifying such
sublease) has been delivered to Landlord;
(c) Each sublease shall provide that it is subject and
subordinate to this lease and to any matters to which this lease is or shall be
subordinate, and that in the event of termination, reentry or dispossess by
Landlord under this lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not be (i)
liable for any previous act or omission of Tenant under such sublease, (ii)
subject to any credit, offset, claim, counterclaim, demand or defense which such
subtenant may have against Tenant, (iii) bound by any previous modification of
such sublease not consented to by Landlord or by any previous payment of any
amount due under this lease more than one (1) month in advance of the due date
thereof, (iv) bound by any covenant of Tenant to undertake or complete any
construction of the Premises or any portion thereof, (v) required to account for
any security deposit of the subtenant other than any security deposit actually
delivered to Landlord by Tenant, (vi) responsible for any monies owing by Tenant
to the credit of subtenant, (vii) bound by any obligation to make any payment to
such subtenant or grant any credits, except for services, repairs, maintenance
and restoration provided for under the sublease to be performed after the date
of such attornment, or (viii) required to remove any person occupying the
Premises or any part thereof; and
(d) Each sublease shall provide that the subtenant may not
assign its rights thereunder or further sublet the space demised under the
sublease, in whole or in part, except in compliance with all of the terms and
provisions of this Article 7.
7.14. (a) If Landlord shall give its consent to any assignment of
this lease or to any sublease for which Landlord's consent is required, then
Tenant shall in consideration therefor, pay to Landlord, as Additional Charges
an amount equal to fifty (50%) percent of any Assignment Profit or Sublease
Profit, as the case may be, after deducting therefrom in each case the amount of
Tenant's Costs. Notwithstanding anything to the contrary contained in this
lease, if (a) Tenant shall enter into a sublease (herein called "TENANT
SUBLEASE") with a subtenant (other than an Affiliate of Tenant and/or a Service
and Business Relationship Entity), (b) such subtenant shall pay to Tenant
Sublease Profit with respect to any further subletting by such subtenant subject
to and in accordance with the provisions of such Tenant Sublease and (c) after
deducting therefrom the Tenant's Costs of Tenant with respect to such Tenant
Sublease, Tenant shall realize Sublease Profit, then, in such event, Tenant
shall pay to Landlord, as Additional Charges, an amount equal to fifty (50%)
percent of any such Sublease Profit
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within thirty (30) days after the date such subtenant under such Tenant Sublease
shall pay any such Sublease Profit to Tenant.
(b) For purposes of this Section 7.14, the term "ASSIGNMENT
PROFIT" shall mean an amount equal to all sums and other considerations paid to
Tenant by the assignee for or by reason of such assignment (including, but not
limited to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property),
less:
(i) in the case of a sale or rental of property
which is deemed to be the property of Landlord pursuant to the provisions
of Article 12 hereof, zero;
(ii) in the case of a sale of Tenant's Property, the
then net unamortized or undepreciated portion (determined on the basis of
Tenant's federal income tax returns) of the original cost thereof; or
(iii) in the case of a rental of Tenant's Property,
the fair rental value thereof).
(c) For purposes of this Section 7.14, the term "SUBLEASE
PROFIT" shall mean, for the term of the applicable sublease (the "SUBLEASE
TERM"):
(i) any rents, additional charges or other
consideration payable under the sublease or other occupancy agreement to
Tenant by the subtenant or other occupant which is in excess of the Fixed
Rent and Additional Charges accruing during the Sublease Term under this
lease in respect of the subleased or occupied space (at the rate per square
foot payable by Tenant hereunder) pursuant to the terms hereof, and
(ii) all sums paid for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture or other personal
property, less:
(A) in the case of a sale or rental of
property which is deemed to be the property of Landlord pursuant to the
provisions of Article 12 hereof, zero;
(B) in the case of a sale of Tenant's
Property, the then net unamortized or undepreciated portion (determined on
the basis of Tenant's federal income tax returns) of the original cost
thereof; or
(C) in the case of a rental of Tenant's
Property, the fair rental value thereof.
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(d) The sums payable under this Section 7.14, if any, shall
be paid to Landlord within ten (10) days after the same are paid by the assignee
or subtenant to Tenant.
(e) For purposes hereof, the term "TENANT'S COSTS" shall
mean:
(i) the amount of any commercially reasonable
broker's fee or commissions paid to a broker as a result of any subletting
or assignment by Tenant hereunder and any transfer, sales or gains taxes
incurred and paid by Tenant in connection with such subletting or
assignment;
(ii) the cost to Tenant of any improvements made to
prepare the space in question for the occupancy of the subtenant or
assignee thereof and any rent abatement and/or concession (including moving
expenses but excluding any lease takeover costs except as set forth below)
and/or work allowance (or equivalent) granted by Tenant to any such
subtenant or assignee in lieu of or in addition to Tenant's performance of
any such improvements made to prepare the space in question for the
occupancy of the subtenant or assignee;
(iii) advertising and marketing expenses directly
related to the subletting or assignment of the space;
(iv) reasonable legal fees directly related to the
subletting or assignment of the space;
(v) the cost to Tenant of any lease takeover costs;
provided however, that (A) such lease takeover costs shall be reduced by
any amounts received by Tenant in connection therewith, such as sublease
rentals paid to Tenant (or its subtenant) under the leases taken over by
Tenant, (B) to the extent that any amounts received by Tenant in connection
with lease takeover costs exceed such lease takeover costs, the excess
shall constitute Assignment Profits or Sublease Profits, as the case may
be, and (C) Tenant's Costs, and their effect on Assignment Profits or
Sublease Profits, as the case may be, shall be recalculated, from time to
time at reasonable intervals, to provide for any appropriate adjustments
resulting from the receipt by Tenant of such amounts in connection with
lease takeover costs;
(vi) the unamortized construction costs of leasehold
improvements installed by or on behalf of Tenant in connection with its
occupancy of the applicable portion of the Premises, but only to the extent
that such improvements are used by the assignee or subtenant in connection
with its initial occupancy of such portion of the Premises; and
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(vii) the unamortized costs of fixtures, furnishings
and equipment (herein called "FF&E") installed by or on behalf of Tenant in
connection with its occupancy of the applicable portion of the Premises,
but only to the extent that such FF&E are used by the assignee or subtenant
in connection with its initial occupancy of such portion of the Premises.
For the purposes of computing "ASSIGNMENT PROFIT" and "SUBLEASE PROFIT",
Tenant's Costs with respect thereto shall be deducted as and when they are paid
by Tenant (or, as necessary, deducted from future Assignment Profit or Sublease
Profit, as the case may be, to the extent that current Tenant's Costs exceed
current Assignment Profit or Sublease Profit, as the case may be).
7.15. Each subletting shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this lease. Except as
provided in Section 7.09 hereof to the extent applicable, Tenant shall and will
remain fully liable for the payment of the Fixed Rent and Additional Charges due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this lease on the part
of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this lease, and any such violation shall
be deemed to be a violation by Tenant. Tenant further agrees that
notwithstanding any such subletting, no other and further subletting of the
Premises by Tenant or any person claiming through or under Tenant (except as
provided in Section 7.10 hereof) shall or will be made except upon compliance
with and subject to the provisions of this Article. If Landlord shall decline to
give its consent to any proposed assignment or sublease, or if Landlord shall
exercise any of its options under Section 7.07 hereof, Tenant shall indemnify,
defend and hold harmless Landlord against and from any and all loss, liability,
damages, costs and expenses (including, but not limited to, reasonable counsel
fees) resulting from any claims that may be made against Landlord by the
proposed assignee or sublessee or by any brokers or other persons (other than
any broker(s) representing Landlord as a Landlord's leasing agent) claiming a
commission or similar compensation in connection with the proposed assignment or
sublease.
7.16. Landlord shall have the right, at reasonable times upon
reasonable notice to Tenant, to examine and/or audit Tenant's books and records
relating to Sublease Profit or Assignment Profit to determine the accuracy of
Tenant's computation of any Sublease Profit or Assignment Profit hereunder and
the provisions of Section 3.03(e)(i) hereof relating to confidentiality shall be
applicable to Landlord in connection therewith. Any dispute with respect to the
reasonableness of Landlord's denial of consent to a proposed subletting or
assignment or with respect to the computation of Assignment Profit or Sublease
Profit shall be determined by expedited arbitration in accordance with the
provisions of Article 39 hereof.
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7.17. Landlord shall, within thirty (30) days after Tenant's request,
accompanied by an executed counterpart of an Eligible Sublease, deliver to
Tenant and the subtenant under an Eligible Sublease (herein called an "ELIGIBLE
SUBTENANT") a Non-Disturbance Agreement substantially in the form annexed hereto
as EXHIBIT L (herein called a "LANDLORD'S NON-DISTURBANCE AGREEMENT"). Following
the Eligible Subtenant's and Tenant's execution and delivery of the Landlord's
Non-Disturbance Agreement, Landlord shall, within thirty (30) days, execute and
deliver a counterpart thereof to the Eligible Subtenant. For purposes hereof,
the term "ELIGIBLE SUBLEASE" shall mean a direct sublease:
(a) between Tenant and a subtenant which is not a Service
and Business Relationship Entity or an Affiliate of Tenant, and, as of the date
of execution of the Eligible Sublease, has a net worth or any guarantor of the
subtenant's obligations under the Eligible Sublease has a net worth, computed in
accordance with GAAP, equal to or greater than the product of (i) the annual
Fixed Rent then payable by Tenant on account of the portion of the Premises
demised under the Eligible Sublease, and (ii) thirty (30), and Landlord has been
provided with proof thereof reasonably satisfactory to Landlord,
(b) that has been consented to by Landlord and meets all of
the applicable requirements of this Article 7 (including, without limitation,
the provisions of Section 7.13 hereof),
(c) which demises not less than 22,000 rentable square feet,
(d) which is for an initial sublease term (I.E., not
including any renewals) of not less than five (5) years; and
(e) which provides for a rental rate, on a per rentable
square foot basis (including Fixed Rent and Additional Charges on account of
real estate taxes, Operating Expenses and electricity) which (after taking into
account all rent concessions provided for therein) is equal to or in excess of
the Fixed Rent and Additional Charges pursuant to Article 3 and Article 14
hereof for the term of the Eligible Sublease (hereinafter called the "LEASE
RENT") or, in the alternative, provides for a rental rate that is less than the
Lease Rent, but will automatically increase to the Lease Rent from and after the
attornment of the sublessee to Landlord pursuant to the Landlord's
Non-Disturbance Agreement.
ARTICLE 8
COMPLIANCE WITH LAWS
8.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any Legal Requirements with respect to the Premises
or the use or occupation thereof. Tenant shall, at Tenant's expense, comply with
all Legal
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Requirements in respect of the Premises or the use and occupation thereof;
PROVIDED, HOWEVER, that Tenant shall not be obligated to make structural repairs
or alterations in or to the Premises or to the vertical portions of Building
systems or facilities serving the Premises or to any portions of Building
systems or facilities that pass through the Premises but do not serve the
Premises (but Tenant shall be obligated to make repairs to horizontal extensions
of or Alterations to such Building systems or facilities that do serve the
Premises, such as electrical or HVAC distribution within the Premises) in order
to comply with Legal Requirements unless the need for same arises out of
Tenant's manner of use of the Premises as opposed to mere executive or general
office use or any of the causes set forth in clauses (b) through (d) of the next
succeeding sentence. Except as expressly provided to the contrary herein, Tenant
shall also be responsible for the cost of compliance with all Legal Requirements
in respect of the Real Property arising from (a) Tenant's manner of use of the
Premises (other than arising out of the mere use of the Premises as executive
and general offices), (b) the manner of conduct of Tenant's business or
operation of its installations, equipment or other property therein, (c) any
cause or condition created by or at the instance of Tenant (other than the mere
use of the Premises as executive and general offices), or (d) the breach of any
of Tenant's obligations hereunder, whether or not such compliance requires work
which is structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen. Tenant shall pay all the reasonable out-of-pocket costs and all the
reasonable out-of-pocket expenses, and all the fines, penalties and damages
which may be imposed upon Landlord, the Board of Managers, the owner of any
other condominium units in the Building or any Superior Lessor by reason of or
arising out of Tenant's failure to fully and promptly comply with and observe
the provisions of this Section 8.01. Without limiting the generality of the
foregoing, it is specifically agreed that Tenant shall comply with (i) all Legal
Requirements that require the installation, modification or maintenance within
the Premises of (A) any fire-rated partitions, gas, smoke, or fire detector or
alarm, any emergency signage or lighting system, or any sprinkler or other
system to extinguish fires or (B) any handicap facilities and (ii) except as
otherwise provided in Section 2.01(d) hereof, all Legal Requirements that
require the abatement, encapsulation, removal or other remediation of any
Hazardous Materials (including asbestos-containing materials) located in the
Premises, including any such Hazardous Materials located in the Premises as of
the date hereof. However, Tenant need not comply with any such Legal Requirement
so long as Tenant shall be contesting the validity thereof, or the applicability
thereof to the Premises, in accordance with Section 8.02 hereof. Except to the
extent that Tenant is required by this lease to comply therewith, Landlord, at
its expense, shall comply (or, in the case of the Common Elements, shall cause
the Board of Managers to comply) with all Legal Requirements in respect of the
Real Property as shall affect the Premises and Tenant's use and enjoyment
thereof, but may similarly defer compliance so long as Landlord or the Board of
Managers shall be contesting the validity or applicability thereof, provided
that deferring such compliance does not adversely affect Tenant's ability to use
and occupy the Premises in accordance with all of the terms and conditions of
this lease including, without limitation, Tenant's ability to obtain permits and
licenses to perform Alterations. Tenant shall accept performance by the
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Board of Managers (or its agents and contractors) on behalf of Landlord of any
obligation on Landlord's part to be performed under this lease, including repair
and maintenance obligations, without waiving Tenant's rights against Landlord.
8.02. Tenant, at its expense, after notice to Landlord and the Board
of Managers, may contest, by appropriate proceedings prosecuted diligently and
in good faith, the validity, or applicability to the Premises, of any Legal
Requirement, provided that (a) neither Landlord nor the Board of Managers shall
be subject to a bona fide threat of criminal penalty or to prosecution for a
crime, or any other fine or charge (unless Tenant agrees in writing to
indemnify, defend and hold Landlord and/or the Board of Managers harmless from
and against such non-criminal fine or charge), nor shall the Premises or any
part thereof or the Unit or the Building or Land, or any part thereof, be
subject to a bona fide threat of being condemned or vacated, nor shall the Unit
or the Building or Land, or any part thereof, be subjected to a bona fide threat
of any lien (unless Tenant shall remove such lien by bonding or otherwise) or
encumbrance, by reason of non-compliance or otherwise by reason of such contest;
(b) except as otherwise provided in this Section 8.02, before the commencement
of such contest, Tenant shall furnish to Landlord (or the Board of Managers, as
the case may be) a cash deposit or other security in amount, form and substance
reasonably satisfactory to Landlord (or the Board of Managers, as the case may
be) and shall indemnify Landlord and the Board of Managers against the
reasonable cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance
(PROVIDED, HOWEVER, that Tenant shall not be required to furnish any such cash
deposit or other security if Tenant is a Citi Tenant or if a non-Citi Tenant or
the Tenant Guarantor of a non-Citi Tenant shall then have a net worth determined
in accordance with GAAP of not less than the lesser of (i) one hundred (100)
times the potential cost of non-compliance, as reasonably determined by Landlord
and (ii) the Minimum Net Worth); (c) such non-compliance or contest shall not
constitute or result in any violation of any Superior Lease or Superior
Mortgage, or if any such Superior Lease and/or Superior Mortgage shall permit
such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; (d) such noncompliance or contest
shall not prevent Landlord or the Board of Managers from obtaining any and all
permits and licenses in connection with the operation of the Unit and the
Building; and (e) Tenant shall keep Landlord and the Board of Managers advised
as to the status of such proceedings. Without limiting the application of the
above, Landlord or the Board of Managers shall be deemed subject to a bona fide
threat of prosecution for a crime if Landlord, or its managing agent, or the
Board of Managers, or the managing agent of the Common Elements, or any officer,
director, partner, shareholder or employee of any of the foregoing, as an
individual, is charged with a crime of any kind or degree whatever, unless such
charge is withdrawn or disposed of before Landlord or its managing agent, or the
Board of Managers or the managing agent of the Common Elements, or such officer,
director, partner, shareholder or employee (as the case may be) is required to
plead or answer thereto.
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8.03. If, pursuant to the terms of this lease, Tenant shall be
required to comply with any Legal Requirement and such requirement shall first
arise during the last twenty-four (24) months immediately preceding the
Expiration Date of the initial lease Term or any Renewal Term, as applicable,
then Tenant shall not be deemed to be in default of Tenant's obligations under
this lease if Tenant shall fail to comply with such Legal Requirement if, and
only if:
(a) such Legal Requirement obligation is limited to the
interior of the Premises, is not related to Hazardous
Materials, is not structural in nature and the failure
to comply with such Legal Requirement will not have an
adverse effect on Building systems or on the health or
safety of any occupant of or visitor to the Building;
(b) Landlord shall not be responsible to Tenant for any
inability on Landlord's part to fulfill any of
Landlord's obligations under this lease or to meet any
of the specifications set forth in this lease to the
extent such inability is the result of Tenant's failure
to comply with such Legal Requirement;
(c) the failure to comply with such Legal Requirement will
not (i) subject Landlord, the Condominium, the Board of
Managers, or any Superior Lessor or any Superior
Mortgagee to prosecution for a crime or any other fine
or charge (unless Tenant agrees in writing to indemnify,
defend and hold such parties harmless from and against
any such fine or charge and actually pays any such fine
or charge), (ii) subject the Premises or any part
thereof or the Building, the Unit or Land, or any part
thereof, to being condemned or vacated, (iii) subject
the Building, Unit or Land, or any part thereof, to any
lien or encumbrance which is not removed or bonded
within the time period required under this lease, or
(iv) result in the termination of any Superior Lease or
foreclosure of any Superior Mortgage; and
(d) if the leasehold improvements (other than the core
bathrooms) in the Premises and other items in the
Premises that would be required to be replaced in
connection with a new buildout of the Premises (E.G.,
sprinkler heads) were to be demolished after the
Premises are surrendered to Landlord (whether or not
such demolition actually occurs),
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the obligation to comply with Legal Requirements would
no longer exist.
ARTICLE 9
INSURANCE
9.01. Tenant shall not knowingly violate, or knowingly permit the
violation of, any condition imposed by any insurance policy then issued in
respect of the Unit, the Condominium or the Real Property and shall not do, or
permit anything to be done, or keep or permit anything to be kept in the
Premises which would subject Landlord, the Board of Managers, or any Superior
Lessor or any Superior Mortgagee to any liability or responsibility for personal
injury or death or property damage, or which increases any insurance rate in
respect of the Unit, the Condominium or the Real Property over the rate which
would otherwise then be in effect or which would result in insurance companies
of good standing refusing to insure the Unit, the Condominium or the Real
Property in amounts reasonably satisfactory to Landlord or the Board of
Managers, or which would result in the cancellation of or the assertion of any
defense by the insurer in whole or in part to claims under any policy of
insurance in respect of the Unit, the Condominium or the Real Property;
PROVIDED, HOWEVER, that in no event shall the mere use of the Premises for
customary and ordinary office purposes, as opposed to the manner of such use,
constitute a breach by Tenant of the provisions of this Section 9.01.
9.02. (a) If, by reason of any failure of Tenant to comply with
the provisions of this lease (including any violation of Section 9.01 hereof
which is not done "knowingly"), the premiums on Landlord's insurance on the Unit
or the Board of Managers' insurance on the Condominium or the Real Property
shall be higher than they otherwise would be, and Landlord shall notify Tenant
of such fact and, if Tenant shall not, as soon as reasonably practicable, but in
no event more than twenty (20) days thereafter, rectify such failure so as to
prevent the imposition of such increase in premiums, then Tenant shall pay to
Landlord or the Board of Managers, as the case may be, within thirty (30) days
after demand accompanied by reasonable supporting documentation, for that part
of such premiums which shall have been charged to Landlord or the Board of
Managers due to such failure on the part of Tenant.
(b) If, by reason of any failure of Landlord to comply with
any provision of this lease, the premiums on Tenant's insurance on Tenant's
Property or on any other insurance required to be maintained by Tenant pursuant
to the terms of this lease shall be higher than they otherwise would be, and
Tenant shall notify Landlord of such fact and, if Landlord shall not, as soon as
reasonably practicable, but in no event more than thirty (30) days thereafter,
rectify such failure so as to prevent the imposition of such increase in
premiums, then Landlord shall reimburse Tenant for that part of such insurance
premiums which shall have been charged to Tenant due to such failure on the
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part of Landlord within thirty (30) days after demand accompanied by reasonable
supporting documentation.
(c) A schedule or "make up" of rates for the Real Property
or the Premises, as the case may be, issued by the New York Fire Insurance
Rating Organization or other similar body making rates for insurance for the
Unit, the Condominium, the Real Property or the Premises, as the case may be,
shall be prima facie evidence (absent manifest error) of the facts therein
stated and of the several items and charges in the insurance rate then
applicable to the Unit, the Condominium, the Real Property or the Premises, as
the case may be.
9.03. Tenant, at its expense, shall maintain at all times during the
term of this lease (a) "all risk" property insurance covering all present and
future Tenant's Property, leasehold improvements and Tenant's improvements and
betterments to a limit of not less than the full replacement value thereof, such
insurance to include a replacement cost endorsement, and (b) comprehensive
general liability insurance, including contractual liability, in respect of the
Premises and the conduct or operation of business therein, with Landlord and its
managing agent, if any, the managing agent of the Common Elements, the Board of
Managers, and the owners of any other condominium units in the Building, and
each Superior Lessor and Superior Mortgagee whose name and address shall
previously have been furnished to Tenant, as additional insureds, with limits of
not less than Five Million ($5,000,000) Dollars combined single limit for bodily
injury and property damage liability in any one occurrence, (c) steam boiler,
air-conditioning or machinery insurance, if there is a boiler or pressure object
or similar equipment in the Premises, with Landlord and its managing agent, if
any, the managing agent of the Common Elements, the Board of Managers, and the
owners of any other condominium units in the Building, and each Superior Lessor
and Superior Mortgagee whose name and address shall previously have been
furnished to Tenant, as additional insureds, with limits of not less than Five
Million ($5,000,000) Dollars and (d) when Alterations are in progress, the
insurance specified in Section 11.05 hereof. The limits of such insurance shall
not limit the liability of Tenant. Tenant shall deliver to Landlord and any
additional insureds, prior to the Commencement Date, certificates of insurance
for such fully paid-for policies, in form reasonably satisfactory to Landlord
issued by the insurance company or its authorized agent. Such insurance may be
carried in a blanket policy covering the Premises and other locations of Tenant,
if any, provided that each such policy shall in all respects comply with this
Article 9 and shall specify that the portion of the total coverage of such
policy that is allocated to the Premises is in the amounts required pursuant to
this Section 9.03. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration thereof, and Tenant, upon Landlord's
request, shall deliver to Landlord and any additional insureds a certificate of
such renewal policy. All such policies shall be issued by companies of
recognized responsibility licensed to do business in New York State and rated by
Best's Insurance Reports or any successor publication of comparable standing and
carrying a rating of A- VIII or better or the then equivalent of such rating,
and all such policies shall contain a provision whereby the same cannot be
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canceled or modified unless Landlord and any additional insureds are given at
least thirty (30) days prior written notice of such cancellation or
modification. The proceeds of policies providing "all risk" property insurance
of leasehold improvements and Tenant's improvements and betterments shall be
payable to Landlord, Tenant, the Board of Managers and each Superior Lessor and
Superior Mortgagee as their interests may appear. The parties shall cooperate
with each other in connection with the collection of any insurance monies that
may be due in the event of loss and shall execute and deliver to each other such
proofs of loss and other instruments which may be reasonably required to recover
any such insurance monies.
9.04. Landlord agrees (a) to have included in each of its insurance
policies insuring the Unit and any Landlord's property therein against loss,
damage or destruction by fire or other casualty and (b) to cause the Board of
Managers to have included in each of its insurance policies insuring the
Building and the Common Elements against loss, damage or destruction by fire or
other casualty, a waiver of the insurer's right of subrogation against Tenant
during the term of this lease or, if such waiver should be unobtainable or
unenforceable, (i) an express agreement that such policy shall not be
invalidated if the assured waives the right of recovery against any party
responsible for a casualty covered by the policy before the casualty or (ii) any
other form of permission for the release of Tenant. Tenant agrees to have
included in each of its insurance policies insuring Tenant's Property and
leasehold improvements and Tenant's improvements and betterments against loss,
damage or destruction by fire or other casualty, a waiver of the insurer's right
of subrogation against Landlord, the Board of Managers and the owners of any
other condominium units in the Building during the term of this lease or, if
such waiver should be unobtainable or unenforceable, (A) an express agreement
that such policy shall not be invalidated if the assured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty or (B) any other form of permission for the release of
Landlord, the Board of Managers and the owners of any other condominium units in
the Building. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from any party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use commercially reasonable efforts to obtain the same from another
insurance company described in Section 9.03 hereof. Landlord hereby releases
Tenant, and Tenant hereby releases Landlord, the Board of Managers, and the
owners of any other condominium units in the Building who have provided a
comparable written release to Tenant, with respect to any claim (including a
claim for negligence) which it might otherwise have against such party, for
loss, damage or destruction with respect to its property occurring during the
term of this lease to the extent to which it is, or is required to be, insured
under a policy or policies containing a waiver of subrogation or permission to
release liability, as provided in the preceding subdivisions of this Section.
Tenant hereby acknowledges that Landlord has caused the Board of Managers, by
its execution and delivery of an instrument in the form of EXHIBIT M annexed
hereto, to release Tenant with respect to any claim (including a claim for
negligence) which it might otherwise have against Tenant, for loss, damage or
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destruction with respect to its property occurring during the term of this lease
to the extent to which it is, or is required to be, insured under a policy or
policies insuring the Building and the Common Elements and containing a waiver
of subrogation or permission to release liability. Nothing contained in this
Section shall be deemed to relieve Landlord or Tenant of any duty imposed
elsewhere in this lease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this lease.
9.05. Landlord may from time to time require that the amount of the
insurance to be maintained by Tenant under Section 9.03 hereof be reasonably
increased, so that the amount thereof adequately protects Landlord's and the
Board of Managers' interests; PROVIDED, HOWEVER, that the amount to which such
insurance requirements may be increased shall not exceed an amount then being
required by landlords of Comparable Buildings. In the event that Tenant disputes
the reasonableness of any such required increase in the amount of the insurance
to be maintained by Tenant under Section 9.03 hereof, Tenant shall have the
right to submit such dispute to expedited arbitration under Article 39 hereof.
9.06. Landlord shall maintain (or shall cause the Board of Managers
to maintain) in respect of the Building at all times during the term of this
lease fire and casualty insurance covering the Building and Landlord's property
in amounts of coverage required by the Declaration.
9.07. Notwithstanding anything to the contrary contained in this
lease, for so long as the Tenant under this lease is the Named Tenant, a
Corporate Successor of the Named Tenant, or a Tenant having a net worth equal to
or greater than the Minimum Net Worth, Tenant shall have the option, either
alone or in conjunction with any Affiliate of Tenant, to maintain self insurance
and/or provide or maintain any insurance required by this lease under blanket
insurance policies maintained by Tenant or any Affiliate of Tenant, or provide
or maintain insurance through such alternative risk management programs as
Tenant or any Affiliate of Tenant may provide or participate in from time to
time (such types of insurance programs being herein collectively and severally
referred to as "SELF INSURANCE"), provided that (a) the insuring entity has a
net worth equal to or greater than the Minimum Net Worth, (b) the same does not
thereby decrease the insurance coverage required to be maintained by Tenant
pursuant to the provisions of this Article 9 and (c) the provisions of the
sentence preceding the penultimate sentence of Section 9.04 hereof shall apply
with respect to such policy of self-insurance and the waiver set forth therein
shall not be rendered null and void or diminished in any way by statute or case
law due to Tenant's status as a self-insurer. Any self insurance shall be deemed
to contain all of the terms and conditions applicable to such insurance as
required by this Article 9. If Tenant elects to self-insure, then, with respect
to any claims which may result from incidents occurring during the term of this
lease, such self insurance obligation shall survive the expiration or earlier
termination of this lease to the same extent as the insurance required by this
Article 9 would survive. To the extent Tenant self-insures, Tenant waives any
right to make claims against Landlord or the Board of
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Managers for any damage or loss that would have been insured against by Tenant's
insurance policies if insurance coverage required under this Article 9 hereof
were provided and in effect, and Tenant shall indemnify, defend and hold
Landlord and the Board of Managers harmless from and against any and all
liabilities, damages, costs and expenses (including reasonable attorneys' fees)
which Landlord and the Board of Managers would have been insured against by
Tenant's insurance policies if insurance coverage required under this Article 9
hereof were provided and in effect.
ARTICLE 10
RULES AND REGULATIONS
10.01. Tenant and its employees and agents shall faithfully observe
and comply with the Building Rules and Regulations annexed hereto as EXHIBIT D,
and such reasonable changes therein (whether by modification, elimination or
addition) as Landlord or the Board of Managers at any time or times hereafter
may make and communicate in writing to Tenant, which, in Landlord's or the Board
of Managers' reasonable judgment, shall be necessary for the reputation, safety,
care and appearance of the Unit, the Condominium or the Real Property, or the
preservation of good order therein, or the operation or maintenance thereof, and
which do not unreasonably affect the conduct of Tenant's business in the
Premises or Tenant's use of the Premises; PROVIDED, HOWEVER, that in case of any
conflict or inconsistency between the provisions of this lease and any of the
Building Rules and Regulations, the provisions of this lease shall control.
10.02. Nothing in this lease contained shall be construed to impose
upon Landlord or the Board of Managers any duty or obligation to enforce the
Building Rules and Regulations against Tenant or any other tenant or any
employees or agents of Tenant or any other tenant, except to the extent that,
following Landlord's receipt of written notice from Tenant, Landlord's failure
to enforce such Building Rules and Regulations against other tenants would have
a material adverse effect on the rights of Tenant hereunder. Provided that
Landlord attempts in good faith (or causes the Board of Managers to attempt in
good faith) after notice from Tenant to enforce any Building Rules and
Regulations the violation of which are having a material adverse impact on the
rights of Tenant hereunder, Landlord and the Board of Managers shall not be
liable to Tenant for violation of any Building Rules and Regulations by another
tenant or its employees, agents, invitees or licensees. Landlord agrees not to
enforce any Building Rules and Regulations in a manner discriminatory to Tenant.
ARTICLE 11
ALTERATIONS
11.01. Except as otherwise specifically provided in this lease, Tenant
shall make no improvements, changes or alterations in or to the Premises (herein
called
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"ALTERATIONS") of any nature without Landlord's prior written approval, which
approval, when required in accordance with the provisions of this lease, shall
be granted or withheld in accordance with the provisions hereinafter set forth.
If Landlord shall fail to respond to Tenant's written request for approval of
any Alterations, which request shall be accompanied by drawings, plans and
specifications in accordance with the provisions of Section 11.02(a) hereof
(herein called an "INITIAL ALTERATIONS REQUEST"), within ten (10) Business Days
after such Initial Alterations Request is made by Tenant, with Landlord's
approval or disapproval with detailed comments thereon explaining the reasons
for such disapproval, then Tenant shall have the right to give to Landlord a
second notice (herein called a "SECOND ALTERATIONS REQUEST"), and if Landlord
shall fail to respond to such Second Alterations Request within seven (7)
Business Days after Landlord's receipt thereof with Landlord's approval or
disapproval with detailed comments thereon explaining the reasons for such
disapproval, then such Second Alterations Request shall be deemed approved by
Landlord, provided that such Initial Alterations Request and Second Alterations
Request shall have specifically referred to this Section 11.01 and specifically
stated that Landlord must respond within such ten (10) Business Day and seven
(7) Business Day periods or such Second Alterations Request for approval shall
be deemed approved. Notwithstanding anything to the contrary contained herein:
(a) with respect to any Alterations (or portion thereof) which Landlord elects,
in its good faith judgment, to have reviewed by a third-party structural
engineer, the period for Landlord's review of an Initial Alterations Request
shall be fifteen (15) Business Days; and (b) as a condition precedent to its
effectiveness, a Second Alterations Request shall state in upper case, bold type
that it is a "DEEMED APPROVAL NOTICE".
Notwithstanding anything to the contrary set forth above and provided
Tenant shall be in compliance with the applicable provisions of this Article 11,
Tenant or any permitted subtenant or other permitted occupant of the Premises,
may at its sole expense, without Landlord's prior approval, undertake
Non-Material Alterations; provided, however, that for purposes of determining
whether an Alteration is a Non-Material Alteration with respect to a permitted
subtenant or other permitted occupant of the Premises (other than Tenant, any
Affiliate of Tenant and/or any Service and Business Relationship Entity), the
$5,000,000.00 threshold referenced in clause (d) of the next sentence shall be
deemed to be $1,000,000.00. A "MATERIAL ALTERATION" is an Alteration which (a)
is not limited to the interior of the Premises or which affects the exterior
(including the appearance) of the Unit or the Building, (b) affects the
structure and/or the structural integrity of the Unit or the Building (other
than to a DE MINIMIS degree), (c) adversely affects the usage or the proper
functioning of the mechanical, electrical, sanitary, heating, ventilating,
air-conditioning or other service systems of the Unit or the Building or (d)
costs more than Five Million Dollars ($5,000,000.00) for any single project
within a twelve (12) month period, excluding Alterations which are purely
cosmetic in nature. Any Alteration which is not a Material Alteration is
hereinafter called a "NON-MATERIAL ALTERATION". Landlord agrees not to
unreasonably withhold or delay its consent to any Material Alteration. For
purposes hereof, Landlord shall not be deemed to be acting unreasonably if it
withholds consent to a Material Alteration which:
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(i) affects the exterior appearance of the Unit or the Building, (ii) would have
an adverse affect on the heating, ventilation and air-conditioning (herein
called "HVAC"), mechanical, electrical, fire and life safety or plumbing
facilities of the Unit or the Building that are not located wholly within or
exclusively serve the Premises or (iii) would have an adverse affect on the
structural integrity or strength of the Unit or the Building.
11.02. (a) Before proceeding with any Alteration, Tenant shall (i)
at Tenant's expense, file all required architectural, mechanical, electrical and
engineering drawings (which drawings shall be prepared by architects and
engineers validly and currently licensed by New York State, who may be employees
of Tenant) and obtain all permits required by law, if any, and (ii) submit to
Landlord, for Landlord's approval, such drawings, plans and specifications for
the work to be done (but such submission shall, in the case of Non-Material
Alterations, or in the case of revisions to Non-Material Alterations or to
portions of previously approved Alterations which portions of such Alterations
do not constitute Material Alterations, not be for Landlord's approval but
rather for the purpose of confirming, in Landlord's reasonable judgment, that
the proposed Alteration or revision is, in fact, a Non-Material Alteration or a
revision of the type set forth above in this clause (ii), provided that no such
submission shall be required if the provisions of the next succeeding sentence
are applicable), and Tenant, subject to the deemed approval provisions set forth
in Section 11.01 above, shall not proceed with such work until it obtains
Landlord's written approval of such drawings, plans and specifications.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to submit plans and/or specifications with respect to Non-Material
Alterations that do not require a building permit or that are of a merely
decorative nature or of such a minor nature (such as putting up a partition to
divide one office into two work spaces) that it would not be customary industry
practice in Comparable Buildings to prepare plans and/or specifications for such
work, nor shall such a submission be required with respect to a revision of an
Alteration which meets the foregoing requirements of this sentence. Landlord, at
no third-party out-of-pocket cost to Landlord, will cooperate with Tenant's
efforts to obtain the permits necessary to perform such Alterations (which
process Tenant shall have the right to commence prior to Landlord's granting of
consent hereunder, provided that such cooperation by Landlord shall not in any
event be construed as the granting of consent by Landlord to any Alteration),
and Tenant shall indemnify and hold harmless Landlord from and against any
claims arising in connection with such cooperation. Tenant shall use an engineer
approved by Landlord (such approval not to be unreasonably withheld, conditioned
or delayed) with respect to the preparation of Tenant's engineering drawings in
connection with any Alteration for which engineering drawings are required. As
of the date of this lease, Landlord approves the contractors set forth in
EXHIBIT O annexed hereto for purposes of the performance of any and all
Alterations, except that in the case of Alterations, Landlord reserves the
right, prior to Tenant's commencement of any such work, in accordance with the
provisions hereof, to remove any contractor from such approved list and Tenant
shall have the right to add contractors to such list, with Landlord's consent,
not to be unreasonably withheld,
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conditioned or delayed; PROVIDED, HOWEVER, (A) Landlord agrees that no
contractor shall be deleted from the approved list if Tenant has previously
delivered to such contractor an invitation to bid, or after such contractor
shall have been engaged by Tenant to perform an Alteration, and while such
contractor is engaged in performing an Alteration, nor shall such contractor be
precluded from completing any punch list items or making any repairs which are
under warranty in the event that such contractor is removed from the approved
list during or after the completion of its work on behalf of Tenant, (B)
Landlord shall notify Tenant promptly following the removal of any contractor
from the approved list, and (C) Landlord shall not remove a contractor from the
approved list without a reasonable cause therefor.
(b) Tenant shall pay to Landlord or the Board of Managers,
within thirty (30) days, the commercially reasonable and actual fees of any
non-Affiliate, third-party architect or engineer employed by Landlord or the
Board of Managers (except to the extent that Tenant retains the same engineer
used by Landlord or the Board of Managers for the Unit or the Building) for (i)
reviewing the drawings, plans and specifications submitted to Landlord as set
forth in Section 11.02(a) hereof and (ii) inspecting Alterations to determine
whether the same are being performed in accordance with the approved plans and
specifications and all laws and requirements of public authorities, but only if
and to the extent that the employment of a non-Affiliate, third-party architect
or engineer for such purpose is consistent with Landlord's or the Board of
Managers' customary practices (E.G., if such drawings, plans, specifications
and/or Alterations are of such a complex nature or would have such an impact on
the structure of the Unit or the Building or Building systems that Landlord or
the Board of Managers reasonably believes that it would be prudent to employ a
third-party expert to review and/or inspect same).
(c) Tenant agrees that any review or approval by Landlord or
the Board of Managers or any of their agents of any plans and/or specifications
with respect to any Alterations is solely for Landlord's or the Board of
Managers' benefit, and without any representation or warranty whatsoever to
Tenant with respect to the adequacy, correctness or efficiency thereof or
otherwise.
11.03. (a) Subject to Section 11.03(d) below, before proceeding
with any Alteration which will cost more than Two Hundred Fifty Thousand
($250,000.00) Dollars (exclusive of the costs of decorative work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall furnish to Landlord one of the following
(as selected by Landlord): (i) a cash deposit, or (ii) an irrevocable,
unconditional, negotiable letter of credit, issued by and drawn on a bank or
trust company which is a member of the New York Clearing House Association in a
form reasonably satisfactory to Landlord; each to be in an amount equal to one
hundred twenty-five (125%) percent of the cost of the Alteration, estimated as
set forth above. Any such letter of credit shall be for one (1) year and shall
be renewed by Tenant each and every year until the Alteration in question is
completed and shall be delivered to
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Landlord not less than thirty (30) days prior to the expiration of the then
current letter of credit. Failure to deliver such new letter of credit on or
before said date shall be a material breach of this lease and Landlord shall
have the right, INTER ALIA, to present the then current letter of credit for
payment.
(b) Upon (i) the completion of the Alteration in accordance
with the terms of this Article 11 and (ii) the submission to Landlord of proof
evidencing the payment in full for said Alteration, the security deposited with
Landlord (or the balance of the proceeds thereof, if Tenant has furnished cash
or a letter of credit and if Landlord has drawn on the same) shall be returned
to Tenant.
(c) Upon Tenant's failure to properly perform, complete and
fully pay for the said Alteration, which failure continues after the giving of
notice and the expiration of the applicable cure period set forth in Section
22.02(a) hereof with respect to a failure to pay or Section 22.02(b) hereof with
respect to a failure to properly perform or complete, Landlord shall be entitled
to draw on the security deposited under this Article 11 to the extent reasonably
necessitated by Tenant's failure to properly perform in connection with the said
Alteration, the restoration and/or protection of the Premises or the Real
Property and the payment or satisfaction of any costs, damages or expenses in
connection with the foregoing and/or Tenant's obligations under this Article 11.
(d) The provisions of this Section 11.03 shall not apply to
(i) a Citi Tenant or (ii) any other Tenant hereunder, for so long as such Tenant
and/or the Tenant Guarantor of such Tenant other than a Citi Tenant has a
tangible net worth that is equal to or greater than the lesser of (A) one
hundred (100) times the aggregate cost of the Alteration in question and (B) the
Minimum Net Worth.
11.04. Tenant, in connection with any Alterations, shall comply with
and observe the Building Standards for Alterations annexed as EXHIBIT E hereto
and made a part hereof, and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord or the Board of Managers at
any time or times hereafter may make and communicate in writing to Tenant;
PROVIDED, HOWEVER, that (a) in case of any conflict or inconsistency between the
provisions of this lease and any of the Building Standards for Alterations, the
provisions of this lease shall control, (b) such Building Standards for
Alterations shall not be enforced against Tenant in a discriminatory manner, and
(c) such modifications, eliminations or additions shall not decrease Tenant's
rights under this lease or increase Tenant's obligations or liabilities under
this lease unless landlords of Comparable Building have adopted comparable
procedures or standards.
11.05. Tenant, at its expense, shall obtain (and furnish true and
complete copies to Landlord of) all necessary governmental permits and
certificates for the commencement and prosecution of Alterations and for final
approval thereof upon completion, and shall cause Alterations to be performed in
compliance therewith, with all applicable Legal Requirements, with all
applicable requirements of insurance bodies and with the plans and
specifications approved by Landlord (to the extent such approval is
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required hereunder). Landlord shall, to the extent reasonably necessary,
cooperate with Tenant in connection with such filings, approvals and permits,
and shall execute reasonably promptly (and shall endeavor to do so within two
(2) Business Days after request) any applications as may be required in
connection therewith, provided that Tenant shall reimburse Landlord (as
Additional Charges) for the reasonable out-of-pocket costs and expenses incurred
by Landlord in connection with such cooperation within thirty (30) days after
demand therefor, accompanied by reasonably satisfactory documentation of such
costs and expenses, and further provided that Tenant shall indemnify and hold
harmless Landlord from and against any claims arising in connection with such
cooperation, other than any such claims arising from any incorrect information
provided by Landlord in connection therewith or Landlord's negligence, willful
misconduct or breach of this lease. Alterations shall be diligently performed in
a good and workmanlike manner, using materials and equipment at least comparable
in quality and class to the other existing installations and improvements in the
Premises. Alterations shall be performed by contractors first approved by
Landlord or the Board of Managers, as the case may be, which approval shall not
be unreasonably withheld, conditioned or delayed (it being agreed that Landlord
or the Board of Managers shall be deemed reasonable in withholding its consent
with respect to any contractor that then has a lien with respect to the Unit or
the Building); PROVIDED, HOWEVER, that any Alterations, tie-ins, testing,
adjusting or removals involving the life safety system or the BMS of the
Building shall be (a) performed only with materials purchased from Landlord's or
the Board of Managers' designated life safety contractor or BMS contractor, as
the case may be, at the same cost charged by such contractor to Landlord or the
Board of Managers and (b) performed by Landlord's or the Board of Managers'
designated life safety contractor or BMS contractor, as the case may be, at
Tenant's cost and expense at the same cost charged by such contractor to
Landlord or the Board of Managers. Alterations shall be performed in such manner
as not to unreasonably interfere with or delay and as not to impose any
additional expense upon Landlord or the Board of Managers in the construction,
maintenance, repair or operation of the Unit or the Building; and if any such
additional expense shall be incurred by Landlord or the Board of Managers as a
result of Tenant's performance of any Alterations, Tenant shall pay the
commercially reasonable amount thereof to Landlord or the Board of Managers, as
the case may be, within thirty (30) days after demand (including reasonable
supporting documentation with respect thereto). Landlord shall endeavor in good
faith to identify to Tenant any Additional Charges referred to in the preceding
sentence of which Landlord is aware at the time of Landlord's approval of such
Alterations, and to minimize the amount thereof, but Landlord shall have no
liability to Tenant and Tenant shall not be released from its obligations
pursuant to the preceding sentence in the event Landlord is unable or fails so
to identify or minimize any such Additional Charges. Throughout the performance
of Alterations, Tenant, at its expense, shall carry, or cause to be carried,
worker's compensation insurance for all persons employed in connection with such
Alterations in statutory limits, all risk "Builders Risk" insurance and general
liability insurance, with completed operation endorsement, for any occurrence in
or about the Unit or the Real Property, under which Landlord and its managing
agent, if any, the Board of Managers,
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the managing agent of the Common Elements, the owners of any other condominium
units in the Building and any Superior Lessor and Superior Mortgagee whose name
and address shall previously have been furnished to Tenant shall be named as
parties insured, in such limits as Landlord may reasonably require, with
insurers reasonably satisfactory to Landlord and the Board of Managers, provided
that such limits are obtainable from reputable insurers at commercially
reasonable rates and are consistent with limits required with respect to
comparable Alterations performed by tenants in Comparable Buildings. Tenant
shall furnish Landlord and the Board of Managers with reasonably satisfactory
evidence that such insurance is in effect at or before the commencement of
Alterations and, on request, at reasonable intervals thereafter during the
continuance of Alterations.
11.06. Tenant agrees that it will not knowingly do or permit anything
to be done in the Unit or the Building that would violate Landlord's or the
Board of Managers' union contracts affecting the Unit or the Building, or create
any work stoppage, picketing, labor disruption or dispute or disharmony or any
interference with the business of Landlord, the Board of Managers or any tenant
or occupant of the Building. Tenant shall immediately stop work or other
activity if Landlord or the Board of Managers notifies Tenant in writing that
continuing such work or activity would violate Landlord's or the Board of
Managers' union contracts affecting the Unit or the Building, or has caused any
work stoppage, picketing, labor disruption or dispute or disharmony or any
interference (beyond a DE MINIMIS extent) with the business of Landlord, the
Board of Managers or any tenant or occupant of the Building. Landlord agrees
that it will not knowingly do or permit anything to be done in the Unit or the
Building that would violate Tenant's (or Tenant's contractors) union contracts,
or create any work stoppage, picketing, labor disruption or dispute or
disharmony or any interference with the business of Tenant or any Alterations
being performed by Tenant in accordance with the terms and conditions of this
lease. Landlord shall immediately stop work or other activity if Tenant notifies
Landlord in writing that continuing such work or activity would violate Tenant's
(or Tenant's contractors) union contracts, or has caused any work stoppage,
picketing, labor disruption or dispute or disharmony or any interference (beyond
a DE MINIMIS extent) with the business of Tenant or any Alterations being
performed by Tenant in accordance with the terms and conditions of this lease.
11.07. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with the performance by or on behalf of Tenant of
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under Tenant (other than
by Landlord or its employees, agents or contractors), which shall be issued by
the Department of Buildings of the City of New York or any other public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord and the Board of Managers from and against any and all
mechanic's and other liens and encumbrances filed in connection with
Alterations, or any other work, labor, services or materials done for or
supplied to Tenant, or any person
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claiming through or under Tenant (other than by Landlord or its employees,
agents or contractors), including, without limitation, security interests in any
materials, fixtures or articles so installed in and constituting part of the
Premises and against all reasonable costs, expenses and liabilities incurred in
connection with any such lien or encumbrance or any action or proceeding brought
thereon. Tenant, at its expense, shall procure the satisfaction or discharge of
record of all such liens and encumbrances within thirty (30) days after notice
of the filing thereof (or bond or otherwise remove such lien or encumbrance if
Tenant is contesting same in accordance with the terms hereof). Provided that
Tenant provides such bonding during the pendency of any contest, nothing herein
contained shall prevent Tenant from contesting, in good faith and at its own
expense, any notice of violation, provided that Tenant shall comply with the
provisions of Section 8.02 hereof; provided further, however, that the foregoing
provisions of this sentence shall not obviate the need for such satisfaction or
discharge of record following the resolution of such contest.
11.08. Tenant will promptly upon the completion of an Alteration for
which Tenant is required to submit to Landlord plans and specifications in
accordance with the provisions of Section 11.02 hereof, deliver to Landlord
"as-built" drawings or approved shop drawings of any Alterations Tenant has
performed or caused to be performed in the Premises, and (a) if any Alterations
by Tenant are then proposed or in progress, Tenant's drawings and
specifications, if any, for such Alterations and (b) if any Alterations by
Landlord for Tenant were performed or are then proposed or in progress, the
"as-built" drawings or approved shop drawings, if any, or the drawings and
specifications, if any, as the case may be, for such Alterations, in Tenant's
possession. Notwithstanding anything to the contrary contained herein, wherever
this lease requires the submission of "as-built" drawings or approved shop
drawings by Tenant, Tenant may satisfy such obligation by submitting final
marked drawings except with respect to Alterations involving the sprinkler/life
safety systems of the Building.
11.09. All fixtures and equipment (other than any FF&E constituting
Tenant's Property) installed or used by Tenant in the Premises shall not be
subject to UCC filings or other recorded liens. Notwithstanding anything to the
contrary contained in this Article 11 or elsewhere in this lease to the
contrary, Tenant shall have the right to obtain financing secured by security
interests in Tenant's FF&E constituting Tenant's Property (herein called,
"TENANT'S COLLATERAL") and the provider of such financing shall have the right
to file UCC financing statements in connection therewith, provided and on
condition that (a) Landlord shall be under no obligation to preserve or protect
Tenant's Collateral, (b) following an event of default by Tenant hereunder the
secured party shall be required to reimburse Landlord for Landlord's actual out
of pocket costs and expense of storing Tenant's Collateral and repairing any
damage to the Premises which occurs during the removal of Tenant's Collateral,
and (c) in no event may Tenant grant to any party a security interest in
Tenant's leasehold estate or any so-called betterments and improvements to the
Premises (in contradistinction to Tenant's Collateral) and the description of
the secured property in the UCC financing statements shall specifically
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exclude the foregoing. Landlord agrees to execute and deliver a so called
"RECOGNITION AGREEMENT" with the holder of the security interest in Tenant's
Collateral acknowledging the foregoing, provided same is in form and substance
reasonably acceptable to Landlord and, if required, the holder of any Superior
Mortgage. In addition, Landlord agrees to execute and deliver a document
reasonably acceptable to Landlord to protect the position of the holder of the
security interest in Tenant's Collateral, sometimes referred to as a so called
"LANDLORD'S WAIVER," which includes provisions (i) waiving any rights Landlord
may have to Tenant's Collateral by reason of (A) the manner in which Tenant's
Collateral is attached to the Building, or (B) any statute or rule of law which
would, but for this provision, permit Landlord to distrain or assert a lien or
claim any other interest against any such property by reason of any other
provisions of this lease against Tenant's Collateral for the nonpayment of any
rent coming due under this lease, and (ii) giving the right to the holder of the
security interest in Tenant's Collateral, prior to the expiration of this lease
or in the event of the earlier termination of this lease, prior to the later of
the earlier termination of this lease and fifteen (15) Business Days after
Landlord's notice to the holder of the security interest in Tenant's Collateral
of Landlord's intent to terminate this lease as a result of Tenant's default
hereunder, to remove Tenant's Collateral in the event of a default by Tenant
under any agreement between Tenant and the holder of the security interest in
Tenant's Collateral, provided Tenant shall remain liable to perform, in
accordance with the terms and conditions of this lease, or paying the costs
incurred by Landlord in performing, restoration and repairs to any damage to the
Building and Premises resulting therefrom. Tenant shall reimburse Landlord as
Additional Charges for any and all actual out-of-pocket costs and expenses
incurred by Landlord in connection with Landlord's review of any of the
foregoing documents.
11.10. Tenant shall keep records for six (6) years of Tenant's
Alterations costing in excess of Two Hundred Fifty Thousand ($250,000.00)
Dollars and of the cost thereof. Tenant shall, within thirty (30) days after
demand by Landlord, furnish to Landlord copies of such records and cost if
Landlord shall require same in connection with any proceeding to reduce the
assessed valuation of the Unit or the Real Property, or in connection with any
proceeding instituted pursuant to Article 8 hereof or for any other bona fide
reason or purpose.
11.11. Landlord agrees and acknowledges that (a) Tenant is currently
performing the Alterations described on EXHIBIT C annexed hereto (herein
collectively called "TENANT INITIAL ALTERATIONS") and, (b) Tenant shall have the
right to continue to perform such Alterations from and after the Commencement
Date subject to the applicable provisions of this Article 11; PROVIDED, HOWEVER,
that Landlord's prior approval with respect to such Alterations and the
drawings, plans and specifications with respect to such Alterations shall not be
required.
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ARTICLE 12
LANDLORD'S AND TENANT'S PROPERTY
12.01. (a) All fixtures, equipment, improvements, ventilation and
air-conditioning equipment and appurtenances attached to or built into the
Premises at the commencement of or during the term of this lease, whether or not
by or at the expense of Tenant (but excluding Tenant's Property), shall be and
remain a part of the Premises, shall, upon the expiration or sooner termination
of this lease, be deemed the property of Landlord (without representation or
warranty by Tenant) and shall not be removed by Tenant, except as provided in
Section 12.02 hereof. Notwithstanding the foregoing provisions, upon notice to
Tenant no later than forty-five (45) days prior to the Expiration Date or upon
reasonable notice with respect to such earlier date upon which the term of this
lease shall expire, Landlord, subject to the provisions of the last sentence of
this Section 12.01, may require Tenant to remove substantially to the condition
of the raw space existing prior to their installation (but in no event to the
condition existing prior to the installation, unless the condition existing
prior to the installation was raw space), any kitchens, cafeterias, vaults,
private restrooms (excluding, however, any unisex restrooms installed by Tenant
to comply with the requirements of the ADA in lieu of renovating existing core
bathrooms), security areas, staircases (other than any staircases existing as of
the date of this lease), raised or above-slab reinforced flooring, slab cuts,
generators, uninterrupted power supply systems and preaction fire alarm systems
and associated equipment, and antennas, satellite dishes and microwave
communications facilities and associated equipment, or other items which are
substantially as difficult or expensive to remove as any of the foregoing items
enumerated in this sentence (herein collectively called "SPECIAL ALTERATIONS").
In such event Tenant shall remove the foregoing from the Premises and the
Building prior to the expiration of this lease at Tenant's expense. Upon such
removal Tenant shall, at its expense, repair any damage to the affected
portion(s) of the Premises, the Unit, the Common Elements or the Building due to
such removal. Notwithstanding anything to the contrary contained herein: (i)
Tenant may include with any Initial Alterations Request given in accordance with
the provisions of Section 11.01 hereof a written request that Landlord designate
any Alterations that constitute Special Alterations and which Landlord will
require Tenant to remove pursuant to the provisions of this Section 12.01 and
(ii) Landlord shall not have the right to require Tenant to remove any Special
Alterations not so designated by Landlord at such time. Any such request made by
Tenant must specifically refer to the provisions of this Section 12.01 and the
consequences of Landlord's failure to designate any such Alterations as Special
Alterations which will be required to be removed by Tenant. Landlord shall not
have the right to require Tenant to remove Special Alterations (A) which are
already in place as of the Commencement Date or (B) which Landlord does not
require Tenant to remove in accordance with the second sentence of this Section
12.01 and Landlord shall not have the right to require Tenant to remove the
Tenant Initial Alterations.
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(b) Notwithstanding anything to the contrary contained in
this lease, Landlord and Tenant agree and acknowledge that, until the expiration
or sooner termination of this lease, Tenant, for federal, state and local income
taxes purposes and for all other purposes shall be deemed the owner of all
fixtures, equipment, improvements, ventilation and air conditioning equipment
and appurtenances attached to or built into the Premises by Tenant or any
Affiliate of Tenant as the owner of the Unit and/or the Building prior to
Commencement Date and Tenant may obtain the benefit of such ownership, if any,
allowed or allowable with respect thereto hereunder, under applicable law and/or
the Internal Revenue Code.
12.02. All movable partitions, furniture systems, special cabinet
work, business and trade fixtures, machinery and equipment, communications
equipment (including, without limitation, telephone system, security system and
wiring) and office equipment, whether or not attached to or built into the
Premises, which are installed in the Premises by or for the account of Tenant
(and without expense to Landlord with respect to any System Equipment) and can
be removed without structural damage to the Unit or the Building, and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Premises (herein collectively called "TENANT'S
PROPERTY") shall be and shall remain the property of Tenant and may be removed
by Tenant at any time during the term of this lease; provided that if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Premises or to the Unit or the Building resulting from the
installation and/or removal thereof. Notwithstanding the foregoing, any System
Equipment for which Landlord shall have granted any allowance or credit to
Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered Tenant's Property
and shall be deemed the property of Landlord. For purposes hereof, the term
"SYSTEM EQUIPMENT" shall mean equipment which provides services or upgraded
services to the Premises, such as (i) supplemental air conditioning equipment,
(ii) electrical submeters, switchboards and other electrical distribution
equipment and (iii) uninterrupted power supply systems.
12.03. At or before the Expiration Date of this lease (or within
thirty (30) days after any earlier termination of this lease, which thirty (30)
day period shall be extended to sixty (60) days with respect to any early
termination of this lease at Landlord's election for reasons other than Tenant's
default hereunder) Tenant, at its expense, shall remove from the Premises all of
Tenant's furniture, equipment and other moveable personal property not affixed
or attached to the Premises (except for such items thereof as Landlord shall
have expressly permitted to remain, which property shall become the property of
Landlord), and Tenant shall repair any damage to the Premises or the Unit or the
Building resulting from any installation and/or removal of Tenant's Property.
12.04. Any other items of Tenant's Property which shall remain in the
Premises after the Expiration Date of this lease, or within thirty (30) days (or
sixty (60)
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days if such thirty (30) day period has been extended in accordance with the
provisions of Section 12.03 hereof) following an earlier termination date, may
at the option of Landlord, be deemed to have been abandoned, and in such case
such items may be retained by Landlord as its property or disposed of by
Landlord, without accountability, in such manner as Landlord shall reasonably
determine, and Tenant shall reimburse Landlord for Landlord's reasonable,
actual, out-of-pocket expenses in connection therewith.
ARTICLE 13
REPAIRS AND MAINTENANCE
13.01. Tenant shall, at its expense, throughout the term of this
lease, take good care of and maintain in good order and condition the Premises
and the fixtures and improvements therein including, without limitation, the
property which is deemed Landlord's pursuant to Section 12.01 hereof and
Tenant's Property, except as otherwise expressly provided in this Section 13.01.
Subject to the provisions of Article 19 hereof relating to damage or destruction
and Article 20 hereof relating to condemnation, Tenant shall be responsible for
all repairs, interior and exterior, structural and non-structural, ordinary and
extraordinary, foreseen or unforeseen, in and to the Premises (expressly
excluding any items of repair and maintenance for which Landlord is responsible
in accordance with the express provisions of this lease and to the extent
arising from Landlord's negligence or willful misconduct), and shall be
responsible for the cost of all repairs, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen or unforeseen, in and to
the Unit and the Building and the facilities and systems thereof, the need for
which arises out of (a) the performance or existence of Alterations, (b) the
installation, use or operation of the property which is deemed Landlord's,
pursuant to Sections 12.01 and 12.02 hereof and Tenant's Property, (c) the
moving of the property which is deemed Landlord's pursuant to Sections 12.01 and
12.02 hereof and Tenant's Property in or out of the Unit or the Building, (d)
except to the extent covered by insurance required to be carried by Landlord
pursuant to Article 9 hereof, the act, omission (where an affirmative duty to
act exists), misuse or neglect of Tenant or any of its subtenants or its or
their employees, agents, contractors or invitees or (e) design flaws in any of
Tenant's plans and specifications regardless of the fact that such Tenant's
plans may have been approved by Landlord. Tenant, at its expense, shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings and doors in and to the Premises and for all the repair, maintenance
and replacement of all horizontal portions of the systems and facilities of the
Unit and the Building within or exclusively serving the Premises (except for the
perimeter HVAC units, for which the repair, maintenance and replacement thereof
shall be Landlord's responsibility) to the point at which they connect to the
vertical portions of the Building systems, including without limitation the
sanitary and electrical fixtures and equipment therein. All repairs in or to the
Premises for which Tenant is responsible shall be promptly performed by Tenant
in a manner which will not interfere (except to a DE MINIMIS extent) with the
use of the Unit or the Building by other
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occupants; PROVIDED, HOWEVER, any repairs in and to the Unit or the Building
(outside of the Premises) and the facilities and systems of the Unit or the
Building for which Tenant is responsible shall be performed by Landlord or the
Board of Managers at Tenant's expense which expense shall be commercially
reasonable; but Landlord may, at its option, before commencing (or causing the
Board of Managers to commence) any such work or at any time thereafter, require
Tenant to furnish to Landlord such security, in form and amount as Landlord or
the Board of Managers shall reasonably deem necessary to assure the payment for
such work by Tenant; PROVIDED, HOWEVER, that Tenant shall have no obligation to
provide any such security if Tenant is a Citi Tenant, or if any other Tenant
and/or the Tenant Guarantor of any other Tenant shall then have a net worth,
determined in accordance with GAAP, of not less than the lesser of (A) one
hundred (100) times the reasonably estimated cost of such work and (B) the
Minimum Net Worth. The exterior walls of the Unit and the Building, the portions
of any window sills outside the windows, and the windows are not part of the
Premises and Landlord reserves all rights to such parts of the Unit and, subject
to the provisions of the Declaration, the Board of Managers reserves all rights
to such parts of the Building outside the Unit, and Landlord shall keep (or
shall cause the Board of Managers to keep) such portions of the Building and the
Unit in good first-class condition and repair consistent with Comparable
Buildings (except to the extent, if any, that Tenant is responsible for any such
repairs pursuant to any express provision of this lease). Notwithstanding the
foregoing provisions of this Section 13.01, Tenant shall not be responsible for
repairs to or replacements of any structural elements of the Unit or the
Building or to the vertical portions of Building systems or facilities serving
the Premises (I.E., excluding horizontal extensions of or Alterations to such
Building systems or facilities, such as electrical or HVAC distribution within
the Premises except as otherwise provided herein), except to the extent the need
for such repairs or replacements arises from the matters set forth in clauses
(a), (b), (c), (d) or (e) of the second sentence of this Section 13.01 or from
the negligence or willful misconduct of Tenant, its employees, agents or
contractors; PROVIDED, HOWEVER, that Tenant's obligation to pay for any such
repairs shall be subject to the provisions of Section 9.04 hereof if and to the
extent that the provisions of said Section 9.04 are applicable to the repair in
question and the cost of such repair is covered by insurance required to be
maintained by Landlord or the Board of Managers.
13.02. Tenant shall give Landlord reasonably prompt notice of any
defective condition in any plumbing, heating, air-conditioning or ventilation
system or electrical lines located in, servicing or passing through the Premises
of which it has actual knowledge. Following such notice (or following such
earlier time as Landlord obtains actual knowledge of any such defective
condition), Landlord shall remedy (or shall cause the Board of Managers to
remedy) the conditions, but at the reasonable expense of Tenant if Tenant is
responsible for same under the provisions of this Article 13. Tenant shall have
the right, at its sole cost and expense, but subject to the provisions of
Article 11 hereof (if and to the extent applicable), to repair Tenant's
supplemental HVAC system.
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13.03. Except as otherwise expressly provided in this lease,
including, without limitation, Section 35.04 hereof, Landlord shall have no
liability to Tenant, nor shall Tenant's covenants and obligations under this
lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury arising from Landlord's or the
Board of Managers' making any repairs or changes which Landlord or the Board of
Managers is required or permitted by this lease, or required by law, to make in
or to the fixtures, equipment or appurtenances of the Unit, the Building or the
Premises; PROVIDED, HOWEVER, that Landlord shall use (or shall cause the Board
of Managers to use) commercially reasonable efforts to make such repairs and
changes at such times and in such manner as to minimize interference with the
conduct of Tenant's business in the Premises, provided that neither Landlord nor
the Board of Managers shall be required to perform any such work on an overtime
or premium-pay basis (except in the case of an emergency) unless Tenant requests
same and reimburses Landlord or the Board of Managers, as the case may be, for
the actual, incremental, reasonable, out-of-pocket costs in connection
therewith.
13.04. (a) Landlord shall, at its sole cost and expense, but
subject to the provisions of this lease (including, without limitation, Article
3 hereof), keep, maintain, repair and replace (or cause the Board of Managers to
keep, maintain, repair and replace) the public portions, common areas and
structural elements of the Unit and, except to the extent covered by insurance
required to be carried by Tenant pursuant to Article 9 hereof, any damage to the
Premises resulting from Landlord's negligence or willful misconduct, and shall
cause the Board of Manager to keep, maintain and repair the public portions,
common areas and structural elements and the facade of the Building and the
Building systems and facilities, to the extent that such systems and facilities
affect the Premises, in good working order, and Landlord shall operate the Unit,
and shall cause the Board of Managers to operate the Common Elements and the
Building systems and facilities, in a manner consistent with the operation of a
first-class office building in accordance with standards then prevailing in
Comparable Buildings. All repairs in or to the Premises, the Unit or the
Building for which Landlord or the Board of Managers is responsible pursuant to
this lease shall be promptly performed in accordance with the proviso of Section
13.03 above. Landlord shall give Tenant not less than thirty (30) days' prior
notice (except in an emergency, in which case Landlord shall give such advance
notice, if any, as is reasonable under the circumstances) of any work which
Landlord or the Board of Managers proposes to perform in or about the Unit or
the Building which would result in the stoppage, interruption or reduction of
services to the Premises (except for DE MINIMIS stoppages, interruptions or
reductions during times other than Regular Building Service Hours) or otherwise
reasonably be expected to have an adverse affect on Tenant's use and enjoyment
of the Premises. Notwithstanding any provision of this Section 13.04 to the
contrary, Landlord or the Board of Managers, as the case may be, shall be
required to perform all maintenance, repairs, and replacements as referred to in
this Section 13.04 during non-Regular Building Service Hours if the nature of
any such maintenance, repair or replacement is such as to customarily be
performed by landlords in Comparable Buildings during non-Regular Building
Service Hours. Tenant
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shall accept performance by the Board of Managers (or its agents and
contractors) on behalf of Landlord of any obligation on Landlord's part to be
performed under this lease, including repair and maintenance obligations without
waiving any of Tenant's rights against Landlord.
(b) In addition to the foregoing, Landlord shall, at its
sole cost and expense, but subject to the provisions of this lease (including,
without limitation, Article 3 and Section 13.04(a) hereof) keep, maintain,
repair and replace (or cause the Board of Managers to keep, maintain, repair and
replace) the Building escalator which connects the 12th and 13th floor levels of
the Building and the two (2) escalators which connect the lobby of the Building
to the Mezzanine Premises (herein collectively called the "ESCALATOR") in good
working order, and Landlord shall operate (or cause the Board of Managers to
operate) the Escalator in a manner consistent with the operation thereof as of
the date of this lease.
ARTICLE 14
ELECTRICITY
14.01. Except as otherwise provided in this Article 14, on and after
the Commencement Date, Landlord shall supply electricity to the Premises on a
submetered basis in accordance with this Section 14.01 using submeters
heretofore installed in the Premises or installed by Landlord at Tenant's sole
cost and expense (herein called "TENANT'S METERS"), which Tenant's Meters shall
measure the electricity consumed by Tenant in the Premises then leased by Tenant
hereunder, excluding any electricity consumed in connection with the production
of base building HVAC or any other services that Landlord is required to provide
to the Premises in accordance with the terms of this lease. The amounts to be
charged to Tenant by Landlord per kilowatt (herein called "KW") and kilowatt
hour (herein called "KWHR") pursuant to this Article 14 for electricity consumed
within the Premises (and by any equipment installed by Tenant outside of the
Premises) shown on Tenant's Meters shall be one hundred (100%) percent of the
average amount (herein called "LANDLORD'S RATE") at which Landlord from time to
time purchases each KW and KWHR of electricity for the same period from the
utility company, including all surcharges, taxes, fuel adjustments and sales
taxes and charges regularly passed on to customers by the public utility and
other sums payable in respect thereof to the public utility for the supply of
electric energy to Landlord for the entire Building (which would include the
utility time of day rate or similar provisions affecting the utility service
classification applicable to the Building) as more specifically set forth below.
Tenant and its authorized representative may have access to Tenant's Meters from
time to time during the term of this lease (but not more frequently than once
per month) on at least one (1) day's request (which need not be in writing) for
the purpose of verifying Landlord's meter readings. To the extent that Landlord
provides an engineer or other Building representative to accompany Tenant's
employees, contractors and/or authorized representatives for the duration of
Tenant's access to Tenant's Meters,
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Landlord shall provide such engineer or Building representative without
additional charge to Tenant, provided that it does not require more than a
reasonable amount of time (failing which Landlord shall be entitled to assess a
reasonable additional charge) and further provided that the foregoing shall not
be deemed to prohibit Landlord from including the salary of such engineer or
Building representative in Operating Expenses subject to and in accordance with
the provisions of Article 3 hereof. The amount paid by Landlord per KW and KWHR
shall be determined by dividing Landlord's total bill from the utility company
for each period by the total KWs and KWHRs, respectively, consumed by the
Building as shown by said bill (herein called the "QUOTIENT"), and the charge to
Tenant pursuant to this Article 14 for electricity consumed within the Premises
(and by any equipment installed by Tenant outside of the Premises) in the event
of submetering shall be calculated by multiplying the electricity consumed by
Tenant within such period by the Quotient (and multiplying the resultant product
by one hundred (100%) percent). Upon Tenant's request, Landlord shall provide
Tenant with copies of Landlord's bills from the utility company for purposes of
allowing Tenant to confirm Landlord's Rate and Landlord's calculations of the
charges payable by Tenant under this Article 14. In addition to the foregoing,
Tenant shall reimburse Landlord for (a) Landlord's reasonable actual
out-of-pocket costs to read such meters and to calculate the amounts to be
billed to Tenant hereunder, provided that the costs are commercially reasonable,
and (b) the actual out-of-pocket cost of keeping the meter(s) and related
equipment exclusively serving the Premises in good working order and repair
(which may include calibration of the meters), provided that the costs of any
contractors retained by Landlord to perform such repair, maintenance and
calibration is reasonable. If there is more than one (1) Tenant's Meter serving
the Premises, such Tenant's Meters shall be read "in conjunction" as if there
was only one such meter; it being the intent of Landlord and Tenant that
Landlord is to make no profit or markup (but incur no loss) on the furnishing of
electricity to the Premises. Tenant shall pay Landlord the foregoing amounts
within thirty (30) days after Landlord bills Tenant therefor, which bills shall
be rendered on a monthly basis.
14.02. (a) If, at any time during the term of this lease, Landlord
is prohibited by Legal Requirements or the requirements of the New York State
Public Service Commission from supplying and charging for electricity on a
submetered basis strictly in accordance with the provisions of Section 14.01
hereof, including by reason of the imposition of any tax, tariff or other cost
on Landlord which under applicable Legal Requirements Landlord is not permitted
to pass through in full on the basis contemplated by Section 14.01 hereof, then,
at Landlord's option (subject to the provisions of the last sentence of Section
14.05 hereof) Landlord shall supply electricity to the Premises (i) on a direct
supply basis pursuant to Section 14.02(e) hereof unless prohibited by Legal
Requirements or the requirements of the New York State Public Service Commission
from doing so, or (ii) on a rent inclusion basis pursuant to Section 14.02(b)
hereof.
(b) (i) During any period in which electricity is to be
supplied to the Premises on a rent inclusion basis, Landlord shall furnish
electricity to the
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Premises (or such portion of Tenant's electric consumption, as the case may be)
on the basis that Tenant's consumption (KW and KWHR) of electricity shall be
measured by electric survey made from time to time by Landlord's consultant.
Pending an initial survey made by Landlord's consultant, effective as of the
date when Landlord has commenced furnishing electricity to Tenant pursuant to
this Section 14.02(b) (with suitable proration for any period of less than a
full calendar month), the Fixed Rent (with respect to the portion of the
Premises so affected) shall be increased by an amount (the "INITIAL CHARGE")
equal to the average of the prior twelve (12) months' charges for submetered
electric. After completion of the electrical survey made by Landlord's
consultant of Tenant's consumption (KW and KWHR) of electricity, said consultant
shall apply one hundred (100%) percent of Landlord's Rate to arrive at an amount
(herein called the "ACTUAL CHARGE") and the Fixed Rent shall be appropriately
adjusted (increased or decreased) retroactively to reflect any amount by which
the Actual Charge exceeds the Initial Charge or the Initial Charge exceeds the
Actual Charge, as the case may be. If the Actual Charge exceeds the Initial
Charge, Tenant shall pay that portion of such amount which would have been paid
to the date of the determination of the Actual Charge within thirty (30) days
after being billed therefor; if the Initial Charge exceeds the Actual Charge,
Tenant shall be entitled to a credit against installments of the Actual Charge
thereafter coming due in an amount equal to the overpayments made by Tenant up
to the date of the determination of the Actual Charge. Thereafter and from time
to time during the term of this lease, Landlord may cause additional surveys of
Tenant's electrical usage to be made by Landlord's consultant, the commercially
reasonable cost of which (A) shall be shared by Tenant and Landlord equally in
the case of the first survey done in each twelve (12) month period and (B) shall
be borne solely by Landlord for each survey thereafter, and any increase or
decrease in the Actual Charge resulting from such subsequent survey shall be
effective as of the date such survey is conducted. Tenant from time to time (but
not more frequently than twice during each twelve (12) month period occurring
during the term of this lease) may require Landlord to have a survey made of
Tenant's electrical usage (which survey Landlord shall use reasonable efforts to
have performed within thirty (30) days after its receipt of notice from Tenant
requiring such survey to be performed), and the commercially reasonable fees of
Landlord's consultant making such survey(s) at Tenant's request shall be paid by
Tenant. If any survey requested by Tenant shall determine that there has been an
increase or decrease in Tenant's usage of electricity, then effective as of the
date such survey is conducted, the then current Actual Charge to Tenant by
reason of the furnishing of electricity to Tenant shall be increased or
decreased in accordance with such survey determination.
(ii) If from time to time after the initial survey or
a subsequent survey any additional electrically operated equipment is
installed in the Premises by Tenant, or if Tenant shall increase its hours
of operation, or if the charges by the utility company supplying electric
current to Landlord are increased or decreased after the date thereof, then
and in any of such events the monthly charge shall be increased or
decreased accordingly on account of such
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additional electricity consumed by such newly installed electrically
operated equipment and/or increase in Tenant's hours of operation and/or on
account of such increased or decreased Landlord's Rate. The amount of such
increase or decrease in the monthly charge shall be determined in the first
instance by Landlord's consultant. In addition, the monthly rate will be
increased or decreased quarterly in accordance with calculations by
Landlord's consultant to reflect changes in the fuel adjustment component
of the utility company charge. Tenant shall pay the amount of any increase
in the monthly charge retroactively (subject to Tenant's right to contest
in the same manner as provided in Section 14.02(d) hereof) from the date of
the installation of all newly installed electrically operated equipment
and/or from the date when the increased charges to Landlord from the
utility company become effective and/or from the date of any increase in
Tenant's hours of operation, as the case may be, such amount to be paid
promptly upon billing therefor by Landlord. In the event that Tenant either
(A) decreases its hours of operation or (B) removes or changes existing
equipment in the Premises, Tenant may request a survey of its electrical
usage in accordance with the provisions of Section 14.02(b)(i) hereof.
(c) All survey determinations (including the first survey
made by Landlord's consultant) shall be subject to contest by Tenant as provided
in Section 14.02(d) hereof. Surveys made of Tenant's electrical consumption
shall be based upon the use of electricity between the hours of 8:00 a.m. to
6:00 p.m., Mondays through Fridays, and such other days and hours when Tenant
(or Tenant's agents, employees and/or contractors) uses electricity for lighting
and for the operation of the machinery, appliances and equipment used by Tenant
in the Premises.
(d) If electricity shall be furnished to Tenant as
contemplated in Section 14.02(b)(i), then Tenant, within sixty (60) days after
notification from Landlord of the determination of Landlord's utility
consultant, shall have the right to contest such determination by submitting to
Landlord a like survey determination prepared by a utility consultant of
Tenant's selection, which will highlight the differences between Landlord's
survey and Tenant's survey. If Landlord's consultant and Tenant's consultant
shall be unable to reach agreement within thirty (30) days, then such two
consultants shall designate a third consultant to make the determination, and
the determination of such third consultant shall be binding and conclusive on
both Landlord and Tenant. If the determination of such third consultant shall
substantially confirm the findings of Landlord's consultant (I.E., within five
(5%) percent), then Tenant shall pay the cost of such third consultant. If such
third consultant shall substantially confirm the determination of Tenant's
consultant (I.E., within five (5%) percent), then Landlord shall pay the cost of
such third consultant. If such third consultant shall make a determination
substantially different from that of both Landlord's and Tenant's consultants
(or is within five (5%) percent of both such determinations), then the cost of
such third consultant shall be borne equally by Landlord and Tenant. In all
events described in this Section 14.02(d), Tenant shall be responsible for the
costs of its consultant and shall reimburse
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Landlord for fifty (50%) percent of the commercially reasonable costs of the
first survey made by Landlord's consultant in each twelve (12) month period
occurring during the term of this lease (in accordance with the provisions of
Section 14.02(b)(i)) within thirty (30) days after presentation by Landlord of
an invoice evidencing such costs. If Landlord's consultant and Tenant's
consultant shall be unable to agree upon the designation of a third consultant
within thirty (30) days after Tenant's consultant shall have made its
determination (different from that of Landlord's consultant), then either party
shall have the right to request The Real Estate Board of New York, Inc. (or,
upon their failure or refusal to act, the AAA) to designate a third consultant
whose decision shall be conclusive and binding upon the parties, and the costs
of such third consultant shall be borne as hereinbefore provided in the case of
a third consultant designated by the Landlord's and Tenant's consultants.
Pending the resolution of any contest pursuant to the terms hereof, Tenant shall
pay the Additional Charge on account of electricity determined by Landlord's
consultant, and upon the resolution of such contest, appropriate adjustment (and
credit in favor of Tenant, if applicable) in accordance with such resolution of
such Additional Charge payable by Tenant on account of electricity shall be made
retroactive to the date of the determination of Landlord's consultant.
(e) During any period in which electricity is to be supplied
to the Premises on a direct supply basis, Tenant shall, subject to the last
sentence of Section 14.05 hereof, obtain and pay for electricity directly from
the public utility company furnishing electricity to the Unit. Notwithstanding
anything contained in this Article 14 to the contrary, if use of the Building's
or the Unit's wires, risers, conduits, feeders and switchboards would be
required for the Premises to receive electricity directly from the public
utility company, then Tenant shall have the right to such use at no charge;
PROVIDED, HOWEVER, that all meters and all additional panel boards, feeders,
risers, wiring and other conductors or equipment, if any, that may be required
to obtain such electricity shall be installed by Landlord at Tenant's reasonable
and actual out-of-pocket expense.
14.03. Notwithstanding anything to the contrary contained in this
lease, Tenant shall have the right to apply to an electrical utility company
selected by Tenant (which selection shall be subject to Landlord's and the Board
of Managers' consent, not to be unreasonably withheld or delayed, if such
utility company is not already servicing one or more tenants of the Building)
for direct electric service. Landlord shall cooperate with Tenant in connection
with Tenant's obtaining direct electric service, and shall reasonably promptly
execute and deliver any applications, reports or related documents as may be
requested by Tenant in connection therewith, provided that Tenant shall
reimburse Landlord (as Additional Charges) for the reasonable out-of-pocket
costs and expenses incurred by Landlord in connection with such cooperation
within thirty (30) days after demand therefor, accompanied by reasonably
satisfactory documentation of such costs and expenses, and further provided that
Tenant shall indemnify and hold harmless Landlord from and against any claims
arising in connection with such cooperation. From and after the date on which
such direct electricity is provided to
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Tenant, Landlord shall be relieved of any further obligation to furnish
electricity to Tenant pursuant to this Article 14, except Landlord shall permit
its wires, conduits and electrical equipment to be used for such purpose to the
extent that the electricity supplied to Tenant on a direct basis does not exceed
five (5) watts demand load per rentable square foot or such greater amount of
electricity being supplied to the Premises as of the date of this lease or any
date on which additional space is added to the Premises, exclusive of the
electricity consumed by base building services (including, without limitation,
base building HVAC) provided to the Premises. Any additional riser or risers or
feeders or service, to the extent available and reasonably feasible, to supply
Tenant's electrical requirements will be installed by Landlord (or the Board of
Managers', if applicable), at the sole cost and expense of Tenant (which shall
constitute Landlord's (or the Board of Managers', if applicable) actual,
reasonable out-of-pocket costs incurred in connection therewith), if in
Landlord's (or the Board of Managers', if applicable) reasonable judgment the
same are necessary and will not cause permanent damage or injury to the Building
or the Premises or cause or create a dangerous or hazardous condition or
unreasonably interfere with or disturb other tenants or occupants. In addition
to the installation of such riser or risers, Landlord (or the Board of Managers,
if applicable) will also, at the sole cost and expense of Tenant (which shall
constitute Landlord's (or the Board of Managers', if applicable) actual,
reasonable out-of-pocket costs incurred in connection therewith), install all
other equipment proper and necessary in connection therewith, subject to the
aforesaid terms and conditions, and subject to Landlord's (or the Board of
Managers', if applicable) prior approval of Tenant's plans therefor which shall
not be unreasonably withheld or delayed.
14.04. Landlord shall make available to the Premises electrical energy
with an average capacity of not less than five (5) watts per rentable square
foot demand load, exclusive of the electricity consumed by base building
services (including, without limitation, base building HVAC) provided to the
Premises (herein called the "BASIC CAPACITY"). Tenant covenants and agrees that
at all times its installations and use of electricity shall not exceed an
average of five (5) watts per rentable square foot demand load. If Tenant
requests additional power in addition to such five (5) watts per rentable square
foot demand load, then if and to the extent allocated power is available in the
Building for use by Tenant, taking into account other present and reasonably
anticipated future requirements therefor, Landlord shall, at Tenant's cost and
expense (provided that such costs and expenses are reasonable, actual and
out-of-pocket), provide and install in conformity with law any additional riser
or risers and/or any and all switch or switches to connect additional power to
the Premises, and Tenant agrees to pay Landlord's actual, reasonable
out-of-pocket cost of installing such additional risers, switches and related
equipment. If such additional power is not available, then upon Tenant's
request, Landlord, at Tenant's sole cost and expense (provided that such costs
and expenses are reasonable, actual and out-of-pocket), shall take such steps as
may be reasonably available to obtain additional power from the utility company.
To the extent that any floor of the Premises is serviced by an amount of
electricity which exceeds the amount required by the New York City Building Code
(herein called the "CODE"), Tenant shall
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have the right to redistribute such excess capacity to other floors of the
Premises. Notwithstanding anything to the contrary contained in this lease,
there shall be no reduction in amount of electricity supplied to Premises as of
the date of this lease or any date additional space is added to the Premises.
14.05. If Landlord shall at any time during the term of this lease
elect to solicit bids from alternate energy providers for the supply of electric
energy to the Unit and/or the Building, Landlord shall notify Tenant of such
election and Landlord shall also solicit bids from any reliable provider(s)
suggested by Tenant; PROVIDED, HOWEVER, that Landlord shall have no obligation
to award the contract to Tenant's suggested provider. If Landlord (or any other
Unit Owner) shall grant any other office tenant of the Unit and/or the Building
the right to obtain electricity on a direct supply basis from the public utility
supplying electricity to the Building or from an alternate energy provider of
that tenant's choosing, Landlord shall thereafter permit Tenant to obtain
electricity on a direct supply basis from any provider reasonably selected by
Tenant and approved by Landlord in its reasonable discretion.
14.06. Any rebates paid to or discounts received by Landlord from Con
Edison (or any other utility or governmental entity providing such rebates or
discounts) as the result of energy-saving fixtures and equipment installed in
the Premises by Tenant shall be paid to Tenant by Landlord promptly after
receipt by Landlord thereof. Landlord shall cooperate with Tenant in connection
with applying to Con Edison (or any other utility or governmental entity
providing such rebates or discounts) for such rebates or discounts, but Landlord
shall incur no cost or expense in connection with such cooperation unless Tenant
agrees to reimburse Landlord for such monies.
ARTICLE 15
LANDLORD'S SERVICES
15.01. Landlord shall at all times during the term of this lease
operate the Building in a manner that is consistent with the standards befitting
a first-class office building in Midtown Manhattan, which shall include, without
limitation, the provision of the services and utilities hereinafter set forth in
this Article 15, without additional charge to Tenant, except as may be expressly
set forth below (provided however that the foregoing shall not be deemed to
prohibit Landlord from including the costs of any such services or utilities in
Operating Expenses subject to and in accordance with the provisions of Article 3
hereof). Tenant hereby acknowledges that, as of the date of this lease, the
Building is operated in a manner that is consistent with the standards befitting
a first-class office building in Midtown Manhattan prevailing as of the date of
this lease; PROVIDED, HOWEVER that the foregoing shall not be deemed to relieve
Landlord from its obligation to operate the Building in a manner consistent with
the standards befitting a first-class office building in Midtown Manhattan, as
such standards may change from time to time during the term of this lease.
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(a) Landlord will provide from and after the Commencement
Date with respect to each floor of the Premises the following services to the
Premises in the manner hereinafter more particularly set forth: (i) heat,
ventilation and air conditioning; (ii) elevator service (except that passenger
elevator service will not be provided to floors which are under construction or
which are not occupied); (iii) domestic hot and cold water; and (iv) cleaning
(except that cleaning will not be provided to floors which are under
construction or which are not occupied).
(b) As used herein, the terms "REGULAR BUILDING SERVICE
HOURS" shall mean the hours between 8:00 a.m. and 6:00 p.m. on Mondays through
Fridays and the hours between 8:00 a.m. and 1:00 p.m. on Saturdays, and "REGULAR
BUILDING SERVICE DAYS" shall mean all days on which the New York Stock Exchange
is open for business and Saturdays.
15.02. (a) Intentionally Omitted.
(b) If Landlord shall make steam available for Tenant's use
within the Premises for any additional heating or permitted kitchen use, the
cost of such steam as well as the cost of piping and other equipment or
facilities required to supply steam to and distribute steam within the Premises
shall be paid by Tenant. Landlord may install and maintain at Tenant's expense,
meters to measure Tenant's consumption of steam and Tenant shall reimburse
Landlord, within thirty (30) days after demand, for the quantities of steam
shown on such meters at Landlord's reasonable charges, which charges to Tenant
under this Section 15.02(b) are in no instance intended to include any profit or
premium payable to Landlord for providing such service.
(c) (i) Landlord shall provide, and Tenant shall have
the use of, sufficient passenger elevator service to each floor of the Premises
at all times in accordance with the standards set forth in EXHIBIT P annexed
hereto. Annexed hereto as EXHIBIT P is a description of the Building passenger
elevator system that services the Premises as of the date of this lease.
Landlord will notify Tenant before modifying the Building passenger elevator
system that services the Premises, but Landlord may implement any modifications
to such system in its sole judgment provided that the modifications shall not
reduce the level of elevator service furnished to the Premises as contemplated
in EXHIBIT P and provided further that such modifications shall be befitting a
Comparable Building (I.E., the Building passenger elevator system that services
the Premises shall at all times be operated in accordance with acceptable
industry standards befitting a Comparable Building).
(ii) At any time or times all or any of the elevators
in the Building may, at the option of Landlord, be manual and/or automatic
elevators, and Landlord shall be under no obligation to furnish an elevator
operator for any automatic elevator. If Landlord shall at any time or times
furnish any elevator operator for any automatic elevator, Landlord may
discontinue
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furnishing such elevator operator without any diminution, reduction or
abatement of rent.
(iii) In addition to the foregoing passenger
elevators, Tenant shall have exclusive use of two (2) existing "customer"
elevators located in the elevator bank on the 53rd Street side of the Park
Avenue lobby of the Building, as more particularly shown on EXHIBIT Q
annexed hereto (herein collectively called the "PRIVATE ELEVATOR"), and
Landlord shall (A) reprogram the Private Elevator (at Tenant's cost and
expense, which shall be Landlord's actual out-of-pocket cost) so that it
will not service any floors located outside the Premises except for the
Building lobby (and Tenant will make appropriate security arrangements with
respect to having the Private Elevator service the Building lobby, which
may include a protocol for security arrangements to be used for occasional
service to the Building lobby, subject to Landlord's prior written approval
thereof, not be unreasonably withheld, conditioned or delayed), and (B)
reprogram the other elevators located within such elevator bank so that
they will not service any floors located in the Premises. Tenant shall
comply with any reasonable security requirements established by Landlord or
the Board of Managers in connection with Tenant's use of the Private
Elevator. The provisions of Section 18.02 hereof shall apply with full
force and effect to the Private Elevator as if the Private Elevator were a
part of the Premises. Landlord makes no warranty or representation
whatsoever with respect to the Private Elevator, including, without
limitation, as to its condition or fitness for Tenant's intended purpose.
(iv) Landlord shall provide freight elevator service
to the Premises on a first come-first served basis (I.E., no advance
scheduling) during Regular Building Service Hours of Regular Building
Service Days. Freight elevator and loading dock service shall also be
provided to the Premises on a reserved basis at all other times, at a cost,
which shall be Additional Charges hereunder, of $46.00 per hour for the
freight elevator and $30.00 per hour for security, if requested by Tenant
except with respect to loading docks of the Building where security at all
times is required hereunder and with respect to such other instances where
security is deemed reasonably required by Landlord (which hourly rates
shall be subject to annual increases commencing January 1, 2004 by the same
percentage increase, if any, which occurs in the Consumer Price Index from
September of the preceding year to the month of September during the year
in which such increase is being made). Notwithstanding anything to the
contrary contained herein, Tenant may request, in accordance with the
applicable provisions of this Article 15, freight elevator service and
security in half-hour increments. If and to the extent a Legal Requirement
is promulgated after the date of this lease which restricts the hours or
permissible location of freight delivery in the City of New York, then, in
such event, Landlord shall reasonably modify the hours of operation of the
Building freight elevator service as a result
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of any such Legal Requirement to reflect the then normal business practice
in the real estate industry in the City of New York with respect to
Comparable Buildings.
Notwithstanding anything to the contrary contained in this lease,
Tenant shall have the use, after reasonable prior notice to Landlord, of the
freight elevators, loading docks, required security, lifts, necessary Building
access corridors and other necessary Building service areas as reasonably
required by Tenant, at the costs set forth in Section 15.02(c)(iv) hereof, for
the delivery of construction materials during the course of the completion of
Tenant's Alterations with respect to the 4th floor of the Premises and the
Mezzanine Premises and after the completion of such Alterations for the movement
of FF&E. Such elevators shall be available for Tenant's use on a priority (but
not exclusive) basis taking into account the reasonable needs of Landlord and
other tenants and occupants of the Building on a day-to-day basis. Tenant or
Tenant's contractor shall coordinate Tenant's use of such elevators with
Landlord and any other tenant or occupant or other tenant's or occupant's
contractors then using, or intending to use, such elevators. At Tenant's
election, Tenant shall have the right, at its sole cost and expense, to provide
a security guard for such elevators and loading docks in connection with
Tenant's use thereof, provided that the use of such security guard shall not
violate Landlord's or the Board of Managers' union contracts affecting the Unit
or the Building, or create any work stoppage, picketing, labor disruption or
dispute or disharmony or any interference with the business of Landlord, the
Board of Managers or any tenant or occupant of the Building. Tenant shall
immediately discontinue the use of such security guard if Landlord or the Board
of Managers notifies Tenant in writing that continuing such work or activity
would violate Landlord's or the Board of Managers' union contracts affecting the
Unit or the Building, or has caused any work stoppage, picketing, labor
disruption or dispute or disharmony or any interference (beyond a DE MINIMIS
extent) with the business of Landlord, the Board of Managers or any tenant or
occupant of the Building.
(v) Except as set forth to the contrary above, the
use of all elevators shall be on a non-exclusive basis and shall be subject
to the Building Rules and Regulations.
(d) Landlord shall provide hot and cold water for ordinary
lavatory, drinking, cleaning, pantry, cafeteria and dining facility purposes
only (except as otherwise set forth in Section 15.03 hereof) at no additional
charge to Tenant, except as hereinafter provided. Landlord shall supply water to
any dining facilities (including any cafeteria) located in the Premises and any
other portion of the Premises that Tenant is using, or plans to use, for an
ancillary use if such ancillary use will result, in Landlord's reasonable
judgment, in the consumption of water in amounts greater (other than to a DE
MINIMIS extent) than general office use would (any such space, including the
dining facility, herein called the "WATER METERED SPACE") on a metered basis
using meters heretofore installed in the Premises or installed by Landlord at
Tenant's sole cost and
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expense (herein called the "WATER METERS"), which Water Meters shall measure the
water consumed by Tenant in such Water Metered Space. The amounts to be charged
to Tenant by Landlord per gallon of water consumed within the Water Metered
Space as shown on the Water Meters shall be one hundred (100%) percent of the
average amount (herein called the "LANDLORD'S WATER RATE") at which Landlord
from time to time purchases each gallon of water for the same period from the
utility company, including all surcharges, taxes and sales taxes and charges
regularly passed on to customers by the public utility and other sums payable in
respect thereof to the public utility for the supply of water to Landlord for
the entire Building as more specifically set forth below. Tenant and its
authorized representative may have access to the Water Meters from time to time
during the term of this lease (but not more frequently than once per month) on
at least one (1) day's request (which need not be in writing) for the purpose of
verifying Landlord's meter readings. To the extent that Landlord provides an
engineer or other Building representative to accompany Tenant's employees,
contractors and/or authorized representatives for the duration of Tenant's
access to the Water Meters, Landlord shall provide such engineer or Building
representative without additional charge to Tenant, provided that it does not
require more than a reasonable amount of time (failing which Landlord shall be
entitled to assess a reasonable additional charge) and further provided that the
foregoing shall not be deemed to prohibit Landlord from including the salary of
such engineer or Building representative in Operating Expenses subject to and in
accordance with the provisions of Article 3 hereof). The amount paid by Landlord
per gallon of water shall be determined by dividing Landlord's total bill from
the utility company for each period by the total number of gallons consumed by
the Building as shown by said bill (herein called the "WATER QUOTIENT"), and the
charge to Tenant pursuant to this Section 15.02(d) for water consumed within
such Water Metered Space shall be calculated by multiplying the water consumed
by Tenant within such period by the Water Quotient. Upon Tenant's request,
Landlord shall provide Tenant with copies of Landlord's bills from the utility
company for purposes of allowing Tenant to confirm Landlord's Water Rate and
Landlord's calculations of the charges payable by Tenant under this Section
15.02(d). In addition to the foregoing, Tenant shall reimburse Landlord for (i)
Landlord's reasonable actual out-of-pocket costs to read the Water Meters and to
calculate the amounts to be billed to Tenant hereunder, provided that the costs
are commercially reasonable, and (ii) the actual out-of-pocket cost of keeping
the Water Meters and related equipment serving Tenant's Water Metered Space in
good working order and repair (which may include calibration of the Water
Meters), provided that the costs of any contractors retained by Landlord to
perform such repair, maintenance and calibration are commercially reasonable and
provided further that to the extent that any such Water Meters and related
equipment serving the Water Metered Space shall also serve portions of the
Building other than the Premises, the costs of such repair, maintenance and
calibration shall be appropriately prorated. Tenant shall pay Landlord the
foregoing amounts within thirty (30) days after Landlord bills Tenant therefor
as Additional Charges, which bills shall be rendered on a monthly basis.
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(e) (i) Landlord shall, at no charge to Tenant, remove
Tenant's ordinary office refuse and rubbish, clean the interior and exterior
windows of the Premises (subject to the provisions of the third sentence of this
Section 15.02(e)(i)) not less frequently than once every year, and provide
office cleaning services in accordance with the cleaning specifications annexed
hereto as EXHIBIT F (herein called the "CLEANING SPECIFICATIONS") on Mondays
through Fridays (exclusive of days recognized as holidays under the applicable
union contracts with respect to cleaning services). The cleaning services
described on the Cleaning Specifications, exclusive of exterior window cleaning
are sometimes hereinafter described as "STANDARD TENANT CLEANING". Tenant shall
pay to Landlord within thirty (30) days after demand the actual out-of-pocket
costs incurred by Landlord (without profit or markup) for cleaning work or
rubbish removal in the Premises above the level described in the Cleaning
Specifications. Notwithstanding anything contained in EXHIBIT F or in this
Section 15.02(e) to the contrary, any cleaning work in the Premises required
because of (A) the removal from the Premises of any refuse and rubbish of Tenant
in excess of that ordinarily accumulated in business office occupancy, including
refuse accumulated in dining facilities, or (B) cleaning of any portions of the
Premises used for dining facilities, pantries, day care facilities, fitness
centers, medical or health facilities or other special purposes if and to the
extent that such cleaning includes greater or more difficult cleaning work
(including removal of refuse and rubbish) than office areas shall, at Tenant's
option, (1) be performed by Landlord, provided that Landlord's cleaning
contractor is willing to provide the same, and provided further that Tenant
shall pay to Landlord, as Additional Charges under this lease, the costs
incurred by Landlord for such cleaning or (2) constitute Extra Cleaning under
Section 15.02(e)(iii) hereof. Landlord shall not be required to provide
janitorial services for portions of the Premises used exclusively for a
confidential document room as designated by Tenant from time to time. Landlord
shall instruct its cleaning contractor to require the employees of such cleaning
contractor to keep the entry doors to the Premises locked when they are
performing cleaning services and to turn off the lights in the Premises when
they have completed performing cleaning services, in each case provided that
Tenant is not then conducting business from the Premises after Regular Building
Service Hours. Landlord shall endeavor to provide Standard Tenant Cleaning
through a company that shall perform same at the most favorable price reasonably
obtainable (taking into account the structure of the company and all other
relevant facts and circumstances) without having an adverse effect on service or
labor harmony provided that Landlord's judgment as to the most appropriate
cleaning contractor shall control subject to the provisions of this Section
15.02(e).
(ii) (A) Notwithstanding anything to the contrary
contained in this Section 15.02(e), if, at any time, Tenant believes that
the cleaning services being rendered by Landlord or Landlord's cleaning
contractor (herein called the "CONTRACTOR") do not meet the specifications
set forth on EXHIBIT F annexed hereto on a reasonably material and
consistent basis, Tenant shall give notice to Landlord (herein called the
"CLEANING NOTICE"), which notice shall specify in detail the deficiencies
claimed by Tenant (herein called the
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"CLEANING DEFICIENCIES"). Within ten (10) Business Days following its
receipt of the Cleaning Notice, Landlord shall schedule a meeting (herein
called the "CLEANING IMPROVEMENT MEETING") among Landlord, Tenant and the
Contractor to discuss and to develop a program to cure the Cleaning
Deficiencies. Within forty-five (45) days following the Cleaning
Improvement Meeting, Landlord, Tenant and the Contractor shall again meet
(herein called the "FOLLOW-UP MEETING") to determine whether the Cleaning
Deficiencies have been cured. Any disputes between Landlord and Tenant as
to (1) the existence of Cleaning Deficiencies or (2) whether such Cleaning
Deficiencies have been cured, shall be resolved by binding arbitration
pursuant to the provisions of Article 39 hereof, but in accordance with the
then-current rules for expedited arbitration of the American Arbitration
Association.
7
(B) In the event that either: (1) the
Contractor fails to cure the Cleaning Deficiencies prior to the Follow-Up
Meeting or (2) the same Contractor is found to have committed Cleaning
Deficiencies for a third time in any eighteen (18) month period after
having been given an opportunity to cure Cleaning Deficiencies on two (2)
prior occasions during such eighteen (18) month period, then Landlord shall
commence action to replace such contractor in accordance with the following
provisions of this Section 15.02(e)(ii). Landlord and Tenant shall meet to
discuss Tenant's recommendations as to any cleaning contractors then
performing cleaning services in comparable first-class office buildings in
the Borough of Manhattan that should be included on Landlord's bid list;
PROVIDED, HOWEVER, that such recommendations shall not be binding on
Landlord. Landlord shall reasonably promptly thereafter put the cleaning
contract for the Building out to bid to cleaning contractors chosen by
Landlord and shall thereafter replace the Contractor with the cleaning
contractor that submits the bid accepted by Landlord.
(C) If, notwithstanding the foregoing,
Landlord nonetheless wishes to retain the Contractor, Landlord shall give
notice thereof to Tenant and Tenant shall have the right to select its own
cleaning contractor to perform the cleaning in the Premises set forth on
EXHIBIT F annexed hereto, in which event (1) the Fixed Rent shall be
reduced by an amount per rentable square foot equal to the amount included
in the Base Operating Amount for providing cleaning to tenant premises and
(2) the cost of providing cleaning to tenant premises (including the
Premises and the portions of the Unit occupied by Landlord or its
Affiliates) shall be removed from the Base Operating Amount and excluded
from Operating Expenses from and after the date on which Tenant retains its
own cleaning contractor.
(iii) Tenant shall have the right to arrange directly
with Landlord's cleaning contractor to pay for any or all of the costs of
extra cleaning and rubbish removal referred to in this Section 15.02. In
addition, subject to the
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terms and conditions of this Section 15.02(e)(iii) hereof, Tenant shall
have the right to furnish to the Premises any cleaning services other than
those provided by Landlord under Section 15.02(e)(i) hereof (without
separate or additional charge to Tenant) (herein called "EXTRA CLEANING").
If Tenant elects to provide Extra Cleaning to the Premises, all
cleaning contractors hired by Tenant (herein called "TENANT'S CLEANING
CONTRACTORS") shall be subject to Landlord's approval, which approval Landlord
shall not unreasonably withhold or delay. As of the date of this lease, Landlord
approves 1180 Inc. as Tenant's Cleaning Contractor. In soliciting bids from
contractors for the performance of the Extra Cleaning, Tenant shall also solicit
bids from Landlord's cleaning contractor; PROVIDED, HOWEVER, that Tenant shall
have no obligation to award the contract to Landlord's contractor, regardless of
whether Landlord's contractor submits a bid that is higher or lower than the
other bid(s) submitted to Tenant. Landlord and Tenant shall cooperate with each
other to ensure that the cleaning performed by their respective contractors
shall be done in such a manner that will prevent (A) any work stoppage,
picketing, labor disruption or dispute or disharmony or (B) an unnecessary
increase in Landlord's Cleaning Cost. The personnel of Tenant's Cleaning
Contractors shall be permitted subject to the Building Rules and Regulations,
without charge, to use the passenger elevators, to use but not operate the
freight elevators and to use the janitorial closets on the floors on which the
Premises are located as reasonably required for purposes of providing cleaning
and rubbish removal services to the Premises.
Notwithstanding anything to the contrary contained in this lease, with
respect to up to four (4) floors of the Premises designated from time to time by
Tenant as its executive floors (herein called the "EXECUTIVE FLOORS"), Landlord
(1) shall not, without Tenant's prior consent, terminate or transfer to a floor
of the Building other than an Executive Floor any employee providing cleaning
services to the Executive Floors (other than due to the wilful misconduct or
other bad acts of such employee) and (2) shall, at the direction of Tenant,
transfer to another floor of the Building other than an Executive Floor any
employee providing cleaning services to the Executive Floors. If and to the
extent that Landlord's compliance with the provisions of this paragraph shall
impose additional costs on Landlord which are not recoverable from other tenants
of the Building through Operating Expense escalations, Tenant, upon presentation
of reasonable backup documentation, shall promptly reimburse Landlord for such
additional costs. As of the date of this lease, the Executive Floors shall mean
floors two (2), three (3), four (4) and ten (10) of the Building.
15.03. (a) Landlord shall furnish heat, ventilation and air
conditioning (herein called "HVAC") to the floors on which the Premises are
located in accordance with the specifications and subject to the design criteria
set forth in [Sections 5.2.1, 5.2.2 and 5.2.4 of the Building Standards] annexed
hereto as EXHIBIT E (i) during Regular Building Service Hours on Regular
Building Service Days without charge and (ii) at other times upon Tenant's
request, subject to the terms and at the rates and charges set
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forth in this Section 15.03 and EXHIBIT G annexed hereto, which rates and
charges shall be applied without pro-ration or offset if any other tenant or
tenants of the Building located in the same Building air conditioning zone
request overtime HVAC for any period for which Tenant requests the same. Tenant
acknowledges and agrees that Landlord shall have no liability or responsibility
for any deviation in temperature, humidity or related conditions if such
deviation arises from (A) Tenant's effectuation of the distribution throughout
the Premises of HVAC service from the point(s) on each floor of the Premises at
which the Building or Unit HVAC systems meet the HVAC distribution systems of
the Premises, (B) Tenant's interior partitioning, existing Tenant Alterations or
covering of convector units, or (C) any material deviation from the assumptions
set forth in [Section 5.2.1 of the Building Standards] upon which the design
specifications set forth in the Building Standards are based. Tenant hereby
acknowledges that it is satisfied with the capacities of the existing HVAC
system as of the date of this lease; PROVIDED, HOWEVER, that the foregoing shall
not be deemed to waive Landlord's obligation to provide HVAC service in
accordance with the provisions of this Section 15.03.
(b) (i) Landlord hereby acknowledges that, as of the
date of this lease, the Premises are served by supplemental air-conditioning
systems that include units using both chilled water and condenser water. Tenant
shall have the right during the term of this lease to install and maintain
additional supplemental air-conditioning units in the Premises (which
installation shall be performed in accordance with all applicable Legal
Requirements and any applicable provisions of Article 11 and EXHIBIT E hereof).
At Tenant's request, Landlord will make available chilled water and/or condenser
water (as required) for the operation of such supplemental air-conditioning
units in accordance with the following provisions of this Section 15.03(b).
Notwithstanding anything to the contrary contained in this lease, Tenant shall
not be required to pay any connection or tap-in fee in connection with its
access to such chilled water and/or condenser water.
(ii) Landlord will provide (at Tenant's sole cost and
expense as provided in the last sentence of this Section), at a valve
heretofore installed or installed by Landlord, at Tenant's sole cost and
expense, at the chilled water riser on each floor of the Premises, on a
twenty four (24) hour per day, three hundred sixty five (365) day per year
basis, chilled water in an aggregate amount of up to 900 tons ("TENANT'S
CHILLED WATER ALLOCATION"). If Tenant requests chilled water capacity in
addition to Tenant's Chilled Water Allocation, Landlord shall provide such
excess chilled water capacity to Tenant, at no additional charge (except as
provided in clause (D) below), PROVIDED THAT (A) this lease is in full
force and effect, (B) such additional chilled water capacity is, in
Landlord's judgment, available for use by Tenant at the time that Tenant
requests such additional chilled water capacity without resulting in
material alterations (unless Tenant agrees to pay for the same in which
event such material alteration shall not be denied) in or damage to
Building or Unit systems, (C) the aggregate amount of
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chilled water capacity made available to the Premises shall not exceed
Tenant's pro rata share of the chilled water capacity of the Building
available for supplemental air-conditioning units located in the Building
(as opposed to chilled water capacity of the Building available to serve
the base building air-conditioning system), such calculation to be made by
Landlord, it being agreed that Landlord may allocate shares of chilled
water capacity to vacant space in the Building and it being further
acknowledged and agreed that Tenant's Chilled Water Allocation represents
Tenant's pro rata share of the chilled water capacity of the Building
available for supplemental air-conditioning units located in the Building
as of the date of this lease, and (D) Tenant shall reimburse Landlord for
the actual out-of-pocket cost of any additional equipment required for the
supply of such additional chilled water capacity (PROVIDED THAT the costs
of any contractors retained by Landlord to perform such installation are
commercially reasonable). Tenant shall have the right, from time to time
and at Tenant's sole cost and expense, to reallocate Tenant's Chilled Water
Allocation among the floors of the Premises, and, in connection therewith,
to increase the size of the supply and return valves. Landlord shall
provide chilled water in accordance with the temperature specifications set
forth in EXHIBIT E annexed hereto and a minimum differential pressure of 20
psi will be maintained across the supplemental supply and return risers of
the Building. Tenant's consumption of chilled water shall be measured
monthly by one or more BTU meters to be installed by Landlord at Tenant's
sole commercially reasonable cost and expense. In respect of its
consumption of chilled water during each month of the term of this lease,
Tenant shall pay to Landlord an amount ("TENANT'S CHILLED WATER PAYMENT")
equal to the product of (1) the aggregate number of ton-hours of chilled
water consumed by Tenant during such month as measured by such BTU meters,
multiplied by (2) the Supplemental Chilled Water Charge per ton hour for
the applicable Operating Year.
Landlord and Tenant have agreed that the supplemental chilled water
charge per ton hour for the Operating Year 2002 will be $.14 per ton-hour
(herein called the "SUPPLEMENTAL CHILLED WATER CHARGE"). Commencing with January
1 of the Operating Year 2003 and on January 1 of each Operating Year thereafter,
the Supplemental Chilled Water Charge shall be increased or decreased in
accordance with EXHIBIT R annexed hereto. Landlord shall read the meters
measuring Tenant's use of chilled water and bill Tenant therefor monthly, and
each such bill shall be due and payable by Tenant within thirty (30) days of
receipt.
(iii) Landlord shall provide to Tenant throughout the
term of this lease, as and when requested by Tenant, on a twenty four (24)
hour per day, three hundred sixty five (365) day per year basis for
Tenant's supplemental air-conditioning units located in the Premises as of
the date of this lease, and any other supplemental air-conditioning units
hereafter installed by Tenant and requiring condenser water, condenser
water from the Building's
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condenser water tower in an aggregate amount of up to 700 tons ("TENANT'S
CONDENSER WATER ALLOCATION"). If Tenant requests condenser water capacity
in addition to Tenant's Condenser Water Allocation, Landlord shall provide
such excess condenser water capacity to Tenant, at no additional charge
(except as provided in clause (D) below), PROVIDED THAT (A) this lease is
in full force and effect, (B) such additional condenser water capacity is,
in Landlord's judgment, available for use by Tenant at the time that Tenant
requests such additional condenser water capacity without resulting in
material alterations (unless Tenant agrees to pay for the same in which
event such material alteration shall not be denied) in or damage to
Building or Unit systems, (C) the aggregate amount of condenser water
capacity made available to the Premises shall not exceed Tenant's pro rata
share of the condenser water capacity of the Building (as calculated by
Landlord, it being agreed that Landlord may allocate shares of condenser
water capacity to vacant space in the Building and it being further
acknowledged and agreed that Tenant's Condenser Water Allocation represents
Tenant's pro rata share of the condenser water capacity of the Building as
of the date of this lease) and (D) Tenant shall reimburse Landlord for the
actual out-of-pocket cost of any additional equipment required for the
supply of such additional condenser water capacity (provided that the costs
of any contractors retained by Landlord to perform such installation are
commercially reasonable). Tenant shall have the right, from time to time
and at Tenant's sole cost and expense, to reallocate Tenant's Condenser
Water Allocation among the floors of the Premises, and, in connection
therewith, to increase the size of the supply and return valves. In respect
of the supply of condenser water to the Premises during any Operating Year,
Tenant shall pay to Landlord an amount ("TENANT'S CONDENSER WATER PAYMENT")
equal to the product of (1) the aggregate number of tons of condenser water
required by Tenant's equipment that is connected to such condenser water
during such Operating Year multiplied by (2) the Supplemental Condenser
Water Charge per ton per year for such Operating Year.
Landlord and Tenant have agreed that the annual supplemental condenser
water charge per ton per year for the Operating Year 2002 will be $128 per
connected ton per year (herein called the "SUPPLEMENTAL CONDENSER WATER
CHARGE"). Commencing with January 1 of the Operating Year 2003 and on January 1
of each Operating Year thereafter, the Supplemental Condenser Water Charge shall
be increased or decreased in accordance with EXHIBIT S annexed hereto.
(iv) In the event that Tenant shall add Offering
Space and/or ROFO Space to the Premises in accordance with the provisions
of this lease, Landlord shall provide to Tenant, at a valve provided by
Landlord at Tenant's expense (which shall be Landlord's actual
out-of-pocket cost, and which expense shall not be charged to Tenant with
respect to any such valve outlet that may be in place as of the date of
this lease or as of the date the Offering Space and/or ROFO Space, as the
case may be, is available) at the applicable water riser
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on the floor or floors on which such Offering Space and/or ROFO Space, as
the case may be, is located, additional chilled water or additional
condenser water, as elected by Tenant, at the rate of one (1) ton per 834
rentable square feet of such Offering Space and/or ROFO Space, as the case
may be. The charge to Tenant for the additional chilled water shall be the
then Supplemental Chilled Water Charge and shall be included within the
Tenant's Chilled Water Payment and the charge to Tenant for the additional
condenser water shall be the then Supplemental Condenser Water Charge and
shall be included within Tenant's Condenser Water Payment.
15.04. Except as otherwise expressly provided in this lease, Landlord
shall not be required to provide any services to the Premises.
15.05. Subject to the provisions of Section 35.04(b) and Articles 19
and 20 hereof, Landlord reserves the right, without liability to Tenant and
without it being deemed a constructive eviction, to stop or interrupt any
heating, elevator, escalator, lighting, ventilating, air-conditioning, steam,
power, electricity, water, cleaning or other service and to stop or interrupt
the use of any Unit or Building facilities and systems at such times as may be
necessary and for as long as may reasonably be required by reason of accidents,
strikes, or the making of repairs, alterations or improvements, or inability to
secure a proper supply of fuel, gas, steam, water, electricity, labor or
supplies, or by reason of any other similar or dissimilar cause beyond the
reasonable control of Landlord. Subject to the provisions of Section 35.04(b)
and Articles 19 and 20 hereof, no such stoppage or interruption shall result in
any liability from Landlord to Tenant or entitle Tenant to any diminution or
abatement of rent or other compensation nor shall this lease or any of the
obligations of Tenant be affected or reduced by reason of any such stoppage or
interruption. Except in emergency circumstances, Landlord shall give Tenant at
least thirty (30) days' prior written notice of its intention to make any
repairs, alterations or improvements referred to in this Section 15.05 or any
other stoppages of services of which Landlord has prior notice and shall use
reasonable efforts in making such repairs, alterations or improvements and in
dealing with such other stoppages of service so as to minimize interference with
Tenant's business operations, provided that Landlord shall not be required to
perform any such work on an overtime or premium-pay basis. Notwithstanding any
provision of this Section 15.05 to the contrary, Landlord shall be required to
perform all repairs, alterations, or improvements as referred to in this Section
15.05 during non-Regular Building Service Hours (except in emergency
circumstances) if the nature of such repair, alteration, or improvement is such
as to customarily be performed by landlords in Comparable Buildings during
non-Regular Building Service Hours (E.G., an electrical shutdown for the repair
of a riser).
15.06. (a) Notwithstanding anything to the contrary contained in
this lease, Permitted Users may personally bring food or beverages into the
Building for consumption within the Premises solely by Permitted Users.
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(b) Notwithstanding anything to the contrary contained in
this lease, Tenant shall have the right, subject to the terms and conditions of
this Section 15.06(b) and the provisions of Section 11.06 hereof, to furnish
certain additional services to any portion of the Premises, including, without
limitation, extermination and plant maintenance and shall have the right to hire
a full-time handyman and/or locksmith to support Tenant's carpentry and general
maintenance needs with respect to the Premises (herein called "TENANT EXTRA
SERVICES").
All contractors (other than Tenant's employees and any personnel and
employees of Tenant's Premises Manager) performing Tenant Extra Services
("TENANT'S EXTRA SERVICE CONTRACTORS") shall be subject to Landlord's approval
(which shall not unreasonably be withheld or conditioned) and no such contractor
shall enter the Building or the Premises for that purpose prior to being so
approved. The provisions of Section 11.06 hereof shall apply to the performance
of the Tenant Extra Services by Tenant's Extra Service Contractors. The Tenant
Extra Services shall be performed in such manner as not to interfere with or
delay, except to an immaterial extent, and as not to impose any additional
expense upon Landlord in connection with the operation of the Building and if
such interference or delay shall occur, Tenant, upon written notice from
Landlord, shall promptly instruct Tenant's Extra Service Contractors to modify
the particular manner of performing the Tenant Extra Services which is causing
such interference or delay, and if any such additional expense shall be incurred
by Landlord as a result of the performance of the Tenant Extra Services by
Tenant's Extra Service Contractors, Tenant shall pay such additional expense as
Additional Charges hereunder within thirty (30) days after its receipt of an
invoice therefor.
15.07. If and for so long as Landlord maintains a Building directory,
Landlord, at Tenant's request, shall maintain listings on such directory of the
names of Tenant, or its permitted subtenants, assignees, affiliates, or entities
in occupancy of portions of the Premises pursuant to Section 7.03 hereof and the
names of any of their officers and employees, provided that the names so listed
shall not use more than Tenant's Share of the space on the Building directory.
The actual cost to Landlord for making any changes in such listings requested by
Tenant shall be paid by Tenant to Landlord within thirty (30) days after
delivery of an invoice therefor. As of the date of this lease, there is no
Building directory at the Building.
15.08. Tenant shall have the right to tie into the fire safety system,
which tie-in will be performed by Landlord's contractor at Tenant's cost and
expense, which cost and expense shall not exceed the amount that would otherwise
be charged to Landlord by its contractor for such work if such work was being
performed for Landlord's own account.
15.09. (a) Subject to the provisions of this lease (including,
without limitation, Article 11 and EXHIBIT E hereof), Tenant may, at Tenant's
sole cost and expense, install, maintain and operate in a portion of the
Premises a food preparation,
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service and/or dining facility (herein called the "DINING FACILITY") for use by
Permitted Users, including appropriate food and beverage preparation, handling,
cooking, serving and/or dining and/or other associated facilities, provided that
(i) Tenant shall comply with all applicable Legal Requirements with respect to
such Dining Facility and its operations, (ii) Tenant shall cause all food
preparation areas to be properly ventilated so that no odor shall emanate from
the Premises to any other portion of the Building, (iii) Tenant shall maintain
such Dining Facility in a clean and sanitary condition and free of refuse at all
times, and (iv) Tenant shall bag all wet garbage and place the same in
containers that prevent the escape of odor. All of the provisions of this lease
shall be applicable to the installation, maintenance and operation of the Dining
Facility.
(b) Tenant shall install all necessary flues and other means
of ventilation and fire suppression for the proper exhausting of fumes and odors
from the Dining Facility. Landlord acknowledges, to the best of Landlord's
knowledge, that Tenant has installed all necessary flues and ventilation and
fire suppression for the proper exhausting of fumes and odors from the Dining
Facility in the Premises as of the date of this lease. Subject to the following
provisions of this Section 15.09(b), Landlord will provide Tenant, at Tenant's
request and at no out-of-pocket cost or expense to Landlord, with adequate shaft
space for an exhaust for the Dining Facility (which shall only be permitted to
vent at the thirteenth (13th) floor), provided that with respect to any
additional shaft space such shaft space is, in Landlord's judgment, available
for use by Tenant at the time that Tenant requests same without violating any
applicable Legal Requirements, resulting in material alterations in or damage to
the Building or posing any risk to the safety of the occupants thereof, and
taking into account the needs of Landlord and other current and future occupants
of the Building with respect to such shaft space. Notwithstanding anything to
the contrary contained herein, Tenant acknowledges that Landlord has advised
Tenant that Landlord does not believe that adequate shaft space exists for the
installation of additional exhaust as of the date hereof, and Landlord makes no
warranty or representation with respect to any additional shaft space. Tenant
further acknowledges that Landlord shall have no liability to Tenant, this lease
shall remain in full force and effect, the obligations of Tenant shall not be
reduced or diminished, and Tenant shall not be entitled to any reduction in or
credit against the rents payable by Tenant hereunder, if Landlord is unable to
provide Tenant with adequate additional shaft space for such an exhaust. Any
work performed by Tenant pursuant to this Section 15.09(b) shall be subject to
Landlord's prior approval, and performed by Tenant, in accordance with Article
11 and EXHIBIT E hereof.
(c) If Tenant shall require electrical capacity beyond that
set forth in Section 14.04 hereof in connection with Tenant's installation and
operation of the Dining Facility, Landlord shall, at no out-of-pocket cost or
expense to Landlord, provide such additional capacity to Tenant at Tenant's
request, PROVIDED THAT (i) the provision of such additional capacity would not
violate any applicable Legal Requirements, (ii) such additional capacity is, in
Landlord's judgment, available for use by Tenant at the time that Tenant
requests such additional capacity without resulting in material alterations in
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or damage to the Building or posing any risk to the safety of the occupants
thereof, (iii) the aggregate electrical capacity made available to the Premises
shall not exceed Tenant's pro rata share of the electrical capacity of the
Building (as reasonably calculated by Landlord, it being agreed that Landlord
may allocate shares of electrical capacity to vacant space in the Building) and
(iv) Tenant shall reimburse Landlord for the actual out-of-pocket costs incurred
by Landlord to provide such additional capacity. Landlord makes no warranty or
representation as to (A) the likelihood that Tenant will be able to obtain such
additional capacity and/or the amounts thereof that Tenant may be able to
obtain, (B) whether obtaining such additional capacity will require the
installation of additional equipment or facilities or (C) the magnitude of the
costs that may be incurred by Tenant in connection with obtaining such
additional capacity. Landlord shall have no liability to Tenant, this lease
shall remain in full force and effect, the obligations of Tenant shall not be
reduced or diminished, and Tenant shall not be entitled to any reduction in or
credit against the rents payable by Tenant hereunder, in the event that Tenant
is unable to obtain such additional capacity or is unable to obtain such
additional capacity in the amounts thereof that Tenant may have anticipated, or
in the event that the costs incurred by Tenant in connection with obtaining such
additional capacity exceed the amounts theretofore anticipated.
(d) Tenant shall have the right to obtain gas service for
the Dining Facility directly from Consolidated Edison and Tenant shall pay all
charges in connection with such gas service directly to Consolidated Edison.
Tenant shall, at Tenant's sole cost and expense, perform any work as may be
required to supply such gas service, which work will be subject to Landlord's
prior approval, and will be performed by Tenant, in accordance with the
provisions of Article 11 and EXHIBIT E hereof. Landlord shall have no obligation
to perform any work or incur any expense in order to assist Tenant in obtaining
gas service for the Dining Facility, and Landlord shall not in any way be liable
or responsible to Tenant for any loss, damage or expense which Tenant may
sustain or incur if (i) the supply of gas service to the Premises is temporarily
interrupted or (ii) gas service is not available or the quantity or character
thereof is not suitable for Tenant's requirements, except to the extent
resulting from Landlord's willful misconduct or gross negligence.
15.10. Landlord shall, upon prior reasonable request of Tenant, allow
Tenant reasonable access to the common areas of the Building which are
non-leasable such as mechanical rooms and floors and vertical shafts and to
other areas of the Building adjacent to the Premises as may be necessary in
connection with the performance of Tenant's obligations under this lease or the
performance of Alterations or the repair and maintenance of Tenant's Property
and/or Tenant's FF&E. All access by Tenant shall be subject to the supervision
and control of Landlord and to Landlord's reasonable safeguards for the security
and protection of the Building, the Building equipment, and installations and
equipment of other tenants of the Building (or other persons). To the extent
that Landlord provides an engineer or other Building representative to accompany
Tenant's employees and/or contractors for the duration of Tenant's access.
Landlord
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shall provide such engineer or Building representative without additional charge
to Tenant, provided that it does not require more than a reasonable amount of
time (failing which Landlord shall be entitled to assess a reasonable additional
charge) and further provided that the foregoing shall not be deemed to prohibit
Landlord from including the salary of such engineer or Building representative
in Operating Expenses subject to and in accordance with the provisions of
Article 3 hereof.
15.11. Tenant shall have the right during the term of this lease to
review and comment upon operating procedures and specifications for all critical
Building systems from which Tenant benefits; provided however that Landlord
shall in no event be obligated to modify its operating procedures based upon any
of Tenant's comments unless Landlord shall decide to do so in the exercise of
its sole and absolute discretion.
15.12. (a) (i) Annexed hereto as EXHIBIT T are the
specifications for the Building-wide security system as of the date of this
lease. It is understood that over time, Landlord may, at its sole cost and
expense, modify such system, but the modifications shall not reduce, in any
material respect, the level of security within the Building as contemplated by
EXHIBIT T. Moreover, any modifications shall at all times be befitting a
Comparable Building. Landlord will notify Tenant before modifying the Building
security system, but Landlord may implement any modifications to such system in
its sole judgment, provided that the modifications are, as stated in the
preceding sentence, befitting a Comparable Building, exclusive of any such
modifications implemented solely for the benefit of a specific tenant of the
Building. In connection with the foregoing, Landlord will notify Tenant of any
and all advisories, notices, warnings and other security alerts impacting the
Building received by Landlord from any governmental authority which Landlord is
not prohibited from making available to third parties by any governmental
authority.
(ii) At the request of Tenant, Landlord shall meet,
or cause the managing agent of the Building to meet, if applicable, with
Tenant and Tenant's representatives to keep Tenant advised as to the status
of the Building security system and the strategies employed or to be
employed by Landlord and/or the Board of Managers in connection therewith,
and Landlord shall consider any recommendations of Tenant and/or any of
Tenant's representatives with respect to the same and/or the security with
respect to the Building in general, but in no event shall Landlord be
obligated to follow any such recommendations unless Landlord consents to
same, such consent not to be unreasonably withheld or delayed, and Tenant
shall agree to reimburse Landlord (as Additional Charges) for any
reasonable incremental increase in the out-of-pocket costs and expenses
incurred by Landlord in connection with the implementation of any such
Tenant and/or Tenant representative recommendation if and to the extent any
such costs and expenses cannot be included as an Operating Expense in this
lease and/or any other lease for space in the Building.
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(b) Notwithstanding anything to the contrary contained in
this lease, Tenant shall have the right, at Tenant's sole cost and expense, (i)
to retain security guards for purposes of patrolling the Premises and other
portions of the Building subject to and in accordance with the provisions of
EXHIBIT T and (ii) to place the podium and the ancillary equipment with respect
thereto, as shown on EXHIBIT Q annexed hereto, in the Building lobby in the
general location as more particularly shown on EXHIBIT Q and station a security
guard or guards at such podium. Landlord agrees to reasonably cooperate with
Tenant in connection with Tenant's security program with respect to the Premises
(E.G., evacuation drills), provided that Tenant shall reimburse Landlord (as
Additional Charges) for the reasonable out-of-pocket costs and expenses incurred
by Landlord in connection with such cooperation within thirty (30) days after
demand therefor.
(c) Landlord and Tenant agree and acknowledge that (i) as of
the date of this lease the security system located in the Lobby Premises and
certain other security systems (e.g., access control, CCTV and camera systems)
as of the date of this lease services both the Premises and the balance of the
Building, (ii) Landlord and Tenant each desire to bifurcate such security system
in a manner mutually agreeable to Landlord and Tenant so as to create two (2)
separate and independent security systems, one which shall service the entire
Building and one which shall service only the Premises, (iii) Tenant shall, at
its sole cost and expense and within a reasonable period of time after the date
of this lease, perform such work to the security system which is required to
create such independent security system for the Premises and Landlord shall, at
its sole cost and expense and within a reasonable period of time after the date
of this lease, perform such work to the security system which is required to
create such independent security system for the Building and (iv) Landlord and
Tenant shall cooperate with each other in good faith in order to create their
respective security systems and coordinate their respective work in accordance
with good construction practice.
15.13. (a) Subject to the provisions of this Section 15.13, Tenant
will have the right, during the term of this lease, at Tenant's sole cost and
expense, to arrange for its own telecommunications services to be brought into
the Building and distributed directly to the floors on which the Premises are
located, provided that such services shall not have an adverse effect on other
tenants or occupants of the Building or on the service provided to the Building
by other telecommunications providers. If Tenant desires to contract for the
provision of telecommunications services with a supplier ("TENANT'S
TELECOMMUNICATIONS PROVIDER") other than the supplier providing
telecommunications services to the Building, Tenant shall have the right to do
so. Tenant shall not be required to pay any fee to Landlord in consideration for
Landlord permitting Tenant's Telecommunications Provider to have access to the
Building and the riser and shaft space thereof for such purpose, and Tenant's
Telecommunications Provider will not be charged a fee for such access as is
required to provide telecommunications services exclusively to Tenant (but
Landlord may charge a fee if any other tenant or occupant of the Building is
provided service). Tenant's Telecommunications Provider will be permitted access
to the
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risers of the Building in order to install Tenant's telecommunications cabling
and conduits, subject to availability of space in the risers for such purpose at
the time Tenant requests such access; PROVIDED, HOWEVER, Landlord shall not be
obligated to provide any space other than riser space. If no space shall then be
available in the risers of the Building available to service the Unit, Tenant
shall have the right to install additional risers in the Building for such
purpose (which installation shall be performed in accordance with all applicable
Legal Requirements and any applicable provisions of Article 11 and EXHIBIT E
hereto) after Tenant has removed all of its inactive cable from the risers, and
Landlord shall cooperate with Tenant to locate appropriate paths for the
installation of such additional risers to the extent it is feasible to do so.
(b) Landlord and Tenant hereby acknowledge that Tenant
currently maintains an internal telecommunications room in a portion of the
Premises (herein called "TENANT'S TELECOMMUNICATIONS ROOM"), and Landlord agrees
that (i) Tenant will have a right of access to any other portions of the
Building outside the Premises that may contain equipment or conduits installed
in connection with Tenant's telecommunications systems (herein collectively
called "TENANT'S OTHER TELECOMMUNICATIONS INSTALLATIONS") taking into account,
however, the rights of third parties in and such other portions of the Building,
and (ii) Tenant will have access to Tenant's Telecommunications Room and
Tenant's Other Telecommunications Installations on a twenty-four (24) hour per
day, seven (7) day per week basis (subject to Landlord's reasonable security and
safety measures and except in emergency circumstances or during temporary
shutdowns as permitted by and subject to the provisions of this lease). To the
extent that it shall be necessary for Landlord to provide an engineer or other
Building representative to enable Tenant or Tenant's employees and/or
contractors to accomplish any work to be performed in or to Tenant's
Telecommunications Room or Tenant's Other Telecommunications Installations,
Landlord shall provide such engineer or Building representative without
additional charge to Tenant, provided that it does not require more than a
reasonable amount of time (failing which Landlord shall be entitled to assess a
reasonable additional charge) and further provided that the foregoing shall not
be deemed to prohibit Landlord from including the salary of such engineer or
Building representative in Operating Expenses subject to and in accordance with
the provisions of Article 3 hereof.
15.14. (a) Tenant shall have the right, at no additional charge to
Tenant (except as otherwise expressly provided in this lease and as set forth
below), to use (i) in common with Landlord and other tenants and occupants of
the Building, the riser and shaft space in the core of the Building as shown on
EXHIBIT U annexed hereto (herein called the "INITIAL RISER/SHAFT SPACE") for the
installation of conduits, risers, telecommunications cabling and/or computer
cabling or any other equipment that may be lawfully installed therein (herein
collectively called "TENANT'S RISER/SHAFT SPACE EQUIPMENT") and (ii) the
mechanical space as shown on EXHIBIT V annexed hereto (herein called the
"INITIAL MECHANICAL SPACE") for the installation of any mechanical, electrical
and ancillary equipment that may be lawfully installed therein (herein
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collectively called "TENANT'S MECHANICAL EQUIPMENT"). Upon Tenant's written
request, Landlord will provide to Tenant such additional riser space, shaft
space and/or mechanical space that Tenant may require from time to time (herein
collectively called, the "ADDITIONAL RISER/SHAFT/MECHANICAL SPACE"), subject to
Landlord's reasonable safety measures and compliance with any applicable Legal
Requirements and provided that such Additional Riser/Shaft/Mechanical Space is
available and that the provision of such Additional/Riser Shaft/Mechanical Space
will not, in Landlord's reasonable judgment, interfere with the needs of other
present or future tenants or occupants of the Building or have an adverse impact
on any services provided to the Building and provided that Tenant shall have
removed any old, unusable Tenant's Mechanical Equipment from the Initial
Riser/Shaft Space, Initial Mechanical Space and Additional
Riser/Shaft/Mechanical Space. The Initial Riser/Shaft Space, the Initial
Mechanical Space and the Additional Riser/Shaft/Mechanical Space are herein
collectively called the "EQUIPMENT SPACE," and Tenant's Riser/Shaft Space
Equipment and Tenant's Mechanical Equipment are herein collectively called
"TENANT'S EQUIPMENT". The installation of Tenant's Equipment shall be performed
in accordance with Article 11 and EXHIBIT E hereof. With respect to any
additional mechanical space provided to Tenant, Landlord may charge a rental
charge at the then prevailing market rate taking into consideration the type,
location and size (and any other relevant factor) of such space.
(b) For purposes of installing, servicing or repairing
Tenant's Equipment, Tenant shall have reasonable access to the Equipment Space
upon prior reasonable request of Landlord. All access by Tenant to the Equipment
Space shall be subject to the supervision and control of Landlord and to
Landlord's reasonable safeguards for the security and protection of the
Building, the Building equipment, and installations and equipment of other
tenants of the Building (or other persons) as may be located in the risers and
shafts and mechanical space of the Building. To the extent that Landlord
provides an engineer or other Building representative to accompany Tenant's
employees and/or contractors for the duration of Tenant's access to the
Equipment Space, Landlord shall provide such engineer or Building representative
without additional charge to Tenant, provided that it does not require more than
a reasonable amount of time (failing which Landlord shall be entitled to assess
a reasonable additional charge) and further provided that the foregoing shall
not be deemed to prohibit Landlord from including the salary of such engineer or
Building representative in Operating Expenses subject to and in accordance with
the provisions of Article 3 hereof.
(c) Tenant agrees that Tenant will pay for all electrical
service required in connection with Tenant's Equipment in accordance with
Article 14 hereof, and Tenant further agrees that such electric service shall
feed off the same supply of electrical energy furnished to the Premises as
provided in Article 14.
(d) Tenant, at Tenant's sole cost and expense, agrees to
promptly and faithfully obey, observe and comply with all Legal Requirements in
any manner affecting or relating to Tenant's installation, repair, maintenance
and operation of
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Tenant's Equipment. Tenant, at Tenant's sole cost and expense, shall secure and
thereafter maintain all permits and licenses, if any, required for the
installation and operation of Tenant's Equipment.
(e) Tenant shall obtain and thereafter maintain during the
term of this lease insurance coverage for the benefit of Landlord and the Board
of Managers with respect to Tenant's Equipment in such amount and of such type
as Landlord may reasonably require, provided that such insurance shall not be in
amounts that are in excess of the amounts generally required by landlords of
Comparable Buildings.
(f) Tenant, at Tenant's sole cost and expense, shall
promptly repair any and all damage to the Equipment Space and to any other part
of the Building caused by or resulting from the installation, maintenance and
repair, operation or removal of Tenant's Equipment and, in the event that Tenant
elects (or is required, subject to the provisions of this lease) to remove any
of Tenant's Equipment prior to the expiration of the term of this lease, Tenant
shall restore all affected areas to their condition as existed prior to the
installation of Tenant's Equipment, subject to normal wear and tear and damage
for which Landlord is responsible for hereunder.
15.15. (a) Landlord and Tenant acknowledge that (i) the Premises
are currently, and may continue to be throughout the term of this lease,
dependent upon that certain building commonly referred to as the "Citicorp
Center" with a street address of 153 East 53rd Street, New York, New York
(herein called "CITIGROUP CENTER") for certain facilities, services and
utilities necessary for the operation and use of the Premises (herein called the
"CITIGROUP CENTER SERVICES"), (ii) the Citigroup Center Services are presently,
and may continue to be throughout the term of this lease, provided to the
Premises by means of the Retained Citibank Items which connect the Citigroup
Center Services between Citigroup Center and the Building (herein called the
"CITIGROUP CENTER SERVICE CONNECTIONS") located in a certain utility tunnel (the
"UTILITY TUNNEL") beneath Lexington Avenue between 53rd and 54th Streets, (iii)
subject to the provisions of this Section 15.15, Landlord hereby grants to
Tenant the right to continue to place the Citigroup Center Service Connections
in the Utility Tunnel (herein called the "CITIGROUP CENTER SERVICE RIGHTS") and
(iv) Landlord's right and ability to grant to Tenant the right to continue to
place the Citigroup Center Service Connections in the Utility Tunnel derives
from, and are the subject of, that (A) certain undated Revocable Consent
Agreement by and among The Citicorp Center Condominium, the New York City
Department of Transportation and the New York City Department of Information,
Technology & Telecommunications (herein called the "REVOCABLE CONSENT") and (B)
certain Systems Agreement dated as of November 22, 2000, by and among Citibank,
N.A., Dai-Ichi Life Investment Properties, Inc., The Citigroup Center
Condominium and The 399 Park Avenue Condominium (herein called the "SYSTEMS
AGREEMENT"). For purposes of this lease, "RETAINED CITIBANK ITEMS" shall mean
collectively (1) the telelift tracks constituting part of that certain telelift
system (herein called the "TELELIFT SYSTEM") which enables the transfer of mail
through the Utility Tunnel and to Citigroup Center, (2)
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the electric conduits powering the Telelift System and (3) the emergency power
lines and related equipment and apparatus connected to that certain emergency
generator located on the 61st floor of Citigroup Center and which service
equipment located in the Building.
(b) For the purpose of servicing or repairing the Citigroup
Center Services Connections, Tenant shall have reasonable access to the Utility
Tunnel upon prior reasonable request to Landlord and subject to the applicable
provisions of the Systems Agreement. All access by Tenant to the Utility Tunnel
shall be subject to the supervision and control of Landlord and Landlord's
reasonable safeguards for the security and protection of the Building, the
Building equipment, and installations and equipment of other tenants of the
Building (or other persons) as may be located in the Utility Tunnel. To the
extent that Landlord provides an engineer or other Building representative to
accompany Tenant's employees and/or contractors for the duration of Tenant's
access to the Utility Tunnel, Landlord shall provide such engineer or Building
representative without additional charge to Tenant, provided that it does not
require more than a reasonable amount of time (failing which Landlord shall be
entitled to assess a reasonable additional charge) and further provided that the
foregoing shall not be deemed to prohibit Landlord from including the salary of
such engineer or Building representative in Operating Expenses subject to and in
accordance with the provisions of Article 3 hereof.
(c) Notwithstanding anything to the contrary contained in
this Section 15.15, (i) in the event the Revocable Consent expires or is revoked
prior to the scheduled expiration date thereof subject to and in accordance with
the express terms contained therein as of the date hereof or in the event it
becomes necessary to deactivate the Utility Tunnel in order to comply with the
requirement of any governmental authority or as a result of fire or other
casualty, then Tenant's Citigroup Center Service Rights shall terminate (i) with
respect to such expiration or revocation of the Revocable Consent, on the date
of such expiration or revocation or (ii) with respect to such deactivation of
the Utility Tunnel as a result of the requirement of any governmental authority,
on the date required by any such governmental authority or (iii) with respect to
such deactivation of the Utility Tunnel as a result of a fire or casualty, sixty
(60) days after Tenant's receipt of written notice of such fire or casualty and
such contemplated deactivation of the Utility Tunnel as a result thereof, and
(ii) in the event that Landlord in its sole discretion determines not to permit
Tenant to utilize the Utility Tunnel (other than for the reason set forth in
clause (i) above), then Tenant's Citigroup Center Service Rights shall terminate
upon at least twelve (12) months prior written notice to Tenant. In the event
Tenant's Citigroup Center Service Rights are terminated subject to and in
accordance with this Section 15.15(c) then, in such event, Tenant, at its sole
cost and expense, shall promptly remove, or cause to be promptly removed, the
Retained Citibank Items from the Utility Tunnel.
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(d) In the event Tenant shall permanently cease to use the
Retained Citibank Items, then, in such event, Tenant shall promptly notify
Landlord of the same and from and after the date of such Tenant notice, this
Section 15.15 shall be deemed null and void and of no further force and effect.
15.16. Landlord and Tenant agree and acknowledge that notwithstanding
anything to the contrary contained in this lease only Tenant's Designated
Representative is authorized by Tenant to request additional Building services
from Landlord and the requirements of Tenant for additional Building services
will be attended to only upon request by Tenant's Designated Representative to
the office of the manager of the Building. For purposes of this lease, "TENANT'S
DESIGNATED REPRESENTATIVE" shall mean the agent, employee, officer or director
of Tenant who is authorized from time to time by Tenant to make decisions, give
notices and receive notices contemplated under this lease, and whose name Tenant
has given Landlord prior written notice thereof.
15.17. Tenant shall have the right, subject to the provisions of
Section 11.06 hereof, at any time and from time to time, to retain an
independent contractor, which may not be an employee of Tenant, to manage and
supervise the daily operation of the Premises and the facilities of the Premises
and to act as Tenant's Designated Representative (herein called "TENANT'S
PREMISES MANAGER"). Landlord agrees and acknowledges that Tenant's Premises
Manager may retain, subject to the provisions of Section 11.06 hereof, employees
in connection with the performance of its duties for Tenant and that the
retaining by Tenant's Premises Manager of employees shall not be deemed to
decrease the obligations of Landlord under this lease.
15.18. Tenant shall have the right throughout the term of this lease
to use, in common with Landlord and other tenants of the Building, the services
provided by the messenger center operated by Landlord in the Building (herein
called the "MESSENGER CENTER"; such services are herein called the "MESSENGER
CENTER SERVICES"). The Messenger Center Services provided to Tenant shall be the
same as those provided to other tenants of the Building, and the provision of
such Messenger Center Services to Tenant shall be subject to the same conditions
and requirements as apply to the provision of the Messenger Center Services to
other tenants of the Building, in each case as agreed to by Landlord and
Landlord's Messenger Center Vendor in their sole discretion. Tenant acknowledges
that the Messenger Center is operated, and the Messenger Center Services are
provided, by a third-party provider employed by Landlord for such purpose
(herein called "LANDLORD'S MESSENGER CENTER VENDOR"). In the event that Tenant
shall require the Messenger Center Services during hours in addition to those
hours during which Landlord's Messenger Center Vendor shall operate the
Messenger Center and provide the Messenger Center Services to tenants of the
Building, as determined by Landlord and Landlord's Messenger Center Vendor in
their sole discretion from time to time (such additional hours are herein called
the "EXTENDED MESSENGER CENTER HOURS"), Landlord shall use commercially
reasonable efforts to cause Landlord's Messenger Center Vendor to operate the
Messenger Center and to provide the Messenger Center Services during
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such Extended Messenger Center Hours, provided that Landlord shall have no
liability to Tenant and Tenant's obligations to Landlord hereunder shall not be
diminished in any way if Landlord is unable to obtain the agreement of
Landlord's Messenger Center Vendor to operate the Messenger Center and to
provide the Messenger Center Services during such Extended Messenger Center
Hours, and provided further that Tenant shall (a) pay all additional incremental
actual out-of-pocket costs incurred as a result of the operation of the
Messenger Center and the provision of the Messenger Center Services during such
Extended Messenger Center Hours and (b) reimburse Landlord for all costs
incurred by Landlord in connection with such efforts, which costs shall be
payable by Tenant to Landlord as Additional Charges hereunder within thirty (30)
days after demand. Tenant's rights set forth in this Section 15.18 shall
continue only for so long as the Messenger Center shall be maintained and
operated by Landlord, it being acknowledged and agreed that Landlord shall have
the absolute and unconditional right at any time in the exercise of its sole
discretion to close the Messenger Center.
15.19. Throughout the term of this lease Tenant shall have the right,
without charge, to continue to hang in substantially the same locations in the
lobby of the Building as shown on EXHIBIT AA annexed hereto the paintings
hanging therein as of the date of this lease and which are shown on EXHIBIT AA
and which (a) 108" x 240" oil on canvas painting by William Wegman is known as
"Conductus," (b) 120" x 96" oil on canvas painting by William Wegman is known as
"Clausula," (c) 120" x 96" oil on canvas painting by William Wegman is known as
"Organum," and (d) 52" x 122" oil on canvas painting by William Wegman is known
as "Seascape." Tenant shall, at Tenant's sole cost and expense, maintain such
paintings in good order and condition, procure and maintain, commercially
reasonable casualty and liability insurance in connection with such paintings
and their presence in the Building, and indemnify and hold Landlord harmless
from and against any and all liability, cost, damage or expense arising from or
related to such paintings and the presence thereof in the Building (except to
the extent arising from Landlord's negligence or willful misconduct). Landlord
agrees and acknowledges that Tenant shall have the right, at Tenant's sole cost
and expense, to remove any of the paintings from the lobby of the Building from
time to time subject to Landlord's reasonable rules and regulations and upon not
less than ninety (90) days prior written notice to Landlord (or on reasonable
advance notice for temporary removals, such as for a loan for an art exhibit).
Notwithstanding anything to the contrary contained in this lease, Tenant agrees
and acknowledges that Landlord shall not be liable to Tenant for any loss,
injury or damage to the paintings except to the extent any such loss, injury or
damage is caused or results from the negligence of Landlord, its agents,
servants, employees or contractors.
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ARTICLE 16
ACCESS AND NAME OF BUILDING
16.01. Except for the space within the inside surfaces of all walls,
hung ceilings, floors, windows and doors bounding the Premises, and, except as
otherwise provided in this lease, all of the Building, including, without
limitation, exterior and atrium Building walls, core corridor walls and doors
and any core corridor entrance, any terraces or roofs adjacent to the Premises,
and any space in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the Premises
for the purposes of operation, maintenance, decoration and repair, are reserved
to Landlord and persons authorized by Landlord, with respect to portions of the
foregoing located in the Unit, and, subject to the provisions of the
Declaration, to the Board of Managers and persons authorized by the Board of
Managers, with respect to portions of the Building outside the Unit.
16.02. Landlord and the Board of Managers reserve the right, and
Tenant shall permit Landlord, the Board of Managers and persons authorized by
Landlord or the Board of Managers, to install, erect, use and maintain pipes,
ducts and conduits in and through the Premises; provided that (a) same are
installed within the interior of the walls of the Premises or above Tenant's
ceiling or, if installed adjacent to the Premises or the ceiling thereof, such
installations shall be, at Landlord's or the Board of Managers' cost and
expense, located in boxed enclosures and appropriately furred, and (b) in
performing such installation work, Landlord or the Board of Managers, as the
case may be, shall use reasonable efforts not to interfere with Tenant's use of
the Premises without any obligation to employ overtime services unless Tenant
requests same and, except as otherwise provided in this Section 16.02,
reimburses Landlord or the Board of Managers, as the case may be, for the
actual, incremental, reasonable, out-of-pocket costs in connection therewith.
Notwithstanding the provisions of this Section 16.02 to the contrary, Landlord
or the Board of Managers, as the case may be, shall be required to perform all
such work during non-Regular Building Service Hours if the nature of such work
is such as to customarily be performed by landlords in Comparable Buildings
during non-Regular Building Service Hours (E.G., an electrical shutdown for the
repair of a riser). Any damage to the Premises resulting from Landlord's
exercise of the foregoing right shall be repaired and the Premises restored to
its condition prior to such damage promptly by and at the expense of Landlord or
the Board of Managers, as the case may be.
16.03. Landlord and the Board of Managers and persons authorized by
Landlord and/or the Board of Managers shall have the right, upon reasonable
advance notice, except in cases of emergency, to enter and/or pass through the
Premises at reasonable times provided Landlord or the Board of Managers, as the
case may be, shall use reasonable efforts to minimize any interference with
Tenant's business operations
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(without obligation to make such visits during non-Regular Building Service
Hours unless Tenant requests same in connection with any visit for the purposes
described in clause (b) below and, except as otherwise provided in this Section
16.03, reimburses Landlord or the Board of Managers, as the case may be, for the
actual, incremental, reasonable, out-of-pocket costs in connection therewith)
and shall be accompanied by a designated representative of Tenant if Tenant
shall have made such representative available, (a) to examine the Premises and
to show them to actual and prospective Superior Lessors, Superior Mortgagees, or
prospective purchasers, mortgagees or lessees of the Unit or the Building, (b)
to make such repairs, alterations, additions and improvements in or to the
Premises and/or in or to the Unit or the Building or its facilities and
equipment as Landlord or the Board of Managers or persons authorized by Landlord
or the Board of Managers is or are required or, subject to all other applicable
provisions of this lease, desires to make, and (c) to read any utility meters
located therein. Landlord, the Board of Managers and such authorized persons
shall be allowed to take all materials into and upon the Premises that may
reasonably be required in connection therewith, without any liability to Tenant
and without any reduction of Tenant's covenants and obligations hereunder except
as may be expressly provided to the contrary elsewhere in this lease (including,
without limitation, in Section 35.04(b) hereof); PROVIDED, HOWEVER, that to the
extent reasonably practicable, Landlord or the Board of Managers shall not cause
or permit such materials to be stored in the Premises overnight. Notwithstanding
any provision of this Article 16 to the contrary, Landlord or the Board of
Managers, as the case may be, shall be required to perform all repairs,
alterations, additions and improvements as referred to in clause (b) above
during non-Regular Building Service Hours if the nature of any such repair,
alteration, addition or improvement is such as to customarily be performed by
landlords in Comparable Buildings during non-Regular Building Service Hours
(E.G., an electrical shutdown for the repair of a riser).
16.04. If at any time any windows of the Premises are either
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Unit or the Building (or permanently
darkened or obstructed; PROVIDED, HOWEVER, that Landlord shall not permanently
darken or obstruct the windows unless required to do so by law) or covered by
any translucent material for the purpose of energy conservation (subject to the
provisions of Section 16.01 hereof), or if any part of the Building or the Unit,
other than the Premises, is temporarily or, if required by law, permanently
closed or inoperable, the same shall be without liability to Landlord and
without any reduction or diminution of Tenant's obligations under this lease
except as otherwise provided in this lease, including, without limitation, in
Section 35.04(b) hereof.
16.05. During any Assignment Recapture Period or any Sublease
Recapture Period and during the period of twenty-four (24) months prior to the
expiration date of this lease (as the same may have been extended pursuant to
the provisions of this lease), Landlord and persons authorized by Landlord may
exhibit the Premises to prospective tenants at reasonable times. Landlord shall
give Tenant reasonable prior notice of any entry pursuant to this Section 16.05
and shall use reasonable efforts to
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minimize any interference with Tenant's business operations and use of the
Premises (without obligation to make such visits during non-Regular Building
Service Hours) and shall be accompanied by a designated representative of Tenant
if Tenant shall have made such representative available to Landlord.
16.06. Intentionally Omitted.
16.07. (a) Landlord and the Board of Managers reserve the right, at
any time, without it being deemed a constructive eviction and without incurring
any liability to Tenant therefor, or affecting or reducing any of Tenant's
covenants and obligations hereunder, to make or permit to be made such changes,
alterations, additions and improvements in or to the Unit or the Building and
the fixtures and equipment thereof, as well as in or to the street entrances,
atrium, doors, halls, passages, elevators, escalators and stairways thereof, and
other public parts of the Unit and the Building, as Landlord and/or the Board of
Managers shall deem necessary or desirable. Landlord agrees that any changes,
alterations, additions or improvements performed pursuant to this Section shall
not, either during performance thereof or when completed, unreasonably interfere
with the access to or use of the Premises by Tenant or, when completed, diminish
beyond an immaterial extent any services to be provided by Landlord hereunder or
reduce beyond an immaterial extent the rentable square foot area (using the
rentable square foot areas of the Premises set forth in this lease) or the
floor-to-ceiling height of the Premises. Except in emergency circumstances,
Landlord shall give Tenant at least thirty (30) days' notice of any such work
which will or is likely to affect the Premises or Tenant's use and enjoyment
thereof, and such work shall be performed as provided in Section 15.05 hereof.
(b) Notwithstanding anything to the contrary contained in
this lease, Landlord shall not make, and Landlord shall not permit any other
tenant or occupant of the Building to make, (i) any penetrations within five (5)
feet of the South demising wall of the space shown on EXHIBIT CC-1 annexed
hereto and (ii) any penetrations within the area shown on EXHIBIT CC-2 annexed
hereto, without the prior written approval of Tenant, which approval shall not
be unreasonably withheld or delayed.
16.08. Except as may be provided to the contrary in this lease,
neither this lease nor any use by Tenant shall give Tenant any easement or other
right in or to the use of any door or any passage or any concourse or any plaza
connecting the Building with any subway or any other building or to any public
conveniences, and the use of such doors, passages, concourses, plazas and
conveniences may without notice to Tenant, be regulated or discontinued at any
time by Landlord or the Board of Managers.
16.09. If Tenant shall not be personally present to open and permit an
entry into the Premises at any time when for any reason an entry therein shall
be urgently necessary by reason of fire or other emergency, Landlord or
Landlord's agents may enter the same as permitted by law without rendering
Landlord or such agents liable therefor (if
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during such entry Landlord or Landlord's agents shall accord reasonable care to
Tenant's property) and without in any manner affecting the obligations and
covenants of this lease.
16.10. Any damage to the Premises resulting from the exercise by
Landlord of its rights granted under this Article 16 shall be promptly repaired
by Landlord at Landlord's expense (and such expense shall be included in or
excluded from Operating Expenses in accordance with the provisions of Article 3
hereof).
16.11. Subject to applicable Legal Requirements, requirements of
insurance bodies, Force Majeure Causes and Landlord's and/or the Board of
Managers' reasonable security measures for the Unit and/or the Building, Tenant
shall have access to the Premises on a twenty-four (24) hour-per-day, seven (7)
day-per-week basis, failing which Tenant shall have the rights available to it
pursuant to Section 35.04(b) hereof, if applicable.
16.12. Landlord acknowledges that Tenant may, from time to time, have
certain security or confidentiality requirements such that portions of the
Premises shall be locked and inaccessible to persons unauthorized by Tenant
(herein called the "SECURE AREAS"). Notwithstanding anything to the contrary
contained in this Article 16, Landlord therefore agrees that Landlord's right of
access to the Secure Areas shall be restricted subject to the following
conditions: (a) Tenant shall deliver to Landlord floor plans of the Premises
designating the Secure Areas, (b) such designation shall be reasonable in light
of Tenant's business, (c) except in cases of emergency, any access to the Secure
Areas by Landlord shall be upon no less than twenty-four (24) hours notice to
Tenant, which notice may be oral, and accompanied by a representative of Tenant,
whom Tenant agrees to make available, and (d) Landlord shall have no obligation
to provide to the Secure Areas cleaning services or any other services or
repairs that require access to the Secure Areas unless Tenant shall provide
Landlord with such access to the Secure Areas for purposes of providing such
cleaning services or other services or repairs at those times that Landlord
shall reasonably designate in accordance with Landlord's ordinary Building
schedule.
16.13. Tenant shall have the right, at Tenant's sole cost and expense,
to install and operate a security system as Tenant shall determine ("TENANT'S
SECURITY SYSTEM"), provided that Tenant's Security System shall be compatible
and coordinated with Landlord's security system. Landlord shall not make any
change to Landlord's security system which would adversely affect Tenant's
Security System or which would cause Tenant's Security System to no longer be
compatible and/or coordinated with Landlord's security system. Tenant's Security
System may include, without limitation (a) the installation of proximity card
readers at locations on each floor of the Premises and (b) monitoring of the
Private Elevator by Tenant's personnel. Upon Tenant's request, Landlord shall
cooperate with Tenant in all reasonable respects to facilitate the use of
Tenant's Security System and the compatibility and coordination thereof with
Landlord's security system (E.G., by combining Tenant's proximity cards with any
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required Building identification); PROVIDED, HOWEVER, that the cost of such
cooperation and coordination, and any equipment required to be installed in
connection therewith, shall be at Tenant's sole cost and expense. Tenant shall
provide Landlord with a master key and/or a master card key for the Premises.
16.14. Subject to the provisions of the last sentence of Section 16.13
hereof and Rule 8 of EXHIBIT D annexed hereto, Tenant will not be required to
use Landlord's contractor for purposes of installing, maintaining or repairing
any locks or bolts on the doors and windows of the Premises, and Tenant will be
entitled to use its own locksmith for such purposes. Landlord shall receive
master keys from Tenant for all such locks or bolts installed by Tenant.
16.15. (a) Except as hereinafter provided, Landlord and the Board
of Managers reserve the right to name the Building and to change the name of the
Building and the address of the Building at any time and from time to time.
Subject to the provisions of this Section 16.15, Landlord shall give Tenant
reasonable prior notice of any change in the address of the Building.
(b) For purposes of this Section 16.15, the following terms
shall have the following meanings:
"SIGNAGE OCCUPANCY REQUIREMENT" shall mean occupancy of not less than
270,000 rentable square feet of the Building (herein called the "MINIMUM
PREMISES") by Tenant and/or Tenant's Affiliates and/or Tenant's Service and
Business Relationship Entities.
"PROHIBITED SIGNAGE" shall mean any and all signs, flags, banners,
monuments, kiosks or other means of identifying any person, entity, tenant,
occupant, landlord, unit owner, managing agent, the Condominium or the
Board of Managers, on or about the exterior of the Building or the street
level lobbies and elevator banks of the Building or visible from the
exterior of the Building; PROVIDED, HOWEVER, that Prohibited Signage shall
not include (i) any signage which Tenant or Landlord is permitted to
install in accordance with the terms of this Section 16.15, (ii) any sign
identifying a tenant of the Building not to exceed one (1) square foot (or
such larger size sign as the Lehman Tenant may have in the lobby of the
Building under the Lehman Lease as of the date of this lease) which is
placed on any lobby podium which such tenant is permitted to maintain in
accordance with the provisions of this Section 16.15, (iii) up to one (1)
plaque not to exceed one (1) square foot at each of the Park Avenue and
Lexington Avenue entrances to the Building identifying Landlord, the
Condominium or the Managing Agent for the Condominium and (iv) decals
identifying Landlord or an Affiliate of Landlord and/or displaying
Landlord's or an Affiliate of Landlord's logo on the glass doors and
windows in the Lexington Avenue lobby of the Building substantially similar
to those placed at Citigroup Center as of the date of this lease and from
and after the date that the Premises are no longer the corporate
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headquarters of Tenant, decals identifying Landlord or an Affiliate of
Landlord and/or displaying Landlord's or an Affiliate of Landlord's logo on
the glass doors and windows in the Park Avenue lobby of the Building
substantially similar to those placed at Citigroup Center as of the date of
this lease.
(c) For so long as the Named Tenant, Citibank, N.A. or a
Corporate Successor to the Named Tenant or Citibank, N.A. is the Tenant
hereunder and such Tenant meets the Signage Occupancy Requirement and this lease
shall remain in full force and effect, Tenant shall have the exclusive right to
(i) subject to the rights of the tenant under the Lehman Lease as of the date of
this lease, name the Building after such Tenant, (ii) install, at Tenant's sole
cost and expense, identifying signs containing the corporate name of such Tenant
or the corporate logo of such Tenant in the locations on the exterior of the
Building mutually agreeable to Landlord and Tenant and (iii) raise, from a
flagpole located on the Real Property mutually agreed upon by Landlord and
Tenant, a flag or banner bearing the corporate name and/or the corporate logo of
such Tenant. The design, font, size, color, materials, finish and manner of
installation of any such signage shall be subject to Landlord's prior approval,
which approval shall not be unreasonably conditioned, withheld or delayed.
(d) For so long as the Named Tenant, Citibank, N.A. or a
Corporate Successor to the Named Tenant or Citibank, N.A. is the Tenant
hereunder and such Tenant meets the Signage Occupancy Requirement, (i) Landlord
shall not name the Building after any person and Landlord and the Board of
Managers shall not change the address of the Building, (ii) Landlord shall not
install, nor permit to be installed, Prohibited Signage, and (iii) Landlord
shall not place or install, nor permit to be placed or installed, on any
sidewalk or plaza on the Real Property located along Park Avenue, Lexington
Avenue or 53rd Street any Kiosk or other structure without Tenant's prior
approval, which approval shall not be unreasonably conditioned, withheld or
delayed; PROVIDED, HOWEVER, that (A) Landlord shall have the right to install or
permit the installation of a one-person lobby podium similar in size but not
larger than the lobby podium maintained in the lobby of the Building by the
Lehman Tenant as of the date of this lease for any tenant of the Building or any
subtenant of any tenant of the Building (x) leasing or subleasing at least
300,000 rentable square feet in the Building and (y) occupying, together with
such tenant's or subtenant's, as the case may be, Affiliates and/or Service and
Business Relationship Entities, at least 240,000 rentable square feet in the
Building (provided, however, that with respect to any such tenant's and
subtenant's Service and Business Relationship Entities only, any space within
any such tenant's or subtenant's space being occupied by Service and Business
Relationship Entities which exceeds ten (10%) percent of the rentable area of
such tenant's or subtenant's space, as the case may be, shall not be counted
towards the aforementioned 240,000 square foot minimum occupancy requirement),
subject to Tenant's reasonable approval of the location and design of such
podium, (B) Landlord shall have the right to maintain the Building lobby desks
located in the Park Avenue and Lexington Avenue lobbies of the Building as of
the date of this lease and Landlord may make modifications to such
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Building lobby desks which are reasonably acceptable to Tenant and (C) Landlord
shall have the right to permit its street-level retail tenants to install
exterior signs and interior signs which are intended to be visible from the
exterior of the Building, provided that such exterior and interior signs shall
not detract from the character, appearance or dignity of the Building as a
first-class office building and retail building which is the world headquarters
of a major financial institution.
16.16. Landlord shall operate the retail portions of the Unit in
accordance with standards of use and operation at least equal to the standards
of use and operation prevailing as of the date of this lease (the "RETAIL
STANDARDS"). Any dispute between Landlord and Tenant as to whether the Retail
Standards are being met shall be resolved by expedited arbitration in accordance
with the provisions of Article 39 hereof.
ARTICLE 17
NOTICE OF OCCURRENCES
17.01. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Premises for which Landlord might be liable, (b) any
fire or other casualty in the Premises, (c) any damage to or defect in the
Premises, including the fixtures, equipment and appurtenances thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part or appurtenance of the Building's sanitary, electrical, heating,
ventilating, air-conditioning, elevator or other systems located in or passing
through the Premises or any part thereof, if and to the extent that Tenant shall
have knowledge of any of the foregoing matters.
ARTICLE 18
NON-LIABILITY AND INDEMNIFICATION
18.01. (a) Neither Landlord (except to the extent expressly set
forth in this lease), the Board of Managers, any Superior Lessor or any Superior
Mortgagee, nor any partner, director, officer, shareholder, principal, agent,
servant or employee of Landlord, the Board of Managers, any Superior Lessor or
any Superior Mortgagee (in any case whether disclosed or undisclosed), shall be
liable to Tenant for any loss, injury or damage to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss, nor shall the aforesaid parties be liable for any damage to
property of Tenant or of others entrusted to employees of Landlord, Landlord's
managing agent (if any), the Board of Managers or the managing agent of the
Common Elements, nor for loss of or damage to any such property by theft or
otherwise; PROVIDED, HOWEVER, that subject to the provisions of Section 35.03
hereof, nothing contained in this Section 18.01(a) shall be construed to
exculpate Landlord for loss, injury or damage to the extent caused by or
resulting from the negligence of Landlord, its agents, servants, employees and
contractors in the operation or maintenance of the Premises or the Real
Property. Further, neither Landlord, the Board of Managers, any
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Superior Lessor or any Superior Mortgagee, nor any partner, director, officer,
principal, shareholder, agent, servant or employee of Landlord, the Board of
Managers, any Superior Lessor or any Superior Mortgagee, shall be liable (i) for
any such damage caused by other tenants or persons in, upon or about the Unit,
the Building or the Real Property, or caused by operations in construction of
any private, public or quasi-public work; or (ii) even if negligent, for
consequential damages arising out of any loss of use of the Premises or any
equipment, facilities or other Tenant's Property therein by Tenant or any person
claiming through or under Tenant.
(b) Neither Tenant (except to the extent expressly set forth
in this lease) nor any partner, director, officer, shareholder, principal,
agent, servant or employee of Tenant (in any case whether disclosed or
undisclosed), shall be liable to Landlord for any loss, injury or damage to
Landlord or to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss, nor shall the aforesaid parties be
liable for any damage to property of Landlord or of others entrusted to
employees of Tenant, nor for loss of or damage to any such property by theft or
otherwise; PROVIDED, HOWEVER, that nothing contained in this Section 18.01(b)
shall be construed to exculpate Tenant for loss, injury or damage to the extent
caused by or resulting from the negligence of Tenant, its agents, servants,
employees and contractors in the operation or maintenance of the Premises.
Further, neither Tenant, nor any partner, director, officer, principal,
shareholder, agent, servant or employee of Tenant shall be liable (i) for any
such damage caused by other tenants or persons in, upon or about the Unit, the
Building or the Real Property, or caused by operations in construction of any
private, public or quasi-public work; or (ii) even if negligent, for
consequential damages arising out of any loss of use of the Unit or the Building
or any equipment, facilities or other property of Landlord or the Condominium
therein by Landlord or any person claiming through or under Landlord.
18.02. Subject to the terms of Section 9.04 hereof relating to waivers
of subrogation (to the extent that such waivers of subrogation shall be
applicable in any case), Tenant shall indemnify and hold harmless Landlord, the
Board of Managers and all Superior Lessors and Superior Mortgagees and its and
their respective partners, directors, officers, principals, shareholders, agents
and employees (each of the foregoing being sometimes referred to herein as a
"LANDLORD PARTY") from and against any and all claims arising from or in
connection with (a) the occupancy, conduct or management of the Premises or of
any business therein, or any work or thing whatsoever done, or any condition
created (other than by Landlord, its agents, employees or contractors) in or
about the Premises during the term of this lease; (b) any act, omission (where
there is an affirmative duty to act) or negligence of Tenant or any of its
subtenants or licensees or its or their partners, directors, principals,
shareholders, officers, agents, employees or contractors; (c) any accident,
injury or damage whatever (except to the extent caused by the negligence or
willful misconduct of Landlord, the Board of Managers, or their agents,
employees, or contractors) occurring in, at or upon the Premises; (d) Tenant's
exercise of its rights under Article 33 hereof and (e) any breach or default by
Tenant in the full and
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prompt payment and performance of Tenant's obligations under this lease;
together with all reasonable, actual out-of-pocket costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses. In case any action or proceeding be brought
against Landlord and/or any Landlord Parties by reason of any such claim,
Tenant, upon notice from Landlord or such Landlord Party, shall resist and
defend such action or proceeding by counsel reasonably satisfactory to Landlord
and such Landlord Party. Provided that Tenant complies with the requirements of
this Section with respect to any third-party claim, Tenant shall not be liable
for the costs of any separate counsel employed by Landlord or any Landlord Party
with respect thereto. If the issuer of any insurance policy maintained by Tenant
and meeting the applicable requirements of this lease shall assume the defense
of any such third-party claim, then Landlord and such Landlord Party shall
permit such insurance carrier to defend the claim with its counsel and (i)
neither Landlord nor any Landlord Party shall settle such claim without the
consent of the insurance carrier (unless such settlement would relieve Landlord
or such Landlord Party of all liability for which Tenant or its insurance
carrier may be liable hereunder and Tenant and its insurance carrier shall have
no liability for such settlement), (ii) Tenant shall have the right to settle
such claim without the consent of Landlord if Landlord and each Landlord Party
and their respective insurance carriers would be relieved of all liability in
connection therewith, (iii) Landlord and each applicable Landlord Party shall
reasonably cooperate, at Tenant's expense, with the insurance carrier in its
defense of any such claim, and (iv) Tenant shall not be liable for the costs of
any separate counsel employed by Landlord or any Landlord Party. In no event
shall Tenant be liable for consequential or indirect damages. The provisions of
the preceding four sentences shall apply with full force and effect to any
obligation of Tenant contained in this lease to indemnify Landlord and/or all
Landlord Parties, without respect to whether such indemnification obligation is
set forth in this Article 18 or elsewhere in this lease. Nothing contained in
this Section 18.02 shall be deemed to relieve Landlord or the Board of Managers,
as the case may be, of the obligation to maintain insurance in respect of the
Building in accordance with the provisions of Section 9.06 hereof.
18.03. Notwithstanding anything contained in Section 18.01 hereof to
the contrary and subject to the terms of Section 9.04 hereof relating to waivers
of subrogation (to the extent that such waivers of subrogation shall be
applicable in any case), Landlord shall indemnify and hold harmless Tenant and
Tenant's partners, directors, officers, principals, shareholders, agents and
employees (each of the foregoing being sometimes referred to herein as a "TENANT
PARTY") from and against (a) any and all third-party claims arising from or in
connection with any act, omission (where there is an affirmative duty to act) or
negligence of Landlord and its partners, directors, principals, shareholders,
officers, agents, employees or contractors, and (b) any breach or default by
Landlord in the full and prompt performance of Landlord's obligations under this
lease, together with all reasonable out-of-pocket costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
out-of-pocket attorneys' fees and expenses (but in no event shall
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Landlord, nor any partner, director, officer, principal, shareholder, agent,
servant or employee of Landlord or Landlord designee or their tenants be liable
for consequential or indirect damages). If any such third-party claim is
asserted against Tenant and/or any Tenant Party, Tenant shall give Landlord
prompt notice thereof and Landlord shall resist and defend such third-party
claim (including any action or proceeding thereon) by counsel reasonably
satisfactory to Tenant. Provided that Landlord complies with the requirements of
this Section with respect to any third-party claim, Landlord shall not be liable
for the costs of any separate counsel employed by Tenant or any Tenant Party
with respect thereto. If the issuer of any insurance policy maintained by
Landlord and meeting the applicable requirements of this lease shall assume the
defense of any such third-party claim, then Tenant shall permit such insurance
carrier to defend the claim with its counsel and (i) neither Tenant nor any
Tenant Party shall settle such claim without the consent of the insurance
carrier (unless such settlement would relieve Tenant or such Tenant Party of all
liability for which Landlord or its insurance carrier may be liable hereunder
and Landlord and its insurance carrier shall have no liability for such
settlement), (ii) Landlord shall have the right to settle such claim without the
consent of Tenant if Tenant, each Tenant Party and their respective insurance
carriers would be relieved of all liability in connection therewith, (iii)
Tenant and each applicable Tenant Party shall reasonably cooperate, at
Landlord's expense, with the insurance carrier in its defense of any such claim,
and (iv) Landlord shall not be liable for the costs of any separate counsel
employed by Tenant or any Tenant Party. The provisions of this Section 18.03
shall apply with full force and effect to any obligation of Landlord contained
in this lease to indemnify Tenant and/or a Tenant Party, without respect to
whether such indemnification obligation is set forth in this Article 18 or
elsewhere in this lease.
ARTICLE 19
DAMAGE OR DESTRUCTION
19.01. If the Building, the Unit or the Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this lease shall
not be terminated as in this Article 19 hereinafter provided), then:
(a) Landlord shall promptly settle any insurance claims and
repair (or cause the Board of Managers to repair) the damage to and restore and
rebuild the Building, the Unit and the core and shell of the Premises (excluding
leasehold improvements, Tenant's improvements and betterments and Tenant's
Property) diligently and in a workmanlike manner after notice to it of the
damage or destruction, and
(b) Tenant shall (i) at Tenant's option, restore all or such
portion of Tenant's Property as Tenant may elect to restore and (ii) at Tenant's
option, to be exercised separately with respect to each floor of the Premises,
either
(A) repair the damage to and restore such
portion of the leasehold improvements on such floor (or, in the case of a
floor on
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which Tenant is not a full-floor tenant, the portion of such floor demised
to Tenant) as shall, at a minimum, result in a usable open floor plan,
including, without limitation, ceiling, lighting and floor coverings and
any and all leasehold improvements which are required to be installed
therein to permit such floor to be used in compliance with applicable Legal
Requirements (herein collectively called the "IMPROVEMENTS RESTORATION
WORK"); or
(B) demolish the leasehold improvements
located on such floor (or, in the case of a floor on which Tenant is not a
full-floor tenant, the portion of such floor demised to Tenant) (herein
called the "IMPROVEMENTS DEMOLITION WORK"),
which Improvements Restoration Work or Improvements Demolition Work (as the case
may be) shall be performed diligently and in a workmanlike manner after the
substantial completion of Landlord's repairs and restoration of the core and
shell of the Premises.
The Improvements Restoration Work and the Improvements Demolition Work shall be
deemed to constitute Alterations for the purposes of Article 11 hereof. The
proceeds of policies providing coverage for leasehold improvements installed in
the Premises shall be paid to Tenant, to be used by Tenant to perform the
Improvements Restoration Work and/or the Improvements Demolition Work (as the
case may be), to the extent Tenant is to perform the same, and otherwise to be
retained by Tenant. If this lease shall be terminated by Landlord or Tenant
pursuant to this Article 19, then Tenant shall retain the proceeds of policies
providing coverage for leasehold improvements. Tenant shall be solely
responsible for (1) the amount of any deductible under the policy insuring the
leasehold improvements and (2) the amount, if any, by which the cost of the
Improvements Restoration Work and/or the Improvements Demolition Work (as the
case may be) exceeds the available insurance proceeds therefor.
19.02. If all or part of the Premises shall be damaged or destroyed or
rendered completely or partially "UNTENANTABLE" (which, for purposes of this
lease shall mean unusable for the conduct of Tenant's business in a manner which
is consistent with Tenant's use within the thirty (30) day period prior to the
occurrence of such casualty and Tenant ceases the operation of its business
within the Premises or the affected portion thereof) or inaccessible on account
of fire or other casualty, the Fixed Rent and the Additional Charges under
Article 3 hereof shall be abated in the proportion that the untenantable area of
the Premises bears to the total area of the Premises for the period from the
date of the damage or destruction to
(a) the date by which Tenant, acting diligently following
Landlord's (or the Board of Managers') restoration of the damage to the core and
shell of the Premises (exclusive of the leasehold improvements, Tenant's
improvements and betterments and Tenant's Property), has or could have restored
the leasehold improvements, Tenant's improvements and betterments and Tenant's
Property and re-commenced the conduct of business from the affected portion of
the Premises, or
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(b) if the Building or the Unit is so damaged or destroyed
that the Premises are rendered untenantable due to insufficient access to the
Premises, the date on which the Premises shall be made tenantable and sufficient
access thereto shall be available;
PROVIDED, HOWEVER, in the case of (a) or (b) above, should Tenant or any of its
subtenants reoccupy a portion of the Premises for the conduct of business prior
to the date that the Premises are substantially repaired or made tenantable, the
Fixed Rent and the Additional Charges allocable to such reoccupied portion,
based upon the proportion which the area of the reoccupied portion of the
Premises bears to the total area of the Premises, shall be payable by Tenant
from the date of such occupancy. In the event that fifty (50%) percent or more
of the rentable area of any floor of the Premises is rendered untenantable and
in Tenant's good faith judgment Tenant cannot use the tenantable portion of such
floor for the conduct of Tenant's business in a manner which is consistent with
Tenant's use within the thirty (30) day period prior to the occurrence of such
casualty and Tenant ceases the operation of its business within the entire
floor, such entire floor shall be deemed to be untenantable. In the event that
fifty (50%) percent or more of the rentable area of the entire Premises is
rendered untenantable and in Tenant's good faith judgment Tenant cannot use the
tenantable portion of the Premises for the conduct of Tenant's business in a
manner which is consistent with Tenant's use immediately prior to the occurrence
of such casualty and Tenant ceases the operation of its business within the
entire Premises, the entire Premises shall be deemed to be untenantable.
19.03. If (a) the Building shall be seventy-five (75%) percent or more
damaged or destroyed by fire or other casualty, or if the Building or the Unit
shall be so damaged or destroyed by fire or other casualty that its repair or
restoration requires more than fifteen (15) months or the expenditure of more
than forty (40%) percent of the full insurable value of the Building or the
Unit, as the case may be, immediately prior to the casualty (as estimated by a
reputable contractor, registered architect or licensed professional engineer
designated by Landlord or the Board of Managers [herein called "LANDLORD'S
EXPERT"], subject to Tenant's approval, which approval Tenant shall not
unreasonably withhold, condition or delay) or (b) if the Premises shall be
totally or substantially (I.E., for this purpose, more than fifty (50%) percent)
damaged or destroyed and it would require ninety (90) days or more to restore
the Building and the core and shell of the Premises during the last two (2)
years of the term of this lease, as same may have been extended (as estimated in
any such case by Landlord's Expert), and, if the circumstances set forth in
clause (a) above have occurred, Landlord shall have canceled leases (including
this lease) covering at least seventy-five (75%) percent of the office space in
the Unit not occupied by Landlord or its Affiliates pursuant to which it may,
under such circumstances, exercise a right of termination, then in any such case
Landlord may terminate this lease by giving Tenant notice to such effect (herein
called "LANDLORD'S CASUALTY TERMINATION NOTICE") as soon as practicable under
the circumstances and in any event within one hundred five (105) days after the
date of the casualty, and upon the giving of such notice this lease and the term
and estate hereby
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granted shall terminate as of the date set forth in such notice (PROVIDED,
HOWEVER, that if Tenant is then in occupancy of the Premises, Tenant shall have
the right, to be exercised by written notice to Landlord given within thirty
(30) days after Tenant's receipt of Landlord's termination notice, to extend the
date set forth in Landlord's termination notice to a date up to one hundred
twenty (120) days after the giving of Landlord's termination notice).
19.04. (a) In the case of any damage or destruction mentioned in
this Article 19, Tenant may terminate this lease by notice given to Landlord in
accordance with the last sentence of this Section 19.04(a) if Landlord or the
Board of Managers shall not have completed the making of the required repairs
and restored and rebuilt the Building and the core and shell of the Premises
within fifteen (15) months from the date of such damage or destruction (herein
called the "RESTORATION COMPLETION DATE"; PROVIDED, HOWEVER, that if such damage
or destruction shall occur and render untenantable twenty-five (25%) percent or
more of the rentable area of the Premises at a time when there shall be less
than two (2) years remaining in the term of this lease and Tenant shall not have
exercised any right that it may have pursuant to the terms of this lease to
extend the term of this lease, the Restoration Completion Date shall mean the
date that is one hundred twenty (120) days from the date of such damage or
destruction), or within such period after such date as shall equal the aggregate
period Landlord may have been delayed in doing so by reasons of Force Majeure
Causes. Except as expressly provided in this Section 19.04, Tenant shall not be
entitled to terminate this lease and no damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the core and shell of the
Premises or of the Building pursuant to this Article l9. Landlord shall use all
reasonable efforts to make such repair or restoration (or cause the Board of
Managers to make such repair or restoration) diligently and in a workmanlike
manner and in such manner as to not unreasonably interfere with Tenant's use and
occupancy of the Premises; PROVIDED, HOWEVER, that: (i) Landlord or the Board of
Managers shall not be required to do such repair or restoration work on an
overtime basis except to the extent that the cost of such overtime work would be
covered by Landlord's (or the Board of Managers') insurance or (ii) upon
Tenant's written request and agreement to bear the incremental additional cost
of same, Landlord or the Board of Managers shall perform the repair and
restoration of the core and shell of the Premises on an overtime basis. In the
event that Tenant becomes entitled to terminate this lease and the term and
estate hereby granted pursuant to the provisions of the first sentence of this
Section 19.04(a), Tenant may do so by giving a notice to such effect to Landlord
at any time following the date on which Tenant becomes so entitled but prior to
the date on which Landlord completes its repair and restoration obligations set
forth in this Article 19, and unless Landlord shall complete its repair and
restoration obligations set forth in this Article 19 prior to the expiration of
thirty (30) days from Landlord's receipt of such notice, this lease and the term
and estate hereby granted shall terminate as of such thirtieth (30th) day with
the same force and effect as if such date were the Expiration Date specified
herein.
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(b) Within seventy-five (75) days after the occurrence of
any such damage or destruction, Landlord shall give Tenant notice of the date
that, in the good faith judgment of Landlord's Expert, it estimates it or the
Board of Managers shall be able to substantially complete the required repairs
and restorations (herein called the "ANTICIPATED COMPLETION DATE") subject to
delays for any of the causes described in Section 35.04 hereof. If Landlord
shall fail to timely deliver such notice of the Anticipated Completion Date and
such failure shall continue for ten (10) Business Days after Landlord's receipt
of written notice from Tenant making specific reference to the right of Tenant
contained in this sentence and if Landlord fails to deliver notice of the
Anticipated Completion Date prior to the expiration of such ten (10) day period,
or if the Anticipated Completion Date shall be after the Restoration Completion
Date, or in the event it is determined pursuant to expedited arbitration
conducted in accordance with the provisions of Section 39.04 hereof that based
upon Landlord's progress the restoration could not be completed by the
Anticipated Completion Date even with the use of overtime, Tenant shall have the
right, within sixty (60) days after the notice of the Anticipated Completion
Date has failed to be delivered or is given, as applicable, or within thirty
(30) days after such determination is made, to terminate this lease by giving
thirty (30) days notice of such termination to Landlord, and on the date set
forth in such notice, which shall not in any event be more than ninety (90) days
after the giving of such notice, this lease will terminate as if such date were
the Expiration Date specified herein. If Tenant does not give such termination
notice within said sixty (60) or thirty (30) day period, as applicable, then the
Restoration Completion Date provided for herein shall automatically be deemed
extended to the date which is thirty (30) days following the Anticipated
Completion Date set forth in Landlord's notice or determined in such expedited
arbitration proceeding, as applicable. In no event shall Landlord or the Board
of Managers be liable to Tenant in the event the restoration is not completed on
the Anticipated Completion Date (as extended for any of the causes described in
Section 35.04 hereof) and Tenant's sole remedy shall be the termination right
herein provided.
19.05. Landlord and Tenant shall cooperate with each other in
connection with the collection of any insurance proceeds payable in respect of
any casualty to the Building and/or Tenant's Property and in the performance of
their respective restoration obligations, and shall comply with all reasonable
requests made by each other in connection therewith, including, without
limitation, the execution of any affidavits required by the applicable insurance
companies.
19.06. Except to the extent expressly set forth in this Article 19,
Tenant shall not be entitled to terminate this lease and Landlord and the Board
of Managers shall have no liability to Tenant for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Premises or of the Building pursuant to this Article 19.
19.07. Landlord will not carry insurance of any kind on Tenant's
Property or on Tenant's improvements and betterments or leasehold improvements
and shall not
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be obligated to repair any damage to or replace any of the foregoing and Tenant
agrees to look solely to its insurance for recovery of any damage to or loss of
any of the foregoing. If Tenant shall fail to maintain such insurance, and such
failure shall continue for ten (10) Business Days after written notice by
Landlord to Tenant specifying Landlord's self-help right if Tenant fails to
remedy such failure, Landlord, at Landlord's election, shall have the right (in
its sole discretion and without any liability whatsoever if Landlord elects not
to do so) to obtain such insurance on Tenant's Property, Tenant's improvements
and betterments and the leasehold improvements and the reasonable, actual,
out-of-pocket cost thereof shall be Additional Charges under this lease and
payable by Tenant to Landlord within thirty (30) days of request therefor.
19.08. The provisions of this Article 19 shall be deemed an express
agreement governing any case of damage or destruction of the Premises by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, providing for such a contingency in the absence of an express agreement,
and any other law of like import, now or hereafter in force, shall have no
application in such case.
ARTICLE 20
EMINENT DOMAIN
20.01. If the whole of the Building, the Unit or the Premises shall be
taken by condemnation or in any other manner for any public or quasi-public use
or purpose, this lease and the term and estate hereby granted shall terminate as
of the date of vesting of title on such taking (herein called "DATE OF THE
TAKING"), and the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such date.
20.02. If more than fifty (50%) percent of the Unit shall be so taken,
this lease shall be unaffected by such taking, except that (a) Landlord may, at
its option, provided that Landlord shall terminate leases of no less than
seventy-five (75%) percent of the office space then leased to tenants in the
Unit other than Landlord and its Affiliates upon which the effect of such taking
shall have been substantially similar to the effect of same upon the Premises,
terminate this lease by giving Tenant notice to that effect within sixty (60)
days after the Date of the Taking, and (b) if twenty (20%) percent or more of
the Premises shall be so taken and the remaining area of the Premises shall not
be sufficient, in Tenant's reasonable judgment, for Tenant to continue the
operation of its business, or if permanent access to the Premises shall be
taken, Tenant may terminate this lease by giving Landlord notice to that effect
within ninety (90) days after the Date of the Taking. This lease shall terminate
on the date set forth in such notice from Landlord or Tenant to the other, which
date shall be no less than sixty (60) nor more than ninety (90) days after the
date such notice is given, and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of such termination date, except that with respect to
any portion of the Premises which is the subject of the taking, if earlier, as
of the Date of the Taking. Upon such partial taking and this lease continuing in
force as to any part of the
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Premises, the Fixed Rent and Additional Charges shall be adjusted according to
the rentable area remaining.
20.03. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom for any estate
vested in Tenant by this lease and Tenant shall receive no part of such award
except as hereinafter expressly provided in this Article 20. Tenant hereby
expressly assigns to Landlord all of its right, title and interest in and to
every such award or payment; PROVIDED, HOWEVER, that Tenant shall have the right
to make a claim for its moving expenses and for any of Tenant's Property and any
of Tenant's furniture, fixtures and equipment taken (except to the extent of the
unamortized balance of the amount of any allowance or credit therefor granted by
Landlord) and, if the provisions of Section 20.05 hereof apply, for Landlord's
property that Tenant is required to restore.
20.04. If the temporary use or occupancy of all or any part of the
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose during the term of this lease, Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
or payment for such taking which represents compensation for the use and
occupancy of the Premises, for the taking of Tenant's Property and Tenant's
furniture, fixtures and equipment (except to the extent of the unamortized
balance of the amount of any allowance or credit therefor granted by Landlord),
and for moving expenses, and, if the provisions of Section 20.05 hereof apply,
for Landlord's property that Tenant is required to restore, and Landlord shall
be entitled to receive that portion which represents reimbursement for the cost
of restoration of the Premises. This lease shall be and remain unaffected by
such taking and Tenant shall continue to be responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking and shall continue to pay in full the Fixed Rent and Additional Charges
when due. If the period of temporary use or occupancy shall extend beyond the
Expiration Date of this lease, that part of the award which represents
compensation for the use and occupancy of the Premises (or a part thereof) shall
be divided between Landlord and Tenant so that Tenant shall receive so much
thereof as represents the period up to and including such Expiration Date and
Landlord shall receive so much thereof as represents the period after such
Expiration Date. All monies paid as, or as part of, an award for temporary use
and occupancy for a period beyond the date to which the Fixed Rent and
Additional Charges have been paid shall be received, held and applied by
Landlord as a trust fund for payment of the Fixed Rent and Additional Charges
becoming due hereunder.
20.05. In the event of a taking of less than the whole of the Building
and/or the Land which does not result in termination of this lease, or in the
event of a taking for a temporary use or occupancy of all or any part of the
Premises which does not result in a termination of this lease, (a) Landlord, at
its expense, and whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair the remaining parts
of the Building and the Premises (other than those
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parts of the Premises which are deemed Landlord's property pursuant to Section
12.01 hereof and Tenant's Property) to substantially their former condition to
the extent that the same may be feasible (subject to reasonable changes which
Landlord shall deem desirable) and so as to constitute a complete and rentable
Building and Premises and (b) Tenant, at its expense, and whether or not any
award or awards shall be sufficient for the purpose, shall proceed with
reasonable diligence (i) at Tenant's option, to repair all or such portions of
Tenant's Property as Tenant may elect to repair and (ii) at Tenant's option, to
be exercised separately with respect to each floor of the Premises, either:
(A) repair the remaining parts of the Premises on
such floor (or, in the case of a floor on which Tenant is not a full-floor
tenant, the portion of such floor demised to Tenant) which are deemed
Landlord's property pursuant to Section 12.01 hereof as shall, at a
minimum, result in a usable open floor plan, including, without limitation,
ceiling, lighting and floor coverings and any and all parts of the Premises
which are deemed Landlord's property pursuant to Section 12.01 and which
are required to be installed therein to permit such floor to be used in
compliance with applicable Legal Requirements (herein collectively called
"TENANT'S CONDEMNATION RESTORATION WORK"); or
(B) demolish the parts of the Premises located on
such floor (or, in the case of a floor on which Tenant is not a full-floor
tenant, the portion of such floor demised to Tenant) which are deemed
Landlord's property pursuant to Section 12.01 hereof (herein called
"TENANT'S CONDEMNATION DEMOLITION WORK").
ARTICLE 21
SURRENDER
21.01. On the Expiration Date or upon any earlier termination of this
lease, or upon any reentry by Landlord upon the Premises, Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this lease, and Tenant shall
remove all of the Tenant's Property therefrom except as otherwise expressly
provided in this lease and all of Tenant's Special Alterations therefrom which
Tenant is required to remove subject to and in accordance with Section 12.01(a)
hereof.
21.02. No act or thing done by Landlord or its agents shall be deemed
an acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord and consented
to by each Superior Lessor and Superior Mortgagee whose lease or mortgage, as
the case may be, provides that no such surrender may be accepted without its
consent.
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ARTICLE 22
CONDITIONS OF LIMITATION
22.01. This lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant, or any guarantor of Tenant's obligations
under this lease, shall make an assignment for the benefit of creditors, or
shall file a voluntary petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency shall be filed
against Tenant or such guarantor under any bankruptcy or insolvency law, or
whenever a petition shall be filed by or against Tenant or such guarantor under
the reorganization provisions of the United States Bankruptcy Code or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant, or such guarantor, under the arrangement provisions of the United States
Bankruptcy Code or under the provisions of any law of like import, or whenever a
permanent receiver of Tenant, or such guarantor, or of or for the property of
Tenant, or such guarantor, shall be appointed, then Landlord (a) if such event
occurs without the acquiescence of Tenant, or such guarantor, as the case may
be, at any time after the event continues for ninety (90) days, or (b) in any
other case at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the term of this lease at the expiration of five (5)
days from the date of service of such notice of intention, and upon the
expiration of said five (5) day period this lease and the term and estate hereby
granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day were the expiration date of this
lease, but Tenant shall remain liable for damages as provided in Article 24
hereof.
22.02. This lease and the term and estate hereby granted are subject
to the further limitations that:
(a) if Tenant shall default in the payment of any Fixed Rent
or Additional Charges, and such default shall continue for ten (10) days after
written notice thereof has been given to Tenant, or
(b) if Tenant shall, whether by action or inaction, be in
default of any of its obligations under this lease (other than a default in the
payment of Fixed Rent or Additional Charges) and such default shall continue and
not be remedied as soon as practicable and in any event within thirty (30) days
after Landlord shall have given to Tenant a written notice specifying the same,
or, in the case of a default which cannot with due diligence be cured within a
period of thirty (30) days and the continuance of which for the period required
for cure will not (i) subject Landlord or any Superior Lessor or any Superior
Mortgagee to prosecution for a crime or any other fine or charge, (ii) subject
the Premises or any part thereof or the Building or Land, or any part thereof,
to being condemned or vacated, (iii) subject the Building or Land, or any part
thereof, to any lien or encumbrance which is not removed or bonded within the
time period required under this lease, or (iv) result in the termination of any
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Superior Lease or foreclosure of any Superior Mortgage, if Tenant shall not (A)
within said thirty (30) day period advise Landlord of Tenant's intention to take
all steps reasonably necessary to remedy such default, (B) duly commence within
said thirty (30) day period, and thereafter diligently prosecute to completion
all steps reasonably necessary to remedy the default and (C) complete such
remedy within a reasonable time after the date of said notice of Landlord, or
(c) if any event shall occur or any contingency shall arise
whereby this lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 7 hereof, then in any of said cases Landlord may give to Tenant a notice
of intention to end the term of this lease at the expiration of five (5) days
from the date of the service of such notice of intention, and upon the
expiration of said five (5) days this lease and the term and estate hereby
granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day was the day herein definitely
fixed for the end and expiration of this lease, but Tenant shall remain liable
for damages as provided in Article 24 hereof. All notices given under this
Section 22.02 shall contain a statement in bold type and capital letters stating
"THIS IS A DEFAULT NOTICE" as a condition to the effectiveness thereof.
22.03. (a) If Tenant shall have assigned its interest in this
lease, and this lease shall thereafter be disaffirmed or rejected in any
proceeding under the United States Bankruptcy Code or under the provisions of
any Federal, state or foreign law of like import, or in the event of termination
of this lease by reason of any such proceeding, the assignor or any of its
predecessors in interest under this lease, upon request of Landlord given within
ninety (90) days after such disaffirmance or rejection shall (a) pay to Landlord
all Fixed Rent and Additional Charges then due and payable to Landlord under
this lease to and including the date of such disaffirmance or rejection and (b)
enter into a new lease as lessee with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance or rejection and ending
on the Expiration Date, unless sooner terminated as in such lease provided, at
the same Fixed Rent and Additional Charges and upon the then executory terms,
covenants and conditions as are contained in this lease, except that (i) the
rights of the lessee under the new lease, shall be subject to any possessory
rights of the assignee in question under this lease and any rights of persons
claiming through or under such assignee, (ii) such new lease shall require all
defaults existing under this lease to be cured by the lessee with reasonable
diligence, and (iii) such new lease shall require the lessee to pay all
Additional Charges which, had this lease not been disaffirmed or rejected, would
have become due after the effective date of such disaffirmance or rejection with
respect to any prior period. If the lessee shall fail or refuse to enter into
the new lease within ten (10) days after Landlord's request to do so, then in
addition to all other rights and remedies by reason of such default, under this
lease, at law or in equity, Landlord shall have the same rights and remedies
against the lessee as if the lessee had entered into such new lease and such new
lease had thereafter
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been terminated at the beginning of its term by reason of the default of the
lessee thereunder.
(b) If pursuant to the United States Bankruptcy Code Tenant
is permitted to assign this lease in disregard of the restrictions contained in
Article 7 hereof (or if this lease shall be assumed by a trustee), the trustee
or assignee shall cure any default under this lease and shall provide adequate
assurance of future performance by the trustee or assignee including (i) of the
source of payment of rent and performance of other obligations under this lease
(for which adequate assurance shall mean the deposit of cash security with
Landlord in an amount equal to the sum of one (1) year's Fixed Rent then
reserved hereunder plus an amount equal to all Additional Charges payable under
Article 3 hereof for the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall be held by
Landlord, without interest, for the balance of the term as security for the full
and faithful performance of all of the obligations under this lease on the part
of Tenant yet to be performed) and that any such assignee of this lease shall
have a net worth exclusive of good will, computed in accordance with GAAP, equal
to at least ten (10) times the aggregate of the annual Fixed Rent reserved
hereunder plus all Additional Charges for the preceding calendar year as
aforesaid and (ii) that the use of the Premises shall in no way diminish the
reputation of the Building as a first-class office building or impose any
additional burden upon the Building or increase the services to be provided by
Landlord. If all defaults are not cured and such adequate assurance is not
provided within sixty (60) days after there has been an order for relief under
the Bankruptcy Code, then this lease shall be deemed rejected, Tenant or any
other person in possession shall vacate the Premises, and Landlord shall be
entitled to retain any rent or security deposit previously received from Tenant
and shall have no further liability to Tenant or any person claiming through
Tenant or any trustee. If Tenant receives or is to receive any valuable
consideration for such an assignment of this lease, such consideration, after
deducting therefrom (A) the brokerage commissions, if any, and other expenses
reasonably incurred by Tenant for such assignment and (B) any portion of such
consideration reasonably designed by the assignee as paid for the purchase of
Tenant's Property in the Premises, shall be and become the sole exclusive
property of Landlord and shall be paid over to Landlord directly by such
assignee. If Tenant's trustee, Tenant or Tenant as debtor-in-possession assumes
this lease and proposes to assign the same (pursuant to Title 11 U.S.C. Section
365, as the same may be amended) to any person, including, without limitation,
any individual, partnership or corporate entity, who shall have made a bona fide
offer to accept an assignment of this lease on terms acceptable to the trustee,
Tenant or Tenant as debtor-in-possession, then notice of such proposed
assignment, setting forth (1) the name and address of such person, (2) all of
the terms and conditions of such offer, and (3) the adequate assurance to be
provided Landlord to assure such person's future performance under this lease,
including, without limitation, the assurances referred to in Title 11 U.S.C.
Section 365(b)(3) (as the same may be amended), shall be given to Landlord by
the trustee, Tenant or Tenant as debtor-in-possession no later than twenty (20)
days after receipt by the trustee, Tenant or Tenant as debtor-in-possession of
such offer, but in any event no
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later than ten (10) days prior to the date that the trustee, Tenant or Tenant as
debtor-in-possession shall make application to a court of competent jurisdiction
for authority and approval to enter into such assignment and assumption, and
Landlord shall thereupon have the prior right and option, to be exercised by
notice to the trustee, Tenant or Tenant as debtor-in-possession, given at any
time prior to the effective date of such proposed assignment, to accept an
assignment of this lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such person, less any
brokerage commissions which may be payable out of the consideration to be paid
by such person for the assignment of this lease.
ARTICLE 23
REENTRY BY LANDLORD
23.01. If this lease shall terminate as provided in Article 22 hereof,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter reenter the Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or
otherwise as permitted by law (but in no event by forcible entry), without being
liable to indictment, prosecution or damages therefor (except to the extent
resulting from Landlord's negligence or willful misconduct), and may repossess
the same, and may remove any person therefrom, to the end that Landlord may
have, hold and enjoy the Premises. The word "REENTER," as used herein, is not
restricted to its technical legal meaning. If this lease is terminated under the
provisions of Article 22 hereof, or if Landlord shall reenter the Premises under
the provisions of this Article, or in the event of the termination of this
lease, or of reentry, by or under any summary dispossess or other proceeding or
action or any provision of law by reason of default hereunder on the part of
Tenant, Tenant shall thereupon pay to Landlord the Fixed Rent and Additional
Charges payable up to the time of such termination of this lease, or of such
recovery of possession of the Premises by Landlord, as the case may be, and
shall also pay to Landlord damages as provided in Article 24 hereof.
23.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
23.03. If this lease shall terminate under the provisions of Article
22 hereof, or if Landlord shall reenter the Premises under the provisions of
this Article 23, or in the event of the termination of this lease, or of
reentry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all monies, if any,
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paid by Tenant to Landlord, whether as advance rent, security or otherwise, but
such monies shall be credited by Landlord against any Fixed Rent or Additional
Charges due from Tenant at the time of such termination or reentry or, at
Landlord's option, against any damages payable by Tenant under Article 24 hereof
or pursuant to law, with the balance, if any, to be promptly refunded to Tenant.
ARTICLE 24
DAMAGES
24.01. If this lease is terminated under the provisions of Article 22
hereof, or if Landlord shall reenter the Premises under the provisions of
Article 23 hereof, or in the event of the termination of this lease, or of
reentry, by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this
lease or at the time of any such reentry by Landlord, as the case may be,
represents the then value of the excess, if any (assuming a discount at a rate
per annum equal to the interest rate then applicable to 7-year Federal Treasury
Bonds), of (i) the aggregate amount of the Fixed Rent and the Additional Charges
under Article 3 hereof which would have been payable by Tenant (conclusively
presuming the average monthly Additional Charges under Article 3 hereof to be
the same as were payable for the last twelve (12) calendar months, or if less
than twelve (12) calendar months have then elapsed since the Commencement Date,
all of the calendar months immediately preceding such termination or reentry)
for the period commencing with such earlier termination of this lease or the
date of any such reentry, as the case may be, and ending with the date
contemplated as the expiration date hereof if this lease had not so terminated
or if Landlord had not so reentered the Premises, over (ii) the aggregate fair
market rental value of the Premises for the same period, or
(b) sums equal to the Fixed Rent and the Additional Charges
under Article 3 hereof which would have been payable by Tenant had this lease
not so terminated, or had Landlord not so reentered the Premises, payable upon
the due dates therefor specified herein following such termination or such
reentry and until the date contemplated as the expiration date hereof if this
lease had not so terminated or if Landlord had not so reentered the Premises;
PROVIDED, HOWEVER, that if Landlord shall relet the Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the reasonable and
actual expenses incurred or paid by Landlord in terminating this lease or in
reentering the Premises and in securing possession thereof, as well as the
reasonable and actual expenses of reletting, including, without limitation,
altering and preparing the
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Premises for new tenants, brokers' commissions, reasonable legal fees, and all
other customary and reasonable expenses properly chargeable against the Premises
and the rental therefrom, it being understood that any such reletting may be for
a period shorter or longer than the remaining term of this lease; but in no
event shall Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in
any suit for the collection of damages pursuant to this subdivision to a credit
in respect of any net rents from a reletting, except to the extent that such net
rents are actually received by Landlord. If the Premises or any part thereof
should be relet in combination with other space, then proper apportionment on a
square foot basis shall be made of the rent received from such reletting and of
the expenses of reletting.
If the Premises or any part thereof be relet by Landlord for the unexpired
portion of the term of this lease, or any part thereof, before presentation of
proof of such damages to any court, commission or tribunal, the amount of rent
reserved upon such reletting shall, prima facie, be the fair and reasonable
rental value for the Premises, or part thereof, so relet during the term of the
reletting, provided that such reletting shall constitute a bona-fide arms-length
third party transaction. Notwithstanding anything to the contrary contained in
this lease, Landlord shall use reasonable efforts to relet the Premises, either
in the name of Landlord or otherwise, to such tenant or tenants, for such term
or terms ending before, on or after the Expiration Date, at such rental or
rentals and upon such other conditions (that may include concessions and free
rent periods) as Landlord may reasonably determine, PROVIDED, HOWEVER, that
Landlord shall not be liable in any way whatsoever for its failure to relet the
Premises or any part thereof, or if the Premises or any part thereof are relet,
for its failure to collect the rent under such reletting, and no such failure to
relet or failure to collect rent shall release or affect Tenant's liability for
damages or otherwise under this lease.
24.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this lease would have expired if
it had not been so terminated under the provisions of Article 22 hereof, or had
Landlord not reentered the Premises. Nothing herein contained shall be construed
to limit or preclude recovery by Landlord against Tenant of any sums or damages
to which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
Nothing herein contained shall be construed to limit or prejudice the right of
Landlord to prove for and obtain as damages by reason of the termination of this
lease or reentry on the Premises for the default of Tenant under this lease an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved whether or not such amount be greater than any of the sums referred to in
Section 24.01 hereof. Notwithstanding any provisions of this lease to the
contrary, Landlord shall not be liable to Tenant, and Tenant shall not be liable
to Landlord, for consequential damages of any
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kind or nature, even if arising from any act, omission or negligence of such
party or from the breach by such party of its obligations under this lease;
PROVIDED, HOWEVER, that the foregoing shall not be deemed to limit Tenant's
obligation to reimburse Landlord for any damages as expressly required pursuant
to Article 34 hereof, regardless of whether any court or arbitrator awarding
such damages shall regard or classify same as consequential damages.
24.03. In addition, if this lease is terminated under the provisions
of Article 22 hereof, or if Landlord shall reenter the Premises under the
provisions of Article 23 hereof, Tenant agrees that:
(a) the Premises then shall be in the condition in which
Tenant has agreed to surrender the same to Landlord at the expiration of the
term hereof;
(b) Tenant shall have performed prior to any such
termination any covenant of Tenant contained in this lease for the making of any
Alterations or for restoring or rebuilding the Premises or the Building, or any
part thereof; and
(c) for the breach of any covenant of Tenant set forth above
in this Section 24.03, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the cost of performing such covenant (as estimated
by a reputable independent contractor selected by Landlord).
24.04. In addition to any other remedies Landlord may have under this
lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under Article 22 hereof, if any Fixed Rent, Additional Charges or
damages payable hereunder by Tenant to Landlord are not paid within three (3)
Business Days after the due date thereof, the same shall bear interest at the
Base Rate plus five (5%) percent, from the due date thereof until paid, and the
amount of such interest shall be an Additional Charge hereunder. For the
purposes of this Section 24.04, a rent bill sent by first class mail, to the
address to which notices are to be given under this lease, shall be deemed a
proper demand for the payment of the amounts set forth therein.
ARTICLE 25
AFFIRMATIVE WAIVERS
25.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Premises or to have a continuance of this lease after
being dispossessed or ejected therefrom by process of law or under the terms of
this lease or after the termination of this lease as provided in this lease.
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25.02. If Tenant shall be in default, after the expiration of any
applicable notice and grace periods, in the payment of Fixed Rent or Additional
Charges, Tenant waives Tenant's right, if any, to designate the items to which
any payments made by Tenant are to be credited, and Tenant agrees that Landlord
may apply any payments made by Tenant to such items as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items which any such payments shall be credited.
25.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage, and any emergency
and other statutory remedy with respect thereto.
25.04. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Premises
(other than compulsory counterclaims), provided that nothing herein shall be
deemed to preclude Tenant from bringing a separate action for any claim that
Tenant may have hereunder.
ARTICLE 26
NO WAIVERS
26.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this lease or of the right to exercise such election, and
such right to insist upon strict performance shall continue and remain in full
force and effect with respect to any subsequent breach, act or omission. The
receipt by Landlord or tender by Tenant of Fixed Rent or partial payments
thereof or Additional Charges or partial payments thereof with knowledge of
breach by Tenant or Landlord, as the case may be, of any obligation of this
lease shall not be deemed a waiver of such breach.
26.02. If there be any agreement between Landlord and Tenant providing
for the cancellation of this lease upon certain provisions or contingencies
and/or an agreement for the renewal hereof at the expiration of the term, the
right to such renewal or the execution of a renewal agreement between Landlord
and Tenant prior to the expiration of the term shall not be considered an
extension thereof or a vested right in Tenant to such further term so as to
prevent Landlord from canceling this lease and any such extension thereof during
the remainder of the original term; such privilege, if and when so exercised by
Landlord, shall cancel and terminate this lease and any such renewal or
extension; any right herein contained on the part of Landlord to cancel this
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lease shall continue during any extension or renewal hereof; any option on the
part of Tenant herein contained for an extension or renewal hereof shall not be
deemed to give Tenant any option for a further extension beyond the first
renewal or extended term, unless such additional options are expressly provided
for herein.
ARTICLE 27
CURING TENANT'S DEFAULTS
27.01. If Tenant shall default in the performance of any of Tenant's
obligations under this lease, Landlord, the Board of Managers, any Superior
Lessor or any Superior Mortgagee without thereby waiving such default, may (but
shall not be obligated to) perform the same for the account and at the expense
of Tenant (provided such expense is commercially reasonable), without notice in
a case of emergency, and in any other case only if such default continues after
written notice and the expiration of the applicable grace period, if any. If
Landlord effects such cure by bonding any lien which Tenant is required to bond,
Tenant shall obtain and substitute a bond for Landlord's bond at its sole cost
and expense and reimburse Landlord for the commercially reasonable cost of
Landlord's bond.
27.02. Bills for any reasonable actual out-of-pocket expenses incurred
by Landlord, the Board of Managers or any Superior Lessor or any Superior
Mortgagee in connection with any such performance by it for the account of
Tenant, and bills for all reasonable actual out-of-pocket costs, expenses and
disbursements of every kind and nature whatsoever, including reasonable counsel
fees, involved in collecting or endeavoring to collect the Fixed Rent or
Additional Charges or any part thereof or enforcing or endeavoring to enforce
any rights against Tenant or Tenant's obligations hereunder, under or in
connection with this lease or pursuant to law, including any such cost, expense
and disbursement involved in instituting and prosecuting summary proceedings or
in recovering possession of the Premises after default by Tenant or upon the
expiration or sooner termination of this lease, and interest on all sums
advanced by Landlord, the Board of Managers or such Superior Lessor or Superior
Mortgagee under this Section 27.02 and/or Section 27.01 hereof (at the Interest
Rate or the maximum rate permitted by law, whichever is less) may be sent by
Landlord, the Board of Managers or such Superior Lessor or Superior Mortgagee to
Tenant monthly, or immediately, at its option, and such amounts shall be due and
payable in accordance with the terms of such bills, but not sooner than thirty
(30) days after the rendering of such bills, together with reasonable
documentation with respect to such expenses. Notwithstanding anything to the
contrary contained in this Section, Tenant shall have no obligation to pay the
costs, expenses or disbursements of Landlord, the Board of Managers, or any
Superior Lessor or Superior Mortgagee in any proceeding in which there shall
have been rendered a final judgment against such party, and the time for
appealing such final judgment shall have expired.
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ARTICLE 28
BROKER
28.01. Landlord and Tenant each covenant, warrant and represent that
no broker was instrumental in bringing about or consummating this lease and that
it had no conversations or negotiations with any broker concerning the leasing
of the Premises to Tenant. Tenant agrees to indemnify and hold harmless Landlord
against and from any claims for any brokerage commissions and all costs,
expenses and liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses, arising out of any conversations or
negotiations had by Tenant with any broker. Landlord agrees to indemnify and
hold harmless Tenant against and from any claims for any brokerage commissions
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, arising out of
conversations or negotiations had by Landlord with any broker.
ARTICLE 29
NOTICES
29.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to this lease or pursuant to any applicable law or requirement of public
authority (collectively, "NOTICES") shall be in writing (whether or not so
stated elsewhere in this lease) and shall be deemed to have been properly given,
rendered or made only if sent by (a) registered or certified mail, return
receipt requested, posted in a United States post office station or letter box
in the continental United States, (b) nationally recognized overnight courier
(E.G., Federal Express) with verification of delivery requested or (c) personal
delivery with verification of delivery requested, in any of such cases addressed
as follows:
If to Landlord:
BP 399 Park Avenue LLC
c/o Boston Properties, Inc.
599 Lexington Avenue
New York, New York 10022
Attention: Mr. Robert Selsam
with a copy to:
Boston Properties, Inc.
599 Lexington Avenue
New York, New York 10022
Attention: Matthew W. Mayer, Esq.
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with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Benjamin F. Needell, Esq.
If to the Board of Managers:
The Board of Managers of The 399 Park Avenue
Condominium
c/o Boston Properties, Inc.
599 Lexington Avenue
New York, New York 10022
Attention: Mr. Robert Selsam
and if to Tenant as follows:
Citigroup, Inc.
Corporate Realty Services
One Court Square, 8th Floor
Long Island City, New York 11120
Attention: Director of Real Estate
and
Citigroup, Inc.
599 Lexington Avenue, 25th Floor
New York, New York 10022
Attention: General Counsel (Real Estate) and Associate
General Counsel (Real Estate)
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Dean Stiffle, Esq.
and shall be deemed to have been given, rendered or made (i) if mailed, on the
second Business Day following the day so mailed, unless mailed to a location
outside of the State of New York, in which case it shall be deemed to have been
given, rendered or made on the third (3rd) Business Day after the day so mailed,
(ii) if sent by nationally recognized overnight courier, on the first Business
Day following the day sent or (iii) if sent by
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personal delivery, when delivered and receipted by the party to whom addressed
(or on the date that such receipt is refused, if applicable). Either party may,
by notice as aforesaid, designate a different address or addresses for notices
intended for it.
29.02. Notices hereunder from Landlord may be given by Landlord's
managing agent, if one exists, or by Landlord's attorney. Notices hereunder from
Tenant may be given by Tenant's attorney.
29.03. In addition to the foregoing, Landlord, the Board of Managers
or Tenant may, from time to time, request in writing that the other party serve
a copy of any notice on one other person or entity designated in such request,
and Landlord shall also have the right to request in writing that Tenant serve a
copy of any notice on the Board of Managers or any Superior Lessor or Superior
Mortgagee, such service in any case to be effected as provided in Section 29.01
or 29.02 hereof.
29.04. All notices given by Landlord under Section 22.02 hereof shall
contain a statement in bold type and capital letters stating "THIS IS A DEFAULT
NOTICE" as a condition to the effectiveness thereof.
ARTICLE 30
ESTOPPEL CERTIFICATES
30.01. Each party agrees, at any time and from time to time, as
requested by the other party with not less than ten (10) Business Days' prior
notice, to execute and deliver to the other a statement certifying that this
lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
signer, the other party is in default in performance of any of its obligations
under this lease, and if so, specifying each such default of which the signer
shall have knowledge, and stating whether or not, to the best knowledge of the
signer, any event has occurred which with the giving of notice or passage of
time, or both, would constitute such a default, and, if so, specifying each such
event, it being intended that any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation; PROVIDED, HOWEVER, the reliance
referred to herein, shall be limited to the party giving such statement being
estopped from contradicting any of the statements made in such certificate.
Tenant also shall include in any such statement such other information
concerning this lease as Landlord, the Board of Managers, or any Superior
Mortgagee or Superior Lessor may reasonably request.
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ARTICLE 31
MEMORANDUM OF LEASE
31.01. Tenant shall not record this lease, but at the request of
either party, Landlord and Tenant shall execute, acknowledge and deliver, and
Landlord or Tenant may record, a statutory form of memorandum with respect to
this lease pursuant to the provisions of Section 291-C of the Real Property Law
of the State of New York. Within ten (10) days after the end of the term of this
lease (as the same may be extended), Tenant shall enter into such documentation
as is reasonably required by Landlord in form reasonably acceptable to Tenant to
remove the memorandum of record.
ARTICLE 32
NO REPRESENTATIONS BY LANDLORD
32.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this lease and shall expressly refer to this
lease. All understandings and agreements heretofore had between the parties are
merged in this lease and any other written agreement(s) made concurrently
herewith, which alone fully and completely express the agreement of the parties
and which are entered into after full investigation, neither party relying upon
any statement or representation not embodied in this lease or any other written
agreement(s) made concurrently herewith.
ARTICLE 33
TENANT'S RIGHTS OF SELF-HELP AND OFFSET
33.01. (a) Subject to the provisions of this Article 33, if
Landlord fails to perform or provide in accordance with the provisions of this
lease any item of work, maintenance, or repair or service with respect to (i)
items that are exclusively located within the Premises or (ii) items which
exclusively serve the Premises, Tenant shall have the right (but not the
obligation) to perform and fulfill Landlord's obligation with respect thereto
(and Tenant shall have access to those portions of the Unit outside of the
Premises which service the Premises in order to do so). The extent of the work
performed by Tenant in curing any such default by Landlord shall not exceed the
work that is reasonably necessary to effectuate such remedy and the cost of such
work shall be reasonably prudent and economical under the circumstances;
provided that if Tenant shall in good faith competitively bid such work (but
Tenant shall have no obligation hereunder to bid such work) to at least three
(3) bidders, then the lowest bid obtained shall be deemed to be reasonably
prudent and economical. Notwithstanding anything to the
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contrary contained herein, Tenant shall not be entitled to cure any default of
Landlord if (A) such cure requires access to the premises of other tenants or
occupants of the Unit unless Tenant shall have first obtained the prior written
consent of any such tenant or occupant, or (B) the performance of such cure
would require access to Building systems that service tenants other than Tenant
or in addition to Tenant or would impair or disrupt services to the tenants of
the Building, unless, in either case, Tenant shall have first obtained the prior
written consent of such other tenants of the Building and Tenant shall have
submitted copies of such consent(s) to Landlord before entering such space or
accessing Building systems, as the case may be. The defaults of Landlord that
Tenant is permitted to cure in accordance with the provisions of this Section
33.01(a) are hereinafter referred to as "SELF-HELP ITEMS."
(b) If Tenant believes that Landlord has failed to perform
any Self-Help Item as required by this lease, Tenant may give Landlord a notice
(herein called the "SELF-HELP NOTICE") of Tenant's intention to perform such
Self-Help Item on Landlord's behalf, which notice shall contain a statement in
bold type and capital letters stating "THIS IS A SELF-HELP NOTICE" as a
condition to the effectiveness thereof. If Landlord fails within two (2)
Business Days after its receipt of such Self-Help Notice (or within one (1) day
after its receipt of such Self-Help Notice in the event that such failure is
causing a material disruption of Tenant's business) to either (i) commence (and
thereafter continue to diligently perform) the cure of such Self-Help Item or
(ii) give a notice to Tenant (herein called "LANDLORD'S SELF-HELP DISPUTE
NOTICE") disputing Tenant's right to perform the cure of such Self-Help Item
pursuant to the terms of this Article 33, Tenant shall have the right, but not
the obligation, to commence and thereafter diligently prosecute the cure of such
Self-Help Item in accordance with the provisions of this Article 33 at any time
thereafter, but prior to the date on which Landlord either commences to cure
such Self-Help Item or gives to Tenant a Landlord's Self-Help Dispute Notice. If
either (A) within such two (2) Business Day period (or one (1) day period, if
applicable) or at any time thereafter prior to the date on which Tenant
commences to cure such Self-Help Item, Landlord gives a Landlord's Self-Help
Dispute Notice, or (B) Tenant disputes whether Landlord has commenced to cure or
is diligently proceeding with the cure of such Self-Help Item, Tenant may
commence an arbitration by the American Arbitration Association pursuant to its
Guidelines for Expedited Arbitration (herein called a "SELF-HELP ARBITRATION").
Such arbitration shall make a determination as to either (1) whether Landlord
has failed to commence or has been and is then continuing to fail to diligently
prosecute the Self-Help Item in question or (2) whether Tenant has the right
pursuant to the terms of this Article 33 to cure such Self-Help Item. If Tenant
shall prevail in such arbitration, Tenant may perform the cure of such Self-Help
Item. Upon completion of the cure of such Self-Help Item, as provided herein, by
Tenant, Tenant shall give notice thereof (the "SELF-HELP ITEM COMPLETION
NOTICE") to Landlord (which notice shall contain a statement in bold type and
capital letters stating "THIS IS A SELF-HELP ITEM COMPLETION NOTICE" as a
condition to the effectiveness thereof), together with a copy of paid invoices
setting forth the reasonable costs and expenses incurred by Tenant to complete
such Self-Help Item (herein called the
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"SELF-HELP AMOUNT"). Landlord shall reimburse Tenant in the amount of the
Self-Help Amount within thirty (30) days after receipt of Tenant's Self-Help
Item Completion Notice, together with interest thereon at the Interest Rate from
the date same were incurred through the date of reimbursement. In the event that
Landlord shall fail to pay the Self-Help Amount within such thirty (30) day
period, Tenant shall be entitled to offset the Self-Help Amount, together with
interest thereon at the Interest Rate from the date same were incurred through
the date of offset, against Fixed Rent and Additional Charges thereafter coming
due under this lease. Notwithstanding the foregoing, Tenant shall not have the
right to credit such amount against the Fixed Rent and Additional Charges
thereafter coming due hereunder if Landlord initiates a Self-Help Arbitration,
if and to the extent that such Self-Help Arbitration challenges the Self-Help
Amount claimed by Tenant. If and to the extent that Tenant prevails in such
Self-Help Arbitration, Tenant shall have the right to credit against the Fixed
Rent and Additional Charges thereafter coming due hereunder (with interest at
the Interest Rate from the expiration of the above-referenced thirty (30) day
period until the date that such credit is taken) any portion of the finally
determined Self-Help Amount not theretofore paid to Tenant or taken as a credit
by Tenant. Notwithstanding anything to the contrary contained herein, in the
event that Landlord shall dispute Tenant's right to perform the cure of any
Self-Help Item by giving a Landlord's Self-Help Dispute Notice in accordance
with the procedures set forth in this Section 33.01, Tenant shall nevertheless
have the right to perform the cure of such Self-Help Item pending the resolution
of such dispute in the event that any further delay in the performance of such
cure would cause a material disruption of Tenant's business; PROVIDED, HOWEVER,
that Landlord shall not be obligated to make payment of the Self-Help Amount (or
any interest thereon), nor shall Tenant have the offset rights hereinabove
described, unless and until such dispute is resolved (pursuant to a Self-Help
Arbitration or otherwise) in Tenant's favor (and in such event such Self-Help
Amount shall be in the amount so determined pursuant to such resolution), and
provided further that Tenant shall indemnify Landlord and each Landlord Party
from and against any and all claims arising from or in connection with the
exercise of its rights under this Article 33, including, without limitation, any
claims made by any other tenants or occupants of the Unit or the Building,
together with all reasonable, actual out-of-pocket costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses.
33.02. Any Self-Help Items performed by Tenant shall constitute
Alterations and shall be subject to all of the terms and conditions set forth in
Article 11 and EXHIBIT E hereof (other than the approval of the item of work,
but in the case of repairs, the manner of effectuating such repair will be
subject to plan approval if and to the extent that plans and specifications
would be required or generally prepared for the performance of such work by
landlords of Comparable Buildings and Landlord shall not unreasonably withhold
or delay its approval of any such work and plans).
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ARTICLE 34
HOLDOVER
34.01. (a) In the event this lease is not renewed or extended or a
new lease is not entered into between the parties, and if Tenant shall then hold
over after the expiration of the term of this lease, and if Landlord shall then
not proceed to remove Tenant from the Premises in the manner permitted by law
(or shall not have given written notice to Tenant that Tenant must vacate the
Premises) irrespective of whether or not Landlord accepts rent from Tenant for a
period beyond the Expiration Date, the parties hereby agree that Tenant's
occupancy of the Premises after the expiration of the term shall be under a
month-to-month tenancy commencing on the first day after the expiration of the
term of this lease, which tenancy shall be upon all of the terms set forth in
this lease except Tenant shall pay on the first day of each month of the
holdover period as Fixed Rent, an amount equal to the product obtained by
multiplying (i) the greater of (A) one-twelfth of the sum of the Fixed Rent and
Additional Charges payable by Tenant during the last year of the term of this
lease (I.E., the year immediately prior to the holdover period) or (B) an amount
equal to the then market rental value for the Premises, taking into account all
relevant factors, by (ii) one hundred fifty (150%) percent for the first two
months of such month-to-month tenancy, one hundred seventy-five (175%) percent
for the next two months of such month-to-month tenancy, and two hundred (200%)
percent thereafter. Tenant may dispute such market rental value for the Premises
as estimated by Landlord by giving notice to Landlord within, but in no event
after, thirty (30) days after the giving of Landlord's notice to Tenant (as to
the giving of which notice to Landlord, time shall be deemed of the essence).
Enclosed with such notice, Tenant shall be required to furnish to Landlord the
written opinion of a reputable New York licensed real estate broker having
leasing experience in the Borough of Manhattan, for a period of not less than
ten (10) years setting forth said broker's good faith opinion of the market
rental value of the Premises. If Tenant and Landlord are unable to resolve any
such dispute as to the market rental value for the Premises then such dispute
shall be resolved by an independent arbitrator who shall be a real estate broker
of similar qualifications and shall be selected from a listing of not less than
three (3) brokers furnished by the Manhattan office of the AAA (or any successor
thereto) to Tenant and Landlord (at the request of either Landlord or Tenant).
If Landlord and Tenant are unable to agree upon the selection of the individual
arbitrator from such listing, then the first arbitrator so listed by the
Manhattan office of the AAA (or any successor thereto) shall be conclusively
presumed to have been selected by both Landlord and Tenant and the decision of
such arbitrator shall be conclusive and binding upon the parties as to the
market rental value for the Premises. Pending the determination of the market
rental value of the Premises upon the expiration of the term of this lease,
Tenant shall pay to Landlord as Fixed Rent an amount computed in accordance with
clause (A) or (B) of this Section 34.01(a) (as Landlord shall then elect), and
upon determination of the market rental value of the Premises in accordance with
the preceding provisions hereof appropriate adjustments and payments shall be
effected. In the event that Landlord shall
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have elected to charge Tenant Fixed Rent in an amount computed in accordance
with clause (B) of this Section 34.01(a), then that portion of such Fixed Rent
(herein called the "HOLDOVER STUB AMOUNT") that is the difference between (1)
the Fixed Rent computed in accordance with clause (B) of this Section 34.01(a)
and (2) the Fixed Rent computed in accordance with clause (A) of this Section
34.01(a), shall be held in escrow by a reputable law firm designated by Landlord
pending the determination of the market rental value of the Premises in
accordance with the preceding provisions hereof, and any interest earned on such
Holdover Stub Amount shall be added to and follow that portion of the Holdover
Stub Amount that is paid to Landlord and/or Tenant in accordance with the
decision of the arbitrator making such determination. Further, Landlord shall
not be required to perform any work, furnish any materials or make any repairs
within the Premises during the holdover period. It is further stipulated and
agreed that if Landlord shall, at any time after the expiration of the original
term of this lease or after the expiration of any term created thereafter,
proceed to remove Tenant from the Premises as a holdover, the Fixed Rent for the
use and occupancy of the Premises during any holdover period shall be calculated
in the same manner as set forth above.
(b) Notwithstanding anything to the contrary contained in
this lease, the acceptance of any rent paid by Tenant pursuant to Section
34.01(a) hereof shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding, and the preceding sentence shall be
deemed to be an "agreement expressly providing otherwise" within the meaning of
Section 223-c of the Real Property Law of the State of New York.
ARTICLE 35
MISCELLANEOUS PROVISIONS AND DEFINITIONS
35.01. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease, in whole
or in part, including, without limitation, this Section 35.01, unless such
agreement is in writing, refers expressly to this lease and is signed by the
party against whom enforcement of the change, modification, waiver, release,
discharge, termination or effectuation of the abandonment is sought. If Tenant
shall at any time request Landlord to sublet the Premises for Tenant's account,
Landlord or its agent is authorized to receive keys for such purposes without
releasing Tenant from any of its obligations under this lease, and Tenant hereby
releases Landlord of any liability for loss or damage to any of the Tenant's
Property in connection with such subletting unless caused by or resulting from
the negligence or willful act of Landlord, its agents, servants, contractors, or
employees.
35.02. Except as otherwise expressly provided in this lease, the
obligations of this lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; PROVIDED, HOWEVER, that (a) no violation of the
provisions of Article 7 hereof
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shall operate to vest any rights in any successor or assignee of Tenant and (b)
the provisions of this Article 35 shall not be construed as modifying the
conditions of limitation contained in Article 22 hereof.
35.03. Tenant shall look only to Landlord's estate and property in the
Unit (which shall be deemed to include the proceeds of any insurance,
condemnation, sale or refinancing proceeds received and held by Landlord with
respect to the Unit) for the satisfaction of Tenant's remedies, for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord or any property or assets of its partners,
officers, directors, shareholders or principals, disclosed or undisclosed, shall
be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Premises.
35.04. (a) Except as expressly provided in this lease, the
obligations of Tenant hereunder shall be in no wise affected, impaired or
excused, nor shall Landlord have any liability whatsoever to Tenant, nor shall
it be deemed a constructive eviction because (i) Landlord is unable to fulfill,
or is delayed in fulfilling, any of its obligations under this lease by reason
of strike, lock-out or other labor trouble, governmental preemption of
priorities or other controls in connection with a national or other public
emergency or shortages of fuel, supplies or labor resulting therefrom, or any
other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (ii) of any failure or defect in the supply, quantity or character
of electricity or water furnished to the Premises, by reason of any requirement,
act or omission of the public utility or others serving the Building with
electric energy, steam, oil, gas or water, or for any other reason whether
similar or dissimilar, beyond Landlord's reasonable control (the foregoing
circumstances described in this Section 35.04 being herein called "FORCE MAJEURE
CAUSES"). In no event shall lack of funds be deemed a Force Majeure Cause, nor
shall any matter be deemed to be beyond Landlord's reasonable control if the
same could be remedied by the satisfaction of a lien, judgment or other monetary
obligation. Landlord shall use reasonable efforts to minimize the effect of such
circumstance or condition on Tenant's occupancy of the Premises for the purposes
of its business and/or on the services provided to Tenant by Landlord hereunder.
(b) Notwithstanding anything to the contrary contained in
this lease, but subject to the provisions of Article 19 and 20 hereof to the
extent applicable, if the Premises or any portion thereof is rendered
"untenantable," as such term is hereinafter defined, and Tenant ceases the
operation of its business within such portion of the Premises, except for
Disaster Functions (herein called the "ABATEMENT THRESHOLD REQUIREMENT"), and
such portion of the Premises is rendered "untenantable" as the result of either:
(i) Landlord's failure to provide the services required to be provided by
Landlord hereunder or (ii) Landlord's failure to perform the repairs,
replacements and maintenance required to be performed by Landlord hereunder; or
(iii) the performance of
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any work, repairs, alterations or improvements by Landlord or a third party
authorized by Landlord, and the same is not due to (A) the act or omission
(where there is a duty to act) of Tenant, its, agents, representatives,
contractors or employees or (B) casualty or condemnation, and such condition
continues for a period in excess of five (5) consecutive Business Days after
Tenant furnishes a notice to Landlord (herein called the "ABATEMENT NOTICE")
certifying that the Abatement Threshold Requirement has been met, which notice
shall contain a statement in bold type and capital letters stating "THIS IS AN
ABATEMENT NOTICE" as a condition to the effectiveness thereof, then Fixed Rent
and Additional Charges payable with respect to the portion of the Premises so
affected shall be abated on a PER DIEM basis for the period commencing on the
first day after the expiration of such five (5) consecutive Business Day period
and ending on the earlier of (1) the date Tenant reoccupies the affected portion
of the Premises for the conduct of its business other than Disaster Functions,
and (2) the date on which such portion of the Premises is no longer
"untenantable". Notwithstanding anything to the contrary set forth herein, the
five (5) consecutive Business Day period described in the preceding sentence
shall be:
(x) extended by one (1) day for each day that the
condition giving rise to Tenant's rights under this Section 35.04(b)
shall continue due to Force Majeure Causes, provided however that in
no event shall such period by extended by more than ten (10) Business
Days in the aggregate, and
(y) reduced to three (3) consecutive Business Days
(subject to extension as set forth in clause (x) above) in the event
that the Premises or a portion thereof shall be rendered untenantable
as the result of any condition that occurs within twelve (12) months
after the occurrence of a condition of the same nature and which
condition also gave rise to Tenant's rights under this Section
35.04(b).
For purposes of this Section, the term "UNTENANTABLE" shall mean inaccessible or
unusable for the normal conduct of Tenant's business in a manner which is
consistent with Tenant's use within the thirty (30) day period prior to the
occurrence of the condition in question and Tenant ceases the operation of its
business within the Premises (or the portion thereof deemed "untenantable", as
the case may be) other than to the limited extent of Tenant's security personnel
for the preservation of Tenant's property, Tenant's insurance adjusters, and/or
a minimal number of Tenant's employees for file retrieval, planning of temporary
relocation and other disaster recovery functions (collectively, "DISASTER
FUNCTIONS"). If more than fifty (50%) percent of an entire floor of the Premises
shall be rendered untenantable in accordance with the foregoing definition, such
entire floor shall be deemed to be untenantable if (i) in Tenant's reasonable
good faith judgment, due to the nature of Tenant's business conducted on such
floor, the inability to use the untenantable portion of such floor for the
normal conduct of
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Tenant's business therein renders the entire floor unusable for the normal
conduct of Tenant's business therein in a manner which is consistent with
Tenant's use within the thirty (30) day period prior to the occurrence of the
condition in question, and Tenant delivers a certification to Landlord stating
the foregoing, and (ii) Tenant ceases the operation of its business within such
entire floor, except for Disaster Functions.
35.05. For the purposes of this lease, the following terms have the
meanings indicated:
(a) The terms "BUSINESS HOURS" shall mean the hours between
8:00 a.m. and 6:00 p.m., and "Business Days" shall mean all days on which the
New York Stock Exchange is open for business.
(b) The term "CONDOMINIUM AGREEMENT" shall mean that certain
Condominium Agreement dated as of the date hereof by and between the Board of
Managers, Citibank, N.A., Tenant and Landlord and which will be recorded in The
Office of the Register of the City of New York, New York County.
(c) The term "CONSUMER PRICE INDEX" shall mean the Consumer
Price Index for All Urban Consumers ("CPI-AUC"), New York, New York-Northeastern
New Jersey, All Items (1982-1984=100), issued and published by the Bureau of
Labor Statistics of the United States Department of Labor. In the event that
CPI-AUC ceases to use a 1982-84 base rate of 100 as the basis of calculation,
then the CPI-AUC shall be adjusted to the figure that would have been arrived at
had the manner of computing the CPI-AUC in effect at the date of this lease not
been altered. If CPI-AUC is not available or may not lawfully be used for the
purposes herein stated, the term "CONSUMER PRICE INDEX" shall mean (i) a
successor or substitute index to CPI-AUC, appropriately adjusted; or (ii) if
such a successor or substitute index is not available or may not lawfully be
used for the purposes herein stated, a reliable governmental or other
non-partisan publication, selected by Landlord and approved by Tenant (which
approval shall not be unreasonably withheld or delayed), evaluating the
information theretofore used in determining CPI-AUC.
(d) The term "MORTGAGE" shall include a mortgage and/or a
deed of trust, and the term "holder of a mortgage" or "mortgagee" or words of
similar import shall include a mortgagee of a mortgage or a beneficiary of a
deed of trust.
(e) The terms "LEGAL REQUIREMENTS" and "laws and
requirements of any public authorities" and words of a similar import shall mean
laws and ordinances of any or all of the federal, state, city, town, county,
borough and village governments, including, without limitation, The Americans
with Disabilities Act of 1990, as amended, and rules, regulations, orders and
directives of any and all departments, subdivisions, bureaus, agencies or
offices thereof, and of any other governmental, public or quasi-public
authorities having jurisdiction over the Unit and/or the Building and/or the
Premises, and the direction of any public officer pursuant to law, whether now
or hereafter in force.
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(f) The term "REQUIREMENTS OF INSURANCE BODIES" and words of
similar import shall mean rules, regulations, orders and other requirements of
the New York Board of Underwriters and/or the New York Fire Insurance Rating
Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance over the Unit and/or the
Building and/or the Premises, whether now or hereafter in force.
(g) The term "TENANT" shall mean the Tenant herein named or
any assignee or other successor in interest (immediate or remote) of the Tenant
herein named, which at the time in question is the owner of the Tenant's estate
and interest granted by this lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this lease or to
relieve the Tenant herein named or any assignee or other successor in interest
(whether immediate or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the covenants, obligations and
conditions to be paid, performed and observed by Tenant under this lease, unless
Landlord and Tenant shall otherwise agree.
(h) The term "LANDLORD" shall mean only the owner at the
time in question of Landlord's interest in the Unit or a lease of the Unit, so
that in the event of any transfer or transfers of Landlord's interest in the
Unit or a lease thereof, the transferor shall be and hereby is relieved and
freed of all obligations of Landlord under this lease accruing after such
transfer; PROVIDED, HOWEVER, that such transferee has assumed and agreed in
writing (or is required by an SNDA Agreement between such transferee and Tenant
or by operation of law) to perform and observe all obligations of Landlord
herein during the period it is the holder of Landlord's interest under this
lease.
(i) The terms "HEREIN," "HEREOF" and "HEREUNDER," and words
of similar import, shall be construed to refer to this lease as a whole, and not
to any particular article or section, unless expressly so stated.
(j) The term "AND/OR" when applied to one or more matters or
things shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(k) The term "PERSON" shall mean any natural person or
persons, a partnership, a corporation, and any other form of business or legal
association or entity.
(l) The terms "LANDLORD SHALL HAVE NO LIABILITY TO TENANT"
or "the same shall be without liability to Landlord" or "without incurring any
liability to Tenant therefor", or words of similar import shall mean that Tenant
is not entitled to terminate this lease, or to claim actual or constructive
eviction, partial, or total, or to receive any abatement or diminution of rent,
or to be relieved in any manner of any of its other obligations hereunder, or to
be compensated for loss or injury suffered or to enforce
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any other right or kind of liability whatsoever against Landlord under or with
respect to this lease or with respect to Tenant's use or occupancy of the
Premises.
(m) The term "INTEREST RATE," when used in this lease, shall
mean an interest rate equal to two (2%) percent above the so-called annual "Base
Rate" of interest established and approved by Citibank, N.A., New York, New York
(herein called the "BASE RATE"), from time to time, as its interest rate charged
for unsecured loans to its corporate customers, but in no event greater than the
highest lawful rate from time to time in effect.
35.06. Upon the expiration or other termination of this lease neither
party shall have any further obligation or liability to the other except as
otherwise expressly provided in this lease and except for such obligations as by
their nature or under the circumstances can only be, or by the provisions of
this lease, may be, performed after such expiration or other termination; and,
in any event, unless otherwise expressly provided in this lease, any liability
for a payment (including, without limitation, Additional Charges under Article 3
hereof) which shall have accrued to or with respect to any period ending at the
time of expiration or other termination of this lease shall survive the
expiration or other termination of this lease, subject to any deadlines
expressly set forth in Article 3 hereof or in any other applicable provision of
this lease. In the event that Tenant shall be entitled to a refund or credit
from Landlord hereunder at the time of the expiration or termination of the term
of this lease, the amount of such refund or credit shall be paid to Tenant
within thirty (30) days after such expiration or termination, unless otherwise
expressly set forth in this lease, failing which any unpaid amount shall bear
interest at the Interest Rate from the due date thereof until such amount is
paid to Tenant.
35.07. (a) If Tenant shall request Landlord's consent and Landlord
shall fail or refuse to give such consent, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent, it being intended that,
except as expressly provided in this lease, Tenant's sole remedy shall be an
action for specific performance or injunction, and that such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold its consent or where as a matter of law Landlord may
not unreasonably withhold its consent; PROVIDED, HOWEVER, that Tenant shall not
be deemed to have waived a claim for damages if there is a final judicial
determination from which time for appeal has been exhausted that Landlord acted
maliciously or in bad faith in exercising its judgment or withholding its
consent or approval despite its agreement to act reasonably, in which case
Tenant shall have the right to make a claim for the actual damages incurred by
Tenant, but in no event shall Landlord, nor any partner, director, officer,
principal, shareholder, agent, servant or employee of Landlord be liable for
consequential damages.
(b) If Tenant desires to determine any dispute between
Landlord and Tenant as to the reasonableness of Landlord's decision to refuse to
consent or approve any item as to which Landlord has specifically agreed that
its consent or
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approval shall not be unreasonably withheld, such dispute shall be settled and
finally determined by arbitration in The City of New York in accordance with the
following provisions of this Section 35.07(b). Within ten (10) Business Days
next following the giving of any notice by Tenant stating that it wishes such
dispute to be so determined, Landlord and Tenant shall each give notice to the
other setting forth the name and address of an arbitrator designated by the
party giving such notice. If the two arbitrators shall fail to agree upon the
designation of a third arbitrator within five (5) Business Days after the
designation of the second arbitrator then either party may apply to the
Manhattan office of the AAA for the designation of such arbitrator and if he or
she is unable or refuses to act within ten (10) Business Days, then either party
may apply to the Supreme Court in New York County or to any other court having
jurisdiction for the designation of such arbitrator. The three arbitrators shall
conduct such hearings as they deem appropriate, making their determination in
writing and giving notice to Landlord and Tenant of their determination as soon
as practicable, and if possible, within five (5) Business Days after the
designation of the third arbitrator; the concurrence of or, in the event no two
of the arbitrators shall render a concurring determination, then the
determination of the third arbitrator designated, shall be binding upon Landlord
and Tenant. Judgment upon any decision rendered in any arbitration held pursuant
to this Section 35.07(b) shall be final and binding upon Landlord and Tenant,
whether or not a judgment shall be entered in any court. Each party shall pay
its own counsel fees and expenses, if any, in connection with any arbitration
under this Section 35.07(b), including the expenses and fees of any arbitrator
selected by it in accordance with the provisions of this Section 35.07(b), and
the parties shall share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this lease, and shall not add
to, subtract from or otherwise modify such provisions. The sole remedy which may
be awarded by the arbitrators in any proceeding pursuant to this Section
35.07(b) is an order compelling Landlord to consent to or approve the matter in
dispute, and the arbitrators may not award damages or grant any monetary award
or any other form of relief. Any determination by the arbitrators that Landlord
was unreasonable in refusing to grant its consent or approval as to the matter
in dispute shall be deemed a granting of Landlord's consent or approval, and
upon receipt of the arbitrators' determination, Tenant shall be authorized to
take the action for which Landlord's consent or approval was sought.
35.08. If any Superior Mortgagee shall require any modification(s) of
this lease, Tenant shall, at Landlord's request, promptly execute and deliver to
Landlord such reasonable instruments effecting such modification(s) as Landlord
shall reasonably require, provided that such modification(s) do not decrease any
of Tenant's rights or Landlord's obligations under this lease, or increase any
of Tenant's obligations or liabilities under this lease, in either case beyond a
DE MINIMIS extent, or in any event increase the amount of rent payable by Tenant
hereunder, and provided further that Landlord shall reimburse Tenant for the
reasonable out-of-pocket attorneys' fees incurred by Tenant in connection with
its review of any such modification(s) within thirty (30)
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days after Tenant's written request for reimbursement, accompanied by reasonable
supporting documentation of such fees.
35.09. If an excavation shall be made upon land adjacent to or under
the Building, or shall be authorized to be made, then, subject to any applicable
provisions of Article 16 hereof, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter the Premises for the
purpose of performing such work as said person shall deem reasonably necessary
or desirable to preserve and protect the Building from injury or damage to
support the same by proper foundations, without any claim for damages or
liability against Landlord or the Board of Managers and without reducing or
otherwise affecting Tenant's obligations under this lease. Landlord shall use
reasonable efforts to cause the foregoing to be performed in such a manner as to
minimize any interference with Tenant's operation of its business in the
Premises and, in the event that Landlord or its employees or contractors shall
perform such excavation, Landlord shall indemnify Tenant from and against any
and all claims arising from or in connection with the performance of such work,
together with all reasonable, actual out-of-pocket costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses.
35.10. Tenant shall not place a load upon any floor of the Premises
which violates applicable law or the certificate of occupancy of the Building or
which exceeds the floor load per square foot which such floor was designed to
carry. All heavy material and/or equipment must be placed by Tenant, at Tenant's
expense, so as to distribute the weight. Business machines and mechanical
equipment shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient in Landlord's reasonable judgment to absorb and prevent
vibration, noise and annoyance, other than to a DE MINIMIS extent. If the
Premises be or become infested with vermin as a result of the use or any misuse
or neglect of the Premises by Tenant, its agents, employees, visitors or
licensees, Tenant shall at Tenant's expense cause the same to be exterminated
from time to time to the reasonable satisfaction of Landlord and shall employ
such exterminators and such exterminating company or companies as shall be
reasonably approved by Landlord.
35.11. The submission by Landlord of the lease in draft form shall be
deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations, on
either party unless and until both Landlord and Tenant shall have executed the
lease and duplicate originals thereof shall have been delivered to the
respective parties.
35.12. Irrespective of the place of execution or performance, this
lease shall be governed by and construed in accordance with the laws of the
State of New York. If any provisions of this lease or the application thereof to
any person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, the
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remainder of this lease and the application of that provision to other persons
or circumstances shall not be affected but rather shall be enforced to the
extent permitted by law. The table of contents, captions, headings and titles in
this lease are solely for convenience of references and shall not affect its
interpretation. This lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this lease to be
drafted. Each covenant, agreement, obligation or other provision of this lease
on Tenant's part to be performed, shall be deemed and construed as a separate
and independent covenant of Tenant, not dependent on any other provision of this
lease. All terms and words used in this lease, shall be deemed to include any
other number and any other gender as the context may require.
35.13. If under the terms of this lease Tenant is obligated to pay
Landlord a sum in addition to the Fixed Rent under the lease and no payment
period therefor is specified, Tenant shall pay Landlord the amount due within
thirty (30) days after being billed (accompanied by reasonable supporting
documentation where such supporting documentation is required by an express
provision of this lease). If any amount payable by Landlord to Tenant hereunder
is not paid within thirty (30) days after the due date thereof, unless otherwise
set forth in any other provision of this lease, the same shall bear interest at
the Interest Rate from the due date thereof until such amount is paid to Tenant.
35.14. Notwithstanding anything to the contrary contained in this
lease, during the continuance of any default by Tenant after the giving of
notice and the expiration of any applicable grace periods hereunder, Tenant
shall not be entitled to exercise any rights to receive any offsets or credits
or funds or proceeds being held, under or pursuant to this lease.
35.15. Each party hereto represents and warrants to the other that
this lease has been duly authorized, executed and delivered by such party.
35.16. Tenant acknowledges that it has no rights to any development
rights, "air rights" or comparable rights appurtenant to the Unit, the Building
or the Real Property, and consents, without further consideration, to any
utilization of such rights by Landlord and/or the Board of Managers and agrees
to promptly execute and deliver any instruments which may be reasonably
requested by Landlord and/or the Board of Managers, including instruments
merging zoning lots, evidencing such acknowledgment and consent, provided that
Landlord (or the Board of Managers, as the case may be) shall reimburse Tenant
for the reasonable out-of-pocket attorneys' fees and expenses incurred by Tenant
in connection with its review of any such instruments within thirty (30) days
after Tenant's written request for reimbursement, accompanied by reasonable
supporting documentation of such fees. The provisions of this Section 35.16
shall be deemed to be and shall be construed as an express waiver by Tenant of
any interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Real Property.
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35.17. If any sales or other tax is payable with respect to any
cleaning or other services which Tenant obtains or contracts for directly from
any third party or parties, Tenant shall file any required tax returns and shall
pay any such tax, and Tenant shall indemnify and hold Landlord harmless from and
against any loss, damage or liability suffered or incurred by Landlord on
account thereof.
35.18. Intentionally Omitted.
35.19. In connection with any examination by Tenant of Landlord's
books and records, Tenant agrees to treat, and to instruct its employees,
accountants and agents to treat, all information as confidential and not
disclose it to any other person, except as may be required (a) by applicable
Legal Requirements or (b) by a court of competent jurisdiction or arbitrator or
in connection with any action or proceeding before a court of competent
jurisdiction or arbitrator, or (c) to Tenant's attorneys, accountants and other
professionals in connection with any dispute between Landlord and Tenant; and
Tenant will confirm or cause its agents and accountants to confirm such
agreement in a separate written agreement if requested by Landlord.
35.20. Any and all non-public information of any form obtained by
Landlord or its affiliates, agents, contractors or representatives (including
the employees of any of the foregoing) in the performance of Landlord's
obligations or the exercise of Landlord's rights under this lease, which
information relates to the Named Tenant or Tenant's Affiliates or their
respective clients or to third parties to whom the Named Tenant or Tenant's
Affiliates owe a duty of confidentiality, is herein called "TENANT'S PROPRIETARY
INFORMATION". The officers, directors, principals, partners and/or members
(herein collectively called "FIDUCIARIES") of Landlord and each of its
affiliates shall hold all Tenant's Proprietary Information in strict confidence.
In addition, Landlord and each of its affiliates shall hold all Tenant's
Proprietary Information in strict confidence, except to the extent that the
failure to do so results from the act or omission of any person or party that is
not a Fiduciary of (a) Landlord or (b) an affiliate of Landlord, as the case may
be. Landlord and each of its affiliates, as applicable, shall use reasonable
efforts to notify their employees that all Tenant's Proprietary Information
shall be deemed confidential and proprietary and that such employee shall hold
all Tenant's Proprietary Information in strict confidence. In addition, Landlord
shall:
(a) use reasonable efforts to include in any agreement
hereafter entered into with any agent, contractor or representative who, in
connection with its agency, contract or representation, is reasonably expected
to enter the Premises, a statement that all Tenant's Proprietary Information
shall be deemed confidential and proprietary and a requirement that such agent,
contractor or representative shall hold all Tenant's Proprietary Information in
strict confidence (such statement and requirement being herein called a
"CONTRACTUAL CONFIDENTIALITY PROVISION"); PROVIDED HOWEVER, that such reasonable
efforts shall not include the payment by Landlord of any additional sums of
money to include such a Contractual Confidentiality Provision in any agreement,
or
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any efforts by Landlord to retain an alternate agent, contractor or
representative who will agree to include such a Contractual Confidentiality
Provision in its agreement with Landlord; and
(b) use reasonable efforts to notify any such agent,
contractor or representative with whom it does not have an agreement containing
a Contractual Confidentiality Provision, that all Tenant's Proprietary
Information shall be deemed confidential and proprietary and that such agent,
contractor or representative shall hold all Tenant's Proprietary Information in
strict confidence.
As used above, holding any Tenant's Proprietary Information "in strict
confidence" shall (A) except as set forth in clause (B) and (C) of this
sentence, include not copying, reproducing, selling, assigning, licensing,
marketing, transferring or otherwise disposing of, giving or disclosing such
Tenant's Proprietary Information to third parties for any purposes whatsoever,
and not using such Tenant's Proprietary Information for any purposes whatsoever,
(B) not preclude Landlord from introducing as evidence any lawfully obtained
Tenant's Proprietary Information directly relating to this lease in connection
with Landlord's enforcement of its rights and remedies hereunder, provided that
Landlord shall have given Tenant at least ten (10) Business Days prior written
notice of any such introduction and (C) not prohibit (1) disclosure thereof if
so requested in any judicial, administrative or arbitration proceeding or if
required by law or in another proceeding, (2) disclosures necessary or
appropriate in connection with Landlord's or Landlord's parent entity's
compliance with federal and state securities laws and the rules and regulations
of the Securities Exchange Commission and any nationally recognized exchange on
which Landlord or Landlord's parent entity is listed, (3) disclosure thereof to
Landlord's or Landlord's parent entity's employees and advisors involved in the
operation and management of the Building and/or the administration of this lease
to the extent such information directly relates to this lease and/or the
Building, or (4) disclosure thereof to Landlord's actual or prospective lenders,
purchasers or investors to the extent such information directly relates to this
lease and/or the Building, provided that Landlord shall have given Tenant at
least ten (10) Business Days prior written notice of any such disclosure.
Notwithstanding anything to the contrary contained herein, but provided that
Landlord has complied with its specific obligations contained in this provision,
Landlord shall not be subject to any liabilities arising from the failure of any
person or party to hold any Tenant's Proprietary Information in strict
confidence, except to the extent that such person or party is a Fiduciary of
Landlord or its affiliates.
35.21. Whenever this lease provides that a party shall not
unreasonably withhold its consent, such phrase shall be deemed to mean that such
consent will not be unreasonably withheld, conditioned or delayed.
35.22. Wherever in any provision of this lease it is stated that any
item is to be performed or provided by Landlord "at its expense", or "at its
sole cost and
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expense", or with any combination of words of similar meaning, such provision
shall not be construed to prevent Landlord from including such cost in Operating
Expenses if and to the extent permitted by the provisions of Article 3 hereof
unless it is explicitly stated that such cost shall be excluded from Operating
Expenses.
35.23. Wherever references are made in this lease to any other
"tenant" of the Unit or the Building, such references shall be deemed to include
Landlord, or any Affiliate of Landlord, or any other occupant occupying space in
the Unit or the Building, whether or not pursuant to a written agreement.
35.24. Any conflicts between this lease and the exhibits to this lease
shall be resolved in favor of this lease.
35.25. Notwithstanding anything to the contrary contained in this
lease, if and to the extent that the exercise of any right of Tenant or the
performance of any obligation of Landlord under this lease would result in a
breach or default by Landlord under any other lease in the Building existing as
of the date of this lease (exclusive of any amendment, modification or
replacement of any such existing lease made after the date hereof), then the
exercise of any such right of Tenant or the performance of such obligation of
Landlord shall be limited to the extent necessary so as not to result in such
breach or default by Landlord; PROVIDED, HOWEVER, that upon the reasonable
request of Tenant, Landlord, at Tenant's sole cost and expense, shall endeavor
in good faith to amend such existing lease or make such alterations or other
modifications to Building systems as may reasonably be necessary to mitigate the
adverse consequences to Tenant resulting from the operation of this Section
35.25; PROVIDED FURTHER, HOWEVER, that Landlord shall have no liability to
Tenant if such good-faith efforts of Landlord are not successful.
ARTICLE 36
EXTENSION TERMS
36.01. (a) For purposes hereof:
the term "ELIGIBLE RENEWAL/ROFO TENANT" shall mean the Named Tenant,
Citibank, N.A., any Corporate Successor to either the Named Tenant or Citibank,
N.A. and any Tenant with a net worth equal to or greater than the Minimum Net
Worth.
the term "FIRST FIVE YEAR OPTION" shall mean an Eligible Renewal/ROFO
Tenant's right to extend the term of this lease for an additional term (herein
called the "FIRST EXTENSION TERM") of five (5) years commencing on October 1,
2017 (herein called the "COMMENCEMENT DATE OF THE FIRST EXTENSION TERM") and
ending on September 30, 2022;
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the term "SECOND FIVE YEAR OPTION" shall mean an Eligible Renewal/ROFO
Tenant's right to extend the term of this lease for an additional term (herein
called the "SECOND EXTENSION TERM") of five (5) years commencing on October 1,
2022 (herein called the "COMMENCEMENT DATE OF THE SECOND EXTENSION TERM") and
ending on September 30, 2027. An Eligible Renewal/ROFO Tenant shall have the
right to exercise the Second Five Year Option only if an Eligible Renewal/ROFO
Tenant shall have exercised the First Five Year Option;
the term "EXTENSION TERM" shall mean the First Extension Term or the
Second Extension Term, as the case may be;
the term "EXTENSION PREMISES" shall mean that portion of the Premises
selected by Tenant and designated in the Extension Election Notice; PROVIDED,
HOWEVER, that Tenant only shall have the right to designate as the Extension
Premises either:
(i) the entire Premises demised by this lease as of
the date on which Tenant gives the applicable Extension Election Notice
(herein called the "OPTION ONE EXTENSION PREMISES"); or
(ii) if Tenant wishes to extend the term of this
lease with respect only to a portion of the Premises then leased by Tenant
containing, in the aggregate, not less than 270,000 rentable square feet
and containing only full floors; PROVIDED, HOWEVER, that Tenant shall have
the right to include in the Option Two Extension Premises portions of
floors leased by Tenant at or below the first floor of the Building (e.g.,
the Lobby Premises); PROVIDED FURTHER that any such partial floors shall
not be counted towards the 270,000 square foot minimum (herein called the
"OPTION TWO EXTENSION PREMISES").
Any Extension Election Notice which fails to designate as the Extension Premises
one of the two options set forth in the immediately preceding sentence shall be
deemed to constitute a designation of the Option One Extension Premises.
(b) The First Five Year Option or the Second Five Year
Option, as the case may be, may be exercised only by an Eligible Renewal/ROFO
Tenant's giving notice (herein called the "EXTENSION ELECTION NOTICE") to that
effect to Landlord not later than eighteen (18) months prior to (i) the
expiration of the initial term of this lease with respect to the First Five Year
Option or (ii) the expiration of the First Extension Term, with respect to the
Second Five Year Option. Time shall be of the essence with respect to the
exercise of each of the First Five Year Option and the Second Five Year Option.
Subject to the provisions of Section 36.02 hereof, upon the giving of an
Extension Election Notice the term of this lease shall be extended in accordance
with the terms hereof for the applicable Extension Term without the execution of
any further instrument. Unless the context shall otherwise require, each
Extension Term shall be upon the same terms, covenants and conditions of this
lease as shall be in effect immediately prior to such extension, except that:
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(A) there shall be no right or option to
extend the term of this lease for any period of time beyond the expiration
of the Second Extension Term (and this shall be one of the then relevant
factors in determining the Market Value Rent);
(B) the Fixed Rent for each Extension Term
shall be determined as provided in Section 36.03 hereof;
(C) if Tenant designates as the Extension
Premises less than the entire Premises then demised by this lease, Tenant's
Share shall be reduced to represent a fraction, the numerator of which is
the number of rentable square feet in the Extension Premises and the
denominator of which shall be 1,147,606; and
(D) Tenant shall not be entitled to any
abatement of Fixed Rent or Additional Charges or any work allowance (and
this shall be one of the then relevant factors in determining the Market
Value Rent).
36.02. The exercise of the aforesaid option to extend the term of this
lease at a time when (a) any default has occurred and is continuing beyond the
expiration of any applicable notice or grace period provided for in this lease
or (b) the Renewal/ROFO Occupancy Requirement is not satisfied, shall, upon
written notice by Landlord, be void and of no force and effect unless either (i)
Landlord shall elect otherwise or (ii) Tenant disputes Landlord's determination
that the Extension Election Notice is void and of no force or effect and seeks
judicial relief within fifteen (15) Business Days after the giving of such
notice by Landlord to Tenant, in which event the issue of whether the Extension
Election Notice is void and of no force or effect shall be determined by a court
of competent jurisdiction. The termination of this lease during the initial term
or the First Extension Term or the Second Extension Term, respectively, shall
also terminate and render void any option or right on Tenant's part to extend
this lease for the First Extension Term or the Second Extension Term,
respectively, whether or not such option or right shall have been exercised; and
nothing contained in this Article 36 shall prevent Landlord from exercising any
right or option granted to or reserved by Landlord in this lease to terminate
this lease. Tenant's option to extend the term of this lease for the Extension
Term may not be severed from this lease or separately sold, assigned or
otherwise transferred. For purposes of this Article 36, the "RENEWAL/ROFO
OCCUPANCY REQUIREMENT" shall be deemed to be met if the then Tenant under this
lease is an Eligible Renewal/ROFO Tenant and occupies, together with its
Affiliates and Service and Business Relationship Entities, not less than 270,000
rentable square feet.
36.03. (a) The Fixed Rent for the Extension Premises for each
Extension Term shall be an amount equal to 97.5% of the Market Value Rent for
the Extension Premises prevailing six (6) months prior to the commencement date
of the applicable Extension Term (determined in accordance with the provisions
of this Section 36.03). Provided that Tenant shall have exercised its option to
extend the term of this
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lease in accordance with the terms of this Article 36, Landlord shall, not less
than six (6) months prior to the commencement of the applicable Extension Term,
notify Tenant of Landlord's estimate of an amount equal to 97.5% of the Market
Value Rent of the Extension Premises for such Extension Term (herein called the
"RENT NOTICE"). Within twenty (20) days after the giving of such notice, Tenant
shall notify Landlord whether Tenant accepts or rejects Landlord's estimate of
such Market Value Rent. If Tenant accepts such estimate, the Fixed Rent for the
applicable Extension Term shall be the Market Value Rent set forth in the Rent
Notice. If Tenant fails to reject such estimate within such twenty (20) day
period, Landlord shall have the right to give a second notice to Tenant, which
notice, as a condition to its effectiveness, shall state in bold, upper case
letters that it is a DEEMED RENT ACCEPTANCE NOTICE, and if Tenant fails to
reject such estimate within five (5) Business Days after the giving of such
Deemed Rent Acceptance Notice to Tenant, time being of the essence, then the
Fixed Rent for the applicable Extension Term shall be the Market Value Rent set
forth in the Rent Notice. If Tenant rejects Landlord's estimate within such
twenty (20) day period, then either Tenant or Landlord may initiate the
arbitration process (the party initiating such process being herein referred to
as the "INITIATING PARTY") provided for herein by designating its arbitrator in
a subsequent notice to the other party (herein called the "RESPONDING PARTY")
(which notice shall specify the name and address of the person designated to act
as an arbitrator on its behalf) given to the Responding Party within thirty (30)
days of Tenant's notice of dispute. If Tenant fails to dispute Landlord's Market
Value Rent determination as set forth hereinabove or if neither party initiates
the arbitration process as provided above, time being of the essence, then
Landlord's determination of the Market Value Rent during the Extension Term as
set forth in the Rent Notice shall be conclusive. Within ten (10) Business Days
after the Responding Party's receipt of notice of the designation of the
Initiating Party's arbitrator, the Responding Party shall give notice to the
Initiating Party specifying the name and address of the person designated to act
as an arbitrator on its behalf. Neither Landlord nor Landlord's arbitrator shall
be bound by nor shall any reference be made to the determination of the Market
Value Rent for the Extension Premises during the applicable Extension Term which
was furnished by Landlord in the Rent Notice. If the Responding Party fails to
notify the Initiating Party of the appointment of its arbitrator within the time
above specified, then the Initiating Party shall provide an additional notice to
the Responding Party requiring the Responding Party's appointment of an
arbitrator within five (5) Business Days after the Responding Party's receipt
thereof. If the Responding Party fails to notify the Initiating Party of the
appointment of its arbitrator within the time specified by the second notice,
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree upon
such appointment. The two arbitrators so chosen shall meet within ten (10)
Business Days after the second arbitrator is appointed, and shall exchange
sealed envelopes each containing such arbitrator's written determination of an
amount equal to 97.5% of the Market Value Rent for the Extension Premises during
the applicable Extension Term. The Market Value Rent specified by Landlord's
arbitrator shall herein be called "LANDLORD'S SUBMITTED VALUE"
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and the Market Value Rent specified by Tenant's arbitrator shall herein be
called "TENANT'S SUBMITTED VALUE". Copies of such written determinations shall
promptly be sent to both Landlord and Tenant. Any failure of either such
arbitrator to meet and exchange such determinations shall be acceptance of the
other party's arbitrator's determination as the Market Value Rent, if, and only
if, such failure persists for three (3) days after notice to the party for whom
such arbitrator is acting, and provided that such three (3) day period shall be
extended by reason of any applicable condition of Force Majeure Causes. If the
higher determination of Market Value Rent is not more than one hundred two
(102%) percent of the lower determination of the Market Value Rent, then the
Market Value Rent shall be deemed to be the average of the two determinations.
If, however, the higher determination is more than one hundred two (102%)
percent of the lower determination, then within five (5) days of the date the
arbitrators submitted their respective Market Value Rent determinations, the two
arbitrators shall together appoint a third arbitrator. In the event of their
being unable to agree upon such appointment within said five (5) day period, the
third arbitrator shall be selected by the parties themselves if they can agree
thereon within a further period of five (5) days. If the parties do not so
agree, then either party, on behalf of both and on notice to the other, may
request such appointment by the American Arbitration Association (or any
successor organization thereto) in accordance with its rules then prevailing or
if the American Arbitration Association (or such successor organization) shall
fail to appoint said third arbitrator within fifteen (15) days after such
request is made, then either party may apply, on notice to the other, to the
Supreme Court, New York County, New York (or any other court having jurisdiction
and exercising functions similar to those now exercised by said Court) for the
appointment of such third arbitrator. Within five (5) days after the appointment
of such third arbitrator, Landlord's arbitrator shall submit Landlord's
Submitted Value to such third arbitrator and Tenant's arbitrator shall submit
Tenant's Submitted Value to such third arbitrator. Such third arbitrator shall,
within thirty (30) days after the end of such five (5) day period, select either
Landlord's Submitted Value or Tenant's Submitted Value as the Market Value Rent
of the Premises during the applicable Extension Term and send copies of his or
her determination promptly to both Landlord and Tenant specifying whether
Landlord's Submitted Value or Tenant's Submitted Value shall be the Market Value
Rent of the Extension Premises during the applicable Extension Term.
(b) Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys' fees, witness fees and similar expenses of the parties which shall be
borne separately by each of the parties) of the arbitration shall be borne by
the parties equally.
(c) Each of the arbitrators selected as herein provided
shall have at least ten (10) years experience in the leasing or renting of
office space in Comparable Buildings.
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(d) In the event Tenant initiates the aforesaid arbitration
process and as of the Commencement Date of the First Extension Term (or the
Commencement Date of the Second Extension Term, as the case may be) the amount
of the Market Value Rent has not been determined, Tenant shall pay the amount
equal to the average of Landlord's Submitted Value and Tenant's Submitted Value
and when the determination has actually been made, an appropriate retroactive
adjustment shall be made as of the Commencement Date of the First Extension Term
(or the Commencement Date of the Second Extension Term, as the case may be).
Overpayments shall be paid by Landlord to Tenant and underpayments shall be paid
by Tenant to Landlord promptly after such determination, together with interest
thereon at the Base Rate.
36.04. It is expressly understood and agreed that notwithstanding
anything to the contrary contained in Section 36.03 hereof, for each Extension
Term:
(a) the Base Operating Amount shall be the Operating
Expenses for the calendar year in which occurs the commencement date of the
applicable Extension Term; and
(b) the Base Tax Amount shall be the Taxes for the Tax Year
in which occurs the commencement date of the applicable Extension Term.
36.05. Notwithstanding any language to the contrary contained in this
lease, Landlord and Tenant agree that the rights contained in this Article 36
are for the sole benefit of any Eligible Renewal/ROFO Tenant.
36.06. For purposes of this Article 36, the determination of "MARKET
VALUE RENT" shall be based upon the rents that an unaffiliated third-party would
be willing to pay to Landlord for a term comparable to the applicable Extension
Term for the applicable Extension Premises on all of the same terms and
conditions under which such Extension Premises will be leased to Tenant pursuant
to the terms of this Article 36, including, without limitation, that Tenant will
not be entitled to any abatement of Fixed Rent or Additional Rent or any work
allowance, notwithstanding that such tenant concessions may be customary for
Comparable Buildings at the time in question, it being the intent of Landlord
and Tenant that by leasing the Extension Premises at 97.5% of Market Value Rent,
Tenant will be receiving a 2 1/2% discount which is not in any way factored into
the determination of Market Value Rent.
36.07. In the event that Tenant exercises the First Five Year Option
or the Second Five Year Option with respect to less than the entire Premises
then demised by this lease in accordance with the applicable provisions hereof,
then effective as of the Expiration Date of the initial term of this lease or
the first Extension Term, as the case may be, the provisions of this lease
governing the respective rights and obligations of Landlord and Tenant as of the
expiration of the term of this lease (including, without limitation, the
provisions of Article 21 ("SURRENDER") and Article 34 ("HOLDOVER")) shall
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apply with full force and effect to the portion of the Premises that has been
omitted by Tenant from the Extension Premises.
ARTICLE 37
INTENTIONALLY OMITTED
ARTICLE 38
INTENTIONALLY OMITTED
ARTICLE 39
ARBITRATION
39.01. Either party may request arbitration of any matter in dispute
which, pursuant to the terms of this lease, expressly allows such dispute to be
resolved by arbitration, in which case, except as provided to the contrary
elsewhere in this lease, the following procedures shall apply. The party
desiring such arbitration shall give notice to the other party. If the parties
shall not have agreed on a choice of an arbitrator within fifteen (15) days
after the service of such notice, then each party shall, within ten (10) days
thereafter appoint an arbitrator, and advise the other party of the arbitrator
so appointed. A third arbitrator shall, within ten (10) days following the
appointment of the two (2) arbitrators, be appointed by the two arbitrators so
appointed or by the AAA, if the two arbitrators are unable, within such ten (10)
day period, to agree on the third arbitrator. If either party fails to appoint
an arbitrator (herein called the "FAILING PARTY"), the other party shall provide
an additional notice to the Failing Party requiring the Failing Party's
appointment of an arbitrator within five (5) Business Days after the Failing
Party's receipt thereof. If the Failing Party fails to notify the other party of
the appointment of its arbitrator within such five (5) Business Day period, the
appointment of the second arbitrator shall be made by the AAA in the same manner
as hereinabove provided for the appointment of a third arbitrator in a case
where the two arbitrators appointed hereunder are unable to agree upon such
appointment. The three (3) arbitrators shall render a resolution of said dispute
or make the determination in question. In the absence, failure, refusal or
inability of the AAA to act within twenty (20) days, then either party, on
behalf of both, may apply to a Justice of the Supreme Court of New York, New
York County, for the appointment of the third arbitrator, and the other party
shall not raise any question as to the court's full power and jurisdiction to
entertain the application and make the appointment. In the event of the absence,
failure, refusal or inability of an arbitrator to act, a successor shall be
appointed within ten (10) days as hereinbefore provided. Any arbitrator acting
under this Article 39 in connection with any matter shall be experienced in the
issue with which the arbitration is concerned and shall
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have been actively engaged in such field for a period of at least ten (10) years
before the date of his appointment as arbitrator hereunder.
39.02. All arbitrators chosen or appointed pursuant to this Article 39
shall (a) be sworn fairly and impartially to perform their respective duties as
such arbitrator, (b) not be an employee or past employee of Landlord or Tenant
or of any other person, partnership, corporation or other form of business or
legal association or entity that controls, is controlled by or is under common
control with Landlord or Tenant and (c) in the case of the third arbitrator,
never have represented or been retained for any reason whatsoever by Landlord or
Tenant or any other person, partnership, corporation or other form of business
or legal association or entity that controls, is controlled by or is under
common control with Landlord or Tenant. Within sixty (60) days after the
appointment of such arbitrators, such arbitrators shall determine the matter
which is the subject of the arbitration and shall issue a written opinion. The
decision of the arbitrators shall be conclusively binding upon the parties, and
judgment upon the decision may be entered in any court having jurisdiction.
Landlord and Tenant shall each pay (i) the fees and expenses of the arbitrator
selected by it, and (ii) fifty (50%) percent of the fees and expenses of the
arbitrator appointed by the AAA. The losing party shall reimburse the prevailing
party for the reasonable counsel fees and disbursements incurred by the
prevailing party in connection with such arbitration. Each party shall have a
right to present evidence to the arbitrators, produce witnesses or experts to be
heard by the arbitrators, and provide such other information that may be
relevant in connection with the arbitration.
39.03. Landlord and Tenant agree to sign all documents and to do all
other things necessary to submit any such matter to arbitration and further
agree to, and hereby do waive, any and all rights they or either of them may at
any time have to revoke their agreement hereunder to submit to arbitration and
to abide by the decision rendered thereunder. For such period, if any, that this
agreement to arbitrate is not legally binding or the arbitrator's award is not
legally enforceable, the provisions requiring arbitration shall be deemed
deleted, and matters to be determined by arbitration shall be subject to
litigation.
39.04. Any dispute which is required by this lease to be resolved by
expedited arbitration shall be submitted to binding arbitration under the
Expedited Procedures provisions (currently, Rules 56 through 60) of the
Arbitration Rules of the Real Estate Industry of the AAA. In cases where the
parties utilize such expedited arbitration: (a) the parties will have no right
to object if the arbitrator so appointed was on the list submitted by the AAA
and was not objected to in accordance with Rule 54 (except that any objection
shall be made within four (4) days from the date of mailing), (b) the Notice of
Hearing shall be given four (4) days in advance of the hearing, (c) the first
hearing shall be held within seven (7) Business Days after the appointment of
the arbitrator, (d) if the arbitrator shall find that a party acted unreasonably
in withholding or delaying a consent or approval, such consent or approval shall
be deemed granted (but
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the arbitrator shall not have the right to award damages, unless the arbitrator
shall find that such party acted in bad faith), and (e) the losing party in such
arbitration shall pay the arbitration costs charged by the AAA and/or the
arbitrator, together with the reasonable counsel fees and disbursements incurred
by the prevailing party in connection with such arbitration.
39.05. Arbitration hearings hereunder shall be held in New York
County. The arbitrators shall, in rendering any decision pursuant to this
Article 39, answer only the specific question or questions presented to them. In
answering such question or questions (and rendering their decision), the
arbitrators shall be bound by the provisions of this lease, and shall not add
to, subtract from or otherwise modify such provisions.
39.06. Judgment may be had on the decision and award of an arbitrator
rendered pursuant to the provisions of this Article 39 and may be enforced in
accordance with the laws of the State of New York.
39.07. The provisions of this Article 39 shall not be applicable to
any arbitration conducted pursuant to Article 3, Article 36 or Article 40
hereof.
ARTICLE 40
RIGHT OF OFFERING
40.01. Provided Tenant is not in monetary default or material
non-monetary default under the terms and conditions of this lease beyond the
expiration of any applicable notice and grace period at the time that Landlord
would otherwise be required to give an Offering Notice to Tenant pursuant to the
terms and conditions of this Article 40, if all or any portion of floors five
(5), six (6), eight (8), nine (9), eleven (11), fifteen (15) and/or sixteen (16)
of the Building (herein collectively called the "POTENTIAL OFFERING SPACE", and
any Potential Offering Space leased by Tenant pursuant to the terms hereof being
herein called "OFFERING SPACE") will become available for leasing to anyone
other than a Superior Occupant at any time when there will remain not less than
five (5) years in the term of this lease (including the First Extension Term
and/or the Second Extension Term if and to the extent Tenant has exercised its
option to extend the term of this lease in accordance with the provisions of
Article 36 hereof), then Landlord, before offering such Potential Offering Space
to anyone other than a Superior Occupant, shall offer to Tenant the right to
include such Potential Offering Space within the Premises on the terms and
conditions hereinafter set forth. If such Potential Offering Space will become
available for leasing at a time when there will remain less than five (5) years
in the term of this lease and Tenant shall not have theretofore exercised its
option to extend the initial term of this lease or the First Extension Term or
the Second Extension Term, as applicable, in accordance with the provisions of
Article 36 hereof, but Tenant's right to so extend the initial term or the First
Extension Term shall not have lapsed, Landlord, before offering such Potential
Offering Space to anyone other than a Superior Occupant, shall also offer to
Tenant the right to include such Potential Offering
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Space within the Premises on the terms and conditions hereinafter set forth;
PROVIDED, HOWEVER, that as a precondition to electing to include any Potential
Offering Space in the Premises, Tenant must give an Extension Notice to Landlord
for the First Extension Term or the Second Extension Term, as applicable, in
accordance with the provisions of Article 36 hereof at or before the time that
Tenant gives a Tenant's Acceptance Notice with respect to such Offering Space.
Landlord agrees to simultaneously deliver to Tenant a copy of each offer made by
Landlord to any Superior Occupant of any Potential Offering Space (herein called
the "SUPERIOR OCCUPANT OFFERING NOTICE"). Tenant hereby acknowledges that its
rights to any applicable Offering Space are subject and subordinate in all
respects to the rights of any applicable Superior Occupant to such Offering
Space. Any Offering Space included within the Premises pursuant to the terms and
conditions of this Article 40 shall be so included upon all of the terms and
conditions of this lease except that:
(a) The Fixed Rent with respect to such Offering Space shall
be an amount equal to the fair market rent for such Offering Space for a term
equal to the balance of the term of this lease (as same may have concurrently or
theretofore been extended pursuant to Article 36 of this lease or otherwise)
remaining after the Offering Space Inclusion Date, including any interim fixed
rent increases then being included in leases in first-class office buildings in
midtown Manhattan comparable to the Building, which Fixed Rent shall be
determined as of the Offering Space Inclusion Date and shall be set forth in a
written notice (herein called the "OFFER RENT NOTICE") given to Tenant on the
later to occur of (i) the date which is no later than six (6) months prior to
the Offering Space Inclusion Date for such Offering Space, or (ii) the date
Landlord sends the Offering Notice to Tenant for such Offering Space. For the
purposes of determining the fair market rent for any Offering Space, the
determination shall take into account all then relevant factors, including,
without limitation, that the Offering Space will be leased to Tenant using the
rentable square footage and Tenant's Share numbers and percentages set forth in
Section 40.01(b) hereof, notwithstanding that at the time of the Offering Space
Inclusion Date, such rentable square footage numbers and Tenant's Share
percentages may be more favorable to Tenant or Landlord based on then-prevailing
standards of measurement and loss factor applications for Comparable Buildings.
(b) Effective as of the Offering Space Inclusion Date, for
purposes of calculating the portion of Tenant's Operating Payment and Tenant's
Tax Payment allocable to the Offering Space: (i) the Base Operating Amount shall
be the Operating Expenses for the calendar year in which occurs the Offering
Space Inclusion Date, (ii) the Base Tax Amount shall be the Taxes for the Tax
Year in which occurs the Offering Space Inclusion Date, and (iii) Tenant's Share
attributable to the Offering Space shall be deemed to be the fraction, expressed
as a percentage, the numerator of which shall be the number of rentable square
feet included within the Offering Space and the denominator of which shall be
1,147,606. If Offering Space is added to the Premises in full-floor blocks, the
rentable square footage numbers and corresponding Tenant's Share percentages
shall be as follows:
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Rentable Square Feet Tenant's Share
-------------------- --------------
Floor 5 94,197 8.2081%
Floor 6 94,413 8.2270%
Floor 8 57,099 4.9755%
Floor 9 57,076 4.9735%
Floor 11 59,588 5.1924%
Floor 15 22,575 1.9671%
Floor 16 23,519 2.0494%
If Offering Space is added to the Premises in partial floor blocks, the numbers
and percentages set forth above shall be reduced proportionately, it being
understood and agreed that the rentable square footage of any partial floor
Offering Space shall include its proportionate share of the common corridor on
such multi-tenanted floor.
(c) Notwithstanding anything to the contrary contained in
any provision of this lease, there shall be no "free rent" period with respect
to any Offering Space and the absence of such "free rent" period shall be taken
into account in determining the fair market rent for such Offering Space if and
to the extent that "free rent" periods are then being included in leases in
first-class office buildings in midtown Manhattan comparable to the Building for
a term comparable to the remaining term of this lease (as same may have been
extended).
40.02. (a) Any offer pursuant to this Article 40 shall be made by
Landlord to Tenant in a written notice (herein called the "OFFERING NOTICE")
which offer shall designate the Potential Offering Space being offered and the
anticipated Offering Space Inclusion Date with respect thereto, as reasonably
estimated by Landlord in good faith. Tenant may accept the offer set forth in
the Offering Notice by delivering to Landlord an unconditional acceptance
(herein called "TENANT'S ACCEPTANCE NOTICE") of such offer within (i) fifteen
(15) Business Days after delivery by Landlord of the Offering Notice to Tenant
if the Potential Offering Space shall be less than 100,000 rentable square feet
in the aggregate or (ii) twenty (20) Business Days after delivery by Landlord of
the Offering Notice to Tenant if the Potential Offering Space shall be equal to
or more than 100,000 rentable square feet in the aggregate, which Tenant's
Acceptance Notice shall designate the Minimum Offering Space which Tenant elects
to have added to the Premises in accordance with the provisions of this Article
40; PROVIDED, HOWEVER, that (x) if Landlord shall have delivered to Tenant a
Superior Occupant Offering Notice with respect to such Potential Offering Space
pursuant to Section 40.01 hereof, then, in such event, with respect to the
Offering Notice for such Potential Offering Space only, the fifteen (15)
Business Day Period and the twenty (20) Business Day Period set forth in this
sentence shall each be reduced by five (5) Business Days and (y) with respect
only to Add-On Offering Space (as such term is hereinafter defined) the time
period for the giving of a Tenant's Acceptance Notice shall be ten (10) Business
Days. For purposes hereof, the term "ADD-ON OFFERING SPACE" shall mean any
additional block of Potential
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Offering Space offered to Tenant in accordance with the terms hereof after (i)
Tenant's right to lease a particular block of Potential Offering Space (herein
called the "REJECTED OFFERING SPACE") has lapsed or been waived, (ii) Landlord
has entered into negotiations with a prospective tenant of the Rejected Offering
Space and (iii) Landlord and such prospective tenant have agreed, subject to
Tenant's rights under this Article 40, to include such additional block of
Potential Offering Space in a lease between Landlord and such potential tenant
for the Rejected Offering Space. If Tenant exercises its option in accordance
with the provisions of this Article 40, Tenant shall accept the Minimum Offering
Space designated in Tenant's Acceptance Notice "as is" on the Offering Space
Inclusion Date and agrees that Landlord will not be required to make any
improvements therein. If Tenant exercises its option in accordance with the
provisions of this Article 40, the Minimum Offering Space described in Tenant's
Acceptance Notice shall be added to and included in the Premises on the later to
occur of (i) thirty (30) days after the day that Tenant exercises its option as
aforesaid (or such earlier date on which Tenant or anyone claiming by through or
under Tenant takes occupancy of all or any portion of the Offering Space for any
reason whatsoever, other than for measuring or other customary pre-construction
activities), or (ii) the date the Offering Space shall become available for
Tenant's possession and Landlord shall have provided advance written notice
thereof to Tenant (herein called the "OFFERING SPACE INCLUSION DATE"). Time
shall be of the essence with respect to the giving of Tenant's Acceptance
Notice. If Tenant does not accept (or fails to timely accept) an offer made by
Landlord pursuant to the provisions of this Article 40 with respect to the
Offering Space, Landlord shall at any and all times thereafter be entitled to
lease such Offering Space to others at such rental and upon such terms and
conditions as Landlord in its sole discretion may desire whether such rental
terms, provisions and conditions are the same as those offered to Tenant or more
or less favorable; PROVIDED, HOWEVER, that upon such leasing of such Offering
Space to anyone other than Tenant, such Offering Space shall again become
Potential Offering Space subject to the terms of this Article 40 should such
Offering Space again become available for leasing to anyone other than a
Superior Occupant. Tenant agrees not to lease any Offering Space for the
intended purpose of subletting or otherwise disposing or demising of the same or
any part thereof to others other than to Tenant's Affiliates and/or Tenant's
Service and Business Relationship Entities; provided, however, that (x) if the
Minimum Offering Space designated by Tenant in Tenant's Acceptance Notice
consists of more than one (1) full floor and Tenant intends to use at least one
(1) full floor of such Minimum Offering Space for use by Tenant and/or its
Affiliates, Tenant may lease such Minimum Offering Space even though Tenant may
intend to use all but one (1) full floor of such Minimum Offering Space for
subletting or otherwise disposing or demising of the same or any part thereof to
others other than to Tenant's Affiliates and (y) if the Offering Space
designated by Tenant in Tenant's Acceptance Notice is a Mandatory Block Offering
Space (as such term is defined in Section 40.07 hereof) and consists of more
than one (1) full floor and Tenant intends to use at least one (1) full floor of
such Mandatory Block Offering Space for use by Tenant and/or its Affiliates,
Tenant may lease such Mandatory Block Offering Space even though Tenant may
intend to use all but one (1) full floor of such Mandatory Block Offering Space
for subletting or otherwise
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disposing or demising of the same or any part thereof to others other than to
Tenant's Affiliates.
(b) For purposes hereof, the term "MINIMUM OFFERING SPACE"
shall mean that portion of the Potential Offering Space described in the
applicable Offering Notice which Tenant elects, in its sole discretion, to have
added to the Premises in accordance with the provisions of this Article 40,
which shall consist of either:
(i) the entire Potential Offering Space described
in the applicable Offering Notice;
(ii) one or more full floors of the Potential
Offering Space described in the applicable Offering Notice which are not
contiguous to any other full floors in such Potential Offering Space
(herein called "NON-CONTIGUOUS FLOORS");
(iii) all, but not less than all, of any block of
contiguous floors of the Potential Offering Space described in the
applicable Offering Notice (herein called a "CONTIGUOUS BLOCK"); or
(iv) any combination of Non-Contiguous Floors
and/or Contiguous Blocks.
Thus, for example, if Landlord gives an Offering Notice designating as the
Potential Offering Space floors five (5), six (6), eight (8), nine (9) and
eleven (11), Tenant shall have the right, in its sole discretion, to designate
as the Minimum Offering Space either:
(i) all of floors five (5), six (6), eight (8), nine (9) and eleven
(11);
(ii) floor eleven (11);
(iii) all of floors five (5) and six (6);
(iv) all of floors eight (8) and nine (9);
(v) all of floors five (5), six (6) and eleven (11); or
(vi) all of floors eight (8), nine (9) and eleven (11).
40.03. If any Offering Space shall not be available for Tenant's
occupancy on the anticipated Offering Space Inclusion Date set forth in the
Offering Notice for any reason, including the holding over of the prior tenant,
than Landlord and Tenant agree that, other than as set forth in this Section
40.03, the failure to have such Offering Space available for occupancy by Tenant
shall in no way affect the validity of this lease or the inclusion of such
Offering Space in the Premises or the obligations of Landlord or Tenant
hereunder, nor shall the same be construed in any way to extend the
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term of this lease, and for the purpose of this Article 40 the Offering Space
Inclusion Date shall be deferred to and shall be the date such Offering Space is
available for Tenant's occupancy unleased and free of tenants or other
occupants. In the event that Landlord shall fail to deliver possession of the
Offering Space on or before one hundred twenty (120) days after the anticipated
Offering Space Inclusion Date set forth in the Offering Notice (which one
hundred twenty (120) day period shall be extended for up to ninety (90)
additional days if Landlord is diligently pursuing efforts to evict any holdover
tenant of the Offering Space), irrespective of Force Majeure Causes, then Tenant
shall have the right, upon written notice to Landlord, to terminate this lease
with respect to such Offering Space and upon such termination Tenant shall have
no further obligations or liability in connection with such Offering Space. The
provisions of this Section 40.03 are intended to constitute "an express
provision to the contrary" within the meaning of Section 223-a of the New York
Real Property Law.
40.04. (a) In the event Tenant gives a Tenant's Acceptance Notice in
accordance with the provisions of Section 40.02 hereof, and Tenant disputes the
fair market rent as determined by Landlord pursuant to Section 40.01 hereof,
then at any time on or before the date occurring thirty (30) days after Tenant
has been notified by Landlord of Landlord's determination of the fair market
rent, Tenant may initiate the arbitration process provided for herein by giving
notice to that effect to Landlord, and if Tenant so initiates the arbitration
process such notice shall specify the name and address of the person designated
to act as an arbitrator on its behalf. If Tenant fails to initiate the
arbitration process within the aforesaid thirty (30) day period, Landlord shall
have the right to give a second notice to Tenant, which notice, as a condition
to its effectiveness, shall state in bold, upper case letters that it is a
DEEMED RENT ACCEPTANCE NOTICE, and if Tenant fails to initiate the arbitration
process within five (5) Business Days after the giving of such Deemed Rent
Acceptance Notice to Tenant, time being of the essence, then Landlord's
determination of an amount equal to the fair market rent shall be conclusive.
Within fifteen (15) Business Days after the Landlord's receipt of notice of the
designation of Tenant's arbitrator, Landlord shall give notice to Tenant
specifying the name and address of the person designated to act as an arbitrator
on its behalf. If Landlord fails to notify Tenant of the appointment of its
arbitrator within the time above specified, then Tenant shall provide an
additional notice to Landlord requiring Landlord's appointment of an arbitrator
within five (5) Business Days after Landlord's receipt thereof, which additional
notice specifically references this Section 40.04(a) and states that Landlord
must respond within five (5) Business Days, time being of the essence, or the
appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree upon
such appointment. If Landlord fails to notify Tenant of the appointment of its
arbitrator within the time specified by the second notice, the appointment of
the second arbitrator shall be made in the same manner as hereinafter provided
for the appointment of a third arbitrator in a case where the two arbitrators
appointed hereunder and the parties are unable to agree upon such appointment.
The two arbitrators so chosen shall meet within ten (10)
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Business Days after the second arbitrator is appointed, and shall exchange
sealed envelopes each containing such arbitrator's written determination of an
amount equal to the fair market rent of the Offering Space. The fair market rent
specified by Landlord's arbitrator shall herein be called "LANDLORD'S SUBMITTED
VALUE" and the fair market rent specified by Tenant's arbitrator shall herein be
called "TENANT'S SUBMITTED VALUE". Copies of such written determinations shall
promptly be sent to both Landlord and Tenant. Any failure of either such
arbitrator to meet and exchange such determinations shall be acceptance of the
other party's arbitrator's determination as the fair market rent, if, and only
if, such failure persists for five (5) days after notice to the party for whom
such arbitrator is acting, and provided that such five (5) day period shall be
extended by reason of any applicable condition of Force Majeure Causes. If the
higher determination of fair market rent for the space in question is not more
than one hundred two (102%) percent of the lower determination of the fair
market rent, then the fair market rent for such space shall be deemed to be the
average of the two determinations. If, however, the higher determination is more
than one hundred two (102%) percent of the lower determination, then within five
(5) days of the date the arbitrators submitted their respective fair market rent
determinations, the two arbitrators shall together appoint a third arbitrator.
In the event of their being unable to agree upon such appointment within ten
(10) Business Days after the appointment of the second arbitrator, the third
arbitrator shall be selected by the parties themselves if they can agree thereon
within a further period of ten (10) Business Days. If the parties do not so
agree, then either party, on behalf of both and on notice to the other, may
request such appointment by the AAA (or any organization successor thereto) in
accordance with the then prevailing Arbitration Rules for the Real Estate
Industry of the AAA. If the AAA (or any successor organization) shall fail to
appoint said third arbitrator within fifteen (15) days after such request is
made, then either party may apply, on notice to the other, to the Supreme Court,
New York County, New York (or any other court having jurisdiction and exercising
functions similar to those now exercised by said Court) for the appointment of
such third arbitrator. Within five (5) Business Days after the appointment of
such third arbitrator, Landlord's arbitrator shall submit Landlord's Submitted
Value to such third arbitrator and Tenant's arbitrator shall submit Tenant's
Submitted Value to such third arbitrator. Such third arbitrator shall, within
ten (10) Business Days after the end of such five (5) Business Day period, make
his or her own determination of an amount equal to the fair market rent of the
Offering Space, and send copies of his or her determination promptly to both
Landlord and Tenant specifying whether Landlord's Submitted Value or Tenant's
Submitted Value was closer to the determination by such third arbitrator of the
fair market rent of the Offering Space. Whichever of Landlord's Submitted Value
or Tenant's Submitted Value shall be closer to the determination by such third
arbitrator shall conclusively be deemed to be the fair market rent for the
Offering Space. If a third arbitrator is appointed, each party shall have a
right to present evidence to such third arbitrator, produce witnesses or experts
to be heard by such third arbitrator, and provide such other information that
may be relevant in connection with such third arbitrator's determination.
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(b) Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including the
attorneys' fees, witness fees and similar expenses of the parties which shall be
borne separately by each of the parties) of the arbitration shall be borne by
the parties equally.
(c) Each of the arbitrators selected as herein provided
shall have at least ten (10) years' experience in the leasing and renting of
office space in first-class office buildings in Manhattan. The third arbitrator
chosen or appointed pursuant to this Article 40 shall (i) agree in a writing
delivered to both Landlord and Tenant to fairly and impartially perform his or
her duties as such third arbitrator, (ii) not be an employee or past employee of
Landlord or Tenant or of any other person, partnership, corporation or other
form of business or legal association or entity that controls, is controlled by
or is under common control with Landlord or Tenant (and such third arbitrator
shall confirm same in the aforementioned writing) and (iii) never have
represented or been retained for any reason whatsoever by Landlord or Tenant or
any other person, partnership, corporation or other form of business or legal
association or entity that controls, is controlled by or is under common control
with Landlord or Tenant (and such third arbitrator shall confirm same in the
aforementioned writing). Any award rendered in accordance with the terms of this
Article 40 shall be final and binding on the parties, and judgment on any such
award may be entered in any court of competent jurisdiction in New York County.
(d) In the event Tenant elects the aforesaid arbitration
process and as of the Offering Space Inclusion Date the amount of the fair
market rent has not been determined, Tenant shall pay an amount equal to the
average of Landlord's Submitted Value and Tenant's Submitted Value for the
Offering Space and when the determination has actually been made, an appropriate
retroactive adjustment shall be made as of the Offering Space Inclusion Date. In
the event that such determination shall result in an underpayment by Tenant of
any Fixed Rent, such underpayment shall be paid by Tenant to Landlord within
thirty (30) days after such determination, together, with interest thereon at
the Base Rate from the date of such underpayment until paid. In the event that
such determination shall result in an overpayment by Tenant of any Fixed Rent,
such overpayment shall be paid by Landlord to Tenant within thirty (30) days
after such determination, together, with interest thereon at the Base Rate from
the date of such overpayment until paid. In the event that Landlord shall fail
to pay any such overpayments to Tenant within thirty (30) days after such
determination, Tenant shall be entitled to offset the amount thereof, together
with interest thereon at the Base Rate from the date of such overpayment until
offset, against Fixed Rent and Additional Charges thereafter becoming due.
40.05. The provisions of this Article 40 shall be effective only if,
upon both the Offering Space Inclusion Date and the date on which Tenant accepts
Landlord's offer an Eligible Renewal/ROFO Tenant is the tenant under this lease
and the
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Renewal/ROFO Occupancy Requirement is satisfied; PROVIDED, HOWEVER, that
the provisions of this Section 40.05 may, at its sole election, be waived by
Landlord at any time.
40.06. For the purposes of this Article 40, the term "SUPERIOR
OCCUPANT" shall mean, with respect to the Offering Space which is the subject of
an Offering Notice:
(a) any tenant or other occupant of the applicable
Offering Space, which has a right as of the date of this lease pursuant to such
tenant's lease or such occupant's occupancy agreement, as the case may be, to
extend the term of its lease or occupancy agreement; or
(b) any tenant or other occupant of the Building which
has a right as of the date of this lease pursuant to such tenant's lease or such
occupant's occupancy agreement to lease such Offering Space pursuant to a right
of first offer, an option or otherwise; or
(c) any tenant that has entered into a lease of
Rejected Offering Space, provided that such tenant's initial lease for such
Rejected Offering Space (any such lease, prior to its modification by any
amendment thereto, being herein called a "REJECTED OFFERING SPACE LEASE")
contains a right to extend the term of such lease; or
(d) any tenant occupying 100,000 rentable square feet or
more under a Rejected Offering Space Lease, which has a right to lease such
Offering Space which is the subject of an Offering Notice, pursuant to a right
of first offer or other option contained in such Rejected Offering Space Lease,
but only to the extent that such first offer or other option does not exceed one
(1) full floor effective from and after the fifth (5th) anniversary of the
applicable Rejected Offering Space Lease and one (1) additional full floor from
and after the tenth (10th) anniversary of the applicable Rejected Offering Space
Lease; provided further however, that if any such tenant shall fail to exercise
its first opportunity to exercise any such right of first offer or other option
occurring after the fifth (5th) anniversary or tenth (10th) anniversary, as the
case may be, such right of first offer or other option shall no longer be
superior to Tenant's right to lease such Offering Space under this Article 40.
40.07. The provisions of this Article 40 shall apply with full force
and effect if Landlord at any time wishes to enter into an agreement extending
the term of any lease existing as of the date of this lease with a tenant of
Potential Offering Space which does not have a right as of the date of this
lease to extend the term of such lease, except that the provisions hereof
permitting Tenant to elect to lease less than all of the Potential Offering
Space shall not apply and Tenant shall have the right to elect only to lease all
or none of the Potential Offering Space leased to such tenant (herein called a
"MANDATORY BLOCK OFFERING SPACE").
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40.08. Notwithstanding any language to the contrary contained in this
lease, Landlord and Tenant agree that the rights contained in this Article 40
are for the sole benefit of any Eligible Renewal/ROFO Tenant.
40.09. Notwithstanding anything to the contrary contained herein,
Must-Take Space (as such term is hereinafter defined) shall not in any event be
considered to be available for leasing to Tenant and Landlord shall have no
obligation to offer to Tenant the right to lease Must-Take Space pursuant to the
terms of this Article 40. For purposes hereof, "MUST-TAKE SPACE" shall mean any
rentable area of the Building which will be added to the premises of any other
tenant of the Building pursuant to an express provision in such other tenant's
lease requiring such rentable area to be added to such premises at a time
subsequent to the commencement date of such lease. By way of example, if:
(i) the 8th floor of the Building was scheduled to
come available for leasing on January 1, 2005,
(ii) the 9th floor of the Building was scheduled to
come available for leasing on January 1, 2006, and
(iii) Landlord wished to enter into a lease (herein called a
"MUST-TAKE LEASE") with a prospective tenant (herein called the "MUST-TAKE
TENANT") other than a Superior Occupant for both the 8th floor and the 9th
floor, for a term commencing on January 1, 2005 with respect to the 8th floor
and January 1, 2006 with respect to the 9th floor; then, subject to all of the
terms and conditions of this Article 40:
(x) Landlord, before entering into the Must-Take Lease,
would give Tenant an Offer Notice designating both the 8th floor and the 9th
floor as the Offering Space,
(y) if Tenant failed to exercise its option pursuant to
this Article 40 to both (A) have the 8th floor added to the Premises as of a
scheduled Offering Space Inclusion Date of January 1, 2005 and (B) have the 9th
floor added to the Premises as of a scheduled Offering Space Inclusion Date of
January 1, 2006, Landlord would have the right to enter into the Must-Take
Lease, and
(z) the addition of the 9th floor to the premises
demised by the Must-Take Lease on or about January 1, 2006 would not create any
obligation on the part of Landlord to offer to lease such 9th floor to Tenant
pursuant to the terms and conditions of this Article 40.
Notwithstanding anything to the contrary contained in this Section
40.09, if (i) Landlord gives Tenant an Offer Notice with respect to a Must-Take
Lease, (ii) Landlord does not enter into such Must-Take Lease and (iii) Landlord
thereafter wishes to lease separately the portions of the Offering Space that
had comprised the premises to
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be demised pursuant to such Must-Take Lease, the provisions of this Article 40
shall again apply with respect to each portion of the Offering Space that had
comprised the premises to be demised pursuant to such Must-Take Lease.
ARTICLE 41
UNIT ONE FIRST OFFER RIGHT
41.01. For purposes of this Article 41, the following terms shall have
the following meanings:
"UNIT ONE" shall mean Unit One of the Condominium, which contains
floors seventeen (17) through and including thirty-nine (39) of the Building.
"UNIT ONE OWNER" shall mean the owner of Unit One at the time in
question. Landlord is currently the Unit One Owner. The provisions of this
Article 41 shall be binding upon any successor to Landlord's ownership interest
as the Unit One Owner.
41.02. (a) Provided Tenant is not in monetary default or material
non-monetary default under the terms and conditions of this lease beyond the
expiration of any applicable notice and grace period at the time that the Unit
One Owner would otherwise be required to give a ROFO Notice to Tenant pursuant
to the terms and conditions of this Article 41, if any full floor in Unit One
(herein collectively called the "ROFO SPACE") will become available for leasing
to anyone other than a ROFO Superior Occupant at any time when there will remain
not less than five (5) years in the term of this lease (including the First
Extension Term and/or the Second Extension Term if and to the extent Tenant has
exercised its option to extend the term of this lease in accordance with the
provisions of Article 36 hereof), then the Unit One Owner, before offering such
ROFO Space to anyone other than a ROFO Superior Occupant, shall offer to Tenant
the right to enter into a lease with the Unit One Owner for such ROFO Space
(herein called the "UNIT ONE LEASE") on the terms and conditions hereinafter set
forth. If such ROFO Space will become available for leasing at a time when there
will remain less than five (5) years in the term of this lease and Tenant shall
not have theretofore exercised its option to extend the initial term of this
lease or the First Extension Term or the Second Extension Term, as applicable,
in accordance with the provisions of Article 36 hereof, but Tenant's right to so
extend the initial term or the First Extension Term or the Second Extension Term
shall not have lapsed, the Unit One Owner, before offering such ROFO Space to
anyone other than a ROFO Superior Occupant, shall also offer to Tenant the right
to enter into the Unit One Lease for such ROFO Space on the terms and conditions
hereinafter set forth; PROVIDED, HOWEVER, that as a precondition to electing to
lease any ROFO Space, Tenant must give an Extension Notice to Landlord for the
First Extension Term or the Second Extension Term, as applicable, in accordance
with the provisions of Article 36 hereof at or before the time that Tenant gives
a ROFO Acceptance Notice with respect to such ROFO Space. Landlord agrees to
simultaneously
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deliver to Tenant a copy of each offer made by Landlord to any ROFO Superior
Occupant of any ROFO Space (herein called "ROFO SUPERIOR OCCUPANT OFFERING
NOTICE"). Tenant hereby acknowledges that its rights to any applicable ROFO
Space are subject and subordinate in all respects to the rights of any
applicable ROFO Superior Occupant to such ROFO Space. The Unit One Lease shall
be upon the same terms and conditions of this lease except that the Fixed Rent
with respect to any ROFO Space shall be an amount equal to the fair market rent
for such ROFO Space for a term equal to the balance of the term of this lease
(as same may have concurrently or theretofore been extended pursuant to Article
36 of this lease or otherwise) remaining after the ROFO Inclusion Date,
including any interim fixed rent increases then being included in leases in
first-class office buildings in midtown Manhattan comparable to the Building,
which Fixed Rent shall be determined as of the ROFO Inclusion Date and shall be
set forth in a written notice given to Tenant on the later to occur of (i) the
date which is no later than six (6) months prior to the ROFO Inclusion Date for
such ROFO Space, or (ii) the date the Unit One Owner sends the ROFO Notice to
Tenant for such ROFO Space. For the purposes of determining the fair market rent
for any ROFO Space, the determination shall take into account all then relevant
factors.
(b) Effective as of the ROFO Inclusion Date, for purposes of
calculating the portion of Tenant's Operating Payment and Tenant's Tax Payment
allocable to the ROFO Space: (i) the Base Operating Amount shall be the
Operating Expenses for the calendar year in which occurs the ROFO Inclusion
Date, (ii) the Base Tax Amount shall be the Taxes for the Tax Year in which
occurs the ROFO Inclusion Date, and (iii) Tenant's Share attributable to the
ROFO Space shall be deemed to be the fraction, expressed as a percentage, the
numerator of which shall be the number of rentable square feet included within
the ROFO Space and the denominator of which shall be the number of rentable
square feet included within Unit One.
(c) Notwithstanding anything to the contrary contained in
Section 1.05 hereof or any other provision of this lease, there shall be no
"free rent" period, tenant improvement allowance or other tenant concessions
with respect to any ROFO Space and the absence of such "free rent" period,
tenant improvement allowance or other tenant concessions shall be taken into
account in determining the fair market rent for such ROFO Space if and to the
extent that "free rent" periods and/or tenant improvement allowances and/or
other tenant concessions are then being included in leases in first-class office
buildings in midtown Manhattan comparable to the Building for a term comparable
to the remaining term of this lease (as same may have been extended).
(d) The following Articles, Sections and Exhibits of this
lease shall not be included in the Unit One Lease:
(i) Sections 15.02(c)(iii) and 15.09; and
(ii) Articles 40, 44, 45, 46 and 47.
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(e) In addition to the foregoing, the Unit One Lease shall
contain such revisions from this lease as the context reasonably requires (E.G.,
references in this lease to Unit Two shall be replaced in the Unit One Lease
with references to Unit One).
41.03. (a) Any offer pursuant to this Article 41 shall be made by
the Unit One Owner to Tenant in a written notice (herein called the "ROFO
NOTICE") which offer shall designate the ROFO Space being offered and the
anticipated ROFO Inclusion Date with respect thereto, as reasonably estimated by
the Unit One Owner in good faith. Tenant may accept the offer set forth in a
ROFO Notice by delivering to the Unit One Owner an unconditional acceptance
(herein called a "ROFO ACCEPTANCE NOTICE") of such offer within (i) fifteen (15)
Business Days after delivery by the Unit One Owner of the ROFO Notice to Tenant
if the ROFO Space shall be less than 100,000 rentable square feet in the
aggregate, or (ii) twenty (20) Business Days after delivery by Landlord of the
ROFO Notice to Tenant if the ROFO Space shall be equal to or more than 100,000
rentable square feet in the aggregate, which Tenant's ROFO Acceptance Notice
shall designate the Minimum ROFO Space which Tenant elects to lease in
accordance with the provisions of this Article 41; PROVIDED, HOWEVER, that (x)
if Landlord shall have delivered to Tenant a ROFO Superior Occupant Offering
Notice with respect to such ROFO Space pursuant to Section 41.02(b) hereof,
then, in such event, with respect to the ROFO Notice for such ROFO Space only,
the fifteen (15) Business Day period and the twenty (20) Business Day period set
forth in this sentence shall each be reduced by five (5) Business Days and (y)
with respect only to Add-On ROFO Space (as such term is hereinafter defined) the
time period for the giving of a ROFO Acceptance Notice shall be ten (10)
Business Days. For purposes hereof, the term "ADD-ON ROFO SPACE" shall mean any
additional block of ROFO Space offered to Tenant in accordance with the terms
hereof after (i) Tenant's right to lease a particular block of ROFO Space
(herein called the "REJECTED ROFO SPACE") has lapsed or been waived, (ii)
Landlord has entered into negotiations with a prospective tenant of the Rejected
ROFO Space and (iii) Landlord and such prospective tenant have agreed, subject
to Tenant's rights under this Article 41, to include such additional block of
ROFO Space in a lease between Landlord and such potential tenant for the
Rejected ROFO Space. If Tenant exercises its option in accordance with the
provisions of this Article 41, Tenant shall accept the Minimum ROFO Space
designated in Tenant's ROFO Acceptance Notice "as is" on the ROFO Inclusion Date
and agrees that the Unit One Owner will not be required to make any improvements
therein. If Tenant exercises its option in accordance with the provisions of
this Article 41, the Minimum ROFO Space designated in Tenant's ROFO Acceptance
Notice shall be leased to Tenant for a term commencing the later to occur of (a)
thirty (30) days after the day that Tenant exercises its option as aforesaid (or
such earlier date on which Tenant or anyone claiming by through or under Tenant
takes occupancy of all or any portion of the ROFO Space for any reason
whatsoever, other than for measuring or other customary pre-construction
activities), or (b) the date the ROFO Space shall become available for Tenant's
possession and the Unit One Owner shall have provided advance written notice
thereof to Tenant (herein called the "ROFO INCLUSION DATE"),
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and ending on the Expiration Date. Time shall be of the essence with respect to
the giving of a ROFO Acceptance Notice. If Tenant does not accept (or fails to
timely accept) an offer made by the Unit One Owner pursuant to the provisions of
this Article 41 with respect to the ROFO Space, the Unit One Owner shall at any
and all times thereafter be entitled to lease such ROFO Space to others at such
rental and upon such terms and conditions as the Unit One Owner in its sole
discretion may desire whether such rental terms, provisions and conditions are
the same as those offered to Tenant or more or less favorable; PROVIDED,
HOWEVER, that upon such leasing of such ROFO Space to anyone other than Tenant,
such space shall again become ROFO Space subject to the terms of this Article 41
should such ROFO Space again become available for leasing to anyone other than a
ROFO Superior Occupant. Tenant agrees not to lease any ROFO Space for the
intended purpose of subletting or otherwise disposing or demising of the same or
any part thereof to others other than to Tenant's Affiliates and/or Tenant's
Service and Business Relationship Entities; PROVIDED, HOWEVER, that (x) if the
Minimum ROFO Space designated by Tenant in Tenant's ROFO Acceptance Notice
consists of more than one (1) full floor and Tenant intends to use at least one
(1) full floor of such Minimum ROFO Space for use by Tenant and/or its
Affiliates, Tenant may lease such Minimum ROFO Space even though Tenant may
intend to use all but one (1) full floor of such Minimum ROFO Space for
subletting or otherwise disposing or demising of the same or any part thereof to
others other than to Tenant's Affiliates and (y) if the ROFO Space designated by
Tenant in Tenant's ROFO Acceptance Notice is a Mandatory Block ROFO Space (as
such term is defined in Section 41.09 hereof) and consists of more than one (1)
full floor of such Mandatory Block ROFO Space for use by Tenant and/or its
Affiliates, Tenant may lease such Mandatory Block ROFO Space even though Tenant
may intend to use all but one (1) full floor of such Mandatory Block ROFO Space
for subletting or otherwise disposing or demising of the same or any part
thereof to others other than to Tenant's Affiliates.
(b) For purposes hereof, the term "MINIMUM ROFO SPACE" shall
mean that portion of the ROFO Space described in the applicable ROFO Notice
which Tenant elects, in its sole discretion, to lease in accordance with the
provisions of this Article 41, which shall consist of either:
(i) the entire ROFO Space described in the
applicable ROFO Notice;
(ii) one or more full floors of the ROFO Space
described in the applicable ROFO Notice which are not contiguous to any
other full floors in such ROFO Space (herein called "NON-CONTIGUOUS ROFO
FLOORS");
(iii) all, but not less than all, of any block of
contiguous floors of the ROFO Space described in the applicable ROFO Notice
(herein called a "CONTIGUOUS ROFO BLOCK"); or
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(iv) any combination of Non-Contiguous ROFO Floors
and/or Contiguous ROFO Blocks.
41.04. If any ROFO Space shall not be available for Tenant's occupancy
on the anticipated ROFO Inclusion Date set forth in the ROFO Notice for any
reason, including the holding over of the prior tenant, then Landlord, the Unit
One Owner and Tenant agree that, other than as set forth in this Section 41.04,
the failure to have such ROFO Space available for occupancy by Tenant shall in
no way affect the validity of this lease or the Unit One Lease, the leasing of
such ROFO Space by Tenant, the obligations of Landlord or Tenant hereunder or
the obligations of the Unit One Owner and Tenant under the Unit One Lease (if
any), nor shall the same be construed in any way to extend the term of this
lease or the Unit One Lease (if any), and for the purpose of this Article 41 the
ROFO Inclusion Date shall be deferred to and shall be the date such ROFO Space
is available for Tenant's occupancy unleased and free of tenants or other
occupants. In the event that the Unit One Owner shall fail to deliver possession
of the ROFO Space on or before the date that is one hundred twenty (120) days
after the anticipated ROFO Inclusion Date set forth in the ROFO Notice (which
one hundred twenty (120) day period shall be extended for up to ninety (90)
additional days if the Unit One Owner is diligently pursuing efforts to evict
any holdover tenant of the ROFO Space), irrespective of Force Majeure Causes,
then Tenant shall have the right, upon written notice to the Unit One Owner, to
withdraw its election to lease such ROFO Space and upon such withdrawal Tenant
shall have no further obligations or liability in connection with such ROFO
Space. The provisions of this Section 41.04 are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
41.05. In the event Tenant gives a ROFO Acceptance Notice in
accordance with the provisions of Section 41.03 hereof, and Tenant disputes the
fair market rent as determined by the Unit One Owner pursuant to Section 41.02
hereof, then the fair market rent for the applicable ROFO Space shall be
determined in accordance with the procedures set forth in Section 40.04 hereof,
as if all references therein to Landlord were references to the Unit One Owner
and all references therein to the Offering Space were references to the ROFO
Space.
41.06. The provisions of this Article 41 shall be effective only if,
upon both the ROFO Inclusion Date and the date on which Tenant accepts the Unit
One Owner's offer, an Eligible Renewal/ROFO Tenant is the tenant under this
lease and the Renewal/ROFO Occupancy Requirement is satisfied; PROVIDED,
HOWEVER, that the provisions of this Section 41.06 may, at its sole election, be
waived by the Unit One Owner at any time.
41.07. Intentionally Omitted.
41.08. For the purposes of this Article 41, the term "ROFO SUPERIOR
OCCUPANT" shall mean, with respect to the ROFO Space which is the subject of a
ROFO Notice:
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(a) any tenant or other occupant of the applicable
ROFO Space, which has a right as of the date of this lease pursuant to such
tenant's lease or such occupant's occupancy agreement to extend the term of its
lease or occupancy agreement; or
(b) any tenant or other occupant of the Building
which has a right as of the date of this lease pursuant to such tenant's lease
or such occupant's occupancy agreement to lease such ROFO Space pursuant to a
right of first offer, an option or otherwise; or
(c) any tenant that has entered into a lease of
Rejected ROFO Space, provided that such tenant's initial lease for such Rejected
ROFO Space (any such lease, prior to its modification by any amendment thereto,
being herein called a "REJECTED ROFO SPACE LEASE") contains a right to extend
the term of such lease; or
(d) any tenant occupying 100,000 rentable square feet or
more under a Rejected ROFO Space Lease, which has a right to lease such ROFO
Space which is the subject of a ROFO Notice, pursuant to a right of first offer
or other option contained in such Rejected ROFO Space Lease, but only to the
extent that such first offer or other option does not exceed one (1) full floor
effective from and after the fifth (5th) anniversary of the applicable Rejected
ROFO Space Lease and one (1) additional full floor from and after the tenth
(10th) anniversary of the applicable Rejected ROFO Space Lease; provided further
however, that if any such tenant shall fail to exercise its first opportunity to
exercise any such right of first offer or other option occurring after the fifth
(5th) anniversary or tenth (10th) anniversary, as the case may be, such right of
first offer or other option shall no longer be superior to Tenant's right to
lease such ROFO Space under this Article 41.
41.09. The provisions of this Article 41 shall apply with full force
and effect if Landlord at any time wishes to enter into an agreement extending
the term of any lease existing as of the date of this lease with a tenant of
ROFO Space which does not have a right as of the date of this lease to extend
the term of such lease, except that the provisions hereof permitting Tenant to
elect to lease less than all of the ROFO Space shall not apply and Tenant shall
have the right to elect only to lease all or none of the ROFO Space leased to
such tenant (herein called a "MANDATORY BLOCK ROFO SPACE").
41.10. Notwithstanding any language to the contrary contained in this
lease, Landlord and Tenant agree that the rights contained in this Article 41
are for the sole benefit of any Eligible Renewal/ROFO Tenant.
41.11. Notwithstanding anything to the contrary contained herein,
Must-Take ROFO Space (as such term is hereinafter defined) shall not in any
event be considered to be available for leasing to Tenant and Landlord shall
have no obligation to offer to Tenant the right to lease Must-Take ROFO Space
pursuant to the terms of this Article 41. For purposes hereof, "MUST-TAKE ROFO
SPACE" shall mean any rentable
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area of the Building which will be added to the premises of any other tenant of
the Building pursuant to an express provision in such other tenant's lease
requiring such rentable area to be added to such premises at a time subsequent
to the commencement date of such lease. By way of example, if:
(i) the 8th floor of the Building was scheduled to
come available for leasing on January 1, 2005,
(ii) the 9th floor of the Building was scheduled to
come available for leasing on January 1, 2006, and
(iii) Landlord wished to enter into a lease (herein
called a "MUST-TAKE ROFO LEASE") with a prospective tenant (herein called the
"MUST-TAKE ROFO TENANT") other than a ROFO Superior Occupant for both the 8th
floor and the 9th floor, for a term commencing on January 1, 2005 with respect
to the 8th floor and January 1, 2006 with respect to the 9th floor; then,
subject to all of the terms and conditions of this Article 41:
(x) Landlord, before entering into the
Must-Take ROFO Lease, would give Tenant a ROFO Notice designating both the 8th
floor and the 9th floor as the ROFO Space,
(y) if Tenant failed to exercise its option
pursuant to this Article 41 to both (A) have the 8th floor added to the Premises
as of a scheduled ROFO Inclusion Date of January 1, 2005 and (B) have the 9th
floor added to the Premises as of a scheduled ROFO Inclusion Date of January 1,
2006, Landlord would have the right to enter into the Must-Take ROFO Lease, and
(z) the addition of the 9th floor to the
premises demised by the Must-Take ROFO Lease on or about January 1, 2006 would
not create any obligation on the part of Landlord to offer to lease such 9th
floor to Tenant pursuant to the terms and conditions of this Article 41.
Notwithstanding anything to the contrary contained in this Section
41.11, if (i) Landlord gives Tenant a ROFO Notice with respect to a Must-Take
ROFO Lease, (ii) Landlord does not enter into such Must-Take ROFO Lease and
(iii) Landlord thereafter wishes to lease separately the portions of the ROFO
Space that had comprised the premises to be demised pursuant to such Must-Take
ROFO Lease, the provisions of this Article 41 shall again apply with respect to
each portion of the ROFO Space that had comprised the premises to be demised
pursuant to such Must-Take ROFO Lease.
41.12. If Tenant gives a ROFO Acceptance Notice pursuant to Section
41.03 hereof, the Unit One Owner shall, within ten (10) Business Days after its
receipt of such ROFO Acceptance Notice, deliver to Tenant for Tenant's execution
a Unit One Lease in the form provided for in Section 41.02 hereof.
Notwithstanding anything to the
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contrary contained in this lease, Tenant's remaining rights under the Article 41
shall be incorporated into the Unit One Lease and the provisions of this Article
41 shall be of no further force or effect.
41.13. BP 399 Park Avenue LLC is signing this lease in its capacity as
the Unit One Owner in the place provided at the end of the signature pages
hereof for the sole purpose of agreeing to be bound by the terms and conditions
of this Article 41 and creating a contractual agreement between the Unit One
Owner and Tenant on the terms and conditions of this Article 41 (the "UNIT ONE
ROFO CONTRACT"). Any breach by Tenant of the terms and conditions of this
Article 41 shall be deemed a breach of the Unit One ROFO Contract, but not a
breach of this lease. Any breach by the Unit One Owner of the terms and
conditions of this Article 41 shall be deemed a breach of the Unit One ROFO
Contract, but not a breach of this lease.
ARTICLE 42
INTENTIONALLY OMITTED
ARTICLE 43
INTENTIONALLY OMITTED
ARTICLE 44
LEHMAN TENANT'S EXISTING FACILITIES
44.01. (a) Landlord and Tenant agree and acknowledge that (i)
immediately prior to the date of this lease, Tenant was the landlord under that
certain restated and amended lease (herein called the "LEHMAN LEASE") dated as
of October 1, 2001 with Lehman Brothers, Inc. (herein called the "LEHMAN
TENANT") with respect to certain space in the Building and (ii) the Lehman
Tenant shall make available to Landlord certain cafeteria services in accordance
with the provisions of the Lehman Lease (herein called the "LEHMAN CAFETERIA
SERVICES"), (iii) Landlord hereby assigns to Tenant all right of Landlord under
the Lehman Lease to the Lehman Cafeteria Services and (iv) Tenant shall have the
right to approve each Cafeteria Vendor (as defined in the Lehman Lease), which
approval Tenant shall not unreasonably withhold, condition or delay. Any
disapproval of the Lehman Tenant's proposed Cafeteria Vendor shall set forth
Tenant's reasons for such disapproval in reasonable detail. If Tenant shall fail
to respond to Landlord's written request for approval of a proposed Cafeteria
Vendor (herein called an "INITIAL CAFETERIA VENDOR APPROVAL REQUEST") within ten
(10) days after the Initial Cafeteria Vendor Approval Request is made by
Landlord, then Landlord shall have the right to give to Tenant a second notice
(herein called a "SECOND CAFETERIA VENDOR APPROVAL REQUEST"), and if Tenant
shall fail to respond to such Second Cafeteria Vendor Approval Request within
five (5) days after Tenant's receipt thereof, then such Second Cafeteria Vendor
Approval Request shall be deemed approved by Tenant, provided that
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such Initial Cafeteria Vendor Approval Request and Second Cafeteria Vendor
Approval Request shall have specifically referred to this Section 44.01(a) and
specifically stated that Tenant must respond within such ten (10) day and five
(5) day periods or such Second Cafeteria Vendor Approval Request shall be deemed
approved. Notwithstanding anything to the contrary contained herein, as a
condition precedent to its effectiveness, a Second Cafeteria Vendor Approval
Request shall state in upper case, bold type that it is a "DEEMED APPROVAL
NOTICE". As of the date hereof, Tenant hereby approves either Sodexho Marriott
or Restaurant Associates as the Cafeteria Vendor.
(b) If the Lehman Tenant shall fail to provide to Tenant
the Lehman Cafeteria Services, then, upon Tenant's written request, Landlord
shall use commercially reasonable effects to enforce the rights of Landlord
under the Lehman Lease with respect to the Lehman Cafeteria Services.
(c) Landlord shall not amend or modify the Lehman Lease so
as to decrease or otherwise adversely affect Landlord's and/or Tenant's rights
with respect to the Lehman Cafeteria Services.
(d) Tenant hereby acknowledges the Lehman Tenant's rights
under the Lehman Lease with respect to the Lehman Tenant's right to use the
auditorium in the Premises and that this lease and Tenant are subject to the
terms thereof as of the date of this lease; but only for so long as Tenant
elects, in its sole discretion, to continue to operate the auditorium, subject,
however, to the rights of the Lehman Tenant under the Lehman Lease as of the
date of this lease. Landlord hereby acknowledges that Tenant shall be entitled
to any and all amounts which are payable under the applicable provisions of the
Lehman Lease to the landlord under the Lehman Lease in connection with the
Lehman Tenant's use of the auditorium in the Premises and that any such amounts
shall be payable to Tenant, and not to the landlord under the Lehman Lease, and
Landlord hereby assigns to Tenant all right, title and interest of Landlord in
and to any such amounts and Tenant hereby assumes until the expiration or
earlier termination of this lease with respect to the auditorium all of the
obligations of Landlord under the Lehman Lease with respect to the Lehman
Tenant's right to use the auditorium in the Premises. Tenant hereby indemnifies
and holds Landlord harmless from and against any loss, cost or damage incurred
in connection with Landlord's obligations under the Lehman Lease arising from
the actions or inaction of Tenant in connection therewith with respect to the
Lehman Tenant's right to use the auditorium in the Premises during the period
that Tenant shall operate the auditorium (or arising from Tenant's failure to
operate same prior to the expiration or earlier termination of this lease with
respect to the auditorium if and to the extent the Lehman Tenant has the right
to have same operated under the Lehman Lease) (unless Tenant is prevented from
providing the Lehman Tenant with use of the auditorium due to any action or
inaction of Landlord or the Board of Managers).
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ARTICLE 45
LOBBY DESKS AND SIGNAGE
45.01. Throughout the term of this lease, for so long as Tenant meets
the Signage Occupancy Requirement Tenant shall have the right, without charge,
to the exclusive use of the portions of the reception/concierge desks located in
the lobby of the Building, substantially in the locations shown on EXHIBIT X
annexed hereto (herein collectively called the "TENANT'S RECEPTION DESK").
Subject to Landlord's rights set forth in Section 16.15(d) hereof, for so long
as Tenant meets the Minimum Signage Occupancy Requirement Landlord shall not
install, or consent to, or otherwise permit, the installation (except to the
extent permitted under leases in existence on the date of this lease), any
additional reception/concierge desks in any lobby of the Building without the
prior written approval of Tenant.
45.02. Tenant shall have the right, at Tenant's sole cost and expense,
to install and to thereafter operate during the term of this lease,
communication, computer and security equipment at Tenant's Reception Desk and,
in connection therewith, to run any necessary cabling and wiring from Tenant's
Reception Desk to certain electrical and telecommunications closets which are
already in place as of the Commencement Date and with respect to any subsequent
installations as designated by Landlord in Landlord's reasonable discretion. The
installation of such subsequent equipment and wiring as described in the
preceding sentence (collectively, the "RECEPTION DESK WORK") shall be performed
by Tenant in accordance with the applicable provisions of Article 11 and EXHIBIT
E hereof and in accordance with plans and specifications approved by Landlord
subject to and in accordance with the applicable provisions of Article 11 and
EXHIBIT E hereof, which approval by Landlord shall extend to all aesthetic
aspects of the Reception Desk Work, including, without limitation, design, size,
color, finish, materials and manner of installation, except as otherwise
provided herein, and which approval shall not be unreasonably conditioned,
withheld or delayed. Tenant shall not make any alterations to Tenant's Reception
Desk or in or to the Building lobbies following the completion of the Reception
Desk Work without Landlord's prior written consent, which consent (a) Landlord
shall have the right to withhold in its sole discretion to the extent that such
alteration affects the design or appearance of Tenant's Reception Desk or the
Building lobbies and (b) Landlord shall otherwise withhold or grant in
accordance with the applicable provisions of Article 11 and EXHIBIT E hereof.
45.03. Tenant shall have the right to install, as part of the
Reception Desk Work, and to thereafter maintain, at Tenant's sole cost and
expense, signage identifying Tenant on Tenant's Reception Desk ("TENANT'S
RECEPTION DESK SIGNAGE"). The design, font, size, color, materials, finish and
manner of installation of any such signage shall be subject to Landlord's prior
approval, which approval shall not be unreasonably conditioned, withheld or
delayed. As of the date of this lease, Landlord approves the Tenant's Reception
Desk Signage in place as of the Commencement Date.
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45.04. Tenant shall have the right to station one or more employees at
Tenant's Reception Desk, provided and on condition that such employees
("TENANT'S RECEPTION DESK EMPLOYEES") shall be trained by Tenant, at Tenant's
sole cost and expense, and shall perform their duties in a manner appropriate
for Comparable Buildings and comply with any applicable reasonable rules and
regulations promulgated by Landlord. In addition, Tenant's Reception Desk
Employees shall wear business apparel reasonably approved by Landlord and shall
at all times prominently display on such business apparel identification which
identifies such persons as Tenant's Reception Desk Employees. As of the date of
this lease, Landlord approves the business apparel being worn by Tenant's
Reception Desk Employees as of the Commencement Date. In the event that any
conduct by Tenant's Reception Desk Employees shall in Landlord's reasonable
opinion violate the provisions of this Section 45.04, Tenant shall correct such
conduct or condition promptly after notice thereof.
45.05. If, at any time during the term of this lease, Tenant shall
cease to meet the Signage Occupancy Requirement, Tenant's right under this
Article 45 shall terminate. Upon the expiration or earlier termination of the
term of this lease or upon any earlier date upon which Tenant's rights under
this Article 45 shall terminate as set forth in the preceding sentence, Tenant,
at its sole cost and expense, shall promptly remove its personal property,
equipment, wiring and other installations from Tenant's Reception Desk and
repair any damage to the Building resulting therefrom and, at Landlord's option,
upon notice given to Tenant no later than forty-five (45) days prior to the
Expiration Date or upon reasonable notice with respect to such earlier date upon
which Tenant's rights under this Article 45 shall terminate, (a) Tenant shall
promptly remove any portion of the Reception Desk Work designated in Landlord's
notice and restore the affected portions of the Building to their condition
immediately preceding the performance of such portion of the Reception Desk Work
or (b) Landlord shall remove any portion of the Reception Desk Work, as elected
by Landlord in Landlord's sole discretion, and make any repairs thereto
necessitated by such removal and Tenant shall reimburse Landlord for the
commercially reasonable and actual out-of-pocket costs and expenses incurred by
Landlord in connection with such removal, which amounts shall be payable as
Additional Charges hereunder within thirty (30) days after Tenant shall have
been billed therefor, together with reasonable supporting documentation.
Tenant's obligations pursuant to the preceding sentence shall survive the
expiration of the term of this lease.
45.06. Tenant shall be responsible throughout the term of this lease
to maintain Tenant's Reception Desk and the Reception Desk Work in good order
and repair to the reasonable satisfaction of Landlord. Any such repairs shall be
performed by Tenant at such times and in such a manner as reasonably designated
or approved by Landlord.
45.07. Tenant shall not transfer all or any portion of the rights
granted to Tenant pursuant to this Article 45, except that Tenant shall have the
right to transfer its
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rights under this Article 45 to any permitted assignee of this lease who meets
the Signage Occupancy Requirement or any (but not more than one) permitted
subtenant of Tenant who meets the Signage Occupancy Requirement, in which event
such assignee shall succeed to the rights of Tenant under this Article 45, or in
the case of a sublease, such subtenant shall have the rights of Tenant under
this Article 45 for so long as such sublease shall be in full force and effect,
except that (a) such assignee or subtenant shall not be permitted to further
assign or transfer its rights under this Article 45 and (b) such assignee or
subtenant shall not have the right to maintain identifying signage on Tenant's
Reception Desk, except as otherwise set forth in Section 45.08 hereof. Any
request by Tenant for Landlord's consent to such proposed assignment or sublease
(or any notice to Landlord of a transaction for which Landlord's consent is not
required pursuant to Section 7.02 hereof) shall advise Landlord of Tenant's
intent to so assign its rights under this Article 45.
45.08. (a) In the event that (i) Tenant assigns this lease or
sublets the Premises to an assignee or subtenant, as the case may be, who meets
the Signage Occupancy Requirement, and (ii) Landlord permits any other tenant or
occupant of the Building, other than Landlord or Landlord's Affiliates, to
install identifying signage in the lobby of the Building (whether on a
reception/concierge desk or otherwise), then, for so long as Tenant's assignee
or subtenant meets the Signage Occupancy Requirement, Landlord shall permit such
assignee or subtenant to install and thereafter maintain throughout the term of
this lease or the term of such sublease, as the case may be (or until such time
that such assignee or subtenant ceases to meet the Signage Occupancy
Requirement) identifying signage in such lobby (or lobbies) in a location or
locations (on Tenant's Reception Desk or otherwise) as reasonably designated by
Landlord, and subject to Landlord's approval of the design, font, size, color,
materials, finish and manner of installation of such signage which approval
shall not be unreasonably conditioned, withheld or delayed; provided, however,
that such signage shall in any event be comparable in size and prominence to the
signage permitted to be installed by such other tenant or occupant. However, no
such assignee or subtenant shall have the right to maintain identifying signage
in the lobby of the Building (whether on Tenant's Reception Desk or otherwise)
if no other tenant or occupant of the Building (other than Landlord or
Landlord's Affiliates) has been granted such signage rights, regardless of
whether such assignee or subtenant meets the Signage Occupancy Requirement.
(b) In the event that Tenant's assignee or subtenant
shall install any such signage pursuant to this Section 45.08:
(i) such assignee shall be responsible throughout
the term of this lease, or such subtenant shall be responsible throughout
the term of the sublease, as the case may be, to maintain such signage in
good order and repair to the reasonable satisfaction of Landlord (any such
repairs to be performed at such times and in such a manner as reasonably
designated or approved by Landlord);
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(ii) if such assignee or subtenant shall
thereafter cease to meet the Signage Occupancy Requirement, such assignee's
or subtenant's rights under this Section 45.08 shall terminate; and
(iii) upon the expiration or earlier termination of
the term of this lease or the term of the sublease, as the case may be, or
upon any earlier date upon which such assignee's or subtenant's rights
under this Section 45.08 shall terminate as set forth in clause (ii)
hereof, at Landlord's option, upon notice given to such assignee or
subtenant no later than forty-five (45) days prior to the Expiration Date
(or the expiration of the term of the sublease, as the case may be) or upon
reasonable notice with respect to such earlier date upon which such
assignee's or subtenant's rights under this Section 45.08 shall terminate,
(A) such assignee or subtenant shall promptly remove such signage and
restore the affected portions of the Building to their condition
immediately preceding the installation of such signage or (B) Landlord
shall remove such signage and make any repairs necessitated by such
removal, and such assignee or subtenant shall reimburse Landlord for the
commercially reasonable and actual out-of-pocket costs and expenses
incurred by Landlord in connection with such removal, which amounts shall
be payable as Additional Charges within thirty (30) days after such
assignee or subtenant shall have been billed therefor, together with
reasonable supporting documentation. The obligations of such assignee or
subtenant pursuant to the preceding sentence shall survive the expiration
of the term of this lease or the term of such sublease, as the case may be.
45.09. The provisions of Section 18.02 hereof shall apply with respect
to Tenant's Reception Desk and the operation thereof.
ARTICLE 46
TENANT'S ANTENNA
46.01. (a) Landlord agrees that, subject to all applicable Legal
Requirements, and further subject to the terms, conditions and limitations as
are hereinafter set forth, during the term of this lease, Tenant, at Tenant's
sole cost and expense, shall have the right, as an incident to the conduct of
Tenant's business in the Premises, to install in Tenant's Rooftop Area and
thereafter maintain, repair, and operate (i) one or more communications apparati
(E.G., without limitation, antennae, microwave dishes or satellite
communications apparati), including Tenant's existing microwave dish and
satellite room and the conduit and piping connecting same (herein collectively
called "TENANT'S EXISTING ANTENNA") located on the portions of the forty-second
(42nd) floor rooftop of the Building approximately as indicated on EXHIBIT Y
annexed hereto (herein called "TENANT'S EXISTING ROOFTOP AREA"; such
communications apparati, together with related support structures, wires and
cables, and including Tenant's Existing Antenna, being herein collectively
called the "ANTENNA") and (ii) other Tenant's Mechanical
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Equipment serving the Premises (including, by way of example, equipment serving
Tenant's supplemental air-conditioning systems (the Antenna and Tenant's
Mechanical Equipment is herein collectively called "TENANT'S ROOFTOP
EQUIPMENT"), provided and on condition that:
(i) the size and dimensions of the Antenna (other than
Tenant's Existing Antenna) shall not exceed six (6) feet in diameter and
the size and dimensions of any reasonably required support structures shall
be subject to Landlord's prior consent, such consent not to be unreasonably
withheld or delayed (PROVIDED, HOWEVER, that Landlord hereby consents to
the size and dimensions of Tenant's Existing Antenna and the support
structures currently in place in connection therewith);
(ii) the installation and position of Tenant's Rooftop
Equipment and reasonably required support structures shall comply with all
applicable Legal Requirements;
(iii) the installation of any electrical or
communications lines (herein called "WIRING") and related equipment in
connection with the installation and operation of Tenant's Rooftop
Equipment (other than Tenant's Existing Antenna), as well as the manner and
location (I.E., routing) of all Wiring and related equipment in connection
therewith shall (A) be at Tenant's sole cost and expense, (B) be subject to
Landlord's prior consent, such consent to be given or granted as if the
same were in respect of an Alteration; and (C) comply with all applicable
Legal Requirements;
(iv) Tenant's Rooftop Equipment and the reasonably
required support structures, Wiring and related equipment shall be
maintained and kept in repair by Tenant, at Tenant's sole cost and expense;
(v) intentionally omitted;
(vi) Tenant shall perform any installation of Tenant's
Rooftop Equipment in a manner that will not void or compromise any of
Landlord's rights under any warranty or guaranty applicable to the roof of
the Building;
(vii) the Tenant's Rooftop Equipment does not interfere
with or impair the proper and economical functioning of the Building
equipment, including any of the antennas already existing on the roof; and
(viii) Tenant's Rooftop Equipment shall be installed in
a manner that minimizes any adverse impact on the visual appearance of the
Building.
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(b) The parties agree that Tenant will have the exclusive right
to utilize Tenant's Existing Rooftop Area for so long as the Antenna or any
replacement thereof remains thereon and that Landlord may permit the use of any
other portion of the roof to any other tenant or occupant of the Building for
any use including the installation of other antennae and support equipment,
subject to the rights of Tenant under this Article 46. Tenant shall cooperate
reasonably with any other tenant or person (herein called a "ROOF USER") having
equipment, installations, lines or machinery on the roof of the Building (herein
called "ROOFTOP INSTALLATIONS") so as not to cause (or to eliminate) any
interference or adverse effect caused to such Rooftop Installations or the use,
repair, maintenance or removal thereof by Tenant's Rooftop Equipment, and
Landlord shall cooperate reasonably and shall use reasonable efforts to cause
any Roof User to cooperate reasonably with Tenant so as not to cause (or to
eliminate) any interference or adverse effect caused to Tenant's Rooftop
Equipment or the use, repair, maintenance or removal thereof by Landlord's or
such Roof User's Rooftop Installations.
(c) Landlord acknowledges that Tenant may desire to use rooftop
space in addition to Tenant's Existing Rooftop Area. Landlord agrees that (i)
with respect to space on the forty-second (42nd) floor rooftop of the Building,
upon Tenant's written request, Landlord will reserve a portion or portions of
such floor of the Building, not to exceed in the aggregate Tenant's pro rata
share of the unused area thereof (calculated on the basis of the proportion that
the rentable area of the Premises bears to the rentable area of the Building),
for Tenant's exclusive use for purposes of the operation and maintenance of
Tenant's satellite room and installation, operation and maintenance of Tenant's
Rooftop Equipment and (ii) with respect to actual rooftop space, upon Tenant's
written request, Landlord will, subject to availability (which shall be
determined in Landlord's sole discretion), reserve such space for Tenant's
exclusive use for purposes of the installation, operation and maintenance of
Tenant's Rooftop Equipment, provided that with respect to all Tenant's Rooftop
Equipment installed in such additional space, Tenant shall satisfy each and
every requirement set forth in this Article 46. Such additional space used by
Tenant pursuant to this Section 46.01(c), together with Tenant's Existing
Rooftop Area, shall be referred to as "TENANT'S ROOFTOP AREA".
46.02. If Tenant shall use or reserve for its exclusive use any
portion of the rooftop of the Building pursuant to Section 46.01(c) hereof,
other than Tenant's Existing Rooftop Area, Tenant shall pay to Landlord as
Additional Charges hereunder, in consideration for the use of such additional
portion of the rooftop during the period commencing on the date upon which
Landlord shall make such additional portion of the Tenant's Rooftop Area
available to Tenant (each, herein called a "ROOFTOP COMMENCEMENT DATE") and
ending on the earlier of (a) the Expiration Date or (b) the later of (i) the
date on which Tenant shall have removed Tenant's Rooftop Equipment from such
additional portion of the Tenant's Rooftop Area and (ii) the date on which
Landlord receives notice that Tenant has elected to surrender such additional
portion of the Tenant's Rooftop Area to Landlord (herein called the "ROOFTOP
EXPIRATION DATE"), a
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monthly charge (herein called the "ROOFTOP FEE") equal to the then prevailing
rate that would be charged to tenants of the Building for such additional
portion of the Tenant's Rooftop Area in Landlord's reasonable judgment. The
Rooftop Fee with respect to each portion of the Tenant's Rooftop Area (other
than Tenant's Existing Rooftop Area) will be payable to Landlord in monthly
installments on the first day of each month during the period commencing on the
Rooftop Commencement Date and ending on the Rooftop Expiration Date with respect
to such portion of the Tenant's Rooftop Area.
46.03. For the purpose of installing, servicing or repairing Tenant's
Rooftop Equipment, Tenant shall have reasonable access to the rooftop of the
Building upon prior reasonable request to Landlord. All access by Tenant to the
roof of the Building shall be subject to the supervision and control of
Landlord, and Landlord's reasonable safeguards for the security and protection
of the Building, the Building equipment, and installations and equipment of
other tenants of the Building (or other persons) as may be located on the roof
of the Building. To the extent that Landlord provides an engineer or other
Building representative to accompany Tenant's employees and/or contractors for
the duration of Tenant's access to the rooftop, Landlord shall provide such
engineer or Building representative without additional charge to Tenant,
provided that it does not require more than a reasonable amount of time (failing
which Landlord shall be entitled to assess a reasonable additional charge) and
further provided that the foregoing shall not be deemed to prohibit Landlord
from including the salary of such engineer or Building representative in
Operating Expenses subject to and in accordance with the provisions of Article 3
hereof.
46.04. Tenant agrees that Tenant will pay for all electrical service
required for Tenant's use of Tenant's Rooftop Equipment in accordance with
Article 14 hereof off of the existing Building feeds.
46.05. Tenant, at Tenant's sole cost and expense, agrees to promptly
and faithfully obey, observe and comply with all Legal Requirements in any
manner affecting or relating to Tenant's use of said roof as to the
installation, repair, maintenance and operation of Tenant's Rooftop Equipment.
Tenant, at Tenant's sole cost and expense, shall secure and thereafter maintain
all permits and licenses required for the installation and operation of Tenant's
Rooftop Equipment, including any approval, license or permit required from the
Federal Communications Commission. In no event shall the maximum level of
microwave emissions from the Antenna exceed an amount equal to Tenant's
proportionate share of the total microwave emissions allowable for the Building
as determined by the governmental authorities having jurisdiction thereof.
46.06. Tenant's Rooftop Equipment shall be Tenant's personal property,
and, upon the Expiration Date, or earlier termination of this lease, any
Tenant's Rooftop Equipment shall be removed by Tenant at Tenant's sole cost and
expense. All Wiring and related electrical equipment installed by Tenant in
connection with the installation and operation of Tenant's Rooftop Equipment
shall be Tenant's personal property. Upon the
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Expiration Date, or earlier termination of this lease, if Landlord so directs by
written notice to Tenant, Tenant shall promptly remove the Wiring and electrical
equipment as designated in such notice, at Tenant's sole cost and expense.
Tenant, at Tenant's sole cost and expense, shall promptly repair any and all
damage to the rooftop of the Building and to any other part of the Building
caused by or resulting from the installation, maintenance and repair, operation
or removal of Tenant's Rooftop Equipment and restore said affected areas to
their condition as existed prior to the installation of Tenant's Rooftop
Equipment, subject to normal wear and tear and damage by fire or other casualty
not caused by Tenant.
46.07. Tenant will, and does hereby, indemnify and save harmless the
Landlord Parties from and against (but in no event will Tenant be liable for
consequential damages) any and all claims, costs, expenses, fees or suits
arising out of accidents, damage, injury or loss to any and all persons and
property arising in connection with the erection, installation, maintenance and
operation and repair of Tenant's Rooftop Equipment except to the extent caused
by the negligence or willful misconduct of Landlord, its agents or employees.
Tenant shall not use or permit the use of the Tenant's Rooftop Equipment or
Tenant's Rooftop Area in any manner that might violate any applicable legal or
insurance requirement. Tenant represents, warrants and covenants that the
installation, operation, maintenance and repair of the Tenant's Rooftop
Equipment shall not adversely affect the insurance coverage for the Unit and the
Building, and in the event that any such installation, operation, maintenance or
repair shall result in an increase in the premiums for such coverage, then
Tenant shall from time to time pay the amount of such increase, as Additional
Rent, to Landlord within thirty (30) days after Landlord's demand therefor.
Subject to the provisions of Section 9.07 hereof with respect to self-insurance,
Tenant shall obtain and maintain such insurance coverage with respect to
Tenant's Rooftop Equipment and Tenant's Rooftop Area for the benefit of Landlord
and its managing agent in such amount and of such type as Landlord may
reasonably require from time to time; provided that such insurance shall not be
in amounts that are in excess of the amounts generally required by landlords of
Comparable Buildings.
46.08. All plans and specifications of Tenant's work and installations
to be done and made by Tenant pursuant to the provisions of this Article 46
shall be subject to the prior approval of Landlord, such approval not to be
unreasonably withheld or delayed.
46.09. Tenant shall not be permitted to assign, transfer, sublet or
sublicense all or any portion of the rights granted to Tenant pursuant to this
Article 46 unless Tenant assigns this lease to the party to whom such rights are
assigned or transferred pursuant to Article 7 hereof or unless Tenant subleases
all or substantially all of the Premises pursuant to Article 7, in which case
such subtenant shall have the rights of Tenant hereunder for so long as such
sublease shall be in full force and effect.
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ARTICLE 47
BACK-UP POWER SYSTEM
47.01. (a) Tenant shall have the right to install and thereafter at
any time during the term of this lease to maintain, operate and replace (it
being understood and agreed that the provisions of this Article 47 with respect
to the initial installation shall apply to any such replacement): (i) one or
more battery-powered uninterruptible power systems (each herein called a "UPS
BATTERY SYSTEM") in a portion or portions of the Premises to be designated by
Tenant (each such portion herein called a "UPS AREA") and (ii) two (2) diesel
generators and two (2) chiller units, one which is an 80 ton unit and one which
is a 40 ton unit (herein collectively called the "DIESEL GENERATOR") in the
portions of the Building designated on EXHIBIT Z annexed hereto (herein called
the "GENERATOR AREA", the UPS Battery System and the Diesel Generator are
sometimes herein collectively called the "BACK-UP POWER SYSTEM"; the UPS Area
and the Generator Area are sometimes herein collectively called the "BACK-UP
POWER SYSTEM AREA"); provided that in connection with such installation of the
Back-Up Power System Tenant hereby covenants and agrees that:
(i) such installation shall be performed in
accordance with all applicable Legal Requirements and with all of the
applicable provisions of this lease;
(ii) Tenant shall promptly repair any damage caused to
the Back-Up Power System Area by reason of such installation, including any
repairs, restoration, maintenance, renewal or replacement thereof
necessitated by or in any way caused by or relating to such installations
except to the extent such damage has resulted from the negligence or
willful misconduct of Landlord, its agents, contractors or employees;
(iii) Tenant will, and does hereby, indemnify and save
harmless Landlord from and against: (A) any and all claims, reasonable
counsel fees, demands, damages, expenses or losses by reason of any liens,
orders, claims or charges resulting from any work done, or materials or
supplies furnished, in connection with the fabrication, erection,
installation, maintenance and operation of the Back-Up Power System
installed by Tenant pursuant to the provisions of this Article; and (B) any
and all claims, costs, demands, expenses, fees or suits arising out of
accidents, damage, injury or loss to any and all persons and property, or
either, whomsoever, or whatsoever resulting from or arising in connection
with the erection, installation, maintenance, operation and repair of the
Back-Up Power System installed by Tenant pursuant to the provisions of this
Article, except in the case of both (A) and (B) above to the extent
occasioned by the negligence or willful misconduct of Landlord, its agents,
contractors or employees. Tenant shall obtain and maintain such insurance
coverage with
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respect to the Back-Up Power System for the benefit of Landlord and its
managing agent in such amount and of such type as Landlord may reasonably
require from time to time; provided that such insurance shall not be in
amounts that are in excess of the amounts generally required by landlords
of Comparable Buildings; and
(iv) Tenant shall pay as and when due, and shall be
solely responsible for, any and all taxes, fees, license charges or other
amounts imposed upon Tenant, Landlord or the Building in connection with
the Back-Up Power System.
(b) Landlord and Tenant acknowledge that Tenant has heretofore
installed in the Generator Area and is the owner of two (2) 600 KW diesel
generator that, unless replaced by Tenant pursuant to the provisions of this
Section 47.01(b), shall constitute the Diesel Generator.
(c) If, due to Legal Requirements, Tenant shall not be
permitted to maintain the Diesel Generator in the Generator Area initially
demised hereunder (herein called the "INITIAL GENERATOR AREA") for any reason
whatsoever, Tenant shall have the right, on reasonable prior notice to Landlord,
to substitute alternate space in the Building for the Initial Generator Area
(herein called the "SUBSTITUTE GENERATOR AREA"), which Substitute Generator Area
proposed by Tenant shall be subject to the reasonable approval of Landlord, and
provided that (i) notwithstanding the foregoing, Tenant shall maintain the
Diesel Generator in the Initial Generator Area until the Substitute Generator
Area shall be located outside the Premises unless no other space shall be
available in the Building for the installation of the Diesel Generator or it
shall be impractical to locate same outside the Premises, (ii) the Substitute
Generator Area shall be of an adequate size and configuration to permit
operation of the Back-Up Power System in the same manner in which the same was
operated prior to such substitution, (iii) Landlord shall, at Tenant's sole cost
and expense, either relocate the Diesel Generator and all related equipment to
the Substitute Generator Area or furnish and install in the Substitute Generator
Area a Diesel Generator and all related equipment required to operate the
Back-Up Power System at least equal in kind, quality and condition to those
contained in the Initial Generator Area at the time such notice of requested
substitution is given by Tenant, and Landlord, at Tenant's sole cost and
expense, shall perform all connections and other work required to operate the
Back-Up Power System in the same manner in which the same was operated
immediately prior to such relocation or if the same shall not be in compliance
with applicable Legal Requirements, to the fullest extent possible after
effecting compliance with applicable Legal Requirements, it being understood and
agreed that notwithstanding anything to the contrary contained herein, Tenant
shall be permitted to maintain and operate the Diesel Generator in the Initial
Generator Area until Tenant can operate the Back-Up Power System from the
Substitute Generator Area in the same manner in which the same was operated
immediately prior to such relocation or if the same shall not be in compliance
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with applicable Legal Requirements, to the fullest extent possible after
effecting compliance with applicable Legal Requirements, (iv) Landlord shall, at
Tenant's sole cost and expense, procure all permits and approvals required in
connection with such relocation and any modifications to the Certificate of
Occupancy for the Building to permit the Substitute Generator Area to be used
for the installation and operation of the Diesel Generator (and Tenant shall
cooperate with Landlord in connection with obtaining any such permit, approval
or modification (including assisting and/or joining Landlord in any application
or similar instrument), and Tenant shall indemnify and hold harmless Landlord
from and against any claims arising in connection with Landlord's actions
related to this Section 47.01(c) other than any such claims arising from
Landlord's negligence or willful misconduct, (v) such relocation and other work
shall be performed in a manner that any interruption of the power supplied by
the Back-Up Power System to Tenant's equipment shall be minimized to the extent
commercially practicable, and (vi) Tenant shall promptly reimburse Landlord for
any actual and reasonable out-of-pocket costs incurred by Landlord in connection
with such relocation. Notwithstanding anything to the contrary contained in this
lease, Tenant shall not be obligated to pay Fixed Rent with respect to the
Substitute Generator Area if the same shall be located within the Premises. From
and after the date that Tenant shall actually vacate and surrender the Initial
Generator Area to Landlord, this lease shall no longer apply to the Initial
Generator Area and shall apply to the Substitute Generator Area as if the
Substitute Generator Area had been originally demised under this lease. Except
as hereinabove expressly set forth, Landlord shall not have the right, subject
to any applicable Legal Requirements, to require Tenant to relocate the Diesel
Generator from the Initial Generator Area.
47.02. Tenant, its contractors, agents or employees shall have access
to that portion or portions of the Back-Up Power System Area located outside of
the Premises in order to install, maintain, test, use, operate and replace the
Back-Up Power System, upon reasonable advance notice to Landlord and upon the
following terms and conditions:
(a) Any damage to the Building or to the personal property of
Landlord or other tenants of the Building arising as a result of such access
shall be repaired and restored, at Tenant's sole cost, to the condition existing
prior to such access except to the extent such damage is the result of the
negligence or willful misconduct of Landlord, its agents, contractors or
employees; and
(b) Tenant shall indemnify and hold Landlord harmless from and
against any liability, damage or loss arising from such access except to the
extent such damage is the result of the negligence or willful misconduct of
Landlord, its agents, contractors or employees.
47.03. Landlord and Tenant acknowledge that Tenant does not have its
own source of fuel to operate the Diesel Generator. Accordingly, for so long as
Tenant
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uses either the Initial Generator Area or the Substitute Generator Area for the
Diesel Generator, Landlord, at Tenant's cost equal to Landlord's actual cost
therefor, shall provide to Tenant fuel for the operation of the Diesel Generator
(herein called the "GENERATOR FUEL"), from the existing fuel storage tanks
(herein called the "STORAGE TANKS") and the existing fuel pumping system (herein
called the "PUMPING SYSTEM"); PROVIDED, HOWEVER that Landlord shall not be
obligated to provide Generator Fuel to Tenant in excess of the amount required
to operate two (2) 600KW diesel generators and provided further that Landlord
shall have no liability to Tenant hereunder if Landlord shall be unable to
provide the Generator Fuel to Tenant under any applicable Legal Requirements or
due to Landlord's inability, after reasonable efforts, to secure any permit
required for Landlord to supply the Generator Fuel to Tenant, or if the supply
of the Generator Fuel is interrupted due to emergency, mechanical breakdowns or
interruptions in the supply of fuel to the Building. Landlord shall maintain the
Storage Tanks and the Pumping System in compliance with Legal Requirements and
in working order throughout the term of this lease, and shall make all necessary
repairs or replacements thereof as may be necessary in connection therewith.
Landlord, at reasonable times on reasonable prior notice, shall permit Tenant to
inspect and test the Storage Tanks and the Pumping System. Tenant shall
reimburse Landlord for the actual cost of providing the Generator Fuel and any
actual additional out-of-pocket costs incurred by Landlord in connection with
providing the Generator Fuel to Tenant, including any actual costs incurred by
Landlord to obtain any permits required in connection therewith and any taxes or
surcharges imposed on Landlord in connection with the resale of fuel to Tenant,
which costs shall be payable as Additional Charges hereunder within thirty (30)
days after demand accompanied by reasonable documentation of such costs.
47.04. Tenant shall have the right to tie into the Building's BMS
system for purposes of monitoring the Back-Up Power System and any Tenant's
supplemental heating, ventilating or air-conditioning system, which tie-in will
be performed by Landlord's contractor at Tenant's cost and expense, which cost
and expense shall not exceed the amount that would otherwise be charged to
Landlord by its contractor for such work if such work was being performed for
Landlord's own account.
47.05. Tenant shall have the right, at its sole cost and expense, to
replace the two (2) chiller units which comprise the Back-Up Power System with a
larger unit or units subject to and in accordance with the applicable provisions
of Article 11 and Exhibit E hereof.
ARTICLE 48
RIGHT OF FIRST OFFER TO PURCHASE
48.01. (a) If during the term of this lease (i) Landlord desires to
sell Landlord's interest in the Unit, Unit One and/or the Real Property, or any
portion thereof (for purposes of this Article each is herein collectively called
the "OFFERED PROPERTY") or
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(ii) Landlord receives an unsolicited offer from any person to buy or sell to
any person any Offered Property which Landlord desires to accept (herein called
an "UNSOLICITED OFFER") at any time after the date of this lease and ending on
the date of the closing of the sale of the Offered Property pursuant hereto
(herein called the "OFFERING PERIOD"), Landlord shall give Tenant a notice
(herein called the "OFFERING NOTICE") offering to sell the Offered Property to
Tenant at the purchase price and on the terms and conditions contained in the
contract of sale delivered with the Offering Notice (other than with respect to
an Unsolicited Offer) and with respect to an Unsolicited Offer, offering to sell
the Offered Property to Tenant at the purchase price and on the terms and
conditions contained in the Unsolicited Offer, a copy of which shall be
delivered with the Offering Notice, together with a contract of sale
incorporating the purchase price and the terms and conditions contained in such
Unsolicited Offer (each contract of sale described in this sentence being herein
called the "OFFER CONTRACT"). Within thirty (30) days after the Offering Notice
is given to Tenant together with all documentation that Landlord is required to
deliver to Tenant simultaneously with the Offering Notice described in the
immediately preceding sentence (herein called the "OPTION PERIOD"), Tenant shall
elect, by notice to Landlord, to either (i) purchase the Offered Property on the
terms contained in the Offer Contract as then completed or (ii) refuse to
purchase the Offered Property as herein provided. Time shall be of the essence
with respect to Tenant's election and any failure to notify Landlord of its
election shall be deemed to be an election to refuse to purchase the Offered
Property under this Article. If Tenant elects to purchase the Offered Property,
Tenant shall simultaneously with the delivery to Landlord of Tenant's notice to
Landlord electing to purchase the Offered Property execute and deliver to
Landlord at least four (4) counterparts of the Offer Contract and shall deliver
to Landlord any deposits required by such Offer Contract upon the execution
thereof and Landlord shall execute same and return at least two (2) fully
executed counterparts of same to Tenant within five (5) Business Days after
Tenant's delivery of such Offer Contracts to Landlord. Time shall be of the
essence with respect to Tenant's execution and delivery to Landlord of the Offer
Contract and if applicable, the delivery of any deposit required by the Offer
Contract upon the execution thereof and any failure to execute and deliver the
Offer Contract and deliver such deposit, if applicable, within the time period
provided in the immediately preceding sentence, shall be deemed to be an
election by Tenant to refuse to purchase the Offered Property under this
Article.
(b) The Offer Contract delivered simultaneously with the
Offering Notice shall be completed so as to specify the following information
(the Offer Contract together with such information shall constitute the
"TERMS"):
(i) the proposed closing date, which shall be no earlier
than sixty (60) days after the date that Tenant exercises its right to
purchase the Offered Property (notwithstanding anything to the contrary
contained in the Unsolicited Offer);
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(ii) the purchase price for the Offered Property (herein
called the "OFFER PRICE"), which shall be payable either solely in lawful
money of the United States or, if not payable in its entirety in cash, then
any other consideration must be of a type readily obtainable by Tenant
(notwithstanding anything to the contrary contained in the Unsolicited
Offer);
(iii) whether seller or buyer is to be obligated to pay
New York State and/or New York City transfer and deed taxes or gains taxes,
or any other taxes applicable to such sale;
(iv) any fees or expenses payable by buyer (other
than customary adjustments);
(v) any facts which would make the representations
and warranties set forth therein untrue in any material respect; and
(vi) the schedules and exhibits to the Offer Contract
shall be completed.
(c) Simultaneously with delivery of the Offering Notice and
Offer Contract to Tenant, Landlord shall deliver to Tenant true and complete
copies of all (i) leases, and any amendments or modifications thereto, with
other tenants of the Offered Property, (ii) any service agreements or contracts
subject to which the Offered Property is to be sold, (iii) any then uncured
notices of violation of Legal Requirements with respect to the Offered Property,
(iv) any engineering, insurance or other reports regarding the physical
condition of the Offered Property received by Landlord during the prior three
(3) calendar years, (v) income and expense statements with respect to the
Offered Property, which shall be in sufficient detail to evaluate the accuracy
thereof, for the prior three (3) fiscal or calendar years and for each fiscal or
calendar quarter since the end of the previous fiscal or calendar year, and (vi)
the underlying materials and documents relating to the information set forth on
the schedules and exhibits to the Offer Contract.
(d) During the Option Period:
(i) Tenant and Tenant's agents, representatives and
professional advisers shall have the right, at Tenant's sole cost and
expense, to examine Landlord's books and records regarding the Offered
Property at reasonable hours in Landlord's office, or at such other office
within the Borough of Manhattan as Landlord may designate, for the purpose
of analyzing and evaluating the Offered Property. Tenant, its agents,
representatives and professional advisers shall be entitled to photocopy
from such books and records such information as Tenant reasonably requires
for such purpose, provided that the confidentiality of same shall be
respected (except that Tenant may disclose the contents of such books and
records (A) to such of its executive officers, employees and professional
advisers as are reasonably required in connection
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with the analysis of the Offered Property, (B) in connection with any
arbitration or suit regarding same, and (C) as may be required by law).
(ii) Landlord shall promptly deliver to Tenant as soon
as practicable copies of any quarterly or annual income or profit and loss
statements which update the financial information delivered to Tenant
pursuant to Section 48.01(c) hereof.
(iii) Tenant, its agents and designees, shall have the
right, but only upon two (2) Business Days' prior notice to Landlord and
subject to the terms of leases with other tenants concerning notice and
accompaniment with respect to access to space demised to other tenants, to
enter any portions of the Offered Property for purposes of examination and
inspection; provided, however, Landlord may require that Tenant or its
representative, agent or employee, in exercising its rights under this
Article be accompanied by a representative, agent or employee of Landlord
while examining or inspecting the Offered Property, and if Landlord so
requires, Landlord agrees to provide such representative, agent or employee
during Business Hours.
(iv) Landlord shall promptly deliver to Tenant true and
complete copies of (A) any leases executed by Landlord and assignments or
subleases consented to by Landlord during the Option Period with respect to
the Offered Property, (B) any notices of default given or received by
Landlord under any of the Offered Property's space leases during the Option
Period, and (C) any notice of violations of any Legal Requirements
pertaining to the Offered Property received by Landlord.
(v) Landlord shall not enter into any agreements or
service contracts with respect to the Offered Property which would be
binding on Tenant in the event Tenant exercises its option pursuant to this
Article 48 except for agreements or contracts (A) to which Tenant has
consented, which consent shall not be unreasonably withheld or delayed, or
(B) which are at customary and reasonable market rates and which are for a
period of not more than one (1) year, or (C) which are cancellable by
Landlord or its successors and assigns on thirty (30) days' notice.
(vi) Landlord shall not execute any new space leases
with respect to the Offered Property without obtaining Tenant's consent
thereto, which shall not be unreasonably withheld or delayed, except that
Landlord may execute leases with persons who are not Affiliates provided
that Landlord first delivers to Tenant an original letter addressed to
Tenant from a reputable broker having ten (10) years of office leasing
experience in New York County stating that the terms of such proposed
lease(s) are consistent with generally accepted market terms as are then
existing within such leasing market.
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(vii) Landlord shall not commence any alterations,
changes, improvements or additions to the Offered Property or any portion
thereof which shall individually or in the aggregate materially affect the
Offered Property, including, without limitation, Building systems, the
facade, roof, interior lobbies, hallways, common areas and windows;
provided, however, Landlord shall be permitted during the Option Period to
commence any alterations, changes, improvements or additions (A) required
to be performed by Landlord for tenants as tenant improvement work pursuant
to their space leases, (B) in order to comply with Legal Requirements, or
(C) in order to preserve the Building or portions thereof in good operating
condition and repair.
48.02. (a) If Tenant shall refuse (or shall be deemed to have refused)
to purchase the Offered Property pursuant to this Article 48, then Landlord may
undertake to complete the transfer of the Offered Property to a third party
purchaser. Such transfer shall not be undertaken at a price which is not
"substantially the same" as the Offer Price. For purposes hereof, "SUBSTANTIALLY
THE SAME" shall mean that the purchase price to be paid by the prospective buyer
shall be no less than ninety-five (95%) percent of the Offer Price taking into
account all relevant economic and contractual factors. If Landlord does not then
consummate the proposed transfer to the third party purchaser in accordance with
the foregoing within three hundred sixty-five (365) days after the date of
Tenant's refusal to purchase, and if Landlord desires to sell the Offered
Property after such period or if Landlord accepts an Unsolicited Offer after
such period, Landlord must again offer the Offered Property to Tenant pursuant
to Section 48.01(a) hereof. In addition, if Tenant shall refuse to purchase the
Offered Property pursuant to this Article 48 and thereafter within such three
hundred sixty-five (365) day period Landlord desires to consummate a transaction
in which the purchase price is not substantially the same as the Offer Price,
Landlord shall, prior to consummation of such transaction, deliver to Tenant a
notice specifying the terms of such transaction, which notice shall be
accompanied by the form of contract of sale Landlord intends to execute
containing such changed terms. Within fifteen (15) days after such notice is
given, Tenant shall elect, by notice to Landlord, to either (i) purchase the
Offered Property on the terms outlined in such notice and set forth in such
contract of sale, or (ii) refuse to purchase the Offered Property. Time shall be
of the essence with respect to Tenant's election and any failure to notify
Landlord of its election shall be deemed to be an election to refuse to purchase
the Offered Property. If Tenant elects to purchase the Offered Property, it
shall execute and exchange with Landlord such form of contract of sale within
five (5) Business Days of Tenant's election to purchase and shall deliver to
Landlord any deposit required by such contract of sale concurrently with such
execution and exchange; provided, however, that the closing of title thereunder
shall be the later of the closing date set forth therein (which shall not be
more than one (1) year from the date of the contract of sale) or ninety (90)
days after the execution and exchange of such contract of sale. Time shall be of
the essence with respect to Tenant's execution and delivery to Landlord of such
contract of sale and if applicable, the delivery of any deposit required by such
contract of sale upon the execution thereof and any failure to execute
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and deliver such contract of sale and deliver such deposit, if applicable,
within the time period provided in the immediately preceding sentence, shall be
deemed to be an election by Tenant to refuse to purchase the Offered Property
under this Article.
(b) If Tenant has refused to purchase the Offered Property,
Landlord shall, not less than fifteen (15) days prior to a closing with a third
party purchaser, deliver a notice to Tenant together with a fully executed copy
of the contract of sale (and all amendments and exhibits thereto) with such
third party purchaser. Landlord shall not amend or modify any such contract
without again complying with the preceding sentence and the provisions of
Section 48.02(a) hereof, if applicable. Tenant shall, in writing and within ten
(10) days after the delivery of such notice by Landlord, confirm or dispute that
a specified purchase price is substantially the same as the Offer Price. Time
shall be of the essence with respect to such notice from Tenant to Landlord and
any failure to notify Landlord within such ten (10) day period shall be deemed
for all purposes and as against all parties as Tenant's agreement that the
purchase price is substantially the same as the Offer Price. No sale to a third
party shall be valid and binding on Tenant unless Landlord shall comply with the
provisions of this Section 48.02 (b).
48.03. Tenant's rights with respect to the Offered Property are
subject to the following conditions:
(a) at the time of the exercise of Tenant's election, the Named
Tenant, Citibank, N.A. or any Corporate Successor to the Named Tenant or
Citibank, N.A. is the then Tenant under this lease and is then in occupancy of
at least the Minimum Premises (together with its Affiliates and Service and
Business Relationship Entities) and is not in monetary default under the terms
and conditions of this lease beyond the expiration of any applicable notice and
grace period (herein called "MONETARY EVENT OF DEFAULT") and, prior to closing
title, Tenant shall cure any Monetary Event of Default and all rent and
additional rent payments shall be current as of the date of closing;
(b) the rights granted to Tenant under this Article 48 may not
be transferred except to a Corporate Successor to the Named Tenant or Citibank,
N.A. or a Corporate Successor to Citibank, N.A. to which this lease is assigned.
Any such transfer shall not be effective until Landlord is delivered a copy of
the assignment and assumption of this lease (and notice of the transfer if not
contained therein) as required by Article 7 hereof;
(c) that the rights provided for under this Article shall not
apply to the transfer of the Offered Property at a foreclosure sale or by
transfer or assignment in lieu of foreclosure (but shall survive such
foreclosure or transfer or assignment);
(d) notwithstanding anything to the contrary in this Article
48, any transfer of the Offered Property pursuant to this Article shall be
subject to this lease,
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any subleases and any defects created, arising or resulting from any acts of
Tenant or any assignee or subtenant of Tenant, and Landlord shall make no
representations, warranties or covenants concerning same to Tenant or its
assignee or subtenant;
(e) the rights granted under this Article 48 shall not
apply:
(i) to any assignment as collateral security in
connection with any financing secured by the Offered Property;
(ii) to the transfer of the Offered Property or the
portion thereof which is to be sold by the owner thereof to an "exchange
accommodation title holder" or a "qualified intermediary" in connection
with a tax deferred exchange of the Offered Property or such portion
thereof under Section 1031 of the Internal Revenue Code, and the transfer
of the Offered Property or such portion thereof by such "exchange
accommodation title holder" or "qualified intermediary" to the ultimate
purchaser thereof (i.e., such tax deferred exchange and the steps thereof
shall be deemed to constitute a single sale, transfer and conveyance of the
Offered Property or such portion thereof for the purposes of this Article
48);
(iii) to any transfer to an affiliate of Landlord or,
if a transfer of an interest in Landlord, to an affiliate of the
transferor; and
(iv) to any transfer which would result in Landlord or
its affiliates retaining not less than a 51% interest in the Offered
Property after giving effect to such transfer; and
(f) Tenant shall keep confidential all information it receives
with respect to the Offered Property or contained in any Offering Notice or any
contract of sale submitted hereunder (except that Tenant may disclose such
information (i) to such of its executive officers, employees and professional
advisers as are reasonably required in connection with the analysis of the
Offered Property, (ii) in connection with any arbitration or suit regarding
same, and (iii) as may be required by law).
48.04. Tenant agrees, at any time and from time to time after the
rights to Tenant under this Article 48 are no longer in effect as to any
particular Offering Period or any applicable transaction, as requested by
Landlord with not less than ten (10) Business Days' prior notice, to execute and
deliver to Landlord a statement certifying that the rights granted to Tenant
under this Article 48 are no longer in effect, it being intended that any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by Landlord and others with whom Landlord may be
dealing, regardless of independent investigation; PROVIDED, HOWEVER, the
reliance referred to herein shall be limited to Tenant being estopped from
contradicting any of the statements made in such certificate.
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ARTICLE 49
NEW YORK CITY BENEFITS
49.01. Landlord agrees to reasonably cooperate with Tenant in
connection with Tenant's application for benefits from the New York City
Industrial Development Agency (herein called the "IDA"), the City of New York
(herein called "NYC"), Empire State Development Corporation (herein called
"ESDC"), and/or the New York City Economic Development Corporation (herein
called "EDC"), including the execution of any necessary or appropriate
modification to this lease, provided such modification has been approved in
writing by each holder of each Superior Mortgage, if and to the extent any such
approval shall be required and shall not adversely affect any of the rights or
benefits of Landlord or increase the obligations or liabilities of Landlord
under this lease (except to a DE MINIMIS extent, Landlord hereby agreeing that
the obligation to provide notices to the IDA, NYC, ESDC and EDC shall in and of
itself constitute a DE MINIMIS obligation) and the consenting to any subleases
of the Premises from Tenant to the IDA and from the IDA to Tenant which are
reasonably satisfactory to Landlord, Landlord hereby agreeing to consent to a
sublease by Tenant to the IDA and a sub-sublease by the IDA to Tenant in order
for Tenant to obtain sales tax and other benefits from the IDA and such
transaction shall not be subject to the provisions of Article 7 hereof. Tenant
hereby acknowledges that such cooperation of Landlord is at the request of
Tenant, and in order to induce Landlord to so cooperate Tenant agrees that (a)
to the extent that Landlord shall incur any reasonable out-of-pocket expense in
so cooperating or in rendering such assistance (including, without limitation,
reasonable legal and other professional fees and all reasonable costs incurred
in obtaining State and City tax rulings regarding the IDA, NYC, ESDC and EDC
benefits transaction), Tenant shall reimburse Landlord for such expense as
Additional Charges hereunder, (b) Tenant agrees to indemnify and hold harmless
Landlord with respect to any liability incurred by Landlord by reason of such
cooperation unless caused by the wrongful acts or omissions of Landlord or its
agents, employees, representatives or contractors, and (c) Tenant agrees to
indemnify and hold harmless Landlord for any costs suffered or incurred by
Landlord which are in excess of the costs which would have been suffered or
incurred in the absence of Tenant obtaining the IDA, NYC, ESDC and EDC benefits,
including, without limitation, any increase in commercial rent or occupancy tax,
real property tax, transfer tax, transfer gains tax, Federal, State or local
income or franchise taxes or any other tax obligation incurred by Landlord.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease
as of the day and year first above written.
BP 399 PARK AVENUE LLC, Landlord
By: Boston Properties Limited
Partnership, its manager
By: Boston Properties, Inc., its general
partner
By:
----------------------------
Name:
Title:
CITIGROUP INC., Tenant
By:
----------------------------
Name:
Title:
Tenant's Federal Identification Number:
52-1568099
BP 399 PARK AVENUE LLC IS SIGNING IN THE PLACE PROVIDED BELOW FOR THE SOLE
PURPOSE OF AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF ARTICLE 41 OF
THIS LEASE AND CREATING A CONTRACTUAL AGREEMENT BETWEEN THE UNIT ONE OWNER AND
TENANT ON THE TERMS AND CONDITIONS OF SAID ARTICLE 41
BP 399 Park Avenue LLC, Unit One Owner
By: Boston Properties Limited Partnership, its manager
By: Boston Properties, Inc., its general partner
By:
-----------------------------
Name:
Title:
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EXHIBIT A
Description of Land
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Borough of Manhattan, City, County and State of New York, bounded and described
as follows:
BEGINNING at the corner formed by the intersection of the northerly side of 53rd
Street with the easterly side of Park Avenue;
RUNNING THENCE easterly along the northerly side of 53rd Street, 405 feet to the
corner formed by the intersection of the northerly side of 53rd Street with the
westerly side of Lexington Avenue;
THENCE northerly along the westerly side of Lexington Avenue, 200 feet 10 inches
to the corner formed by the intersection of the westerly side of Lexington
Avenue with the southerly side of 54th Street;
THENCE westerly along the southerly side of 54th Street, 405 feet to the corner
formed by the intersection of the southerly side of 54th Street with the
easterly side of Park Avenue;
THENCE southerly along the easterly side of Park Avenue, 200 feet 10 inches to
the corner formed by the intersection of the easterly side of Park Avenue with
the northerly side of 53rd Street at the point or place of BEGINNING.
A-1
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EXHIBIT B
Floor Plans of Office Premises
[See attached]
B-1
<Page>
EXHIBIT B-1
Floor Plan of Lobby Premises
[See attached]
B-1-1
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EXHIBIT B-2
Floor Plan of Basement Premises
[See attached]
B-2-1
<Page>
EXHIBIT C
Tenant Pre-Approved Alterations
[See attached]
C-1
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EXHIBIT D
Building Rules and Regulations
NOTE - IN THE EVENT OF ANY CONFLICT BETWEEN THESE BUILDING RULES AND REGULATIONS
AND THE PROVISIONS OF THE LEASE, THE PROVISIONS OF THE LEASE SHALL GOVERN.
1. The sidewalks, areas, entrances, vestibules, passages, corridors,
halls, elevators and stairways shall not be encumbered nor obstructed by any
tenants or any of their agents, clerks, servants, subtenants or visitors, or be
used by them for any other purpose than for ingress and egress to and from their
respective premises. Landlord and the Board of Managers (the "BOARD") reserve
the right in its or their reasonable judgment to restrict and regulate the use
of the aforementioned public areas of the Unit and the Building by tenants,
their employees, guests and customers and by persons making deliveries to
tenants, including but not limited to the right to allocate certain elevators
for delivery service, and the right to designate which building entrances shall
be used by persons making deliveries in the Building.
2. The doors, skylights and windows that reflect or admit light into
passageways or into any place in the Building shall not be covered or obstructed
by any tenant.
3. The water-closets, wash-closets, urinals and other water apparatus
shall not be used for any purposes other than those for which they were
constructed and no sweepings, rubbish, rags, ashes, chemicals, refuse from
electric batteries, or other substances shall be thrown therein. No tenant shall
lay linoleum or other similar floor covering so that the same shall come in
direct contact with the floor of its premises, and if linoleum or other similar
floor covering is desired to be used, an interlining of builder's deadening felt
shall first be affixed to the floor by a paste, or other material, which may
easily be removed with water, the use of cement or other similar adhesive
material being expressly prohibited.
4. [Intentionally Omitted].
5. Except as set forth to the contrary in the lease, no sign,
advertisement or notice shall be inscribed, painted, affixed or displayed on any
of the windows or doors or on any other part of the outside or the inside of the
Building, without the prior consent in writing of Landlord or its agents. This
Rule shall not apply to any part of this Premises (except the exterior windows).
[Directories will be at the expense of tenants and the number of listings
thereon shall be at the discretion of Landlord.].
6. [Intentionally Omitted].
7. No freight, furniture, or bulky matter of any description will be
received into the Building, or carried up or down, except during hours and in
the manner
D-1
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designated by Landlord or the Board, which may involve overtime work for
Landlord's or the Board's agents, employees or contractors. Tenants receiving
such deliveries shall reimburse Landlord and/or the Board for extra costs
incurred by them including, but not limited to, the cost of such overtime work.
The moving of safes shall occur at such times as Landlord or the Board shall
designate upon previous notice to the managing agent of the Building and the
persons employed to move the safes in and out of the Building must be reasonably
acceptable to Landlord and/or the Board.
8. Tenants shall not install any locks or bolts on any doors nor make any
changes in existing locks without providing Landlord with a copy thereof except
for secure areas.
9. No portions of any tenant's premises shall be used for manufacturing
or for lodging.
10. Nothing shall be swept or thrown by tenants or by their agents,
clerks, servants or visitors, into the corridors, halls, stairways, elevators,
or light shafts, or upon the skylights of the Building, or into or upon any
heating or ventilating registers, or plumbing apparatus in the Building, or upon
adjoining buildings or upon the street. No awnings or other projections shall be
attached to the outside walls of the Building without the prior written consent
of Landlord and the Board.
11. No animals or birds shall be kept in or about the Building, except
seeing eye dogs.
12. Tenants shall not bring into the Building or keep in the Building any
gasoline, kerosene, camphene, burning fluid, or other inflammable, combustible
or explosive fluid, chemical or substance other than in customary amounts
permitted by applicable Legal Requirements as are generally used by tenants in
Comparable Buildings for the normal operation and maintenance of Tenant's office
equipment and machinery and cleaning for Premises.
13. No tenant shall cause or permit any odors of cooking or other
processes or any objectionable odors to emanate from its premises or from the
Unit or the Building. No food or beverage shall be carried in the public halls
and elevators of the Building except in closed containers.
14. Canvassing, peddling and soliciting are prohibited in the Building and
each tenant shall cooperate to prevent the same.
15. [Intentionally Omitted].
16. Landlord and the Board reserve the right to exclude from the Building
all persons who do not present a pass to the Building signed by Landlord or the
Board or a pass issued by Tenant. Landlord or the Board or its or their agent(s)
will furnish passes
D-2
<Page>
to persons for whom any tenant requests same in writing or by telephone. Each
tenant shall be responsible for all persons for whom it requests such pass and
shall be liable to Landlord and the Board for all acts of such persons. Landlord
or the Board may require all such persons to sign a register on entering and
leaving the Building.
17. Neither Landlord nor the Board shall be responsible to any tenant for
the non observance or violation of these rules and regulations by any Unit Owner
or any other tenant or occupant of the Unit or the Building.
18. Landlord and the Board reserve the right to rescind any of these rules
and regulations and to make such other and further rules and regulations, as in
the judgment of Landlord and/or the Board may from time to time be reasonable
for the safety, care, cleanliness and good order of the Unit, the Building and
the Condominium.
19. Landlord and/or the Board may from time to time adopt additional
systems and procedures to improve the security or safety of the Building, any
persons occupying, using or entering the same, or any equipment, furnishings or
contents thereof, and tenants shall comply with Landlord's and/or the Board's
reasonable requirements relative thereto provided such additional systems and
procedures are comparable to such systems and procedures adopted by landlords of
Comparable Buildings.
20. [Intentionally Omitted].
D-3
<Page>
EXHIBIT E
Building Standards
[See attached]
E-1
<Page>
BUILDING STANDARDS FOR ALTERATIONS
FOR
399 PARK AVENUE
NEW YORK, NEW YORK
<Page>
TABLE OF CONTENTS
SECTION PAGE
------- ----
1.00 GENERAL REQUIREMENTS...............................................2
2.00 GENERAL CONDITIONS.................................................5
3.00 DRYWALL & CONSTRUCTION.............................................8
4.00 ACOUSTICAL CEILINGS...............................................10
5.00 DESCRIPTION OF BASE BUILDING SYSTEMS..............................12
6.00 BASE BUILDING DESIGN REQUIREMENTS.................................17
EXHIBIT "A" SAMPLE ALTERATION REQUEST LETTER..............................27
<Page>
SECTION 1.00
GENERAL REQUIREMENTS
SUB-SECTION PAGE
----
1.1 ALTERATION APPROVAL REQUEST LETTER............................3
1.2 CONTENT OF DRAWINGS...........................................3
1.3 BUILDING DEPARTMENT APPROVALS; OTHER PERMITS..................3
1.4 OCCUPANT'S COST...............................................3
1.5 COMMON ELEMENTS...............................................3
1.6 FIRE SAFETY SYSTEM; CHILLED WATER SYSTEM......................3
1.7 BUILDING FREIGHT ELEVATORS....................................4
1.8 CONTRACTOR'S DRAWINGS.........................................4
1.9 AMENDMENT TO STANDARDS........................................4
<Page>
1.1 ALTERATION APPROVAL REQUEST LETTER
Whenever a tenant or occupant of space at 399 Park Avenue (an "OCCUPANT") seeks
approval by its landlord or the Board of Managers of any alteration proposed to
be made by it, the Occupant shall submit an "alteration approval request letter"
substantially in the form of "EXHIBIT A" to the Senior Property Manager, as
agent for the landlord and the Board of Managers.
1.2 CONTENT OF DRAWINGS
Each alteration approval request letter shall be accompanied by one (1) paper
sepia set and three (3) paper sets, in each case properly signed and sealed
(R.A./P.E.), of 1/8" or 1/4" scaled working drawings (including, but not limited
to, architectural, mechanical, electrical and structural) stamped by a
registered architect or professional engineer. The drawing shall reflect all
known existing conditions and show all proposed work. All demolition or
construction affecting the base building systems must be identified.
Persons preparing drawing are advised to review the remainder of this document;
various provisions hereof set forth specific items which are to be included in
the drawings.
1.3 BUILDING DEPARTMENT APPROVALS; OTHER PERMITS
The Occupant shall submit to the Building Manager two complete sets of all
required building department applications (including an asbestos evaluation form
ACP-5, except to the extent that Landlord is required to furnish same to the
Occupant pursuant to the Occupant's lease). One "owner-signed" set of the
applications will be returned to the Occupant for permit filing. The Occupant or
the contractor, as the case may be, is responsible for obtaining all
governmental permits, approvals and consents (including, but not limited to,
special permits for after-hours work, if required) unless and to the extent
specifically provided to the contrary in an Occupant's lease.
1.4 OCCUPANT'S COST
All materials and work, including all materials, work and services provided by
or on behalf of the landlord or the Property Manager, shall be at the Occupant's
cost and expense, unless and to the extent specifically provided to the contrary
in an Occupant's lease.
1.5 COMMON ELEMENTS
All alterations to the Common Elements (as defined in the Declaration) and all
contractors and subcontractors performing the same must have the prior approval
of the Senior Property Manager, as agent for the Board of Managers, unless and
to the extent specifically provided to the contrary in an Occupant's lease.
<Page>
1.6 FIRE SAFETY SYSTEM: CHILLED WATER SYSTEMS
All connections to and disconnection's from the Building's fire safety system
and the Building's chilled water system shall be performed only by contractors
designated by the Senior Property Manager, as agent for the Board of Managers,
unless and to the extent specifically provided to the contrary in an Occupant's
lease. Prior to making any such connections, the designated contractor shall
inspect and test the system in question.
1.7 BUILDING FREIGHT ELEVATORS
Freight elevators are as follows:
CAR NO. RISE & BANK CAPACITY CAR SIZE
------- ----------- -------- --------
27 "C" TO 40 (*) 5,000 LBS. 7'10" W x 6'6" L x 8'2" H
28 "C" TO 40 (*) 4,000 LBS. 7'0" W x 5'6" L x 8'2" H
29 "C" TO 7 4,000 LBS 6'7" W x 5'9" L x 7'9" H
30 "C" TO 7 (*) 4,000 LBS 6'6" W x 5'9" L x 8'2" H
(*) Does not serve mezzanine floor.
1.8 CONTRACTORS' DRAWINGS
Upon completion of the work, the Occupant shall provide the Senior Property
Manager with one set of "as-built" drawings in reproducible form and otherwise
in such form and detail as the drawings submitted with the alterations approval
request letter; provided, however, that such as-built plans may consist of the
original reproducible drawings submitted with the alterations approval request
letter accurately marked to show all changes made in actual construction. The
directory in the electric panel must be updated by the Occupant's contractor
prior to the completion of any work affecting electrical wires. All panels must
be properly balanced after the addition of separate circuits.
1.9 AMENDMENT TO STANDARDS
The Board of Managers reserves the right to modify or amend these Rules and
Standards at any time and from time to time subject to the terms of and in
accordance with the Condominium Documents and subject to any provisions
expressly set forth in an Occupant's lease.
<Page>
SECTION 2.00
GENERAL CONDITIONS
SUB-SECTION PAGE
----------- ----
2.1 GENERAL CONDITIONS............................................6
<Page>
2.1 GENERAL CONDITIONS
The following general conditions shall apply to all demolition, alteration or
construction work:
1. Any work (including, but not limited to,
demolition, removals, construction, core drilling and welding), that causes
excessive noise audible in occupied spaces outside the premises, excessive
vibrations detectable in occupied spaces outside the premises, excessive dust in
occupied spaces outside the premises, or otherwise causes inconvenience to other
Occupants or neighbors or disturbs the Building operations, must be performed at
times other the during Building Hours. "Building Hours" shall mean the hours
from 8:00 a.m. to 6:00 p.m., Monday through Friday, and on Saturdays from 8:00
a.m. to 1:00 p.m., except on New Year's Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day (each as
observed by the New York State government) and such other days that hereafter
become a holiday observed by the Federal or New York State government (but
without duplication if the Federal and New York State governments observe the
same holiday on different days), subject to any conditions expressly set forth
in an Occupant's lease.
2. The Senior Property Manager shall be provided
with written notice at least 48 hours prior to the commencement of any
Occupant's demolition, alteration or construction work. Any work to be performed
in areas of the Building other than the Occupant's premises shall be performed
only at times reasonably approved in advance by the Senior Property Manager. The
Occupant shall give the Senior Property Manager at least five (5) business days'
advance notice of the time it intends to begin performing any such work.
3. No demolition, alteration or construction
work, including welding or burning operations, shall be performed until after
the Senior Property Manager has deactivated the fire safety system in the
affected area in accordance with the provisions of Section 6.2.3.8 hereof and
has deactivated the sprinkler system in the affected area, and a fire watch has
been provided n the affected area.
4. Prior to demolition, upon reasonable prior
notice and reasonable scheduling with the Senior Property Manager the Occupant
shall request the Senior Property Manager to shut off the water supply to the
sprinkler system in the area(s) of demolition and subject to the applicable
Legal Requirements, the Senior Property Manager shall do so. As soon as the
demolition work is completed, the Occupant shall request the Senior Property
Manager to reactivate the water supply to the sprinkler system in such areas and
the Senior Property Manager shall do so. Tenant shall pay to Landlord, promptly
upon request therefor, all out-of-pocket costs and expenses incurred by Landlord
in connection with this Section 2.1(4).
5. Prior to demolition, the Occupant shall
disconnect all electric light and power within the project area to the extent
required by safe and
<Page>
sound construction practices. Landlord shall at Landlord's expense provide
temporary power and light for the project area to the extent required by safe
and sound construction practices.
6. Public areas such as elevator lobbies, public
halls and service halls, shall be protected as reasonably directed by the Senior
Property Manager.
7. Gasoline-powered welding machines will not be
permitted for use under any circumstances.
8. Where welding is required, the Senior Property
Manager shall supervise the connection of the welding machine to the Building's
electric panel. The welding machine shall be equipped with an approved
disconnect switch as required by OSHA.
9. The delivery and removal of materials,
equipment and debris must be arranged with the Senior Property Manager so as to
avoid any inconvenience and annoyance to other Occupants or neighbors.
10. Cleaning must be controlled to prevent dirt
and dust from infiltrating into adjacent premises or mechanical areas. Induction
and fan coil unit enclosures and return air stubs are to be covered before
commencement of demolition.
11. Intentionally omitted.
12. All materials and work must comply with
Building code requirements. Copies of all suppliers' certificates or
specifications showing that materials, including, but not limited to, millworks
and carpeting, so comply, must be delivered to the Senior Property Manager.
<Page>
SECTION 3.00
DRYWALL & CONSTRUCTION
SUB-SECTION PAGE
----------- ----
3.1 DRYWALL PARTITIONS............................................9
3.2 CABINETRY.....................................................9
3.3 CARPET.......................................................9
3.4 VENETIAN BLINDS AND DRAPES....................................9
3.5 DOORS & HARDWARE..............................................9
<Page>
3.1 DRYWALL PARTITIONS
1. No partitions, track, studs, etc. shall be
fastened to mechanical ductwork.
2. Wall abutting mullions shall have wallboard
terminate in metal trim fastened to terminal stud only, not to window glazing
beads; 3/8" neoprene foam gasket must be provided between drywall and window
mullions, full height. No screws shall be installed or fastened into the
Building's mullions or convectors.
3. All drywall is to receive one coat of primer.
3.2 CABINETRY
Built-in cabinetry is considered an alteration of the premises. All built-in
cabinetry must be built with fire-retardant material.
3.3 CARPET
Carpet installation is considered an alteration of the premises. Certification
of fire and flame spread rating conforming to applicable law must be filed with
the Senior Property Manager, as agent for the landlord. Installation is to
comply with the requirements of the building code for fireproof buildings.
Tackless installation will only be permitted to the extent permitted by law.
3.4 VENETIAN BLINDS & DRAPES
1. New or refurbished standard blinds or Building
standard shades shall be installed to conform to new partition layouts (provided
that Tenant shall have the right to install "blackout" blinds or curtains in
portions of the Premises to be used for audio/visual purposes, subject to
Landlord's reasonable approval of the brand, color, size and material thereof).
All windows must have such blinds or shades next to the glass.
2. The Building standard blind is a horizontal
Levelor Riviera 1" blind in cotton white. The Building standard shade is a Mecho
shade in white or off-white.
3. Drapery and curtain rods shall be installed in
the Building standard window pockets.
4. Drapes and curtains shall not interfere with
the operations of the peripheral air conditioning system.
<Page>
5. Prior to installing any drapes or curtains,
the Occupant shall provide the fire-rating specifications therefor to the Senior
Property Manager in writing.
3.5 DOORS & HARDWARE
1. Door locks shall be keyed and master-keyed to
conform to the Building's master lock system (Corbin).
<Page>
SECTION 4.00
ACOUSTICAL CEILINGS
SUB-SECTION PAGE
----------- ----
4.1 ACCESS PANELS.................................................11
<Page>
4.1 ACCESS PANELS
Access panels shall be removable tile type using the exposed metal turn bottom
device, but with no metal frame, etc., showing. Where larger access doors are
required to service in plenum equipment on a regular basis, they shall be
flangeless and dished (concave) to accept finished ceiling material (acoustical
tile). Access panels shall be installed in locations designated by the Senior
Property Manager to provide access to Building systems.
<Page>
SECTION 5.00
DESCRIPTION OF BASE BUILDING SYSTEMS
SUB-SECTION PAGE
----------- ----
5.0 BASE BUILDING SYSTEMS.........................................13
5.1 ELECTRICAL....................................................13
5.1.1 ELECTRICAL AND COMMUNICATIONS.................................13
5.1.2 LIGHTING......................................................13
5.1.3 FIRE ALARM SYSTEM.............................................13
5.2 H.V.A.C.......................................................14
5.2.1 AIR CONDITIONING..............................................14
5.2.2 VENTILATION...................................................15
5.2.3 CHILLED WATER.................................................15
5.2.4 HEATING.......................................................15
5.3 PLUMBING......................................................16
5.4 SPRINKLER SYSTEM..............................................16
<Page>
5.0 BASE BUILDING SYSTEMS
5.1 ELECTRICAL
5.1.1 ELECTRICAL AND COMMUNICATIONS
1. Underfloor duct systems are generally
available on all floors for the running of electrical wires and communications
cables. Base building drawings show general locations and configuration.
2. Flush floor junctions boxes are provided at
all horizontal and vertical underfloor cell intersections.
3. A select number of floor junctions boxes have
been provided with homerun conduits runs in the floor slab to an electric
closet.
4. There are four (4) electrical closets per
floor, from the 2nd to the 12th floors. Floors 14 through 39 contain two (2)
electrical closets per floor.
5.1.2 LIGHTING
1. Emergency egress lighting is provided in the
stairways located in the building core. Illuminated exit signs are provided at
the entry to each stairwell landing within the building core on each floor.
2. Regular lighting by means of miscellaneous
fixtures, either fluorescent or incandescent, is provided within mechanical
spaces within the unit and toilets located on any multi-occupant floor.
5.1.3 FIRE ALARM SYSTEM
1. General
a. The Building fire alarm system is a New
York City approved Class "E" type which permits floor devices installed by any
Occupant to be connected to Data Gathering Panels (DGP's) which in turn
communicate with the Building's graphic display fire command station.
2. DEVICES
a. Each floor is provided with at least:
(i) One manual fire alarm station per building egress stairway.
(ii) One waterflow switch at the riser.
<Page>
(iii) One sprinkler valve tamper switch at the riser.
(iv) One area-type smoke detector per elevator lobby.
(v) One area-type smoke detector per electric closet.
(vi) One warden station.
(vii) One (1) speaker per Occupant or one (1) speaker per 5,000
square feet of an Occupant's usable space. Additional speakers may be
required due to the acoustical characteristics of the Occupant's
renovations.
b. Some floors may include additional
equipment such as duct smoke detectors, fire/smoke dampers, thermal detectors
and door release circuitry and BMS controls. The location of such equipment
shall be field verified by the Occupant and approved by Building Management.
5.2 H.V.A.C.
5.2.1 AIR CONDITIONING
1. Air is supplied at each floor from medium
pressure duct risers on the interior and high pressure duct risers on the
exterior. Air is returned from each floor to low pressure riser through hung
ceiling return air plenum. The number of supply and return air risers range from
a minimum of two (2) on the tower floors to a maximum of six (6) from the
basement levels through the sixth floor.
2. Inside design conditions for floors 14 through
39:
Summer: 74 (+/-2) degrees F. dB inside, when outside conditions do not
exceed 91 degrees F. dB and when wattage for lighting and power does
not exceed 5.0 watts/useable square foot, and one (1) person/100
useable square feet.
Winter: 70 (+/-2) degrees F. dB when outside temperature does not fall
below 11 degrees F. dB.
3. Inside design conditions for floor 1 through
13:
Summer: 76 (+/-2) degrees F. dB inside, when outside conditions do not
exceed 91 degrees F. dB and when wattage for lighting and power does
not exceed 5.0 watts/useable square foot, and one (1) person/100
useable square feet.
Winter: 70 (+/-2) degrees F. dB when outside temperature does not fall
below 11 degrees F. dB.
<Page>
4. Supply air temperature for floors 14 through
39:
Interior:
Summer: 55 (+/-2) degrees F. (constant)
Winter: 54 (+/-2) degrees F. (constant)
Perimeter:
Summer: 57-63 degrees F. (variable)
Winter: 61-65 degrees F. (variable)
5. Supply air temperature for all other floors:
Interior and Perimeter:
Summer: 57-63 degrees F. (variable)
Winter: 61-65 degrees F. (variable)
6. Pneumatic air for temperature controls:
Main air: 20 psi (24 hour availability)
"EP" air: 20 psi (same hours as a/c systems)
Pneumatic air is not available for Interior VAV boxes.
7. Each exterior column bay is provided with four
(4) induction units under the control of a minimum of one (1) thermostat per
bay.
8. Induction units are designed to cover Building
envelope losses or gains and interior heat gains up to 15 feet for floors 14
through 39 and 18 feet for all other floors from the front cover to the
convection units.
5.2.2 VENTILATION
1. Fresh air is provided by the interior air
conditioning system and the induction units' primary air supply system at a rate
that meets New York City code requirements and ASHRAE 62-1989 standards.
2. Toilets located in the Building are
continuously exhausted during Building hours.
5.2.3 CHILLED WATER
Any chilled water that a unit owner elects to make available to an
Occupant of its unit for supplementary air conditioning shall conform
to the following specifications.
Maximum inlet temp: 50 degrees F. (Winter). Minimum inlet temp: 44
degrees F. (Summer). Maximum allowable temperature rise: 12 degrees F.
5.2.4 HEATING
<Page>
1. Induction units provide heating to cover
losses through the building envelope.
2. Induction units maintain a minimum space
temperature of 55 degrees F. during unoccupied hours.
<Page>
5.3 PLUMBING
1. Hot and cold domestic water, vent and soil
outlets and wet columns with valved and plugged connections are shown on the
Building plumbing plans.
5.4 SPRINKLER SYSTEM
1. There are hydraulically designed wet pipe
sprinkler systems on all floors, together with the standpipe systems having hose
cabinets in the stairways located in the Building core.
2. Toilet areas and electrical closets do not
have sprinklers.
<Page>
SECTION 6.00
BASE BUILDING DESIGN REQUIREMENTS
SUB-SECTION PAGE
----------- ----
6.1 GENERAL DESIGN REQUIREMENTS...............................................................18
6.2 ELECTRICAL................................................................................19
6.2.1 ELECTRICAL AND COMMUNICATIONS.....................................................19
6.2.2 LIGHTING..........................................................................20
6.2.3 FIRE ALARM SYSTEM.................................................................20
6.3 H.V.A.C...................................................................................21
6.3.1 AIR CONDITIONING..................................................................21
6.3.2 VENTILATION.......................................................................23
6.3.3 CHILLED WATER.....................................................................24
6.3.4 HEATING...........................................................................24
6.3.5 DUCTWORK..........................................................................24
6.4 PLUMBING..................................................................................25
6.5 SPRINKLER.................................................................................26
6.1 GENERAL DESIGN REQUIREMENTS
1. The Senior Property Manager shall make
available to any Occupant, upon such Occupant's request, all plans and
information that are in the Senior Property Manager's possession relative to
base building systems located on the floor(s) of the proposed work. No
representation is made regarding the accuracy of plans and other information
pertaining to base building systems, including the information contained in
Section 5.00 of these Building Standards. The Senior Property Manager recommends
that existing installations and conditions be field verified in all cases.
2. Modifications shall not obstruct any access
required for maintenance purposes (I.E., to hand holes, access doors, induction
unit covers, etc.).
3. Occupant-installed distribution equipment
shall not be located anywhere except within the installing Occupant's premises
unless approved by the Senior Property Manager, as agent for the landlord or the
Board of Managers, as the case may be.
4. No penetration shall be made to Building
interior. All floor penetrations shall be core drilled and firestopped. Core
drills between floors shall not be
<Page>
permitted without prior written consent from the Senior Property Manager, as
agent for the landlord, subject to any conditions expressly set forth in an
Occupant's lease.
5. All equipment, ducts, pipes, etc. shall be
designed and installed to assure that building structural integrity is not
compromised. All suspended equipment must be supported from building steel.
6. All piping shall be tested in accordance with
industry standard testing procedures before pipe covering is installed.
7. All rotating equipment shall be provided with
spring type vibration isolation.
8. All unused equipment, ducts, pipes, etc. shall
be removed to point of termination and shall be valved or capped. All drawings
submitted under Section 1.0 shall show demarcation between new and existing
work.
9. The Occupant is responsible for the
replacement or repair of all base building equipment either removed, altered or
damaged.
10. Exposed piping, electrical or communications
work is not permitted.
11. Contractor is responsible for filing of use
permits, NYFD permits, F.D./electrical inspection and F.C. inspection for all
air conditioning equipment requiring such permits, plumbing and other
inspections as defined in the NYC Administrative Code, including all associated
fees. No work will be considered complete until final inspection requirements
have been satisfied.
12. All piping shall run square, level or properly
pitched as required by sound and safe construction practices.
6.2 ELECTRICAL
6.2.1 ELECTRICAL AND COMMUNICATIONS
1. Before finalizing any electrical design work,
the Occupant shall submit a signed Memorandum to the Senior Property Manager
stating in kva the total connected load the Occupant intends to introduce into
the Building.
2. Circuitry emanating from lighting, receptacle
or appliance panels shall serve only outlets, equipment, fixtures, appliances
and devices on the same floors as the panels.
3. The Occupant shall maintain the integrity of
the underfloor duct system.
<Page>
4. Floor system junction box covers shall be
totally accessible.
5. Electrical and communication outlets shall not
be installed on floor system junction box covers.
6. The Occupant will not be permitted to connect
to the Building's emergency power riser, except to connect emergency exit signs
at the fire exit stairwells only.
7. Electric and communication outlets are
permitted in toe space of induction units.
8. The Senior Property Manager shall supervise
all riser shutdowns at designated hours. Taps into live risers are not
permitted.
9. Accessibility to the Building's electrical and
telephone closets are restricted by the Senior Property Manager, subject to any
conditions expressly set forth in an Occupant's lease, provided however that the
Occupant shall be provided with access to any telephone closet utilized by the
Occupant in Unit One of the Building at reasonable times upon reasonable advance
request to Landlord or the Senior Property Manager
10. Electrical panel directories shall be fully
updated at the completion of the job. The electrical contractor shall certify
that the work has been completed in accordance with code and the requirements of
the Building Standards.
11. Electrical and communications work shall be
arranged so that no junction boxes are placed outside of Occupant's premises
except in the electrical or communications closets or as otherwise approved by
the Senior Property Manger.
12. Electrical wires are not permitted in the
exterior walls or core walls without the prior approval of the Senior Property
Manager.
6.2.2 LIGHTING
1. The Occupant shall be responsible to provide
all necessary emergency battery powered egress lighting in its space to conform
with code requirements, except for emergency exit lights at stairwells provided
by the landlord.
6.2.3 FIRE ALARM SYSTEM
1. GENERAL
a. The Occupant shall contract for the
services of the designated Building fire alarm system contractor for any
modifications to the Building
<Page>
Class "E" fire alarm system. All fire alarm system devices shall be compatible
with the existing system and shall be subject to approval by the Senior Property
Manager.
b. The Occupant's connection to the fire
alarm system and DGP's shall be made by the designated Building fire alarm
system contractor.
c. The installation of sub-systems by the
Occupant is subject to the approval of the Senior Property Manager. Sub-system
control equipment shall be designed to include a key operated test switch to
disconnect the Occupant's sub-system from the base building fire alarm system.
During any periodic testing of the Occupant's sub-system, this switch shall
indicate a trouble condition for that sub-system at the fire command station.
d. The Occupant's engineer shall be
responsible for designing the proper quantity of additional speakers required,
based on the Occupant's architectural design. The engineer is to coordinate his
design with the building fire alarm system contractor and the final design shall
be subject to the approval of the Senior Property Manager, and the New York City
Fire Department.
e. All additional devices shall be
compatible with the Building's existing devices/system.
f. Electric wiring for relocation of smoke
detectors, sprinkler flow switches, fire extinguishing agent or Ansul systems,
etc. shall be subject to the approval of the Fire Department. The contractor
must file a Form A-433 (Application for Electrical Inspection) or the successor
Form(s). The contractor must provide a certificate of approval issued by the NYC
Fire Department to the Senior Property Manager after completion of the work.
g. It is imperative that the system wiring
and related hardware be protected during alterations. Before any alteration, the
Senior Property Manager, in conjunction with the Occupant's engineer, will
determine the following:
(i) Which fire alarm devices and related wiring will be affected by
the alteration; and the Senior Property Manager shall disable the fire
alarm device involved.
(ii) The designated Building fire alarm system contractor will remove
the affected alarm devices, roll up or tie up the Teflon wire to a
point recommended and disconnect the above wiring at the terminal
points within the DGP'S.
(iii) The designated Building fire alarm system contractor will
reinstall the above devices/wiring at such time as construction
progress allows. The construction superintendent shall be responsible
for coordinating the specific requirements of the installation with
the Senior Property Manager.
<Page>
(iv) When an alteration is performed on a multi-Occupant floor, the
system must be kept operable in the adjacent Occupant spaces, except
in connection with provision of a temporary hookup during
construction.
(v) When a floor is being completely demolished, the Elevator Smoke
Detectors and the Electric Closet Smoke Detectors should be
temporarily hooked up as soon as possible until such time that the
device can be permanently reinstalled.
(vi) The Senior Property Manager will notify the local fire house
when any alarm device on a floor is disabled temporarily for
construction. The Occupant shall post a 24 hour-a-day fire watch on
such floor until such time when all alarm devices are put back into
operation (provided that the Occupant shall not be required to post a
fire watch in any portion of such floor during times when construction
is actually being performed in such portion).
h. Should an Occupant be installing a fire
protection system which requires a connection to the Building fire alarm system,
the Occupant must use the designated Building fire alarm system contractor to
perform such connection and to provide any required reprogramming of the
Building fire alarm system necessitated by such a connection. The Senior
Property Manager shall approve any such modifications prior to commencement of
the work.
i. Any sub-system installed by an Occupant
must obtain a Letter of Approval from N.Y.F.D and the Occupant will be
responsible to maintain this system as required by N.Y.C codes. Approved log
book for sub-system main tenants will be available at sub-system for building or
Fire Department review.
6.3 H.V.A.C
6.3.1 AIR CONDITIONING
1. Requirement for Occupant A/C units,
independent after hours operation or supplemental to existing air, shall be as
follows:
A) After hour -- requires a time clock with an override feature.
Override shall automatically reset.
B) Supplemental -- must be installed with a p/e switch of
pneumatic relay which will only allow operation during normal
hours. Time clocks may be used as an alternate.
2. Pressure and flow readings must be performed
before any modification to floor ductwork.
<Page>
3. If any thermostats and/or automatic valves for
induction units located in peripheral enclosures become obstructed by new
partitions that run into mullions, such thermostats or automatic valves, as the
case may be, must be relocated with prior approval of the Senior Property
Manager.
4. The Occupant shall relocate existing operable
base building zone thermostats, if any, as required by demolition or new layout.
5. New installations or air and/or city water
cooled condensing units are not permitted.
6. All air supplied to each floor is to be
returned back into the return air system, except for special exhausts,
including, but not limited to, exhaust air from toilets and kitchens.
7. Air supply and return air is not permitted to
service any other floor but the floor it connects to.
8. floor branch supply air ductwork is not
permitted to be tied into the upstream side of the floor isolation damper, if
any. Return air connections made directly into the return air ductwork, or
having a fan discharge directly into the floor return air intake are not
permitted.
9. The floor's branch supply ducts and the
induction units are not to be removed or blocked off without the prior approval
of the Senior Property Manager, as agent for the Board of Managers.
10. Condensate wastes from supplementary a/c units
shall terminate in the janitor's closet sink or any other indirect waste
receptacle.
11. All pneumatic controls must be Honeywell or
approved equivalent if intended to interface with the base building system.
12.Perimeter induction unit water coils are not
permitted to be shut off. This is intended to prevent freezing during low
outside ambient temperatures.
13. Building condenser water is not available for
supplementary or air conditioning installations.
14. No plastic or other non-metallic piping is
allowed to be installed in the Building.
15. A water detector with an alarm is required for
all free standing HVAC units. It shall indicate and annunciate on a local alarm
panel containing a summary alarm contact for remote indication at the building
management control
<Page>
system (BMS). The Occupant shall provide a stainless steel or aluminum drip pan
under all free standing HVAC units.
16. Air quantities shall be checked for
conformance with design at risers or main branches before and after alterations,
by an independent air balancing contractor in the presence of the Senior
Property Manager.
17. Systems shall be balanced on completion of job
and report submitted to the Senior Property Manager and design engineer for
their acceptance. The balance report will not be accepted unless the air
balancer has reported to the Senior Property Manger before he commences and is
accompanied by a representative of the Senior Property Manager so that he is
satisfied that the work is being done in the required manner. On alteration
work, where only a portion of the floor is involved, if balancing upsets
adjacent areas, it will be the balancer's responsibility to adjust adjacent
areas to met their requirements. The Senior Property manager will furnish, upon
request, the design requirements for the adjacent areas.
18. Shop drawings shall be prepared with complete
dimensional information, including coordinates to branch ducts and diffuser
stubs. Elevations to the underside of existing low pressure and high pressure
ducts and new ducts shall be clearly indicated on the drawings submitted under
Section 1.00 and shall be carefully checked for conformance with ceiling height
requirements. All conflicts must be flagged on the shop drawings.
19. If the Occupant performs any work on the
peripheral induction units, the Occupant's contractor shall balance, clean coils
and calibrate controls for all such units. The Occupant's contractor shall also
test and calibrate interior controls within the area of work.
20. All ceiling hung equipment, including, but not
limited to, sprinkler and plumbing lines and HVAC ductwork, shall be supported
from floor beams, either directly or indirectly by means of steel framework. All
equipment suspension must be approved by the Building's structural engineer.
Method for hanging equipment will be detailed on the sheet metal shop drawings.
6.3.2 VENTILATION
1. No additional outside air will be made
available for supplementary air conditioning or ventilation.
2. The Senior Property Manager's approval is
required for any connection to or modification of the toilet exhaust system.
6.3.3 CHILLED WATER
<Page>
1. The Occupant shall insulate chilled water
piping installed by it with premoulded fiberglass with vapor barrier.
2. All chilled water control valves shall be
modulating, single seated, and two way.
3. Wet taps into chilled water piping are
allowed, subject to the provisions of Section 8.6.4 of the Lease to which this
Exhibit is attached.
4. The Senior Property Manager's approval is
required to connect to the chilled water system.
5. CHW design pressure:
300 PSIG (BELOW 20TH FLOOR)
150 PSIG (20TH FLOOR AND ABOVE)
6. Chilled water piping shall be carbon steel or
brazed copper as follows:
2 1/2" and under - threaded
(pressure class as required by ANSI)
3" and over - welded
(pressure class as required by ANSI)
7. Air conditioning condensate shall be rigid
copper tubing minimum 3/4".
8. The Occupant shall install a BTU meter
(consisting of a flow meter and a differential temperature transmitter
compatible with the Building's chilled water measurement system) to measure its
use of chilled water.
6.3.4 HEATING
1. No steam is available for supplementary
heating.
2. No hot water is available for heating.
3. Electric heating is to be utilized for
supplementary heat.
6.3.5 DUCTWORK
1. No base building supply or return ducts shall
penetrate floor slabs.
2. The Occupant shall insulate all supply
ductwork in unconditioned spaces and supply ductwork below roof areas.
<Page>
3. The Occupant shall insulate air conditioning
ductwork that operates beyond Building hours.
4. All ductwork shall be rigid galvanized steel,
stainless steel or aluminum, as conditions require. Fiberglass ductwork is not
permitted. All ductwork shall be constructed to ASHRAE or SMACHA standards.
5. All new duct joints and seams shall be sealed
airtight with sealant.
6.4 PLUMBING
1. Plumbing risers must be shown on the drawings
submitted under Section 1.00.
2. The premises must be checked for existing
valves at wet columns.
3. Plumbing demolition must be indicated on the
drawings submitted under Section 1.00.
4. Full size "future" outlets shall be installed
when connecting to any coil, vent and water riser. Future outlets on water
risers shall be valved and capped.
5. Pipework should be kept above floor level
whenever possible in order to minimize disturbing the Occupant on the floor
below.
6. Plumbing piping shall be:
A) Waste: No-hub cast iron or galvanized steel up to 2 1/2"; no-hub
cast iron up to and including 4".
B) Vent: No-hub cast iron or galvanized steel up to 2 1/2".
C) Water: (H.W., H.W.R. & C.W.)
Pipe: Seamless brass, 85% copper content.
Fittings: Extra heavy weight for 100 psi and over; standard weight for
under 100 psi.
Valves: Sweated ends for 2" and under only. Fairbanks, Jenkins or
approved equal.
7. The Occupant shall insulate all domestic hot
water and cold water lines installed by it with premoulded vaporproof
fiberglass.
8. Pressure reducing valves are required for all
domestic hot and cold water lines over 60 psi.
<Page>
9. Riser shut downs shall be performed at
designated times under the Senior Property Manager's supervision and only with
his approval.
10. When fixtures and piping are to be removed,
they shall be lowered to the floor for removal from the Building by the plumbing
contractor; all lines must be removed back to their source (wet column or stack)
and be properly plugged and/or capped. Brass plugs and/or caps must be used on
existing water lines. Existing piping at wet columns may be terminated within
the column at their existing elevations.
6.5 SPRINKLER
1. Deactivations of, reactivations of,
connections to and/or disconnection's from the sprinkler system must be
performed by the designated Building sprinkler system contractor, unless and to
the extent specifically provided to the contrary in an Occupant's lease.
<Page>
EXHIBIT "A"
SAMPLE ALTERATION REQUEST LETTER
Cushman & Wakefield, Inc.
as Manager for the Condominium Owners
at the Captioned Premises
399 Park Avenue
New York, New York 10022
DATED: _______________________________, 2______
RE: 399 PARK AVENUE, NEW YORK, NEW YORK
OCCUPANT:
----------------------------------------
FLOOR:
----------------------------------------
GENTLEMEN:
We wish to make an alteration in our demised premises in accordance with the
provisions of our lease and, accordingly, we request owner's consent thereto.
We acknowledge receipt of the "Building Standards for Alterations" and agree
that our alteration shall be made in accordance therewith, and in accordance
with our lease for the captioned premises, and that the owner and/or the owner's
agent, shall have the right to enter the demised premises, as provided in our
lease, to inspect our alteration and to insure compliance with the aforesaid
Building Standards and our lease.
We are enclosing with this letter the following items for owners' approval (if
any of the following items are not enclosed, they will be forwarded to you prior
to the commencement of the alteration, and we understand that the approval of
any such items shall not be deemed to be a waiver of the requirements of your
approval of all of the items.):
1. One (1) paper sepia set and three (3) paper sets, in each case properly
signed and sealed (R.A./P.E.), of detailed final plans of the alteration,
including, but not limited to; layout, architectural, mechanical,
electrical and structural drawings.
2. Detailed specifications of the alteration and of all materials to be
incorporated therein.
We understand and agree that any approval does not constitute any representation
or warranty to use with respect to the safety, adequacy, efficiency or
compliance of the enclosed or the proposed alteration or any matter relating
thereto with any law, order, notice, rule or regulation of the city, state, or
federal government agencies and quasi-governmental agencies having jurisdiction.
SIGNATURE AND TITLE OF APPLICANT
<Page>
EXHIBIT "B-1"
ALTERATIONS RULES AND REGULATIONS
1. All material/deliveries must be made through the
54th Street loading dock via the appropriate service elevator(s), during the
hours of 8:00 a.m. - 5:00 p.m., Monday through Friday. Saturday, Sunday, and
holiday work must be approved by the Building Office with forty-eight (48) hours
advance notice.
2. All requests for early or after-hours freight
elevator service must be made at least forty-eight (48) hours in advance.
Arrangements must be made with the Building Office for Building Security to
cover posts (areas) deemed necessary by Property Manager.
3. The elevator hatch will not be opened by anyone
other than an New York Elevator mechanic when necessary (elevator dimensions may
restrict length of some materials). Requests for elevator hatch openings must be
submitted in writing to the Building Office at least twenty-four (24) hours in
advance.
4. Any request for a drain down of the Building
systems must be submitted in writing, one (1) month in advance, to the Building
Office and coordinated with the Property Manager or Mechanical Manager. Any
request for a connection to the Building systems must be submitted in writing,
one (1) week in advance, to the Building Office and coordinated with the
Property Manager or Mechanical Manager.
5. Any request for a tie-in to the Building's
sprinkler system must be submitted in writing to the Building Office at least
twenty-four (24) hours in advance and coordinated with the Property Manager or
Mechanical Manager.
6. Should the "Life Safety System(s)" servicing a
tenanted area goes down due to malfunction or alteration during construction or
otherwise, a fire watch must be provided. At the end of each day, the system(s)
must be reactivated for off-hours protection of tenanted areas. Seventy-two (72)
hours advance notice must be submitted in writing to the Building Office.
7. All Trade personnel must sign in and out with the
Security Guard in the loading dock area, stating their business and area where
work is to be performed. A Building pass will be issued and must be worn in a
visible area during the entire day. Each Trades person is responsible for
signing in/out for themselves.
8. Building Security will notify the Building Office
on a daily basis of all Trades working in the Building.
<Page>
9. No Trade vehicles are permitted to be parked inside
the loading dock areas at any time other than for deliveries and pickups. All
vehicles must have commercial plates and there is a one (1) hour time limit.
10. Trades requiring access to electric and telephone
closets must coordinate with the Building Office. It is the contractor's
responsibility to lock all doors at the end of each working day.
11. Any welding, cutting, soldering, flame, smoke or
dust producing work will not commence until the Building Office has been
informed and has verified that the appropriate zone is deactivated (including
sprinkler work). At the end of the work shift, the zone must be reactivated.
12. All precautions to protect floors, wall, elevators,
glass, etc., must be taken and approved by the Building Office.
13. All chopping and drilling which is disturbing to
other tenants must be done before 8:00 a.m. or after 5:00 p.m. and coordinated
in writing at least twenty-four (24) hours in advance with the Building Office.
14. At all times during construction, materials and
Trades people will traverse through unoccupied or vacant space as much as
possible to limit construction activity in the common area. Absolutely no
loitering is permitted in any public area of the Building.
15. To the extent possible, all containers must have
rubber wheels. All refuse must be removed daily through the freight elevators
only. If containers have metal wheels, masonite must be laid down in the
containers path.
16. Construction areas must be broom swept daily and
any fire hazards (including personal trash) must be removed daily.
17. The General Contractor will be responsible to
repair any and all damages to the Building during construction to the
satisfaction of Building Management.
18. All public areas must be protected from dust and
construction debris at all times.
19. All Trades are to use toilets on construction
floor(s) only or facilities designated by the Building Office.
20. Building personnel are not responsible for any
tools or equipment left on premises during construction. All equipment and
packages are subject to inspection by Building Security prior to leaving the
Building.
<Page>
21. Any and all required permits and insurance
certificates must be posted in the appropriate areas with an original or
duplicate copy on file in the Building Office.
22. A current Certificate of Insurance for each
contractor and/or sub-contractor must be on file with the Building Office before
any work is to proceed. Blanket coverage will be accepted for general contractor
for sub-contractor.
23. Contractor is responsible for any and all costs
incurred for clean-up and restoration of Building during and after construction
and/or alterations.
24. Alcoholic beverages are not allowed on the premises
under any circumstances.
25. Smoking is prohibited throughout all areas of the
Building.
26. After hours/weekend demolition and debris removal
will be limited to the following time schedule with forty-eight (48) hours
advance notification to the Building in writing:
- Monday - Friday: 5:00 p.m. - 10:00 p.m.
- Saturday: 8:00 a.m. - 10:00 p.m.
- Sunday: 10:00 a.m. - 8:00 p.m.
27. Any request for special passenger elevator service
(I.E., secure floor(s), independent riser), must be made in writing to the
Building Office at least seventy-two (72) hours in advance.
<Page>
EXHIBIT F
Cleaning Specifications
1. GENERAL CLEANING-- 5 NIGHTS PER WEEK-- MONDAY
THROUGH FRIDAY, INCLUSIVE:
a. All stone, ceramic, tile, marble,
terrazzo and other unwaxed flooring to be swept nightly using an approved
chemically treated cloth.
b. All linoleum, rubber, asphalt tile and
other similar types of flooring (that may be waxed) to be swept using an
approved chemically treated cloth.
c. All carpeting and rugs to be carpet
swept nightly and vacuumed as necessary but not less than once per week.
d. Hand dust and wipe clean all window
sills and window enclosures.
e. Empty all waste receptacles and remove
wastepaper and waste materials to a designated area. Any plastic liners in
receptacles will be replaced, without additional charge to Tenant, in accordance
with Landlord's contract with its cleaning contractor.
f. Empty and clean all ash trays and all
sand urns.
g. Wash clean all water fountains and
coolers.
h. Dust all telephones.
i. Keep slop sink rooms in a neat and
orderly condition at all times.
j. Dust all baseboards.
k. Spot clean all entrance glass.
2. PERIODIC:
a. Remove fingerprints from all painted
surfaces near light switches, entrance doors, etc., as required but not less
than once per week.
F-1
<Page>
b. Hand dust all door louvers and other
ventilating louvers within reach once a week.
3. HIGH DUSTING:
Do all high dusting in tenant areas quarter-annually, which includes the
following:
a. Dust all pictures, frames, charts,
graphs and similar wall hangings not reached in nightly cleaning.
b. Dust clean all vertical surfaces, such
as walls, partitions, door bucks and other surfaces not reached in nightly
cleaning.
c. Dust clean all pipes, ventilating
louvers, air conditioning louvers, ducts, high moldings and other high areas not
reached in nightly cleaning.
d. Dust exteriors of lighting fixtures.
4. LAVATORIES -- NIGHTLY -- 5 NIGHTS PER WEEK --
MONDAY THROUGH FRIDAY, INCLUSIVE:
a. Wash all floors with disinfectants.
b. Wash all mirrors with disinfectants.
c. Wash all bright work with disinfectants.
d. Wash all fixtures with disinfectants.
e. Wash all toilet seats (both sides) with
disinfectants.
f. Scour, wash and disinfect all basins,
bowls and urinals throughout all lavatories.
g. Empty paper towel receptacles and remove
paper to designated area.
h. Fill toilet tissue holders (tissue to be
furnished by Landlord without additional charge to Tenant).
i. Fill soap dispenser system and fill
paper towel dispensers (paper towels and soap supplied by Landlord without
additional charge to Tenant).
j. Empty and clean sanitary disposal
receptacles.
F-2
<Page>
5. LAVATORIES -- PERIODIC:
a. Hand dust, clean and wash all partitions
once a week.
b. Hand dust, clean and wash all tile walls
once each month.
c. Hand dust, clean and wash all dispensers
and receptacles once each week.
d. Wash interiors of waste cans and
receptacles once a week.
e. High dusting to be done once each month
which includes lights, walls, etc.
f. Remove fingerprints from all painted
surfaces once each week.
6. WINDOWS:
Wash the interior and exterior of all windows on the perimeter of the Building
which bound the Premises at least two times per calendar year.
F-3
<Page>
EXHIBIT G
Calculation of Overtime HVAC Charge and Overtime HVAC Charge Adjustment
[See attached]
<Page>
EXHIBIT H
Board SNDA Agreement
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT WITH THE BOARD OF MANAGERS
THE BOARD OF MANAGERS OF THE 399 PARK AVENUE CONDOMINIUM,
CITIGROUP INC., AS TENANT,
AND
______________, AS LANDLORD
Dated: As of ___________ __, 2002
Section: 5
Block: 1308
Lots: 1101 and 1102
County: New York
Record and Return To:
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Dean Stiffle, Esq.
<Page>
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT WITH THE BOARD OF MANAGERS
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT") is made as of the ___ day of _____________, 2002 by and between THE
BOARD OF MANAGERS OF THE 399 PARK AVENUE CONDOMINIUM (the "BOARD"), CITIGROUP
INC., a Delaware corporation ("TENANT"), and ________________________
("LANDLORD").
WHEREAS, Tenant has entered into that certain Lease dated as of
___________ __, 2002 (as the same may be amended and/or extended from time to
time, the "LEASE") with Landlord, by which Tenant leased from Landlord certain
space (such space as Tenant may from time to time be leasing pursuant to the
Lease, whether in Unit 2 or in any other unit of the Condominium, the
"PREMISES") in Unit 2 (the "UNIT") in The 399 Park Avenue Condominium (the
"CONDOMINIUM") established by that certain Second Amended and Restated
Declaration of Condominium dated as of January 1, 1995 and recorded in the
Office of the Register of The City of New York on October 2, 1997 in Reel 2502
at Page 0334 (as such declaration may hereafter be amended from time to time,
the "DECLARATION");
WHEREAS, the Premises are leased for a term as set forth in the Lease;
and
WHEREAS, Tenant has requested Landlord to cause the Board to execute
and deliver to Tenant this Agreement,
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The Lease is subordinate to the Board's lien on the Unit and any other
unit in the Condominium (each, an "OTHER UNIT") for common charges and
interest thereon under the Declaration (the "BOARD'S LIEN").
2. As long as no default under the Lease shall have continued for such
period as would entitle Landlord to terminate the Lease or dispossess
Tenant thereunder, Tenant shall not be named or joined in any action or
proceeding to foreclose the Board's Lien, and the Lease shall not be
terminated, nor shall any of the rights of Tenant granted under the Lease
be affected in any manner, in (a) any foreclosure or other action or
proceeding instituted under or in connection with the Board's Lien, (b) the
exercise of any rights of the Board in connection with the enforcement of
the Board's Lien, or (c) the taking of possession of the Premises, the Unit
or any Other Unit by the Board pursuant to any
H-1
<Page>
provisions of the Condominium Documents (as defined in the Declaration) or
otherwise; PROVIDED, HOWEVER, that (i) no option granted to Tenant to
purchase all or any portion of the Unit or any Other Unit nor any provision
in the Lease allowing a reduction in the rent payable by Tenant thereunder
by reason of a foreclosure of the Board's Lien shall survive any such
foreclosure, even though Tenant is not joined in such action or proceeding,
it being understood and agreed that the Board need only give Tenant written
notice of such foreclosure for this clause (i) to be operative, and (ii)
the person acquiring the interest of Landlord by reason of foreclosure of
the Board's Lien and such person's successors and assigns (collectively,
the "PURCHASER") shall not be:
(A) bound by any rent which Tenant might have paid for more than
the current month to any prior landlord under the Lease;
(B) liable for any previous act or omission of any prior
landlord under the Lease, provided, however, that the
Purchaser shall be liable for all ongoing obligations of
Landlord from and after the date on which Purchaser shall
acquire the interest of Landlord;
(C) subject to any defense or offset previously accrued in favor
of Tenant against any prior landlord under the Lease; or
(D) liable for the return of any deposit, rental security or any
other sums deposited with any prior landlord under the
Lease, except to the extent such sums have been paid over to
the Purchaser.
3. In the event that the Purchaser succeeds to the interests of Landlord
under the Lease by reason of foreclosure of the Board's Lien or otherwise,
Tenant shall be bound to the Purchaser under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining,
with the same force and effect as if the Purchaser were the landlord under
the Lease, and Tenant does hereby attorn to the Purchaser, including the
Board if it be the Purchaser, as its landlord, said attornment to be
effective and self-operative without the execution of any further
instruments upon the Purchaser succeeding to the interest of Landlord under
the Lease, provided that Tenant shall not be obligated to pay any rent to
the Purchaser until Tenant has received notice from the Purchaser that it
has succeeded to such interest. Tenant shall be entitled to rely solely
upon such notice given by Purchaser, and Landlord agrees to indemnify and
hold Tenant harmless from and against any and all loss, claim, damage or
liability arising out of Tenant's compliance with such notice.
4. This Agreement shall run with the land and bind all future Boards and
owners of the Unit and each Other Unit in the Condominium. This Agreement
may not be modified orally or in any manner other than by an agreement in
writing signed by the parties hereto or their respective successors in
interest. This Agreement shall inure to the benefit of and
H-2
<Page>
be binding upon the parties hereto, their respective representatives,
successors and assigns.
5. The Premises shall be used solely for the uses permitted by the Lease.
6. (a) The Lease, and all the rights of Tenant thereunder, are and shall
be subject and subordinate to the Condominium Documents and all amendments
and modifications thereof, provided that except as set forth in the
definition of Building Standards set forth in Section 4.01 of the Lease,
and except as set forth in Article 10 of the Lease, no such amendment or
modification shall decrease or otherwise affect Tenant's rights under the
Lease (other than a DE MINIMIS degree) or increase -- ------- Tenant's
obligations or liabilities under the Lease or under any amendment,
modification or renewal of the Lease. In the event of any inconsistency
between the provisions of (i) the Lease or any amendment, modification or
renewal of the Lease and (ii) the provisions of the Condominium Documents
in effect as of the date hereof, or any provision of any future amendment,
restatement, supplement or modification of the Condominium Documents, the
provisions of the Lease or any such amendment, modification or renewal of
the Lease shall govern.
(b) Notwithstanding anything to the contrary contained in this Agreement,
the Lease and/or the Condominium Documents, the Board agrees and
acknowledges that (i) the consent and/or approval of the Board shall
not be required in connection with the exercise of any right granted
to Tenant under the Lease, (ii) the Landlord shall not be required to
obtain the consent and/or approval of the Board before having the
right to consent and/or approve the exercise of any right granted to
Tenant under the Lease and (iii) wherever any provision of the Lease
grants certain consent and/or approval rights to Landlord, the Board
shall not be entitled to any corresponding consent and/or approval
right.
7. Any notice, statement, demand, consent, approval or other
communication (collectively, "NOTICES") required or permitted to be given,
rendered or made hereunder shall be in writing and shall be deemed to have
been properly given, rendered or made only if sent by (a) registered or
certified mail, return receipt requested, posted in a United States post
office station or letter box in the continental United States, (b)
nationally recognized overnight courier (e.g., Federal Express) with
verification of delivery requested or (c) personal delivery with
verification of delivery requested, in any of such cases addressed as
follows:
If to Landlord:
H-3
<Page>
with a copy to:
If to the Board of Managers:
and if to Tenant as follows:
Citigroup, Inc.
Corporate Realty Services
One Court Square, 8th Floor
Long Island City, New York 11120
Attention: Director of Real Estate
with copies to:
Citigroup, Inc.
599 Lexington Avenue, 25th Floor
New York, New York 10022
Attention: General Counsel (Real Estate) and Associate
General Counsel (Real Estate)
-and-
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, New York 10022
Attention: Dean Stiffle, Esq.,
and shall be deemed to have been given, rendered or made (i) if mailed, on the
second Business Day following the day so mailed, unless mailed to a location
outside of the State of New York, in which case it shall be deemed to have been
given, rendered or made on the third Business Day after the day so mailed, (ii)
if sent by nationally recognized overnight courier, on the first Business Day
following the day sent or (iii) if sent by personal delivery, when delivered and
receipted by the party to whom addressed (or on the date that such receipt is
refused, if applicable). Each party may designate a change of address (or
substitute parties for notice) by
H-4
<Page>
notice to the others, given at least fifteen (15) days before such change of
address or notice party is to become effective.
H-5
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized representatives as of the day
and year first above written.
THE BOARD OF MANAGERS OF THE
399 PARK AVENUE CONDOMINIUM
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
CITIGROUP INC.,
a Delaware corporation
By:
----------------------------
Name:
Title:
[Landlord]
By:
----------------------------
Name:
Title:
H-6
<Page>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 200_, before me, the undersigned, a
Notary Public in and for said State, personally appeared ____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their/
capacity(ies), and that by, his/her/their signature(s) on the instrument, the
individuals) or the person upon behalf of which the individuals acted, executed
the instrument.
-------------------
Notary Public
<Page>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 200_, before me, the undersigned, a
Notary Public in and for said State, personally appeared ____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their/
capacity(ies), and that by, his/her/their signature(s) on the instrument, the
individuals) or the person upon behalf of which the individuals acted, executed
the instrument.
-------------------
Notary Public
<Page>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of ___________, 200__, before me, the undersigned, a
Notary Public in and for said State, personally appeared ____________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their/
capacity(ies), and that by, his/her/their signature(s) on the instrument, the
individuals) or the person upon behalf of which the individuals acted, executed
the instrument.
-------------------
Notary Public
<Page>
EXHIBIT H-1
SUPERIOR MORTGAGEE SNDA AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated the ____ day of __________, 200_ between _______
_____________________ (hereinafter called "MORTGAGEE" or "TRUST DEED HOLDERS")
and _______________________________, a ______________________, having an office
at _______________________________________________ (hereinafter called
"TENANT").
W I T N E S S E T H:
(a) Tenant has entered into a certain lease dated as of
___________________ with _______________________,
hereinafter called "Landlord" (such lease is hereinafter
called the "lease" or the "LEASE"), covering premises in a
certain building known as 399 Park Avenue and located in New
York, New York; and
(b) Mortgagee has made a mortgage loan in the principal amount
of $__________________ (hereinafter called the "MORTGAGE")
to the Landlord and the parties desire to set forth their
agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) by each party in hand paid to the other, the receipt of which is
hereby acknowledged, it is hereby agreed as follows:
1. Subject to the terms and conditions hereof,
said lease is and shall be subject and subordinate to the lien of the Mortgage
insofar as it affects the real property of which the demised premises form a
part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of the principal sum secured thereby and
interest thereon.
2. Tenant agrees that after notice is given to
Tenant by Mortgagee, it will attorn to and recognize any purchaser at a
foreclosure sale under the Mortgage, any transferee who acquires the premises
demised by the lease (herein called "DEMISED PREMISES") by deed in lieu of
foreclosure, and the successors and assigns of such purchasers, as its Landlord
for the unexpired balance (and any extensions, if exercised) of the term of said
lease upon the same terms and conditions set forth in said lease and this
Agreement.
H-1-1
<Page>
3. In the event that it should become necessary
to foreclose the Mortgage, Mortgagee thereunder will not terminate said lease
nor join Tenant in summary or foreclosure proceedings, nor disturb the
possession of Tenant, nor diminish or interfere with Tenant's rights and
privileges under the lease or any extensions or renewals of the lease entered
into pursuant to the lease or consented to by Mortgagee, as applicable, so long
as Tenant is not in default, after any applicable notice and grace period, under
any of the terms, covenants, or conditions of said lease.
4. In the event that Mortgagee shall succeed to
the interest of Landlord under such lease, so long as Tenant is not in default,
after any applicable notice and grace period, under any of the terms, covenants,
or conditions of said lease, Mortgagee shall not disturb the possession of
Tenant and shall be bound by all of Landlord's obligations under the Lease
accruing from and after such date of succession (hereinafter called the
"Succession Date"), other than such obligations as are not applicable or
pertinent to the remainder of the term of the Lease; provided that Mortgagee
shall not be
(a) liable for any act or omission
of any prior landlord (including Landlord), except to the extent that (1) such
act or omission constitutes a default by Landlord under the Lease and continues
after the Succession Date, (2) Mortgagee receives notice thereof in accordance
with Paragraph 5 hereof and (3) Mortgagee's liability is limited to the effects
of the continuation of such act or omission after the Succession Date and shall
not include any liability of any prior landlord (including Landlord) which
accrued prior to the Succession Date; or
(b) liable for the return of any
security deposit; or
(c) subject to any offsets or
defenses which Tenant might have against any prior landlord (including Landlord)
except to the extent (1) that such offsets or defenses accrue in accordance with
the terms of the Lease or (2) the basis for such offsets or defenses continue to
exist from and after the Succession Date; provided that in either case Mortgagee
receives notice thereof in accordance with Paragraph 5 hereof; or
(d) bound by any rent or additional
rent which Tenant might have paid for more than the current month to any prior
landlord (including Landlord); or
(e) bound by any amendment or
modification of the lease made without its consent, other than an amendment or
modification entered into to confirm the exercise of a specific right or option
under the Lease in accordance with all of the material terms of the Lease
governing the exercise of such specific right or option.
H-1-2
<Page>
5. Tenant agrees to give any Mortgagees and/or
Trust Deed Holders, by Registered Mail, a copy of any notice of default served
upon the Landlord by Tenant with respect to a default which would entitle Tenant
to terminate the Lease, receive a rent abatement or an offset or credit against
rent or exercise a right of self-help, provided that prior to such notice Tenant
has been notified, in writing (by way of Notice of Assignment of Rents and
Leases, or otherwise), of the address of such Mortgagees and/or Trust Deed
Holders. Tenant further agrees that if Landlord shall have failed to cure a
default that could give rise to a right by Tenant to terminate the Lease
(expressly excluding termination rights relating to casualty) within the time
provided for in the lease, then the Mortgagees and/or Trust Deed Holders shall
have an additional sixty (60) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within sixty (60) days, any Mortgagee and/or Trust Deed Holder has
commenced and is diligently pursuing the remedies necessary to cure such default
(including, but not limited to, commencement of foreclosure proceedings, if
necessary to effect such cure) in which event the lease shall not be terminated
while such remedies are being so diligently pursued.
6. Mortgagee hereby consents to the Lease and,
subject to the provisions of Paragraph 4(e) hereof, all of the terms and
conditions thereof, and the terms of the Mortgage shall not affect such terms
and conditions of the Lease, including, but not limited to, the specific
provisions of the Lease governing assignments, subletting, alterations, repairs,
contesting requirements of law, extending the term of the Lease and expanding
the demised premises to include certain portions of the Building that may become
available for leasing from time to time, as all such provisions are more
particularly set forth in the Lease.
7. All notices, demands or other communications
required or permitted to be given, rendered or made hereunder (hereinafter
collectively called "notices") shall be in writing (whether or not so stated
elsewhere in this agreement) and shall be deemed to have been properly given,
rendered or made only if sent by registered or certified mail, return receipt
requested, posted in a United States post office station or letter box in the
continental United States, addressed to the other party as follows:
If to Mortgagee:
and with a copy to:
H-1-3
<Page>
and if to Tenant:
with a copy to:
with an additional copy to:
and shall be deemed to have been given, rendered or made on the day so mailed,
unless mailed outside of the State of New York, in which case it shall be deemed
to have been given, rendered or made on the third business day after the day so
mailed. Either party may, by notice as aforesaid, designate a different address
or addresses for notices intended for it.
8. The liability of Mortgagee for the performance
of any obligation of Landlord under the Lease shall be limited to Mortgagee's
interest in the demised premises, and Tenant hereby agrees that any judgment it
may obtain against Mortgagee as a result of Mortgagee's failure, as Landlord, to
perform any of Landlord's obligations under the Lease shall be enforceable
solely against Mortgagee's interest in the demised premises.
9. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their successors and assigns.
10. This Agreement may be executed in any number
of counterparts, each of which shall, when executed, be deemed to be an original
and all of which shall be deemed to be one and the same instrument. In addition,
the parties may execute separate signature pages, and such signature pages
(and/or signature pages which have been detached from one or more duplicate
original copies of this Agreement) may be combined and attached to one or more
copies of this Agreement so that such copies shall contain the signatures of all
of the parties hereto.
H-1-4
<Page>
IN WITNESS WHEREOF, the parties hereto have executed these presents the day
and year first above written.
MORTGAGEE:
--------------------------------
By:
-----------------------------
Name:
Title:
TENANT:
--------------------------------
By:
-----------------------------
Name:
Title:
H-1-5
<Page>
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of ____________ in the year 200__, before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity as the ____________________ of __________________, and
that by his/her/their signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
-------------------------------------------
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of ____________ in the year 200__, before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity as the ____________________ of __________________, and
that by his/her/their signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
-------------------------------------------
Notary Public
<Page>
EXHIBIT H-2
SUPERIOR LESSOR SNDA AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the ________ day of _______________, 200__,
by and among _______________________, a __________________, having an office at
________________________________________________________________________
("GROUND LESSOR") and _______________________, a __________________, having an
office at ____________________________________________________ ("SUBTENANT").
W I T N E S S E T H
WHEREAS, Ground Lessor is the Landlord under a certain lease dated as of
__________________ (as amended, the "GROUND LEASE") between Ground Lessor and
_______________________ (hereinafter referred to in its capacity as lessee as
"LESSEE"), pursuant to which Ground Lessor leased to Lessee certain real
property in the City, County and State of New York, known as 399 Park Avenue,
New York, New York (the "PROPERTY").
WHEREAS, Lessee and Subtenant have entered into a certain sublease dated as
of _______________________ (the "LEASE") covering certain premises (the
"PREMISES") located in the Property; and
WHEREAS, Subtenant desires to be assured of continued occupancy of the
Premises under the terms of the Lease and subject to the terms of the Ground
Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Ground Lessor and Subtenant agree
as follows.
1. Subject to the lien of the terms and
conditions hereof, the Lease is and shall at all times be subject to the Ground
Lease and to all renewal, modifications, consolidations, replacement and
extensions thereof.
2. In the event of a termination of the Ground
Lease, (a) Subtenant shall attorn to and accept Ground Lessor as landlord under
the Lease and be bound to perform all of the obligations imposed by the Lease
upon the tenant thereunder, (b) so long as Subtenant is not in default (beyond
any applicable grace period) in the payment of rent or additional rent due under
the Lease or in the performance or observance of any of the other obligations or
conditions of the Lease, the Lease shall continue in full force and effect as a
direct lease between Ground Lessor and Subtenant
H-2-1
<Page>
and (c) Ground Lessor will not disturb the possession of Subtenant and will be
bound by all of the landlord's obligations under the Lease, other than such
obligations as are not applicable or pertinent to the remainder of the term of
the Lease; PROVIDED THAT Ground Lessor (so long as Ground Lessor is not an
Affiliate [as such term is defined in Paragraph 5 hereof] of Lessee) shall not
be:
(a) liable for any act or omission
of any prior sublandlord (including, without limitation, the then defaulting
sublandlord), except to the extent that (1) such act or omission continues after
the date on which Ground Lessor succeeds to the interest of Lessee under the
Lease (the "SUCCESSION DATE"), (2) Ground Lessor receives notice thereof in
accordance with the Lease and (3) Ground Lessor's liability is limited to the
effects of the continuation of such act or omission after the Succession Date
and shall not include any liability of any prior landlord (including Lessee)
which accrued prior to the Succession Date;
(b) subject to any offsets or
defenses which the Subtenant may have against any prior sublandlord (including,
without limitation, the then defaulting sublandlord), except to the extent (1)
that such offsets or defenses accrue in accordance with the terms of the Lease
from and after the Succession Date or (2) the basis for such offsets or defenses
continue to exist from and after the Succession Date; provided that (x) Ground
Lessor receives notice thereof in accordance with the Lease and (y) Ground
Lessor's liability is limited to the effects of the continuation of such offsets
or defenses after the Succession Date and shall not include any liability of any
prior landlord (including Lessee) which accrued prior to the Succession Date;
(c) bound by any payment of rent
which the Subtenant might have made for more than one (1) month in advance to
any prior sublandlord (including, without limitation, the then defaulting
sublandlord);
(d) bound by any covenant to
undertake or complete any construction of the Premises or any portion thereof
demised by the Lease (other than pursuant to Damage and Destruction or Eminent
Domain provisions);
(e) bound by any obligation to make
any payment or return any security deposit to the Subtenant; or
(f) bound by any material
modification of the Lease which reduces the basic rent, additional rent,
supplemental rent or other charges payable under the Lease or shortens the term
thereof, or otherwise materially adversely affects the rights of the Landlord
thereunder, made without the written consent of the Ground Lessor, other than an
amendment or modification entered into to confirm the exercise of a specific
right or option under the Lease in accordance
H-2-2
<Page>
with all of the material terms of the Lease governing the exercise of such
specific right or option.
3. Ground Lessor hereby consents to the Lease
and, subject to the provisions of Paragraph 2(f) hereof, all of the terms and
conditions thereof, and the terms of the Ground Lease shall not affect such
terms and conditions of the Lease, including without limitation, the specific
provisions of the Lease governing assignments, subletting, alterations, repairs,
contesting requirements of law, extending the term of the Lease and expanding
the premises demised by the Lease to include certain portions of the Building
that may become available for leasing from time to time, as all such provisions
are more particularly set forth in the Lease.
4. Subject to the terms and conditions hereof,
Subtenant further agrees (a) to attorn to and recognize any subsequent purchaser
of the Property, as the Landlord under the Lease, and (b) upon request, to
execute and deliver to said person or entity any instrument or instruments in
recordable form which may be necessary to effect the performance of the
agreements herein contained as required by the Lease.
5. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the Subtenant and the
Ground Lessor and cannot be changed or terminated orally.
For purposes hereof, the following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any person or entity, any
other person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with, the person or entity in
question; and
"control" shall mean, in the case of a corporation, ownership or
voting control, directly or indirectly, of at least fifty (50%) percent of
all the voting stock, and in case of a joint venture, partnership or
limited liability company, or similar entity, ownership, directly or
indirectly, of at least fifty (50%) percent of all the general or other
partnership or membership (or similar) interests therein.
H-2-3
<Page>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
GROUND LESSOR;
-----------------------------------
By:
--------------------------------
Name:
Title:
SUBTENANT;
-----------------------------------
By:
--------------------------------
Name:
Title:
H-2-4
<Page>
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of ____________ in the year 200__, before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity as the ____________________ of _______________________,
and that by his/her/their signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
---------------------------
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On the ____ day of ____________ in the year 200__, before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity as the ____________________ of ___________________, and
that by his/her/their signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
---------------------------
Notary Public
<Page>
EXHIBIT I
Intentionally Omitted
I-1
<Page>
EXHIBIT J
Landlord's Consent to Assignment And Assumption of Lease
________________________, having an address at __________________
________________________________ (hereinafter called "Landlord"), hereby
consents (the "Consent") to the assignment by __________________________, a
___________ (hereinafter called "Tenant" or "Assignor"), to _______________, a
_____________, having an office at _________________________ (hereinafter called
"Assignee"), of the Lease (the "Lease") between Landlord and Assignor dated as
of ______________ respecting ________ floors of the building known as 399 Park
Avenue, New York, New York (hereinafter called the "Building") substantially as
shown on the plan attached hereto as EXHIBIT A (the "Premises"), such Consent
being subject to and upon the following terms and conditions, to each of which
Assignor and Assignee expressly agree:
1. Neither the giving of this Consent nor
anything contained herein or in the Assignment and Assumption Agreement executed
by Assignor and Assignee, a true and complete copy of which is annexed hereto as
EXHIBIT B (the "Assignment and Assumption Agreement") shall be construed to
modify, waive, impair or affect any of the covenants, agreements, terms,
provisions, obligations or conditions contained in the Lease (except as herein
expressly provided), or to waive any breach thereof, or any rights of Landlord
against any person, firm, association or corporation liable or responsible for
the performance thereof, or to increase the obligations or diminish the rights
of Landlord under the Lease, or to increase the rights or diminish the
obligations of Tenant thereunder, or to, in any way, be construed as giving
Assignee any greater rights than the original Tenant named in the Lease would be
entitled to, and all covenants, agreements, terms, provisions and conditions of
the Lease are hereby mutually declared to be in full force and effect.
2. Unless expressly provided to the contrary in
the Lease, the giving of this Consent shall not be construed either as a consent
by Landlord to, or as permitting, any other or further assignment of the Lease,
whether in whole or in part, or any subletting of the Premises, or as a waiver
of any requirement set forth in the Lease with respect to obtaining Landlord's
consent thereto. This Consent shall not be assignable.
3. Assignor and Assignee hereby agree that the
provisions of the Lease, shall, notwithstanding this Consent, continue to be
binding upon Assignor and Assignee with respect to all future assignments and
transfers of the Lease, and sublettings of the Premises, with the same effect as
if Assignee had been the original Tenant named in the Lease.
4. Assignor hereby agrees that, subject to the
provisions of Section 7.06(a) of the Lease, the obligations of Assignor under
the Lease and this Consent shall not be discharged or otherwise affected by
reason of the giving or
J-1
<Page>
withholding of any consent or approval for which provision is made in the Lease,
or by reason of any amendment or modification of the Lease hereafter entered
into by Landlord and Assignee.
5. Assignee, for Assignee and its successors and
assigns, hereby (a) accepts the assignment, by Assignor, of Tenant's interest in
and to the Lease, (b) recognizes all of the covenants, agreements, terms,
provisions, obligations and conditions contained in the Lease and hereby assumes
all of said terms, provisions, agreements, covenants, obligations and conditions
of the Lease on the part of Tenant to be kept, observed and performed FROM AND
AFTER THE EFFECTIVE DATE OF THE ASSIGNMENT(1), (c) assumes and agrees to pay the
Fixed Rent, Additional Charges, damages and all other sums NOW AND(2) hereafter
payable by Tenant under the Lease, and (d) agrees to keep and perform, and to
permit no violation of, each and every covenant, agreement, term, provision,
obligation and condition therein set forth on the part of Tenant to be kept,
observed and performed FROM AND AFTER THE EFFECTIVE DATE OF THE ASSIGNMENT(3).
6. Assignor and Assignee, from and after the date
hereof, shall be and remain jointly and severally liable and responsible, at all
times during the term of the Lease (a) for the payment of Fixed Rent, Additional
Charges, damages and all other sums NOW AND(4) hereafter payable by Tenant
thereunder, expressly including as such (but not limited to) adjustments of
rent, and any and all charges for any additional electric energy, property,
material, labor, utility or other similar or dissimilar services or materials
rendered or supplied or furnished by Landlord in, to, or in connection with, the
Premises or any part thereof, and (b) for the performance of all of the
covenants, agreements, terms, provisions, obligations and conditions of the
Lease on the part and on behalf of Tenant to be kept, performed and observed
FROM AND AFTER THE EFFECTIVE DATE OF THE ASSIGNMENT(5).
7. The giving of this Consent shall not be deemed
or serve to release the original Tenant named in the Lease or any successor in
interest to said original Tenant from any liability, obligation or duty which
such original Tenant or such successor in interest may have.
8. The giving of this Consent shall not result in
any liability on the part of Landlord for the payment of any commissions or fees
in
--------
(1) This language to be inserted unless the assignee is a Citi Tenant.
(2) This language to be inserted unless the assignee is a Citi Tenant.
(3) This language to be inserted unless the assignee is a Citi Tenant.
(4) This language to be inserted unless the assignee is a Citi Tenant.
(5) This language to be inserted unless the assignee is a Citi Tenant.
J-2
<Page>
connection with the proposed assignment transaction herein contemplated by
Assignor and Assignee; Assignor and Assignee hereby covenant and agree that
Landlord is not and will not be responsible for the payment of any commissions
or fees in connection with the aforesaid assignment transaction and they each
agree to indemnify and hold Landlord harmless from and against any claims,
liability, losses or expenses, including reasonable attorneys' fees and court
costs, incurred by Landlord in connection with any claims for a commission or
fee by any broker, agent or finder in connection with said assignment
transaction.
9. Assignor and Assignee hereby represent,
covenant and warrant to Landlord that no compensation or other consideration of
any kind (including without limitation the rendering of services or the
supplying of goods or materials for other then full and fair value), other than
as set forth in the Assignment and Assumption Agreement, has been or will be
paid by Assignee or Assignor in connection with the aforesaid assignment.
10. Assignor and Assignee hereby agree that (a)
an executed original or duplicate original of the Assignment and Assumption
Agreement is annexed hereto as EXHIBIT B; (b) Landlord is not a party to the
Assignment and Assumption Agreement and is not bound by the provisions thereof,
and recognize that accordingly Landlord has not, and will not, review or pass
upon any of the provisions of the Assignment and Assumption Agreement; and (c)
the Assignment and Assumption Agreement will not be modified or amended in any
way without the prior written consent of Landlord.
11. Landlord shall be under no obligation to
commence proceedings or exhaust any of its remedies against Assignee before
proceeding against Assignor, or against Assignor before proceeding against
Assignee, for any redress provided for in the Lease or this Consent, or at law
or equity.
12. In the event of any conflict between the
provisions of (a) the Lease or this Consent and (b) the Assignment and
Assumption Agreement, then the provisions of the Lease or this Consent shall
prevail unaffected by the provisions of the Assignment and Assumption Agreement.
In the event of any conflict between the provisions of this Consent and the
provisions of the Lease, the provisions of this Consent shall prevail.
13. This Consent may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any change is sought.
14. This Consent shall not be binding upon
Landlord unless and until it is signed by Landlord.
J-3
<Page>
15. This Consent may be executed in several
counterparts, each of which may be deemed an original, but all of which together
shall constitute one and the same agreement.
16. This Consent shall inure to the benefit of and
be binding upon Landlord, Assignor and Assignee and their respective successors
and assigns.
17. In case any provision of this Consent shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
18. The Section headings in this Consent are for
convenience of reference only and shall not be considered in construing any
provision thereof.
J-4
<Page>
IN WITNESS WHEREOF, the parties hereby have caused these presents to
be duly executed as of the _________ day of ___________, 200__.
LANDLORD:
--------------------------
By:
----------------------------------------
Name:
Title:
ASSIGNOR:
--------------------------
By:
----------------------------------------
Name:
Title:
ASSIGNEE:
---------------------------
By:
----------------------------------------
Name:
Title:
J-5
<Page>
EXHIBIT K
Consent to Sublease
_________________ having an address at ________________________
(hereinafter called "Landlord"), hereby consents to the subletting by
________________ having an address at ____________________________ (the
"Tenant") to __________________ having an address at __________________
("Subtenant") pursuant to an agreement of sublease, dated the _____ day of
_________________ (the "Sublease") a copy of which is attached hereto as Exhibit
A, of certain space (the "Sublet Space") in the building known as 399 Park
Avenue, New York, New York (the "Building"), which Sublet Space is a portion of
the premises (the "Premises") now leased and demised by Landlord to Tenant
pursuant to a lease dated as of _________________, (such lease, as amended, the
"Lease"), such consent being subject to and upon the following terms and
conditions, to each of which Tenant and Subtenant expressly agree:
1. Unless expressly otherwise provided herein,
any capitalized terms not defined in this Consent shall have the meanings
ascribed thereto in the Lease.
2. Nothing herein contained shall be construed to
modify, impair or affect any of the covenants, agreements, terms, provisions or
conditions in the Lease, or to waive any breach thereof, or any rights of
Landlord against any person, firm, partnership, association or corporation
liable or responsible for the performance thereof, or to enlarge or increase
Landlord's obligations under the Lease, and all covenants, agreements, terms,
provisions and conditions of the Lease are hereby mutually declared to be in
full force and effect. Unless and except as otherwise specifically provided in
the Lease or this Consent, the provisions of Article 7 of the Lease shall apply
to any proposed undersubletting of all or any part of the Sublet Space as if
such request for Landlord's consent to such undersubletting were a proposed
subletting being made by Tenant under the Lease. In such event Landlord shall
have the same rights with respect to Subtenant under Article 7, including, but
not limited to, the right to receive amounts described in Sections 7.11(b)(vii)
and 7.14 as Landlord would have with respect to Tenant if Tenant were requesting
Landlord's consent to a subletting under the same circumstances and upon the
same terms and conditions.
3. Tenant shall be and remain liable for the due
keeping, performance and observance of all the covenants, agreements, terms,
provisions and conditions set forth in the Lease on the part of the Tenant to be
kept, performed and observed and for the payment of the Fixed Rent, Additional
Charges and all other sums now and/or hereafter becoming payable thereunder,
expressly including as such, but not limited to, adjustments of rent, and any
and all charges for any electric energy, property, material, labor, utility or
other similar or dissimilar services or materials rendered, supplied, or
furnished by Landlord in, to or in connection with the Premises or any part
thereof, whether for or at the request of Tenant or Subtenant.
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4. This Consent shall not be construed as a
consent by Landlord to, or as permitting, any other or further subletting by
either Tenant or Subtenant, except as otherwise expressly provided in the Lease.
Subtenant shall not, without the prior written consent of Landlord in each
instance, (i) permit occupancy by any party other than Subtenant and its
principals and employees or (ii) assign the Sublease or this Consent or further
sublet the Sublet Space or any part thereof, except as otherwise expressly
permitted in the Lease.
5. Tenant and Subtenant agree that Landlord is
not responsible for the payment of any commissions or fees in connection with
this transaction and they each jointly and severally agree to indemnify and hold
Landlord harmless from and against any claims, liability, losses or expenses,
including reasonable attorneys' fees, incurred by Landlord in connection with
any claims for a commission by any broker or agent in connection with the
Sublease and\or this Consent.
6. Subtenant agrees that if Subtenant shall
become a direct tenant of Landlord for the Sublet Space or any part thereof upon
the early termination of the Lease in connection with a default of Tenant
thereunder and the Subtenant's attornment to Landlord pursuant to the Sublease
for the balance of its term, Landlord shall not be responsible for the payment
of any commissions or fees in connection with such direct lease, and Tenant and
Subtenant jointly and severally agree to indemnify and hold Landlord harmless
from and against any claims, liability, losses or expenses, including reasonable
attorney's fees, incurred by Landlord in connection with claims for a commission
by any broker or agent in connection with such direct lease. Notwithstanding the
foregoing, nothing contained herein shall make Tenant or Subtenant responsible
for any commission, fee or other compensation payable to a broker engaged by
Landlord in connection with such direct lease.
7. Subject to the terms and conditions of any
subordination, non-disturbance and attornment agreement between Subtenant and
Landlord, upon the expiration or earlier termination of the Lease, or in case of
the surrender of the Lease by Tenant to Landlord, the Sublease and the term and
estate thereby granted shall, at Landlord's election, expire and come to an end
as of the effective date of such expiration, termination or surrender, and
Subtenant shall vacate the Sublet Space on or before such date. In case of the
failure of Subtenant so to vacate, Landlord shall be entitled to all the rights
and remedies which are available to a landlord against a tenant of the Sublet
Space holding over after the expiration of a term, in addition to the rights and
remedies which are available to Landlord pursuant to the Lease in the event that
Tenant holds over after the expiration of the Lease. In the event of the
expiration, early termination or surrender of the Lease as set forth above, and
in the event that Landlord does not so elect to have the term and estate granted
by the Sublease expire, then, notwithstanding anything in the Lease to the
contrary, Landlord may take over all of the right, title and interest of Tenant,
as sublessor, under the Sublease, and Subtenant shall, at Landlord's option,
attorn to Landlord pursuant to the then executory
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provisions of the Sublease, except that Landlord shall not be (i) liable for any
previous act or omission of Tenant under the Sublease, except that such
non-liability shall in no way diminish Tenant's rights under the Sublease with
respect to the continuing failure of Landlord to perform the obligations of
Tenant under the Sublease after the date upon which Landlord succeeds to the
interests of Tenant under the Sublease, (ii) subject to any credit, offset,
claim, counterclaim, demand or defense which Subtenant may have against Tenant
which shall have accrued to Subtenant against Tenant prior to the date upon
which Landlord succeeded to the interest of Tenant under the Sublease, (iii)
bound by any previous modification of the Sublease (except for any such
modification with respect to which Landlord's consent is not required pursuant
to any express provision of the Lease) or by any previous prepayment of more
than one month's rent, (iv) bound by any covenant of Tenant to undertake or
complete any construction of the Sublet Space or any portion thereof (but the
foregoing shall not be deemed to relieve Landlord of any of its obligations
under Articles 19 or 20 of the Lease), (v) required to account for any security
deposit of the Subtenant other than any security deposit actually delivered to
Landlord by Tenant, (vi) bound by any obligation to make any payment to
Subtenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the Sublease to be performed after the date of
such attornment, (vii) responsible for any monies owing by Landlord to the
credit of Tenant or (viii) required to remove any person occupying the Sublet
Space or any part thereof.
8. The Sublet Space (subject to all of the
covenants, agreements, terms, provisions and conditions of the Lease) shall be
used by Subtenant solely for the purposes permitted under the Lease and for no
other purposes.
9. Intentionally omitted.
10. Intentionally omitted.
11. Subject to the terms and conditions of any
subordination, non-disturbance and attornment agreement between Subtenant and
Landlord, the Sublease shall be subject and subordinate at all times to the
Lease, and to all of the covenants, agreements, terms, provisions and conditions
of the Lease and of this Consent, and Subtenant shall not do or permit anything
to be done in connection with Subtenant's occupancy of the Sublet Space which
would violate any of said covenants, agreements, terms, provisions and
conditions.
12. Tenant and Subtenant agree that (i) a fully
executed copy of the Sublease has been furnished to Landlord, (ii) Landlord is
not a party to the Sublease and is not bound by the provisions thereof (iii)
Landlord has not and will not, review or pass upon any of the provisions of the
Sublease and (iv) the Sublease will not be modified or amended in any material
way without the prior written consent of Landlord, except as may be expressly
provided in the Lease. Nothing contained herein shall be construed as a consent
to, or approval or satisfaction by Landlord of any of the
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provisions of the Sublease, but is merely a consent to the act of subletting by
Tenant to Subtenant.
13. Tenant and Subtenant represent and warrant to
Landlord that no compensation or consideration of any kind other than as set
forth in the Sublease or otherwise disclosed to Landlord has been, or will be,
paid by Subtenant to Tenant in connection with the Sublease.
14. The Subtenant agrees to maintain the same
insurance required to be carried by the Tenant under the Lease with respect to
the Sublease Space, naming as additional insureds under Subtenant's policies of
insurance Tenant, Landlord and all parties so required to be named under the
Lease, and Subtenant further agrees to waive subrogation in favor of the
Landlord to the same extent required of the Tenant under said Lease, and
Landlord agrees to waive subrogation in favor of Subtenant to the same extent
that Landlord is required to waive subrogation in favor of Tenant under said
Lease. Subtenant further agrees to provide a certificate of insurance which
complies with these requirements to Landlord no later than the earlier of (i)
fifteen (15) days following the date hereof or (ii) the date on which Subtenant,
or any party acting through Subtenant, occupies the Premises for any purpose,
including, without limitation, the installation of Subtenant's furniture,
fixtures or other personal property.
15. In the event of any conflict between the
provisions of this Consent and the provisions of the Lease, the provisions of
this Consent shall prevail. In the event of any conflict between the provisions
of (i) the Lease or this Consent and (ii) the Sublease, the provisions of the
Lease or this Consent shall prevail unaffected by the provisions of the
Sublease.
16. This Consent may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any change is sought.
17. This Consent shall not be binding against
Landlord unless and until it is signed by Landlord.
18. This Consent shall be governed by, and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within said state.
19. All of the terms, conditions and provisions of
this Consent shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
20. If any term, condition or provision of this
Consent or the application thereof to any circumstance or party hereto shall be
invalid or unenforceable to any extent, the remaining terms, conditions and
provisions of this
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Consent or the application thereof to any circumstance or party hereto, other
than that held invalid or unenforceable, shall not be affected thereby and each
remaining term, condition and provision of this Consent shall be valid and
enforceable to the fullest extent permitted by law.
21. This Consent may be executed in any number of
counterparts and each counterpart shall for all purposes be deemed an original,
and all such counterparts shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to
be duly executed as of the ______ day of ____________, -----.
LANDLORD
------------------------
By:
----------------------------------------
Name:
Title:
TENANT
------------------------
By:
----------------------------------------
Name:
Title:
SUBTENANT
------------------------
By:
----------------------------------------
Name:
Title:
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EXHIBIT L
Qualified Space Non-Disturbance Agreement
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
AGREEMENT made as of the ___ day of __________, 200_ between
__________________ (hereinafter called "Landlord"), ________________
(hereinafter called "Tenant"), and ________________ (hereinafter called
"Subtenant");
WITNESSETH:
WHEREAS, Landlord is the landlord under that certain lease dated as of
___________________, 200__ between Landlord, as lessor, and Tenant, as lessee
(hereinafter called the "Overlease"), covering certain premises (hereinafter
called the "Demised Premises") in the building situated at 399 Park Avenue, New
York, New York (hereinafter called the "Building"); on land more particularly
described in Exhibit A annexed hereto; and
WHEREAS, a portion of the Demised Premises comprised of
_______________ (hereinafter called the "Sublease Premises") has been subleased
to Subtenant pursuant to that certain sublease dated as of ____________, 200__
between Tenant, as sublessor, and Subtenant, as sublessee (hereinafter called
the "Sublease").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration in hand paid, the parties hereto agree as follows:
1. So long as Subtenant is not in default, after
notice and the lapse of any applicable grace period, in the performance of any
terms, covenants and conditions to be performed on its part under the Sublease,
then in such event:
(a) Unless any applicable law
requires same, Subtenant shall not be joined as a party defendant in any action
or proceeding which may be instituted or taken by the Landlord for the purpose
of terminating the Overlease by reason of any default thereunder;
(b) Subtenant shall not be evicted
from the Premises nor shall any of Subtenant's rights under the Sublease be
affected in any way by reason of any default under the Overlease, and
(c) Subtenant's leasehold estate
under the Sublease shall not be terminated or disturbed by reason of any default
under the Overlease.
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2. (a) If Landlord shall succeed to the rights of
Tenant under the Sublease by termination of the Overlease or otherwise,
Landlord, as Subtenant's landlord under said Sublease, shall accept Subtenant's
attornment and Subtenant agrees to so attorn and recognize Landlord as
Subtenant's landlord under said Sublease without further requirement for
execution and delivery of any instrument to further evidence the attornment set
forth herein. Subtenant or Landlord will, each within ten (10) business days
after demand of the other, execute and deliver any instrument that may
reasonably be required to evidence such attornment.
(b) Subject to the provisions of
subparagraph 2(c) below, upon any such attornment and recognition, the Sublease
shall continue in full force and effect as, or as if it were, a direct lease
between Landlord and Subtenant upon all of the then executory terms, conditions
and covenants as are set forth in the Sublease (as the same incorporates by
reference the Overlease, notwithstanding the termination of the Overlease), and
shall be applicable after such attornment, provided, to the extent that Landlord
has any rights under the Overlease which are applicable to the Demised Premises
and are in addition to the rights of the lessor under the Sublease, such rights
shall be deemed incorporated into the Sublease, notwithstanding the termination
of the Overlease; and provided, further that Landlord shall not be (i) subject
to any credits, offsets, defenses or claims which Subtenant might have against
Tenant; nor (ii) bound by any rent which Subtenant might have paid for more than
the current month to Tenant, unless such prepayment shall have been made with
Landlord's prior written consent; nor (iii) liable for any act or omission of
Tenant; nor (iv) bound by any covenant to undertake or complete any improvement
to the Sublease Premises or the Building; nor (v) be required to account for any
security deposit other than any security deposit actually delivered to Landlord;
nor (vi) liable for any payment to Subtenant of any sums, or the granting to
Subtenant of any credit, in the nature of a contribution towards the cost of
preparing, furnishing or moving into the Sublease Premises or any portion
thereof; nor (vii) bound by any amendment, modification or surrender of the
Sublease made without Landlord's prior written consent. Subtenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Sublease or the obligations of Subtenant thereunder by
reason of any action or proceeding for the purpose of terminating the Overlease
by reason of any default thereunder.
(c) Notwithstanding anything to the
contrary contained herein, in the event that the rental rate set forth in the
Sublease, on a per rentable square foot basis (including fixed rent and
additional rent on account of real estate taxes, Operating Expenses and
electricity), after taking into account all rent concessions provided for in the
Sublease, is less than the Lease Rent (as such term is defined in Section 7.17
of the Overlease), the Sublease shall be deemed to be automatically amended
effective as of the date of the aforementioned attornment and recognition so
that from and after the date of such attornment and recognition, the rental rate
payable under the Sublease shall be the Lease Rent. Subtenant or Landlord will,
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each within ten (10) business days after demand of the other, execute and
deliver an amendment to the Sublease, in form reasonably satisfactory to
Landlord and Subtenant, setting forth such increase in the rental rate payable
under the Sublease to the Lease Rent; provided, however, that the absence of
such written amendment shall not, in any event, affect the automatic rental
increase described herein.
3. Intentionally Omitted.
4. The Sublease now is and shall remain subject
and subordinate to the Overlease and to any ground or underlying lease affecting
the Demised Premises and to all renewals and replacements, extensions,
consolidations and modifications thereof, subject to the terms and conditions of
this Agreement.
5. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto, their successor and
assigns.
6. This Agreement may not be modified except by
an agreement in writing signed by the parties or their respective successors in
interest.
7. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement (or any amendment to the Sublease made
pursuant hereto) must be in writing and mailed to the party to whom the notice,
demand or request is being made by certified mail, return receipt requested, at
its address set forth above. Notices shall be deemed to have been given,
rendered and made on the second day after the day so mailed. Any party may
change the place that notices, demands and requests are to be sent by written
notice delivered in accordance with this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto.
Landlord:
-------------------------
By:
----------------------------------------
Name:
Title:
Subtenant:
-------------------------
By:
----------------------------------------
Name:
Title:
Tenant:
-------------------------
By:
----------------------------------------
Name:
Title:
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EXHIBIT M
Board of Managers' Waiver
In connection with that certain lease (the "Lease") dated as of
_________________ between _______________, as landlord ("Landlord"), and
____________________, as tenant ("Tenant"), the Board of Managers of The 399
Park Avenue Condominium (the "Board") under that certain Second Amended and
Restated Declaration of Condominium dated as of January 1, 1995 and recorded in
the Office of the Register of The City of New York on October 2, 1997 in Reel
2502 at Page 0334, hereby waives for itself and those claiming through and under
the Board any right of recovery against Tenant and its agents and employees
("Tenant Waiver Parties" and individually, a "Tenant Waiver Party"), for any
loss occasioned by fire or other casualty, whether or not arising from the
negligence of such Tenant Waiver Party, (a) covered by a fire and extended
coverage insurance policy maintained by or for the Board insuring the Building
(as defined in the Lease), which policy includes a clause or endorsement
pursuant to which the insurance company waives subrogation as against such
Tenant Waiver Party or permits the insured, prior to any loss, to waive any
claim it may have against said Tenant Waiver Party without invalidating the
coverage under such insurance policy or (b) coverable under a standard all-risk
insurance policy but as to which the Board is a self-insurer; provided, however,
that if, in any instance under clause (a) above, such clause or endorsement
shall not extend to all Tenant Waiver Parties, the waiver set forth above shall
extend only to the Tenant Waiver Parties to whom such clause or endorsement
extends.
Dated: _________________
The Board of Managers of
The 399 Park Avenue Condominium
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
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EXHIBIT N
Form of Landlord's Statement
399 Park Avenue - Unit 2
Statement of Operating Expenses
for the year ended December 31, ___
Cleaning $ --
Utilities
Water
Maintenance Contracts
Repairs
Insurance
Security
Salaries & Management Fees
Management Fees
Professional Fees and Other
------------
Total --
Escalatable Capital Cost --
------------
Total Escalatable Expenses $ --
============
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EXHIBIT O
Approved Contractors
[See attached]
O-1
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EXHIBIT P
Building Passenger Elevator Specifications
ELEVATOR BANK "A" - CARS # 1 THROUGH # 8
Speed Up-FPM 500 + 5%
Speed Up-FPM 500 + 5%
Performance Up-Sec. 8.0
Performance Down-Sec. 8.0
Stopping Accuracy +/- 1/4"
Door Open-Sec. 1.6
Door Open-Sec. 2.9
Car Door Closing Pressure-Lbs. 30 Max.
ELEVATOR BANK "B" - CARS # 9 THROUGH # 14
Speed Up-FPM 700 +/- 5%
Speed Down-FPM 700 +/- 5%
Performance Up-Sec. 8.0
Performance Down-Sec. 8.0
Stopping Accuracy +/- 1/4"
Door Open-Sec. 1.5
Door Close-Sec. 2.5
Car Door Closing Pressure-Lbs. 30 Max.
ELEVATOR BANK "C" - CARS # 15 THROUGH # 20
Speed Up-FPM 1000 +/- 5%
Speed Down-FPM 1000 +/- 5%
Performance Up-Sec. 8.0
Performance Down-Sec 8.0
Stopping Accuracy +/- 1/4"
Door Open-Sec. 1.5
Door Close-Sec. 2.5
Car Door Closing Pressure-Lbs. 30 Max.
ELEVATOR # 32
Speed Up-FPM 800 +/- 5%
Speed Down-FPM 800 +/- 5%
Performance Up-Sec. 8.0
Performance Down-Sec 8.0
Stopping Accuracy +/- 1/4"
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Door Open-Sec. 1.5
Door Close-Sec. 2.5
Car Door Closing Pressure-Lbs. 30 Max.
ELEVATOR # 35
Speed Up-FPM 115 +/- 10%
Speed Down-FPM 115 +/- 10%
Performance Up-Sec. 13.0
Performance Down-Sec 13.0
Stopping Accuracy +/- 1/4"
Door Open-Sec. 1.6
Door Close-Sec. 2.5
Car Door Closing Pressure-Lbs. 30 Max.
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EXHIBIT Q
Tenant Private Elevator Locations and Tenant Lobby Podium Location
[See attached]
Q-1
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EXHIBIT R
Calculation of Supplemental Chilled Water Charge Adjustment
[See attached]
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EXHIBIT S
Calculation of Supplemental Condenser Water Charge Adjustment
[See attached]
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EXHIBIT T
Building-Wide Security System
AS MORE PARTICULARLY SET FORTH IN THE LEASE, THE PROVISIONS OF THIS EXHIBIT T
ARE SUBJECT TO REVISION FROM TIME TO TIME, BASED ON THE MUTUAL AGREEMENT OF
LANDLORD AND TENANT TO ADDRESS THE RESPECTIVE REASONABLE SECURITY REQUIREMENTS
OF THE BUILDING, THE UNIT AND TENANT'S PREMISES AND OPERATIONS, TAKING INTO
ACCOUNT THE UNIQUE SECURITY ISSUES PRESENTED BY TENANT'S POSITION AS A
WORLD-LEADING FINANCIAL SERVICES COMPANY
(A) 399 PARK BUILDING SECURITY OPERATIONS PROCEDURES
Landlord and Landlord's Security Provider (herein called "LSP") have been
provided with a copy of the "399 Park Avenue Building Security Operations
Procedures" (herein called the "SOP"). Many of the procedures set forth
below, particularly with respect to General Access Control and Premises
Access Control, are covered in detail in the SOP. All of the procedures and
levels of security contained in the SOP shall remain in force and not be
modified or reduced unless and until modified by mutual agreement of TSO
and LSP. In all cases, any modifications shall be at least consistent with
standards appropriate for a first-class office building serving as a
corporate headquarters for a Fortune 500 company.
(B) TENANT'S COMMAND CENTER; TENANT'S SECURITY OPERATOR
Tenant shall have the right to maintain its own command center (herein
called the "COMMAND CENTER") from the portion of the Premises shown on Exhibit
B-1 of the Lease. Subject to Tenant's right to designate, subject to Landlord's
reasonable approval, the operator of the Command Center from time to time
(herein called "TENANT'S SECURITY OPERATOR" or "TSO"), the initial operator of
the Command Center shall be Citigroup Security and Investigative Services.
Landlord and Tenant acknowledge and agree that as of the date of the Lease, the
security operations of TSO and LSP may not have been separated and may be run
jointly from the Command Center. In such event, LSP shall work diligently, at
Landlord's sole cost and expense, to separate its operations from the Command
Center in an expeditious manner, during which time TSO and LSP shall cooperate
in their joint use of the Command Center.
(C) COORDINATION WITH LANDLORD'S SECURITY PROVIDER
Subject to the rights of Tenant's Security Operator set forth below to
control exclusively certain security requirements affecting the Premises only,
TSO and
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LSP shall cooperate with each other to provide optimum security for the
Building, the Unit and the Premises. Such cooperation shall include, without
limitation:
1. Mutual consultation with respect to the training, skill sets, and
competence levels of all security personnel.
2. Periodic exercises held jointly and/or individually by TSO and LSP to
test the effectiveness of the security staff competency and security
readiness.
3. Consultation regarding appropriate uniforms for building security
staff.
4. TSO's right to maintain a site manager present at the Building.
5. The prompt sharing of information between LSP and TSO including,
without limitation:
/ / Detection of weapons or contraband by Xray process
/ / Accidents and injuries
/ / Fire
/ / Incidents of criminal activity
/ / Intrusion
/ / Natural or manmade disaster
/ / Engineering Impairments that impact Tenant's Premises
/ / Electrical Impairments that impact Tenant's Premises
/ / Suspicious packages
/ / Bomb Threats
(D) GENERAL ACCESS CONTROL
1. Perimeter security will be maintained at levels in effect as of the
date of the Lease. There will be a manned perimeter patrol 24 hours a
day, 7 days a week. Perimeter security will include enforcing no
standing and other parking restrictions. In the event that conditions
change which may warrant increased security, LSP and TSO will
cooperate in any required implementation.
2. Maintain procedures in effect as of the date of the Lease regarding
xray of all incoming packages through the main lobbies and all
incoming mail and deliveries to all tenant spaces and areas of the
Building.
3. Loading Dock to be adequately staff with trained security officers.
All delivery vehicles will be subject to inspection for security
purposes.
4. Building security will post security officers at the lobby turnstiles
to conduct "card-to-face" verifications.
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5. Food and other deliveries shall not be made to individual floors. All
such items shall be handled in the messenger center or other means
reasonably acceptable to LSP and TSO.
6. External messengers will not be allowed onto individual floors for any
reason.
7. TSO and LSP agree to joint implementation of mutually-acceptable
suspicious package and mail handling protocols.
(E) PREMISES ACCESS CONTROL
1. TSO shall have the right to exclude LSP security personnel, except in
the performance of their normal duties or emergencies, from all or any
portion of the Premises and to provide security to such portions of
the Premises by security personnel selected and hired by TSO.
2. TSO shall have the right to maintain an armed security services lobby
supervisor in the main lobby during the hours of 7 am to 7 pm, Monday
through Friday.
3. Communications to floors of the Premises via desk drop, email,
signage, PA announcement, or any other form of communication (except
during emergency) will receive prior approval from TSO.
(F) SECURITY ADMINISTRATION
1. TSO shall have the right to inspect appropriate records, logbooks,
training files, training aids, guard post orders, manuals, base
building security incident reports, assessments, security surveys,
etc. and lists of all building engineering, cleaning, security, and
other support services staff members as reasonably required.
2. LSP shall meet with TSO weekly to review security and safety related
matters of the Building.
3. LSP security policies will remain substantially similar in scope and
intent.
4. Security and safety related complaints, suggestions and
recommendations from TSO will be addressed promptly.
(G) FIRE & LIFE SAFETY
1. Changes in the Building's Fire Safety Plan shall be reviewed with TSO
prior to implementation.
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2. Fire drills, evacuation drills, and any other tenant-intensive
training event will be approved and coordinated with TSO by LSP.
3. The assignment on Tenant floors of floor leaders, fire wardens, deputy
fire wardens, searchers, and other tenant emergency organization will
be subject to the approval of TSO.
(H) SECURITY SYSTEMS
1. Any planned or proposed alterations or modifications to the Building's
CCTV, access control, guard staffing, or installed security equipment
will be reviewed with TSO prior to implementation.
2. TSO will be granted access to base building common tenant location
card history, access reports, time and attendance, and other card
access system reports as required as they may directly relate to
Tenant's occupancy and security. LSP will fully cooperate with TSO in
the investigation of security and criminal matters related to Tenant's
occupancy in the building.
3. Base building card access, access levels, time zones, and all other
matters concerning the card access data base management of Tenant
employees will remain the responsibility of TSO.
4. TSO will approve card control distribution for Tenant's employees in
the premises as well as base building common areas.
5. Card readers servicing non-Tenant areas and the lobby turnstiles will
be modified to terminate at LSP's control center.
6. Tenant will retain ownership of all existing security equipment which
either (i) exclusively serves the Premises or (ii) is not reasonably
required by Landlord to provide security to the Building other than
the Premises.
7. Tenant will maintain, at its expense, CCTV tie in to perimeter cameras
and common area cameras.
(I) EMERGENCY RESPONSE
1. TSO shall have the capability of communicating on the base building
security and engineering channels of the portable radio system.
Operational procedures will be put in place to ensure that base
building security force can provide back up security officers when
required provided in no event shall such use interfere with LSP's use
of those channels.
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2. Any events, disturbances, protest activity, civil unrest, union
activities, weather or environmental dangers, parades, etc. will be
communicated to and from TSO and LSP.
3. TSO will maintain and forward to LSP an Emergency Notification List,
consisting of telephone, pager, and other call-up information in case
of emergency. This information will be kept highly confidential.
4. In the case of an emergency, LSP will fully cooperate with the
implementation of TSO's Continuity Of Business plans subject to LSP's
execution of emergency procedures related to the building.
(J) SPECIAL EVENTS
1. TSO and LSP will inform each other when any special event is planned
by Tenant or another tenant, or when a high level VIP, government
official, or high profile visitor is expected, or photographers,
press, or other media entities will be present in the Building.
2. LSP will maintain a sufficient supply of two-way radios in the event
that additional coverage for a special event is required by LSP or
TSO.
3. LSP will use reasonable efforts to comply with TSO's occasional need
for accommodations for special events.
4. In the event of a planned visit by a dignitary, head of state,
celebrity, or other person of renown to the Premises, TSO will inform
LSP, and appropriate arrangements will be made.
(K) CONFIDENTIALITY
Various procedures set forth above provide for the sharing of
information between TSO and LSP. All such information shall be treated
as confidential by TSO and LSP to the full extent practicable. In
addition, in those situations where TSO or LSP believe in their
reasonable discretion that legitimate confidentiality concerns require
non-disclosure of particularly sensitive information (such as the
identity of a dignitary or head of state visiting the Premises or the
premises of another tenant of the Building), TSO or LSP, as the case
may be, may withhold such information, subject to the obligation of
both parties to make disclosures per applicable provisions of law.
(L) TUNNEL
T-5
<Page>
For so long as the tunnel connecting the Building to the Citigroup
Center remains open, TSO and LSP shall cooperate to formulate and
implement appropriate security measures in connection therewith.
(M) PLANTERS/BARRIERS
Subject to the requirements of governmental authorities, the
Planters/Barriers existing on the Park Avenue and the Lexington Avenue
sides of the Building as of the date of the Lease shall remain in
place, subject to the mutual agreement of TSO and LSP as to the need
to modify or upgrade from time to time the placement around the
perimeter of the Building of impediments to vehicular threats to the
safety of the Building.
T-6
<Page>
EXHIBIT U
Tenant Riser and Shaft Share Locations
[See attached]
U-1
<Page>
EXHIBIT V
Tenant Mechanical Space Locations
[See attached]
V-1
<Page>
EXHIBIT W
Intentionally Omitted
W-1
<Page>
EXHIBIT X
Tenant Lobby Desk Locations
[See attached]
X-1
<Page>
EXHIBIT Y
Tenant Existing Rooftop Antenna Locations
[See attached]
Y-1
<Page>
EXHIBIT Z
Tenant Existing Generator Area Locations
[See attached]
Z-1
<Page>
EXHIBIT AA
Tenant Building Lobby Paintings
[See attached]
AA-1
<Page>
EXHIBIT BB
Intentionally Omitted
BB-1
<Page>
EXHIBIT CC-1
Prohibited Penetration Area 1
[See attached]
CC-1
<Page>
EXHIBIT CC-2
Prohibited Penetration Area 2
CC-2-1
<Page>
TABLE OF DEFINED TERMS
Page
------
AAA......................................................................31
ABATEMENT NOTICE........................................................143
ABATEMENT THRESHOLD REQUIREMENT.........................................142
ACTUAL CHARGE............................................................81
ADDITIONAL CHARGES........................................................3
ADDITIONAL RISER/SHAFT/MECHANICAL SPACE.................................103
ADD-ON ROFO SPACE.......................................................172
ADJACENT AREA.............................................................6
AFFILIATE................................................................38
ALTERATIONS..............................................................66
AND/OR..................................................................145
ANTENNA.................................................................182
ANTICIPATED COMPLETION DATE.............................................121
ARBITER..................................................................30
ASSIGNMENT CONSENT REQUEST NOTICE........................................44
ASSIGNMENT DOCUMENT......................................................45
ASSIGNMENT PROFIT....................................................54, 56
ASSIGNMENT RECAPTURE OFFER NOTICE........................................44
ASSIGNMENT RECAPTURE PERIOD..............................................44
AUDIT REPRESENTATIVE.....................................................29
BACK-UP POWER SYSTEM....................................................187
BACK-UP POWER SYSTEM AREA...............................................187
BASE OPERATING AMOUNT................................................13, 34
BASE OPERATING YEAR......................................................13
BASE RATE...............................................................146
BASE TAX AMOUNT......................................................13, 34
BASEMENT LEVEL A PREMISES.................................................2
BASEMENT LEVEL B PREMISES.................................................2
BASEMENT LEVEL C PREMISES.................................................2
BASEMENT PREMISES.........................................................2
BASIC CAPACITY...........................................................84
BOARD.....................................................................1
BOARD OF MANAGERS........................................................33
BOARD SNDA...............................................................33
BOARD'S LIEN..............................................................1
BUILDING..................................................................1
BUILDING STANDARDS.......................................................33
BUSINESS HOURS..........................................................144
BY-LAWS..................................................................33
CERTIORARI APPLICATION...................................................25
CERTIORARI DIRECTION NOTICE..............................................25
CERTIORARI WAIVER NOTICE.................................................25
CITI TENANT..............................................................39
CITIGROUP CENTER........................................................104
CITIGROUP CENTER SERVICE CONNECTIONS....................................104
CITIGROUP CENTER SERVICE RIGHTS.........................................104
CITIGROUP CENTER SERVICES...............................................104
CLEANING DEFICIENCIES....................................................91
CLEANING IMPROVEMENT MEETING.............................................91
CLEANING NOTICE..........................................................90
CLEANING SPECIFICATIONS..................................................90
CODE.....................................................................84
COMMAND CENTER............................................................1
COMMENCEMENT DATE.........................................................2
COMMENCEMENT DATE OF THE FIRST EXTENSION TERM...........................152
COMMENCEMENT DATE OF THE SECOND EXTENSION TERM..........................153
COMPARABLE BUILDINGS.....................................................14
COMPARABLE SPACE.........................................................50
CONDOMINIUM...............................................................1
CONDOMINIUM AGREEMENT...................................................144
CONDOMINIUM DOCUMENTS....................................................33
CONFORMING SNDA..........................................................37
CONSUMER PRICE INDEX....................................................144
CONTIGUOUS BLOCK........................................................164
CONTIGUOUS ROFO BLOCK...................................................173
CONTRACTOR...............................................................90
CONTRACTUAL CONFIDENTIALITY PROVISION...................................150
CONTROL..................................................................39
CORPORATE SUCCESSOR......................................................39
CPI-AUC.................................................................144
DATE OF THE TAKING......................................................122
DAY TRADING PARLOR........................................................9
DECLARATION...........................................................33, 1
DEEMED APPROVAL NOTICE...................................................66
DEMISED PREMISES..........................................................1
DIESEL GENERATOR........................................................187
DINING FACILITY..........................................................98
DISASTER FUNCTIONS......................................................143
EDC.....................................................................197
ELIGIBLE RENEWAL/ROFO TENANT............................................152
ELIGIBLE SUBLEASE........................................................57
ELIGIBLE SUBTENANT.......................................................57
EQUIPMENT SPACE.........................................................103
ESCALATOR................................................................79
ESDC....................................................................197
EXECUTIVE FLOORS.........................................................92
EXHIBIT B.................................................................2
EXPIRATION DATE...........................................................3
EXTENDED MESSENGER CENTER HOURS.........................................106
EXTENSION ELECTION NOTICE...............................................153
EXTENSION PREMISES......................................................153
EXTENSION TERM..........................................................153
EXTRA CLEANING...........................................................92
FAILING PARTY...........................................................158
FEDERAL RESERVE FUNDS.....................................................4
FF&E.....................................................................56
-i-
<Page>
TABLE OF DEFINED TERMS
(continued)
Page
------
FIDUCIARIES.............................................................150
FIRST EXTENSION TERM....................................................152
FIRST FIVE YEAR OPTION..................................................152
FIRST RENT PERIOD.........................................................3
FIXED RENT................................................................3
FOLLOW-UP MEETING........................................................91
FOR SUBSTANTIALLY ALL OF THE BALANCE OF THE TERM OF THIS LEASE...........46
FOR SUBSTANTIALLY ALL OF THE PREMISES....................................46
FORCE MAJEURE CAUSES....................................................142
GAAP.....................................................................15
GENERATOR AREA..........................................................187
GENERATOR FUEL..........................................................190
GROUND LEASE..............................................................1
GROUND LESSOR.............................................................1
HEREIN..................................................................145
HEREOF..................................................................145
HEREUNDER...............................................................145
HOLDOVER................................................................157
HOLDOVER STUB AMOUNT....................................................141
HVAC.................................................................67, 92
IDA.....................................................................197
IMPROVEMENTS DEMOLITION WORK............................................118
IMPROVEMENTS RESTORATION WORK...........................................118
INITIAL ALTERATIONS REQUEST..............................................66
INITIAL CAFETERIA VENDOR APPROVAL REQUEST...............................177
INITIAL CHARGE...........................................................81
INITIAL GENERATOR AREA..................................................188
INITIAL MECHANICAL SPACE................................................102
INITIAL RISER/SHAFT SPACE...............................................102
INITIATING PARTY........................................................155
INTEREST RATE...........................................................146
KW.......................................................................79
KWHR.....................................................................79
LAND......................................................................1
LANDLORD...........................................................1,145, 1
LANDLORD PARTY..........................................................115
LANDLORD SHALL HAVE NO LIABILITY TO TENANT..............................145
LANDLORD'S AFFILIATES....................................................13
LANDLORD'S ASSIGNMENT CONSENT............................................44
LANDLORD'S ASSIGNMENT RECAPTURE NOTICE...................................44
LANDLORD'S CASUALTY TERMINATION NOTICE..................................119
LANDLORD'S CERTIORARI COUNSEL............................................25
LANDLORD'S EXPERT.......................................................119
LANDLORD'S HAZARDOUS MATERIALS WORK.......................................6
LANDLORD'S HAZARDOUS MATERIALS WORK AREA..................................6
LANDLORD'S MESSENGER CENTER VENDOR......................................106
LANDLORD'S NON-DISTURBANCE AGREEMENT.....................................57
LANDLORD'S NON-RECAPTURE SUBLEASE CONSENT................................47
LANDLORD'S RATE..........................................................79
LANDLORD'S RECAPTURE SUBLEASE CONSENT....................................46
LANDLORD'S SELF-HELP DISPUTE NOTICE.....................................138
LANDLORD'S STATEMENT.....................................................13
LANDLORD'S SUBLEASE CONSENT..............................................47
LANDLORD'S SUBLEASE RECAPTURE NOTICE.....................................46
LANDLORD'S SUBMITTED VALUE.........................................155, 166
LANDLORD'S WAIVER........................................................73
LANDLORD'S WATER RATE....................................................89
LEASE.....................................................................1
LEASE.....................................................................1
LEASE.....................................................................1
LEASE RENT...............................................................57
LEGAL REQUIREMENTS......................................................144
LEHMAN CAFETERIA SERVICES...............................................177
LEHMAN LEASE............................................................177
LEHMAN TENANT...........................................................177
LESSEE....................................................................1
LOBBY PREMISES............................................................2
LSP.......................................................................1
MANDATORY BLOCK OFFERING SPACE..........................................168
MANDATORY BLOCK ROFO SPACE..............................................175
MARKET VALUE RENT.......................................................157
MATERIAL ALTERATION......................................................66
MESSENGER CENTER........................................................106
MESSENGER CENTER SERVICES...............................................106
MEZZANINE PREMISES........................................................1
MINIMUM NET WORTH........................................................40
MINIMUM OFFERING SPACE..................................................164
MINIMUM PREMISES........................................................112
MINIMUM ROFO SPACE......................................................173
MONETARY EVENT OF DEFAULT...............................................195
MORTGAGE................................................................144
MORTGAGEE.................................................................1
MUST-TAKE LEASE.........................................................169
MUST-TAKE ROFO LEASE....................................................176
MUST-TAKE ROFO SPACE....................................................175
MUST-TAKE ROFO TENANT...................................................176
MUST-TAKE SPACE.........................................................169
MUST-TAKE TENANT........................................................169
NAMED TENANT.............................................................39
NON-CONTIGUOUS FLOORS...................................................164
NON-CONTIGUOUS ROFO FLOORS..............................................173
NON-MATERIAL ALTERATION..................................................66
NON-RECAPTURE SUBLEASE CONSENT REQUEST NOTICE............................47
NON-RECAPTURE SUBLEASE DOCUMENT..........................................47
NOTICES.................................................................134
OFFER CONTRACT..........................................................191
OFFER PRICE.............................................................192
OFFER RENT NOTICE.......................................................161
-ii-
<Page>
TABLE OF DEFINED TERMS
(continued)
Page
------
OFFERED PROPERTY........................................................190
OFFERING NOTICE....................................................162, 191
OFFERING PERIOD.........................................................191
OFFERING SPACE..........................................................160
OFFERING SPACE INCLUSION DATE...........................................163
OFFICE PREMISES...........................................................2
OPERATING EXPENSES...............................................13, 16, 34
OPERATING PAYMENT........................................................27
OPERATING YEAR...........................................................22
OPTION ONE EXTENSION PREMISES...........................................153
OPTION PERIOD...........................................................191
OPTION TWO EXTENSION PREMISES...........................................153
PARTICULAR ITEM..........................................................30
PERMITTED USERS...........................................................9
PERSON..................................................................145
POTENTIAL OFFERING SPACE................................................160
PREMISES..................................................................1
PRIVATE ELEVATOR.........................................................87
PROHIBITED SIGNAGE......................................................112
PROPERTY..................................................................1
PUMPING SYSTEM..........................................................190
PURCHASER.................................................................2
QUOTIENT.................................................................80
REAL PROPERTY............................................................22
RECAPTURE SUBLEASE CONSENT REQUEST NOTICE................................46
RECAPTURE SUBLEASE DOCUMENT..............................................46
RECAPTURED SUBLEASE SPACE................................................49
RECEPTION DESK WORK.....................................................179
RECOGNITION AGREEMENT....................................................73
RECORDS..................................................................29
REENTER.................................................................128
REGULAR BUILDING SERVICE DAYS............................................86
REGULAR BUILDING SERVICE HOURS...........................................86
REJECTED OFFERING SPACE LEASE...........................................168
REJECTED ROFO SPACE.....................................................172
REJECTED ROFO SPACE LEASE...............................................175
RENEWAL/ROFO OCCUPANCY REQUIREMENT......................................154
RENT NOTICE.............................................................155
REQUIREMENTS OF INSURANCE BODIES........................................145
RESPONDING PARTY........................................................155
RESTORATION COMPLETION DATE.............................................120
RETAIL STANDARDS........................................................114
RETAINED CITIBANK ITEMS.................................................104
REVOCABLE CONSENT.......................................................104
ROFO ACCEPTANCE NOTICE..................................................172
ROFO INCLUSION DATE.....................................................172
ROFO NOTICE.............................................................172
ROFO SPACE..............................................................170
ROFO SUPERIOR OCCUPANT..................................................174
ROFO SUPERIOR OCCUPANT OFFERING NOTICE..................................171
ROOF USER...............................................................184
ROOFTOP COMMENCEMENT DATE...............................................184
ROOFTOP EXPIRATION DATE.................................................184
ROOFTOP FEE.............................................................185
ROOFTOP INSTALLATIONS...................................................184
RULES AND REGULATIONS....................................................33
SECOND ALTERATIONS REQUEST...............................................66
SECOND CAFETERIA VENDOR APPROVAL REQUEST................................177
SECOND EXTENSION TERM...................................................153
SECOND FIVE YEAR OPTION.................................................153
SECOND RENT PERIOD........................................................3
SECURE AREAS............................................................111
SELF INSURANCE...........................................................64
SELF-HELP AMOUNT........................................................139
SELF-HELP ARBITRATION...................................................138
SELF-HELP ITEM COMPLETION NOTICE........................................138
SELF-HELP ITEMS.........................................................138
SELF-HELP NOTICE........................................................138
SERVICE AND BUSINESS RELATIONSHIP ENTITIES...............................39
SIGNAGE OCCUPANCY REQUIREMENT...........................................112
SIGNIFICANT DISCREPANCY..................................................30
SNDA FOLLOW-UP...........................................................37
SNDA REQUEST.............................................................37
SPECIAL ALTERATIONS......................................................74
STANDARD TENANT CLEANING.................................................90
STORAGE TANKS...........................................................190
SUBLEASE CONSENT REQUEST NOTICE..........................................47
SUBLEASE DOCUMENT........................................................47
SUBLEASE LOSSES..........................................................48
SUBLEASE PROFIT......................................................54, 56
SUBLEASE RECAPTURE OFFER.................................................46
SUBLEASE RECAPTURE OFFER NOTICE..........................................45
SUBLEASE RECAPTURE PERIOD................................................46
SUBLEASE TERM............................................................54
SUBSTANTIALLY DIFFERENT FROM.............................................52
SUBSTANTIALLY THE SAME..................................................194
SUBSTITUTE GENERATOR AREA...............................................188
SUBTENANT.................................................................1
SUCCESSION DATE...........................................................2
SUPERIOR LEASE...........................................................36
SUPERIOR LESSOR SNDA AGREEMENT...........................................36
SUPERIOR MORTGAGE........................................................36
SUPERIOR MORTGAGEE.......................................................36
SUPERIOR MORTGAGEE SNDA AGREEMENT........................................36
SUPERIOR OCCUPANT.......................................................168
SUPERIOR OCCUPANT OFFERING NOTICE.......................................161
SUPERIOR PARTY...........................................................36
SUPPLEMENTAL CHILLED WATER CHARGE........................................94
SUPPLEMENTAL CONDENSER WATER CHARGE......................................95
SURRENDER...............................................................157
-iii-
<Page>
TABLE OF DEFINED TERMS
(continued)
Page
------
SYSTEM EQUIPMENT.........................................................75
SYSTEMS AGREEMENT.......................................................104
TAX PAYMENT..............................................................24
TAX YEAR.................................................................23
TAXES................................................................22, 35
TELELIFT SYSTEM.........................................................104
TENANT............................................................1, 145, 1
TENANT EXTRA SERVICES....................................................97
TENANT GUARANTOR.........................................................40
TENANT INITIAL ALTERATIONS...............................................73
TENANT NEGOTIATION NOTICE................................................50
TENANT PARTY............................................................116
TENANT REQUIRED JUDICIAL PROCEEDING......................................26
TENANT SUBLEASE..........................................................53
TENANT'S ACCEPTANCE NOTICE..............................................162
TENANT'S CERTIORARI COUNSEL..............................................25
TENANT'S CHILLED WATER ALLOCATION........................................93
TENANT'S CHILLED WATER PAYMENT...........................................94
TENANT'S CLEANING CONTRACTORS............................................92
TENANT'S COLLATERAL......................................................72
TENANT'S CONDEMNATION DEMOLITION WORK...................................124
TENANT'S CONDEMNATION RESTORATION WORK..................................124
TENANT'S CONDENSER WATER ALLOCATION......................................95
TENANT'S CONDENSER WATER PAYMENT.........................................95
TENANT'S COSTS...........................................................55
TENANT'S DEEMED CONSENT NOTICE...........................................49
TENANT'S DESIGNATED REPRESENTATIVE......................................106
TENANT'S EQUIPMENT......................................................103
TENANT'S EXISTING ANTENNA...............................................182
TENANT'S EXISTING ROOFTOP AREA..........................................182
TENANT'S EXTRA SERVICE CONTRACTORS.......................................97
TENANT'S MECHANICAL EQUIPMENT...........................................103
TENANT'S METERS..........................................................79
TENANT'S OTHER TELECOMMUNICATIONS INSTALLATIONS.........................102
TENANT'S PREMISES MANAGER...............................................106
TENANT'S PROPERTY........................................................75
TENANT'S PROPRIETARY INFORMATION........................................150
TENANT'S RECEPTION DESK.................................................179
TENANT'S RECEPTION DESK EMPLOYEES.......................................180
TENANT'S RECEPTION DESK SIGNAGE.........................................179
TENANT'S RISER/SHAFT SPACE EQUIPMENT....................................102
TENANT'S ROOFTOP AREA...................................................184
TENANT'S ROOFTOP EQUIPMENT..............................................183
TENANT'S SECURITY OPERATOR................................................1
TENANT'S SECURITY SYSTEM................................................111
TENANT'S SHARE.......................................................23, 34
TENANT'S STATEMENT.......................................................30
TENANT'S SUBMITTED VALUE...........................................156, 166
TENANT'S TELECOMMUNICATIONS PROVIDER...................................1.01
TENANT'S TELECOMMUNICATIONS ROOM........................................102
TERMS...................................................................191
THIRD RENT PERIOD.........................................................3
TRUST DEED HOLDERS........................................................1
TSO.......................................................................1
UNIT......................................................................1
UNIT ONE.............................................................1, 170
UNIT ONE LEASE..........................................................170
UNIT ONE OWNER..........................................................170
UNIT ONE ROFO CONTRACT..................................................177
UNSOLICITED OFFER.......................................................191
UNTENANTABLE.......................................................118, 143
UPS AREA................................................................187
UPS BATTERY SYSTEM......................................................187
UTILITY TUNNEL..........................................................104
WATER METERED SPACE......................................................88
WATER METERS.............................................................89
WATER QUOTIENT...........................................................89
WIRING..................................................................183
-iv-