\n Section 2.1(d) July 1, 1997
\n Section 2.1(e) July 1, 2002
\n Section 1.3 30 days after the
\n day on which Lessee
\n receives Lessor’s
\n Designation Notice
\n<\/c><\/s><\/caption>\n<\/table>\nIf either party shall fail timely to designate its arbitrator, and such failure
\nshall continue for 10 days after receipt by the failing party of notice of such
\nfailure; such other party may designate an arbitrator on behalf of the failing
\nparty. Promptly after the designation of the second of the two arbitrators to be
\ndesignated, such two arbitrators shall meet and attempt to mediate between
\nLessor and Lessee an agreement upon the Basic Rent in question. If, within 15
\ndays after the designation of the second of the two arbitrators to be
\ndesignated, Lessor and Lessee have not agreed upon the Basic Rent in question,
\nsuch two arbitrators shall jointly designate a third arbitrator. If, within 30
\ndays after the designation of the second of the two arbitrators to be
\ndesignated, no third arbitrator
\n 10<\/p>\n
7<\/p>\n
shall have been so jointly designated, such third arbitrator shall be designated
\npursuant to the Rules. The arbitrators shall render their decision within 60
\ndays after the designation of the third arbitrator to be designated. Lessor and
\nLessee shall each pay the fees and disbursements of the arbitrator designated by
\nor on behalf of it, and Lessor and Lessee shall share equally the fees and
\ndisbursements of the third arbitrator, if any; provided, however, that with
\nrespect to any arbitration pursuant to section 1.3, if Lessee does not give the
\nexercise notice, Lessee shall pay (or reimburse Lessor for) all reasonable
\nout-of-pocket expenses incurred by Lessor in connection with such arbitration,
\nincluding attorneys’ fees and disbursements and expert witness fees and
\ndisbursements.<\/p>\n
(b) The arbitrators shall determine the Basic Rent in question by
\nestablishing the fair market amount thereof as of the date six months prior to
\nthe date as of which such Basic Rent will take effect (in the case of
\narbitration pursuant to section 2.1(d) or (e)) or the date six months prior to
\nthe then current scheduled expiration date (in the case of arbitration pursuant
\nto section 1.3) that would be payable for the Leased Premises by a lessee having
\nthe then creditworthiness of Lessee under a lease on all of the terms and
\nconditions of this Lease. Each arbitrator shall render as his determination of
\nthe Basic Rent a fixed dollar amount per annum, and shall give a notice to the
\nother arbitrators
\n 11<\/p>\n
8<\/p>\n
and Lessor and Lessee thereof. All notices pursuant to the preceding sentence
\nshall be given simultaneously at a meeting (called by the third arbitrator on at
\nleast five business days’ notice to Lessor and Lessee and the other arbitrators)
\nat which all three arbitrators and Lessor and Lessee are present. The arithmetic
\naverage of the two determinations closest to one another shall be and constitute
\nthe determination of the arbitration; provided, however, if the highest and
\nlowest determinations are equidistant from the middle determination, then the
\nmiddle determination shall be and constitute the determination of the
\narbitration.<\/p>\n
3. Manner of Payment. The Basic Rent and all other sums payable by
\nLessee to Lessor hereunder shall be payable in lawful money of the United States
\nof America and shall be paid to Lessor at Lessor’s address set forth above or at
\nsuch other address of Lessor within the United States as Lessor from time to
\ntime may designate or to such agent or person or persons resident or having an
\noffice at such other address within the United States as Lessor from time to
\ntime may designate.<\/p>\n
4. Net Lease; No Counterclaim, Abatement. Lessor shall not be
\nrequired to provide any services to the Combined Premises or any part thereof.
\nSubject to the last sentence of this section 4, this Lease is a net lease, and
\nLessee shall pay all costs, charges, taxes, assessments and
\n 12<\/p>\n
9<\/p>\n
other expenses of every character, foreseen or unforeseen, ordinary or
\nextraordinary, for the payment of which Lessor or Lessee is or shall become
\nliable by reason of its respective estate, right, title or interest in the
\nCombined Premises or any part thereof, or which are connected with or arise out
\nof the possession, use, occupancy, maintenance, addition to, repair or
\nrebuilding of the Combined Premises or any part thereof, including, without
\nlimitation, those specifically referred to in this Lease. Except as provided in
\nsections 16 and 20.1(a), the Basic Rent and all other sums payable by Lessee
\nhereunder shall be paid without notice, demand, counterclaim, setoff, deduction
\nor defense and without abatement, suspension, deferment, diminution or
\nreduction. The foregoing provisions of this section 4 shall not obligate Lessee
\nto pay any taxes which are not Impositions or relieve Lessor of its obligation
\nto make reimbursements to Lessee in accordance with section 6(e).<\/p>\n
5. Condition and Use of Combined Premises. LESSOR DOES NOT MAKE, AND
\nLESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE, ANY REPRESENTATION OR WARRANTY,
\nEXPRESS OR IMPLIED, WITH RESPECT TO THIS LEASE, OR THE PRESENT OR FUTURE
\nMERCHANTABILITY, HABITABILITY, CONDITION, QUALITY, DURABILITY, FITNESS OR
\nSUITABILITY OF THE COMBINED PREMISES OR ANY PART THEREOF IN ANY RESPECT OR IN
\nCONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER
\n 13<\/p>\n
10<\/p>\n
REPRESENTATION OR WARRANTY OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH
\nRESPECT THERETO. Lessee accepts the Leased Premises “as-is”. Lessee may use the
\nLeased Premises only as an office building which may include retail facilities
\nand for purposes reasonably ancillary thereto. Lessee shall not suffer or permit
\nthe Leased Premises or any part thereof to be used by the public in such a
\nmanner as would subject the Leased Premises or any part thereof to a claim of
\nadverse possession by the public.<\/p>\n
6. Maintenance; Alterations; Certain Reimbursements; Etc.<\/p>\n
(a) Generally.<\/p>\n
(i) Maintenance; Alterations. Subject to the provisions of this
\nLease, Lessee:<\/p>\n
(x) shall, in accordance with first-class office building
\n maintenance and operating standards (collectively, the “First-Class
\n Standard”), keep the Combined Premises in overall first-class order,
\n condition and repair;<\/p>\n
(y) shall promptly make all replacements in and to the
\n Combined Premises or any part thereof (whether interior or exterior,
\n structural or nonstructural, ordinary or extraordinary, foreseen or
\n unforeseen) which are necessary or appropriate in a first-class
\n office building (collectively, “Required Replacements”); and
\n 14<\/p>\n
11<\/p>\n
(z) may make additions, alterations, improvements and
\n replacements (other than Required Replacements) in and to and
\n removals from the Combined Premises or any part thereof
\n (collectively, “Voluntary Alterations”; Required Replacements,
\n Structural Work [as defined in section 36] and Voluntary Alterations
\n being collectively called “Alterations”).<\/p>\n
(ii) Requirements for All Alterations. No Alteration may be
\nundertaken if such Alteration would (a) result in the Building’s not being a
\nfirst-class office building or (b) materially and adversely affect any
\nstructural element of the Building or any item of Major Building Equipment (as
\ndefined in section 31). Each Alteration shall be effected with due diligence, in
\na good and workmanlike manner, and in compliance with all Legal Requirements,
\nInsurance Requirements and Permitted Encumbrances. All Structural Work and all
\nreplacements of items of Major Building Equipment shall be of a quality at least
\nequal to the original installation. Lessor shall not be liable to any
\ncontractors, subcontractors, laborers, materialmen, suppliers or vendors for
\nservices performed or material provided on or in connection with the Combined
\nPremises or any part thereof. Lessor shall not be required to maintain, alter,
\nrepair, rebuild or replace the Combined Premises or any part thereof. Lessee
\nwaives all rights to
\n 15<\/p>\n
12<\/p>\n
make Alterations at Lessor’s expense, except that Lessor shall in accordance
\nwith section 6(e) make reimbursements to Lessee on account of Reimbursable
\nReplacements, Reimbursable Structural Work and Reimbursable Legal Requirement
\nAlterations (each as defined in section 6(c)). All Alterations shall immediately
\nbecome the property of Lessor, shall be a part of the Leased Premises and shall
\nbe subject to this Lease, and Lessee shall, upon demand of Lessor, execute and
\ndeliver an appropriate instrument confirming Lessor’s title thereto.<\/p>\n
(b) Maintenance Programs.<\/p>\n
(i) Initial Maintenance Program. On or before June 30, 1985, Lessee
\nshall submit to Lessor for its approval a maintenance program (the “Initial
\nMaintenance Program”) for the period ending on May 31, 1986 with respect to the
\nfollowing (collectively, the “Programmed Maintenance Items”): caulking and
\nacrylic treatment of the curtain wall and maintenance of the HVAC system, the
\nlife safety system, the roof, the elevators, the escalators and the emergency
\ngenerators. Lessee’s submission of the Initial Maintenance Program shall be
\naccompanied by an estimated budget for Reimbursable Replacements and
\nReimbursable Structural Work for the period covered by such Program. Lessor
\nshall give notice to Lessee of Lessor’s approval or disapproval of the Initial
\nMaintenance Program within 20 business days after such Program is received by
\nLessor (which notice shall, in
\n 16<\/p>\n
13<\/p>\n
the case of a disapproval, be accompanied by a reasonably complete and specific
\nstatement of the reasons for disapproval). Lessor may disapprove any part or
\nparts of the Initial Maintenance Program only if the same shall not be in
\naccordance with the First-Class Standard. If Lessee disputes Lessor’s right to
\ndisapprove, the part or parts of the Initial Maintenance Program affected by
\nsuch dispute shall be determined by the Appropriate Engineer (as defined in
\nsection 6(i)) in accordance with the First-Class Standard.<\/p>\n
(ii) Annual Maintenance Programs. On or before April 1, 1986 and on
\nor before April 1st of each year thereafter during the term of this Lease,
\nLessee shall submit to Lessor for its approval a maintenance program with
\nrespect to the Programmed Maintenance Items for the 12-month period commencing
\non the next June 1st (an “Annual Maintenance Program”), together with an
\nestimated budget for Reimbursable Replacements and Reimbursable Structural Work
\nfor the period covered thereby. Lessor shall give notice to Lessee of Lessor’s
\napproval or disapproval of each Annual Maintenance Program within 20 business
\ndays after such Program is received by Lessor (which notice shall, in the case
\nof a disapproval, be accompanied by a reasonably complete and specific statement
\nof the reasons for disapproval). Lessor may disapprove any part or parts of an
\nAnnual Maintenance Program only if the same shall not be in
\n 17<\/p>\n
14<\/p>\n
accordance with the First-Class Standard. If Lessee disputes Lessor’s right to
\ndisapprove, the part or parts of the Annual Maintenance Program affected by such
\ndispute shall be determined by the Appropriate Engineer in accordance with the
\nFirst-Class Standard. Lessee shall not be in default under this Lease if any
\nestimated budget for Reimbursable Replacements and Reimbursable Structural Work
\nsubmitted pursuant to section 6(b)(i) or this section 6(b)(ii) proves to be
\ninaccurate, and no such budget shall be considered a part of the Initial
\nMaintenance Program or Annual Maintenance Program with which such budget was
\nsubmitted to Lessor.<\/p>\n
(iii) Compliance by Lessee. Until the approval of the Initial
\nMaintenance Program by Lessor or the determination thereof by the Appropriate
\nEngineer, Lessee shall conduct a maintenance program with respect to the
\nProgrammed Maintenance Items in accordance with the First-Class Standard. Lessee
\nshall comply with the Initial Maintenance Program for the period covered thereby
\nand each Annual Maintenance Program (as approved by Lessor or as determined by
\nthe Appropriate Engineer) for the period covered thereby; provided, however,
\nthat if any dispute as to an Annual Maintenance Program shall not be resolved
\nbefore the period intended to be covered thereby, Lessee shall be in compliance
\nwith this section 6(b)(iii) if Lessee shall, pending the resolution of such
\ndispute, comply with
\n 18<\/p>\n
15<\/p>\n
the Initial Maintenance Program (if the dispute involves the first Annual
\nMaintenance Program) or the most recent Annual Maintenance Program in effect (if
\nthe dispute involves any other Annual Maintenance Program).<\/p>\n
(c) Certain Definitions. As used herein:<\/p>\n
(i) “Legal Requirement Alteration” means any Alteration undertaken
\nin order to comply with a Legal Requirement.<\/p>\n
(ii) “Reimbursable Replacement” means the replacement of an item of
\nMajor Building Equipment in its entirety; provided, however, that:<\/p>\n
(x) a replacement of any such item in its entirety shall be a
\n “Reimbursable Replacement” only if (a) such replacement (solely in light
\n of the physical condition of the item in question, and without regard to
\n whether or not such replacement may be necessitated by any Legal
\n Requirement) is consistent with the First-Class Standard and (b) the
\n repair of the item in question is inconsistent with the First-Class
\n Standard; and<\/p>\n
(y) no replacement of an item of Major Building Equipment in its
\n entirety shall be a “Reimbursable Replacement” if such replacement is
\n necessitated by (a) fire, other casualty or a Taking or (b) the failure by
\n Lessee to comply with section 6(b)(iii).<\/p>\n
(iii) “Reimbursable Legal Requirement Alteration” means any
\nAlteration undertaken solely in order to comply
\n 19<\/p>\n
16<\/p>\n
with a Legal Requirement enacted after the date hereof, other than:<\/p>\n
(v) an Alteration (a) in any area designed for tenant occupancy
\n outside the Building’s core (any restroom to be deemed such an area), (b)
\n to the paving, curbs or sidewalks within the Building’s lobby or (c) in
\n the plaza area surrounding the Building (located outside of the Building’s
\n curtain wall), including the paving and other parts thereof which serve as
\n the roof for the basement area of the Building;<\/p>\n
(w) a Reimbursable Replacement;<\/p>\n
(x) Reimbursable Structural Work;<\/p>\n
(y) a replacement of an item whose replacement (solely in light of
\n the physical condition of the item in question, and without regard to
\n whether or not such replacement may be necessitated by any Legal
\n Requirement) is consistent with the First-Class Standard and whose repair
\n is inconsistent with the First-Class Standard; or<\/p>\n
(z) an Alteration necessitated by fire, other casualty or a Taking,
\n or by Lessee’s failure to comply with section 6(b)(iii).<\/p>\n
(iv) “Reimbursable Structural Work” means any Structural Work which
\n(solely in light of a physical condition, and without regard to whether or not
\nsuch Structural Work may be necessitated by any Legal
\n 20<\/p>\n
17<\/p>\n
Requirement) is consistent with the First-Class Standard; provided, however,
\nthat:<\/p>\n
(w) Structural Work which is a replacement shall be “Reimbursable
\n Structural Work” only if (a) such replacement (solely in light of the
\n physical condition of the item in question, and without regard to whether
\n or not such replacement may be necessitated by any Legal Requirement) is
\n consistent with the First-Class Standard and (b) the repair of the item in
\n question is inconsistent with the First-Class Standard;<\/p>\n
(x) no Structural Work shall be Reimbursable Structural Work if
\n necessitated by (a) fire, other casualty or a Taking or (b) the failure by
\n Lessee to comply with section 6(b)(iii);<\/p>\n
(y) no Structural Work of the type described in clause (a) of
\n section 36 shall be “Reimbursable Structural Work” unless the Costs
\n thereof exceed $50,000 in any 12-month period; and<\/p>\n
(z) no Structural Work of the type described in clause (b), (c), (d)
\n or (e) of section 36 shall be “Reimbursable Structural Work” unless the
\n work under the clause in question involves 5% or more of the curtain wall
\n windows above the ground floor in any 12-month period.<\/p>\n
(v) “Qualified Alteration” means (x) any Alteration (other than the
\nreplacement of an item of Major
\n 21<\/p>\n
18<\/p>\n
Building Equipment, any Structural Work or any Legal Requirement Alteration)
\nwhich affects any structural element of the Building or any item of Major
\nBuilding Equipment and (y) any Restoration (as defined in section 15.2).<\/p>\n
If Lessor and Lessee shall disagree as to whether any item is an
\nitem of Major Building Equipment, or as to whether the replacement of any item
\nof Major Building Equipment is a Reimbursable Replacement, or as to whether any
\nwork is Structural Work, or as to whether any Structural Work is Reimbursable
\nStructural Work, or as to whether a Legal Requirement requires an Alteration, or
\nas to whether an Alteration is a Legal Requirement Alteration, or as to whether
\nany Legal Requirement Alteration is a Reimbursable Legal Requirement Alteration,
\nor as to whether any Alteration is a Qualified Alteration, the matter shall be
\ndetermined by the Appropriate Engineer.<\/p>\n
(d) Submission and Approval of Plans and Specifications in Certain
\nInstances.<\/p>\n
(i) Required Submissions. Prior to:<\/p>\n
(x) making any Alteration constituting the replacement of any item
\n of Major Building Equipment (whether or not such replacement is a
\n Reimbursable Replacement); or<\/p>\n
(y) undertaking any Structural Work (whether or not Reimbursable
\n Structural Work), any Legal Requirement
\n 22<\/p>\n
19<\/p>\n
Alteration (whether or not a Reimbursable Legal Requirement Alteration) or
\n any Qualified Alteration,
\nLessee shall (subject to section 6(d)(vi)) submit all of the Plans and
\nSpecifications therefor to Lessor for Lessor’s approval, together with, in case
\nLessee contends that the work in question is a Reimbursable Replacement,
\nReimbursable Structural Work or a Reimbursable Legal Requirement Alteration, a
\ngood faith estimate of the Costs thereof prepared by a reputable architect,
\nengineer or contractor and a reasonable estimate of the date of substantial
\ncompletion of the work in question (the “Estimated Substantial Completion
\nDate”). Lessor shall give notice (the “Plans and Specifications Notice”) to
\nLessee of Lessor’s approval or disapproval of any Plans and Specifications
\nwithin 20 business days after the date upon which the same are received by
\nLessor (which Plans and Specifications Notice shall, in the case of a
\ndisapproval, be accompanied by a reasonably complete and specific statement of
\nthe reasons for disapproval); provided, however, that if (a) at least 10
\nbusiness days before the date upon which Lessee submits all of the Plans and
\nSpecifications for the work in question to Lessor, Lessee gives notice to Lessor
\nthat Lessee intends to make any replacement of an item of Major Building
\nEquipment or to undertake any Structural Work, Legal Requirement Alteration or
\nQualified Alteration (which notice shall specify the
\n 23<\/p>\n
20<\/p>\n
general nature of the work and an estimated date for the submission of all of
\nthe Plans and Specifications therefor to Lessor) and (b) Lessee delivers all of
\nthe Plans and Specifications for the work in question to Lessor within 2
\nbusiness days of the estimated submission date set forth in Lessee’s notice,
\nthen Lessor shall give the Plans and Specifications Notice to Lessee within 10
\nbusiness days after the date upon which all of the Plans and Specifications for
\nthe work in question are received by Lessor.<\/p>\n
(ii) Disapproval Only Under Certain Circumstances. Lessor shall not
\ndisapprove any Plans and Specifications unless the work contemplated thereby
\nwould (a) result in the Building’s not being a first-class office building or
\n(b) materially and adversely affect any structural element of the Building or
\nany item of Major Building Equipment. If Lessee disputes Lessor’s right to
\ndisapprove, the matter shall be determined by the Appropriate Engineer.<\/p>\n
(iii) Certain Conditions. Subject to sections 6(d)(iv) and (vi), Lessee
\nshall not make any replacement of an item of Major Building Equipment or
\nundertake any Structural Work, Legal Requirement Alteration or Qualified
\nAlteration unless and until (x) Lessor shall approve the Plans and
\nSpecifications therefor in a Plans and Specifications Notice or (y) the
\nAppropriate Engineer shall
\n 24<\/p>\n
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determine that Lessor did not have the right to disapprove such Plans and
\nSpecifications pursuant to this Lease.<\/p>\n
(iv) Failure to Give Timely Notice. If Lessor shall fail timely to give
\nLessee a Plans and Specifications Notice, Lessee may proceed with the work in
\nquestion, and if Lessor thereafter disapproves the Plans and Specifications
\ntherefor Lessee may continue such work unless the Appropriate Engineer
\ndetermines that Lessor had the right to disapprove pursuant to this Lease. If
\nthe Appropriate Engineer so determines, Lessee shall cease such work, but the
\nwork done by Lessee to the date of the Appropriate Engineer’s determination
\nshall not constitute a default hereunder if Lessee thereupon commences and
\nthereafter diligently prosecutes to completion such remedial work (including,
\nwithout limitation, the removal of the work theretofore done by Lessee and the
\nrestoration of the affected area of the Combined Premises) as Lessor may
\nreasonably determine to be appropriate in the circumstances (unless Lessee shall
\ndispute Lessor’s determination, in which case the remedial work, if any, to be
\ndone by Lessee shall be determined by the Appropriate Engineer).<\/p>\n
(v) Submission of Certain Plans and Specifications Not Requiring Approval.
\nAt the request of Lessor (made not more frequently than once in any 12-month
\nperiod), Lessee shall submit to Lessor Plans and Specifications for all
\nAlterations (other than Plans and Specifications required to
\n 25<\/p>\n
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be submitted to Lessor pursuant to section 6(d)(i)) to the extent that such
\nPlans and Specifications have been prepared and have not theretofore been
\nsubmitted to Lessor. Lessor shall have no right to approve any Plans and
\nSpecifications submitted by Lessee pursuant to this section 6(d)(v).<\/p>\n
(vi) Emergencies. Provided that Lessee shall have given Lessor
\nprompt telephonic notice (confirmed in writing as soon as reasonably
\npracticable) of an emergency, Lessee may (without first complying with the
\napplicable provisions of sections 6(d)(i), (ii), (iii) and (v)) proceed with
\nsuch aspects of any Alteration as Lessee may reasonably deem necessary in light
\nof the emergency, but as promptly as reasonably practicable thereafter Lessee
\nshall comply with the applicable provisions of said sections. Any dispute as to
\nLessee’s right to avail itself of this section 6(d)(vi) shall be determined by
\nthe Appropriate Engineer.<\/p>\n
(e) Certain Reimbursements.<\/p>\n
(i) Submission of Bids. In the case of any Reimbursable Replacement,
\nReimbursable Structural Work or Reimbursable Legal Requirement Alteration,
\nLessee shall (subject to section 6(e)(vi)), simultaneously with the submission
\nof all of the Plans and Specifications therefor to Lessor (or as soon thereafter
\nas reasonably practicable, but in no event later than the date which is 5
\nbusiness days prior to the date upon which Lessor is required to give the Plans
\nand Specifications Notice), deliver to Lessor a list
\n 26<\/p>\n
23<\/p>\n
of at least 3 reputable contractors (collectively, the “Original Bidders”) from
\nwhom Lessee proposes to obtain bids for the work. Lessor shall have the right,
\nexercisable by notice to Lessee delivered not later than 10 business days after
\nreceipt by Lessor of the list of the Original Bidders, to designate no more than
\n3 additional reputable contractors (collectively, the “Additional Bidders”) from
\nwhom Lessor desires Lessee to obtain bids. Lessee shall, as promptly as
\nreasonably practicable, obtain bids from at least 2 of the Original Bidders and
\nsolicit bids from all of the Additional Bidders (if any) on a competitive basis
\nand submit all bids obtained (together with the proposed contracts relating
\nthereto) to Lessor, and within 5 business days after receipt thereof Lessor
\nshall give notice to Lessee designating the Original Bidder or the Additional
\nBidder (in either case being a Bidder from whom Lessee has obtained a bid) which
\nin Lessor’s judgment should perform the work in question (the Bidder so
\ndesignated by Lessor being called “Lessor’s Preferred Bidder”). Lessee shall
\nhave the right, exercisable by notice (the “Dispute Notice”) given to Lessor
\nwithin 5 business days after the date upon which Lessee receives notice of the
\nidentity of Lessor’s Preferred Bidder (which Dispute Notice shall specify the
\nOriginal Bidder or the Additional Bidder [“Lessee’s Selected Bidder”] which
\nLessee proposes to select to do the work in question), to dispute Lessor’s
\ndesignation of Lessor’s Preferred Bidder,
\n 27<\/p>\n
24<\/p>\n
and if the Dispute Notice shall be timely given, the Appropriate Engineer shall
\nselect either Lessor’s Preferred Bidder or Lessee’s Selected Bidder as the
\nBidder which (in light of the bid, contract terms, reputation and experience of
\nsuch Bidder) is most appropriate to do the work in question. Notwithstanding
\nLessor’s designation of, or the Appropriate Engineer’s selection of, Lessor’s
\nPreferred Bidder, Lessee may retain any Original Bidder or Additional Bidder
\nfrom whom Lessee has obtained a bid in accordance with this section 6(e)(i) to
\ndo the work in question (the Bidder so retained being called the “Retained
\nBidder”).<\/p>\n
(ii) Reimbursement Amount. Lessor shall, in accordance with section
\n6(e)(iv) or 6(e)(v), reimburse Lessee on account of any Reimbursable
\nReplacement, Reimbursable Structural Work or Reimbursable Legal Requirement
\nAlteration in an amount (the “Reimbursement Amount”) equal to:<\/p>\n
(x) in the case of any Reimbursable Replacement or Reimbursable
\n Structural Work, the sum of the following:<\/p>\n
(a) the lesser of (i) all Costs reasonably incurred by Lessee
\n in connection with the work in question (exclusive, however, of the
\n fees and disbursements of any architect or engineer retained by
\n Lessee) or (ii) the original contract price of Lessor’s Preferred
\n Bidder or, if Lessee shall have timely given the Dispute Notice and
\n the Appropriate
\n 28<\/p>\n
25<\/p>\n
Engineer shall have selected Lessee’s Selected Bidder, the original
\n contract price of Lessee’s Selected Bidder (the amount determined
\n pursuant to this clause (a) being called the “Base Amount” for the
\n work in question; the amount determined by subclause (ii) of this
\n clause (a) being called the “Determined Amount”); plus<\/p>\n
(b) the reasonable fees and disbursements of any architect or
\n engineer retained by Lessee in connection with the work in question;
\n plus<\/p>\n
(c) any Qualified Overruns (as hereinafter defined); or<\/p>\n
(y) in the case of any Reimbursable Legal Requirement Alteration,
\n the sum of the following:<\/p>\n
(a) the product of the Measuring Fraction (as hereinafter
\n defined) multiplied by the sum of (i) the Base Amount for the work
\n in question, plus (ii) any Qualified Overruns; plus<\/p>\n
(b) the reasonable fees and disbursements of any architect or
\n engineer retained by Lessee in connection with the work in question.<\/p>\n
Any dispute as to the reasonableness of the incurrence by Lessee of
\nany Cost in connection with the work in question, or as to the reasonableness of
\nthe amount of any such Cost, shall be determined by the Appropriate Engineer.
\n 29<\/p>\n
26<\/p>\n
“Measuring Fraction” means, in respect of any Reimbursable Legal
\nRequirement Alteration, the fraction whose numerator is the number of months in
\nthe period from the expiration of the then current term of this Lease to the end
\nof the expected useful life of such Alteration and whose denominator is the
\nnumber of months in the period from the Estimated Substantial Completion Date of
\nsuch Alteration to the end of the expected useful life thereof. Any dispute as
\nto the reasonableness of any Estimated Substantial Completion Date, or as to the
\nexpected useful life of any Reimbursable Legal Requirement Alteration, shall be
\ndetermined by the Appropriate Engineer.<\/p>\n
(iii) Overruns; Qualified Overruns. At any time during the
\nperformance of any Reimbursable Replacement, Reimbursable Structural Work or
\nReimbursable Legal Requirement Alteration, Lessee may give notice (an “Overrun
\nNotice”) to Lessor specifying any cost (an “Overrun”) in excess of the original
\ncontract price of Lessee’s Selected Bidder which Lessee expects to incur and
\nwhich Lessee contends was unforeseeable by Lessee at the time of commencement of
\nthe work (each Overrun Notice to specify the nature of and reasons for the
\nOverrun in question in reasonably complete and specific detail). Within 10
\nbusiness days after receipt of an Overrun Notice, Lessor shall notify Lessee as
\nto whether or not in Lessor’s judgment the Overrun in question is reasonable in
\namount in
\n 30<\/p>\n
27<\/p>\n
the circumstances and was unforeseeable by Lessee at the time of commencement of
\nthe work. If Lessee shall dispute Lessor’s judgment, the reasonableness of the
\namount of, and the foreseeability by Lessee of, the Overrun in question shall be
\ndetermined by the Appropriate Engineer. Any Overrun determined by Lessor or the
\nAppropriate Engineer to be reasonable in amount in the circumstances and
\nunforeseeable by Lessee at the time of commencement of the work shall be a
\n“Qualified Overrun”. Lessee shall not be chargeable with the failure by any
\nContractor (as defined in section 6(e)(iv)(w)) to foresee any Overrun.<\/p>\n
(iv) Reimbursement Upon Full Completion. Except in the case of a
\nReimbursable Replacement, Reimbursable Structural Work or a Reimbursable Legal
\nRequirement Alteration in respect of which an Extended Completion Notice (as
\ndefined in section 6(e)(v)) has been given, Lessor shall upon the full
\ncompletion of the work in question and within 10 business days after Lessor’s
\nreceipt of Lessee’s request therefor remit the Reimbursement Amount to Lessee;
\nprovided, however, that Lessor shall not be obligated to make such remittance
\nunless:<\/p>\n
(w) Lessee’s request for remittance shall be accompanied by (a) a
\n certificate of Lessee (in form reasonably satisfactory to Lessor) stating
\n that an amount at least equal to the Reimbursement Amount has been paid to
\n contractors, subcontractors, materialmen,
\n 31<\/p>\n
28<\/p>\n
engineers, architects or other persons (whose names and addresses and a
\n description of the work involved shall be stated) who have furnished
\n labor, materials, supplies, permits or services for the work in question
\n (collectively, “Contractors”) and that to Lessee’s best knowledge (after
\n due inquiry) there is no outstanding indebtedness due for labor,
\n materials, supplies, permits or services in any manner connected with the
\n work in question which if unpaid might be the basis for any type of lien
\n on the Combined Premises or any part thereof, and (b) a certificate of the
\n architect or engineer who prepared the related Plans and Specifications
\n (in form reasonably satisfactory to Lessor) stating that such work has
\n been fully completed in a good and workmanlike manner and in accordance
\n with the Plans and Specifications (as approved by Lessor or as determined
\n by the Appropriate Engineer to have been required to be approved by Lessor
\n pursuant to this Lease);<\/p>\n
(x) Lessor shall have received (a) true copies of all bills paid by
\n Lessee to Contractors in connection with the work in question, (b) an
\n instrument in writing from any title company insuring Lessor’s estate in
\n the Leased Premises certifying that there are no undischarged mechanics’,
\n laborers’ or materialmen’s liens affecting any part of the Combined
\n Premises (other than liens, if any, in respect of which Lessor has
\n 32<\/p>\n
29<\/p>\n
consented to take security pursuant to section 13(a)(ii)) and (c) evidence
\n reasonably satisfactory to Lessor that Lessee has obtained waivers of
\n mechanics’, laborers’ or materialmen’s liens or releases of such liens
\n from all Contractors engaged in the work in question;<\/p>\n
(y) no certificate delivered to Lessor by Lessee or any architect or
\n engineer in connection with the work in question shall have been
\n materially incorrect at the time of delivery (any dispute pursuant to this
\n clause (y) to be determined by the Appropriate Engineer); and<\/p>\n
(z) no Event of Default (including, without limitation, any Event of
\n Default specified in section 22(d)) shall have occurred and be continuing.<\/p>\n
(v) Reimbursement as Work Proceeds. If at any time prior to or
\nduring the performance of any Reimbursable Replacement, Reimbursable Structural
\nWork or Reimbursable Legal Requirement Alteration Lessee determines that the
\nfull completion thereof will not occur within six months of its commencement,
\nLessee shall give Lessor notice of such determination (an “Extended Completion
\nNotice”) and thereafter Lessor shall from time to time within 10 business days
\nafter Lessor’s receipt of Lessee’s request therefor (but in no event more
\nfrequently than once during any 30-day period) make advances to Lessee on
\naccount of the
\n 33<\/p>\n
30<\/p>\n
Reimbursement Amount for the work in question (collectively, “Reimbursement
\nAdvances”); provided, however, that:<\/p>\n
(x) no Reimbursement Advance shall be made until Lessee shall have
\n delivered to Lessor evidence reasonably acceptable to Lessor that Lessee
\n has paid Contractors engaged in the work in question an aggregate amount
\n (the “Benchmark Amount”) equal to the positive remainder, if any, obtained
\n by subtracting the Determined Amount for the work in question from the
\n original contract price of the Retained Bidder, and Reimbursement Advances
\n shall be made only for amounts paid by Lessee to such Contractors which
\n are in excess of the Benchmark Amount;<\/p>\n
(y) no Reimbursement Advance (other than the final Reimbursement
\n Advance) shall be due unless:<\/p>\n
(a) Lessee’s request for such Reimbursement Advance shall be
\n accompanied by (i) a certificate of Lessee (in form reasonably
\n satisfactory to Lessor) stating that the amount of the Reimbursement
\n Advance then requested has been paid by Lessee to Contractors (whose
\n names and addresses and a description of the work involved shall be
\n stated) engaged in the work in question, that the amount of the
\n Reimbursement Advance then requested (when taken together with the
\n aggregate amount of all Reimbursement Advances theretofore made by
\n 34<\/p>\n
31<\/p>\n
Lessor) exceeds neither 90% of the Reimbursement Amount nor the
\n product of the Determined Amount multiplied by the percentage (the
\n “Completed Percentage”) of the work called for in the contract of
\n the Retained Bidder which has actually been installed in the Leased
\n Premises, and that no part of cost of the work described in any
\n previous or then pending request for a Reimbursement Advance has
\n been or is being made the basis for the Reimbursement Advance then
\n being requested, and (ii) a certificate of the architect or engineer
\n who prepared the related Plans and Specifications (in form
\n reasonably satisfactory to Lessor) stating in substance that the
\n Completed Percentage has been reached and that the work has been
\n performed in a good and workmanlike manner and in accordance with
\n the Plans and Specifications (as approved by Lessor or as determined
\n by the Appropriate Engineer to have been required to be approved by
\n Lessor pursuant to this Lease);<\/p>\n
(b) Lessor shall have received true copies of all bills paid
\n or payable by Lessee to Contractors which form the basis for the
\n Reimbursement Advance in question; and<\/p>\n
(c) the conditions specified in clauses (y) and (z) of section
\n 6(e)(iv) shall have been
\n 35<\/p>\n
32<\/p>\n
fulfilled in respect of such Reimbursement Advance;<\/p>\n
and<\/p>\n
(z) the final Reimbursement Advance shall not be due unless all of
\n the conditions specified in clauses (w) through (z) of section 6(e)(iv)
\n shall have been fulfilled in respect of such Advance.<\/p>\n
(vi) Emergencies. Provided that Lessee shall have given Lessor
\nprompt telephonic notice (confirmed in writing as soon as reasonably
\npracticable) of an emergency, Lessee may proceed with any Reimbursable
\nReplacement, Reimbursable Structural Work or Reimbursable Legal Requirement
\nAlteration without first complying with the applicable provisions of this
\nsection 6(e), and Lessor shall, following full completion of the emergency work
\nin question and within 10 business days after Lessor’s receipt of Lessee’s
\nrequest therefor, remit the Emergency Reimbursement Amount (as hereinafter
\ndefined) to Lessee; provided, however, that Lessor shall not be obligated to
\nmake such remittance unless all of the conditions specified in clauses (w)
\nthrough (z) of section 6(e)(iv) shall have been fulfilled in respect of the work
\nin question (provided that (a) if no architect or engineer was retained for the
\nemergency work in question, subclause (b) of section 6(e)(iv)(w) shall be deemed
\nfulfilled if (x) Lessee shall deliver a certificate to Lessor stating that such
\nemergency work has been fully completed in a good and workmanlike manner and (y)
\nsuch emergency work
\n 36<\/p>\n
33<\/p>\n
has been fully completed in a manner consistent with the character of the
\nBuilding as a first-class office building [with due regard to the character of
\nthe work as emergency work], and (b) if an architect or engineer was retained
\nfor the emergency work in question but [due to the nature of the emergency] no
\nPlans and Specifications therefor were prepared, subclause (b) of section
\n6(e)(iv)(w) shall be deemed fulfilled if (x) Lessee shall deliver to Lessor a
\ncertificate of such architect or engineer stating that such emergency work has
\nbeen fully completed in a good and workmanlike manner and (y) such emergency
\nwork has been fully completed in a manner consistent with the character of the
\nBuilding as a first-class office building (with due regard to the character of
\nthe work as emergency work]).<\/p>\n
“Emergency Reimbursement Amount” means (a) in respect of any
\nReimbursable Replacement or Reimbursable Structural Work undertaken in an
\nemergency, all Costs reasonably incurred by Lessee in connection with the
\nemergency work in question and (b) in the case of a Reimbursable Legal
\nRequirement Alteration undertaken in an emergency, the product of the Measuring
\nFraction multiplied by an amount equal to all Costs reasonably incurred by
\nLessee in connection with the emergency work in question.<\/p>\n
Any dispute as to Lessee’s right to avail itself of this section
\n6(d)(vi), or as to the reasonableness of the incurrence by Lessee of any Cost in
\nconnection with the
\n 37
\n 34<\/p>\n
emergency work in question, or as to the reasonableness of the amount of any
\nsuch Cost, shall be determined by the Appropriate Engineer.<\/p>\n
(f) Overdue Reimbursements. If any sum reimbursable by Lessor to Lessee
\npursuant to section 6(e)(iv), 6(e)(v) or 6(e)(vi) shall not be paid to Lessee
\nwithin 10 business days after the same becomes due Lessee may give Lessor a
\nnotice (a “Delinquency Notice”) of the delinquency and if such sum remains
\nunpaid for a period of 10 business days after the date Lessor receives the
\nDelinquency Notice, such sum shall bear interest from the date Lessor receives
\nthe Delinquency Notice until the date of payment at a rate per annum equal to
\nthe prime rate of Morgan Guaranty Trust Company of New York (the “Delinquency
\nRate”) announced to be in effect as of the date of Lessor’s receipt of the
\nDelinquency Notice.<\/p>\n
(g) Inspection by Lessor; Cooperation by Lessee.<\/p>\n
(i) Lessor and its representatives shall at all reasonable times and
\n(except in an emergency) upon reasonable notice have access to the Combined
\nPremises for the purposes of (x) inspecting the progress of construction of any
\nAlteration and (y) reviewing the implementation of, and Lessee’s compliance
\nwith, the Initial Maintenance Program and each Annual Maintenance Program.<\/p>\n
(ii) Upon demand of Lessor, Lessee shall comply in all respects with any
\nreasonable and timely suggestions made
\n 38<\/p>\n
35<\/p>\n
by Lessor with respect to construction matters relating to any Reimbursable
\nReplacement, Reimbursable Structural Work or Reimbursable Legal Requirement
\nAlteration, and shall correct any defect in the work in question or any material
\ndeparture from the Plans and Specifications for the work in question. Any
\ndispute pursuant to this clause (ii) shall be determined by the Appropriate
\nEngineer.<\/p>\n
(iii) Lessee shall, within 10 business days after receipt of a
\nstatement therefor (accompanied by true copies of the bills paid by Lessor),
\nreimburse Lessor for all reasonable out-of-pocket expenses incurred for the
\nservices of an architect or engineer making inspections of any Restoration. If
\nany sum reimbursable by Lessee to Lessor pursuant to section 2.2(a), section
\n6(h), section 7(b), section 11.1(c), section 11.3, section 20.2 or this clause
\n(iii) shall not be paid within 10 business days after the same becomes due,
\nLessor may give Lessee a Delinquency Notice and if such sum remains unpaid for a
\nperiod of 10 business days after the date Lessee receives the Delinquency
\nNotice, such sum shall bear interest from the date Lessee receives the
\nDelinquency Notice to the date of payment at the Delinquency Rate announced to
\nbe in effect as of the date of Lessee’s receipt of the Delinquency Notice.<\/p>\n
(h) Removal of Special Alterations. If Lessee makes any opening
\nthrough the slab of any floor of the Leased Premises or reduces the floor area
\nof, or lowers the
\n 39<\/p>\n
36<\/p>\n
ceiling height of, any part of the Leased Premises designed for tenant occupancy
\n(any of the foregoing being called a “Special Alteration”), Lessee shall (within
\n10 business days after request therefor) reimburse Lessor the reasonable
\nout-of-pocket expenses incurred by Lessor after the expiration or sooner
\ntermination of this Lease in restoring the area affected by such Special
\nAlteration to its prior condition; provided, however, that Lessee shall not be
\nrequired to reimburse Lessor in respect of any Special Alteration unless Lessor
\nshall notify Lessee of Lessor’s desire for reimbursement in respect thereof at
\nleast 6 months prior to the expiration of this Lease or within 30 days following
\nany earlier termination of this Lease.<\/p>\n
(i) Engineer; Appropriate Engineer.<\/p>\n
(i) “Engineer” means each of the following:<\/p>\n
(t) Syska & Hennessy Inc.;<\/p>\n
(u) Meyer Strong & Jones P.C.,<\/p>\n
(v) Jaros Baum & Bolles;<\/p>\n
(w) Weidlinger Associates;<\/p>\n
(x) Purdy & Henderson Associates Inc.;<\/p>\n
(y) Weiskopf & Pickworth; and<\/p>\n
(z) such other independent engineering firm or firms having at
\n least 15 years’ experience in first-class Manhattan office buildings
\n as shall from time to time be designated by Lessor or Lessee and
\n approved by the other party (which approval
\n 40<\/p>\n
37<\/p>\n
shall not be unreasonably withheld or delayed; any dispute as to
\n whether either Lessor or Lessee has unreasonably withheld or delayed
\n such approval to be determined by arbitration).<\/p>\n
(ii) “Appropriate Engineer” means, in respect of any matter required
\nby this Lease to be determined by an Appropriate Engineer, such Engineer as
\nLessee may designate by notice (a “Lessee’s Designation Notice”) to Lessor;
\nprovided, however, that if Lessee shall fail to give a Lessee’s Designation
\nNotice within 7 business days after Lessee receives Lessor’s request for the
\nsame, the “Appropriate Engineer” for the matter in question shall be such
\nEngineer as Lessor may designate in a notice to Lessee delivered at any time
\nprior to receipt by Lessor of such Lessee’s Designation Notice.<\/p>\n
(iii) Each Appropriate Engineer shall make its determination as
\npromptly as reasonably practicable, but in any event within 30 days after
\nrequest therefor by Lessor or Lessee. Each determination made by an Appropriate
\nEngineer pursuant to this Lease shall be final and binding on Lessor and Lessee.
\nLessor and Lessee shall each pay one-half of the fees and expenses of each
\nAppropriate Engineer which is called upon to act hereunder.<\/p>\n
7. Removal and Replacement of Initial Tenant Improvements; Lessee’s
\nEquipment. (a) Lessor acknowledges that Lessee owns the Initial Tenant
\nImprovements and that
\n 41<\/p>\n
38<\/p>\n
the Initial Tenant Improvements are of a quality superior to tenant improvements
\nordinarily found in first-class office buildings. Lessee (subject to the
\napplicable provisions of section 6) may at any time during the term hereof
\nremove all or any of the Initial Tenant Improvements provided that promptly
\nfollowing such removal Lessee shall replace the removed Initial Tenant
\nImprovements with items of a similar general nature to the extent necessary to
\nmaintain the general character of the Combined Premises as that of a first-class
\noffice building. Upon the expiration or sooner termination of this Lease, Lessee
\nshall be deemed to have abandoned the Initial Tenant Improvements, except to the
\nextent that Lessee shall have removed the same. At the request of Lessor at any
\ntime after the expiration or earlier termination of this Lease, Lessee shall
\nexecute, acknowledge and deliver to Lessor a quitclaim deed conveying to Lessor
\nall Initial Tenant Improvements remaining on the Land or in the Building, and if
\nLessee shall default in the performance of the foregoing covenant for a period
\nof 10 days after Lessee’s receipt of Lessor’s request for the quitclaim deed,
\nLessor is hereby appointed Lessee’s attorney-in-fact for the purpose of
\nexecuting, acknowledging and delivering such deed. The foregoing appointment is
\ncoupled with an interest and is irrevocable.<\/p>\n
(b) Lessor shall have no ownership interest in Lessee’s Equipment.
\nLessee may remove all or any of
\n 42
\n 39<\/p>\n
Lessee’s Equipment from the Combined Premises at any time. Any Lessee’s
\nEquipment not removed within five days after the expiration of this Lease or 30
\ndays after the sooner termination of this Lease shall be deemed abandoned and
\nmay be disposed of by Lessor without notice and without obligation to account
\ntherefor, and Lessee shall reimburse Lessor, upon demand, for all costs and
\nexpenses incurred by Lessor in disposing thereof. After the expiration or sooner
\ntermination of this Lease, Lessor may, without awaiting the lapse of the periods
\nreferred to in the previous sentence, relocate and store in the Leased Premises
\nany Lessee’s Equipment not removed. In case of the termination of this Lease
\nprior to its expiration, Lessee’s liability for Basic Rent with respect to any
\nportion of the Leased Premises in which any Lessee’s Equipment remains shall
\ncontinue for the period (not in excess of 30 days) ending on the date of the
\nremoval of the same.<\/p>\n
(c) Lessee shall immediately repair all damage to the Combined
\nPremises or any part thereof caused by its removal of any Lessee’s Equipment,
\nInitial Tenant Improvements or Alterations.<\/p>\n
8. Utility Services. Lessee shall pay all charges for all public or
\nprivate electrical, steam, gas, fuel, power and other utility services at any
\ntime rendered to or in connection with the Combined Premises or any part
\nthereof.<\/p>\n
43
\n 40<\/p>\n
9. Indemnification by Lessee. (a) Lessee shall protect, indemnify and
\nsave harmless Lessor from and against all liabilities, obligations, claims,
\ndamages, penalties, causes of action, costs and expenses (including, without
\nlimitation, attorneys’ fees and expenses) imposed upon or incurred by or
\nasserted against Lessor or against the Combined Premises or any part thereof by
\nreason of the occurrence or existence of any of the following during the term
\nhereof: (1) the conduct, management or possession of the Combined Premises or
\nany part thereof, (2) any accident, injury to or death of persons or loss of or
\ndamage to property occurring in, on or about the Combined Premises or any part
\nthereof or the adjoining sidewalks, curbs, vaults and vault space, if any,
\nstreets or ways, (3) any use, non-use or condition of the Combined Premises or
\nany part thereof or the adjoining sidewalks, curbs, vaults and vault space, if
\nany, streets or ways, (4) any failure on the part of Lessee to perform or comply
\nwith any of the terms, provisions or conditions of this Lease or with the terms,
\nprovisions or conditions of this Lease or with the terms, provisions and
\nconditions of the Contract Section (as defined in section 36), (5) performance
\nof any labor or services or the furnishing of any materials or other property in
\nrespect of the Combined Premises or any part thereof, (6) any negligence or
\ntortious act or omission on the part of Lessee or any of its partners, agents,
\ncontractors, servants, employees, licensees or invitees, (7)
\n 44<\/p>\n
41<\/p>\n
any negligence or tortious act or omission on the part of any sublessee of
\nLessee, or of any partners, agents, contractors, servants, employees, licensees
\nor invitees of any sublessee of Lessee, (8) any contest of any Imposition, Legal
\nRequirement, Permitted Encumbrance or any provision of an Existing Lease
\nconducted by Lessee pursuant to section 11.3, (9) any Existing Lease or other
\nsublease of all or any part of the Combined Premises or (10) any action taken by
\nLessor at the request of Lessee pursuant to section 11.1(c) or 11.3.<\/p>\n
(b) In case any claim is made against Lessor or in case any action,
\nsuit or proceeding (a “proceeding”) is brought against Lessor or the Combined
\nPremises or any part thereof by reason of any of the foregoing, Lessor shall
\ngive prompt notice to Lessee and Lessee shall cause such claim or proceeding to
\nbe defended by counsel (“Lessee’s Counsel”) designated by Lessee and approved by
\nLessor (which approval shall not be unreasonably withheld). Lessee shall have
\nthe right to control the defense and settlement of any such claim or proceeding
\nand shall not be required to indemnify Lessor from the costs and expenses of any
\nsettlement agreed to without Lessee’s consent; provided, however, that Lessor
\nshall have the right (a) to require Lessee and Lessee’s Counsel to consult with
\nLessor and counsel retained and paid by Lessor, (b) to assume control of the
\ndefense and settlement of any such claim or proceeding at any time if<\/p>\n
45<\/p>\n
42<\/p>\n
Lessor waives its right to be indemnified by Lessee on account thereof and (c)
\nto make any settlement without Lessee’s consent if Lessor pays the amount of
\nsuch settlement and waives its right to be indemnified by Lessee on account of
\nthe claim or proceeding to which such settlement relates. Lessor shall cooperate
\nwith Lessee, at Lessee’s expense, in the defense of any such claim or
\nproceeding in such manner as Lessee may from time to time reasonably request.<\/p>\n
10. Entry by Lessor. Lessee shall permit Lessor to enter the
\nCombined Premises or any part thereof at all reasonable times upon reasonable
\nnotice (except in case of emergency) for the purpose of inspecting the same or
\ndoing any work under section 19, and to keep and store all such materials
\ntherein as may be reasonably necessary or appropriate for any such purpose
\nwithout the same constituting a partial or complete, constructive or actual
\neviction (but nothing contained herein shall create or imply any duty on the
\npart of Lessor to do any work under section 19). Lessor shall not have any duty
\nto make any such inspection and shall not incur any liability or obligation by
\nmaking or for not making any such inspection. Lessee shall also permit Lessor to
\nenter the Combined Premises or any part thereof at all reasonable times upon
\nreasonable notice for the purposes of exhibiting the Leased Premises for sale or
\nmortgage or, during the last 24 months<\/p>\n
46<\/p>\n
43<\/p>\n
of the term or any extended term of this Lease, lease. Any entry pursuant to
\nthis section shall be subject to the condition that, except in case of
\nemergency, if Lessee so desires, any representative of Lessor shall be
\naccompanied at all times by a representative of Lessee.<\/p>\n
11. Payment of Taxes, Impositions, etc.<\/p>\n
11.1 General. (a) Subject to the provisions of sections 11.2, 11.3
\nand 11.4, Lessee shall pay, before any fine, penalty, interest or cost may be
\nadded for non-payment, all real estate taxes, personal property taxes, transit
\ntaxes, occupancy taxes, assessments for public improvements or benefits, whether
\nor not commenced or completed prior to the date hereof and whether or not to be
\ncompleted within the term hereof, water, sewer or other rents, rates and
\ncharges, excises, license fees, permit fees, inspection fees and other
\nauthorization fees and charges, in each case whether general or special,
\nordinary or extraordinary, or foreseen or unforeseen, of every character
\n(including all interest and penalties thereon) (“Impositions”), which at any
\ntime during or in respect of the term hereof may be assessed, levied, confirmed
\nor imposed on or grow or become due and payable out of or in respect of or
\nbecome a lien on (a) the Combined Premises or any part thereof, (b) occupancy,
\nuse or possession of or activity conducted in the Combined Premises or any part
\nthereof by Lessee or anybody else, and\/or (c) this Lease or<\/p>\n
47
\n 44<\/p>\n
any other document to which Lessee is a party, creating or transferring an
\ninterest or estate in the Combined Premises or any part thereof, provided that
\n(i) if any Imposition, by law, may at the option of the taxpayer be paid in
\ninstallments, Lessee may elect to pay the same in the maximum number of
\ninstallments permitted by law and Lessee shall be required to pay only those
\ninstallments (together with interest thereon) coming due during the term hereof
\n(each such installment and interest thereon to be paid by Lessee before any
\nfine, penalty, interest or cost may be added thereto for non-payment) and (ii)
\nall Impositions for the fiscal or tax year in which the term shall end shall be
\napportioned.<\/p>\n
(b) Lessee shall deliver to Lessor upon request an Officer’s Certificate
\ncertifying to the payment of all Impositions and shall furnish to Lessor upon
\nrequest copies of official receipts or other proof satisfactory to Lessor
\nevidencing such payment.<\/p>\n
(c) Lessor, at Lessee’s expense, shall promptly execute such reports,
\ncertificates, instruments, applications and other documents which can be
\nexecuted only by the owner of the Leased Premises as Lessee may reasonably
\nrequest and shall take such other actions which can be taken only by the owner
\nof the Leased Premises as Lessee may reasonably request in connection with the
\nImpositions, any payment thereof or any exemption therefrom now or hereafter
\n 48<\/p>\n
45<\/p>\n
in effect or to be applied for. If in connection with any such request Lessor
\nconsults with an engineer, an attorney or another professional, Lessee shall,
\nwithin 10 days of Lessee’s receipt of demand therefor accompanied by copies of
\nthe bills paid by Lessor, reimburse Lessor for the reasonable out-of-pocket
\nexpenses incurred by Lessor for the services of such professionals. If such
\nprofessional advises Lessor in writing that Lessor’s executing such document or
\ntaking such action might result in Lessor’s becoming criminally liable and
\nfurnishes a reasonably detailed explanation of the liability in question and the
\nreasons therefor, Lessor shall promptly advise Lessee and furnish Lessee with a
\ncopy of such professional’s advice and explanation and Lessor need not execute
\nsuch document or take such action.<\/p>\n
(d) The certificate or receipt of the department, officer or bureau
\ncharged with the collection of any Imposition, showing that such Imposition is
\ndue and payable or has been paid, shall be prima facie evidence that such
\nImposition was due and payable or that it has been paid.<\/p>\n
11.2 Exclusions from Impositions. The term “Impositions” shall not
\ninclude, and nothing herein contained shall require Lessee to pay, municipal,
\nstate or federal income taxes assessed against Lessor, or municipal, state or
\nfederal capital levy, gift, estate, succession, inheritance or transfer taxes of
\nLessor, or corporation<\/p>\n
49
\n 46<\/p>\n
excess profits or franchise taxes imposed upon any corporate owner of the Leased
\nPremises, or any income, profits or revenue tax, assessment or charge imposed
\nupon Lessor; provided, however, that if, due to a future change in the method of
\ntaxation, a franchise, income, transit, profit or other tax or governmental
\nimposition shall be levied against Lessor in substitution for any Imposition,
\nthen such franchise, income, transit, profit or other tax or governmental
\nimposition levied against Lessor shall be deemed to be an Imposition.<\/p>\n
11.3 Permitted Contests. Lessee without Lessor’s consent may contest, by
\nappropriate legal proceedings conducted in good faith and with due diligence,
\nthe amount or validity or application, in whole or in part, of any Imposition,
\nLegal Requirement, Permitted Encumbrance or any provision of any Existing Lease,
\nand may withhold payment or performance of the same pending such contest,
\nprovided that (a) such proceedings shall suspend the collection thereof from
\nLessor and the Leased Premises or any part thereof, (b) neither the Leased
\nPremises nor any part thereof, (b) neither the Leased Premises nor any part
\nthereof or interest therein would be in any danger of being sold, forfeited or
\nlost, (c) Lessor shall not be in any danger of any criminal liability by reason
\nthereof and (d) in the case of a contest involving any Legal Requirement, any
\nPermitted Encumbrance or any provision of any Existing Lease, if at any time
\nLessor determines that Lessor is in danger of any civil
\n 50
\n 47<\/p>\n
liability in an amount in excess of one year’s Basic Rent, Lessee shall (within
\n5 business days after Lessee receives Lessor’s request therefor) furnish to
\nLessor such security against such civil liability as Lessor may reasonably
\nrequest. Lessee shall give prompt notice to Lessor of the commencement of or of
\nLessee’s desire to commence any contest permitted by the preceding sentence and
\nLessor shall, at Lessee’s expense, cooperate with Lessee with respect to any
\nsuch contest and, if in connection with the commencement, prosecution or
\nsettlement of such contest only Lessor can execute any report, certificate,
\ninstrument, application or other document or take any other action, then, upon
\nLessee’s request, Lessor shall execute or take the same. If in connection with
\nany such request Lessor consults with an engineer, an attorney or other
\nprofessional, Lessee shall, within 10 days of Lessee’s receipt of demand
\ntherefor accompanied by copies of the bills paid by Lessor, reimburse Lessor
\nfor the reasonable out-of-pocket expenses incurred by Lessor for the services
\nof such professionals. If such professional advises Lessor in writing that
\nLessor’s executing such document or taking such action might result in Lessor’s
\nbecoming criminally liable and furnishes a reasonably detailed explanation of
\nsuch liability and the reasons therefor, Lessor shall promptly advise Lessee
\nand furnish Lessee with a copy of such professional’s advice and explanation
\nand Lessor need <\/p>\n
51<\/p>\n
48<\/p>\n
not execute such document or take such action. If, while contesting any
\nImposition, Lessee withholds payment of the same, Lessee shall maintain the
\namount withheld (together with penalties and interest from time to time accruing
\nthereon) on deposit in a separate interest-bearing account in Lessor’s name with
\na bank or trust company selected by Lessee having an office in the Borough of
\nManhattan and a combined shareholders equity of at least $200 million (or, if
\nLessee and Lessor so agree, with Lessor). If any of the conditions set forth in
\nthe proviso to the first sentence of this section 11.3 are violated, Lessor
\nshall be entitled to withdraw the funds on deposit in said account in order to
\nmake payment of the Imposition being contested. All interest earned on funds in
\nsuch an account shall be credited to such account and Lessee shall pay all taxes
\nthereon. Upon termination or settlement of such contest, any required payment of
\nthe Imposition contested shall be made from such account and the balance
\nremaining in such account shall be paid to Lessee. If the amount in the account
\nis insufficient, Lessee shall pay the amount of the deficiency.<\/p>\n
11.4 Tax Deposits. Notwithstanding the foregoing provisions of this
\nsection 11, if at any time any Event of Default specified in section 22(d) shall
\nhave occurred due to Lessee’s failure to perform its obligations under section
\n11.1(a), Lessor may at any time thereafter give a notice to<\/p>\n
52
\n 49<\/p>\n
Lessee referring to this section 11.4 and if such notice shall be given Lessee
\nshall be obligated from and after the date which is 10 days after Lessee’s
\nreceipt of such notice to pay to Lessor in equal monthly installments, on the
\nfirst day of each month during the balance of the term and any extended term of
\nthis Lease, an amount equal to one-twelfth of the annual real estate taxes
\nimposed upon the Combined Premises for each fiscal tax year (collectively, “Tax
\nDeposits”). Tax Deposits shall in the first instance be based on the real estate
\ntaxes for the prior fiscal tax year, and when such real estate taxes shall be
\nascertained for the current tax year, appropriate adjustments shall be made.
\nLessor shall keep all Tax Deposits in a separate interest bearing escrow account
\nin a New York Clearing House member bank, and the interest thereon shall be
\ncredited to Lessee (Lessee to pay all taxes on such interest). Lessor shall
\napply Tax Deposits to the payment of the annual real estate taxes imposed upon
\nthe Combined Premises as they become due and payable. From time to time upon
\nnotice to Lessee by Lessor, Tax Deposits shall be increased to such amounts as
\nmay be necessary from time to time to provide a fund sufficient to meet the
\npayment of the annual real estate taxes imposed upon the Combined Premises (or
\nany installment thereof) as and when due and payable, whether on the present
\ndates of payment or on such other dates as may be fixed by law.<\/p>\n
53<\/p>\n
50<\/p>\n
12. Compliance with Legal and Insurance Requirements, Permitted
\nEncumbrances, Leases. Subject to the provisions of sections 6 and 11.3, Lessee
\nshall promptly comply with all Legal Requirements, Insurance Requirements and
\nPermitted Encumbrances, whether or not compliance therewith shall require
\nAlterations or interefere with the use and enjoyment of the Combined Premises or
\nany part thereof. Subject to the provisions of section 11.3, Lessee shall
\nobserve and perform all of the covenants and obligations, if any, on the part of
\nLessor to be observed and performed under the Existing Leases.<\/p>\n
13. Liens. (a) Within 60 days after the date on which Lessor gives
\nLessee notice, referring to this section 13 and section 19(e), of the existence
\nof any mechanic’s, laborer’s or materialman’s lien, any lien arising under any
\nPermitted Encumbrance or any security interest which might be or become a lien,
\nencumbrance or charge upon the Combined Premises or any part thereof (other than
\nany such lien, encumbrance or charge caused by Lessor) and directs Lessee to
\nremove or discharge the same, Lessee shall either (i) remove or discharge the
\nsame, by bonding or otherwise, or (ii) if Lessor shall consent thereto, provide
\nLessor with an unconditional and irrevocable letter of credit (issued by a New
\nYork Clearing House member bank satisfactory to Lessor and in form satisfactory
\nto Lessor) or other security<\/p>\n
54<\/p>\n
51<\/p>\n
satisfactory to Lessor indemnifying Lessor against such lien or security
\ninterest.<\/p>\n
(b) Nothing contained in this Lease shall be deemed or construed in
\nany way as constituting the consent or request of Lessor, express or implied by
\ninference or otherwise, to any contractor, sub-contractor, laborer or
\nmaterialman for the performance of any labor or the furnishing of any materials
\nfor any specific improvement, alteration to or repair of the Combined Premises
\nor any part thereof.<\/p>\n
14. Insurance.<\/p>\n
14.1 Risks to be Insured. (a) Lessee shall maintain or cause to be
\nmaintained with insurers and pursuant to insuring agreements approved by Lessor:<\/p>\n
(i) insurance with respect to all buildings, improvements, equipment
\n and machinery constituting a part of the Combined Premises against loss or
\n damage by perils customarily included under standard “all-risk” policies
\n (including specifically damage by water), in amounts sufficient to prevent
\n Lessor or Lessee from becoming a co-insurer of any partial loss under the
\n applicable policies, and in any event in amounts not less than 90% of the
\n then full replacement cost (without deducting depreciation) of such
\n buildings, improvements, equipment and machinery (exclusive of the costs
\n of foundations, excavations and footings) (the “full<\/p>\n
55<\/p>\n
52<\/p>\n
replacement cost”) as determined at the request of Lessor, made not sooner
\n than one year after the previous determination, and at Lessee’s expense by
\n the insurer or insurers or by an expert selected by Lessee and approved by
\n Lessor;<\/p>\n
(ii) boiler and machinery coverage, either, as Lessee shall elect,
\n as part of the policy referred to in clause (i) of this section 14.1(a)
\n or, if by a separate policy, in an amount not less than $5,000,000 or such
\n greater amount as Lessor may reasonably require by notice to Lessee;<\/p>\n
(iii) comprehensive general liability insurance, including broad
\n form bodily injury, personal injury, property damage and blanket
\n contractual insurance, against claims arising out of or connected with the
\n possession, use, operation or condition of the Combined Premises with a
\n combined single limit of not less than $100,000,000 (or, such greater
\n amount as Lessor may reasonably require by notice to Lessee) for all
\n claims with respect to bodily injury, property damage and personal injury
\n with respect to any one occurrence;<\/p>\n
(iv) appropriate builder’s risk insurance with respect to any
\n Alterations (including, without limitation, any Restoration) or other work
\n on or about the Combined Premises or any part thereof;<\/p>\n
56
\n 53<\/p>\n
(v) appropriate worker’s compensation and employer’s liability
\n insurance with respect to any Alteration (including, without limitation,
\n any Restoration) or other work on or about the Combined Premises or any
\n part thereof;<\/p>\n
(vi) such other insurance with respect to the Combined Premises or any
\n part thereof in such amounts and against such insurable casualties as
\n Lessor from time to time may reasonably require by notice to Lessee; and<\/p>\n
(vii) rental value or rental continuation insurance to take effect
\n upon 50% Untenantability (as defined in section 15.4(a)) (“Rent Insurance”)
\n in an amount sufficient to prevent Lessor and Lessee from becoming
\n co-insurers, and in any event, in respect of each Required Item (as
\n hereinafter defined), in an amount not less than the amount of such
\n Required Item for the Required Period (as hereinafter defined) for such
\n Required Item.<\/p>\n
All insurance required to be maintained under clause (i), (ii) or (iii) of this
\nsection 14.1(a) may be subject to a deductible of not more than the Deductible
\nAmount. Lessor shall not unreasonably withhold any of the approvals referred to
\nin this section 14.1(a). Any dispute whether Lessor has unreasonably withheld
\nsuch an approval and any dispute regarding the dollar amounts of the limits of <\/p>\n
57<\/p>\n
54<\/p>\n
coverage under clause (ii) or (iii) of this section 14.1(a) and any dispute
\nunder clause (iv), (v), (vi) or (vii) above shall be resolved by arbitration.
\nPending the outcome of such arbitration, Lessee may act as if the dispute had
\nbeen resolved in its favor.<\/p>\n
(b) “Required Item” means each of (i) Basic Rent, (ii) all
\nImpositions and (iii) all premiums on insurance required to be carried pursuant
\nto section 14.1(a); provided, however, that none of the foregoing shall be a
\nRequired Item unless Rent Insurance therefor shall be available at a reasonable
\ncost. Rent Insurance shall be deemed available at a reasonable cost in respect
\nof any Required Item if the annualized premium per $1,000,000 of coverage does
\nnot exceed the product of $1,000 multiplied by a fraction whose numerator is the
\nIndex for the third month immediately preceding the month in which the
\ndetermination is made as to whether the item in question is a “Required Item”
\nand whose denominator is the Index for February, 1985.<\/p>\n
(c) “Required Period” means, in respect of any Required Item, the
\nperiod following the date of 50% Untenantability for which Rent Insurance for
\nsuch Required Item is available at a reasonable cost (provided that in no event
\nshall the Required Period for any Required Item exceed an 18-month period).<\/p>\n
(d) The determination as to whether any item is a “Required Item”,
\nand the determination as to the Required<\/p>\n
58
\n 55<\/p>\n
Period, if any, for the item in question, shall be made at the request of Lessor
\nby Marsh & McLennan (or such other independent insurance firm as may be
\nreasonably acceptable to Lessor) and at the expense of Lessee, provided that no
\nsuch determination shall be required to be made more frequently than once every
\n6 months; provided, however, that Lessor and Lessee acknowledge that, as of the
\ndate of this Lease, Basic Rent is the only Required Item and that the Required
\nPeriod therefor is a 12-month period.<\/p>\n
14.2 Policy Provisions. All insurance maintained by Lessee pursuant to
\nsection 14.1(a) shall: (a) except for any worker’s compensation insurance and
\nemployer’s liability insurance, name as insureds, as their respective interests
\nmay appear, Lessor and Lessee; (b) include a stipulation that premiums will be
\npaid by and are the responsibility of Lessee; (c) except for any comprehensive
\ngeneral liability, worker’s compensation insurance or employer’s liability
\ninsurance, provide that no act or omission of Lessee shall impair or affect the
\nrights of the insureds to receive and collect the proceeds under the relevant
\npolicy; and (d) provide that no cancellation, reduction in amount or material
\nchange in coverage thereof shall be effective until at least 30 days after
\nreceipt by Lessor of written notice thereof. Lessee shall have the sole
\nauthority to settle claims under insurance policies; provided, however, that,
\nin case of any damage or destruction affording Lessee the right<\/p>\n
59<\/p>\n
56<\/p>\n
to terminate this Lease pursuant to section 15.4(a), Lessee may not settle all
\nor any of the claims under the policies referred to in clauses (i), (ii), (iv)
\nor (vi) of section 14.1(a) arising from any damage or destruction unless it
\nshall waive such right with respect to such damage or destruction. Lessee may
\nobtain any of the insurance required hereby under blanket or umbrella policies;
\nprovided, however, that any such policy of insurance provided for under clauses
\n(i), (ii), (iv), (vi) or (vii) of section 14.1(a): (i) shall permit recovery in
\nthe amount required by the clause in question to be carried without regard to
\nother insured events with respect to other properties, and (ii) shall not
\ncontain any clause which would result in the insured thereunder being required
\nto carry insurance with respect to the property covered thereby in an amount
\nequal to a minimum specific percentage of the full insurable value of such
\nproperty in order to prevent the insured therein named from becoming a
\nco-insurer of any loss with the insurer under such policy.<\/p>\n
14.3 Delivery of Insurance Certificates; Payment of Premium. On the
\ndate hereof and not less than 7 days prior to each policy expiration Lessee
\nshall deliver to Lessor certificates of all insurance policies required by this
\nLease to be maintained. Lessee shall pay all premiums on each such insurance
\npolicy within the time required under<\/p>\n
60<\/p>\n
57<\/p>\n
such policy and furnish Lessor with evidence of payment thereof within 10
\nbusiness days after payment.<\/p>\n
14.4 No Limitation of Damages. Lessor shall not be limited in the
\nproof of any damages which Lessor may claim against Lessee arising out of or by
\nreason of Lessee’s failure during the term or any extended term of this Lease to
\nprovide and keep in force the insurance required under this Lease to the amount
\nof the insurance premium or premiums not paid or incurred by Lessee and which
\nwould have been payable upon such insurance, but Lessor shall also be entitled
\nto recover as damages for such breach the uninsured amount of any loss to the
\nextent of any deficiency between the insurance required by the provisions of
\nthis Lease and the insurance carried by Lessee, together with all costs and
\nexpenses incurred by Lessor which Lessor would not have incurred if the required
\ninsurance had been maintained by Lessee. However, any such damages so recovered
\nby Lessor shall be subject to and limited by the provisions of section 25.<\/p>\n
15. Damage to or Destruction of Property.<\/p>\n
15.1 Waiver of ss.227; Lessee to Give Notice. Lessee hereby waives
\nthe provisions of Section 227 of the Real Property Law and confirms that the
\nprovisions of this section shall govern and control in lieu thereof. In case of
\nany damage to or destruction of the Combined Premises or any part thereof, if,
\nin Lessee’s reasonable opinion, the<\/p>\n
61<\/p>\n
58<\/p>\n
cost to repair or rebuild the same will exceed $1,000,000, Lessee shall promptly
\ngive notice thereof to Lessor, generally describing the nature and extent of
\nsuch damage or destruction.<\/p>\n
15.2 Restoration. Subject to section 15.4, in case of any damage to
\nor destruction of the Combined Premises or any part thereof, this Lease shall
\ncontinue in full force and effect without abatement of any Basic Rent or other
\namounts payable by Lessee hereunder. Lessee, whether or not the insurance
\nproceeds, if any, on account of such damage or destruction shall be sufficient
\nfor the purpose, shall (subject to the applicable provisions of section 6)
\npromptly commence and proceed with due diligence to complete the restoration,
\nreplacement or rebuilding of the Combined Premises (which may include demolition
\nof the remaining portions of the Combined Premises prior to rebuilding) as
\nnearly as possible to its condition immediately prior to such damage or
\ndestruction with such Voluntary Alterations as Lessee shall (subject to the
\napplicable provisions of section 6) elect (such restoration, replacement and
\nrebuilding, together with any temporary repairs and property protection pending
\ncompletion of the work, being herein called “Restoration”).<\/p>\n
15.3 Application of Insurance Proceeds. (a) Promptly after the
\noccurrence of any damage to or destruction of the Combined Premises or any part
\nthereof the<\/p>\n
62<\/p>\n
59<\/p>\n
insurance proceeds with respect to which are expected by Lessee to exceed the
\nSignificant Proceeds Amount, Lessee by notice to Lessor and the institution
\nappointed, shall appoint a depositary of the insurance proceeds under this
\nsection 15.3 (the “Depositary”). Without limiting the foregoing, Lessee may
\nappoint a Depositary at any other time. The Depositary shall be a bank or trust
\ncompany having an office in the Borough of Manhattan and a combined shareholders
\nequity of at least $200 million. Funds held by the Depositary shall be invested
\nby the Depositary, upon the instructions of Lessee, in Permitted Investments.<\/p>\n
(b) All insurance proceeds on account of any damage to or
\ndestruction of the Combined Premises or any part thereof shall be payable as
\nfollows:<\/p>\n
(1) to Lessee, to the extent that such proceeds are equal to or less
\n than the Significant Proceeds Amount, and<\/p>\n
(2) to the Depositary, to the extent that such proceeds are in
\n excess of the Significant Proceeds Amount;<\/p>\n
provided, however, that if an Event of Default shall have occurred and be
\ncontinuing, the amounts paid or payable to Lessee in accordance with the
\nforegoing clause (1) shall be paid to the Depository and shall (without the
\nnecessity of Lessee’s compliance with the provisions of section 17) be returned
\n(together with the interest thereon) to Lessee only<\/p>\n
63<\/p>\n
60<\/p>\n
upon the curing of such Event of Default, but less the portion, if any, applied
\nand disbursed by the Depositary in accordance with the provisions of section 17.<\/p>\n
15.4 Termination in Lieu of Restoration. (a) If:<\/p>\n
(i) during the last three years of the then current term (x) the
\n Combined Premises shall be so damaged or destroyed that the Costs of
\n Restoration shall exceed the product of $10,000,000 multiplied by a
\n fraction whose numerator is the Index for the month which is three months
\n prior to the month in which the damage or destruction occurred and whose
\n denominator is the Index for February 1985, and (y) Lessee shall not have
\n exercised its right to extend the term hereof by giving the exercise
\n notice; or<\/p>\n
(ii) at any time the Combined Premises shall be so damaged or
\n destroyed that 50% or more of the useable area thereof cannot, with the
\n exercise by Lessee of all due diligence, be rendered tenantable and fit
\n for the normal conduct of business within 30 days after the date of the
\n damage or destruction (the condition described in this clause (ii) being
\n called “50% Untenantability”), <\/p>\n
then (subject to the further provisions of this section 15.4) Lessee may, by
\nnotice (the “Damage Termination Notice”) to Lessor given within the 180-day
\nperiod (the “Election Period”) following the date (the “Damage Date”) of damage
\nor destruction, elect to terminate this Lease as of a<\/p>\n
64<\/p>\n
61<\/p>\n
date specified in the Damage Termination Notice (the “Specified Damage
\nTermination Date”), which Specified Damage Termination Date:<\/p>\n
(a) shall, in the case of a Damage Termination Notice given on
\n or prior to the 90th day following the Damage Date, be the date
\n which is 12 months (plus the positive remainder, if any, obtained
\n by subtracting 365 from the number of days in the Required Period
\n for Basic Rent as most recently determined pursuant to section
\n 14.1(d) prior to the Damage Date) after the Damage Date; or<\/p>\n
(b) shall, in the case of a Damage Termination Notice given
\n after the 90th day following the Damage Date and on or prior to the
\n 180th day following the Damage Date, be the date which is 9 months
\n (plus the positive remainder, if any, obtained by subtracting 365
\n from the number of days in the Required Period for Basic Rent as
\n most recently determined pursuant to section 14.1(d) prior to the
\n Damage Date) after the date of the Damage Termination Notice.<\/p>\n
(b) If Lessee shall timely give the Damage Termination Notice, this
\nLease shall terminate on the Specified Damage Termination Date; provided,
\nhowever, that if on or prior to the date which is 45 days after Lessor receives
\nthe Damage Termination Notice Lessor shall by<\/p>\n
65<\/p>\n
62<\/p>\n
notice to Lessee dispute Lessee’s right to terminate this Lease pursuant to
\nsection 15.4(a), the matter shall be determined by the Appropriate Engineer and
\n(i) if the Appropriate Engineer’s determination is in Lessor’s favor, this Lease
\nshall continue in full force and effect or (ii) if the Appropriate Engineer’s
\ndetermination is in Lessee’s favor, this Lease shall terminate effective as of
\nthe Specified Damage Termination Date. At any time at the request of Lessor or
\nLessee, the Appropriate Engineer shall make a determination as to whether Lessee
\nhas the right to terminate this Lease pursuant to this section 15.4.<\/p>\n
(c) At all times prior to the giving of the Damage Termination
\nNotice, Lessee shall prosecute the Restoration with all due diligence and in
\naccordance with the Plans and Specifications therefor (as approved by Lessor or
\nas determined by the Appropriate Engineer to have been required to be approved
\nby Lessor pursuant to this Lease); provided, however, that Lessee shall not be
\nobligated to expend more than the Significant Proceeds Amount with respect to
\nthe Restoration of such damage or destruction unless (i) Lessee waives its
\ntermination right under this section 15.4 with respect thereto or (ii) Lessee
\ndoes not give the Damage Termination Notice on or prior to the end of the
\nElection Period.<\/p>\n
(d) Simultaneously with the giving of the Damage Termination Notice
\nLessee shall:<\/p>\n
66
\n 63<\/p>\n
(i) assign to Lessor (by instruments reasonably satisfactory to Lessor)
\nall of Lessee’s right, title and interest in and to the Plans and
\nSpecifications (if any) for the Restoration and in and to that portion (if any)
\nof the Significant Proceeds Amount which has not yet been received by Lessee
\nfrom the insurer (provided that if and when Lessor receives such portion of the
\nSignificant Proceeds Amount from the insurer, Lessor shall, within 10 business
\ndays after receipt of a request therefor from Lessee, pay to Lessee an amount
\nequal to the lesser of (x) such portion of the Significant Proceeds Amount
\nreceived by Lessor from the insurer or (y) the amount, if any, by which the
\naggregate amount expended by Lessee in connection with the Restoration on or
\nprior to the date of the Damage Termination Notice [exclusive, however, of any
\namount expended for the restoration, repair or replacement of the Initial
\nTenant Improvements] exceeds the sum of (a) the portion of the Significant
\nProceeds Amount (if any) received by Lessee from the insurer on or prior to the
\ndate of the Damage Termination Notice and (b) the Deductible Amount under the
\ninsurance policy required to be maintained by Lessee under section 14.1(a));<\/p>\n
(ii) pay to Lessor, in immediately available funds, an amount (the “Damage
\nPayment”) equal to the sum of the positive remainder, if any, obtained by
\nsubtracting the<\/p>\n
67
\n 64<\/p>\n
aggregate amount theretofore expended by Lessee in connection with the
\n Restoration (exclusive, however, of any amount expended for the
\n restoration, repair or replacement of the Initial Tenant Improvements) from
\n the sum of (a) that portion (if any) of the Significant Proceeds Amount
\n which Lessee received from the insurer on or prior to the date of the
\n Damage Termination Notice plus (b) the Deductible Amount under the
\n insurance policy required to be maintained by Lessee under section 14.1(a);
\n and<\/p>\n
(iii) if the insurance policy required to be maintained by Lessee
\n under section 14.1(a) was for less than the full replacement cost most
\n recently determined pursuant to said section, deposit with the Depositary,
\n in immediately available funds, an amount equal to the excess of the amount
\n which would have been recoverable from the insurer if such policy had been
\n for the full replacement cost most recently determined pursuant to said
\n section over the amount which is recoverable from the insurer under such
\n policy on account of the damage or destruction.<\/p>\n
(e) Subject to section 15.4(f), during the period commencing on the date
\nof the Damage Termination Notice and ending on the Specified Damage
\nTermination Date, Lessor shall have full control over the Restoration and may
\nuse the Damage Payment and the amounts on deposit with the <\/p>\n
68<\/p>\n
65<\/p>\n
Depositary to defray the costs of the Restoration. Lessor and Lessee shall
\nreasonably cooperate with one another to effectuate the Restoration in an
\nefficient manner, and during the Restoration Lessor shall use reasonable efforts
\nto minimize interference with Lessee’s use of the undamaged portion (if any) of
\nthe Combined Premises. Lessor shall not be liable to Lessee for any matter
\nrelating to or arising out of the Restoration unless due to Lessor’s gross
\nnegligence or wilful misfeasance; provided, however, that Lessor shall retain
\nreputable contractors who carry reasonable and customary public liability
\ninsurance.<\/p>\n
(f) If following the giving of the Damage Termination Notice, the
\nAppropriate Engineer shall determine that Lessee had no right to terminate this
\nLease pursuant to section 15.4(a), then:<\/p>\n
(i) Lessee shall thereupon assume full control of the Restoration
\n and shall prosecute the same with all due diligence to completion in
\n accordance with the requirements of this Lease; and<\/p>\n
(ii) within 10 business days after the Appropriate Engineer’s
\n determination, Lessor shall (x) reassign to Lessee that which was assigned
\n to Lessor pursuant to section 15.4(d)(i) and (y) pay to Lessee in
\n immediately available funds an amount equal to the positive remainder, if
\n any, obtained by subtracting the aggregate amount theretofore expended by
\n Lessor in connection with<\/p>\n
69<\/p>\n
66<\/p>\n
the Restoration (exclusive, however, of any amount disbursed to Lessor by
\n the Depositary) from the sum of (a) the amount, if any, received by Lessor
\n from the insurer by reason of the assignment referred to in section
\n 15.4(d)(i) (exclusive, however, of any portion of such amount paid by
\n Lessor to Lessee pursuant to section 15.4(d)(i)), and (b) the Damage
\n Payment.<\/p>\n
(g) Prior to the termination of this Lease pursuant to this section
\n15.4 there shall be no abatement of the Basic Rent or any other sum payable by
\nLessee hereunder.<\/p>\n
16. Taking of Property.<\/p>\n
16.1 Notice. Lessor and Lessee shall each notify the other if it
\nbecomes aware of a Taking, or the commencement of any proceedings or
\nnegotiations which might result in a Taking.<\/p>\n
16.2 Total Taking. In case of the Taking of the entire Combined
\nPremises or a Taking of 20% or more of the useable area of the Combined Premises
\nwhich renders the remainder thereof, in Lessee’s reasonable opinion, not
\nreasonably susceptible to use as a first-class office building (a “Total
\nTaking”), this Lease shall terminate on the date of such Taking; provided,
\nhowever, that if Lessor shall dispute the reasonableness of Lessee’s opinion,
\nthe matter shall be determined by the Appropriate Engineer and (a) if the
\nAppropriate Engineer’s determination is in favor of Lessor, the Taking in
\nquestion shall be deemed a Partial<\/p>\n
70<\/p>\n
67<\/p>\n
Taking (as defined in section 16.3) or (b) if the Appropriate Engineer’s
\ndetermination is in favor of Lessee, this Lease shall terminate on the date of
\nthe determination. Within 10 business days after termination of the Lease in
\naccordance with section 16.2, Lessor shall return to Lessee all Basic Rent
\npreviously paid which is attributable to the period after such termination.<\/p>\n
16.3 Partial Taking. In case of a Taking other than a Total Taking
\n(hereinafter called a “Partial Taking”) (a) this Lease shall remain in full
\nforce and effect; provided, however, that on the date of such Taking this Lease
\nshall terminate as to the portion of the Leased Premises taken (which portion
\nshall be deemed excluded from the Leased Premises) and the Basic Rent shall be
\nreduced by multiplying the same by a fraction, the numerator of which is the
\narea of the Building taken and the denominator of which is the area of the
\nBuilding immediately prior to such Taking, and (b) Lessee, whether or not the
\nawards or payments, if any, on account of such Taking shall be sufficient for
\nthe purpose shall promptly commence Restoration of the Combined Premises
\n(exclusive of the taken portion) and thereafter diligently prosecute the same to
\ncompletion in accordance with the Plans and Specifications therefor (as approved
\nby Lessor or as determined by the Appropriate Engineer to be required to have
\nbeen approved by Lessor pursuant to this Lease).<\/p>\n
71<\/p>\n
68<\/p>\n
16.4 Application of Awards. (a) In the event of a Total Taking, the
\naward or awards for such Taking, less the cost of the determination of the
\namount thereof (the “Condemnation Proceeds”), shall be paid as follows:<\/p>\n
(i) if the Taking occurs at any time on or prior to June 30, 1998,
\n Lessor shall first be entitled to receive such portion of the Condemnation
\n Proceeds with interest thereon as shall equal the greater of:<\/p>\n
(x) the sum (the “Recoverable Sum”) of $310,000,000, plus the
\n aggregate amount of all reimbursements made by Lessor to Lessee
\n pursuant to section 6(e); or<\/p>\n
(y) an amount equal to the greater of (a) the fair market
\n value of Lessor’s fee estate in the Leased Premises, valued as
\n encumbered by this Lease, or (b) the fair market value of Lessor’s
\n fee estate in the Land, valued as encumbered by this Lease;<\/p>\n
(ii) if the Taking occurs at any time after June 30, 1998, Lessor
\n shall first be entitled to receive such portion of the Condemnation
\n Proceeds with interest thereon as shall equal the greater of (x) the fair
\n market value of Lessor’s fee estate in the Leased Premises, valued as if
\n vacant and unencumbered by this Lease or otherwise, or (y) the fair market
\n value of<\/p>\n
72
\n 69<\/p>\n
Lessor’s fee estate in the Land, valued as if vacant, unimproved and
\n unencumbered by this Lease or otherwise;<\/p>\n
(iii) Lessee shall then be entitled to receive such portion of the
\n Condemnation Proceeds with interest thereon as shall equal the value of its
\n leasehold estate; and<\/p>\n
(iv) Lessor shall then be entitled to receive the balance of the
\n Condemnation Proceeds. <\/p>\n
(b) In the event of a Partial Taking, the Condemnation Proceeds
\nshall be paid as follows:<\/p>\n
(i) Lessee shall first be entitled to receive such portion of the
\n Condemnation Proceeds with interest thereon as shall be awarded for
\n Restoration and such portion of the Condemnation Proceeds shall be payable
\n to the Depositary for disbursement in accordance with section 17;<\/p>\n
(ii) if the Taking occurs at any time on or prior to June 30, 1998,
\n Lessor shall then be entitled to receive such portion of the Condemnation
\n Proceeds with interest thereon as shall equal the greater of:<\/p>\n
(x) the Recoverable Sum multiplied by a fraction whose numerator
\n is the number of square feet in the portion of the Land so taken and
\n whose denominator is 58,223; or<\/p>\n
(y) an amount equal to the greater of (x) the fair market value
\n of Lessor’s fee estate in the <\/p>\n
73<\/p>\n
70<\/p>\n
part of the Leased Premises (if any) so taken, plus consequential damages,
\n if any, to Lessor’s fee estate in the part of the Leased Premises not so
\n taken, the Leased Premises to be valued as encumbered by this Lease, or
\n (y) the fair market value of Lessor’s fee estate in the part of the Land
\n (if any) so taken, plus consequential damages, if any, to the portion of
\n the Land not so taken, the Land to be valued as encumbered by this Lease;<\/p>\n
(iii) if the Partial Taking occurs at any time after June 30, 1998, Lessor
\nshall then be entitled to receive such portion of the Condemnation Proceeds with
\ninterest thereon as shall equal the greater of (x) the fair market value of
\nLessor’s fee estate in the part of the Leased Premises (if any) so taken, plus
\nconsequential damages, if any, to the part of the Leased Premises not so taken,
\nthe Leased Premises to be valued as if vacant and unencumbered by this Lease or
\notherwise, or (y) the fair market value of Lessor’s fee estate in the part of
\nthe Land (if any) so taken, plus consequential damages, if any, to the portion
\nof the Land not so taken, the Land to be valued as if vacant, unimproved and
\nunencumbered by this Lease or otherwise; and<\/p>\n
(iv) Lessor and Lessee shall then share equally in any balance of the
\nCondemnation Proceeds.<\/p>\n
74<\/p>\n
71<\/p>\n
(c) If the order or decree in any condemnation or similar proceeding
\nshall fail separately to state the amount to be awarded to Lessor and the amount
\nto be awarded to Lessee under section 16.4(a) or (b), or the amount of the
\ncompensation for Restoration, and if Lessor and Lessee cannot agree thereon
\nwithin 30 days after the final award or awards shall have been fixed and
\ndetermined, the dispute shall be determined by arbitration.<\/p>\n
(d) Nothing in this Lease shall preclude Lessee from claiming or
\nreceiving from the condemning authority any compensation to which Lessee may
\notherwise lawfully be entitled in respect of Lessee’s Equipment and the Initial
\nTenant Improvements, for moving to a new location, reimbursement for tenant
\nimprovements or for interruption of, or damage to, Lessee’s business; provided,
\nhowever, that any award made is separate to Lessee and not part of damages
\nrecoverable by Lessor.<\/p>\n
16.5 Temporary Taking. Sections 16.2 through 16.4 to the contrary
\nnotwithstanding, the provisions of this section 16.5 shall govern any Taking for
\ntemporary use. In the case of any Taking for temporary use, this Lease shall
\nremain in effect as to the Leased Premises (including the portion taken) and
\nthere shall be no reduction in Basic Rent or (unless otherwise legally required)
\nother change in the obligations of Lessee hereunder. If the term of the
\ntemporary Taking shall not extend beyond the term of this<\/p>\n
75
\n 72<\/p>\n
Lease and any extended term (for which Lessee has given the exercise notice)
\nthe entire award shall be payable to Lessee and Lessee shall make Restoration
\nof the Leased Premises in accordance with the requirements of this Lease. If
\nthe term of the temporary Taking shall extend beyond the term of this Lease and
\nany extended term (for which Lessee has given the exercise notice), Lessee need
\nnot make Restoration, the portion of the award applicable to the Restoration
\nshall be paid to Lessor and the balance of the award shall be apportioned
\nbetween Lessee and Lessor by the condemning authority or, if the condemning
\nauthority fails to act, by arbitration.<\/p>\n
17. Disbursement of Deposited Sums. (a) Subject to the provisions of
\nthis section 17, the Depositary shall, from time to time as any Restoration
\nproceeds and within 10 business days after receipt of Lessee’s request therefor
\n(but in no event more frequently than once during any 30-day period), make
\ndisbursements (collectively, “Restoration Advances”) to Lessee from the funds
\ndeposited with the Depositary pursuant to section 15.3(b), 15.4(d)(iii) or
\n16.4(b)(i) (collectively, the “Deposited Sums”) for application to the Costs of
\nthe Restoration in question. Simultaneously with the delivery of each such
\nrequest to the Depositary, Lessee shall give notice thereof to Lessor (which
\nnotice shall be accompanied by copies of such request and all other papers
\ndelivered to the Depositary).<\/p>\n
76<\/p>\n
73<\/p>\n
(b) No Restoration Advance shall be made on account of any fire or
\nother casualty until Lessee shall have delivered evidence reasonably
\nsatisfactory to Lessor that an aggregate amount at least equal to the
\nSignificant Proceeds Amount has been expended for Costs in connection with the
\nRestoration, and Restoration Advances on account of any fire or other casualty
\nshall be made only for amounts paid or payable by Lessee for Costs which are in
\nexcess of the Significant Proceeds Amount.<\/p>\n
(c) No Restoration Advance (other than the final Restoration
\nAdvance) in respect of any fire or other casualty or any Partial Taking shall be
\ndue unless Lessee’s request for such Restoration Advance shall be accompanied
\nby:<\/p>\n
(i) a certificate of Lessee addressed to the Depositary and Lessor
\n (in form reasonably satisfactory to Lessor) stating that the amount of the
\n Restoration Advance then requested has been paid or is then duly payable
\n by Lessee to Contractors (whose names and addresses and a description of
\n the work involved shall be stated), that the amount of the Restoration
\n Advance then requested (when taken together with the aggregate amount of
\n all Restoration Advances theretofore made by the Depositary) exceeds
\n neither 90% of the Deposited Sums (together with interest on such amount)
\n nor the value (the “Installed Value”) of the Restoration work in<\/p>\n
77<\/p>\n
74<\/p>\n
question as actually installed in the Leased Premises (Lessee’s
\n certificate to set forth a calculation of the Installed Value), and that
\n no part of cost of the work described in any previous or then pending
\n request for a Restoration Advance has been or is being made the basis for
\n the Restoration Advance then being requested; and<\/p>\n
(ii) a certificate of the architect or engineer who prepared the
\n related Plans and Specifications addressed to the Depositary and Lessor
\n (in form reasonably satisfactory to Lessor) stating in substance that (x)
\n the calculation of Installed Value as set forth in the certificate
\n referred to in the foregoing clause (i) is correct, (y) the work has been
\n performed in a good and workmanlike manner and in accordance with the
\n Plans and Specifications (as approved by Lessor or as determined by the
\n Appropriate Engineer to have been required to be approved by Lessor
\n pursuant to this Lease) and (z) the unadvanced portion of the Deposited
\n Sums in question, together with any additional amount to be available from
\n the insurer, are at least equal to the Costs of the Restoration which will
\n remain unpaid after giving effect to the Restoration Advance in question.<\/p>\n
(d) No Restoration Advance (including the final Restoration Advance)
\nin respect of any fire or other casualty or any Partial Taking shall be due
\nunless:<\/p>\n
78
\n 75<\/p>\n
(i) no certificate delivered to the Depositary or Lessor by Lessee or
\n by any architect or engineer in connection with the Restoration in question
\n shall have been materially incorrect at the time of delivery (Lessor to
\n give notice to Lessee within 10 business days after Lessor’s receipt of the
\n certificate in question if Lessor contends that such certificate was
\n materially incorrect; any such dispute to be determined by the Appropriate
\n Engineer);<\/p>\n
(ii) in the case of a Restoration Advance to be made on account of a
\n fire or other casualty, Lessee shall have waived its right to terminate
\n this Lease pursuant to section 15.4(a) on account of such damage or other
\n casualty;<\/p>\n
(iii) Lessor shall have received true copies of all bills paid or
\n payable by Lessee to Contractors which form the basis for the Restoration
\n Advance in question; and<\/p>\n
(iv) no Event of Default (including, without limitation, any
\n Event of Default specified in section 22(d)) shall have occurred and be
\n continuing.<\/p>\n
(e) Neither any final Restoration Advance nor the release of any
\nremaining balance of Deposited Sums pursuant to section 17(f) shall be made
\nunless:<\/p>\n
(i) Lessee’s request for such Advance or such release shall be
\n accompanied by (x) a certificate of<\/p>\n
79<\/p>\n
76<\/p>\n
Lessee addressed to the Depositary and Lessor (in form reasonably
\n satisfactory to Lessor) stating that to Lessee’s best knowledge (after due
\n inquiry) there shall (after giving effect to such Advance or release) be
\n no outstanding indebtedness due for labor, materials, supplies, permits or
\n services in any manner connected with the Restoration which if unpaid
\n might be the basis for any type of lien on the Combined Premises, or any
\n part thereof, and that (in the case of a request for a final Restoration
\n Advance) the amount requested has been paid or is then duly payable to
\n Contractors (whose names and addresses and a description of the work
\n involved shall be stated) and (y) a certificate of the architect or
\n engineer who prepared the related Plans and Specifications addressed to
\n the Depositary and Lessor (in form reasonably satisfactory to Lessor)
\n stating that the Restoration work has been fully completed in a good and
\n workmanlike manner and in accordance with the Plans and Specifications (as
\n approved by Lessor or as determined by the Appropriate Engineer to have
\n been required to be approved by Lessor pursuant to this Lease); and<\/p>\n
(ii) the Depositary and Lessor shall have received (x) an instrument
\n in writing from any title company insuring Lessor’s estate in the Leased
\n Premises certifying that there are no undischarged mechanics’,<\/p>\n
80<\/p>\n
77<\/p>\n
laborers’ or materialmen’s liens affecting any part of the Combined
\n Premises (other than liens, if any, in respect of which Lessor has
\n consented to take security pursuant to section 13(a)(ii)) and (y) evidence
\n reasonably satisfactory to Lessor that Lessee has obtained waivers of
\n mechanics’, laborers’ or materialmen’s liens or releases of such liens
\n from all Contractors engaged in the Restoration.<\/p>\n
(f) Subject to section 17(g), any balance of a Deposited Sum
\n(together with interest thereon) remaining with the Depositary upon the
\ncompletion of any Restoration on account of fire or other casualty or any
\nPartial Taking shall (in the case of fire or other casualty) be remitted to
\nLessee promptly upon its request or (in the case of a Partial Taking) be
\nreleased to Lessor for application in the manner provided in section 16.4.<\/p>\n
(g) Notwithstanding anything to the contrary contained in this
\nLease, upon any early termination of this Lease (including, without limitation,
\nany early termination pursuant to section 15.4(a)), the Depositary shall
\nforthwith remit to Lessor the balance of all Deposited Sums (together with
\naccrued interest thereon) held by the Depositary immediately prior to such
\ntermination.<\/p>\n
(h) Each Restoration Advance shall be made by the Depositary as soon
\nas reasonably practicable, but in no event later than the date which is 30 days
\nafter Lessee<\/p>\n
81<\/p>\n
78<\/p>\n
shall have satisfied all of the applicable conditions to such Advance specified
\nin this section 17.<\/p>\n
18. Certificate as to No Default, etc. Lessor and Lessee shall each
\ndeliver to the other within 20 days after request, an Officer’s Certificate
\nstating (i) that this Lease is unmodified and in full force and effect (or, if
\nthere have been modifications, that this Lease is in full force and effect, as
\nmodified, and stating the modifications), (ii) the dates to which the Basic Rent
\nhas been paid and that, to the best knowledge (after due inquiry) of the party
\ngiving such certificate, no Event of Default has occurred and is continuing
\nhereunder, or, if any Event of Default has occurred and is continuing specifying
\nthe nature and period of existence thereof, and (iii) that, to the best
\nknowledge (after due inquiry) of the party giving such certificate, the other
\nparty has fulfilled all of its obligations under this Lease or, if not, stating
\nin what respects such other party has failed to do so. Any Officer’s Certificate
\nmay be relied upon by any prospective purchaser or mortgagee of the Leased
\nPremises or any part thereof or interest therein or by any prospective assignee
\nor mortgagee of this Lease or any prospective subtenant.<\/p>\n
19. Right of Lessor to Perform Lessee’s Covenants, etc. If Lessee
\nshall fail to make any payment or perform any act required to be made or
\nperformed by it hereunder,<\/p>\n
82<\/p>\n
79<\/p>\n
Lessor may (but shall be under no obligation to) without waiving or releasing
\nany obligation or default:<\/p>\n
(a) in case of emergency, or reasonably foreseeable or actual
\n criminal liability,<\/p>\n
(b) if such failure is under section 11.1(a), 14.1(a), 14.2 or 14.4,
\n and if Lessor shall give notice to Lessee referring to this section 19(b)
\n and specifying such failure and requiring it to be remedied and Lessee
\n shall not remedy such failure within 7 days after Lessee’s receipt of such
\n notice,<\/p>\n
(c) if such failure is under section 14.3, and if Lessor shall give
\n notice to Lessee referring to this section 19(c) and specifying such
\n failure and requiring it to be remedied and Lessee shall not remedy such
\n failure within 4 days after Lessee’s receipt of such notice,<\/p>\n
(d) if such failure is under section 12, and if Lessor shall give
\n notice to Lessee referring to this section 19(d) and specifying such
\n failure and requiring it to be remedied and Lessee shall not remedy such
\n failure within 15 days after Lessee’s receipt of such notice; provided,
\n however, that in case such failure cannot with due diligence be remedied
\n by Lessee within a period of 15 days, if Lessee proceeds as promptly as
\n may be reasonably possible after the receipt of such notice and with all
\n due diligence to remedy such failure and<\/p>\n
83<\/p>\n
80<\/p>\n
thereafter to prosecute the remedying of such failure with all due
\n diligence, the period of time after the receipt of such notice by Lessee
\n within which to remedy such failure shall be extended for such period as
\n may be necessary to remedy the same with all due diligence,<\/p>\n
(e) if such failure is under section 13, or<\/p>\n
(f) if such failure is under a section of this Lease other than
\n sections 11.1(a), 12, 13 or 14, subject to the succeeding paragraph, if
\n Lessor shall give notice to Lessee referring to this section 19(f) and
\n specifying such failure and requiring it to be remedied and Lessee shall
\n not remedy such failure within 30 days after Lessee’s receipt of such
\n notice; provided, however, that in case such failure cannot with due
\n diligence be remedied by Lessee within a period of 30 days, if Lessee
\n proceeds as promptly as may be reasonably possible after the receipt of
\n such notice and with all due diligence to remedy such failure and
\n thereafter to prosecute the remedying of such failure with all due
\n diligence, the period of time after the receipt of such notice by Lessee
\n within which to remedy such failure shall be extended for such period as
\n may be necessary to remedy the same with all due diligence,<\/p>\n
make such payment or perform such act for the account and at the expense of
\nLessee, and may enter upon the Combined Premises or any part thereof for such
\npurpose and take all<\/p>\n
84<\/p>\n
81<\/p>\n
such action thereon as, in the opinion of Lessor, may be necessary or
\nappropriate therefor. All payments so made by Lessor and all costs and expenses
\n(including, without limitation, attorneys’ fees and expenses) incurred in
\nconnection therewith, together with interest thereon at the prime interest rate
\nof Morgan Guaranty Trust Company of New York from time to time announced to be
\nin effect, shall be paid by Lessee to Lessor within 10 days of Lessee’s receipt
\nof Lessor’s demand therefor referring to this section 19 and section 22(c)
\naccompanied by copies of all bills therefor.<\/p>\n
If within 15 days after the date on which Lessee receives notice from
\nLessor under clause (f) above, Lessee shall commence an arbitration seeking a
\ndetermination that the matter referred to in Lessor’s notice under clause (f)
\ndoes not constitute a failure to make a payment or perform an act required to be
\nmade or performed hereunder, then (i) Lessor may not make such payment or
\nperform such act for the account and at the expense of Lessee and may not enter
\nupon the Combined Premises or any part thereof for such purpose or take action
\nthereon prior to the date upon which the determination in arbitration is made
\n(the “determination date”) and (ii) if the action is determined in a manner
\nadverse to Lessee, the 30 day (or longer) period referred to in clause (f) above
\nshall be extended to the date 30 days after the determination date (or for such
\nlonger period commencing on the determination date as may reasonably be<\/p>\n
85<\/p>\n
82<\/p>\n
required in order to remedy the matters in question with all due diligence).<\/p>\n
20. Assignments; Subleases.<\/p>\n
20.1 Generally. (a) Lessee may sublet the Combined Premises or any
\npart thereof or assign, mortgage, pledge or encumber this Lease or any interest
\ntherein or any part thereof, without the consent of Lessor, provided that
\n(i) Lessee shall deliver to Lessor a fully executed counterpart of each such
\nsublease, assignment, mortgage or other relevant instrument and any modification
\nor amendment of any of the foregoing promptly after execution thereof and shall
\nnotify Lessor of any occupancy no later than the date on which such occupancy is
\nto be taken, (ii) no assignment, whether by operation of law, consolidation,
\nmerger or otherwise, shall be made unless within 15 days thereafter the assignee
\nshall execute and deliver to Lessor an instrument assuming all the obligations
\nof Lessee under this Lease thereafter accruing, (iii) no sublease, assignment,
\nmortgage or other transaction and no assumption, shall affect or reduce any of
\nthe obligations of Lessee (including the original Lessee and each such assignee)
\nhereunder but this Lease and all the obligations of Lessee (including the
\noriginal Lessee and each such assignee) hereunder shall continue in full force
\nand effect as the obligations of a principal and not the obligations of a
\nguarantor or surety and (iv) each sublease, assignment, mortgage or other<\/p>\n
86
\n 83<\/p>\n
instrument made by Lessee after the date hereof shall be subject and
\nsubordinate to this Lease and the terms and provisions hereof. Each sublease of
\nall or any part of the Combined Premises made by Lessee after the date hereof
\nshall provide that if Lessor shall terminate this Lease prior to the scheduled
\nexpiration date of such sublease then, upon Lessor’s request, the subtenant
\nthereunder (and anyone holding by, through or under such subtenant) shall
\nattorn to Lessor upon all of the terms, covenants and conditions of such
\nsublease. Lessee hereby assigns to Lessor all rents and other sums due to
\nLessee under any sublease of all or any part of the Combined Premises;
\nprovided however, that other than upon the occurrence of and during the
\ncontinuance of an Event of Default Lessee may freely modify or terminate all or
\nany of the subleases or otherwise deal with all or any of the subtenants, may
\npermit prepayments of rent and may retain all such rents (paid when due or
\nprepaid) and other sums free of any claim or lien of Lessor; provided, however,
\nthat with respect to any sublease with respect to which Lessor and the
\nsubtenant have executed a non-disturbance agreement (as hereinafter defined)
\nLessor shall be bound by prepayments of rent and modifications of such sublease
\nonly to the extent provided in such non-disturbance agreement. All amounts
\nreceived by Lessor pursuant to the preceding sentence shall be set-off against
\nLessee’s obligations hereunder.
\n 87<\/p>\n
84<\/p>\n
(b) The interest of Lessor in this Lease and\/or in and to the Leased
\nPremises may, at any time, be sold, conveyed, assigned or otherwise transferred,
\nor mortgaged, pledged or otherwise encumbered, without the consent of Lessee.
\nUpon any conveyance of the Leased Premises and the assumption by the new owner
\nof the Leased Premises of the obligations of Lessor hereunder thereafter
\naccruing, the conveyor shall be completely relieved of and from any and all
\nobligations of Lessor hereunder thereafter accruing, and Lessee shall thereupon
\nlook only to the new owner of the Leased Premises for the performance of any
\nobligations of Lessor hereunder thereafter accruing.<\/p>\n
20.2 Non-disturbance. With respect to any sublease of the Leased
\nPremises or any part thereof:<\/p>\n
(a) demising at least one full floor;<\/p>\n
(b) the term of which does not extend beyond the then current term
\n of this Lease (unless Lessee gives the appropriate exercise notice);<\/p>\n
(c) the rent and additional rent under which (after deducting
\n therefrom an amount corresponding to the Impositions payable hereunder
\n with respect to the premises demised thereby and an amount equal to the
\n expenses payable by Lessee to provide to the premises demised thereby the
\n services referred to in clause (f) below) shall be no less than the
\n portion of the Basic<\/p>\n
88<\/p>\n
85<\/p>\n
Rent payable hereunder applicable on a pro-rata basis to the premises
\n demised thereby;<\/p>\n
(d) which provides for occupancy of the premises demised thereby
\n only for purposes permitted by section 5 and specifically prohibiting use
\n by any government or governmental agency, personnel agency or school;<\/p>\n
(e) the subtenant under which is financially sound and capable of
\n performing its obligations thereunder;<\/p>\n
(f) which shall entitle the subtenant to services (HVAC, elevators,
\n cleaning, etc.) no more burdensome to provide than the services provided
\n under typical leases for comparable space in typical office buildings in
\n downtown New York City comparable in size and age to the Building as of
\n the date of such sublease; and<\/p>\n
(g) which provides that, after termination of this Lease and
\n attornment by the subtenant to Lessor, the subtenant shall not, without
\n the prior written consent of Lessor, sublease all or any part of the
\n premises demised thereby or assign the sublease, except in either case, to
\n a wholly-owned subsidiary of, or a corporation wholly owning, the
\n subtenant, or to a successor of the subtenant, by merger, sale of assets
\n or consolidation,<\/p>\n
Lessor shall, upon Lessee’s request, enter into with the subtenant thereunder an
\nagreement in substantially the form attached hereto as Schedule C (a
\n“non-disturbance<\/p>\n
89<\/p>\n
86<\/p>\n
agreement”). If, after Lessor has executed a non-disturbance agreement with
\nrespect to any sublease, Lessee and the subtenant thereunder propose to amend
\nsuch sublease, and if Lessor would, pursuant to the foregoing provisions of this
\nsection 20.2, be required to enter into a non-disturbance agreement with respect
\nto such sublease as so amended, Lessor shall, upon Lessee’s request, consent to
\nsuch amendment as contemplated by section 2 of the non-disturbance agreement.
\nAny dispute under this section 20.2 shall be resolved by arbitration; provided,
\nhowever, that the form of the non-disturbance agreement shall not be subject to
\narbitration. If the result of such arbitration shall be adverse to Lessor,
\nLessor shall not be liable for damages but Lessor shall then execute a
\nnon-disturbance agreement or a consent to amendment. If Lessee shall make any
\nrequest under this section 20.2, it shall reimburse Lessor the reasonable
\nout-of-pocket expenses (including attorneys’ fees and disbursements, credit
\ninvestigation fees and the fees and disbursements of other professionals)
\nincurred by Lessor in order to determine if the sublease or the sublease as
\namended complies with clauses (a) through (g) above.<\/p>\n
20.3 Leasehold Mortgages. If Lessee shall grant a Qualified
\nMortgage, then from and after the date on which an executed copy of such
\nQualified Mortgage is furnished to
\n 90
\n 87<\/p>\n
Lessor so long as such Qualified Mortgage shall remain unsatisfied of record the
\nfollowing provisions shall apply:<\/p>\n
(a) if Lessor shall become entitled to serve a Termination Notice (as
\ndefined in section 22) Lessor shall, before serving such Termination Notice, use
\nits best efforts to give to the holder of any Qualified Mortgage a notice (the
\n“Mortgagee Notice”) that an Event of Default specified therein remains
\nunremedied and that Lessor is entitled to serve a Termination Notice, and the
\nholder of such Qualified Mortgage shall have the right to remedy any Event of
\nDefault under clause (a), (b) or (c) of section 22 within a period of 10 days
\nafter its receipt of the Mortgagee Notice and any other Event of Default within
\na period of 30 days after its receipt of the Mortgagee Notice.<\/p>\n
(b) In case of the occurrence of an Event of Default (other than an Event
\nof Default specified in clause (a), (b) or (c) of section 22 or an Event of
\nDefault specified in clause (d) of section 22 arising from the failure by Lessee
\nto perform its obligations under section 11.1(a)) if, within 30 days after its
\nreceipt of the Mortgagee Notice, such holder shall:<\/p>\n
(i) notify Lessor of its election to proceed with due diligence
\n promptly to acquire possession of the Combined Premises or to foreclose the
\n Qualified Mortgage or otherwise to extinguish Lessee’s interest in this
\n Lease; and
\n 91
\n 88<\/p>\n
(ii) deliver to Lessor an instrument (the “Payment and Performance
\n Agreement”) in writing duly executed and acknowledged wherein such holder
\n agrees that:<\/p>\n
(x) during the period that such holder or its designee or a
\n receiver of rents and profits appointed upon application of such
\n holder shall be in possession of the Combined Premises or any part
\n thereof, or during the pendency of any such foreclosure or other
\n proceedings and until the interest of Lessee in this Lease shall
\n terminate, as the case may be, such holder shall pay or cause to be
\n paid to date and thereafter on a current basis to Lessor the Basic
\n Rent and all other sums from time to time becoming due to Lessor
\n under this Lease; and<\/p>\n
(y) if delivery of possession of the Combined Premises or any
\n part thereof shall be made to such holder or its designee or such
\n receiver, whether voluntarily or pursuant to any foreclosure or
\n other proceedings or otherwise, such holder shall, promptly
\n following such delivery of possession, perform or cause such
\n designee to perform, as the case may be, such of the covenants and
\n agreements herein contained on Lessee’s part to be performed as
\n Lessee shall have failed to perform to the date of delivery of
\n possession to the extent that under<\/p>\n
92
\n 89<\/p>\n
the laws of New York State amounts expended in performance of such
\n covenants and agreements can be added to the debt and be secured by
\n the Qualified Mortgage, and to perform or cause to be performed all
\n other covenants and agreements Lessee shall have failed to perform
\n promptly after extinguishment of Lessee’s interest in this Lease;<\/p>\n
then (provided that no default shall have occurred and be continuing under
\n the Payment and Performance Agreement) Lessor shall postpone the service
\n of the Termination Notice for such period or periods of time as may be
\n necessary for such holder, with the exercise of due diligence, to
\n extinguish Lessee’s interest in this Lease and to perform or cause to be
\n performed all of the covenants and agreements to be performed by Lessee
\n hereunder. Nothing contained herein shall be deemed to require the holder
\n of a Qualified Mortgage to continue with any foreclosure or other
\n proceedings or, in the event such holder or receiver shall acquire
\n possession of the Combined Premises, to continue such possession, if the
\n Event of Default in respect of which Lessor shall have given a Mortgagee
\n Notice shall be remedied. If prior to any sale pursuant to any proceeding
\n brought to foreclose any Qualified Mortgage, or if prior to the date on
\n which Lessee’s interest in this Lease shall otherwise be extinguished, the
\n Event of Default in
\n 93
\n 90<\/p>\n
respect of which Lessor shall have given a Mortgagee Notice shall have
\n been remedied and possession of the Combined Premises shall have been
\n restored to Lessee, then the obligations of the holder of the Qualified
\n Mortgage pursuant to the Payment and Performance Agreement shall thereupon
\n be null and void and of no further effect. Nothing contained herein shall
\n affect the right of Lessor, upon the subsequent occurrence of any Event of
\n Default, to exercise any right, power or remedy reserved herein to Lessor.<\/p>\n
(c) In the event of the termination of this Lease, prior to the
\nexpiration of the term, whether by summary proceedings to dispossess, service of
\nnotice to terminate, or otherwise due to the occurrence of an Event of Default,
\nLessor shall use its best efforts to serve upon the holder of such Qualified
\nMortgage notice that this Lease has been terminated together with a statement of
\nany and all sums which would at that time be due under this Lease but for such
\ntermination, and of all other Events of Default, if any, then known to Lessor.
\nSuch holder shall thereupon have the option to obtain a new lease in accordance
\nwith and upon the following terms and conditions:<\/p>\n
Upon the written request of the holder of such Qualified Mortgage,
\n within thirty days after service of such notice that this Lease has been
\n terminated, Lessor shall enter into a new lease of the Leased Premises
\n with such holder or with its designee (the “Holder Designee”), as follows:<\/p>\n
94
\n 91<\/p>\n
Such new lease shall be effective as of the date of termination of
\n this Lease, and shall be for the remainder of the term of this Lease and
\n at the rent and upon all the agreements, terms, provisions, covenants and
\n conditions hereof, including any applicable rights of extension;
\n provided, however, that if such new lease is with the Holder’s Designee,
\n the holder of the related Qualified Mortgage shall guarantee the
\n obligations of the Holder’s Designee under such new lease pursuant to an
\n instrument reasonably satisfactory to Lessor. Such new lease shall require
\n the tenant thereunder to perform any unfulfilled obligation of Lessee
\n under this Lease which is reasonably susceptible of being performed by
\n such tenant. Upon the execution of such new lease, the tenant thereunder
\n shall pay any and all sums which would at the time of the execution
\n thereof be due under this Lease but for such termination, and shall pay
\n all expenses, including reasonable counsel fees, court costs and
\n disbursements incurred by Lessor in connection with such termination and
\n the preparation, execution and delivery of such new lease. Upon the
\n execution of such new lease, Lessor shall allow to the tenant thereunder
\n and such tenant shall be entitled to an adjustment in an amount equal to
\n the net income derived by Lessor from the Leased Premises during the
\n period from the date of termination of this Lease to the date of execution
\n of such new lease.<\/p>\n
Effective upon the commencement of the term of any new lease Lessor’s
\n interest, if any, in all subleases shall be assigned and transferred
\n without recourse by Lessor to the tenant thereunder, and all moneys on
\n deposit with the Depositary under section 17 or on deposit under section
\n 11.3 which Lessee would have been entitled to use but for the termination
\n or expiration of this Lease may be used by the tenant thereunder for the
\n purposes of and in accordance with the provisions of such new lease.<\/p>\n
Nothing herein contained shall be deemed to obligate Lessor to
\n deliver possession of the Combined Premises or any part thereof to the
\n tenant under any new lease. <\/p>\n
(d) All Mortgagee Notices or other communication which Lessor shall
\ndesire or be required to use its best efforts to serve upon the holder of a
\nQualified Mortgage shall be in writing and be served by registered or<\/p>\n
95
\n 92<\/p>\n
certified mail, return receipt requested, addressed to such holder at his
\naddress as set forth in such Qualified Mortgage, or at such other address as
\nshall last have been designated by such holder by notice in writing given to
\nLessor by registered or certified mail, return receipt requested.<\/p>\n
Any notice or other communication which the holder of a Qualified
\nMortgage shall desire or is required to give to or serve upon Lessor shall be
\ndeemed to have been duly given or served if sent by registered or certified
\nmail, return receipt requested, addressed to Lessor at Lessor’s addresses as set
\nforth in section 33 or at such other addresses as shall be designated by Lessor
\nby notice given to such holder by registered or certified mail, return receipt
\nrequested.<\/p>\n
(e) Lessee irrevocably directs that Lessor accept, and Lessor shall
\naccept, performance and compliance by the holder of any Qualified Mortgagee of
\nand with any term, covenant, agreement, provision, condition or limitation on
\nLessee’s part to be kept, observed or performed hereunder with the same force
\nand effect as though kept, observed or performed by Lessee.<\/p>\n
(f) Lessor and Lessee shall not enter into any agreement modifying,
\ncancelling or surrendering this Lease without the prior consent of the holder of
\na Qualified Mortgage.<\/p>\n
96
\n 93<\/p>\n
21. Vaults. Lessor shall have no responsibility for title to or any
\nother aspect of vaults and areas, if any, now or hereafter built extending
\nbeyond the boundary line of the Land. Lessee may occupy and use the same during
\nthe term of this Lease, subject to this Lease and such laws, permits, orders,
\nrules and regulations as may be imposed by appropriate governmental authorities
\nwith respect thereto. No revocation on the part of any governmental department
\nor authority of any license or permit to maintain and use any such vault and
\nareas shall in any way affect this Lease or the amount of the rent or any other
\ncharge payable by Lessee hereunder. Lessee shall comply with all such licenses
\nand permits, and if any such license or permit shall be revoked, Lessee shall do
\nand perform all such work as may be necessary to comply with any order revoking
\nthe same.<\/p>\n
22. Events of Default; Termination. Each of the following shall
\nconstitute an Event of Default:<\/p>\n
(a) if Lessee shall fail to pay any Basic Rent when and as the same
\nbecomes due and payable and such failure continues for a period of ten days
\nafter notice from Lessor of such failure referring to this section 22(a),
\nspecifying such failure and requiring it to be remedied is received by Lessee;
\nor<\/p>\n
(b) if, in any period of 12 consecutive months, (i) in two separate
\ninstances, Lessee shall fail to pay any Basic Rent when and as the same becomes
\ndue and payable and<\/p>\n
97
\n 94<\/p>\n
Lessee shall receive notice of such failure under section 22(a) and (ii) in a
\nthird or later instance, Lessee shall fail to pay any Basic Rent coming due when
\nand as the same becomes due and payable; or<\/p>\n
(c) if Lessee shall fail to pay any amount under section 19 when
\ndue; or<\/p>\n
(d) if Lessee shall fail to perform or comply with any term of
\nsection 11.1(a), 13 or 14 and such failure continues for a period of 15 days
\nafter notice from Lessor of such failure referring to this section 22(d),
\nspecifying such failure and requiring it to be remedied is received by Lessee;
\nor<\/p>\n
(e) if Lessee shall fail to perform or comply with any term of
\nsection 12 and such failure shall continue for a period of 30 days after notice
\nfrom Lessor of such failure referring to this section 22(e), specifying such
\nfailure and requiring it to be remedied is received by Lessee; provided,
\nhowever, that, in case such failure cannot with due diligence be remedied by
\nLessee within a period of 30 days, if Lessee proceeds as promptly as may be
\nreasonably possible after the receipt of such notice and with all due diligence
\nto remedy such failure and thereafter to prosecute the remedying of such failure
\nwith all due diligence, the period of time after the receipt of such notice by
\nLessee within which to remedy such failure shall be extended for such period as
\nmay be necessary to remedy the same with all due diligence;<\/p>\n
98
\n 95<\/p>\n
(f) if Lessee shall fail to perform or comply with any term of this Lease
\n(other than any failure referred to in a previous subdivision of this section
\n22), and such failure shall continue for more than 30 days after notice from
\nLessor of such failure referring to this section 22(f), specifying such failure
\nand requiring it to be remedied is received by Lessee; provided, however, that
\nin case such failure cannot with due diligence be remedied by Lessee within a
\nperiod of 30 days, if Lessee proceeds as promptly as may be reasonably possible
\nafter the receipt of such notice and with all due diligence to remedy such
\nfailure and thereafter to prosecute the remedying of such failure with all due
\ndiligence, the period of time after the receipt of such notice by Lessee within
\nwhich to remedy such failure shall be extended for such period as may be
\nnecessary to remedy the same with all due diligence; provided further, that if
\nLessee within 15 days after the receipt of such notice of default shall dispute
\nthe existence of such failure the matter shall be determined by arbitration and
\nif it shall be determined that such failure exists, the time within which Lessee
\nshall have to remedy the same shall be computed from the date of such
\ndetermination;<\/p>\n
(g) if Lessee shall fail to perform any covenants contained in Section
\n10.8 of the Contract and such failure continues for a period of 15 days after
\nnotice of such failure referring to this section 22(g), specifying such
\n 99
\n 96<\/p>\n
failure and requiring it to be remedied is received by Lessee; provided,
\nhowever, that in case such failure cannot with due diligence be remedied by
\nLessee within a period of 15 days, if Lessee proceeds as promptly as may be
\nreasonably possible after the receipt of such notice and with all due diligence
\nto remedy such failure and thereafter to prosecute the remedying of such failure
\nwith all due diligence, the period of time after the receipt of such notice by
\nLessee within which to remedy such failure shall be extended for such period as
\nmay be necessary to remedy the same with all due diligence; provided further,
\nthat if Lessee within 7 days after the receipt of such notice of default shall
\ndispute the existence of such failure the matter shall be determined by
\narbitration and if it shall be determined that such failure exists, the time
\nwithin which Lessee shall have to remedy the same shall be computed from the
\ndate of such determination; or<\/p>\n
(h) if Lessee shall admit in writing its inability to pay its debts
\nas they fall due, or shall make a general assignment for the benefit of
\ncreditors, or shall file a petition in bankruptcy, or shall be adjudicated a
\nbankrupt or insolvent, or shall file a petition seeking any reorganization,
\narrangement, composition, readjustment, liquidation, dissolution or similar
\nrelief under any present or future statute, law or regulation, or shall file an
\nanswer admitting or not contesting the material allegations<\/p>\n
100
\n 97<\/p>\n
of a petition filed against it in any such proceeding, or shall seek or consent
\nto or acquiesce in the appointment of any trustee, custodian, receiver or
\nliquidator of Lessee or any material part of its properties; or<\/p>\n
(i) if, within 90 days after the commencement of any proceeding against
\nLessee seeking any reorganization, arrangement, composition, readjustment,
\nliquidation, dissolution or similar relief under any present or future statute,
\nlaw or regulation, such proceeding shall not have been dismissed or stayed (or
\nif within 90 days after the expiration of any such stay such proceeding shall
\nnot have been dismissed), or if, within 90 days after the appointment without
\nthe consent or acquiescence of Lessee of any trustee, custodian, receiver or
\nliquidator of Lessee or of any material part of its properties, such appointment
\nshall not have been vacated or stayed (or if within 90 days after the expiration
\nof any such stay such appointment shall not have been vacated).<\/p>\n
Lessor may at any time during the continuance of an Event of Default,
\ngive a termination notice (a “Termination Notice”) to Lessee specifying a date,
\nnot less than five days after the date of such notice, on which specified date
\nthis Lease shall terminate, and on such date, subject to section 25 relating to
\nthe survival of Lessee’s obligations, the term of this Lease shall expire and
\nterminate by limitation and all rights of Lessee under this Lease shall
\n 101
\n 98<\/p>\n
cease, unless before such date (i} all arrears of Basic Rent and all other sums
\npayable by Lessee under this Lease, and all costs and expenses (including,
\nwithout limitation, attorneys’ fees and expenses) incurred by or on behalf of
\nLessor shall have been paid by Lessee, and (ii) all other Events of Default at
\nthe time existing under this Lease shall have been fully remedied. All costs and
\nexpenses incurred by or on behalf of Lessor (including, without limitation,
\nattorneys’ fees and expenses) occasioned by any Event of Default by Lessee under
\nthis Lease shall be payable by Lessee upon demand by Lessor (together with
\ninterest thereon at a rate per annum equal to the prime rate of Morgan Guaranty
\nTrust Company of New York announced to be in effect from time to time, plus 2%).
\nAs used in this section 22, the term “Lessee” shall mean only the person then
\nowning the Lessee’s interest hereunder, not such person’s immediate or remote
\nassignors.<\/p>\n
23. Repossession. If an Event of Default shall have occurred and be
\ncontinuing, Lessor, after termination of this Lease pursuant to section 22, may
\nenter upon and repossess the Combined. Premises or any part thereof by summary
\nproceedings or other legal proceedings and may remove Lessee and all other
\npersons and any and all property therefrom. Lessor shall be under no liability
\nfor or by reason of such entry, repossession or removal.<\/p>\n
102
\n 99<\/p>\n
24. Reletting. At any time or from time to time before or after the
\nrepossession of the Combined Premises or any part thereof pursuant to section
\n23, Lessor may relet the Combined Premises or any part thereof for the account
\nof Lessee, in the name of Lessee or Lessor or otherwise, without notice to
\nLessee, for such term or terms (which may be greater or less than the period
\nwhich would otherwise have constituted the balance of the term of this Lease)
\nand on such conditions (which may include concessions or free rent) and for such
\nuses as Lessor, in its uncontrolled discretion may determine, and may collect
\nand receive the rents therefor. Lessor shall not be responsible or liable for
\nany failure to relet the Combined Premises or any part thereof or for any
\nfailure to collect any rent due upon any such reletting.<\/p>\n
25. Survival of Lessee’s Obligations; Damages.<\/p>\n
25.1 Termination of Lease Not to Relieve Lessee of Obligations. No
\nexpiration or termination of the term of this Lease pursuant to section 22 or
\notherwise (other than under section 15 or 16), and no repossession of the
\nCombined Premises or any part thereof pursuant to section 23 or otherwise, shall
\nrelieve Lessee of its liabilities and obligations hereunder, all of which shall
\nsurvive such expiration, termination or repossession.<\/p>\n
25.2 Current Damages. In the event of any such expiration,
\ntermination or repossession pursuant to<\/p>\n
103
\n 100<\/p>\n
section 22 or 23, Lessee shall pay to Lessor the Basic Rent and all other sums
\nrequired to be paid by Lessee pursuant to this Lease up to the time of such
\nexpiration, termination or repossession, and thereafter Lessee, until the end
\nof what would have been the term of this Lease in the absence of such
\nexpiration, termination or repossession (excluding all unexercised options to
\nextend), and whether or not the Combined Premises or any part thereof shall
\nhave been relet, shall be liable to Lessor for, and shall pay to Lessor, as
\nliquidated and agreed current damages for Lessee’s default, (a) the Basic Rent
\nand all other sums which would be payable under this Lease by Lessee in the
\nabsence of such expiration, termination or repossession, plus (b) all
\nreasonable expenses of Lessor in connection with such expiration, termination
\nand repossession and any reletting effected for the account of Lessee pursuant
\nto section 24 (including, without limitation, all repossession costs, brokerage
\ncommissions, legal expenses, attorneys’ fees, employees’ expenses, alteration
\ncosts and expenses of preparing for such reletting) less (c) the proceeds, if
\nany, of such reletting. Lessee shall pay such current damages monthly on the
\ndays on which the Basic Rent would have been payable under this Lease in the
\nabsence of such expiration, termination or repossession, and Lessor shall be
\nentitled to recover the same from Lessee on each such day.<\/p>\n
104
\n 101<\/p>\n
25.3 Final Damages. At any time after any such expiration, termination or
\nrepossession, whether or not Lessor shall have collected any current damages as
\naforesaid, Lessor at its option shall be entitled to recover from Lessee and
\nLessee shall pay to Lessor on demand, as and for liquidated and agreed final
\ndamages for Lessee’s default and in lieu of all current damages beyond the date
\nof such demand, an amount equal to the excess, if any, of (a) the then present
\nvalue of the Basic Rent and all other sums (computed on the basis of such other
\nsums paid in the calendar year immediately preceding the date of such
\nexpiration, termination or repossession) which would be payable under this
\nLease from the date of such demand (or, if it be earlier, the date to which
\nLessee shall have satisfied in full its obligations under section 25.2 to pay
\ncurrent damages), for what would be the then unexpired term of this Lease in
\nthe absence of such expiration, termination or repossession (excluding all
\nunexercised options to extend), over (b) the then present value of the then
\nfair net rental value of the Leased Premises for the same period (as determined
\nby Lessor, or if Lessee shall object to such determination within 10 business
\ndays after notice thereof is received by Lessee, as determined by arbitration
\nin the manner provided in section 2.2). Present value shall be determined by
\ndiscounting future amounts at the prime interest rate of Morgan Guaranty Trust
\nCompany of New York<\/p>\n
105
\n 102<\/p>\n
announced and in effect on the date of termination of this Lease. If any statute
\nor rule of law shall limit the amount of such liquidated final damages to less
\nthan the amount above agreed upon, Lessor shall be entitled to the maximum
\namount allowable under such statute or rule of law, but not in excess of the
\namount provided by this section 25.3.<\/p>\n
26. No Waiver. No failure by Lessor or Lessee to insist upon the
\nstrict performance of any term hereof or to exercise any right, power or remedy
\nconsequent upon a breach thereof, and no payment or acceptance of full or
\npartial rent during the continuance of any such breach, shall constitute a
\nwaiver of any such breach or of any such term. No waiver of any breach shall
\naffect or alter this Lease, which shall continue in full force and effect, or
\nthe rights of Lessor or Lessee with respect to any other then existing or
\nsubsequent breach.<\/p>\n
27. Remedies Cumulative. Each right, power and remedy of Lessor or
\nLessee provided for in this Lease or now or hereafter existing at law or in
\nequity or by statute or otherwise shall be cumulative and concurrent and shall
\nbe in addition to every other right, power or remedy provided for in this Lease
\nor now or hereafter existing at law or in equity or by statute or otherwise, and
\nthe exercise by Lessor or Lessee of any one or more of the rights, powers or
\nremedies provided for in this Lease or now or hereafter existing at law or in
\nequity or by statute or otherwise<\/p>\n
106
\n 103<\/p>\n
shall not preclude the simultaneous or later exercise by Lessor or Lessee of any
\nor all such other rights, powers or remedies. All sums payable by Lessee to
\nLessor hereunder (other than the Basic Rent) shall be deemed additional rent and
\nLessor shall have all of the same rights, powers and remedies in the case of the
\nfailure by Lessee to pay any such sum when due as Lessor would have in the case
\nof the failure by Lessee to pay Basic Rent when due (provided that the notice
\nperiods in sections 22(a) and (b) shall not be applicable thereto).<\/p>\n
28. Acceptance of Early Termination or Surrender. No early termination
\nof this Lease or surrender to Lessor of this Lease, and no surrender of the
\nLeased Premises or any part thereof or of any interest therein, shall be valid
\nor effective unless agreed to and accepted in writing by Lessor, and no act by
\nLessor, other than such a written agreement and acceptance by Lessor, shall
\nconstitute an agreement thereto or acceptance thereof.<\/p>\n
29. No Merger of Title. There shall be no merger of this Lease nor of
\nthe leasehold estate created by this Lease with the fee estate or any other
\nleasehold estate in the Leased Premises or any part thereof by reason of the
\nfact that the same person, firm, corporation or other entity may acquire or own
\nor hold, directly or indirectly, (a) this Lease or the leasehold estate created
\nby this Lease or any interest in this Lease or in any such leasehold estate,
\nand <\/p>\n
107
\n 104<\/p>\n
(b) the fee estate or any other leasehold estate in the Leased Premises or any
\npart thereof or any interest in such fee estate or leasehold estate, and no such
\nmerger shall occur unless and until all persons, firms, corporations and other
\nentities having an interest in or lien upon (i) this Lease or the leasehold
\nestate created by this Lease and (ii) the fee estate or any other leasehold
\nestate in the Leased Premises or any part thereof shall join in a written
\ninstrument effecting such merger and shall duly record the same.<\/p>\n
30. Exculpation. (a) Except as provided below, no general or limited
\npartner of Goldman, Sachs & Co., a New York limited partnership (“GS&Co.”), or
\nof any assignee which is a successor to substantially all the assets and
\nbusiness of GS&Co. (a “successor-assignee”) shall have any personal liability
\nunder this Lease and any judgment taken or rendered against GS&Co. or any
\nsuccessor-assignee hereunder or related hereto shall be enforceable only against
\nthe property of GS&Co. or such successor-assignee; provided, however, that<\/p>\n
(i) if at any time GS&Co. or a successor-assignee (x) shall dissolve
\n (other than pursuant to, or as a result of, insolvency proceedings) and
\n (y) shall distribute its assets without adequately providing for any and
\n all of its obligations and liabilities under this Lease, then all persons
\n who were general partners<\/p>\n
108
\n 105<\/p>\n
of GS&Co. or of such successor-assignee immediately prior to the
\n dissolution shall be personally and jointly and severally liable to GS&Co.
\n or such successor-assignee for the benefit of Lessor to extent of any
\n loss, cost, damage or injury which Lessor may suffer as a result of the
\n failure to make adequate provision for such obligations and liabilities;
\n and<\/p>\n
(ii) this section 30(a) shall not relieve any general or limited
\n partner of GS&Co. or of a successor-assignee from any obligation to
\n restore to GS&Co. or such successor-assignee any distributions of cash,
\n property or other assets by GS&Co. or such successor-assignee made to such
\n partner which (x) were made at any time when the distributor was insolvent
\n or (y) resulted in the distributor’s becoming insolvent. For purposes of
\n this Lease, GS&Co. or a successor-assignee shall be “insolvent” if (a) it
\n is generally unable to pay its debts and other liabilities as they become
\n due or (b) the sum of its debts is greater than all of its property at a
\n fair valuation (taking into account this Lease and the liabilities of the
\n lessee hereunder).<\/p>\n
This section 30(a) is for the sole benefit of GS&Co. and each
\nsuccessor-assignee. Any other party acquiring the leasehold estate created by
\nthis Lease shall have full personal liability hereunder.<\/p>\n
109
\n 106<\/p>\n
(b) Any judgment taken or rendered against Lessor hereunder or
\nrelated hereto shall be enforceable only against the interest of Lessor in the
\nCombined Premises or, in the event of a sale, financing or other disposition by
\nLessor of the Combined Premises or any part thereof, against cash, property or
\nother assets of Lessor equal in amount to the proceeds of such sale, financing
\nor other disposition; provided, however, if the foregoing is insufficient to
\nsatisfy such judgment, Lessor shall have personal liability for the unsatisfied
\nportion of such judgment to the extent (but only to the extent) that such
\nunsatisfied portion equals or is less than the sum of (i) the aggregate amount
\n(as of the date Lessee enforces any judgment against Lessor’s fee estate) of any
\nmortgages covering Lessor’s fee estate in the Leased Premises and (ii) the
\naggregate amount of all other liens (as of the date Lessee enforces any judgment
\nagainst Lessor’s fee estate) which Lessor has caused or suffered to be placed
\nagainst the Leased Premises or any part thereof, except liens which Lessee is
\nobligated hereunder to remove or cause to be removed.<\/p>\n
31. Definitions. As used in this Lease, the following terms have the
\nfollowing respective meanings:<\/p>\n
Basic Rent: as defined in section 2.<\/p>\n
business day: any weekday on which the New York Stock Exchange, or
\nits successor, is open for business.<\/p>\n
110
\n 107<\/p>\n
Combined Premises: the Leased Premises and the Initial Tenant
\nImprovements.<\/p>\n
Costs: with respect to any construction, improvements, alteration,
\nrestoration, replacement, repairs, or rebuilding (“work”) shall include the
\ncosts charged by contractors, subcontractors and materialmen for all labor,
\nmaterials, machinery and equipment purchased, leased or used in connection with
\nsuch work, fees and compensation payable to contractors and subcontractors in
\nconnection with such work, governmental fees and charges assessed or incurred in
\nconnection with such work, fees and expenses of architects and engineers,
\nwhether retained by Lessor or Lessee, for estimates, surveys, preliminary
\ninvestigations, plans, drawings, specifications and supervision related to such
\nwork, and the reasonable out-of-pocket expenses of Lessee’s administration,
\nsupervision and inspection of such work.<\/p>\n
Deductible Amount: with respect to any insurance policy issued in
\nany month, the product of $500,000 multiplied by the fraction whose numerator is
\nthe Index for the third month preceding the month in which such policy is issued
\nand whose denominator is the Index for February 1985.<\/p>\n
Event of Default: as defined in section 22.<\/p>\n
Existing Leases: as set forth in Schedule B.<\/p>\n
Index: for any month the “Consumer Price Index” for such month of
\nall items, U.S. City Average, for all urban consumers, not seasonally adjusted,
\npublished by the<\/p>\n
111
\n 108<\/p>\n
Bureau of Labor Statistics of the U.S. Department of Labor or a successor or
\nsubstitute index appropriately adjusted. In the event that the Index ceases to
\nuse 1967 = 100 as the basis of calculation, or if a substantial change is made
\nin the terms or number of items contained in the Index, then the Index shall be
\nadjusted to the figure that would have been arrived at had the manner of
\ncomputing the Index in effect at the date of this Lease not been altered. In the
\nevent such Index (or a successor or substitute index) is not available, a
\nreliable governmental or other impartial publication evaluating the information
\ntheretofore used in determining the Index shall be used. No adjustments or
\nrecomputations, retroactive or otherwise, shall be made because of any revision
\nwhich may later be made in the first published figure of the Index for any
\nmonth.<\/p>\n
Initial Tenant Improvements: those items of property ownership of
\nwhich Lessee has retained and not conveyed to Lessor by the deed from Lessee to
\nLessor of even date herewith. A copy of said deed is attached hereto as Schedule
\nE.<\/p>\n
Insurance Requirements: all terms of or incorporated by reference
\ninto any insurance policy (including the requirements of the Board of Fire
\nUnderwriters and the Fire Insurance Rating Organization) covering or applicable
\nto the Combined Premises or any part thereof.<\/p>\n
112
\n 109<\/p>\n
Leased Premises: as defined in section 1.<\/p>\n
Legal Requirements: all laws, statutes, codes, acts, ordinances,
\norders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
\nauthorizations, directions, health, safety, environmental and other requirements
\nof all governmental departments, commissions, boards, courts, authorities and
\nagencies, foreseen or unforeseen, ordinary or extraordinary, which now or at any
\ntime hereafter may be applicable to the Combined Premises or any part thereof or
\ninterest therein.<\/p>\n
Lessee: Goldman, Sachs & Co., a New York limited partnership, or any
\nsuccessor or assign hereunder.<\/p>\n
Lessee’s Equipment: all furniture, furnishings, office equipment,
\ncomputers, telex, telephone and telecommunications equipment, cooking and dining
\nequipment, and other items of personal property (whether or not attached to the
\nCombined Premises) used or useful in the conduct of Lessee’s business on the
\nCombined Premises as distinguished from the operation of the Combined Premises.<\/p>\n
Lessor: Metropolitan Life Insurance Company, a New York corporation,
\nor any successor or assign hereunder.<\/p>\n
Major Building Equipment: the items of equipment listed on Schedule
\nD and all replacements thereof.<\/p>\n
Officer’s Certificate: a certificate signed by a party or a general
\npartner or corporate officer of a party.<\/p>\n
Original Term: as defined in section 1.<\/p>\n
113
\n 110<\/p>\n
Permitted Encumbrances: as set forth in Schedule B.<\/p>\n
Permitted Investment: (i) direct obligations of the United States of
\nAmerica, or obligations for which the full faith and credit of the United States
\nof America is pledged, and obligations of any agency or instrumentality of the
\nUnited States of America, (ii) obligations of any State of the United States of
\nAmerican or Canada or any Province of Canada or any political subdivision or
\nagency or instrumentality of any thereof rated in the third highest grade or
\nbetter by two or more of Standard and Poor’s Corporation, Moody’s Investors
\nService Inc. or Fitch Investors Service (or their successors), (iii) any
\ncommercial paper issued by a corporation organized under the laws of the United
\nStates of America or any State thereof or of Canada or any Province thereof or
\nby any foreign bank having a branch or agency in the United States of America
\nand rated in the second highest grade or better by two or more of Standard & Poor’s Corporation, Moody’s Investors Service Inc. or Fitch Investors Service
\n(or their successors) and having a maturity not in excess of nine months, (iv)
\ncertificates of deposit of, or drafts or bills of exchange accepted generally
\nby, any bank or trust company or any savings and loan association incorporated
\nunder the laws of the United States of America or any State thereof or Canada or
\nany Province thereof or by any foreign bank having<\/p>\n
114
\n 111<\/p>\n
a branch or agency in the United States of America and, in each case, which has
\ncapital and surplus aggregating at least $200,000,000 as of the date of its most
\nrecent report of condition and (v) such other securities or investments as
\nLessor shall from time to time consent to; provided, however, that in no event
\nshall either of the following be “Permitted Investments”: (a) any security of,
\nor investment in, any person or entity in which Lessee and\/or any affiliate of
\nLessee have (either directly or indirectly) a 5% or greater equity interest or
\n(b) a security or investment of any kind whose stated maturity is longer than 3
\nyears.<\/p>\n
Plans and Specifications: plans and specifications prepared by a
\nreputable and licensed architect or engineer regularly involved in first-class
\noffice buildings in the Borough of Manhattan in work of the nature described in
\nsuch Plans and Specifications.<\/p>\n
Qualified Mortgage: a first mortgage on the leasehold estate created
\nhereby,<\/p>\n
(a) which is held by a commercial bank or trust company or insurance
\n company organized under the laws of the United States or one of the states
\n thereof (other than any such bank or company in which Lessee and\/or any
\n affiliate of Lessee have, either directly or indirectly, a 5% or greater
\n equity interest) having assets (as shown on its audited statement of
\n condition most recently<\/p>\n
115
\n 112<\/p>\n
released prior to the date on which such holder acquires such mortgage) of
\n at least $1 billion;<\/p>\n
(b) the principal amount of the indebtedness secured by which (not
\n including interest and amounts incurred or advanced by the holder for
\n taxes, insurance, repairs and protection of the leasehold estate) does not
\n exceed the Qualified Mortgage Amount; and<\/p>\n
(c) the principal of the indebtedness secured by which was advanced
\n to Lessee under an agreement requiring Lessee to use substantially all of
\n the funds advanced for improvements to the Combined Premises.<\/p>\n
Qualified Mortgage Amount: with respect to a mortgage on the
\nleasehold estate created hereby the product of $25 million multiplied by the
\nfraction whose numerator is the Index for the third month preceding the month in
\nwhich such mortgage becomes a lien on the leasehold estate created hereby and
\nwhose denominator is the Index for February, 1985.<\/p>\n
Restoration; Restore: as defined in section 15.<\/p>\n
Significant Proceeds Amount: with respect to any damage or
\ndestruction or Taking, the product of $5 million multiplied by the fraction
\nwhose numerator is the Index for the third month preceding the month in which
\nsuch damage or destruction or Taking occurs and whose denominator is the Index
\nfor February, 1985.<\/p>\n
Special Alteration: as defined in section 6(h).<\/p>\n
116
\n 113<\/p>\n
Taking: a taking during the term hereof of all or any part of the
\nCombined Premises, or any interest therein or right accruing thereto, including,
\nwithout limitation, any right of access thereto, as the result of or in lieu of
\nor in anticipation of the exercise of the right of condemnation or eminent
\ndomain, or a change of grade affecting the Leased Premises or any part thereof.<\/p>\n
Total Taking: as defined in section 16.<\/p>\n
The words “enter”, “re-enter”, “entry” and “re-entry” as used in
\nthis lease are not restricted to their technical legal meaning.<\/p>\n
32. End of Lease Term. Upon the expiration or earlier termination of
\nthis Lease, Lessee shall quit and surrender to Lessor the Leased Premises free
\nand clear of all tenancies and occupancies other than those with respect to
\nwhich Lessor has executed a non-disturbance agreement and in good order and
\ncondition, ordinary wear and tear and damage which Lessee is not required
\nhereunder to repair excepted.<\/p>\n
33. Notices. All notices, requests, demands, certifications and
\nother communications hereunder (each a “notice”) shall (except in the case of
\nthe telephonic notices referred to in section 6(d)(vi) and 6(e)(vi)) be in
\nwriting and shall be deemed to have been given when (a) deposited in the United
\nStates mail, first class registered or certified, return receipt requested,
\npostage prepaid,<\/p>\n
117
\n 114<\/p>\n
addressed (1) if to Lessee, at 85 Broad Street, New York, New York 10004,
\nAttention: General Services Department or (2) if to Lessor, at One Madison
\nAvenue, New York, New York 10010, Attention: Executive Vice President, Real
\nEstate Investments, or (b) actually delivered by hand and receipted for (1) if
\nto Lessee, at 85 Broad Street, New York, New York 10004, Attention: General
\nServices Department, or (2) if to Lessor, at One Madison Avenue, New York, New
\nYork 10010, Attention: Executive Vice President, Real Estate Investments.<\/p>\n
Any notice mailed in accordance with this section shall be deemed
\nreceived on the date of the return receipt or, if delivery is refused, on the
\ndate of refusal. Any notice actually delivered by hand and receipted for in
\naccordance with this section shall be deemed received on the date of the
\nreceipt.<\/p>\n
Whenever Lessor gives any notice as aforesaid, it shall give a copy
\nthereof in the same manner to Lessee at 85 Broad Street, New York, New York
\n10004, Attention: General Counsel.<\/p>\n
Whenever Lessee gives any notice as aforesaid, it shall give a copy
\nthereof in the same manner to Lessor at Room 3122, 200 Park Avenue, New York,
\nNew York 10166-0114, Attention: Vice President.<\/p>\n
Lessor or Lessee, by notice given at least 30 days prior to the
\neffective date thereof, may from time to time<\/p>\n
118
\n 115<\/p>\n
change either or both of its above addresses to any other address within the
\nState of New York.<\/p>\n
34. Annual Reports. Within 120 days of the end of each of Lessee’s
\nfiscal years ending during the term hereof, Lessee shall furnish to Lessor a
\nstatement of the income received for such fiscal year under subleases of all or
\nany part of the Combined Premises and a statement of Building operating expenses
\nfor such fiscal year together with a schedule of subleases of all or any part of
\nthe Combined Premises indicating the premises demised, commencement date,
\nexpiration date, renewal options, base rent and escalation provisions.<\/p>\n
35. Miscellaneous. (a) If any term of this Lease or any application
\nthereof shall be invalid or unenforceable, the remainder of this Lease and any
\nother application of such term shall not be affected thereby. All covenants and
\nobligations of Lessor and Lessee hereunder which are not fully performed upon
\nthe expiration or earlier termination of this Lease shall survive such
\nexpiration or earlier termination.<\/p>\n
(b) This Lease may be changed or amended only by an instrument in
\nwriting, signed by the party against whom enforcement of such change or
\namendment is sought.<\/p>\n
(c) Subject to section 20, this Lease shall be binding upon and
\ninure to the benefit of and be enforceable<\/p>\n
119
\n 116<\/p>\n
by the respective successors and assigns of the parties hereto.<\/p>\n
(d) This Lease shall be construed and enforced in accordance with
\nand governed by the laws of the State of New York.<\/p>\n
(e) The headings in this Lease are for purposes of reference only
\nand shall not limit or otherwise affect the meaning hereof. References herein to
\nsections are, unless otherwise indicated, references to sections hereof.<\/p>\n
(f) Lessor and Lessee each represents to the other that it has dealt
\nwith no broker (other than affiliates of Lessee) in connection with the
\nnegotiation and execution of this Lease. Lessee shall pay, and shall indemnify
\nand defend Lessor against any claims for, any commission with respect to this
\nLease due to any such affiliate.<\/p>\n
(g) Lessor and Lessee hereby waive trial by jury in any action
\narising under this Lease.<\/p>\n
(h) No matter concerning this Lease shall be arbitrable unless
\narbitration of such matter is specifically provided for herein. Except as
\nprovided in section 2.2 with respect to arbitrations thereunder, in any instance
\nin this Lease in which arbitration is specifically provided for, such
\narbitration shall be conducted pursuant to the rules of the American Arbitration
\nAssociation, or if the American Arbitration Association shall have ceased to
\nfunction as an arbitration association, of a successor or comparable<\/p>\n
120
\n 117<\/p>\n
organization and the arbitrators shall be persons experienced in matters of the
\nsame general nature as the matter subject to arbitration. If, in any
\narbitration, the arbitrator or arbitrators shall award any sum to be paid by one
\nparty hereto to the other, the arbitrators shall also award interest thereon,
\ncomputed at the prime rate of Morgan Guaranty Trust Company of New York
\nannounced to be in effect from time to time, from the date (prior to such
\narbitration) on which, according to the terms hereof, such sum was to have been
\npaid.<\/p>\n
(i) In any instance in this Lease in which Lessor covenants not
\nunreasonably to withhold its consent or approval, Lessee’s sole remedy in case
\nof such unreasonable withholding is an action for specific performance or
\ninjunction directing such consent or approval and Lessor shall have no liability
\nfor monetary damages.<\/p>\n
36. “Structural Work” consists solely of the following:<\/p>\n
(a) Curtain Wall. Any replacement (including replacement of windows
\nabove the ground floor constituting a part of the precast concrete panels,
\ntogether with the zippers and hard rubber frames of such windows) and\/or repair
\nof the curtain wall in whole or in part, except that Structural Work shall not
\ninclude (i) caulking or acrylic treatment of the curtain wall not done in
\nconjunction with repairs to or replacement of the portion of the curtain wall<\/p>\n
121
\n 118<\/p>\n
caulked or treated, (ii) any work (“Contract Work”) to be done by Lessee to
\ncomply with Lessee’s obligations under Section 10.8 (the “Contract Section”) of
\nthe Contract of Sale (the “Contract”) pursuant to which Lessor acquired the
\nLeased Premises (a copy of the Contract Section being annexed as Schedule F),
\n(iii) any work resulting from Lessee’s failure to do the Contract Work in
\naccordance with the requirements of the Contract Section or (iv) if the Contract
\nWork is undertaken in accordance with Seller’s Recommendation (as defined in the
\nContract Section), any work which Lessor reasonably determines, by notice
\nreceived by Lessee on or prior to the third anniversary of the date of full
\ncompletion of the Contract Work, is necessary because of the failure of the
\nContract Work to remedy the Section 10.8 Condition (as defined in the Contract)
\nwherever it may exist or to prevent its occurrence anywhere else in the
\nBuilding’s curtain wall (any dispute as to the reasonableness of Lessor’s
\ndetermination to be determined by the Appropriate Engineer).<\/p>\n
(b) Curtain Wall Windows. Replacement (but not repair) of curtain
\nwall windows above the ground floor in their entirety (inclusive of the glass,
\nzippers and hard rubber frames in such windows).<\/p>\n
(c) Window Glass. Replacement (but not repair) of the glass in
\ncurtain wall windows above the ground floor.<\/p>\n
122
\n 119<\/p>\n
(d) Window Zippers. Replacement (but not repair) of the zippers in
\ncurtain wall windows above the ground floor.<\/p>\n
(e) Window Hard Rubber Frames. Replacement (but not repair) of the
\nhard rubber frames in curtain wall windows above the ground floor.<\/p>\n
(f) Steel Frame. Replacement and\/or repair of the Building’s steel
\nframe, footings, foundations, columns, beams, floors (including concrete floors
\nand the steel floors supporting each concrete floor) and core walls, except that
\nStructural Work shall not include any Special Alteration or any waterproofing
\nof, or repairing of leaks in, the Building’s foundation walls.<\/p>\n
(g) Roof. Replacement (but not repair) of the Building’s roof in its
\nentirety (but not in part) required in order to preserve the structural
\nintegrity of the Building or the watertightness and airtightness of the
\nBuilding.<\/p>\n
In no event shall Structural Work include the replacement or repair
\nin whole or in part of the Building’s ground floor plaza or the work and
\nobligations under the Distinctive Street Improvement Maintenance Agreement
\n(recorded in the Office of the New York County Clerk in Reel 895, at page 337),
\nthe financial responsibility for which shall be Lessees’s in all instances for
\nso long as this Lease is in effect.<\/p>\n
123<\/p>\n
37. Limitation on Interest. Notwithstanding anything to the contrary
\ncontained in this Lease, neither Lessor nor Lessee shall ever be required to
\npay interest pursuant to any provision of this Lease in excess of the maximum
\ninterest permitted by applicable law.<\/p>\n
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be
\nduly executed and delivered, all as of the date and year first above written.<\/p>\n
METROPOLITAN LIFE INSURANCE COMPANY<\/p>\n
\/s\/ [signature]
\n By:___________________<\/p>\n
GOLDMAN, SACHS & Co.<\/p>\n
\/s\/ [signature]
\n By:___________________<\/p>\n
a General Partner
\n 124<\/p>\n
STATE OF NEW YORK )
\n ) ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the _____ day of _____________, 1985, before me personally came
\n[signature] to me known, who being by me duly sworn, did depose and say that he
\nresides at 45 Commodore Road Chappaqua, NY 10514; that he is a Vice-President of
\nMETROPOLITAN LIFE INSURANCE COMPANY, the corporation described in and which
\nexecuted the foregoing instrument; and that he signed his name thereto by order
\nof the board of directors of said corporation.<\/p>\n
_____________________________<\/p>\n
125<\/p>\n
STATE OF NEW YORK )
\n ) ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the _____ day of _____________, 1985, before me personally came
\n____________________________, to me known to be the individual described in and
\nwho executed the foregoing instrument and acknowledged that he executed the same
\nin the firm name as a General Partner and on behalf of GOLDMAN, SACHS & CO., a
\nlimited partnership.<\/p>\n
_____________________________
\n Notary Public<\/p>\n
126<\/p>\n
Schedule A
\n Legal Description of the Land<\/p>\n
That certain plot, piece or parcel of land, situate, lying and being in the
\nBorough of Manhattan, City, County and State of New York.<\/p>\n
BEGINNING at the corner formed by the intersection of the northerly side of
\nPearl Street with the easterly side of Broad Street;<\/p>\n
Running thence northerly, along the easterly line of Broad Street, 68.00 feet to
\na point;<\/p>\n
Thence easterly, at right angles to the preceding course, 7.50 feet to a point;<\/p>\n
Thence northerly, along the easterly line of Broad Street and at right angles to
\nthe preceding course, 40.00 feet to a point;<\/p>\n
Thence westerly, at right angles to the preceding course, 7.50 feet to a point;<\/p>\n
Thence northerly, along the easterly line of Broad Street and at right angles to
\nthe preceding course, 128.09 feet to a point in the southerly line of South
\nWilliam Street;<\/p>\n
Thence easterly, along the southerly line of South William Street and forming an
\nangle of 109 degrees 27 minutes 57 seconds on its southerly side with the
\npreceding course 94.54 feet to an angle point therein;<\/p>\n
Thence still easterly, along the southerly line of South William Street and
\nforming an angle of 187 degrees 20 minutes 55 seconds on its southerly side with
\nthe preceding course, 114.03 feet to a point;<\/p>\n
Thence southerly, along a line forming an angle of 91 degrees 14 minutes 00
\nseconds on its westerly side with the preceding course, 6.10 feet to a point;<\/p>\n
Thence still southerly, forming an angle of 175 degrees 24 minutes 30 seconds on
\nits westerly side with the preceding course, 83.40 feet to a point in the
\nnortherly line of Stone Street;<\/p>\n
127
\n 2<\/p>\n
Thence still southerly, along the westerly line of Stone Street and forming an
\nangle of 153 degrees 30 minutes 16 seconds on its westerly side with the
\npreceding course, 42.13 feet to a point in the westerly line of Coenties Alley;<\/p>\n
Thence still southerly, along the westerly line of Coenties Alley and forming an
\nangle of 198 degrees 05 minutes 24 seconds on its westerly side with the
\npreceding course, 37.55 feet to an angle point therein;<\/p>\n
Thence still southerly along the westerly line of Coenties Alley and forming an
\nangle of 187 degrees 59 minutes 20 seconds on its westerly side with the
\npreceding course, 19.09 feet to an angle point therein;<\/p>\n
Thence still southerly, along the westerly line of Coenties Alley and forming an
\nangle of 187 degrees 17 minutes 25 seconds on its westerly side with the
\npreceding course, 51.14 feet to a point in the northerly line of Pearl Street;<\/p>\n
Thence westerly, along the northerly line of Pearl Street and forming an angle
\nof 97 degrees 44 minutes 26 seconds on its northerly side with the preceding
\ncourse, 84.22 feet to an angle point therein;<\/p>\n
Thence still westerly, along the northerly line of Pearl Street and forming an
\nangle of 154 degrees 33 minutes 55 seconds on its northerly side with the
\npreceding course, 206.48 feet to the point or place of BEGINNING.<\/p>\n
128<\/p>\n
Schedule B<\/p>\n
Permitted Encumbrances<\/p>\n
1. Easement Agreement dated June 17, 1980 between 85 Broad Street
\nAssociates as Grantor and New York Telephone Company and Empire City Subway
\nCompany Limited as Grantees recorded in Reel 534 Page 271.<\/p>\n
2. Consent to Rapid Transit Railroad recorded in Liber 139 Sec. 1, Cp. 459
\ndated September 9, 1912.<\/p>\n
3. Easement Agreement dated October 2, 1980 between 85 Broad Street
\nAssociates and the City of New York, and recorded in Reel 541 Page 1258.<\/p>\n
4. Easements as set forth in Easement Agreement dated June 17, 1980
\nbetween 85 Broad Street Associates as Grantor and Consolidated Edison Company of
\nNew York, Inc., as Grantee recorded in Reel 563 Page 155.<\/p>\n
5. Sidewalk Easement and Sewer, Sidewalk and Roadway Easement contained in
\ndeed and recorded in Reel 540 Page 641 as amended by Correction Deed recorded in
\nReel 604 page 728.<\/p>\n
6. Distinctive Street Improvement Maintenance Declaration made by Lessee
\nrecorded in Reel 895 p 337.<\/p>\n
7. Zoning regulations and ordinances, municipal building restrictions,
\nenvironmental quality or land use restrictions or regulations and all other
\nlaws, ordinances, regulations or restrictions which are not violated by the
\nexisting structures or the present use thereof.<\/p>\n
8. Rights as of the date hereof to lay, maintain, install, repair and
\nremove pipes, lines, poles, conduits, cable boxes and related equipment and
\nfacilities on, over and under the Combined Premises in connection with the
\nprovision of utility, telephone, water and sewer services to the Combined
\nPremises.<\/p>\n
9. Easements that affect any land in the bed of any street, road or
\navenue, opened or proposed, in front of or adjoining the Combined Premises.<\/p>\n
129<\/p>\n
Schedule C<\/p>\n
Ground Lessor’s
\n Non-Disturbance Agreement
\n and
\n Sub-Lessee’s Agreement to Attorn<\/p>\n
This Agreement, made as of this __ day of _______, ______, by and between
\nMETROPOLITAN LIFE INSURANCE COMPANY, a corporation organized and existing under
\nthe laws of the State of New York, having its principal office and place of
\nbusiness located at One Madison Avenue, New York, New York 10010 (hereinafter
\nreferred to as “Ground Lessor”) and ___________________________, a ___________
\norganized and existing under the laws of _____________________________, having
\nan office and place of business located at ____________, __________, __________
\n(hereinafter referred to as “Sub-Lessee”).<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, Ground Lessor is the present holder of the fee estate in the
\nbuilding located at 85 Broad Street, New York, New York (hereinafter referred to
\nas “Building”); and<\/p>\n
WHEREAS, by indenture of lease (hereinafter referred to as “Ground Lease”)
\ndated _________________ between Ground Lessor, as lessor, and Goldman, Sachs & Co., as lessee (hereinafter referred to as “Ground Lessee”) Ground Lessor leased
\nthe premises and property known as 85<\/p>\n
130
\n 2<\/p>\n
Broad Street together with the Building and all other improvements thereon to
\nGround Lessee; and<\/p>\n
WHEREAS, Ground Lessee, as sub-lessor, and Sub-Lessee, as sub-lessee,
\nentered into a certain sub-lease of space in the Building dated as of
\n_______________, which sub-lease is hereinafter referred to as “Sub-Lease” and
\nthe premises demised thereby are hereinafter referred to as “Demised Premises”
\nand which Demised Premises are more particularly described in the Sub-Lease; and<\/p>\n
WHEREAS, Sub-Lessee has requested that Ground Lessor agree not to disturb
\nSub-Lessee’s possessory rights in the Demised Premises in the event that Ground
\nLessor should terminate the Ground Lessee’s interest in the Ground Lease or
\notherwise cancels the Ground Lease provided that Sub-Lessee is not in default
\nunder the Sub-Lease and further provided the Sub-Lessee attorns to Ground
\nLessor; and<\/p>\n
WHEREAS, Ground Lessor is willing to so agree on the terms and conditions
\nhereinafter provided.<\/p>\n
NOW, THEREFORE, in consideration of the premises, the mutual covenants
\ncontained herein and TEN ($10.00) DOLLARS and other good and valuable
\nconsideration each to the other in hand paid, receipt of which is hereby
\nacknowledged, Ground Lessor and Sub-Lessee hereby agree as follows:<\/p>\n
131
\n 3<\/p>\n
1. The Sub-Lease is and shall be subject and subordinate in all respects
\nto the Ground Lease and to all renewals, modifications, replacements, amendments
\nand\/or extensions of the same.<\/p>\n
2. That, at such time as the term of the Sub-Lease commences, Sub-Lessee
\ntakes occupancy of the Demised Premises and commences payment of the full rents
\ncalled for thereunder and provided Sub-Lessee complies with this Agreement and
\nis not in default under the terms of the Sub-Lease in the payment of the rent or
\nthe additional rents called for under the Sub-Lease (for a period in excess of
\nthe lesser of (i) the applicable period of grace contained in the Sub-Lease or
\n(ii) 10 days after Sub-Lessee receives a default notice in respect of the
\npayment in question) nor in the performance of any of the other terms,
\nconditions, covenants, clauses or agreements on its part to be performed under
\nthe Sub-Lease (for a period in excess of the lesser of (i) the applicable period
\nof grace contained in the Sub-Lease or (ii) 30 days after Sub-Lessee receives a
\ndefault notice in respect of the non-performance in question, provided that such
\n30-day period shall, in the case of a default which cannot with due diligence be
\nremedied within a 30-day period, be extended for such period as may be required
\nto remedy such default with due diligence), as of<\/p>\n
132
\n 4<\/p>\n
the date Ground Lessor cancels or terminates the Ground Lease for any reason
\nbefore the date provided in the Sub-Lease for the termination of the Sub-Lease,
\nas the same may have been modified, extended, renewed and\/or replaced, no
\ncancellation or termination of the same will disturb Sub-Lessee’s possession
\nunder the Sub-Lease and the Sub-Lease will not be affected or cut off thereby
\n(except that Sub-Lessee’s right to receive or set off any monies or obligations
\nowed or to be performed by the Ground Lessee or the successors or assigns to the
\nGround-Lessee’s interest in the Ground Lease shall not be enforceable thereafter
\nagainst Ground Lessor or any subsequent fee owner of the Building) and
\nnotwithstanding any such termination or cancellation of the Ground Lease or
\nother acquisition of the Ground Lessee’s interest in the Ground Lease and merger
\nwith the Ground Lessor’s fee interest in the Building, the Sub-Lease will be
\nrecognized as a direct lease from Ground Lessor or any subsequent holder of the
\nfee estate in the Building, except that the Ground Lessor or any subsequent
\nholder of the fee estate in the Building shall not (a) be liable for any
\nprevious act or omission under the Sub-Lease by the holder of the Ground
\nLessee’s interest in the Ground Lease, (b) be subject to any offset which shall
\ntheretofore have accrued to Sub-Lessee against the holder of the Ground Lessee’s<\/p>\n
133
\n 5<\/p>\n
interest in the Ground Lease, (c) have any obligation with respect to any
\nsecurity deposited under the Sub-Lease unless such security has been physically
\ndelivered to Ground Lessor, or (d) be bound by any previous modification of the
\nSub-Lease or by any previous prepayment of rent for a period greater than one
\n(1) month, unless such modification or prepayment shall have been expressly
\napproved in writing by the Ground Lessor.<\/p>\n
3. That if Ground Lessor elects to accept from the then holder of Ground
\nLessee’s interest in the Ground Lease a surrender or an assignment of the
\nleasehold interest in the Ground Lease in lieu of cancelling or terminating the
\nGround Lease, Sub-Lessee’s right to receive or set off any monies or obligations
\nowed or to be performed by the then holder of the leasehold interest in the
\nGround Lease shall not be enforceable thereafter against Ground Lessor or any
\nsubsequent holder of the fee estate in the Building.<\/p>\n
4. That Sub-Lessee will, upon request of the Ground Lessor or any
\nsubsequent holder of the fee estate in the Building, execute a written agreement
\nwhereunder Sub-Lessee confirms this attornment to Ground Lessor or any such
\nsubsequent holder of the fee estate in the Building and affirms Sub-Lessee’s
\nobligations under the Sub-Lease and agrees to pay all rentals and charges then
\ndue or to become<\/p>\n
134
\n 6<\/p>\n
due as they become due to Ground Lessor or any such subsequent holder of the fee
\nestate in the Building.<\/p>\n
5. Sub-Lessee from and after the date hereof shall send a copy of any
\nnotice or statement under the Sub-Lease to Ground Lessor at the same time such
\nnotice or statement is sent to the lessor under the Sub-Lease.<\/p>\n
6. Sub-Lessee hereby agrees that from and after the date hereof in the
\nevent of any act or omission by the lessor under the Sub-Lease (other than any
\nsuch act or omission which is not capable of being remedied by lessor under the
\nSub-Lease within a reasonable period) which would give Sub-Lessee the right,
\neither immediately or after the lapse of the period of time, to terminate the
\nSub-Lease, or to claim a partial or total eviction, Sub-Lessee will not exercise
\nany such right (i) until it has given written notice of such act or omission to
\nGround Lessor by delivering such notice of such act or omission, by certified
\nmail, return receipt requested, addressed to Ground Lessor, at the Ground
\nLessor’s address as given herein (attention: Vice President, Real Estate
\nInvestments, Northeastern Office), or at the last address of Ground Lessor,
\nfurnished to Sub-Lessee in writing and (ii) until a reasonable period for
\nremedying such act or omission shall have elapsed following such giving of
\nnotice and following the time when<\/p>\n
135
\n 7<\/p>\n
Ground Lessor shall have become entitled under the Ground Lease to remedy the
\nsame; provided, Ground Lessor, at its option shall, following the giving of such
\nnotice, have elected to commence and continue to remedy such act or omission or
\nto cause the same to be remedied.<\/p>\n
7. Sub-Lessee will neither offer nor make prepayment of rent (for a period
\nin excess of one month) nor further change the terms, covenants, conditions and
\nagreements of the Sub-Lease in any manner without the express consent in writing
\nof the Ground Lessor.<\/p>\n
8. No modification, amendment, waiver or release of any provision of this
\nAgreement or of any right, obligation, claim or cause of action arising
\nhereunder shall be valid, or binding for any purpose whatsoever unless in
\nwriting and duly executed by the party against whom the same is sought to be
\nasserted.<\/p>\n
9. This Agreement shall inure to the benefit of the parties hereto, their
\nsuccessors and assigns; provided, however, that in the event of the assignment
\nor transfer of the interest of Ground Lessor, all obligations and liabilities of
\nGround Lessor under this Agreement shall terminate, and thereupon all such
\nobligations and liabilities shall be the responsibility of the party to whom
\nGround Lessor’s interest is assigned or transferred; and<\/p>\n
136
\n 8<\/p>\n
provided further that the interest of Sub-Lessee under this Agreement may not be
\nassigned or transferred, except in connection with an assignment permitted under
\nand in accordance with the terms of the Sub-Lease.<\/p>\n
10. Sub-Lessee agrees that this Agreement satisfies any condition or
\nrequirements in the Sub-Lease relating to the granting of a non-disturbance
\nagreement from the fee owner of the real property of which the Demised Premises
\nare a part.<\/p>\n
11. In the event that Ground Lessor notifies Sub-Lessee of an Event of
\nDefault under the Ground Lease and demands that Sub-Lessee pay its rent and all
\nother sums due under the Sub-Lease to Ground Lessor, Sub-Lessee agrees that it
\nwill honor such demand and pay its rent and all other sums due under the
\nSub-Lease directly to the Ground Lessor during the continuance of such default.<\/p>\n
12. Ground Lessor shall have no responsibility to provide any additional
\nspace for which Sub-Lessee has any option or right under the Sub-Lease unless
\nGround Lessor at its option elects to provide the same and Sub-Lessee hereby
\nreleases Ground Lessor from any obligation to provide the same, if any, and
\nagrees that it shall have no right to cancel the Sub-Lease or any claim against
\nGround Lessor as a result of the failure to provide any additional space.<\/p>\n
137
\n 9<\/p>\n
13. Sub-Lessee covenants and acknowledges that it has no right or option
\nof any nature whatsoever, whether pursuant to the Sub-Lease or otherwise, to
\npurchase the Demised Premises or the real property of which the Demised Premises
\nare a part, or any portion thereof or any interest therein and to the extent
\nthat Sub-Lessee has, or hereafter acquires any such right or option, the same is
\nhereby acknowledged to be subject to and subordinate to the Ground Lease and is
\nhereby waived and released as against Ground Lessor.<\/p>\n
14. Ground Lessor shall have no obligation, nor incur any liability, with
\nrespect to any warranties of any nature whatsoever, whether pursuant to the
\nSub-Lease or otherwise, including, without limitation, any warranties respecting
\nuse, compliance with zoning, title of lessor under the Sub-Lease, the authority
\nof lessor under the Sub-Lease, habitability, fitness for purpose and possession.<\/p>\n
15. Anything herein or in the Sub-Lease to the contrary notwithstanding,
\nGround Lessor shall have no obligation, nor incur any liability, beyond Ground
\nLessor’s then interest, if any, in the fee estate in the Building and Sub-Lessee
\nshall look exclusively to such interest of Ground Lessor, if any, in the fee
\nestate in the Building for the payment and discharge of any obligations imposed
\nupon Ground<\/p>\n
138
\n 10<\/p>\n
Lessor hereunder or under the Sub-Lease and Ground Lessor is hereby released or
\nrelieved of any other obligations hereunder and under the Sub-Lease. Sub-Lessee
\nagrees that with respect to any money judgment which may be obtained or secured
\nby Sub-Lessee against Ground Lessor, Sub-Lessee shall look solely to the fee
\nestate or interest owned by the Ground Lessor in the Building, and Sub-Lessee
\nwill not collect or attempt to collect any such judgment out of any other assets
\nof Ground Lessor.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have respectively signed and sealed
\nthis Agreement as of the day and year first above written.<\/p>\n
METROPOLITAN LIFE INSURANCE COMPANY<\/p>\n
By
\n _______________________________________<\/p>\n
By_______________________________________<\/p>\n
139
\n 11<\/p>\n
Goldman, Sachs & Co. as lessor under the Sub-Lease and as the Ground
\nLessee under the Ground Lease, agrees for itself and its successors and assigns,
\nthat (i) the within Agreement does not (a) constitute a waiver by Ground Lessor
\nof any of its rights under the Ground Lease and\/or (b) in any way release the
\nGround Lessee from its obligation to comply with the terms, provisions,
\nconditions, covenants, agreements and clauses of the Ground Lease, (ii) the
\nprovisions of the Ground Lease remain in full force and effect and must be
\ncomplied with by the Ground Lessee, and (iii) upon the occurrence and
\ncontinuance of an Event of Default under the Ground Lease, Sub-Lessee may pay
\nall rent, additional rents and all other sums due under the Sub-Lease to the
\nGround Lessor as provided in the within Agreement.<\/p>\n
GOLDMAN, SACHS & CO.<\/p>\n
By
\n _______________________________________<\/p>\n
140<\/p>\n
Schedule D<\/p>\n
Major Building Equipment<\/p>\n
Major Building Equipment consists solely of the following:<\/p>\n
(a) any vertical electrical riser;<\/p>\n
(b) any vertical standpipe riser;<\/p>\n
(c) any vertical condenser water riser;<\/p>\n
(d) any vertical domestic water riser;<\/p>\n
(e) any vertical chilled water riser;<\/p>\n
(f) any vertical condensate riser;<\/p>\n
(g) any vertical steam riser;<\/p>\n
(h) any vertical radiation riser;<\/p>\n
(i) any vertical venting stack;<\/p>\n
(j) any vertical draining stack;<\/p>\n
(k) the hoist motor of any elevator;<\/p>\n
(l) the motor drive of any elevator;<\/p>\n
(m) the cab of any elevator;<\/p>\n
(n) any drive motor of any escalator;<\/p>\n
(o) any emergency generator;<\/p>\n
(p) any chiller;<\/p>\n
(q) any cooling tower;<\/p>\n
(r) any steam station;<\/p>\n
(s) any strainercycle;<\/p>\n
(t) any air compressor;<\/p>\n
141
\n 2<\/p>\n
(u) any house tank;<\/p>\n
(v) the life safety system (consisting of the data gathering panels on
\n the various floors, the fire command center at the lobby desk, the
\n automation center and the central processing unit);<\/p>\n
(w) any cooling coil system;<\/p>\n
(x) any elevator bank control system processor; or<\/p>\n
(y) the tubing system of any chiller or condensor.<\/p>\n
In no event shall anything not specified in clauses (a) through (y) above
\n(including, without limitation, any expansion joint of any vertical riser, the
\nwindow washing rig, the pre-heat coils and the component parts of any of the
\nitems listed in clauses (a) through (y) above) be an independent item of Major
\nBuilding Equipment, the financial responsibility for the repair or replacement
\nthereof being Lessees’s in all instances; provided, however, that the
\nreplacement of an item of Major Building Equipment in its entirety shall include
\nthe replacement of the component parts thereof.<\/p>\n
142<\/p>\n
SCHEDULE E<\/p>\n
DEED<\/p>\n
THIS INDENTURE, made the 11th day of June, nineteen hundred and eighty-five,
\nbetween GOLDMAN, SACHS & CO., 85 Broad Street, New York, New York 10004
\n(“Grantor”) and METROPOLITAN LIFE INSURANCE COMPANY, One Madison Avenue, New
\nYork, New York 10010 (“Grantee”).<\/p>\n
WITNESSETH, that Grantor, in consideration of ten dollars ($10), lawful money of
\nthe United States, and other good and valuable consideration paid by Grantee,
\ndoes hereby grant and release unto Grantee and its heirs, successors and assigns
\nforever, subject to the terms and exclusions listed below,<\/p>\n
ALL that certain lot, plot, piece or parcel of land, with the buildings,
\nstructures and improvements thereon erected, situate, lying and being in the
\nBorough of Manhattan, City, County and State of New York.<\/p>\n
BEGINNING at the corner formed by the intersection of the northerly side of
\nPearl Street with the easterly side of Broad Street;<\/p>\n
Running thence northerly, along the easterly line of Broad Street, 68.00 feet to
\na point;<\/p>\n
Thence easterly, at right angles to the preceding course, 7.50 feet to a point;<\/p>\n
Thence northerly, along the easterly line of Broad Street and at right angles to
\nthe preceding course, 40.00 feet to a point;<\/p>\n
Thence westerly, at right angles to the preceding course, 7.50 feet to a point;<\/p>\n
Thence northerly, along the easterly line of Broad Street and at right angles to
\nthe preceding course, 128.09 feet to a point in the southerly line of South
\nWilliam Street.<\/p>\n
Thence easterly, along the southerly line of South William Street and forming an
\nangle of 109 degrees 27 minutes 57 seconds on its southerly side with the
\npreceding course, 94.54 feet to an angle point therein;<\/p>\n
143<\/p>\n
Thence still easterly, along the southerly line of South William Street and
\nforming an angle of 187 degrees 20 minutes 55 seconds on its southerly side with
\nthe preceding course, 114.03 feet to a point;<\/p>\n
Thence southerly, along a line forming an angle of 91 degrees 14 minutes 00
\nseconds on its westerly side with the preceding course, 6.10 feet to a point;<\/p>\n
Thence still southerly, forming an angle of 175 degrees 24 minutes 30 seconds on
\nits westerly side with the preceding course, 83.40 feet to a point in the
\nnortherly line of Stone Street;<\/p>\n
Thence still southerly, along the westerly line of Stone Street and forming an
\nangle of 153 degrees 30 minutes 16 seconds on its westerly side with the
\npreceding course, 42.13 feet to a point in the westerly line of Coenties Alley;<\/p>\n
Thence still southerly, along the westerly line of Coenties Alley and forming an
\nangle of 198 degrees 05 minutes 24 seconds on its westerly side with the
\npreceding course, 37.55 feet to an angle point therein;<\/p>\n
Thence still southerly, along the westerly line of Coenties Alley and forming an
\nangle of 187 degrees 59 minutes 20 seconds on its westerly side with the
\npreceding course, 19.09 feet to an angle point therein;<\/p>\n
Thence still southerly, along the westerly line of Coenties Alley and forming an
\nangle of 187 degrees 17 minutes 25 seconds on its westerly side with the
\npreceding course, 51.14 feet to a point in the northerly line of Pearl Street;<\/p>\n
Thence westerly, along the northerly line of Pearl Street and forming an angle
\nof 97 degrees 44 minutes 26 seconds on its northerly side with the preceding
\ncourse, 84.22 feet to an angle point therein;<\/p>\n
Thence still westerly, along the northerly line of Pearl Street and forming an
\nangle of 154 degrees 33 minutes 55 seconds on its northerly side with the
\npreceding course, 206.48 feet to the point or place of BEGINNING.<\/p>\n
TOGETHER with all right, title and interest, if any, of Grantor in and to any
\nstreets and avenues abutting the above described premises to the center lines
\nthereof,<\/p>\n
TOGETHER with the appurtenances and all the estate and rights of Grantor in and
\nto said premises;<\/p>\n
-2-
\n 144<\/p>\n
EXCEPTING THEREFROM, HOWEVER, THE FOLLOWING:<\/p>\n
(a) Grantor’s rights as landlord under the following leases for
\n space at the premises:<\/p>\n
1. Indenture of Lease between Seller as successor in interest
\nto 85 Broad Street Associates and Merrill Lynch, Pierce, Fenner & Smith dated
\nSeptember 17, 1981, as supplemented by Agreement dated April 14, 1983.<\/p>\n
2. Agreement of Lease between Seller and Emigrant Savings Bank
\ndated June 17, 1983;<\/p>\n
3. Agreement of Lease between Seller and Restaurant
\nAssociates, Inc. dated June 30, 1983 as supplemented by letter agreement dated
\nJune 30, 1983 and as amended by Assignment and Assumption of Lease dated October
\n23, 1984 by which Restaurant Associates, Inc. assigned its interest in such
\nlease to RA\/Eastern Newsstand Corporation;<\/p>\n
4. Agreement of Lease between Seller and Godiva Chocolatier,
\nInc. dated July 15, 1983; and<\/p>\n
(b) The following fixtures and improvements:<\/p>\n
Electrical Work and Communications Wiring – Occupant electric work from base
\nbuilding panels on each floor to local wiring. Communications wiring throughout
\nthe entire Building.<\/p>\n
H.V.A.C. – Occupant HVAC from fire damper in shaft to local distribution.<\/p>\n
Lath & Acoustics – Occupant lath and acoustics<\/p>\n
Computer and Smoke Dampers – computer installation and smoke dampers in occupant
\ncomputer rooms.<\/p>\n
Drywall, Rough Carpentry, Finished Carpentry, Millwork and Cabinetwork –
\nOccupant drywall, rough carpentry, finished carpentry, millwork doors, cabinets
\nand counters. Occupants’ plastic laminate.<\/p>\n
Plumbing and Sprinklers – Occupant plumbing and sprinkler from base building
\nrisers to local distribution.<\/p>\n
Raised Flooring and Floor Finishes – Raised floor and floor finishes in occupant
\nspaces.<\/p>\n
Painting, Wall covering and Lauren Veneer – Paint and wall covering of occupant
\nspaces and lauren veneer supplied for occupant woodwork.<\/p>\n
-3-
\n 145<\/p>\n
Aluminum Frame & Glass – Aluminum frame and glass occupant office fronts.<\/p>\n
Security System and Vault Equipment – Security system including intercom, lobby
\nsecurity doors and roll-up security gate in cafeteria. Bullet proof pass thru
\nvault window.<\/p>\n
Kitchen Equipment and Carved Glass – Kitchen equipment and carved glass
\ndecoration for occupant cafeteria.<\/p>\n
Vertical Conveyors, Pneumatic Tubes and Audio Visual Equipment – Vertical
\nconveyors for occupant mail distribution, pneumatic tubes for occupant use and
\naudio visual equipment for occupant spaces.<\/p>\n
Telephone Closets – Occupant telephone spaces.<\/p>\n
Spray Fireproofing, Waterproofing and Floor Sealant – Repair spray on
\nfireproofing after occupant construction; waterproofing in occupant kitchen
\nareas and floor sealant in occupant areas.<\/p>\n
Architectural Metal and Glass, Hollow Metal, Miscellaneous Metals and Hardware –
\nArchitectural metal and glass, hollow metal, miscellaneous metal work and
\nhardware for occupant areas.<\/p>\n
Venetian Blinds, Black-Out Shades and Finish Fabric – Venetian blinds and
\nblack-out shades for occupant spaces, and fabric for occupant finishes.<\/p>\n
Demountable, Acoustical and Folding Partitions – Removable and folding metal and
\nglass partitions and acoustical partitions in occupant spaces.<\/p>\n
Masonry, Marble and Concrete – Masonry and marble for occupant areas and
\nconcrete for occupant construction work.<\/p>\n
Automatic Doors Equipment – Automatic doors in occupant areas.<\/p>\n
Toilet Partitions and Accessories – Toilet partitions and accessories in
\noccupant area for added toilets.<\/p>\n
TO HAVE AND TO HOLD the premises herein granted unto Grantee, the heirs,
\nsuccessors and assigns of Grantee, forever.<\/p>\n
-4-
\n 146<\/p>\n
AND Grantor, in compliance with Section 13 of the Lien Law, covenants that
\nGrantor will receive the consideration for this conveyance and will hold the
\nright to receive such consideration as a trust fund to be applied first for the
\npurpose of paying the cost of the improvement and will apply the same first to
\nthe payment of the cost of the improvement before using any part of the total of
\nthe same for any other purpose.<\/p>\n
IN WITNESS WHEREOF, Grantor has duly executed this deed the day and year first
\nabove written.<\/p>\n
GOLDMAN, SACHS & CO.<\/p>\n
By:
\n —————————————
\n a general partner<\/p>\n
-5-
\n 147<\/p>\n
STATE OF NEW YORK )
\n ) ss.:
\nCOUNTY OF NEW YORK )<\/p>\n
On the 11th day of June, 1985, before me personally came
\n__________________________, to me known to be the individual described in and
\nwho executed the foregoing instrument and acknowledged that he executed the same
\nin the firm name as a General Partner and on behalf of GOLDMAN, SACHS & CO., a
\nlimited partnership.<\/p>\n
—————————–
\n Notary Public<\/p>\n
148<\/p>\n
BARGAIN AND SALE DEED SECTION: 1
\n BLOCK: 29
\nTitle No. LOT: 1,59 and
\n======================================= 19 and the beds of
\n Stone Street and
\n former Coenties
\n Alley<\/p>\n
GOLDMAN, SACHS & CO.,
\n Grantor<\/p>\n
TO<\/p>\n
METROPOLITAN LIFE INSURANCE COMPANY,
\n Grantee<\/p>\n
RETURN BY MAIL TO:
\n ————————————<\/p>\n
——————————————————————————–
\n Reserve this space for use of Recording Office.
\n 149<\/p>\n
Schedule F<\/p>\n
Section l0.8 of the Contract of Sale<\/p>\n
10.8. (a) Seller and Purchaser acknowledge that cracks exist in
\ncertain of the pre-cast concrete panels on the Building’s curtain wall, that
\ncertain panels have locally spalled at the surface and that exposed reinforcing
\nbars have been observed. Seller has retained the firm of Peter Corsell
\nAssociates, Inc. (“Seller’s Consultant”) to investigate the conditions referred
\nto in the preceding sentence and to inspect the entire curtain wall to determine
\nthe extent to which such conditions exist anywhere in the curtain wall
\n(collectively, the “Section 10.8 Condition”). Seller shall cause Seller’s
\nConsultant to submit to<\/p>\n
-17-
\n 150<\/p>\n
Seller and Purchaser, on or prior to July 1, 1985, a final report (“Seller’s
\nReport”) containing the results of the inspection by Seller’s Consultant and
\nincluding a recommendation (“Seller’s Recommendation”) of the most appropriate
\nmeasures designed (i) to remedy the Section 10.8 Condition wherever it may exist
\nand (ii) to prevent its occurrence anywhere else in the curtain wall.<\/p>\n
(b) Purchaser shall have the right, exercisable by notice (the
\n“Objection Notice”) to Seller delivered not later than fifteen (15) business
\ndays after Purchaser’s receipt of Seller’s Report, to object to Seller’s
\nRecommendation, and if Purchaser shall timely give the Objection Notice, to
\ncause the firm of Purdy & Henderson Associates, Inc. (“Purchaser’s Consultant”)
\nto inspect the Section 10.8 Condition and to submit to Seller and Purchaser, on
\nor prior to the date which is two (2) months after the date Seller receives the
\nObjection Notice, a final report (“Purchaser’s Report”) containing the results
\nof the inspection by Purchaser’s Consultant and including a recommendation
\n(“Purchaser’s Recommendation”) of the most appropriate measures designed (i) to
\nremedy the Section 10.8 Condition wherever it may exist and (ii) to prevent its
\noccurrence anywhere else in the curtain wall.<\/p>\n
(c) If Purchaser shall have timely given the Objection Notice, then
\nSeller, within ten (10) business days after receipt of Purchaser’s Report, shall
\ncause copies of Seller’s Report and Purchaser’ s Report to be submitted to<\/p>\n
-18-
\n 151<\/p>\n
the firm of Eipel Associates (the “Deciding Firm”) which shall, within thirty
\n(30) days after such submission, select either Seller’s Recommendation or
\nPurchaser’s Recommendation as the one which is most appropriate in the
\ncircumstances.<\/p>\n
(d) Seller shall perform with all due diligence all work set forth
\nin Seller’s Recommendation or (if Purchaser shall have timely given the
\nObjection Notice and the Deciding Firm selects Purchaser’s Recommendation) all
\nwork set forth in Purchaser’s Recommendation (the “Contract Work”).<\/p>\n
(e) Seller shall be solely responsible for the cost of the Contract
\nWork and shall pay the fees and disbursements of Seller’s Consultant. Purchaser
\nshall pay the fees and disbursements of Purchaser’s Consultant. Seller and
\nPurchaser shall share equally the fees and disbursements of the Deciding Firm.<\/p>\n
(f) Except for the Contract Work, the provisions of the GS Lease
\nshall govern the respective responsibilities of the parties (in their capacities
\nas lessee and lessor) for maintenance and repair of the Premises, including the
\ncurtain walls of the Building, after the Closing.<\/p>\n
(g) This Section 10.8 shall survive the Closing.<\/p>\n
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